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Schalk and Kopf vs. Austria

Schalk and Kopf vs. Austria

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Published by: malbarracin on Jul 14, 2011
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Equal Jus Database
European network for the legal support of LGBT rights
Equal Jus Project
| A EU's Fundamental Rights and Citizenship Programme co-funded project
Ownership of this document does not attribute any right to copy, use or modify it without due authorisation. More information about the origin of the document, which may be private, are available on the Equal Jus Project Database on the item profile.
(Application no. 30141/04)
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may besubject to editorial revision.
Equal Jus Project Database
http://www.equal-jus.euPage 2
In the case of Schalk and Kopf v. Austria,The European Court of Human Rights (First Section)
, sitting as a Chamber composed of:Christos Rozakis,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou,
 and André Wampach,
Deputy Section Registrar 
,Having deliberated in private on 25 February 2010 and on 3 June 2010,Delivers the following judgment, which was adopted on the last-mentioned date:PROCEDURE1. The case originated in an application (no. 30141/04) against the Republic of Austria lodged with theCourt under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by two Austrian nationals, Mr Horst Michael Schalk and Mr Johan Franz Kopf (“theapplicants”), on 5 August 2004.
 2. The applicants were represented by Mr K. Mayer, a lawyer practising in Vienna. The Austrian
Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the
International Law Department at the Federal Ministry for European and International Affairs.3. The applicants alleged in particular, that they were discriminated against as, being a same-sex couple,they were denied the possibility to marry or to have their relationship otherwise recognised by law.4. On 8 January 2007 the President of the First Section decided to give notice of the application to theGovernment. It was also decided to examine the merits of the application at the same time as itsadmissibility (Article 29 § 3).5. The applicant and the Government each filed written observations on the admissibility and merits of theapplication. The Government also filed further written observations. In addition, third-party commentswere received from the United Kingdom Government, who had been given leave by the President tointervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). A joint third-partycomment was received from four non-governmental organisations which had been given leave by thePresident to intervene, namely FIDH (
Fédération Internationale des ligues des Droits de l’Homme
), ICJ(International Commission of Jurists) AIRE Centre (Advice on Individual Rights in Europe) and ILGA-Europe
Equal Jus Project Database
http://www.equal-jus.euPage 3(European Region of the International Lesbian and Gay Association). The four non-governmentalorganisations were also given leave by the President to intervene at the hearing.6. A hearing took place in public in the Human Rights Building, Strasbourg, on 25 February 2010 (Rule 59 §3).There appeared before the Court:(a)
 for the Government 
 Mrs B. Ohms, Federal Chancellory,
,Mrs G. PASCHINGER, Federal Ministry of European and International AffairsMr M. Stormann, Federal Ministry of Justice,
 for the applicants
 Mr K. Mayer,
,Mr H. Schalk,
 for the Non-governmental organisations, third-party interveners
 Mr R. Wintemute, Kings College, London
,Mrs A. Jernow, International Commission of Jurists,
.The Court heard addresses by Mrs Ohms, Mr Mayer and Mr Wintemute.THE FACTSI. THE CIRCUMSTANCES OF THE CASE7. The applicants were born in 1962 and 1960, respectively. They are a same-sex couple living in Vienna.8. On 10 September 2002 the applicants requested the Office for matters of Personal Status (
)to proceed with the formalities to enable them to contract marriage.9. By decision of 20 December 2002 the Vienna Municipal Office (
) refused the applicants’
request. Referring to Article 44 of the Civil Code (
 Allgemeines Bürgerliches Gesetzbuch
), it held thatmarriage could only be contracted between two persons of opposite sex. According to constant case-law, amarriage concluded by two persons of the same sex was null and void. Since the applicants were two men,they lacked the capacity for contracting marriage.10. The applicants lodged an appeal with the Vienna Regional Governor (
), but to noavail. In his decision of 11 April 2003 the Governor confirmed the Muni
cipal Office’s legal view. In additionhe referred to the Administrative Court’s case
-law according to which it constituted an impediment tomarriage if the two persons concerned were of the same sex. Moreover, Article 12 of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms reserved the right to contractmarriage to persons of different sex.

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