Blažič and Kern v. Slovenia, Constitutional Court of the Republic of Slovenia (2 July 2009)
A same-sex couple, who had registered their civil partnership under the Registration of Same-Sex Civil Partnership Act (RSSCPA), filed a petition for review, alleging that the inheritance provisions of the law were unconstitutional. The National Assembly of the Republic of Slovenia did not respond.
Whether the inheritance provisions of the law providing for same-sex partnerships violated the petitioners’ right to equality and non-discrimination under the Constitution of Slovenia.
Constitution of Slovenia, Articles 14 (right to equality and non-discrimination) and 33 (the right to private property and inheritance).
Registration of Same-Sex Civil Partnership Act, Article 22 (providing that a surviving partner of a registered same-sex partnership had the right to inherit the decedent’s share of community property).
European Convention on Human Rights, Article 14 (right to non-discrimination).
Salgueiro da Silva Mouta v. Portugal, ECtHR, 1999 (holding that sexual orientation was covered by Article 14 of the European Convention).
Reasoning of the Court
The petitioners claimed that the inheritance provisions for same-sex partners under the RSSCPA were different from the general inheritance rules for married couples under the Inheritance Act. For example, same-sex partners were excluded from having a share in “special property” (personal property owned by either party before entering the partnership) but married couples were not so excluded. Under the Inheritance Act, the surviving spouse in a marriage would inherit all the property of the deceased spouse or, if there were children, would divide such property equally with the children. The surviving spouse in a marriage also had the right to a forced portion of the estate even if the deceased spouse wrote a will excluding the spouse. Same-sex partners had no such protections. A surviving same-sex partner had no right to inherit special property and was not guaranteed a forced portion.
The petitioners further argued that Article 22 of the RSSCPA did not meet the goals of the legislature, because it introduced different inheritance rules for same-sex couples, solely on grounds of sexual orientation. They underlined that, in economic and social terms, a registered same-sex partnership was the same as marriage. It was a lasting life union of partners concluded for the purpose of mutual moral, emotional and economic support. The bases for both marriage and same-sex partnerships were mutual affection, love, understanding and trust. In both, the parties were obligated to respect, trust and help each other.
The petitioners invoked Articles 14, 15, 33, and 67 of the Constitution and the Act Implementing the Principle of Equal Treatment, which prohibited discrimination on the basis of sexual orientation in all fields of social life. The Court, however, dealt only with arguments regarding the right to non-discrimination under Article 14.
In determining whether treatment was discriminatory, the Court’s analysis considered: (1) whether the alleged difference in treatment was relevant to ensuring or exercising a human right or fundamental freedom; (2) whether the persons to whom the petitioners compared themselves were receiving different treatment; (3) whether the positions the petitioners were comparing were essentially the same; (4) whether differentiation was due to a circumstance that fell within Article 14 of the Constitution; and (5) whether the interference was constitutionally permissible. Whether interference was constitutionally admissible depended on a strict test of proportionality.
The Court found that, in accordance with Article 33 of the Constitution, the right to inheritance was a constitutional right. It found, further, that same-sex partners and married couples were treated differently with respect to this right. The essential question was whether the position of the petitioners position was comparable in its “essential and legal elements” to the position of married spouses. The Court held that these two situations were substantially similar and as such could be compared. It fully accepted the petitioners’ arguments on this point and concluded that the difference in treatment with regard to inheritance was not based on objective and non-personal characteristics but on sexual orientation. Although sexual orientation was not explicitly listed in Article 14 of the Constitution, it was protected by the Constitution because it was analogous to other protected grounds. On this point the Court also cited the case Salgueiro da Silva Mouta v. Portugal.
Interferences with human rights were constitutionally permissible if they had a “constitutionally admissible” aim and were proportionate to that aim. The Court found that here no “constitutionally admissible reason” justified a difference in the regulation of inheritance between spouses and same-sex partners. The first prong of the test was therefore unsatisfied.
The Court held unanimously that Article 22 of the RSSCPA was contrary to the Constitution. It ordered the National Assembly to remove the inconsistencies within six months. Until new legislation was enacted, it ordered that the same rules for inheritance that applied to married partners should also be applied to same-sex registered partners.
Blažič and Kern v. Slovenia, Constitutional Court of the Republic of Slovenia (full text of judgment, PDF)