Dear Member of the Slovenian Parliament,
On behalf of Human Rights Watch I urge you to approve the proposal of the government 542-08/09-0008/ EPA: 0817-V, "Družinski zakonik" (Family Code), which extends civil marriage to lesbian and gay couples and puts heterosexual and homosexual partnerships on an equal legal footing, including extending the right of same-sex partners to adopt.
Human Rights Watch is an independent organization dedicated to defending and protecting human rights. We investigate and expose human rights violations. We work in more than 90 countries in the world. In Europe we have offices in London, Paris, Berlin, Brussels, Geneva, Moscow and Amsterdam.
Minister of Labor, Family and Social Affairs, Ivan Svetlik, first proposed the bill in September 2009. In accordance with international human rights standards, the new Family Code would make three significant and necessary changes.
- In Article 2 "family" is defined as a union of an adult (or two adults) and a child whereby the required bond is based on the adult's role as caregiver rather than his or her biological connection;
- "Matrimony union" is a union between two persons of a different or same gender as stipulated in Article 3;
- Article 213 provides for a right for both heterosexual and homosexual couples to single or joint parent adoption.
Recent practice of national courts is in line with the proposed changes. The Slovenian Constitutional Court ruled in 2009 that the Registered Same-sex Partnership Act of 2005 was unconstitutional, as it did not provide equal inheritance rights for registered same-sex partners and families (Decision No. II Ips 462/2009). Furthermore, the Slovenian District Court in Ljubljana in 2010 recognized adoption papers of two same-sex couples who adopted a child from the United States of America, thereby legally recognizing two same-sex families in Slovenia (Decision No. I R 226/2010). This decision was not appealed.
The right to marry is a basic human right enshrined in Article 12 (Right to marry and found a family) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 9 (The right to marry and found a family) of the EU Charter of Fundamental Rights of the European Union (the Charter). This right, and the right to all forms of family to equality, is reinforced by Articles 8 and 7 of the ECHR and Charter respectively (Right to respect for private and family life), and the right to be free from discrimination as stipulated in Article 14 of the ECHR and Articles 20 and 21 of the Charter.
Governments committed to equality cannot legitimately reserve certain areas of civil life as ‘exempt zones' where inequality is allowed. Human rights principles lead to the conclusion that ending unequal treatment in recognizing families and relationships is the right thing to do. Civil marriage should be open to all without discrimination based on sexual orientation. This also applies to the right to adopt which should be based on the principle of the best interest of the child, as embodied in the role of the adult as caregiver, rather than biological notions of parenthood.
The Grand Chamber of the European Court of Human Rights in E.B. v France in 2008 held that refusing to grant adoption rights to a woman in a same-sex relationship, on the basis of her sexual orientation constituted a violation of Articles 14 and 8 of the ECHR. In Kopf v. Austria in 2010 the Court observed that a same-sex couple in a stable relationship constitutes "family life" under Article 8, and although the court did not agree with applicants that the right to marry obliged states to recognize same-sex marriage, the court did state clearly that the right to marry does not apply only to persons of the opposite sex.
On March 31, 2010 the Committee of Ministers of the Council of Europe unanimously adopted a set of recommendations (CM/Rec (2010)5 to member states (including Slovenia) on measures to combat discrimination on the grounds of sexual orientation or gender identity. The relevant articles are 24 and 27:
Article 24 : Where national legislation confers rights and obligations on unmarried couples, member states should ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.
Article 27 : Taking into account that the child's best interests should be the primary consideration in decisions regarding adoption of a child, member states whose national legislation permits single individuals to adopt children should ensure that the law is applied without discrimination based on sexual orientation or gender identity.
The recommendations are minimum standards. States may go beyond them when renewing their Family Code. Many governments within Europe grasped the urgency of ending discrimination in access to civil marriage and adoption. The legislature of the Netherlands extended full civil marriage and adoption rights to same-sex couples in 2001; Belgium did likewise in 2003 for civil marriage and 2006 for adoption. The parliament of Spain followed suit in 2005. Same sex marriage became legal in Norway on January 1, 2009. Sweden followed on May 1, 2009, Portugal on June 5, 2010 and Iceland on June 27, 2010.
After about a year and a half of deliberations I urge you to uphold the principles of human rights and ask you to adopt the proposed new Family Code and end legal discrimination of same-sex partners and families. I hope that you will aspire to make Slovenia a nation that upholds and practices the highest standards of human rights and join the group of above mentioned countries.
Boris O. Dittrich
Lesbian, Gay, Bisexual, and Transgender Rights Program