ARTICLE
12 March 2024

Navigating Equality: Article 22 Of The Cypriot Constitution And Same-Sex Marriage Under European Law

MK
Michael Kyprianou Law Firm

Contributor

The firm, based in Cyprus, has an international presence. Its services include Dispute Resolution, Property, Shipping, Immigration, Commercial and Corporate Law. It is highly ranked by leading legal directories, including Legal500 and Chambers and regularly receives accolades from the Cyprus Government and international bodies, in recognition of its excellent service and commitment to the values of integrity, efficiency and professionalism.
Article 22 of the Cypriot Constitution, which enshrines the right to marry and to create a family, stands as a pillar of fundamental rights and freedom and lays the foundation...
European Union Government, Public Sector
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Article 22 of the Cypriot Constitution, which enshrines the right to marry and to create a family, stands as a pillar of fundamental rights and freedom and lays the foundation for the protection of individual rights within the framework of family life. This article states that: "Every person has the right to marry and create a family according to the law governing the relevant religious rites and procedures".

As can be seen, Article 22 of the Constitution does not define the terms "marriage" and "family". While the language of the provision does not explicitly mention the gender or sexual orientation of those seeking to marry, for many decades, the interpretation of Article 22 was deeply rooted in traditional norms and societal expectations and viewed marriage as a union solely between a man and a woman. This perspective marginalised the LGBTQ+ community, denying them the legal recognition and rights associated with marriage, thereby also denying them the fundamental right to marry and to create a family.

The legal landscape began to shift in the early 21st century as the European community embraced a more inclusive understanding of human rights and prohibited any form of direct or indirect discrimination based on sexual orientation or gender identity. Therefore, the reexamination and reinterpretation of Article 22 became crucial in aligning the Cypriot Constitution with the principles of equality and non-discrimination.

The European Convention on Human Rights and landmark judgments from the European Court of Human Rights (ΕCHR) played a pivotal role in urging member states, including Cyprus, to align their laws with the evolving standards of human rights. ECHR, referring to Article 9 of the Charter of Fundamental Rights of the EU, concluded that it can no longer be considered that the right to marry, also recognised in Article 12 of the European Convention on Human Rights, is limited to marriage between persons of the opposite sex.

Additionally, the European Parliament with its resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity (2013/2183(INI)) strongly condemns any discrimination on the basis of sexual orientation and gender identity, and strongly regrets that the fundamental rights of lesbian, gay, bisexual, transgender and intersex people are not yet always fully upheld in the European Union.

In response to these changing dynamics, Cyprus, in 2015, adopted the law on Civil Partnership (Law 184(I)/2015), providing a legal framework that acknowledges same-sex relationships and confers certain rights, mainly inheritance, to persons that enter into a Civil Partnership Agreement. This was a landmark moment, signifying a departure from traditional norms and an acknowledgment of the need for legal recognition for same-sex relationships.

However, this fell short of full recognition and equality as Law 184(I)/2015 is not extended to same-sex marriage. As a result, the Republic of Cyprus has no obligation to recognise a same-sex marriage that has been performed in another EU member state.

An opposing view contends that this marriage must be recognised in the Republic of Cyprus, as, according to European Law, once the right to marriage has been acknowledged in one EU member state, it cannot be arbitrarily denied by another. Thus, an EU member state is not permitted to refuse the status acquired by a European citizen in another EU member state.

As can be derived from the above, the recognition of marriage of same-sex couples is still a controversial issue in Cyprus. Nevertheless, whereas the European Union is founded on the values of respect for human dignity, freedom, democracy, equality and respect for human rights, including the rights of persons belonging to minorities, it follows that the right to marry should belong to all individuals.

In conclusion, until the late 20th century, same-sex relationships were largely marginalised, and any prospect of legal recognition seemed distant. In recent years, the global landscape has witnessed a remarkable transformation in societal attitudes towards same-sex relationships and same-sex marriages. The right to marry, irrespective of sexual orientation, reflects a broader societal shift towards inclusivity and equality, and must be seen as a fundamental human right that cannot be restricted or discriminated on the basis of sexual orientation and gender identity. The Republic of Cyprus, as an EU member state, has to fulfill its obligations under the EU Law and the Council of Europe Recommendation on Measures to Combat Discrimination on Grounds of Sexual Orientation or Gender Identity, and therefore Article 22 of the Cypriot Constitution should be interpreted in such way that it does not deprive any citizen the right to marry and to create a family.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

ARTICLE
12 March 2024

Navigating Equality: Article 22 Of The Cypriot Constitution And Same-Sex Marriage Under European Law

European Union Government, Public Sector

Contributor

The firm, based in Cyprus, has an international presence. Its services include Dispute Resolution, Property, Shipping, Immigration, Commercial and Corporate Law. It is highly ranked by leading legal directories, including Legal500 and Chambers and regularly receives accolades from the Cyprus Government and international bodies, in recognition of its excellent service and commitment to the values of integrity, efficiency and professionalism.
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