ECtHR - Pajić v Croatia, Application no. 68453/13, 23 February 2016

Facts:

The case relates to a national of Bosnia and Herzegovina who sought a residence permit in Croatia for the purposes of family reunification with her same-sex partner. They had been in a relationship for two years and planned to live together and start a business. Her application was refused as it did not meet the requirements of the Aliens Act. She challenged this arguing that this was implicitly on the basis that there was no provision for family reunification for same-sex couples, but that the law should be construed in a way to ensure there was no difference in treatment based on sexual orientation, in view of the domestic anti-discrimination legislation, the Constitution, and Convention and ECtHR case-law. She relied on Article 14 ECHR in conjunction with Article 8.

Decision & reasoning:

Before considering the applicant’s allegation of an Article 14 violation in conjunction with Article 8, the court considers whether domestic remedies had been exhausted. The Court notes that under the Prevention of Discrimination Act the applicant was presented with two possible avenues for a remedy and as a means of seeking protection from discrimination. Firstly through administrative proceedings or secondly through separate civil proceedings. The Court declares that the applicant sufficiently exhausted the first remedy available to her by explicitly relying on the anti-discrimination legislation and the Constitutional case-law relating to sexual orientation. Thus she did not need to pursue the second remedy and the court declared there was sufficient exhaustion of domestic remedies rendering her allegation of Articles 14 and 8 as admissible.

When determining whether the applicant’s situation falls within the definition of family life under Article 8 of the Convention, the Court declares that the margin of appreciation given to the Government when construing the concepts of family and private life, is extremely narrow in this instance. This is due to the fact that the difference of treatment the applicant is subjected to, is based on her sexual-orientation. Thus the Court declares that once this difference of treatment has been established by the applicant, the government must prove that it is justified.

In defining the  ‘private life’ of the applicant, the Court declares undoubtedly that the circumstances of the case can be encompassed under this bracket. Regarding family life, through discussion of case-law such as P.B and J.S and Vallianatos, the Court decides that a cohabiting same-sex couple, such as the applicant and her partner can fall within the definition of family life and there can be no basis of distinguishing between a same-sex couple and a heterosexual couple who cohabitate and are in a stable, long-term relationship. The situation of the applicant, not living with her partner due to immigration restrictions and travel, does not therefore diminish the stability and worthiness of the relationship, falling under ‘family life’.

Thus on concluding that the applicant’s claim falls within the definition of private and family life in Article 8, the Court declares that Article 14 applies taken in conjunction with Article 8. In order to determine if there has been a violation of Article 14 based on sexual orientation, the court first considers whether there was a difference of treatment of the applicant and persons in relevantly similar positions, ie unmarried different-sex couples. The Court notes that the domestic legislation accounts for the possibility that both same-sex and different-sex couples can form stable, committed relationships, thus the applicant is capable of pursuing family life under domestic legislation and the tacit refusal by the Government to issue a residence for family reunification is indicative of a difference of treatment due to the applicant’s sexual orientation. Additionally, the Court considers the lack of investigation into the circumstances and the quick reliance on legal impossibility by the Government is also indicative of a difference of treatment which affected the applicants application.

Secondly, to establish a violation, the Court considers whether there was an objective and reasonable justification for the difference in treatment or if this amounted to a violation of Article 14 in conjunction with Article 8. The Court emphasises that the difference in treatment must pursue a legitimate aim and there must be a relationship of proportionality between the difference in treatment and the aim it seeks to achieve. In addition, the Court affirms that proportionality as well as necessity of the measures is essential. Thus excluding the applicant from the scope of the relevant domestic legislation governing family reunification must be proven by the Government to be necessary and proportionate to the outcome intended from the exclusion. The Court declares this is not established as the Government gives neither convincing nor weighty reasons as justification for the difference in treatment between same-sex and different-sex couples. Therefore, the Court declares that there is discrimination based on sexual orientation which is not justified by the Government, hence there is a violation of Article 14 taken in conjunction with Article 8.

Outcome:

The Court finds there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention. The Court declares that the respondent State of Croatia should pay the applicant 10,000€ in non-pecuniary damages and 5,690€ for costs and expenses.

Observations/comments:

This summary was written by Tazkia Rahman, GDL student at BPP University. 

Other sources: