Failure to recognize same-sex partnership by Albania

Facts

While the Committee’s View in this case rendered the case inadmissible, the dissenting Joint Opinion marks a significant step in recognition of same-sex marriage under the right to enjoyment of family life and the right to privacy under the Covenant. While the majority decided the communication as inadmissible citing non-exhaustion of domestic remedies, the dissenting members were of the opinion that the State party had not shown how it was positioned to give the authors an effective remedy. The views of the dissenting members that existing legislative framework in the State party did not extend protection to the authors to enjoy their family life and its failure in implementing the national action plan for LGBTQI+ people are particularly interesting. Though the communication was rendered inadmissible, the Joint Opinion is noteworthy for in terms of protecting inclusivity and equal protection of rights of members of the LGBTQI+ community.

The authors are V.W.G. a Dutch national, and E.H. an Albanian national who claim violation of their enjoyment of their right to family life by the State party. The authors met in Albania and were married in the Netherlands in June 2016. Post their marriage, the authors decided to relocate to Albania, where V.W.G. was living and working as a journalist. The authors’ marriage cannot be recognized neither as a marriage nor as a civil union under the domestic laws of Albania, since they only provide for recognition of marriage or civil partnership between a man and a woman. The authors’ claim that their right to family life is within the meaning of articles 17 and 23 read in conjunction with articles 2 (1) - (3) of the Covenant have been violated. While the authors do not claim in their complaint the non-recognition of same-sex marriages in general by the State party, they claim that their rights have been violated because the State party failed to take necessary measures to enable them to have their relationship recognized in a form that would accord them with the same set of rights that a recognized marriage would provide, including raising issues such as the right to inheritance. Furthermore, the authors’ claim that being denied the opportunity to contract marriage or enter into cohabitation solely on the basis of their sexual orientation under the laws of the State party amounts to discrimination prohibited by article 26 read alone and in conjunction with articles 17 and 23 of the Covenant. The authors argue that their present situation is similar to Oliari and others v. Italy and Vallianatos and others v. Greece, where the European Court of Human Rights had held that the only effective remedy available to the applicants under the Italian and Greek legal orders, which did not provide for same-sex partnerships, was through adoption of declaratory judgments by national courts, grant compensation to the applicants, or to recommend the Parliament to adopt appropriate legislations. The authors seek for legislative amendments to the domestic laws of the State party to have their family life recognized.

Admissibility

The Committee considered the State party’s submission that the authors had failed to exhaust possible domestic remedies, as well as the authors’ submission that, as the violation of their rights under the Covenant stems from existing domestic legislation. There is no information provided by the State party as to how domestic remedies mentioned by them would constitute an effective remedy in as much as they do not include legislative amendments to the Family Code of the State party. The Committee noted that the authors did not dispute the State party’s argument that Constitutional Court had the authority to examine the constitutionality of the Family Code, and the Committee placed reliance on its previous jurisprudence1 that with respect to challenges to national legislations, it has consistently required authors to avail themselves of domestic remedies before administrative agencies or national courts. As the authors in the present communication had not made any attempts to obtain such domestic remedies, the Committee found that their claims under articles 17, 23 (1) and 26 read alone and in conjunction with article 2 (1) - (3) of the Covenant as inadmissible in accordance with article 5 (2) (b) of the Optional Protocol.