CONCURRING OPINION OF JUDGES GARLICKI, HIRVELÄ AND VUČINIĆ

We concur with the finding that there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No 1. We also agree that it is not necessary to consider the complaint under Article 14 taken in conjunction with Article 8 of the Convention.

In our opinion, however, the Court ’ s position as to the question how this case is situated within the ambit of Article 8 has not been expressed in sufficiently clear terms. This is not a case of an occasional cohabitation offering no resemblance to patterns of family life. The domestic courts described the relationship in question as a “close, loving and monogamous relationship characterised by long-term sexual intimacy” (§ 5).

One of the issues here is whether such a relationship within a same-sex couple is embraced by the “family life” aspect of Article 8. The traditional answer of this Court has always been negative – as recently as in 2001, the Court reiterated its earlier position that same-sex relations should be addressed only under the “private life” aspect of Article 8 ( Mata Estevez v. Spain , dec.). Only this summer, in Schalk and Kopf v. Austria (judgment of 24.6.2010, § 96) and in P.B. and J.S. v. Austria (judgment of 22 July 2010, § 30 – not yet final), did the Court revise its position and, in the latter judgment, declare that “it considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy family life for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in de facto stable partnership, falls within the notion of family life, just as the relationship of a different-sex couple would”.

J.M. offered a good opportunity to contribute to the emerging change in our case-law. Regrettably, the majority chose to avoid taking a clear position. In paragraph 50 the Court observes that the case is related to situations that took place in 2001-2002 and 2006. The Court confirms that “the consensus among European States in favour of assimilating same-sex relationships to heterosexual relationship has undoubtedly strengthened since it examined the issue in 2001 in the Mata Estevez decision”. However, the Court did not find it necessary to “decide whether the facts of the case, which are virtually contemporaneous with those of Mata Estevez case itself, also fall within the ambit of Article 8 in its family life aspect”.

Judicial self-restraint is often a virtue, but not in cases in which courts should admit their own mistakes. It cannot be excluded that the Court was wrong already in Mata Estevez. In any case, we should not have refrained from unequivocal confirmation that today, in 2010, the notion of family life can no longer be restricted to heterosexual couples alone.