The Estonian Supreme Court has said that its June 21 decision regarding the Aliens Act 2009 does not facilitate same-sex marriage, contrary to claims made by finance minister Martin Helme (EKRE). The court however stressed the act contained a section which was unconstitutional, in failing to provide adequate rights to such couples, agreeing with an earlier Circuit Court decision. This section has been repealed.
The Supreme Court stated that its decision did not concern same-sex marriage, meaning Helme's statement, made to daily Postimees, that the decision on the act meant partners of the same sex also have access to legal marriage in Estonia was erroneous and misleading, BNS reports.
The court deemed unconstitutional and invalid a section in the aliens act which rules out granting a temporary residence permit to an Estonian citizen's registered same-sex partner. In this, it concurred with an earlier ruling by the second-tier Circuit Court.
Based on the principles of human dignity and equal treatment in the constitution, the Supreme Court found that the fundamental right to family life also covers the rights of same-sex partners, married or otherwise, to live as a family in Estonia, but does not facilitate same-sex marriage in Estonia itself.
The court said it focused on registered life partners in the light of the Registered Partnership Act 2014, recognizing the right of same-sex couples, as well as opposite-sex couples, to enter into a registered partnership contract (as opposed to a marriage).
No reference to gender in registered partnership act
§1 (1) and (2) of the 2014 act states that two "natural persons", adults of legal capacity, at least one of whom has Estonian residence, may enter into a registered partnership contract. It makes no reference to gender.
Regarding the validity of same-sex marriages conducted in another country, in Estonia, the court said that its June 21 was not related to this either.
That said, it noted that in such cases, a temporary right of residence for the same-sex marriage partner of an EU citizen would apply, under the same right of residence that applies to any other family member of an EU citizen.
In other words, a temporary right of residence could be extended to a same-sex marriage partner in such instances, but this did not change anything regarding the status of said marriage in Estonia.
Precedents in Estonia and at the ECHR
According to the Supreme Court's own site, the June 21 "... judgment of the Supreme Court en banc declared the part of the aliens act that precludes granting temporary residence permits to same-sex registered partners of Estonian citizens for leading family life in Estonia unconstitutional and invalid."
The court noted two cases where the Police and Border Guard Board (PPA) had granted temporary residence permits to the registered partners of Estonian citizens who wished to settle in Estonia. The granting of the two temporary residence permits had been contested by appellants.
The Circuit Court had already ruled the aliens act unconstitutional on this score, as it did not include a legal basis for granting temporary residence permits in such situations, which in turn led to the constitutional review proceedings at the Supreme Court.
In its decision, the Supreme Court also took into account the European Convention for the Protection of Human Rights and Fundamental Freedoms and precedents at the European Court of Human Rights (ECHR).
The latter had repeatedly found that same-sex couples can live in a stable and committed relationship in the same way that opposite-sex couples might, and thus they are equally entitled to the protection of family life.
Martin Helme said in a Postimees interview published on Wednesday that the ECHR was superfluous to requirements in Estonia, and that domestic courts could adequately uphold human rights in the country. He also stated that the judiciary, and in particular the Supreme Court, was a politically-oriented body.
Getting temporary residence on other grounds not sufficient safeguard to human rights
While same-sex partners of Estonian citizens can apply for residence permits on other grounds (for instance employment), this does not provide them sufficient safeguards towards leading a stable family life in Estonia, the court found, thus the court repealed the offending section of the aliens act.
The court also noted the balancing act between protecting private and family life of those moving to Estonia from elsewhere (referred to as "foreigners" in the court press release but presumably meaning third country, non-EU citizens primarily) and the safeguarding of internal stability and security on behalf of the Estonian populace, and in accord with the constitution.
Editor: Andrew Whyte