| Abstract: | 2013年，歐洲人權法院做出兩項積極之判決，對異性與同性伴侶之間的差別待遇畫出底線。在X and Others v. Austria與Vallianatos and Others v. Greece 判決後，共有七個締約國應修
正其涉及歧視之內國法。然而，目前僅奧地利完成符合公約之修正。而當西歐正辯論著同性伴侶是否應享有與異性伴侶全然相同之權利時，東歐則興起保衛傳統婚姻之運動。就家庭生活去性傾向歧視問題，歐洲呈現分裂狀態。對此，歐洲人權法院透過2013年的兩項判決，希望向締約國傳遞何種訊息？若考量歐洲人權法院在法官間對話上的實踐，這兩項判決結論或許並非純然出於法學分析。事實上兩項判決中，歐洲共識原則都獲得維繫，亦未推導出任何同性締結婚姻權。此外，歐洲人權法院並非唯一循此路線者，歐盟法院、德國及奧地利憲法法院，皆曾嘗試在婚姻與註冊伴侶制之間尋求平等。若是內國法院，尤其擔負合憲性審查者，願意跟進而循此途徑判決，如同美國各法院在聯邦最高法院United States v. Windsor 判決後所為，或許不失為翻轉國會立法怠惰的方式。歐洲人權法院2015年最新判決，Oliari and Others v. Italy，亦驗證以上推論。該判決反映國際與國內司法審查機構的相互支持。透過這項眾所矚目的判決，歐洲人權法院堅決維護義大利憲法法院權威與法治國原則。歐洲人權法院或許短期內很難出現如美國之Obergefell v. Hodges判決，但透過司法敦促立法檢討，則應構成當下可行之道。
In 2013, the European Court of Human Rights has made two audacious decisions to draw a bottom line on the difference in treatments between opposite-sex and same-sex couples. Following X and Others v. Austria and Vallianatos and Others v. Greece judgements, seven countries were expected
to modify their discriminatory domestic laws. However, only Austria has yet made it to comply with the Strasbourg norm. Furthermore, while debates on whether same-sex couples, once legally recognised, should enjoy exactly the same rights as opposite-sex couples in Western Europe, movements defending traditional marriage seem to be on the rise in Eastern countries. Facing a Europe divided on a right of family life without discrimination on the ground of sexual orientation, what
king of messages did the Strasbourg Court wish to send to its 47 member States though its both 2013 judgments? The decisions should not have been made purely upon legal analysis, taking into account of the Strasbourg practices of dialogue between judges. Actually the principle of European consensus has been maintained in both Strasbourg decisions, and there is still no such right to marriage
accessible to all. Besides, the Strasbourg judges are not
isolated, at least there are German and Austrian constitutional courts that have also been trying to equalise marriage and registered partnership. If national courts, especially organs in charge of constitutionality review, are willing to follow the decisions, as it did happen in the U.S. after the Supreme Court‘s United States v. Windsor decision, it can be a solution while the legislators are reluctant to change. Furthermore, in the 2015 Strasbourg judgement of Oliari and Others v. Italy, a mutual support of judicial review instances has taken place. Through this remarkable decision, the Strasbourg Court insists on the authority of
Italian Constitutional Court and the rule of law principle. Europe might not see its own version of Obergefell v. Hodges any soon, but it is feasible for the judicial power to urge the legislators to move forwards. |
