Positive obligations<\/strong><\/p>\nLack of any opportunity to have same-sex relationships formally acknowledged: violation<\/p>\n
Facts \u2013 The applicants \u2013 three same-sex couples \u2013 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 \u201cvoluntary marital union between a man and a woman\u201d, 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.<\/p>\n
Law \u2013 Article 8:<\/p>\n
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\u2019 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.<\/p>\n
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 \u2013 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 \u201cneeds\u201d arising in the context of a same-sex couple. That conflict could result in serious daily obstacles for same-sex couples.<\/p>\n
The Court took note of the Government\u2019s assertion that the majority of Russians disapproved of same-sex unions. While popular sentiment might play a role in the Court\u2019s 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).<\/p>\n
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.<\/p>\n
The protection of \u201ctraditional marriage\u201d 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.<\/p>\n
In the light of the above, the Court could not identify any prevailing community interest against which to balance the applicants\u2019 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.<\/p>\n
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\u2019 relationships as same-sex couples had been available under domestic law. Giving the applicants access to formal acknowledgment of their couples\u2019 status in a form other than marriage would not be in conflict with the \u201ctraditional understanding of marriage\u201d 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.<\/p>\n
Conclusion: violation (unanimously).<\/p>\n
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.<\/p>\n
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of non-pecuniary damage.<\/p>\n
(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)<\/p>\n