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Constitutional Court lifts Office-Room-Compulsion | Austria


In a judgment delivered last week (VfGH 19.06.2013, G 18, 19/2013) the Austrian Constitutional Court has struck down the statutory prohibition on performing registered partnerships outside the authority´s office-rooms. The governing coalition of Social- and Christian-Democrats however had again inserted such a prohibtion into a new law coming into force next fall. Thus the office-room-compulsion will be reintroduced by 1 November 2013 and the Christian-Democrats - despite the Consitutional Court´s judgment - do insist on this reintroduction. Rechtskomitee LAMBDA (RKL), Austria’s LGBT civil rights organisation, denounces this as unbearable chicanery.

RKL-Secretary General Walter Dietz and his partner Boontawee Suttasom are living in Vienna and have been a couple for over 17 years. Manfred Hörmann and Felix Moser have been a couple for many years and are jointly running a farm in Stallhofen in Styria. Both couples had applied for the performance of a registered partnership like a “dream wedding” as it is offered to marrying couples, namely by a wedding vow in front of witnesses on the Vienna Giant Ferris Wheel and their own farm.

Austrian federal law prohibits the formation of registered partnerships outside the authority´s office-rooms (only exception: prisoners!), like in the Giant Ferris Wheel, in a hotel, a castle or on a farm; there civil servants are only allowed to hand over the documents (after the formation of the partnership within the office-rooms).

Both couples´ applications have been rejected and the case went up to the Constitutional Court, which agreed with the applicants in a decision of last December (VfGH 12.12.12, B 125/11, B 138/11). Also same-sex couples enjoy the protection of family life under the European Convention of Human Rights and differences between marriage and registered partnership can only be justified by particularly serious reasons, the Constitutional Court said in its decision taken on a wedding-dreamdate (12.12.12).

Worldwide unique discrimination

The 14 constitutional judges back then could find no reasonable justification for the exclusion of a wedding vow and of witnesses. Neither could they find a basis for this legal practice in the legislation. They therefore ordered that authorities, with immediate effect, have to apply the same ceremony for registered partnerships as for marriages (including the wedding vow, the dictum that the partners, after the vow, are lawfully bonded spouses or registered partners, and, if the couples so wish, including witnesses). Also for office-room-compulsion the Constitutional Court could find no reasonable justification. In no other area authorities are obliged to confine their administrative acts to their office-rooms, the Court said and initiated proceedings to repeal this law.

These proceedings ended last week when the Constitutional Court´s judgment has been delivered. The court with immediate effect struck down the office-room-compulsion. The ceremony, the judges said, are of symbolic value for couples which is why the modalities for performing marriages and registered partnerships, in the absence of particularly serious reasons justifying differences, have to be equal (VfGH 19.06.2013, G 18, 19/2013).

The office-room-compulsion is an Austrian anomaly. No other country in the world ever applied such discrimination. Nevertheless the federal governing coalition just last December has inserted this compulsion again into a new law, which will enter into force by 1 November 2013. Until then registered partnerships maybe performed outside the office-rooms. After 1 November the new law puts an end to this freedom and the office-room-compulsion will apply again.

Christian-Democrats insist on reintroduction

After the Constitutional Court´s judgment the Social-Democrats in the final session of federal parliament´s first chamber (Nationalrat) before next September´s federal elections treid to get the office-room-compulsion to be deleted from the new statute passed last December. But the Christian-Democrats stubbornly refused and insisted on the human-rights-violating provision. Performing registered partnerships outside the office-rooms will therefore be banned again as of 1 November 2013.

„How much joy can people find in discriminating other people“, asks Dr. Helmut Graupner, president of Austria’s LGBT civil rights organisation Rechtskomitee LAMBDA (RKL) and counsel of the applicants, “The couples will have to go to the Constitutional Court a second time to get rid also of the new law”. "An unbearable chicanery", Graupner says.

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