Last Updated on July 13, 2021 by LawEuro
Information Note on the Court’s case-law 253
July 2021
Fedotova and Others v. Russia – 40792/10, 30538/14 and 43439/14
Judgment 13.7.2021 [Section III]
Article 8
Positive obligations
Lack of any opportunity to have same-sex relationships formally acknowledged: violation
Facts – The applicants – three same-sex couples – gave notice of intended marriage to local departments of the Register Office. Their notices were rejected on the basis that the relevant domestic legislation referred to marriage as a “voluntary marital union between a man and a woman”, and thus precluded same-sex couples. The applicants appealed unsuccessfully. They complain before the Court of the lack of opportunity to have their relationships formally registered.
Law – Article 8:
The Court had to determine whether Russia, at the date of the analysis of the Court, had failed to comply with the positive obligation to ensure respect for the applicants’ private and family life, in particular through the provision of a legal framework allowing them to have their relationship recognised and protected under domestic law.
The applicants, as other same-sex couples, were not legally prevented from living together in couples as families. However, they had no means to have their relationship recognised by law. The domestic law provided for only one form of family unions – a different-sex marriage. Without formal acknowledgment, same-sex couples were prevented from accessing housing or financing programmes and from visiting their partners in hospital, they were deprived of guarantees in criminal proceedings (the right not to witness against the partner), and rights to inherit the property of the deceased partner. That situation created a conflict between the social reality of the applicants who lived in committed relationships based on mutual affection, and the law, which failed to protect the most regular of “needs” arising in the context of a same-sex couple. That conflict could result in serious daily obstacles for same-sex couples.
The Court took note of the Government’s assertion that the majority of Russians disapproved of same-sex unions. While popular sentiment might play a role in the Court’s assessment when it came to the justification on the grounds of social morals, there was a significant difference between giving way to popular support in favour of extending the scope of the Convention guarantees and a situation where that support was relied on in order to deny access of a significant part of the population to the fundamental right to respect for private and family life. It would be incompatible with the underlying values of the Convention, as an instrument of the European public order, if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority (see, mutatis mutandis, Alekseyev v. Russia; Bayev and Others v. Russia; Beizaras and Levickas v. Lithuania).
The interest in protecting minors from display of homosexuality to which the Government had referred was based on the domestic legal provision criticised by the Court in Bayev. That argument was not relevant to the present case and therefore could not be accepted by the Court.
The protection of “traditional marriage” stipulated by the amendments to the Russian Constitution in 2020 was in principle a weighty and legitimate interest, which might have positive effect in strengthening family unions. The Court, however, could not discern any risks for traditional marriage which the formal acknowledgment of same-sex unions might involve, since it did not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gave.
In the light of the above, the Court could not identify any prevailing community interest against which to balance the applicants’ interests. The respondent State had failed to justify the lack of any opportunity for the applicants to have their relationship formally acknowledged. A fair balance between competing interests had not therefore been struck in the case at hand.
The respondent Government had a margin of appreciation to choose the most appropriate form of registration of same-sex unions, taking into account its specific social and cultural context (for example, civil partnership, civil union, or social solidarity act). In the present case they had overstepped that margin, because no legal framework capable of protecting the applicants’ relationships as same-sex couples had been available under domestic law. Giving the applicants access to formal acknowledgment of their couples’ status in a form other than marriage would not be in conflict with the “traditional understanding of marriage” prevailing in Russia, or with the views of the majority to which the Government referred, as those views opposed only same-sex marriages, but they were not against other forms of legal acknowledgment which might exist.
Conclusion: violation (unanimously).
The Court also held, unanimously, that it was not necessary to examine the merits of the complaints under Article 14 in conjunction with Article 8, having regard to its finding under Article 8.
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.
(See also Alekseyev v. Russia, 4916/07 et al., 21 October 2010, Legal Summary; Bayev and Others v. Russia, 67667/09 et al., 20 June 2017, Legal Summary; Beizaras and Levickas v. Lithuania, 41288/15, 14 January 2020, Legal Summary)
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