The European Court of Human Rights (ECHR), in a judgment in a case regarding Romania’s lack of regulation of same-sex civil partnerships, has found that the country is violating the right to family life and discriminating against homosexual couples. Critics, however, say that the ruling is a clearly undemocratic overreach.
According to the Court, the fact that the Romanian Civil Code “provides for only one form of family union” is a violation of Article 8 ECHR (the right to private and family life) and also Article 14 (discrimination on the grounds of sexual orientation).
Furthermore, the Court also ruled that neither the lack of public support for introducing same-sex partnerships among the general population, nor the legislative democratic process—by which the Romanian Parliament has consistently rejected such initiatives—could be used to justify the “applicants’ interest in having their respective relationships adequately reorganized and protected by law.”
But according to watchdogs and politicians, this ruling represents a serious institutional overreach from the Court, as the ECHR is not only trying to sway a sovereign country’s democratic decision-making but also sets a dangerous precedent for other countries in a similar situation.
The decision even raises concerns about the Court’s legitimacy, because it goes beyond the jurisdiction established by the relevant treaties, said Cristian Terheș, a Romanian MEP belonging to the European Conservative and Reformist (ECR) group, while talking to The European Conservative.
“The recognition of the right to marriage or liberal unions among same-sex couples is not explicitly nor implicitly guaranteed as a fundamental right protected by the Convention,” Terheș explained, adding that
By establishing new rights through its jurisprudence, the ECHR is imposing these rights on sovereign states, disregarding the will of the people. This trend of exceeding its jurisdiction, shared by other courts like the European Court of Justice (ECJ), represents a severe threat to democracy that needs to be addressed.
As implied by the MEP, the impact of this decision will likely go beyond the initial case with Romania, since by positioning itself as a law-making authority—in clear contradiction to democratic principles)—the ECHR has established a way to effectively pressure any Council of Europe (CoE) member state into passing similar legislation.
Currently, around one-third of CoE member states do not recognize same-sex civil unions, including six EU members (Latvia, Lithuania, Romania, Bulgaria, Slovakia, and Poland), who are expected to be the first to be targeted by similar rulings by the ECHR.
What makes Romania’s case even more complicated is the fact that the vast majority (98.4%) of the voters rejected the idea of same-sex partnerships in a referendum back in 2018, even if the turnout did not reach the required threshold to enshrine the prohibition of such unions within the country’s constitution.
Understandably, the Romanian Orthodox Church also took a firm stance against the ECHR ruling, saying that a civil partnership is merely the first step towards the eventual legalization of same-sex marriages. “The experience of states that have legalized same-sex marriage is telling,” the Church’s spokesman said on Tuesday, May 23rd.
Nonetheless, it is also important to note that the ECHR’s decision is not final, as Romania can now appeal to the Grand Chamber within the next three months. Doing so would be vital for all other CoE members without same-sex partnerships as well, because once the precedent is established, no country would have much chance of fighting the Court’s undemocratic overreach.