Not even 5 years after the famous referendum of the Coalition for the Family, which was highly politicized and which failed due to lack of sufficient attendance for constitutional recognition, the European Court of Human Rights (ECtHR/Strasbourg Court) ruled that Romania was violating Article 8 of the Convention.

The ECtHR has just condemned Romania for violating Article 8, “the right to respect for private and family life”, in the case of Buhučanu and others v. Romania. All applicants are same-sex couples. The case concerned access to legal recognition and protection of the plaintiffs’ relationship.

The court, in particular, established that Romania is obliged to offer recognition and effective protection to same-sex relationships, although the state itself chooses the form and content of the protection provided.

In particular, the decision of the Strasbourg Court refers to the obligation to grant rights to same-sex couples in long-term relationships similar to those enjoyed by married couples of different sexes, regardless of the legal framework in which these rights can be granted. access and without direct reference to granting the right to marry.

To illustrate an example of good practice, it was first created in France PACS (le pacte civil de solidarité), a contract / civil partnership between private individuals, which also allows same-sex couples to organize their life together, establishing rights and obligations. Later, in 2013, thanks to Christiane Taubira’s reform, “le marriage for us”, when society was ready for an evolution in this area, the political class in France saw fit to move to the next level of protection by passing legislation allowing same-sex couples to marry.

This recognition was not even at the level of other European countries ab initiobut we see over time, together with social changes and evolution in Western countries, that a consensus and a constitutional direction have gradually been established in the member states of the Council of Europe, which has allowed the ECtHR to recognize in its jurisprudence the dynamics of this transition of acceptance and recognition of the rights of same-sex couples, up to the establishment obligations on member states to take measures in this direction.

In 2010, the ECtHR first directly analyzed the issue of recognition of same-sex couples in a case. Schalk and Kopf v Austria. The ECtHR then concluded that member states are not obliged to offer same-sex couples the possibility of entering into marriage or civil partnership, but must ensure the legal form of protection of their relations.

The matter followed Oliari et al v Italy 2015, in which the ECtHR found that Italy violated the right to respect for the private and family life of LGBTIQ+ couples by not having a legal form to recognize their relationship. The court noted that states must ensure an adequate level of legal protection for same-sex couples.

There is also an important 2018 judgment of the Luxembourg Court of the European Union (CJEU) in the Coman-Hamilton case, where the CJEU obliged EU member states to recognize same-sex marriages if they were performed on the territory of an EU member state.

In the case of Romania, a citizens’ initiative that tried to amend the Constitution in such a way as to allow marriage between persons of the opposite sex failed, which allows us to indirectly conclude that the Romanian society is open and ready to offer protection to people of the same sex, in a couple. A 2021 poll conducted by Cult Market Research and The Street for the association ACCEPT, with financial support from the Friedrich Naumann Freedom Foundation, shows that more than 70% of respondents say that the adoption of such a law would not have any impact on their lives.

This is a remarkable evolution, considering that more than 20 years ago in Romania, homosexuality was considered a crime in the Criminal Code. Article 200 of the Criminal Code was repealed in 2001 following political pressure from the Council of Europe. Here, 22 years after the decriminalization of homosexuality, Romanians opposed the introduction of amendments to the Constitution in the sense of limiting the rights of LGBTIQ+ couples. However, the political class was in no hurry to create a legislative framework that would provide legal protection to same-sex couples.

Why is legislation to legally recognize and protect same-sex couples so important? Currently, in Romania LGBTIQ+ couples are not recognized by law, which means that same-sex partners in long-term relationships cannot benefit from the rights that heterosexual married couples have, such as the right to inheritance, pension. , health, separation in divorce, adoption, free movement, etc. It is not only about moral values, but also about democracy and the fact that all citizens living in a rule of law, paying the same taxes and duties, should be equal before the law both in terms of duties and rights. Providing legal protection would give these couples the confidence that they are protected by the law in any situation, which would allow them to build a fulfilling family life.

Finalization of the ECtHR’s Buhučanu v. Romania case: Romania must enact legislation that provides some form of recognition and legal protection to LGBTIQ+ couples. This was an expected decision, especially in the context of the already consistent jurisprudence of the ECtHR in such cases, respectively in the cases of Oliari v. Italy and Fedotova vs. Russia.

What happens if Romania does not comply with the decision?

Although two decisions of the Constitutional Court of Romania, 562/2017 and 534/2018, say that Romania has a positive obligation to recognize same-sex couples, there is no such regime in Romania. We wonder if the decisions of the CRS are also not implemented, what would motivate the political class to respect the ECtHR’s decision in the Buguchan case? What will happen if Romania does not comply with this decision?

Member States have undertaken to comply with final judgments of the ECtHR establishing violations of the European Convention on Human Rights (ECHR), as well as ECtHR judgments that take into account amicable settlements in accordance with Articles 46 and 39.4 of the Convention. Conventions.

Currently, Romania is in the process of supervising the implementation of ECtHR decisions in a large number of cases. Processes for the implementation of ECtHR decisions are long, and in a situation where they require the adoption of laws, as in this case, they can last for years. However, pressure from civil society and international organizations such as the Council of Europe and the European Union can accelerate this process. It is important to note that as a member state of the Council of Europe, Romania can benefit from technical assistance to develop a legal framework to ensure the recognition and protection of same-sex couples. Civil society is also very active and has the necessary means to support these efforts.

In other words, Romania risks imposing sanctions, but it may take some time to actually do so. – Read the entire article and comment on Contributors.ro