Information Note on the Court’s case-law 193
February 2016
Pajić v. Croatia - 68453/13
Judgment 23.2.2016 [Section II]
Article 14
Discrimination
Discrimination between unmarried same-sex couples and unmarried different-sex couples in obtaining family reunification: violation
Facts – The applicant, a national of Bosnia and Herzegovina, had a stable same-sex relationship with a woman living in Croatia, Ms D.B. In 2011 the applicant lodged a request for a residence permit in that country on the grounds of family reunification with her partner. Her request was refused as the relevant domestic law excluded such a possibility for same-sex couples whereas it allowed it for unmarried different-sex couples. Her further appeals were unsuccessful.
Law – Article 14 in conjunction with Article 8
(a) Applicability – There was no doubt that the relationship of a same-sex couple like the applicants’ fell within the notion of “private life” under Article 8 of the Convention. As to whether it also fell within the scope of “family life”, it was undisputed that the applicant had maintained a stable relationship with her partner since 2009, travelling regularly to Croatia and sometimes spending three months living with her, which was the only possibility they had to stay together due to the relevant immigration restrictions. Moreover, the couple had expressed a serious intention of living together in the same household in Croatia and of starting a common business. In these circumstances, the fact of not cohabiting with D.B. because of the State’s impugned immigration policy did not deprive the applicant’s relationship of the stability required to bring her situation within the scope of family life. Therefore, the facts of the case fell within the notion of “private life” and “family life” within the meaning of Article 8, and Article 14 was thus applicable.
(b) Difference of treatment – The Croatian domestic law recognised both extramarital relationships of different-sex couples and same-sex couples and thus the possibility that both categories of couples were capable of forming stable committed relationships. Therefore, a partner in a same-sex relationship who applied for a residence permit for family reunification to pursue intended family life in Croatia was in a comparable situation to a partner in a different-sex extramarital relationship pursuing the same aim. However, the domestic law expressly reserved the possibility of applying for a residence permit for family reunification to different-sex couples, whether married or living in an extramarital relationship. Accordingly, by tacitly excluding same-sex couples from its scope, the legislation in question introduced a difference in treatment based on the sexual orientation of the persons concerned.
(c) Objective and reasonable justification – Immigration control measures, which may be found to be compatible with Article 8 § 2, could nevertheless amount to unjustified discrimination in breach of Article 14 read in conjunction with Article 8. In cases in which the margin of appreciation afforded to States was narrow, as where there was a difference in treatment based on sex or sexual orientation, the principle of proportionality did not merely require the measure chosen to be suitable in principle for the achievement of the aim pursued, the State also had to show that it was necessary, in order to achieve that aim, to exclude certain categories of people – in this instance persons in a same-sex relationship – from the scope of application of the relevant provisions of domestic law. This applied also to immigration cases. However, the domestic authorities had not advanced any justification or convincing and weighty reasons to justify the difference in treatment between same-sex and different-sex couples in obtaining family reunification. Indeed, a difference in treatment based solely or decisively on considerations regarding the applicant’s sexual orientation amounted to a distinction which was not acceptable under the Convention. The difference in treatment was thus incompatible with the provisions of Article 14 read in conjunction with Article 8.
Conclusion: violation (unanimously).
Article 41: EUR 10,000 in respect of non-pecuniary damage.
(See the Factsheet on Sexual orientation issues)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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