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

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Country of Applicant: 
Bosnia and Herzegovina
Date of Decision: 
23-02-2016
Citation: 
Pajić v Croatia [2016] ECtHR application no. 68453/13
Court Name: 
European Court of Human Rights (Fourth section)
Headnote: 

Same-sex couples are not excluded from the ambit of the Convention’s family life and cohabiting is not a pre-requisite of establishing family life.

A difference in treatment between persons in relevantly similar positions has occurred in this case since the Croatian Aliens Act has made no provision for same-sex couples seeking a residence permit to join their respective partner, whereas it did contain provisions relating to married and unmarried different-sex couples. The applicant had, therefore, experienced a difference in treatment based on her sexual orientation which had not been justified with weight reasons by the Croatian government. Croatia had, thus, violated Article 14 read in conjunction with Article 8.

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. 

Case Law Cited: 

ECtHR - Zrilić v Croatia, Application no. 46726/11, 3 October 2013

ECtHR- Smith and Grady v. the United Kingdom, Application nos. 33985/96 and 33986/96

ECtHR - Karner v. Austria, No. 40016/98, 24 July 2003

Eweida and Others v. the United Kingdom (nos.48420/10, 59842/10, 51671/10 and 36516/10), 15 January 2013

ECtHR - S.A.S. v. France (no. 43835/11), 1 July 2014

ECtHR - Gül v. Switzerland, Application no. 23218/94

ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10

ECtHR- Burden v. the United Kingdom [GC], Application no. 13378/05

ECtHR - Konstantin Markin v. Russia [GC], Application no. 30078/06, 22 March 2012

Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09

ECtHR - Niemietz v Germany, Application No. 13710/88

ECtHR - Azinas v Cyprus, Application No. 56679/00

ECtHR - Moreira Barbosa v. Portugal, Application No. 65681/01

ECtHR - D.H. and Others v. the Czech Republic [GC], Application No. 57325/00

ECtHR - Jeličić v. Bosnia and Herzegovina, Application no. 41183/02, 15 November 2005

ECtHR - X and Others v Austria [GC], Application no. 19010/07, 19 February 2013

ECtHR - Jasinskis v Latvia, Application no. 45744/08, 21 December 2010

ECtHR - T.W. v Malta [GC], Application no. 25644/94, 29 April 1999

ECtHR - Stummer v Austria [GC], Application no. 37452/02, 6 July 2011

ECtHR - Schalk and Kopf v. Austria, Application no. 30141/04, 24 June 2010

ECtHR - Salgueiro da Silva Mouta v Portugal, Application no. 33290/96, 21 December 1999

ECtHR - Misfud v France [GC], Application no. 57220/00, 11 September 2002

ECtHR - Melnik v Ukraine, Application no. 72286/01, 28 March 2006

ECtHR - Mata Estevez v. Spain, Application no. 56501/00, 10 May 2001

ECtHR - Kurić and Others v. Slovenia [GC], Application no. 26828/06, 31 May 2007

ECtHR - Hummatov v Azerbaijan, Application nos. 9852/03 and 13413/04, 29 November 2007

ECtHR - Kozak v Poland, Application no. 13102/02, 2 March 2010

ECtHR - Kiyutin v. Russia, Application no. 2700/10, 10 March 2011

ECtHR - Genovese v Malta, Application no. 53124/09, 11 October 2011

ECtHR - E.B. v France [GC], Application nos. 43546/02, 22 January 2008

ECtHR - Dvořáčekand Dvořáčková v Slovakia, Application no. 30754/04, 28 July 2009

ECtHR - Bjedov v Croatia, Application no. 42150/09, 29 May 2012

ECtHR - Balgogh v Hungary, Application no. 47940/99, 20 July 2004
Attachment(s): 
Other sources cited: 
Parliamentary Assembly of the Council of Europe (PACE), Recommendation 924
Parliamentary Assembly of the Council of Europe (PACE), Recommendation 1470
Parliamentary Assembly of the Council of Europe (PACE), Recommendation 1474
Parliamentary Assembly of the Council of Europe (PACE), Resolution 1728
Committee of Ministers,  Recommendation CM/Rec (2010)5
International Covenant on Civil and Political Rights,  Article 26
United Nations Human Rights Commitee, X v Columbia, CCPR/C/89/D/1361/2005
Office for Human rights of the Government of Croatia, ‘Manual on the Application of the Prevention of Discrimination Act’
Authentic Language: 
English
State Party: 
Croatia
National / Other Legislative Provisions: 
Croatia – Constitution - Article 14
Croatia - Constitution - Article 35
Croatia - Constitutional Court Act - Section 62
Croatia – Aliens Act - Section 43
Croatia – Aliens Act - Section 51
Croatia – Aliens Act - Section 52
Croatia – Aliens Act - Section 56
Croatia – Family Act - Section 3
Croatia – Family Act - Section 5
Croatia - Same-sex Union Act - Section 2
Croatia - Same-sex Union Act - Section 4
Croatia - Same-sex Union Act - Section 21
Croatia - Same-sex Union Act - Section 73
Croatia – Prevention of Discrimination Act - Section 1
Croatia – Prevention of Discrimination Act - Section 8
Croatia – Prevention of Discrimination Act - Section 16
Croatia – Prevention of Discrimination Act - Section 17