Estonia, Legislation

The circuit court found that in the procedure for the issuance of a fixed-term residence permit the plaintiffs and their partners were given ungroundedly worse treatment than people of different sex, for whom the possibility to get married exists, a spokesperson for courts said. Since the family life of same-sex couples and couples of different sex is protected equally under the Constitution, the circuit could saw no sensible or relevant cause for such unequal treatment.

The circuit court also found, however, that the claims for the compensation of non-material damage caused by the failure to provide the implementing provisions of the Registered Partnership Act are not grounded. Specifically, the court found that the infringement caused by the failure to provide the implementing provisions cannot be considered excessively intense considering the situation of the plaintiffs.

The circuit court found that the state has provided same-sex couples with the possibility to enter into a registered partnership but has thus far failed to ensure the possibility to realize the rights arising from the partnership agreement. The Aliens Act sets out the possibility to issue a residence permit to a person taking up residence with their spouse, but provides no legal basis for the issuance of a residence permit to take up residence with one's partner in a registered partnership.

Failure to adopt the implementing provisions of the Registered Partnership Act has created a situation where state institutions do not recognize cohabiting people of the same sex as constituting a family and treat them differently from heterosexual couples, who can enter into a marriage and obtain a residence permit for taking up residence with their spouse.

The circuit court forwarded the decision made on Monday to the Supreme Court, which is entitled to deem invalid a provision of the law that is anti-constitutional.

The Supreme Court of Estonia found last year that the protection of family life has not been made conditional on the gender of family members or their sexual orientation. Even though the state may in certain cases preclude the right of a person to live with their family member in Estonia, cohabiting same-sex partners are entitled to the protection of the state and restriction of their rights must not run counter to the ban on discrimination and must be necessary in a democratic society, the top court said.

The stance of the Supreme Court is decisive in disputes over the constitutionality of a provision of the law.