Amicus Brief Submitted in Relu-Adrian Coman and Others v. Romania

While Lithuania still remains among 6 European Union states that do not provide a gender-neutral Partnership alternative, National LGBTI Rights Organization LGL together with the international partners from the Czech Republic, Poland and Bulgaria continue to consolidate their efforts towards establishing a higher standard of protection within the regulation of the European Convention on Human Rights.

LGBT Youth Organisation “Deystvie”, Platforma pro rovnoprávnost, uznãni a diverzitu z.s. (PROUD), National LGBTI Rights Organization LGL, the Polish Society of Anti- Discrimination Law (PSAL) and the Love Does Not Exclude Association (LDNEA), represented by Dentons Europe – Zizzi-Caradja si Asociatii SPARL submitted written comments in Relu-Adrian Coman and Others v. Romania (Application no. 2663/21).

Document supplements the context of the case with legal and practical examples of how the the lack of legal recognition of same-sex couples’ marriages impedes the execution of free movement rights as well as the basic standard of public service for same-sex couples from state to state and negatively affects their everyday lives.

Relevant regulations and practices vary significantly among Central and Eastern European Member. For example, although Czech Republic allows same-sex couples to enter into registered partnerships, it does not explicitly respect same-sex couples’ marriages entered into under foreign law and the Supreme Administrative Court ruled that the marriages entered into by same-sex couples under foreign law may only be recognized as registered partnerships in the Czech Republic.

This in a way illustrates the inadequacy of the existing Partnership regulation in Czech Republic and creates legal obstacles for same-sex married couples as the status of property in the context of Partnership differs from the one established though marriage. Practical evidence suggests that providing same-sex couples with the option to enter into registered partnerships would not be a complete solution as it still effectively subjects same-sex couples to the differential treatment. For example same sex couples are not entitled for even a single day leave in the event of Partnership registration, however opposite-sex couples are entitled to two days leave in case of wedding.

Lithuania, however, currently does not provide any option to register and thus legally recognize same-sex marriage or partnership concluded abroad.

Document agues that state failure to recognize the relationship of two persons of the same sex in the form of marriage “exacerbates social and private prejudice with the imprimatur and discriminatory actions of the state“.

Subject matter of the Relu-Adrian Coman and Others v. Romania

Adrian Coman and his spuose Clai Hamilton  initiated proceedings before the domestic courts seeking an acknowledgment of discrimination on the ground of sexual orientation, as regards the exercise of the right of freedom of movement in the European Union. District Court referred the case to the Constitutional Court, for a review of the constitutionality of the relevant provisions. The Constitutional Court decided to send a preliminary question to the Court of Justice of the European Union (CJEU).

Following the judgment adopted by the CJEU on 5 June 2018, the Constitutional Court ruled that the relevant provisions of the Civil Code are constitutional only if interpreted in the sense that they allow the granting of the right to reside, in accordance with the European Union law, to spouses of Romanian citizens from same-sex marriages concluded in a Member State of the European Union.

 This CJEU ruling also reflected in the decision pronounced by the Constitutional Court of the Lithuanian Republic on the January  11, 2019, where it was concluded that a same-sex spouse is entitled to a residency permit on the grounds of family reunification.

Subsequently, the applicants requested the reopening of the main proceedings. By a decision of 16 September 2019, the Bucharest 5th District Court dismissed the action as time lapsed (‘perimată’), on the grounds that the applicants were at fault for not requesting the reopening of the proceedings within six months from the date of the Constitutional Court’s decision. By a final decision of the Bucharest County Court of 26 June 2020, the applicants’ appeal was rejected as unfounded with final effect.