Published on 8 November 2021
FOURTH SECTION
Application no. 17816/21
A.B. and K.V.
against Romania
lodged on 6 April 2021
communicated on 19 October 2021
SUBJECT MATTER OF THE CASE
The case concerns the alleged discrimination of the applicants, a same‑sex couple lawfully married in a Member State of the European Union, due to the impossibility for the second applicant, a third‑country national, to obtain a right of residence on the territory of Romania in his capacity of spouse of a Romanian citizen. This impossibility arises from the provisions of Article 277 of the Civil Code, which does not recognize marriage between people of the same-sex.
The applicants’ request for a residence permit for the second applicant had been rejected by the authorities. Their subsequent complaint before the courts had also been rejected, for procedural reasons, by the judgment of 16 February 2021 of the Timișoara Court of Appeal.
Relying on Article 6 § 1 of the Convention, the applicants complain of a breach of their right of access to court and to a fair trial due to the dismissal of their court action on procedural grounds without a decision on the merits.
Under Article 8 of the Convention, the applicants complain of a breach of their right to private and family life due to the impossibility for the second applicant to obtain a right of residence on the territory of Romania in his capacity of spouse of a Romanian citizen.
The applicants also complain that the domestic legal provisions prohibiting them to be recognized as spouses, prerequisite for obtaining the right to reside in Romania for the second applicant, amount to a breach of Article 12 of the Convention.
Relying on Article 14 taken in conjunction with Articles 6 § 1, 8, 12 and 13 of the Convention, the applicants allege that the above breaches of their rights constitute discrimination against them on account of their sexual orientation.
Relying on Article 13 taken in conjunction with Articles 8, 12 and 14 of the Convention, the applicants complain that they have been deprived of an effective remedy for their complaints.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicants’ right of access to court and to a fair hearing, contrary to Article 6 § 1 of the Convention, due to the decision of the Timișoara Court of Appeal of 16 February 2021 rejecting with final effect their action on procedural grounds?
2. Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention, due to the inability for the second applicant to obtain the right of residence in Romania in his capacity of spouse of a Romanian citizen (see, mutatis mutandis, Taddeucci and McCall v. Italy, no. 51362/09, 30 June 2016)?
3. Does the applicants’ impossibility to obtain recognition of the status of spouses, prerequisite for obtaining the right to reside in Romania for the second applicant, amount to a breach of Article 12 of the Convention?
4. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Articles 6 § 1, 8, 12 and 13 of the Convention (see Pajić v. Croatia, no. 68453/13, 23 February 2016)?
5. Did the applicants have at their disposal an effective domestic remedy in respect of their Convention complaints, as required by Article 13 of the Convention?
Appendix
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
A.B.
1990
Romanian
Romania
2.
V.K.
1982
Serbian
Serbia