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Romanian same-sex couple fighting for their rights in groundbreaking mutual recognition case

Relu Adrian Coman, and his husband, American citizen Robert Clabourn Hamilon, have sued the Romanian state for refusing to recognise their marriage, which took place in 2010 in Brussels. Not only that, but the Romanian authorities are also adamant in refusing to accept that the gay couple have indeed built a family. Without this formal recognition, the two cannot live together in Romania, as residency rights are only granted to family members. Clai Hamilton cannot currently reside in Romania for periods longer than three months, despite being married to a Romanian citizen. While their marriage is legal in most of the European Union and in the United States, it is simply not acknowledged by the Eastern-European country. Of course, should Adrian Coman have married a woman, and not a man, these problems would never have existed.

ACCEPT and the Romanian Anti-Discrimination Coalition are supporting the couple in their efforts to protect their right to family life as well as the right to free movement. Human rights lawyer Iustina Ionescu has been representing the two in front of the Court since 2013.

The Romanian state, represented by the Imigration Office as well as by the Internal Affairs Ministry, is using the Romanian Civil Code as grounds for refusing to recognise  the effects of a marriage between two men, although this has legally taken place in Belgium and has effecively created a family. However, irrespective of these policies, the Civil Code states that the right to family, even a same-sex one, needs to be respected in the context of asserting one’s right to free movement on the territory of the European Union.

In practice, with its vague and contradictory provisions, the Romanian Civil Code is preventing the Coman-Hamilton couple to exercise ther right to family life in Romania. A right, however, which is guaranteed in both Art. 26 of the Romanian Constitution and Art. 8 of the European Convention on Human Rights.

The Romanian Constitutional Court first heard the case on 20 July 2016. „Recent jurisprudence from thr European Court of Human Rights has decided in similar cases against Italy and Croatia that the states have an obligation to recognise same-sex coules who have been legally married or created a civil partership aboroad,” said Iustina Ionescu, Human Rights lawyer. „The Romanian Constitutional Court must now rule on whether these restrictions on recognising same-sex couples in the Civil Code are constitutional and uphold the human rights standards Romania has, at least formally, committed to.” she added

On November 29th 2016, the Court decided to consult the Court of Justice of the European Union (CJEU) regarding the interpretation of community law on the application of the right to free movement of European citizens in same-sex families. The decision is historical, being the first time when the RCC sends preliminary questions to the Luxembourg-based Court. Also for the first time, the CJEU is asked about the meaning of the term „spouse” in the EU Directive on the right to free movement, in order to clarify whether it includes same-sex spouses. Through this decision, the RCC shows that Romania belongs to a space of European values, from which our country cannot be separated nor isolated. Details here.

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