CASE OF PAJIĆ v. CROATIA
Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for private life;Article 8 - Right to respect for private and family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković
6. The applicant was born in 1973 and lives in Brčko, Bosnia and Herzegovina. 7. On 29 December 2011 the applicant lodged a request for a residence permit in Croatia on the grounds of family reunification with her partner, Ms D.B., who was living in Sisak. She submitted that she had been educated in Croatia and that she had lived in Zagreb for seventeen years. She also explained that she wanted to live with D.B., with whom she had been in a relationship for two years, and with whom she wanted to establish a household and start a business. 8. By a letter dated 28 December 2011 D.B. stated that she owned a house in Sisak where she wanted to live with the applicant. She explained that she had been in a relationship with the applicant for two years and that they wanted to live together so as to avoid constant travelling and the distance between them. 9. During the proceedings the Sisak Police Department (Policijska uprava Sisačko-moslovačka) found that the applicant and D.B. had been in a relationship since October 2009 and that in order to maintain their relationship they had been travelling to see each other. It was also established that the applicant had recently stayed with D.B. in the period between 16 September and 4 December 2011. 10. On 24 February 2012 the Sisak Police Department dismissed the applicant’s request with a summary reasoning indicating that all the relevant requirements under the Aliens Act had not been met. 11. The applicant appealed against that decision to the Ministry of the Interior (Ministarstvo unutarnjih poslova; hereinafter: the “Ministry”), arguing that it could be inferred from the decision of the Sisak Police Department that her request had been dismissed because the Aliens Act did not allow family reunification for same-sex couples. She considered that there had been no grounds for a difference in treatment based on sexual orientation and that the relevant law should not be construed in a manner that allowed for such a possibility. She relied, inter alia, on the Constitution and the Prohibition of Discrimination Act, arguing that even if she was not to be considered as D.B.’s “immediate family member”, within the meaning of the Aliens Act, she should in any case be considered as her “other relative” within the meaning of that Act. 12. On 8 June 2012 the Ministry dismissed the applicant’s appeal and upheld the decision of the Sisak Police Department. The relevant part of the Ministry’s decision reads: “Concerning the family reunification, based on which the request for the regularisation of the status of an alien in Croatia has been submitted in the case at issue, [it is to be noted that] the case file shows that the appellant relies on the existence of a same-sex relationship with the Croatian national D.B., which has allegedly lasted for two years ... The impugned decision shows that the [first-instance body], other than citing the [relevant] provisions of the Aliens Act, also cited section 3 of the Family Act, according to which the effects of an extramarital relationship, that is to say the rights and obligations following from its existence, relate to a union between an unmarried woman and man which has lasted for at least three years, or less if a child was born of [the union]; and section 2 of the Same-Sex Union Act ... which defines a same-sex union as a union between two persons of the same sex (partners) who are not married, or in an extramarital relationship or other same-sex union, which has lasted for at least three years and which is based on the principles of equality of partners, mutual respect and assistance as well as the emotional bonds of partners. ... It follows that the [Same-Sex Union] Act does not define a same-sex union as a family and the Family Act does not cover same-sex unions. It should also be taken into account that the provisions of the Aliens Act concerning temporary residence for family reunification do not provide for a possibility of regularisation of the status of an alien on the grounds of [the existence of] a same-sex union, nor does such a union fall within the scope of [the term] ‘immediate family member’ incorporated in that Act, which makes it clear that there is no legal ground for granting the request of the appellant. Therefore, the appellant wrongly considers that the first-instance body should have applied section 56 § 4 of the Aliens Act in her case ... because that provision clearly provides that exceptionally to the provision defining immediate family members, ‘other relative’ could be so considered if there are specific personal or serious humanitarian reasons for a family reunification in Croatia.” 13. On 24 July 2012 the applicant lodged an administrative action with the Zagreb Administrative Court (Upravni sud u Zagrebu), arguing that she had been discriminated against in comparison to different-sex couples who had a possibility to seek family reunification under the Aliens Act. She relied on the domestic anti-discrimination legislation, including the Prohibition of Discrimination Act, as well as the Convention and the Court’s case-law. 14. The Zagreb Administrative Court dismissed the applicant’s action on 30 January 2013. The relevant part of the judgment provides: “The cited section 56 § 3(1) and (2) of the Aliens Act provides that the immediate family members are spouses or persons who live in an extramarital relationship in accordance with Croatian legislation. The cited sections 3 and 5 of the Family Act show that marriage and extramarital relationship are unions between a man and a woman. Thus, union between two same-sex persons cannot be considered under the relevant legal provisions as marriage or an extramarital relationship. Union between two same-sex persons can be considered under the legal term same-sex union under the conditions provided for in section 2 of the Same-Sex Union Act. However, given the limited legal effects of a same-sex union, the possible existence of such a union does not represent a basis for family reunification. It should be noted that section 56 of the [Aliens] Act explicitly enumerates persons who are to be considered immediate family members or who are to be exceptionally considered [so], which leads to a conclusion that it cannot be extended to cover persons living in a same-sex union. Accordingly, the granting of a request for temporary residence of an alien on the grounds of family reunification depends on the satisfaction of the requirements under sections 52 and 56 of the Aliens Act. In the case at issue the plaintiff is neither married nor in an extramarital relationship with the Croatian national D.B., which is not in dispute between the parties. It therefore follows that the plaintiff cannot be considered an immediate family member within the meaning of section 56 § 1(1) and (2) of the [Aliens] Act and thus she did not justify the purpose (in the concrete case: family reunification) for which a temporary residence of an alien in Croatia can be granted ... In view of the cited legal provisions, and the facts of the case, this court finds that in the concrete case it was not possible to grant the plaintiff’s request.” 15. On 8 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), contending that she had been discriminated against on the basis of her sexual orientation. She relied on the Convention and the relevant domestic anti-discrimination legislation, and she cited the Court’s case-law on the question of discrimination related to sexual orientation. 16. On 29 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint, endorsing the reasoning of the lower bodies. The relevant part of the decision reads: “8. The Constitutional Court reiterates that discrimination under Article 14 of the Constitution does not have an independent standing for a constitutional complaint but must be submitted in conjunction with another (substantive) constitutional right. Discrimination means difference in the treatment of persons in the same or relevantly similar situations without an objective and reasonable justification. Article 14 of the Constitution contains constitutional guarantee against discrimination on any ground in securing a concrete right. Although the appellant relied in her constitutional complaint in Article 35 of the Constitution and the related Article 8 of the Convention, the Constitutional Court finds that these provisions are not applicable in the case at issue. 8.1. In the proceedings before it, the Constitutional Court did not find facts or circumstances which would suggest that in the proceedings before [the lower bodies] the appellant was discriminated against on any ground ... Thus her complaint of a violation of Article 14 § 1 of the Constitution, the Constitutional Court finds unfounded. 8.2. The Constitutional Court also notes that the appellant, in the concrete case, did not show that she has used the legal avenue under the Prohibition of Discrimination Act ... There has therefore been no violation of her constitutional right under Article 14 §§ 1 and 2 of the Constitution. 9. The case-law of the European Court cited in the constitutional complaint is of no relevance for the case at issue since it relates to cases concerning health insurance and inheritance of tenancy rights by same-sex partners living in a stable (de facto) relationship.”