On 7 October, Romania is expected to hold a referendum to change the definition of family in the constitution. The referendum could result in making it impossible to protect same-sex unions in the future. Currently, same-sex couples do not have access to civil partnerships, nor marriage, in Romania. Amnesty International is concerned that the change could lead to a breach of international human rights standards and increase homophobic discrimination. To assist the Romanian Constitutional Court to examine the compatibility of the proposed change with international human rights obligations, Amnesty International, together with ECSOL (European Commission on Sexual Orientation Law) and ILGA-EUROPE (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), made legal submissions on 14 September. See more via Amnesty International
INTRODUCTION
These written submissions are presented by Amnesty International, ECSOL (European Commission on Sexual Orientation Law) and ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association) (“Amici”).1
In the present case, this Court is called upon to examine – and ultimately determine – the constitutionality of the proposed revision of Article 48 (1) of the Constitution of Romania to be submitted to a referendum.2 If passed into law, the proposed revision will enshrine in the Constitution the exclusive recognition and protection of only one type of “family”, i.e. a family founded on the marriage of a man and a woman to one another.3
In determining whether the proposed constitutional revision would be consistent with the Romanian Constitution, this Court should consider and be guided by Romania’s relevant international human rights and European obligations including : (i) the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”), as expounded by the European Court of Human Rights (“ECtHR”) in its jurisprudence4, (ii) the Charter of Fundamental Rights of the EU (“Charter”) and the free movement obligations under European Union (“EU”) law.
In light of these, the amici submit that the proposed constitutional revision constitutes a violation of the following human rights enshrined in the ECHR: (i) the right to equality before the law and equal protection of the law,5 (ii) the right to respect for private and family life,6 and (iii) the right to enjoy one’s rights without discrimination and not to be subject to unjustified discrimination by a public authority, including on the ground of sex and sexual orientation.7 Second, the proposed constitutional revisions triggers contradiction with EU law and the Charter rights equivalent to those cited above. In the recent Coman case, the CJEU ruled that the term “spouse” in the Citizens Directive includes same-sex marriages for the purposes of freedom of movement within the EU.8
The amici therefore submit first, that Romania is bound by its obligations under international law to respect the rights of same-sex persons; second, that the constitutional revision to be put to a referendum would infringe Romanian citizens’ fundamental rights; and third, that such an interference with fundamental rights cannot be justified.