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SCHALK AND KOPF v. AUSTRIA JUDGMENT 13

male-to-female post-operative transsexual. They complained inter alia

under Article 12 of the Convention that they were required to end their

marriage if the second applicant wished to obtain full legal recognition of

her change of gender. The Court dismissed that complaint as being

manifestly ill-founded. It noted that domestic law only permitted marriage

between persons of opposite gender, whether such gender derived from

attribution at birth or from a gender recognition procedure, while same-sex

marriages were not permitted. Similarly, Article 12 enshrined the traditional

concept of marriage as being between a man and a woman. The Court

acknowledged that a number of Contracting States had extended marriage to

same-sex partners, but went on to say that this reflected their own vision of

the role of marriage in their societies and did not flow from an interpretation

of the fundamental right as laid down by the Contracting States in the

Convention in 1950. The Court concluded that it fell within the State's

margin of appreciation how to regulate the effects of the change of gender

on pre-existing marriages. In addition it considered that, should they chose

to divorce in order to allow the transsexual partner to obtain full gender

recognition, the fact that the applicants had the possibility to enter into a

civil partnership contributed to the proportionality of the gender recognition

regime complained of.

b. Application in the present case

54. The Court notes that Article 12 grants the right to marry to “men and

women”. The French version provides « l'homme et la femme ont le droit de

se marier ». Furthermore, Article 12 grants the right to found a family.

55. The applicants argued that the wording did not necessarily imply that

a man could only marry a woman and vice versa. The Court observes that,

looked at in isolation, the wording of Article 12 might be interpreted so as

not to exclude the marriage between two men or two women. However, in

contrast, all other substantive Articles of the Convention grant rights and

freedoms to “everyone” or state that “no one” is to be subjected to certain

types of prohibited treatment. The choice of wording in Article 12 must thus

be regarded as deliberate. Moreover, regard must be had to the historical

context in which the Convention was adopted. In the 1950s marriage was

clearly understood in the traditional sense of being a union between partners

of different sex.

56. As regards the connection between the right to marry and the right to

found a family, the Court has already held that the inability of any couple to

conceive or parent a child cannot be regarded as per se removing the right to

marry (Christine Goodwin, cited above, § 98). However, this finding does

not allow any conclusion regarding the issue of same-sex marriage.

57. In any case, the applicants did not rely mainly on the textual

interpretation of Article 12. In essence they relied on the Court's case-law

according to which the Convention is a living instrument which is to be

SCHALK AND KOPF v. AUSTRIA JUDGMENT 14

interpreted in present-day conditions (see E.B. v. France [GC],

no. 43546/02, § 92, ECHR 2008-..., and Christine Goodwin, cited above,

§§ 74-75). In the applicants' contention Article 12 should in present-day

conditions be read as granting same-sex couples access to marriage or, in

other words, as obliging member States to provide for such access in their

national laws.

58. The Court is not persuaded by the applicants' argument. Although, as

it noted in Christine Goodwin, the institution of marriage has undergone

major social changes since the adoption of the Convention, the Court notes

that there is no European consensus regarding same-sex marriage. At

present no more than six out of forty-seven Convention States allow

same-sex marriage (see paragraph 27 above).

59. As the respondent Government as well as the third-party

Government have rightly pointed out, the present case has to be

distinguished from Christine Goodwin. In that case (cited above, § 103) the

Court perceived a convergence of standards regarding marriage of

transsexuals in their assigned gender. Moreover, Christine Goodwin is

concerned with marriage of partners who are of different gender, if gender

is defined not by purely biological criteria but by taking other factors

including gender reassignment of one of the partners into account.

60. Turning to the comparison between Article 12 of the Convention and

Article 9 of the Charter of Fundamental Rights of the European Union (the

Charter), the Court has already noted that the latter has deliberately dropped

the reference to men and women (see Christine Goodwin, cited above,

§ 100). The commentary to the Charter, which became legally binding in

December 2009, confirms that Article 9 is meant to be broader in scope than

the corresponding articles in other human rights instruments (see

paragraph 25 above). At the same time the reference to domestic law

reflects the diversity of national regulations, which range from allowing

same-sex marriage to explicitly forbidding it. By referring to national law,

Article 9 of the Charter leaves the decision whether or not to allow

same-sex marriage to the States. In the words of the commentary: “... it may

be argued that there is no obstacle to recognize same-sex relationships in the

context of marriage. There is however, no explicit requirement that

domestic laws should facilitate such marriages.”

61. Regard being had to Article 9 of the Charter, therefore, the Court

would no longer consider that the right to marry enshrined in Article 12

must in all circumstances be limited to marriage between two persons of the

opposite sex. Consequently, it cannot be said that Article 12 is inapplicable

to the applicants' complaint. However, as matters stand, the question

whether or not to allow same-sex marriage is left to regulation by the

national law of the Contracting State.

62. In that connection the Court observes that marriage has deep-rooted

social and cultural connotations which may differ largely from one society

SCHALK AND KOPF v. AUSTRIA JUDGMENT 15

to another. The Court reiterates that it must not rush to substitute its own

judgment in place of that of the national authorities, who are best placed to

assess and respond to the needs of society (see B. and L. v. the United

Kingdom, cited above, § 36).

63. In conclusion, the Court finds that Article 12 of the Convention does

not impose an obligation on the respondent Government to grant a same-sex

couple like the applicants access to marriage.

64. Consequently, there has been no violation of Article 12 of the

Convention.

III. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN

CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

65. The applicants complained under Article 14 taken in conjunction

with Article 8 of the Convention that they were discriminated against on

account of their sexual orientation, since they were denied the right to marry

and did not have any other possibility to have their relationship recognised

by law before the entry into force of the Registered Partnership Act.

Article 8 reads as follows:

“1. Everyone has the right to respect for his private and family life, ...

2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.”

Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be

secured without discrimination on any ground such as sex, race, colour, language,

religion, political or other opinion, national or social origin, association with a

national minority, property, birth or other status.”

A. Admissibility

1. Exhaustion of domestic remedies

66. The Government argued in their written observations that, before the

domestic authorities, the applicants had complained exclusively about the

impossibility to marry. Any other points raised explicitly or implicitly in

their application to the Court, such as the question of any alternative legal

recognition of their relationship, were to be declared inadmissible for

non-exhaustion. However, the Government did not explicitly pursue that

argument in their oral pleadings before the Court. On the contrary, they

SCHALK AND KOPF v. AUSTRIA JUDGMENT 16

stated that the issue of registered partnership could be regarded as being

inherent in the present application.

67. The applicants contested the Government's non-exhaustion

argument, asserting in particular that the aspect of being discriminated

against as a same-sex couple formed part of their complaint and that they

had also relied on the Court's case-law under Article 14 taken in conjunction

with Article 8 in their constitutional complaint.

68. The Court reiterates that Article 35 § 1 of the Convention requires

that complaints intended to be made subsequently at Strasbourg should have

been made to the appropriate domestic body, at least in substance and in

compliance with the formal requirements and time-limits laid down in

domestic law (see Akdivar and Others v. Turkey, 16 September 1996, § 66,

Reports of Judgments and Decisions 1996-IV).

69. The domestic proceedings in the present case related to the

authorities' refusal to permit the applicants' marriage. As the possibility to

enter into a registered partnership did not exist at the material time, it is

difficult to see how the applicants could have raised the question of legal

recognition of their partnership except by trying to conclude marriage.

Consequently, their constitutional complaint also focused on the lack of

access to marriage. However, they also complained, at least in substance,

about the lack of any other means to have their relationship recognised by

law. Thus, the Constitutional Court was in a position to deal with the issue

and, indeed, addressed it briefly, albeit only by stating that it was for the

legislator to examine in which areas the law possibly discriminated against

same-sex couples by restricting certain rights to married couples. In these

circumstances, the Court is satisfied that the applicants complied with the

requirement of exhausting domestic remedies.

70. In any case, the Court agrees with the Government that the issue of

alternative legal recognition is so closely connected to the issue of lack of

access to marriage that it has to be considered as being inherent in the

present application.

71. In conclusion, the Court dismisses the Government's argument that

the applicants failed to exhaust domestic remedies in respect of their

complaint under Article 14 taken in conjunction with Article 8.

2. The applicants' victim status

72. In their oral pleadings before the Court the Government also raised

the question whether the applicants could still claim to be victims of the

alleged violation following the entry into force of the Registered Partnership

Act.

73. The Court reiterates that an applicant's status as a victim may depend

on compensation being awarded at domestic level on the basis of the facts

about which he or she complains before the Court and on whether the

domestic authorities have acknowledged, either expressly or in substance,

SCHALK AND KOPF v. AUSTRIA JUDGMENT 17

the breach of the Convention. Only when those two conditions are satisfied

does the subsidiary nature of the Convention preclude examination of an

application (see, for instance, Scordino v. Italy (dec.), no. 36813/97,

ECHR 2003-IV).

74. In the present case, the Court does not have to examine whether the

first condition has been fulfilled, as the second condition has not been met.

The Government have made it clear that the Registered Partnership Act was

introduced as a matter of policy choice and not in order to fulfil an

obligation under the Convention (see paragraph 80 below). Therefore, the

introduction of the said Act cannot be regarded as an acknowledgement of

the breach of the Convention alleged by the applicants. Consequently, the

Court dismisses the Government's argument that the applicants can no

longer claim to be victims of the alleged violation of Article 14 taken in

conjunction with Article 8.

3. Conclusion

75. The Court considers, in the light of the parties' submissions, that the

complaint raises serious issues of fact and law under the Convention, the

determination of which requires an examination of the merits. The Court

concludes therefore that this complaint is not manifestly ill-founded within

the meaning of Article 35 § 3 of the Convention. No other ground for

declaring it inadmissible has been established.

B. Merits

1. The parties' submissions

76. The applicants maintained that the heart of their complaint was that

they were discriminated against as a same-sex couple. Agreeing with the

Government on the applicability of Article 14 taken in conjunction with

Article 8, they asserted that just like differences based on sex, differences

based on sexual orientation required particularly serious reasons for

justification. In the applicants' contention the Government had failed to

submit any such reasons for excluding them from access to marriage.

77. It followed from the Court's Karner judgment (cited above, § 40)

that the protection of the traditional family was a weighty and legitimate

reason, but it had to be shown that a given difference was also necessary to

achieve that aim. In the applicants' assertion nothing showed that the

exclusion of same-sex couples from marriage was necessary to protect the

traditional family.

78. In their oral pleadings, reacting to the introduction of the Registered

Partnership Act, the applicants argued that the remaining differences

between marriage on the one hand and registered partnership on the other

SCHALK AND KOPF v. AUSTRIA JUDGMENT 18

were still discriminatory. They mentioned in particular that the Registered

Partnership Act did not provide a possibility to enter into an engagement;

that, unlike marriages, registered partnerships were not concluded at the

Office for matters of Personal Status but at the District Administrative

Authority; that there was no entitlement to compensation in the event of

wrongful death of the partner; and that it was unclear whether certain

benefits which were granted to “families” would also be granted to

registered partners and the children of one of them living in the common

household. Although differences based on sexual orientation required

particularly weighty reasons, no such reasons had been given by the

Government.

79. The Government accepted that Article 14 taken in conjunction with

Article 8 of the Convention applied. So far the Court's case-law had

considered homosexual relationships to fall within the notion of “private

life” but there might be good reasons to include the relationship of a

same-sex couple living together in the scope of “family life”.

80. Regarding compliance with the requirements of Article 14 taken in

conjunction with Article 8, the Government maintained that it was within

the legislator's margin of appreciation whether or not same-sex couples

were given a possibility to have their relationship recognised by law in any

other form than marriage. The Austrian legislator had made the policy

choice to give same-sex couples such a possibility. Under the Registered

Partnership Act which had entered into force on 1 January 2010 same-sex

partners were able to enter into a registered partnership which provided

them with a status very similar to marriage. The new law covered such

diverse fields as civil and criminal law, labour, social and social insurance

law, fiscal law, the law on administrative procedure, the law on data

protection and public service, passport and registration issues, as well as the

law on foreigners.

2. The third parties' submissions

81. As to the applicability of Article 8, the third-party Government

submitted that although the Court's case-law as it stood did not consider

same-sex relationships to fall within the notion of “family life”, this should

not be excluded in the future. Nonetheless Article 8 read in conjunction with

Article 14 should not be interpreted so as to require either access to

marriage or the creation of alternative forms of legal recognition for

same-sex partnerships.

82. Regarding the justification for that difference in treatment, the

third-party Government contested the applicants' argument drawn from the

Court's Karner judgment. In that case the Court had found that excluding

same-sex couples from protection provided to different-sex couples under

the Rent Act was not necessary for achieving the legitimate aim of

protecting the family in the traditional sense. The issue in the present case

SCHALK AND KOPF v. AUSTRIA JUDGMENT 19

was different: what was at stake was the question of access to marriage or

alternative legal recognition. The justification for that particular difference

in treatment between different-sex and same-sex couples was laid down in

Article 12 of the Convention itself.

83. Finally, the third-party Government submitted that in the United

Kingdom the Civil Partnership Act 2004 which had come into force in

December 2005 had introduced a system of partnership registration for

same-sex couples. However, the said Act was introduced as a policy choice

in order to promote social justice and equality, while it was not considered

that the Convention imposed a positive obligation to provide such a

possibility. In the Government's view this position was supported by the

Court's decision in Courten v. the United Kingdom (no. 4479/06,

4 November 2008).

84. The four non-governmental organisations pleaded in their joint

comments that the Court should rule on the question whether a same-sex

relationship of cohabiting partners fell under the notion of “family life”

within the meaning of Article 8 of the Convention. They noted that the

question had been left open in Karner (cited above, § 33). They argued that

by now it was generally accepted that same-sex couples had the same

capacity to establish a long-term emotional and sexual relationship as

different-sex couples and, thus, had the same needs as different-sex couples

to have their relationship recognised by law.

85. Were the Court not to find that Article 12 required Contracting States

to grant same-sex couples access to marriage, it should address the question

whether there was an obligation under Article 14 taken together with

Article 8 to provide alternative means of legal recognition of a same-sex

partnership.

86. The non-governmental organisations answered that question in the

affirmative: firstly, excluding same-sex couples from particular rights and

benefits attached to marriage (such as for instance the right to a survivor's

pension) without giving them access to any alternative means to qualify

would amount to indirect discrimination (see Thlimmenos v. Greece [GC],

no. 34369/97, § 44, ECHR 2000-IV). Secondly, they agreed with the

applicants' argument drawn from Karner (cited above). Thirdly, they

asserted that the state of European consensus increasingly supported the

idea that member States were under an obligation to provide, if not access to

marriage, alternative means of legal recognition. By now almost 40% had

legislation allowing same-sex couples to register their relationships as

marriages or under an alternative name (see paragraphs 27-28 above).

SCHALK AND KOPF v. AUSTRIA JUDGMENT 20

3. The Court's assessment

a. Applicability of Article 14 taken in conjunction with Article 8

87. The Court has dealt with a number of cases concerning

discrimination on account of sexual orientation. Some were examined under

Article 8 alone, namely cases concerning the prohibition under criminal law

of homosexual relations between adults (see Dudgeon v. the United

Kingdom, 22 October 1981, Series A no. 45; Norris v. Ireland, 26 October

1988, Series A no. 142; and Modinos v. Cyprus, 22 April 1993, Series A

no. 259) and the discharge of homosexuals from the armed forces (see

Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96,

ECHR 1999-VI). Others were examined under Article 14 taken in

conjunction with Article 8. These included, inter alia, different age of

consent under criminal law for homosexual relations (L. and V. v. Austria,

nos. 39392/98 and 39829/98, ECHR 2003-I), the attribution of parental

rights (Salgueiro da Silva Mouta v. Portugal, no. 33290/96,

ECHR 1999-IX), permission to adopt a child (Fretté v. France,

no. 36515/97, ECHR 2002-I, and E.B. v. France, cited above) and the right

to succeed to the deceased partner's tenancy (Karner, cited above).

88. In the present case, the applicants have formulated their complaint

under Article 14 taken in conjunction with Article 8. The Court finds it

appropriate to follow this approach.

89. As the Court has consistently held, Article 14 complements the other

substantive provisions of the Convention and its Protocols. It has no

independent existence since it has effect solely in relation to “the enjoyment

of the rights and freedoms” safeguarded by those provisions. Although the

application of Article 14 does not presuppose a breach of those provisions –

and to this extent it is autonomous –, there can be no room for its

application unless the facts at issue fall within the ambit of one or more of

the latter (see, for instance, E.B. v. France, cited above, § 47; Karner, cited

above, § 32; and Petrovic v. Austria, 27 March 1998, § 22,

Reports 1998-II).

90. It is undisputed in the present case that the relationship of a same-sex

couple like the applicants' falls within the notion of “private life” within the

meaning of Article 8. However, in the light of the parties' comments the

Court finds it appropriate to address the issue whether their relationship also

constitutes “family life”.

91. The Courts reiterates its established case-law in respect of different-

sex couples, namely that the notion of family under this provision is not

confined to marriage-based relationships and may encompass other de facto

“family” ties where the parties are living together out of wedlock. A child

born out of such a relationship is ipso jure part of that “family” unit from

the moment and by the very fact of his birth (see Elsholz v. Germany [GC],

SCHALK AND KOPF v. AUSTRIA JUDGMENT 21

no. 25735/94, § 43, ECHR 2000-VIII; Keegan v. Ireland, 26 May 1994,

§ 44, Series A no. 290; and also Johnston and Others v. Ireland,

18 December 1986, § 56, Series A no. 112).

92. In contrast, the Court's case-law has only accepted that the emotional

and sexual relationship of a same-sex couple constitutes “private life” but

has not found that it constitutes “family life”, even where a long-term

relationship of cohabiting partners was at stake. In coming to that

conclusion, the Court observed that despite the growing tendency in a

number of European States towards the legal and judicial recognition of

stable de facto partnerships between homosexuals, given the existence of

little common ground between the Contracting States, this was an area in

which they still enjoyed a wide margin of appreciation (see Mata Estevez

v. Spain (dec.), no. 56501/00, ECHR 2001-VI, with further references). In

the case of Karner (cited above, § 33), concerning the succession of a same-

sex couples' surviving partner to the deceased's tenancy rights, which fell

under the notion of “home”, the Court explicitly left open the question

whether the case also concerned the applicant's “private and family life”.

93. The Court notes that since 2001, when the decision in Mata Estevez

was given, a rapid evolution of social attitudes towards same-sex couples

has taken place in many member States. Since then a considerable number

of member States have afforded legal recognition to same-sex couples (see

above, paragraphs 27-30). Certain provisions of EU law also reflect a

growing tendency to include same-sex couples in the notion of “family”

(see paragraph 26 above).

94. In view of this evolution the Court considers it artificial to maintain

the view that, in contrast to a different-sex couple, a same-sex couple cannot

enjoy “family life” for the purposes of Article 8. Consequently the

relationship of the applicants, a cohabiting same-sex couple living in a

stable de facto partnership, falls within the notion of “family life”, just as

the relationship of a different-sex couple in the same situation would.

95. The Court therefore concludes that the facts of the present case fall

within the notion of “private life” as well as “family life” within the

meaning of Article 8. Consequently, Article 14 taken in conjunction with

Article 8 applies.

b. Compliance with Article 14 taken together with Article 8

96. The Court has established in its case-law that in order for an issue to

arise under Article 14 there must be a difference in treatment of persons in

relevantly similar situations. Such a difference of treatment is

discriminatory if it has no objective and reasonable justification; in other

words, if it does not pursue a legitimate aim or if there is not a reasonable

relationship of proportionality between the means employed and the aim

sought to be realised. The Contracting States enjoy a margin of appreciation

SCHALK AND KOPF v. AUSTRIA JUDGMENT 22

in assessing whether and to what extent differences in otherwise similar

situations justify a difference in treatment (see Burden, cited above, § 60).

97. On the one hand the Court has held repeatedly that, just like

differences based on sex, differences based on sexual orientation require

particularly serious reasons by way of justification (see Karner, cited above,

§ 37; L. and V. v. Austria, cited above, § 45; and Smith and Grady, cited

above, § 90). On the other hand, a wide margin is usually allowed to the

State under the Convention when it comes to general measures of economic

or social strategy (see, for instance, Stec and Others v. the United Kingdom

[GC], no. 65731/01, § 52, ECHR 2006-VI).

98. The scope of the margin of appreciation will vary according to the

circumstances, the subject matter and its background; in this respect, one of

the relevant factors may be the existence or non-existence of common

ground between the laws of the Contracting States (see Petrovic, cited

above, § 38).

99. While the parties have not explicitly addressed the issue whether the

applicants were in a relevantly similar situation to different-sex couples, the

Court would start from the premise that same-sex couples are just as capable

as different-sex couples of entering into stable committed relationships.

Consequently, they are in a relevantly similar situation to a different-sex

couple as regards their need for legal recognition and protection of their

relationship.

100. The applicants argued that they were discriminated against as a

same-sex couple, firstly, in that they still did not have access to marriage

and, secondly, in that no alternative means of legal recognition were

available to them until the entry into force of the Registered Partnership

Act.

101. Insofar as the applicants appear to contend that, if not included in

Article 12, the right to marry might be derived from Article 14 taken in

conjunction with Article 8, the Court is unable to share their view. It

reiterates that the Convention is to be read as a whole and its Articles should

therefore be construed in harmony with one another (see Johnston and

Others, cited above, § 57). Having regard to the conclusion reached above,

namely that Article 12 does not impose an obligation on Contracting States

to grant same-sex couples access to marriage, Article 14 taken in

conjunction with Article 8, a provision of more general purpose and scope,

cannot be interpreted as imposing such an obligation either.

102. Turning to the second limb of the applicants' complaint, namely the

lack of alternative legal recognition, the Court notes that at the time when

the applicants lodged their application they did not have any possibility to

have their relationship recognised under Austrian law. That situation

obtained until 1 January 2010, when the Registered Partnership Act entered

into force. SCHALK AND KOPF v. AUSTRIA JUDGMENT 23

103. The Court reiterates in this connection that in proceedings

originating in an individual application it has to confine itself, as far as

possible, to an examination of the concrete case before it (see

F. v. Switzerland, cited above, § 31). Given that at present it is open to the

applicants to enter into a registered partnership, the Court is not called upon

to examine whether the lack of any means of legal recognition for same-sex

couples would constitute a violation of Article 14 taken in conjunction with

Article 8 if it still obtained today.

104. What remains to be examined in the circumstances of the present

case is whether the respondent State should have provided the applicants

with an alternative means of legal recognition of their partnership any

earlier than it did.

105. The Court cannot but note that there is an emerging European

consensus towards legal recognition of same-sex couples. Moreover, this

tendency has developed rapidly over the past decade. Nevertheless, there is

not yet a majority of States providing for legal recognition of same-sex

couples. The area in question must therefore still be regarded as one of

evolving rights with no established consensus, where States must also enjoy

a margin of appreciation in the timing of the introduction of legislative

changes (see Courten, cited above; see also M.W. v. the United Kingdom

(dec.), no. 11313/02, 23 June 2009, both relating to the introduction of the

Civil Partnership Act in the United Kingdom).

106. The Austrian Registered Partnership Act, which entered into force

on 1 January 2010, reflects the evolution described above and is thus part of

the emerging European consensus. Though not in the vanguard, the

Austrian legislator cannot be reproached for not having introduced the

Registered Partnership Act any earlier (see, mutatis mutandis, Petrovic,

cited above, § 41).

107. Finally, the Court will examine the applicants' argument that they

are still discriminated against as a same sex-couple on account of certain

differences conferred by the status of marriage on the one hand and

registered partnership on the other.

108. The Court starts from its findings above, that States are still free,

under Article 12 of the Convention as well as under Article 14 taken in

conjunction with Article 8, to restrict access to marriage to different-sex

couples. Nevertheless the applicants appear to argue that if a State chooses

to provide same-sex couples with an alternative means of recognition, it is

obliged to confer a status on them which – though carrying a different name

– corresponds to marriage in each and every respect. The Court is not

convinced by that argument. It considers on the contrary that States enjoy a

certain margin of appreciation as regards the exact status conferred by

alternative means of recognition.

109. The Court observes that the Registered Partnership Act gives the

applicants a possibility to obtain a legal status equal or similar to marriage

SCHALK AND KOPF v. AUSTRIA JUDGMENT 24

in many respects (see paragraphs 18-23 above). While there are only slight

differences in respect of material consequences, some substantial

differences remain in respect of parental rights. However, this corresponds

on the whole to the trend in other member States (see paragraphs 32-33

above). Moreover, the Court is not called upon in the present case to

examine each and every one of these differences in detail. For instance, as

the applicants have not claimed that they are directly affected by the

remaining restrictions concerning artificial insemination or adoption, it

would go beyond the scope of the present application to examine whether

these differences are justified. On the whole, the Court does not see any

indication that the respondent State exceeded its margin of appreciation in

its choice of rights and obligations conferred by registered partnership.

110. In conclusion, the Court finds there has been no violation of

Article 14 of the Convention taken in conjunction with Article 8.

IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1

111. The applicants complained that, compared with married couples

they suffered disadvantages in the financial sphere, in particular under tax

law. They relied on Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his

possessions. No one shall be deprived of his possessions except in the public interest

and subject to the conditions provided for by law and by the general principles of

international law.

The preceding provisions shall not, however, in any way impair the right of a State

to enforce such laws as it deems necessary to control the use of property in

accordance with the general interest or to secure the payment of taxes or other

contributions or penalties.”

Admissibility

112. In their written observations the Government argued that the

applicants' complaint about possible discrimination in the financial sphere

was to be declared inadmissible for non-exhaustion. They did not, however,

explicitly pursue that argument in their oral pleadings before the Court.

113. The Court notes that the applicants touched upon the issue of

discrimination in the financial sphere, in particular in tax law, in their

complaint before the Constitutional Court in order to illustrate their main

complaint, namely that they were discriminated against as a same-sex

couple in that they did not have access to marriage.

114. In the circumstances of the present case, the Court is not called

upon to resolve the question whether or not the applicants exhausted

domestic remedies. It notes that in their application to the Court the

SCHALK AND KOPF v. AUSTRIA JUDGMENT 25

applicants did not give any details in respect of the alleged violation of

Article 1 of Protocol No. 1. The Court therefore considers that this

complaint has not been substantiated.

115. It follows that this complaint is manifestly ill-founded and must be

rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT

1. Dismisses unanimously the Government's request to strike the

application out of the Court's list;

2. Declares by six votes to one admissible the applicants' complaint under

Article 12 of the Convention;

3. Declares unanimously admissible the applicants' complaint under Article

14 taken in conjunction with Article 8 of the Convention;

4. Declares unanimously inadmissible the remainder of the application;

5. Holds unanimously that there has been no violation of Article 12 of the

Convention;

6. Holds by four votes to three that there has been no violation of Article 14

taken in conjunction with Article 8 of the Convention;

Done in English, and notified in writing on 24 June 2010, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Christos Rozakis

Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the following separate opinions are annexed to this

judgment:

(a) Joint dissenting opinion of Judges Rozakis, Spielmann and Jebens;

(b) Concurring opinion of Judge Malinverni joined by Judge Kovler.

C.L.R.

A.M.W


PAGINE

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AUTORE

Atreyu

PUBBLICATO

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DESCRIZIONE DISPENSA

La dispensa fa riferimento alle lezioni di Diritto Costituzionale Avanzato, tenute dal Prof. Francesco Cerrone nell'anno accademico 2011.
Il documento riporta il testo di una sentenza della Corte di Strasburgo in tema di tutela delle coppie omosessuali. La Corte dichiara che a seconda delle radici storico-culturali di un Paese si può parificarle o meno a quelle eterosessuali; ogni cultura ha la sua concezione di vita familiare e se questa concezione è rispettata non si incorre nella violazione del principio di non discriminazione.


DETTAGLI
Corso di laurea: Corso di laurea magistrale in giurisprudenza
SSD:
Università: Perugia - Unipg
A.A.: 2011-2012

I contenuti di questa pagina costituiscono rielaborazioni personali del Publisher Atreyu di informazioni apprese con la frequenza delle lezioni di Diritto Costituzionale Avanzato e studio autonomo di eventuali libri di riferimento in preparazione dell'esame finale o della tesi. Non devono intendersi come materiale ufficiale dell'università Perugia - Unipg o del prof Cerrone Francesco.

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