The ECHR and Positive Obligation to Recognise Same-Sex Unions: Fedotova v. Russia
On the 17th of January, the European Court of Human Rights delivered its final judgment on the case Fedotova and others v. Russia. The issue brought by the applicants concerned the Russian government denied the possibility for three same-sex couples to marry: Ms I. Fedotova and Ms I. Shipitko, Mr D. Chunusov and Mr Y. Yevtushenko, Ms I. Shaykhraznova and Ms Y. Yakovleva. This was on the grounds that marriage, per the Russian State, shall only be considered the “voluntary marital union between a man and a woman” (Fedotova and others v. Russia, hereinafter “Fedotova”, para. 24).
The couple claimed the violation of Article 8 – which protects the human right to the respect for private and family life – and Article 14 – which prohibits any form of discrimination. Quite surprisingly, they omitted any claim concerning the violation of Article 12, which specifically protects the right to marry, a choice which may also well depend on procedural aspects, or on the judge’s failure to accept its coverage (Poppelwell-Scevak, 2021). The Court upheld the applicants’ claim under Article 8, asserting that Russia “failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life” (Fedotova, para. 224), while it held that Article 14 did not deserve further discussion.
In this article, a brief analysis will be undertaken on the most relevant lines of reasoning that the Court has adopted to reach its final conclusion and which are the most interesting aspects. Following that, a short search of the significance of this judgment will be accounted for in the present judgment, while confirming an already clear inclination in favour of the full recognition of human rights to same-sex couples, also introducing new elements in comparison to previous similar judgments.
Figure 1: The Fedotova v. Russia judgment could pose an important precedent for same-sex couples' rights (Stringer, 2021).
As previously noted, the applicants are six Russian nationals who have claimed the violation of Articles 8 and 14 of the European Convention, after being denied in 2009 and 2013 the possibility to engage in marriage under Russian law. The legal basis adduced by the domestic courts centred mainly on the Russian Family Code, a domestic legal source which extends its competence exclusively to the so-called “traditional family“ and which has already largely been referred to as a driving force for the judicial acceptance of sexual orientation-based discriminations (Zhabenko, 2019).
The Russian Constitutional Court, in the following years, has confirmed the constitutional legitimacy of such an approach on several occasions, unfolding one of the numerous aspects under which an almost irreconcilable fracture between the interpretation of domestic norms and the values protected by the European Convention of Human Rights can be observed (Kahn, 2019). On the contrary, the Court identified as the main sources supporting the existence of a positive obligation of extending the right to a form of legal recognition to same-sex couples: the case law of the Court of Justice of the European Union (CJEU), the Resolution on LGBTIQ rights in the EU, adopted by the European Parliament and the normative framework of the Inter-American Court of Human Rights (Fedotova, paras. 48, 59, 62 and 63).
Turning to the merits of the case, the Court merely addressed the alleged violation of Article 8 of the European Convention of Human Rights, investigating first and foremost whether a positive obligation to provide legal recognition and protection to same-sex couples exists under the Convention. Aside from the Court’s previous case law, which will be observed in the following paragraphs, the Court affirmed that its interpretation of the values and principles of the Convention shall be observant of the legislative and jurisprudential development of its State Parties, highlighting the existence, among these, of “an ongoing trend towards legal recognition and protection of same-sex couples“ (Fedotova, para. 171). The judges state that the States Parties currently providing for the possibility of legal recognition of same-sex couples are thirteen, among which twelve States have introduced forms of recognition alternative to marriage.
On these bases and taking into account indications from competent authorities such as the Council of Europe, the Court concludes that member States are, indeed, held to positively take action to protect the rights of same-sex couples (Fedotova, para. 178). The focus, therefore, turned to where Russia could be considered to have acted in fulfilment of a such obligation. And the answer was, inevitably, negative. The Court specifically considered how the defendant State had never even attempted to express an intention to positively intervene to recognise a legal framework for such a purpose.
The most interesting passages, however, concerned the way in which the Court dealt with the three arguments put forward by Russia as a justification for its failure to act: a) the protection of the traditional family; b) the feelings expressed by the majority of the Russian population; c) the protection of minors from the display of homosexuality. The judges failed to consider any of these claims as an impediment to the recognition of the aforementioned violation, setting a very solid point in excluding that a moral position, even when majoritarian can never be a legitimate basis for posing a threat to the enjoyment of human rights. Most specifically, the Court affirmed that “traditions, stereotypes and prevailing social attitudes in a particular country cannot, by themselves, be considered to amount to a sufficient justification for a difference in treatment based on sexual orientation“ (Fedotova, para. 218).
In relation to the last claim made by Russia, concerning the protection of minors, the judges were firm in condemning the inherent vice which lied in the premises, stating that the existence of "a predisposed bias on the part of the heterosexual majority against the homosexual minority ... incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society” (Fedotova, para. 224).
A “Revolutionary” Decision?
Fedotova v. Russia has received well-deserved attention and diffuse excitement, being cited as “historic” (Johnson, 2021), but also some disillusion, being referred to as too “timid” in its conclusions (Poppelwell-Scevak, 2021) and as a mere duplication - albeit this meaning it also shall be considered a reinforcement - of the most notable precedent on the subject of same-sex unions, Oliari v. Italy (Gill-Pedro, 2023). The Oliari v. Italy judgment, which depicted a very similar case in the facts, concerning a same-sex family being denied legal recognition by the Italian government, had arrived at very similar conclusions.
The argumentative process put forward by the judges, however, differed significantly: such judgment – the importance of which is beyond dispute, since it determined the adoption by the Italian government of a legal framework recognising a form of formal union for same-sex couples – was highly based on the consensus demonstrated by the political and social Italian landscape towards the matter of same-sex unions. Fedotova v. Russia, instead, moved from the very opposite starting point, with Russia putting forward documental evidence which manifested a contrary consensus towards the matter.
In this sense, the question raised in Oliari, namely whether the positive obligation only stands where the social opinion on recognition of same-sex unions is favourable, is answered negatively. This passage represents the main innovative passage of the judgment, along with the precise indication that Russia’s positive obligation may not resolve itself in the mere recognition of a formal existence, but shall consist of a substantial and valuable intervention (Palazzo, 2023).
Some points still remain in need of further clarification, such as the role of a margin of appreciation and, even more, the concrete extension of the positive obligation enshrined by the Court (Fedele, 2021). Russia's negligence towards the subject was so blatant that the Court was not even given the opportunity to give an indication of the extent to which an existing legal framework may be considered sufficiently "valuable" to fulfil the newly affirmed positive obligation on Member States to protect same-sex couples' right to receive legal recognition. Nonetheless, some aspects of the case offer some insights that may be useful for future situations and, for the moment, the Court has demonstrated the intention to stand still on same-sex couples' rights.
European Court of Human Rights. Fedotova and others v. Russia. (Applications nos. 40792/10, 30538/14 and 43439/14). 17 January 2023.
European Parliament. (2022). Resolution on LGBTIQ rights in the EU (2021/2679 (RSP)).
Fedele, G. (2021). The (Gay) Elephant in the Room: Is there a Positive Obligation to Legally Recognise Same-Sex Unions after Fedotova v. Russia? Ejil!Talk. https://www.ejiltalk.org/the-gay-elephant-in-the-room-is-there-a-positive-obligation-to-legally-recognise-same-sex-unions-after-fedotova-v-russia/
Gill-Pedro, Eduardo. (2023). No New Rights in Fedotova. VerfBlog, 2023/1/27. https://verfassungsblog.de/no-new-rights-in-fedotova/, DOI: 10.17176/20230130-202753-0.
Johnson, P. (2021). Russia must legally recognise same-sex relationships says European Court of Human Rights. ECHR Sexual Orientation Blog. http://echrso.blogspot.com/2021/07/russia-must-legally-recognise-same-sex.html
Kahn, J. (2019). The Relationship between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St Petersburg. The European Journal of International Law, 30(3): 933–959. https://academic.oup.com/ejil/article/30/3/933/5673314
Palazzo, N. (2023). Un diritto alle unioni registrate per coppie dello stesso sesso? Analisi di una recente sentenza della Corte EDU. DPCE Online. https://www.dpceonline.it/index.php/dpceonline/article/download/1757/1761
Poppelwell-Scevak, C. (2021). Here we go again? Is Fedotova and others just splitting hairs when it comes to same-sex couples? Strasbourg Observers. https://strasbourgobservers.com/2021/10/05/here-we-go-again-is-fedotova-and-others-just-splitting-hairs-when-it-comes-to-same-sex-couples/
Zhabenko, J. (2019). Russian lesbian mothers: Between “traditional values” and human rights. Journal of Lesbian Studies, 23(3): 321-335.
Cover Figure: AFP. (2018). Moscow Pride [Photograph]. Retrieved from https://1.bp.blogspot.com/-2eobxX8MIA4/YO4aws7OGFI/AAAAAAAACrk/swC_c7PdvOULeJO-SLRY7ZupgzgXx60xwCLcBGAsYHQ/s1536/russia-lgbt.jpg
Figure 1: Stringer. (2021). LGBT Russia [Photograph]. Retrieved from https://www.nbcnews.com/feature/nbc-out/russian-voters-back-referendum-banning-same-sex-marriage-n1232802
Figure 2: Unknown. (2020). The European Court of Human Rights [Photograph]. Retrieved from https://www.coe.int/it/web/portal/full-news/-/asset_publisher/y5xQt7QdunzT/content/coronavirus-exceptional-measures-at-the-european-court-of-human-rights?_101_INSTANCE_y5xQt7QdunzT_languageId=en_GB
Figure 3: Unknown. (2016). Civil Unions [Photograph]. Retrieved from https://www.centrostudilivatino.it/legge-sulle-unioni-civili-sindaci-e-ipotesi-di-obiezione-di-coscienza-2/