Background

In Fedotova and Others v Russia [2023] ECHR 55, the six applicants formed three same-sex couples: two female and one male. On various dates, they gave notice of marriage to their local departments of the Register Office, but their notices were rejected. The authorities relied on Article 1 of the Russian Family Code, which defines marriage as a “voluntary marital union between a man and a woman”: since the applicant couples were not made up of “a man and a woman”, the authorities ruled that their notices of marriage could not be processed [24 & 25].

A Chamber of the Third Section ECtHR joined the three applications, and in a judgment on 13 July 2021 declared them admissible. It held that there had been a violation of Article 8 (private and family life) and found that there was no need to examine the merits of the complaints under Article 14 (discrimination) taken in conjunction with Article 8. The judgment was unanimous – including the Russian judge, Dedov. The Russian Federation appealed [6 & 7].

The arguments

Before the Grand Chamber, the applicants relied, inter alia, on Articles 8, 12 (right to marry and found a family) and 14. They had been in stable relationships as same-sex couples and Article 8 was therefore applicable under the head of both “private life” and “family life”, in accordance with the Court’s case-law. They submitted that Russia had a positive obligation to put in place a legal alternative to marriage enabling them to exercise their Article 8 rights. Such an alternative could take the form of a civil partnership, a civil union, a civil solidarity agreement or any other arrangement, provided that same-sex couples were in a similar position to that of married different-sex couples [103].

The Russian Government countered that the right to respect for private and family life was interpreted by the Russian Federation on the basis of Article 12, which provided that the exercise of the right to marry and to found a family

“is governed by national law, and on the unequivocal position of the European Court of Human Rights that the right to marry only refers to a union between a man and a woman, which cannot be construed as inhibiting the rights of LGBT persons and consequently does not constitute discrimination and call for an increase of these rights” [48].

Further, it considered itself bound only by the provisions of the Convention itself, “and not by the decisions of the European Court of Human Rights in respect of other member states” [48] given that at the time of signing the Convention, the Contracting Parties had not intended to grant two persons of the same sex the right to marry, such a right, as matters stood, remained at the discretion of the individual State. To change that would require a new agreement – for example, a new Protocol to the Convention – providing specifically for the right to same-sex marriage. Such an agreement could also include an obligation for the signatory States to provide for other forms of recognition of same-sex relationships [111] It called on the Court to adopt the same approach as it had in Oliari and Others v Italy [2015] ECHR 716 and to have regard to the attitudes in Russian society towards same-sex couples [118].

The judgment

Citing Oliari and Orlandi and Others v Italy [2017] ECHR 1153, the Grand Chamber said that it was evident from the Court’s case-law that Article 8 had already been interpreted as requiring states parties to ensure legal recognition and protection for same-sex couples by putting in place a “specific legal framework” – though Article 8 had not, to date, been interpreted as imposing a positive obligation to make marriage available to same-sex couples [164 & 165].

Having regard to the case-law “as consolidated by a clear ongoing trend within the member states of the Council of Europe”, the Grand Chamber confirmed that, in accordance with their positive obligations under Article 8, member states were “required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship” [178]. As a result, their margin of appreciation was “significantly reduced when it comes to affording same-sex couples the possibility of legal recognition and protection” [187], though they had “a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available” [188]. Though there was a clear ongoing trend emerging towards legal recognition and protection for same-sex couples, there was no similar consensus as to the form that such recognition should take, so it was above all “for the Contracting States to decide on the measures necessary to secure the Convention rights to everyone within their ‘jurisdiction’, and it is not for the Court itself to determine the legal regime to be accorded to same-sex couples” [189].

Russia had not informed the Court of any intention to amend its domestic law to give same-sex couples official recognition and a legal regime offering protection. On the contrary, it had argued that the fact that it was impossible for same-sex couples to be granted legal recognition and protection “was compatible with Article 8 of the Convention and was justified in order to safeguard what they claimed to be prevailing interests” [194]. Further, the protection of the traditional family based on the union between a man and a woman had recently been consolidated by the 2020 reform of the Russian Constitution [194]. The situation in Russia differed markedly, therefore, from the situation in a substantial number of member states that had sought to amend their domestic law to give effective protection to the private and family life of same-sex partners [195].

There was no basis for considering that giving legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm the position of opposite-sex couples from marrying or founding a family “corresponding to their conception of that term” [212].

In brief, the Court held that Russia had overstepped its margin of appreciation and had failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life [224].

The Grand Chamber:held unanimously that it had jurisdiction to deal with the applicants’ complaints in so far as they related what had taken place before 16 September 2022;

• by sixteen votes to one, decided to strike out the applications of two of the applicants and examine the cases of the others;
• by sixteen votes to one, dismissed the Government’s preliminary objections;
• by fourteen votes to three, held that there had been a violation of Article 8 of the Convention;
• by thirteen votes to four, held that there was no need to examine separately the complaint under Article 14 taken in conjunction with Article 8;
• by fifteen votes to two, held that the finding of a violation of the Convention was sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants; and
• by sixteen votes to one, dismissed the remainder of the applicants’ claims for just satisfaction.

Comment

The case has given rise to an interesting debate on Verfassungsblog. Zuzana Vikarská criticises the decision for creating a “new right” and for being “the most political ruling ever”. (She also wonders – as do I – why there was a Russian judge sitting in the Grand Chamber when Russia had ceased to be a member of the Council of Europe on 16 March 2022 and the hearing took place on 27 April.)

Eduardo Gill-Pedro, on the other hand, is not convinced by Vikarská’s conclusion that a new right has been created, and while he agrees with her that the decision is of great political importance, he believes that it was the right one to make.

On balance, I am inclined to agree with Gill-Pedro. My understanding of Orlandi and Oliari is that they made it clear that states parties should provide a proper legal status for those who wished to enter same-sex unions: not necessarily “marriage”, but at least some mechanism that established a recognised legal relationship.

While I take Vikarská’s point that “Instead of the European consensus required in previous cases, in Fedotova the Court settled for a lower threshold of a clear ongoing trend observed in slightly less than two-thirds of the contracting States”, I am not convinced that Russia’s lack of interest in implementing the Court’s judgments “poses a risk to the Court’s legitimacy”, for two reasons:

– Courts have to do what courts have to do: to judge the causes before them “without fear or favour, affection or ill-will”. They are there primarily to declare the law as it affects the parties: is enforcement really their concern?

– In the present case, Russia is no longer a member of the Council of Europe, so there was no obvious purpose in the Grand Chamber attempting to accommodate Russian political sensibilities – even if there was a very remote possibility that it might have done so had Russia still been a member. What practical purpose would that have served?