FOURTH SECTION
DECISION
Applications nos. 31176/13 and 31185/13
Manfred HÖRMANN and Felix Maximilian MOSER against Austria
and Walter DIETZ and Boontawee SUTTASOM against Austria
The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Committee composed of:
Vincent A. De Gaetano, President,
Egidijus Kūris,
Gabriele Kucsko-Stadlmayer, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above applications lodged on 14 May 2013,
Having regard to the information submitted by the respondent Government and the comments in reply submitted by the applicants,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicants in the first case, Mr Manfred Hörmann and Mr Felix Maximilian Moser, are Austrian nationals, who were born in 1969 and 1976 respectively and live in Stallhofen. The applicants in the second case, Mr Walter Dietz and Mr Boontawee Suttasom, are Austrian and Thai nationals, who were born in 1951 and 1975 respectively and live in Vienna. All applicants were represented before the Court by Mr H. Graupner, a lawyer practising in Vienna.
2. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs.
3. The applicants are two homosexual couples who complained, among other things, under Article 14 of the Convention read in conjunction with Article 8 that they were discriminated on grounds of their sexual orientation, because in accordance with section 47a of the Personal Status Act (Personenstandsgesetz) as in force at the relevant time, registered partnerships, which are open exclusively to same-sex couples, had to be concluded before and within the premises of the District Administrative Authority (Bezirksverwaltungsbehörde), whereas civil marriages, which are not open to homosexual couples, were concluded before the Office for Matters of Personal Status (Standesamt).
4. On 3 June 2015 the complaint under Article 14 of the Convention read in conjunction with Article 8 was communicated to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
5. On 4 October 2015 the applicants informed the Court that they had not yet concluded registered partnerships because of the discrimination against homosexual couples in respect of the place of conclusion of the registered partnerships.
THE LAW
6. Given the similarity of the present applications, the Court decides to order their joinder under Rule 42 § 1 of the Rules of Court.
7. On 19 June 2013 the Constitutional Court, in cases unrelated to the applicants, rescinded the phrase in the Personal Status Act according to which it was only possible to conclude a registered partnership within the premises of the District Administrative Authority. As a consequence, on 1 November 2013 the Personal Status Act was amended to stipulate that the conclusion of registered partnerships, just like marriages, could take place at any location which corresponded to the meaning of this legal institution. The District Administrative Authority remained to be the competent authority for registered partnerships.
8. On 10 January 2017 the Government informed the Court that with effect from 1 April 2017, there would be no difference anymore in the place of conclusion of registered partnerships and marriages. The Office for Matters of Personal Status would become the competent authority for both. The respective amendments of the Personal Status Act have been published on 30 December 2016 in the Federal Law Gazette (Bundesgesetzblatt) vol. I, no. 120/2016. The Government considered that it had eliminated the reason for the applicants’ complaints and requested that the cases be struck out of the list in accordance with Article 37 § 1 of the Convention.
9. On 1 February 2017 the applicants informed the Court that they still considered themselves to be victims of the alleged violation of their rights, as the Republic of Austria had not expressly acknowledged the alleged violations of the Convention and had not afforded any redress for the discrimination suffered.
10. The Court observes that the applicants’ complaints were based on section 47a of the Personal Status Act as in force at the time of the introduction of their applications before the Court. The Court notes that the applicants have not yet entered into a registered partnership because they considered that provision to be discriminatory (see paragraphs 3 and 5 above), even after the changes which had come into effect as a consequence of the Constitutional Court’s ruling of 19 June 2013 which had made it possible to conclude registered partnerships at the very same places where marriages are concluded (see paragraph 7 above), which had been one of the aims of their present application. However, as of 1 April 2017, the applicants will have the possibility to conclude a registered partnership before the Office for Matters of Personal Status, which was the last remaining aim of their application. In this context, the Court recalls its subsidiary role in supervising the implementation of the rights and freedoms protected by the Convention and its Protocols (compare F.G. v. Sweden [GC], no. 43611/11, § 117, ECHR 2016), and that it is primarily for the Member States to implement these and to organise and adapt their legal systems accordingly.
11. In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the applications under Article 37 § 1 in fine.
12. Accordingly, the applications should be struck out of the list.
13. The applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage. The applicants in the first case (Hörmann and Moser, no. 31176/13) claimed jointly EUR 13,874.65 for their legal representation in the domestic proceedings and EUR 11,161.92 for the proceedings before the Court. The applicants in the second case (Dietz and Suttasom, no. 31185/13) claimed jointly EUR 13,874.65 for their legal representation in the domestic proceedings and EUR 10,341.14 for the proceedings before the Court.
14. The Court notes that it is not empowered to award damages if a case is struck out of the list. However, in accordance with Rule 43 § 4 of the Rules of Court, the Court finds it suitable in the special circumstances of the present cases to make an award in respect of the costs of the Convention proceedings (see, among many other authorities, Asgari v. Austria (dec.), no. 62154/10, 29 January 2013, and Verlagsgruppe News v. Austria (No. 3) (dec.), no. 43521/06, 20 October 2009). Taking note of the costs genuinely and necessarily incurred in the proceedings before it, of its case-law on the matter (Yelverton Investments B.V. and others v. Latvia (dec.), no. 57566/12, § 47, 18 November 2014), and of the fact that the applicants in both cases were represented by the same legal counsel and produced submissions which were in large parts identical, the Court awards a reimbursement for costs and expenses in the amount of EUR 750 per applicant, plus any tax which may be chargeable to the applicants. Furthermore, the Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
For these reasons, the Court, unanimously,
Decides to join the applications;
Decides to strike the applications out of its list of cases;
Holds
a) that the respondent State is to pay each of the four applicants, within three months of the date of notification of this decision, EUR 750 (seven hundred and fifty euros), plus any tax which may be chargeable to the applicants, in respect of costs and expenses;
b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English and notified in writing on 30 March 2017.
Andrea TamiettiVincent A. De Gaetano
Deputy RegistrarPresident
Full & Egal Universal Law Academy