On February 1, 2024, Legislative Initiative No. 19 of January 8, 2024, regarding the Legislative Proposal for the Revision of the Constitution[1] (hereafter referred to as “Legislative Initiative”), was published in the Official Gazette. This document states that “The purpose of the citizens’ legislative initiative to revise the Constitution of Romania is, on one hand, to modify Article 48 paragraph (1) of the Constitution of Romania, by replacing the term ‘spouses’ with the phrase ‘a man and a woman’, in order to ensure the precise and literal implementation of expressions endowed with the power of immutable guarantees aimed at protecting the family, which is recognized in Article 16 of the Universal Declaration of Human Rights as ‘the natural and fundamental unit of society’. (…) On the other hand, the purpose of the legislative initiative is also to enshrine in the Constitution of Romania the right to use cash in any transactions, by amending Articles 45 and 137 of the fundamental law, considering the essential nature of protecting individual freedom in financial transactions.”
In the justification for the initiative to revise Article 48 paragraph (1) of the Romanian Constitution, by replacing the term “spouses” with the phrase “a man and a woman”, the following points are made:
- “Even if the provisions of the Civil Code are of general application and regulate the patrimonial and non-patrimonial relations between people, as subjects of civil law, the risk cannot be ignored that, under the effect of certain momentary pressures, foreign to a healthy society, the right of a man and a woman to marry and to found a family could suffer alterations, restrictions, and interpretations, even legislative, alien to the spirit and fundamental interest of protecting the most important human institution everywhere: the family.”
- “The impact of the proposed modification is positive, contributing to solving problems in the field of fundamental rights of men and women. According to a report published by the Department for Economic and Social Affairs of the United Nations (World Population Prospects. The 2015 Revision), Romania’s demographic evolution is more than worrying. Thus, if at the beginning of the third millennium Romania’s population counted over 20 million inhabitants, according to the mentioned study, by the year 2100, the number of inhabitants in Romania will halve, reaching approximately 10.7 million inhabitants. (…) Not only the continuously decreasing birth rate should motivate a firm policy of encouraging and protecting the family, but also the alarming rate of children born outside marriage. According to Eurostat, in Romania, 30% of the total number of births represent children born outside marriage, giving rise to so-called ‘fragile families’. According to an extensive study conducted by Princeton and Columbia University, children born outside of marriage are more prone to poverty, poor academic results, depression, substance abuse, and other similar negative effects.”
- “In a rule of law, the existence of social norms is necessary for the adoption of legal regulations. Thus, laws must take into account that social norm, rule, and that standard of behavior that are shared by the majority of the population. In the case of marriage, the socio-cultural reality of Romania imposes the consecration of this institution as a freely consented union between a man and a woman, based on equality of rights and obligations, with the essential purpose of founding a family. The constitutional protection of the family against any attempts to discredit the institution of marriage, as a freely consented union between a man and a woman, for the purpose of founding a family and procreation, is imposed as an essential measure for the continuity of the Romanian people, for its identity and unity.”
Given the above, we conclude that the initiative to revise Article 48, paragraph (1) of the Constitution is based on:
- the need to counteract some alleged “momentary pressures, foreign to a healthy society” that could affect “the right of a man and a woman to marry and to found a family”;
- the necessity to increase the birth rate and reduce the number of children born outside marriage;
- the importance of regulating a standard of behavior that is shared by the majority of the population, as an essential requirement in a rule of law state.
Reviewing all the reasons presented in the Legislative Initiative, we believe that the argumentation has a flaw, the so-called “one-sidedness fallacy” or the logical error of using biased sources, ignoring the totality of existing sources/evidence.
In this regard, we deem it necessary to evoke the following elements of relevance to the matter:
- The Grand Chamber of the Court of Justice of the European Union’s ruling on June 5, 2018, in the case of Relu Adrian Coman and Others v. General Inspectorate for Immigration and the Ministry of Internal Affairs[2] – in which the CJEU, responding to preliminary questions raised, ruled that “Regarding the notion of ‘spouse’ appearing in Article 2(2)(a) of Directive 2004/38, the right to respect for private and family life guaranteed by Article 7 of the Charter is fundamental. In this respect, as it follows from the Explanations relating to the Charter of Fundamental Rights (OJ 2007, C 303, p. 17), in accordance with Article 52(3) of the Charter, the rights guaranteed in Article 7 thereof have the same meaning and scope as those guaranteed by Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950. It emerges from the case law of the European Court of Human Rights that the relationship a homosexual couple has is likely to fall within the notion of ‘private life’ and ‘family life’ just as much as that of a heterosexual couple in the same situation.”
- Decision No. 534 of July 18, 2018, by which the Constitutional Court declared unconstitutional the provisions of Article 277, paragraphs (2) and (4) of the Civil Code – an exception raised by Relu Adrian Coman, Robert Clabourn Hamilton, and the Accept Association[3] in which the Constitutional Court accepted the exception of unconstitutionality and found that the provisions of Art. 277 para. (2) and (4) of the Civil Code are constitutional to the extent that they allow the granting of the right of residence on the Romanian territory, under the conditions stipulated by European law, to spouses – citizens of the Member States of the European Union and/or citizens of third countries – from same-sex marriages concluded or contracted in a Member State of the European Union. In issuing this decision, the Constitutional Court considered that a relationship between a same-sex couple falls within the notion of family life just as much as a heterosexual relationship and triggered the protection of the fundamental right to respect for private and family life, as guaranteed by Article 7 of the Charter of Fundamental Rights of the European Union, through Article 8 of the Convention and Article 26 of the Constitution. In exercising the right to private and family life, same-sex couples forming stable relationships have the right to express their personality within those relationships and to benefit, over time and through means provided by law, from the legal and judicial recognition of corresponding rights and duties.
- The judgment delivered on May 23, 2023, by the European Court of Human Rights in the case of Buhuceanu and Others v. Romania[4] in which the Court ruled that there is a violation of Article 8 of the Convention considering that “none of the public interest reasons invoked by the Government prevails over the applicants’ interest for their relationships to be adequately recognized and protected by law. In this sense, the Court concluded that the respondent state has exceeded its margin of appreciation and failed to fulfill its positive obligation to ensure the applicants’ right to respect for their private and family life.” In issuing this judgment, the Court considered that “Romanian law provides only one form of familial union – opposite-sex marriage and does not provide legal recognition for same-sex couples (…) The Court notes that the respondent state has informed of no intention to amend its domestic law to allow same-sex couples to enjoy official recognition and a legal regime that offers protection.”
It is noted that the above represents judgments made exclusively concerning the situation in Romania. The evolution of the jurisprudence of the European Court of Human Rights in the area of respect for the private and family life of individuals in same-sex couples has not been detailed. However, for this analysis, a highly relevant ECHR judgment is the one issued in the case of Fedotova and Others v. Russia[5] because:
- The case of Buhuceanu and Others v. Romania is very similar to that of Fedotova and Others v. Russia, and in the Buhuceanu case, the Court notes that “72. The general principles regarding the positive obligations of a member state in cases similar to the present have been most recently outlined in the Grand Chamber’s judgment in the case of Fedotova and others (cited above, §§ 152-65). 73. (…) The Court considered that where the Contracting States have a wider margin of appreciation, it was in determining the exact nature of the legal regime to be made available to same-sex couples, which does not necessarily have to take the form of marriage, states having the ‘choice of means’ to be used in fulfilling their positive obligations inherent in Article 8 of the Convention. The margin of appreciation granted to states in this regard refers both to the form of recognition and to the content of the protection to be granted to same-sex couples (ibid., § 188).”
- In paragraphs 155-165 of the Judgment issued in the case of Fedotova and Others v. Russia, the Court presents an exposition of the jurisprudence evolution and “reminds that this Convention is a living instrument, which must be interpreted in the light of current living conditions and the predominant conceptions in democratic states today [see, among others, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26, Marckx, cited above, § 41, and Christine Goodwin, cited above]. The Convention being primarily a mechanism for the protection of human rights, the Court must take into account the evolution of the situation in the Contracting States and react, for example, to the consensus that may emerge on the standards to be achieved [Stafford v. the United Kingdom (GC), no. 46295/99, § 68, ECHR 2002-IV, Scoppola v. Italy (No. 2) (GC), no. 10249/03, § 104, 17 September 2009, and Bayatyan v. Armenia (GC), no. 23459/03, § 102, ECHR 2011]. As it follows from the previously cited jurisprudence, if the Court were not to maintain a dynamic and evolutionary approach, such an attitude might hinder any reform or improvement (see, in this sense, Christine Goodwin, cited above, § 74, where the Court ruled that, under their positive obligations under Art. 8, Contracting States now have the obligation to ensure recognition of sex changes of operated transsexuals, in particular by allowing these persons to obtain the modification of their civil status; see also Scoppola, cited above, § 104, concerning the interpretation of Art. 7 of the Convention, and Bayatyan, cited above, § 98, regarding Art. 9 of the Convention). (…) In other words, what could be considered ‘licit and normal’ at the time of drafting the Convention might later prove incompatible with it (Marckx, cited above, § 41).
Given all the previously cited sources, we observe that individuals in same-sex couples have the right to respect for their private and family life just as those in heterosexual couples do. Thus, amending Article 48, paragraph (1) of the Constitution in the manner expressed in the Legislative Initiative would mean a regression to values not compatible with a democratic society, as it would affect the rights of individuals from a minority.
Regarding the reasons behind the Legislative Initiative, as previously mentioned, we consider that these cannot constitute relevant or sufficient arguments to justify the amendment of Article 48 of the Constitution.
- Concerning the need to counteract some “momentary pressures, foreign to a healthy society” that could affect “the right of a man and a woman to marry and to found a family”:
The document does not specify which “momentary pressures, foreign to a healthy society” (that could affect the right of a man and a woman to found a family) the Legislative Initiative refers to. However, to the extent that these pressures are represented by Romania’s condemnation by the European Court of Human Rights in the case of Buhuceanu and Others v. Romania, then the State’s conduct should be in line with the exact execution of the judgment, including taking all measures to prevent any identical or similar future abuse and certainly not adopting norms contrary to the Convention.
The judgments of the European Court of Human Rights are binding for member states, as follows from the corroboration of Article 20 paragraphs (1) and (2) of the Constitution, with the provisions of Article 11 of the Constitution, and from the ECHR jurisprudence which has ruled on numerous occasions that it is within the competence of the respondent state and only of the respondent state to take the measures it considers appropriate to ensure that its domestic law is coherent and consistent, and to prevent other cases similar/identical to those for which it was condemned from generating new complaints to the ECHR[6].
The jurisprudence of the European Court is directly applicable in the Romanian legal system, having constitutional and supra-legislative force. The provisions of the Convention and its protocols cannot be separated from the Court’s jurisprudence, all together forming the so-called block of conventionality. The principles expressed by the Court through its jurisprudence are binding for the state authorities, having the same legal force as the norms in the Convention. The European Court of Human Rights, being the supranational court that guarantees the respect of human rights by the judicial bodies belonging to the states party to the European Convention on the matter, issues judgments that are binding for national courts and authorities.
Therefore, we consider that the ECHR rulings in the case of Buhuceanu and Others v. Romania are binding for the Romanian State and should prevent any amendment of the Constitution in the direction pursued by the Legislative Initiative.
- Concerning the necessity of increasing the birth rate and decreasing the number of children born outside marriage;
The argument provided within the Legislative Initiative to support this reasoning is that “it is expected that debates and public consultations on the amendment of the Constitution will bring back into discussion the issue of Romania’s population aging and will have the effect of increasing the degree of awareness within civil society of the importance that encouraging and protecting the formation of healthy families will have for reversing the birth rate.” It is not clear how public debates would generate the encouragement of family formation and the reversal of the birth rate, nor is it explained how the choice of people to have children would relate to the definition of the family in the Constitution.
Moreover, the reasoning is flawed, as it explains that the problem of declining birth rates and demographic decline is old, referring to a study conducted in 2007. Since Romania was condemned by the European Court of Human Rights only in 2023 and was obliged to ensure the respect for private and family life for same-sex couples, it is undoubtedly not the reason for Romania facing low birth rates decades ago (a problem noted even in 2007).
- Concerning the importance of regulating a standard of behavior that is shared by the majority of the population, as an essential requirement in a rule of law state
We believe that this argument cannot justify the amendment of Article 48 of the Constitution either. Moreover, it is based on contradictory concepts – “a standard of behavior that is shared by the majority of the population” and “rule of law.” The argument seems to overlook that paragraph (3) of Article 1 of the Constitution states, “Romania is a democratic and social state, governed by the rule of law, in which human dignity, the rights and freedoms of the citizens, the free development of human personality, justice, and political pluralism represent supreme values, in the spirit of the democratic traditions of the Romanian people and the ideals of the December 1989 Revolution, and are guaranteed.”
Furthermore, according to Article 152, paragraph (2) of the Constitution, “no revision can be made if it results in the suppression of the citizens’ fundamental rights and freedoms or their guarantees.”
Thus, imposing “a standard of behavior shared by the majority of the population” through the Constitution at the expense of violating the fundamental rights of individuals belonging to minorities is equivalent to violating the principles of a rule of law state, representing a form of majority dictatorship.
In the Judgment issued in the case of Fedotova and Others v. Russia, the Court ruled that:
- “179. This interpretation of Article 8 of the Convention is dictated by the concern to ensure effective protection of the private and family life of homosexual persons. Moreover, it is in harmony with the values of the ‘democratic society’ promoted by the Convention, which include primarily pluralism, tolerance, and open-mindedness [Young, James, and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44, Chassagnou and others v. France (GC), nos. 25088/94 and 2 others, § 112, ECHR 1999-III and S.A.S. v. France (GC), no. 43835/11, § 128, ECHR 2014]. The Court recalls, in this regard, that any interpretation of the rights and freedoms guaranteed by the Convention must be reconciled with its overall spirit, which seeks to protect and promote the ideals and values of a ‘democratic society’ [Soering v. the United Kingdom, 7 July 1989, Series A no. 161, Svinarenko and Slyadnev, cited above, and Hamtohu and Aksencik v. Russia (GC), nos. 60367/08 and 961/11, 24 January 2017].180. In the present case, allowing homosexual couples to benefit from legal recognition and protection undoubtedly serves these ideals and values in that such recognition and protection confer legitimacy on these couples and promote their inclusion in society, regardless of the sexual orientation of the couple’s members. The Court emphasizes that the democratic society in the sense of the Convention rejects any stigmatization based on sexual orientation (Baiev and others v. Russia, nos. 67667/09 and 2 others, § 83, 20 June 2017). This is based on the equal dignity of individuals and is supported by diversity, which it perceives as wealth, not a threat [Natceova and others v. Bulgaria (GC), nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII].”
Moreover, we believe that the arguments presented through the Legislative Initiative do not prove the necessity of revising Article 48, paragraph (1) of the Constitution. Specifically, the Legislative Initiative makes a series of unsubstantiated claims, as follows:
- It does not explain what these alleged momentary pressures, foreign to a healthy society, consist of. Moreover, it uses the concept of a “healthy society” without defining it;
- It does not explain why maintaining the current definition of the family in the Constitution would affect the right of a man and a woman to marry and found a family;
- It does not explain how replacing the term “spouses” with “a man and a woman” in the Constitution would help increase the birth rate;
- It does not explain the connection between replacing the term “spouses” with “a man and a woman” in the Constitution and the fact that some Romanians choose to have children without being married or outside of marriage;
- It does not explain why the definition of the family proposed through the Legislative Initiative would be representative for Romanian society, be in accordance with the Constitution, and the European Convention on Human Rights;
- It does not explain how the rule of law would require the redefinition of the family by replacing the term “spouses” with “a man and a woman” in the Constitution;
In conclusion, as we have shown, the arguments presented in the Legislative Initiative are based on a series of unproven claims, which are not capable of leading to the conclusions presented there.
Therefore, considering that following the rulings of the Court in the Judgment issued in the case of Fedotova and Others v. Russia, the European Court of Human Rights found an identical violation in the case of Buhuceanu and Others v. Romania, obligating our state to take the necessary measures to ensure the respect for the private and family life of same-sex couples, revising the Constitution in the direction pursued by the Legislative Initiative would be equivalent, in our opinion, to suppressing the fundamental rights and freedoms of Romanian citizens, as recognized by the European Court of Human Rights.
Author: lawyer Irina Mihale
[1] URL: https://legislatie.just.ro/Public/DetaliiDocument/278759 , accessed on 26.02.2024;
[2] URL: https://curia.europa.eu/juris/document/document.jsf?text=&docid=202542&doclang=RO , accessed on 26.02.2024
[3] URL: https://legislatie.just.ro/Public/DetaliiDocumentAfis/205439 , accessed on 26.02.2024;
[4] URL: https://hudoc.echr.coe.int/?i=001-224774 , accessed on 26.02.2024;
[5] URL: https://hudoc.echr.coe.int/eng?i=001-230104 , accessed on 26.02.2024;
[6] European Court of Human Rights, 13.06.1979, Marckx v. Belgium, pronounced in application no. 6833/74, URL: https://hudoc.echr.coe.int/eng?i=001-57534 , accessed on 26.02.2024.
