The Accept Association welcomes the “moderate effort” of the Government which approved on Wednesday a draft law regarding the regime of foreigners in Romania whereby the marriage certificate between persons of the same sex, concluded in an EU state, will be recognized in Romania only regarding free movement, without being transcribed in the Romanian civil status registers. However, the association draws attention to the fact that the draft law contributes to increasing the degree of systemic discrimination faced by LGBTI families in Romania, and the beneficiaries of the law were not consulted in the drafting of the normative act.
Bucharest Pride 2023Photo: HotNews.ro / Nicoleta Onofrei
The Accept Association welcomed “the modest effort made by members of the Government through this initiative, but draws attention to the fact that the proposal fails to fully implement the decisions of the CJEU and CCR 534 from 2018 and does not take into account the rights arising from the European Directive on the right to free movement for citizens of the European Union. The draft law adopted by the Government in the meeting of September 20, 2023 contributes to increasing the degree of systemic discrimination faced by LGBTI families in Romania. Moreover, the organization accuses the fact that the beneficiaries of the law were not consulted in the drafting of the normative act”.
Spouses, treated by Romania as “two foreigners, without any family connection”
According to Accept, if the bill will be voted in Parliament in this form, the two spouses “will not be able to enjoy the rights arising from the quality of spouses”, saying that “We want equal rights, not special conditions”.
- “In short, LGBTI people will not be granted equal rights, but only special conditions. Likewise, same-sex couples who entered into a civil partnership in another state will continue to be treated as two foreigners with no family ties. Through such initiatives, the Government of Romania only increases the level of systemic discrimination against LGBTI people, whose families are not recognized and legally protected in Romania”.
Iustina Ionescu, the ACCEPT lawyer, who represented the Coman-Hamilton couple at the CJEU and CCR, said that the project approved by the Government “degrades the status of a European citizen”, turning him “from a husband into a special category”.
- “It is a violation of the CJEU decision and violates not only the spirit, but also the letter of the CCR decision in the Coman case, which recognized the fact that same-sex spouses must enjoy equal protection, according to the Romanian Constitution (art. 26 the right to life private and family). There is no way to degrade the status of a European citizen – from a husband to make him a special category – to add him somewhere at the end of the list”, said Iustina Ionescu.
- “Granting them a special status, not recognizing their status as spouses, the Government continues to make same-sex families vulnerable, while also failing in the process of implementing the decision handed down by the CJEU in the Coman-Hamilton case, on 5 June 2018. An urgent problem, which affects the lives of thousands of Romanians right now, the application of the decision comes not only with a shameful delay of five years, but also with many procedural hiccups that continue to violate human rights”, says the Association.
As a representative of many families in Romania who sued the state in front of the courts for non-respect of their rights, the Accept Association accuses the Ministry of Internal Affairs for non-compliance with the procedures regarding the elaboration of normative acts.
- “The institution’s decision not to consult same-sex families – the direct beneficiaries of the legislative proposal, is downright reprehensible,” says the NGO.
How citizens are affected by the Government’s attempts to delay respect for the rights of LGBTI families
- “In the last 30 years, tens of thousands of LGBTI people left Romania and chose to live in European states where their rights are respected. Many of these have founded families abroad, either with Romanian citizens of the same sex, or with citizens of other states. The Romanian state does not recognize their status as spouses, which makes it impossible for them to live together on Romanian territory.
- Through the aforementioned draft law, the only right that Romania could grant to foreign citizens, married on the territory of another state to Romanian citizens of the same sex, would be the right of residence. They would not be recognized as husband and wife and as a result could not visit each other in hospital in case of medical emergencies, could not legally represent each other and, in difficult times, could not be there for each other” , says Accept.
The Government’s initiative takes place five years after the decision of the Court of Justice of the European Union. The CJEU ruled in June 2018 that Romania must recognize the freedom of residence on its territory for family members, which also includes same-sex spouses.
“Examining including the decision of the CJEU previously mentioned, the Constitutional Court of Romania admitted the exception of unconstitutionality of the provisions of art. 277 paragraphs (2) and (4) of the Civil Code, finding that they are constitutional to the extent that they allow the granting of the right of residence on the territory of the Romanian state, under the conditions stipulated by European law, to spouses – citizens of the member states of the Union European and/or citizens of third countries – from marriages between persons of the same sex, concluded or contracted in a member state of the European Union”, it is stated in the statement of reasons of the draft law.
On July 11, the Ministry of the Interior specified, in a press release, that “the implementation of these provisions is a mandatory condition for Romania, as a result of the decision of the Court of Justice of the European Union dated June 5, 2018 in case C-673/ 16, and non-compliance with it makes it possible to trigger an infringement procedure that can end with the conviction of Romania by the European court of contentions”.
The representatives of the MAI also said at the time that “a possible conviction has significant financial implications for the Romanian state”.
Currently, the pecuniary sanctions that can be proposed in the case of Romania, in infringement procedures, are penalties between 1,830 and 109,800 euros for each day of delay, as well as a minimum lump sum of 1,708,000 euros.
The Ministry of Internal Affairs also said that “according to the provisions of the normative act, persons who do not have Romanian citizenship, married on the territory of another European Union state to a Romanian citizen of the same sex, can request, if necessary, a visa to enter Romania, respectively of residence on the territory of our country, under the conditions of the law, with the reason being the continuation of family life with the Romanian citizen”.
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