Abstract
This chapter argues that the recognition of same-sex couples in Eastern Europe can occur either via legislative change or court decisions. Nevertheless, local specificity challenges the theory of incremental changes that, as applied to Western European countries, assumes a step-by-step progress from the decriminalization of sodomy, through the prohibition of sexual orientation and to the recognition of same-sex partnership or marriage. In Eastern Europe, however, some countries have not gone beyond the minimum of decriminalizing sodomy, while others have adopted anti-discrimination laws under the pressure of the EU accession yet object to the institutionalization of same-sex relationships as a matter of their national identity and defence of traditional values. Moreover, the recent tendency in the region is to limit the concept of family to heterosexual relations based on marriage and to exclude the protection of same-sex partnerships. The chapter examines the four jurisdictions of Croatia, Hungary, Slovenia, and Poland in order to demonstrate that the role of courts in the recognition of same-sex couples is contingent on the constitutional limitations and strategic litigation that provides opportunities to challenge the existing status quo.
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Notes
- 1.
This chapter covers broadly all post-communist countries in Central and Eastern Europe and focuses on four jurisdictions—Croatia, Hungary, Poland and Slovenia—in which the international and national courts played a crucial role in the legal recognition of rights of same-sex couples.
- 2.
While religion and church attendance seem to be a determining factor in defining societal attitudes towards homosexuality in almost all countries, this correlation is not equal for all religions and all countries.
- 3.
Uitz (2012), p. 236.
- 4.
- 5.
In comparison to anti-Gypsism and anti-Semitism, the anti-gay attitude often prohibits promotion of immorality (known as ‘no promo homo’).
- 6.
Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia, J., dissenting).
- 7.
Art. 24(2) of Constitution (adopted on 9th April 2008).
- 8.
Art. 18(2) of the Constitution (adopted on 28th November 1998).
- 9.
Art. 4 of the Constitution (adopted on 1st December 1995).
- 10.
Art. 14 of the Constitution (adopted on 22nd December 1990).
- 11.
Art. 3 of the Charter of Fundamental Rights and Basic Freedoms (adopted on 16th December 1992).
- 12.
Art. 12 of the Constitution (adopted by referendum on 28th June 1992).
- 13.
Art. XV(2) of the Constitution (adopted on 25th April 2011).
- 14.
Art. 91 of the Constitution (adopted on 15th February 1922).
- 15.
Art. 32(2) of the Constitution (adopted on 2nd April 1997).
- 16.
Art. 17(2) of the Constitution (adopted on 19th October 2007).
- 17.
Art. 16(2) of the Constitution (adopted on 21st November 1991).
- 18.
Art. 19 of the Constitution (ratified on 12th December 1993).
- 19.
Art. 12(2) of the Constitution (ratified on 1st September 1992).
- 20.
Art. 14 of the Constitution (adopted on 23rd December 1991).
- 21.
Art. 24 of the Constitution (adopted on 28th June 1996).
- 22.
The Hungarian Constitutional Court considered sexual orientation as a prohibited ground in a number of decisions: e.g., see 20/1999, AB decision, 25th June 1999.
- 23.
Art. 6(2) of the Constitution (adopted on 12th July 1991).
- 24.
Art. 29 of the Constitution (adopted by referendum on 25th October 1992).
- 25.
Art. 9 of the Constitution (adopted on 17th November 1991).
- 26.
Art. 16(2) of the Constitution (adopted on 29th July 1994).
- 27.
Art. 21 of the Constitution (adopted by referendum on 28th/29th October 2006).
- 28.
Art. L(1) of the Hungarian Constitution.
- 29.
Art. 71 of the Montenegrin Constitution.
- 30.
Art. 110 of the Latvian Constitution as amended on 15th December 2005.
- 31.
Art. 18 of the Polish Constitution.
- 32.
Art. 62(2) of the Serbian Constitution.
- 33.
Art. 51 of the Ukrainian Constitution.
- 34.
Art. 46 (1) of the Bulgarian Constitution.
- 35.
Art. 48(2) of the Moldovan Constitution.
- 36.
Art. 53(1) of the Albanian Constitution.
- 37.
OJ 2010 C 83, p. 389.
- 38.
Judgement of the Constitutional Tribunal of Poland, K 18/04, 11th May 2005.
- 39.
Notably, both Art. 9 CFR and Art. 12 ECHR guarantee the right to marry in accordance with the national laws governing the exercise of this right.
- 40.
Art. 18 of the Polish Constitution is not only an expression of constitutional axiology, but also has a normative character. It contains a positive obligation of the public authorities to deny the protected status of a marriage to any de facto same-sex and opposite-sex partnerships. Garlicki (2003), pp. 2–3.
- 41.
See Sect. 9.5.1.
- 42.
Judgment of the Constitutional Court of Lithuania, No. 28/2008, 28th September 2011.
- 43.
Ibidem, para. 15.1.
- 44.
Jegelevicius (2001).
- 45.
Art. 110 of the Latvian Constitution was revised in 2006 and reads as follows: “The State shall protect and support marriage – a union between a man and a woman, the family, the rights of parents and rights of the child.”
- 46.
Human Rights Watch (2013).
- 47.
Schalk and Kopf v. Austria, n. 30141/04, judgment of 24th June 2010, para. 101; see the chapter by Pustorino, in this volume.
- 48.
H. v. Finland, n. 37359/09, judgment of 13th November 2012.
- 49.
Gas and Dubois v. France, n. 25951/07, judgment of 12th March 2012; X and others v. Austria, n. 19010/07, judgment of 19th February 2013.
- 50.
Irina Fet and Irina Shipitko v. Russia (concerning the refusal of the city civil registration office to register a marriage concluded between two Russian citizens of same sex in Canada), filed in January 2011.
- 51.
Ibidem, note 46, para. 94. See also Hodson (2011).
- 52.
LGBT Rights thus form an integral part of both the Copenhagen political criteria for accession and the EU legal framework on combatting discrimination. They are closely monitored by the EU commission, which reports annually on the progress made by enlargement countries with regard to the situation of the LGBT community (see EU Observer 2012).
- 53.
Schimmelfennig and Sedelmeier (2005), p. 20.
- 54.
ILGA Europe (2013a).
- 55.
FRA Study on Homophobia (2010), p. 19.
- 56.
Asociaţia ACCEPT v. Consiliul Naţional pentru Combaterea Discriminării, C-81/12, judgment of 25th April 2013 nyr (concerning anti-gay comments by Gigi Becali, the main shareholder of the Romanian football team, FC Steaua). On 5th October 2012 also the Supreme Court of Croatia ruled the former president of the Croatian Football Association, Vlatko Marković, to publicly apologize for his discriminatory anti-gay comments.
- 57.
Council Directive 2000/78/EC of 27th November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16; on this and the other EU measures further cited in this essay see the chapter by Orzan, and the one by Rijpma and Koffeman, in this volume.
- 58.
FRA Study on Homophobia (2010), p. 27.
- 59.
Council Directive 2003/86/EC of 22nd September 2003 on the right to family reunification [Art. 4(3)], OJ 2003 L 251, p. 12, and Directive 2004/38/EC of the European Parliament and the Council of 29th April 2004 concerning the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Art. 2), OJ 2004 L 158, p. 77.
- 60.
- 61.
Protocol No. 30 on the application of the Charter to Poland and to the United Kingdom, OJ 2007 C 83, p. 313.
- 62.
Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom and Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union, OJ 2009 C 306, p. 249.
- 63.
N.B v. Secretary of State for the Home Department and M. E. and others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-411/10 and C-493/10, judgment of 21st December 2011 [2012] ECR I-8, para. 119.
- 64.
Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, C-267/06, judgment of 1st April 2008 [2008] ECR I-1757.
- 65.
Gay Law Net 2013.
- 66.
The scope of the rights granted to registered partners is not affected by the new Civil Code, which is supposed to take effect in 2014.
- 67.
Honuskova and Sturma (2008), p. 31.
- 68.
The authors are not aware of national case-law with regard to the same-sex couples. It is also not mentioned in any of the FRA studies on homophobia or annual reports.
- 69.
According to the 2012 annual CVVM poll on gay rights, 75 % support registered partnerships, 51 %—same-sex marriage, and 37 %—adoption of children. CVVM opinion poll (2012).
- 70.
Aloni (2010), p. 143.
- 71.
According to ‘the theory of small change’ or ‘incrementalism,’ any legal changes concerning homosexuality take three steps—the repeal of sodomy, the adoption of anti-discrimination laws, and finally the legalization of same-sex unions or marriages.
- 72.
Aloni (2010), p. 109.
- 73.
Waaldijk (2001), p. 437.
- 74.
Bączkowski and Others v. Poland, n. 1543/06, judgment of 3rd May 2007. The Court held that the ban on gay pride was contrary to freedom of assembly and association (Article 11), right to an effective remedy (Article 13), and prohibition of discrimination (Article 14) in conjunction to Article 11. In the Court’s view the decision of national authorities was motivated by the belief that a gay person has the right to assembly as a citizen, but not only as a gay person (para 27). Moreover, the national law did not guarantee effective remedies against the denial of authorization, which would enable the final resolution of the dispute by an administrative court before the date of a planned event.
- 75.
Alekseyev v. Russia, n. 4916/07, 25924/08 and 14599/09, judgment of 21st October 2010.
- 76.
Genderdoc-M v. Moldova, n. 9106/06, judgment of 12th June 2012.
- 77.
Zhdanov and Rainbow House v. Russia, n. 12200/08, pending.
- 78.
ILGA Europe (2011).
- 79.
European Parliament Resolution on homophobia in Europe of 26th April 2007, OJ 2008 C 74 E, p. 776; European Parliament Resolution on the increase in racist and homophobic violence in Europe of 15th June 2006, OJ 2006 C 300 E, p. 491; European Parliament Resolution on homophobia in Europe of 18th January 2006, OJ 2006 C 287 E, p. 179.
- 80.
Recommendation CM/Rec(2010)5 of the Committee of Ministers to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity, 31st March 2010; Recommendation 1915(2010) of the Parliamentary Assembly on discrimination on the basis of sexual orientation or gender identity, 29th April 2010.
- 81.
European Parliament Resolution of 24th May 2012 on the fight against homophobia in Europe [No. 2012/2657(RSP)], http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2012-0222&language=EN.
- 82.
The State Duma adopted so-called gay propaganda law on 11th June 2013. It made it illegal for any organisation or individual to publish an article, hold an event, and publicly discuss LGBT issues in the entire country.
- 83.
In Lithuania Petras Gražulis, a member of the governing coalition, attempted even to introduce the prohibition of ‘homosexual propaganda’ in the constitution via a national referendum. ILGA Europe (2013b).
- 84.
- 85.
Since 1996 Croatia is a member of the Council of Europe.
- 86.
Huseby (2009), p. 111.
- 87.
Commission Staff Working Document: Comprehensive Monitoring Report on Croatia, accompanying the document Communication from the Commission to the European Parliament and the Council: Comprehensive Monitoring Report on Croatia’s State of preparedness for EU membership, COM(2012)601 final, 10 October 2010, pp. 7 and 37.
- 88.
United States Department of State, Croatia, Country Reports on Human Rights Practices for 2011.
- 89.
Immigration and Refugee Board of Canada, Croatia 2012.
- 90.
Gender Equality Act (Official Gazette, 82/08), Act on Amendments to Criminal Code (Official Gazette 111/03), Act on Amendments to Labour Act (Official Gazette 114/03), Scientific Work and Higher Education Act (Official Gazette 123/03), Schoolbook Standards (Official Gazette 63/03) and Media Act (Official Gazette 59/04).
- 91.
Official Gazette 116/03.
- 92.
Official Gazette 85/08.
- 93.
Juras (2010), p. 21.
- 94.
Gay Law Net 2013.
- 95.
For example family benefits are granted to spouses and common-law partners under the Protection of Patients Act (Official Gazette 169/04) and Public Servants Act (Official Gazette 92/05).
- 96.
Medical Insurance Act (Official Gazette 94/01), Labour Act (Official Gazette 149/09), Pension Insurance Act (Official Gazette 102/98).
- 97.
Official Gazette 48/03.
- 98.
Juras (2010), p. 22. Notably, the Gender Equality Act is an organic act, and the Ombudswoman for Gender Equality is authorised to evaluate harmonisation of the regulations with the mentioned Act and to warn and give recommendations.
- 99.
According to the Family Law, a child can be adopted by married spouses jointly, by one spouse if the other is the parent of a child or adoptive parent of a child, by one spouse if the other gives consent to adoption, and by a single person if it is of a special benefit to a child.
- 100.
Juras (2010), pp. 16–20.
- 101.
Immigration and Refugee Board of Canada (2012).
- 102.
Ibidem.
- 103.
Juras (2010), p. 19 (referring to the case of Neven Rauk, 2009-XXIX KO-421/09. “In this case, after a criminal complaint had been filed by the associations, a proper investigation was carried out, and the perpetrators were found and convicted. However, it must be emphasized that this case is an exception resulting from the fact that it was covered very widely in the media and a case in which the associations were involved through the offering of legal help and the Ombudswoman for Gender Equality also publicly reacted”).
- 104.
2006 Annual Report on Status of Human Rights of Sexual and Gender Minorities, Kontra.
- 105.
Official Gazette 116/03.
- 106.
U-X-1457/2007, OG 43/07, 18th April 2007.
- 107.
In January 2011 Zagreb County Court gave a precedential ruling on hate crime against homosexuals. Verdict reached in country’s first gay hate crime case, Croatian Times, 27th January 2011.
- 108.
In October 2012, the Supreme Court found Vlatko Marković, former president of the football federation, guilty of discrimination for stating that “fortunately football is only played by healthy people. As long as I am president, I won’t permit any gay footballer.” He had to publish both his apology and the court’s ruling in a local newspaper. The ruling overturns the decision of the District Court in Zagreb, which dismissed the lawsuit against Marković filed by the Centre for LGBT Equality and the Centre for Peace Studies as unfounded. Similar lawsuits are pending in other cases.
- 109.
Interights v. Croatia, n. 45/2007, decision of 30th March 2009 of the European Committee of Social Rights. The Committee found violations of Article 11 (2) of the European Social Charter (right to protection of health) with regard to the lack of a comprehensive educational curriculum of sexual education and non-discrimination clause with regard to the discriminatory statements contained in educational material used in the ordinary curriculum.
- 110.
Before the EU accession in 2003 Hungary introduced laws banning discrimination on the basis of sexual orientation and sexual identity.
- 111.
Judgment of the Constitutional Court of Hungary, 14/1995, AB hat, 13th March 1995 (concerning Art. 685/A. of the Act No. 4 of 1959 on the Civil Code). It was an established approach of the Constitutional Court to read the constitutional protection of human dignity jointly with the equal protection of laws, which requires that all people are treated as subjects with equal dignity. See Uitz (2012), p. 247.
- 112.
Gay Law Net 2013.
- 113.
Judgment of the Constitutional Court of Hungary, 154/2008, AB hat, 17th December 2008.
- 114.
Körtvélyesi and Pap (2012), p. 215.
- 115.
Uitz (2012), pp. 250–251.
- 116.
Although the 2009 second-parent adoption is excluded, a gay person can theoretically adopt a child as a single applicant while two unrelated applicants cannot adopt the same child.
- 117.
Still, the same-sex partners can change their names under ordinary rules for change of names.
- 118.
Judgment of the Constitutional Court of Hungary, 32/2010, AB hat, 25th March 2010.
- 119.
Special EU Barometer 2009.
- 120.
In 2000, the Constitutional Court recognized that the Constitutional ban on discrimination based on “other status” covers sexual orientation.
- 121.
Venice Commission, Opinion of the New Constitution of Hungary, 17th–18th June 2011, CDL-AD(2011)016, para. 18, available at: http://www.venice.coe.int/docs/2011/CDL-AD(2011)016-E.pdf.
- 122.
The Venice Commission expressed its concerns that including family legislation within the list of policy areas requiring a qualified majority is a crucial aspect of democracy. It stressed that “a too wide use of cardinal laws is problematic with regard to both the Constitution and ordinary laws. (…) Functionality of a democratic system is rooted in its permanent ability to enact change”. Ibidem, para. 24.
- 123.
Art. 7 of the Act on the protection of families states that “(1) Family is the relationship between natural persons in an economic and emotional community that is based on a marriage between a woman and a man, or lineal descent, or family-based guardianship. (2) Lineal descent is established by way of filiation or adoption.”
- 124.
Halmai and Scheppele (2012), p. 21.
- 125.
Judgment of the Constitutional Court of Hungary, 17th December 2012.
- 126.
Constitutional Court of Hungary (2012).
- 127.
Abtan (2013).
- 128.
Only 57.8 % declared their belonging to the Roman Catholic Church in the 2002 census.
- 129.
Employment Relationships Act 42/02 and 103/07 as amended, 3rd May 2002.
- 130.
Implementation of the Principle of Equal Treatment Act 93/07, 27th September 2007.
- 131.
In addition to the Ombudsman, there is the Government Council for the Implementation of the Principle of Equal Treatment and the Advocate of the Principle of Equal Treatment.
- 132.
Registration of Same-Sex Partnership Act 65/06, 8th July 2005.
- 133.
Mavcic and Avbelj (2008), pp. 24–25.
- 134.
Decision No. U-I-425/06-10, 2nd July 2009.
- 135.
Art. 22 of the Act provides that: “(1) In case of death of a partner the surviving partner has the right to inheritance on the share of common possessions under this act. (2) If the deceased has children, the possessions from the previous paragraph are inherited by the surviving partner and the children of the deceased by equal shares. (3) If the deceased does not have children, the surviving partner inherits the entire share of common possessions of the deceased. (4) Special possessions of the deceased are inherited in accordance with the general rules on inheritance. General rules on inheritance are also used in inheritance of the share of common possessions of the deceased if this act does not stipulate otherwise. (5) The material competency for the inheritance procedures lies within the county courts.”
- 136.
ERT Summary: Blazic and Kern v. Slovenia.
- 137.
U.S. Department of State, Slovenia, Country Reports on Human Rights Practices for 2011.
- 138.
Decision No. II Ips 462/2009-9, 28th January 2010.
- 139.
Śledzińska-Simon (2010), p. 5.
- 140.
The draft law by Maria Szyszkowska is available at: http://www.bezuprzedzen.org/prawo/art.php?art=140.
- 141.
Bodnar (2009b).
- 142.
Judgment of the Constitutional Court of Poland, K 21/05, 18th January 2008. English summary available at: http://www.trybunal.gov.pl/eng/summaries/documents/K_21_05_GB.pdf.
- 143.
Judgment of the Supreme Administrative Court, I OSK 329/06, 25th May 2006.
- 144.
Bączkowski and Others v. Poland, n. 1543/06, 3rd May 2007.
- 145.
In the case called ‘Nasza Sprawa’ (‘Our Cause’), four lesbians accused two members of the Law and Justice of defamation. The case ended with a settlement. On 11th September 2006, the accused politicians publicly apologized for their homophobic comments. See more at http://kobiety-kobietom.com/naszasprawa/art.php?art=3763.
- 146.
The proposal to introduce a ban on homosexual propaganda was made by the government coalition party—the League of Polish Families. It was never officially discussed in public even though the draft law had been submitted to the Parliament. See http://www.guardian.co.uk/world/2007/mar/20/schools.gayrights.
- 147.
The leader of the League of Polish Families, the Minister of National Education, Roman Giertych, dismissed the head of the National In-Service Teacher Training Centre (CODN) for publishing the official handbook of the Council of Europe “The Compass – Education on Human Rights”. In his opinion, the handbook included statements on homosexuality and same-sex marriages that are contrary to the Polish Constitution. On 30 May 2007, the District Court in Warsaw (VIII P 1028/06) held that the Minister of National Education discriminated against the head of CODN and awarded him a compensation for moral damages in the amount of over 16,000 PLN. It was the first judgment in Poland dealing with discrimination on the ground of private convictions.
- 148.
Czarnecki (2007).
- 149.
On the homophobic language in politics see Graff (2010).
- 150.
- 151.
This historical moment was highly commented by international media. See e.g. http://www.huffingtonpost.com/2011/11/08/anna-grodzkatransgender-w_n_1081636.html.
- 152.
- 153.
See the opinion of the Committee of the Legal Sciences of the Polish Academy of Sciences, available at http://www.knp.pan.pl/images/stories/KNP_PAN/Pismo_do_Prezesa_PAN_z_23_04_2012.pdf.
- 154.
Kozak v. Poland, n. 13102/02, judgment of 2nd March 2010.
- 155.
Karner v. Austria, n. 40016/98, judgment of 24th July 2003.
- 156.
Kozak v. Poland, para. 98.
- 157.
Judgment of the District Court for Warsaw Mokotów, no. I C 1447/10, 13th October 2011.
- 158.
Judgment of the Supreme Court, No. III CZP 65/12, 28th November 2012.
- 159.
On the situation of homosexual persons in the criminal law see Płatek (2009).
- 160.
Strus (2010), p. 39.
- 161.
Judgment of the Regional Administrative Court, No. III SA/Gd 229/08, 6th August 2008.
- 162.
- 163.
On Tomasz Szypuła case see Geitner (2012).
- 164.
Case of Dutch same-sex marriage seeking for their recognition as a marriage in Austria is currently pending before the Austrian Constitutional Court. It is litigated by the Rechtskommittee Lambda. More information available at http://www.rklambda.at/e/index.htm.
- 165.
Proposal for a Council Regulation on jurisdiction, applicable law, and the recognition and enforcement of decisions regarding the property consequences of registered partnerships of 16 March 2011, COM(2011) 127/2, available at http://ec.europa.eu/justice/policies/civil/docs/com_2011_127_en.pdf.
- 166.
The case is litigated within the Program Art. 32 of the Helsinki Foundation for Human Rights. More information: http://www.hfhr.org.pl/dyskryminacja/litygacja/dyskryminacja-ze-wzgledu-na-orientacje-seksualna/.
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The authors would like to thank Sabrina Rewald for her invaluable help in editing the final version of this chapter.
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Bodnar, A., Śledzińska-Simon, A. (2014). Between Recognition and Homophobia: Same-Sex Couples in Eastern Europe. In: Gallo, D., Paladini, L., Pustorino, P. (eds) Same-Sex Couples before National, Supranational and International Jurisdictions. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-35434-2_9
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