European Court of Human Rights

16 February 2010

FIRST SECTION

CASE OF SCHALK AND KOPF v. AUSTRIA

(Application no. 30141/04)

STATEMENT OF FACTS AND COMPLAINTS

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1962 and 1960, respectively. They are a same-sex couple living in Vienna.

On 10 September 2002 the applicants requested the Office for matters of personal status (Standesamt) to open proceedings since they wished to contract marriage.

By decision of 20 December 2002 the Vienna Municipal Office (Magistrat) refused the applicants' request. Referring to Article 44 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) it held that marriage could only be contracted between two persons of opposite sex. According to constant case-law, a marriage concluded by two persons of the same sex was null and void. Since the applicants were two men, they lacked the capacity for contracting marriage.

The applicants' appeal to the Vienna Regional Governor (Landeshauptmann) remained unsuccessful. In his decision of 11 April 2003 the latter confirmed the Municipal Office's legal view. In addition he referred to the Administrative Court's case-law according to which it constituted an impediment to marriage if the two persons concerned were of the same sex. Moreover, Article 12 of the European Convention for the Protection of Human Rights and Fundamental Freedoms reserved the right to contract marriage to persons of different sex.

In their constitutional complaint, the applicants alleged that the legal impossibility for them to get married constituted a violation of their right to respect for private and family life and of the principle of non-discrimination. They argued that the notion of marriage had evolved since the entry into force of the Civil Code in 1812. In particular, the procreation and education of children no longer formed an integral part of marriage. In present day perception, marriage was rather a permanent union encompassing all aspects of life. There was no objective justification for excluding same-sex couples from concluding marriage, all the more so since the European Court of Human Rights had acknowledged that differences based on sexual orientation required particularly weighty reasons. Other European countries either allowed homosexual marriages or had otherwise amended their legislation in order to give equal status to same-sex partnerships.

Finally, the applicants alleged a breach of their right to peaceful enjoyment of their possessions. They argued that in case one partner of a homosexual couple died, the other was discriminated against since he would be in a much less favourable position under tax law than the surviving partner of a married couple.

On 12 December 2003 the Constitutional Court (Verfassungsgerichtshof) dismissed the applicants' complaint. The relevant parts of it's judgment read as follows:

“The administrative proceedings that resulted in the impugned decision were exclusively concerned with the issue of the legitimacy of the marriage. Accordingly, the complainants' sole applicable grievance is that Article 44 of the Civil Code only recognises and provides for marriage between “persons of opposite sex”. The allegation of a breach of the right of property is simply a further means of seeking to show that this state of affairs is unjustified.

With regard to marriage, Article 12 of the ECHR, which ranks as constitutional law, provides:

'Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.'

Neither the principle of equality set forth in the Austrian Federal Constitution nor the European Convention on Human Rights (as evidenced by “men and women” in Article 12) require that the concept of marriage as being geared to the fundamental possibility of parenthood should be extended to relationships of a different kind. The essence of marriage is, moreover, not affected in any way by the fact that divorce (or separation) is possible and that it is a matter for the spouses whether in fact they are able or wish to have children. The European Court of Human Rights found in its Cossey judgment of 27. September 1990 (no. 10843/84, concerning the particular position of transsexual persons) that the restriction of marriage to this “traditional” concept was objectively justified, observing

'... that attachment to the traditional concept of marriage provides sufficient reason for the continued adoption of biological criteria for determining a person's sex for the purposes of marriage.'

[The subsequent change in the case-law concerning the particular issue of transsexuals (ECHR, Goodwin, no. 28957/95, 11 July 2002) does not permit the conclusion that there should be any change in the assessment of the general question at issue here.]

The fact that same-sex relationships fall within the concept of private life and as such enjoy the protection of Article 8 of the ECHR – which also prohibits discrimination on non-objective grounds (Article 14 of the ECHR) – does not give rise to an obligation to change the law of marriage.

It is unnecessary in the instant case to examine whether, and in which areas, the law unjustifiably discriminates against same-sex relationships by providing for special rules for married couples. Nor is it the task of this court to advise the legislature on constitutional issues or even matters of legal policy.

Instead, the complaint must be dismissed as ill-founded.”

The Constitutional Court's judgment was served on the applicants' counsel on 25 February 2004.

COMPLAINTS

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.

They also alleged that the authorities' refusal to allow them to contract marriage violated Article 12.

Lastly, they complained under Article 1 of Protocol No. 1 that, compared to married couples, they suffer disadvantages in their financial sphere and in particular under tax law.