Αρχική Ισότητα στον πολιτικό γάμο, τροποποίηση του Αστικού Κώδικα και άλλες διατάξειςΣΧΕΔΙΟ ΝΟΜΟΥ ΤΟΥ ΥΠΟΥΡΓΟΥ ΕΠΙΚΡΑΤΕΙΑΣ ΜΕ ΤΙΤΛΟ «Ισότητα στον πολιτικό γάμο, τροποποίηση του Αστικού Κώδικα και άλλες διατάξεις» ΚΕΦΑΛΑΙΟ Α’ ΣΚΟΠΟΣ – ΑΝΤΙΚΕΙΜΕΝΟ Άρθρο 1 ΣκοπόςΣχόλιο του χρήστη ADF International | 31 Ιανουαρίου 2024, 16:42
  • Σχόλιο του χρήστη 'ADF International' | 31 Ιανουαρίου 2024, 16:42

    (a) Introduction 1. ADF International is a faith-based legal advocacy organisation that protects fundamental freedoms and promotes the inherent dignity of all people. In addition to holding ECOSOC consultative status with the United Nations (registered as ‘Alliance Defending Freedom’), ADF International has accreditation with the European Commission and the European Parliament, the Organization of American States, and works with the Fundamental Rights Agency of the European Union and the Organization for Security and Co-operation in Europe. ADF International has argued, co-counseled and intervened in over 50 cases before the European Court of Human Rights. 2. This intervention will argue that Greece is not obliged, under European and international law, to introduce same-sex marriage. To do so, it will review how marriage and family are regulated and understood by European and international human rights law: Article 12 of the European Convention on Human Rights, Article 16 of the Universal Declaration of Human Rights, Article 23 of the International Covenant on Civil and Political Rights, Article 23 of the International Covenant on Economic, Social and Cultural Rights, and Article 9 of the Charter of Fundamental Rights of the European Union (EU Charter). 3. Further, it will show that the regulation of marriage falls within the competence of the Member States, according to the jurisprudence of the Court of Justice of the EU (CJEU) and the European Court of Human Rights (ECtHR), and that there is no international or European right to same-sex marriage. (b) Marriage and Family in European and International Jurisprudence 4. Explicit protections for marriage and family are contained in international and European human rights conventions, such as Article 12 of the European Convention on Human Rights (ECHR), Article 16 of the Universal Declaration of Human Rights (UDHR), Article 23 of the International Covenant on Civil and Political Rights (ICCPR), Article 23 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Article 9 of EU Charter. 5. These international instruments outline that ‘men and women of marriageable age have the right to marry and to found a family’ (Article 12 ECHR; see also Article 23 (2) ICESCR and Article 16 (1)) and that ‘the family is the natural and fundamental group unit of society and is entitled to protection by society and the State’ (Article 16 (3) UDHR, Article 23 ICCPR ). 6. According to the established case-law of the ECtHR, Article 12 [the right to marry] ‘enshrines the traditional concept of marriage as being between one man and one woman’ (Hämäläinen v. Finland, no. 37359/09 (16 July 2014), paras 71 and 96, referred to also in Chapin and Charpentier v. France, no. 40183/07 (9 June 2016), para 37). 7. Furthermore, States ‘enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition’ of same-sex relationships, and its differences concerning the rights and obligations conferred by marriage (Chapin and Charpentier v. France, no. 40183/07 (9 June 2016), para 48). 8. The ECtHR found that: ‘Although the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage…[T]he reference to domestic law reflects the diversity of national regulations, which range from allowing same-sex marriage to explicitly forbidding it. By referring to national law, Article 9 of the Charter leaves the decision whether or not to allow same-sex marriages to the States…[T]he attachment to the traditional concept of marriage which underpins Article 12 provided sufficient reason for the continued adoption by Convention States of biological criteria for determining a person’s sex for the purpose of marriage….In that connection, the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court re-iterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (Schalk and Kopf v. Austria, no. 30141/04 (2010), paras 58, 60, 51 and 62). 9. The ECtHR has repeatedly and explicitly ruled out any other possible interpretation of Article 12, based on the plain reading of the Convention and the context in which it was originally drafted. 10. This view was upheld by the European Commission for Democracy through Law (the Venice Commission, Committee of Ministers, Reply to Written Question No 647 (Doc. 13369), Prohibition of same-sex Marriage in Croatia (24 March 2014), , European Commission for Democracy Through Law (Venice Commission), Opinion No 621/2011 (2 August 2011) on the New Constitution of Hungary and Opinion No 779/2014 (13 October 2014), Opinion on the Seven Amendments to the Constitution of Former Yugoslav Republic of Macedonia (13 October 2014). 11. The same understanding is reflected by the United Nations Human Rights Committee, which, in interpreting the phrase ‘men and women of marriageable age,’ clearly stated that: ‘Article 23, paragraph 2, of the Covenant, is the only substantive provision in the Covenant which defines a right by using the term "men and women", rather than "every human being", "everyone" and "all persons". Use of the term "men and women", rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other. In light of the scope of the right to marry under article 23, paragraph 2, of the Covenant, the Committee cannot find that by mere refusal to provide for marriage between homosexual couples, the State party has violated the rights of the authors under articles 16, 17, 23, paragraphs 1 and 2, or 26 of the Covenant’ (Juliet Joslin et al. v. New Zealand, Communication No. 902/1999, UN Doc A/57/40 at 214 (2002) paras 8.2 and 8.3.). 12. Additionally, the ECtHR has consistently held that the ECHR does not guarantee a right to, and a corresponding obligation on, Member States to introduce same-sex civil partnerships or same-sex marriage. In Hämäläinen v. Finland (Hämäläinen v. Finland, no. 37359/09 (16 July 2014).) the Grand Chamber of the ECtHR ruled that neither Article 8 protecting private and family life, nor Article 12 guaranteeing the right to marry, can be understood ‘as imposing an obligation on Contracting States to grant same-sex couples access to marriage.’ This interpretation was consolidated by the recent judgment in Chapin and Charpentier v. France (Chapin and Charpentier v. France, no. 40183/07 (9 June 2016)). Therein, recalling Hämäläinen v. Finland and Oliari and Others v. Italy, the ECtHR unanimously confirmed the non-existence of a right to same-sex marriage (Chapin and Charpentier v. France, para 39). 13. In two judgments, Oliari v. Italy and Vallianatos v. Greece, the ECtHR found Italy and Greece to have discriminated against same-sex couples for reasons that are not applicable to the subject of this public consultation. Very importantly, both cases referred to civil partnerships and not to the regulation of marriage. Additionally, in Vallianatos v. Greece, the domestic legal system already had civil partnerships in place, which were limited only to heterosexual couples. Only this limitation was considered discriminatory by the ECtHR, and, as a result, Greece introduced civil unions between people of the same sex (Vallianatos and others v. Greece, nos. 29381/09 and 32684/09 (7 November 2013), para 92.). Therefore, this judgment cannot be applied mutatis mutandis to marriage, as is made clear in the case-law of the ECtHR. 14. In sum, the ECtHR and other international bodies have been unwavering on the marriage question, upholding Member States’ competence to protect and strengthen marriage as the union of one man and one woman. (c) Marriage and Family in EU law 15. Under EU law, the area of marriage and the family is clearly reserved to national competence and the definitions in each Member State’s domestic legal order. 16. Foundational EU Treaties are, quite deliberately, almost silent on the topics of marriage and family. Article 9 of the EU Charter provides that ‘the right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.’ 17. Furthermore, according to Article 6 (1) of the Treaty on European Union (TEU), the EU Charter shall be interpreted ‘with due regard’ to the Explanations related to the Charter. It is important to note that these highlight, in relation to Article 9 (the right to marry and to found a family) that ‘this Article neither prohibits nor imposes the granting of the status of marriage to unions between people of the same sex.’ (Fundamental Rights Agency (FRA) ). 18. The Commentaries of the Charter of Fundamental Rights of the EU also make it clear that: ‘It may be argued that there is no obstacle to recognise same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages.’ (EU Network of Independent Experts on Fundamental Rights, Commentary of the Charter of Fundamental Rights of the European Union (June 2006)). 19. This has also been confirmed by the jurisprudence of the CJEU. In Römer, the CJEU was asked to rule upon the difference in the calculation of the supplementary retirement pension between a person who had entered into life partnership with another person of the same sex, on the one hand, and married persons, on the other. Considering the marital and civil situation at hand, the CJEU outlined that ‘legislation on the marital status of persons falls within the competence of Member States’ (Jürgen Römer v. Freie und Hansestadt Hamburg, C-147/08 (10 May 2011), para 38). 20. In a similar case concerning the non-recognition of the pension claim of the survivor of a same-sex couple, the CJEU ruled that ‘civil status and the benefits flowing therefrom are matters which fall within the competence of the Member States and Community law does not detract from that competence’ (Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen, C 267/06 (1 April 2008), para 59). 21. Additionally, in David L. Parris the CJEU was called upon to decide on the provision of same-sex partners’ benefits on death. On this occasion, the Luxembourg Court restated that ‘Member States…are free to provide or not provide for marriage for persons of the same sex, or an alternative form of recognition of their relationship’ (David L. Parris v. Trinity College Dublin, C-443/15 (24 November 2016), para 59). (d) Marriage and family in other EU Member States 22. To date, twelve out of twenty-seven EU Member States recognize only the union of a man and a woman as marriage, and of these, seven (Bulgaria, Croatia, Hungary, Latvia, Lithuania, Poland and Slovakia) have constitutionally enshrined this definition (Constitution of the Republic of Bulgaria, Article 46(1); Constitution of Hungary, Article M(1); Constitution of the Republic of Latvia, Article 110; Constitution of the Republic of Lithuania, Article 38; Constitution of the Republic of Poland, Article 18; Constitution of the Slovak Republic, Article 43). Since 2024, fifteen Member States recognize same-sex marriage (Austria, Belgium, Denmark, Estonia, Finland, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Portugal, Spain, Slovenia, Sweden). Twenty CoE countries out of 46 have same-sex marriage, since January 2024. 23. The Union therefore remains divided on the issue of marriage. Predominantly Western States have taken it upon themselves to redefine marriage, but there is also a visible trend in the Eastern Europe countries seeking to constitutionally secure a definition of marriage as the union of one man and one woman, which is consistent with international law and jurisprudence (Constitution of the Republic of Bulgaria, Article 46(1); Constitution of Hungary, Article M(1); Constitution of the Republic of Latvia, Article 110; Constitution of the Republic of Lithuania, Article 38; Constitution of the Republic of Poland, Article 18; Constitution of the Slovak Republic, Article 43). The Croatian, Slovak (7 February 2015), Slovenian (20 December 2015), and Romanian (6-7 October 2018) referenda on marriage have shown popular support on this matter. (e) Concluding Remarks 24. While explicit protections for marriage and family are contained in international and European human rights conventions, there is no right to same-sex marriage flowing from either European or international law. On the contrary: international law sources as well as court decisions are clear that States are under no obligation to introduce such a concept. This argument is even more stringent in view of the fact that Greece already has same-sex unions enshrined in the law. 25. Given the important implications to its social and legal fabric, Greece should engage in a deep and multifaceted public debate on marriage, instead of rushing into fundamentally changing its millennia-old definition. Six working days of public consultation is hardly a representative and in-depth inquiry into the matter. Rather, in line with its commitment to civic representation, Greece should extend the timeline for public consultation, and consider a democratic say of its citizens on the matter, by way of a referendum.