Petitions of the Ombudsman to the Constitutional Court for the protection of the equal treatment in law of different family forms

Press release:

Petitions of the Ombudsman to the Constitutional Court for the protection of the equal treatment in law of different family forms

The Commissioner for Fundamental Rights has filed two inter-connected applications with the Constitutional Court on the new Acts on Family Protection and on Family Support. The Ombudsman underlines in both petitions that the law-maker may not exclude existing, functioning and recognised partnership relations from the concept of family because it constitutes an infringement of the rights of the persons concerned, and at times even of the rights of their children.

 The Commissioner has been requested by an individual to initiate with the Constitutional Court the review of a provision of the Family Protection Act which defines the concept of family. Among partnership relations the Act specifies only marriage as a basis of the family. By doing so it excludes, contrary to the jurisprudence of the Human Rights Court in Strasbourg, the recognition and protection of 'marriage-like' partnership relations of those who live in registered partnerships, i.e. of those who live in a relation with a partner of the same sex. Consequently, the Act makes a distinction not only on the basis of the forms of partnership relations but also on the basis of the sexual orientation of the persons choosing them, completely excluding from the notion of family same-sex partnership relations which cannot be considered marriage according to the Fundamental Law.

The petition of the Ombudsman also points out that the concept of family, as stipulated by the Act, is not only detrimental for couples of the same sex-living in registered partnerships but also for other heterosexual couples who wish to live in partnership relations other than marriage. According to the Commissioner this narrow definition disproportionately restricts the right to privacy and family life of couples choosing another form of partnership relation than marriage, since they are essentially excluded from the notion of family. Thus the narrow definition of the concept of family unnecessarily and disproportionately restricts the right to equal dignity, privacy and family life of those who do not wish live in a marriage but in another form of partnership relation, and furthermore this solution is contrary to the European Human Rights Convention.