The legal approach of ECHR and the law of European Union with regard to equality and non-discrimination are different. ECHR with wide material scope has been interpreted through case law by ECtHR and was accepted as ‘living instrument’ which is interpreted with present day’s conditions. The Union law has developed with treaty revisions and, secondary law and with CJEU Judgments. The Principle of non-discrimination in ECHR is formulated in article 14 which aims to protect Human Right ensured in convention thus, the requirement of this article is not ‘free-standing’ and it’s depended on another rights of ECHR to be engaged.1 In EU law ‘source’ of non-discrimination is ensured in multiple provisions.
Article 14 ECHR does not explicitly mention sexual orientation as the ground but in fact, sexual orientation as a base of discrimination was recognized by ECtHR earlier than by EU law.2 Article 12 ensures the right of marriage of man and woman with marriageable have the right to marry. The wording shows that it’s not limited to marriage between opposite sex. In Schalk ECtHR reject the argument that wording of article 12 should be understood the right of marriage only between opposite-sex couples.3In same case, the court held the article 12 is not obliging states to allow marriage between homosexual couples.4 Basically, ruling in this case, was controversial as the court found that homosexual couple who are residing together fall under private life and not family life, it was also found no breach of article 12 with the conjunction of article 14.5 In 2016 in Chapin case court ruled that under articles 8 and 12 ECHR homosexual couples are not covered which simply means no equal right of marriage.6 Danisi’s analysis about an evaluation of recent European Judgments it’s obvious that ECtHR rulings are quiet ‘unprincipled’.7
1 Noted: According Schmidt article 14 is take together with another article, which ‘alone’ could not cause breach, The Concepts of Equality and Non-Discrimination in Europe: A practical approach, pg.21-22
2 See case of Dudgeon v. The UK where ECtHR found that prohibition of same sex activities is in breatch with article 8 ECHR.
3 Court acknowledged ”the premise that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship”, see CASE OF SCHALK AND KOPF v. AUSTRIA 30141/04, 2010
5 Same-sex marriage case should go to the Grand Chamber: more on Schalk and Kopf v. Austria, visit: https://strasbourgobservers.com/2010/07/01/same-sex-marriage-case-should-go-to-the-grand-chamber-more-on-schalk-and-kopf-v-austria/#more-366
6 G. Puppinck, ”The ECHR unanimously confirms the non-existence of a right to gay marriage” European Centre for law & Justice, visit: https://eclj.org/marriage/the-echr-unanimously-confirms-the-non-existence-of-a-right-to-gay-marriage
7 M. Cartabia, ”The European Court of Human Rights: judging non-discrimination”, International Journal of Constitutional Law, Volume 9, Issue 3-4, 2011, Pages 808–814, https://doi.org/10.1093/icon/mor043