The absence of a legal framework for the official recognition of same-sex couples violated their right to respect for their private and family life!
JUDGMENT
Fedotova and others v. Russia 13.07.202 ( app. no. 40792/10, 30538/14 and 43439/14)
SUMMARY
Refusal to register the notice of marry from Russia because the couples were same-sex. Private and family life.
The ECtHR found that Russia had an obligation to ensure that the applicants’ privacy and family life were respected, providing a legal framework that allowed their relationship to be recognized and protected under national law. The lack of opportunity for same-sex couples to have their relationship officially recognized has created a conflict between the applicants’ social reality and the law. The court rejected the government’s argument that the interests of the community as a whole could justify the lack of opportunity for same-sex couples to formalize their relationship. The ECtHR concluded that the Russian authorities, by refusing access to official recognition of the same-sex relationship, had exceeded the discretion they enjoyed.
According to the Court, the choice of the most appropriate form of official recognition of the relations of homosexual couples remains at the discretion of the state.
The ECtHR found a violation of the right to respect for private and family life (Article 8 of the ECHR).
PROVISION
Article 8
PRINCIPAL FACTS
The applicants, Irina Fedotova, Irina Shipitko, Dmitriy Chunosov, Yaroslav Yevtushenko, Ilmira
Shaykhraznova and Yelena Yakovleva, are Russian nationals who were born between 1977 and 1994.
They live in various parts of the Russian Federation, Luxembourg and Germany. They are three
same-sex couples.
On various dates the applicants gave notice of their intention to marry at their local registry offices
in Russia. Their applications were rejected. The applicants challenged those decisions in the courts.
Ms Fedotova and Ms Shipitko argued before the Tverskoy District Court of Moscow that the refusal
to accept their notice to marry had violated their rights under the Constitution and the Convention.
Their claim was dismissed because, among other things, the court found that marriage had to have
the “voluntary consent of a man and a woman” and that neither the Constitution nor international
law imposed any obligations in respect of same-sex marriage. That decision was upheld on appeal.
Mr Chunusov and Mr Yevtushenko made similar arguments before the Gryazi Town Court in the
Lipetsk Region. The court determined that the registry office had unlawfully not examined the
application, as under Russia law each notice of intention to marry had to be examined individually.
However, it held that under the Constitution and Russian case-law, there was no right to same-sex marriage; nor was one conferred by the Convention. That decision was upheld on appeal, with the
applicants being refused leave to appeal in cassation.
Ms Shaykhraznova and Ms Yakovleva made similar arguments also before the Gryazi Town Court.
The court found that the registry office had examined the applicants’ notice individually, with the
reasoning much the same as in Mr Chunusov’s and Mr Yevtushenko’s case. That decision was upheld
on appeal and following a cassation appeal.
Relying on Articles 8 (right to respect for private and family life) and 14 (prohibition of
discrimination), the applicants complained, in particular, that they had been discriminated against
on the grounds of their sexual orientation because they had no means of securing a legal basis for
their relationship as it was impossible for them to enter into marriage or any other formal union.
THE DECISION OF THE COURT…
Article 8
The Court reiterated that Article 8 did not explicitly impose on States an obligation to formally
acknowledge same-sex unions. However, it implied a need to strike a fair balance between the
competing interests of same-sex couples and the community as a whole. There was also a positive
obligation to set up a legal framework guaranteeing the effective enjoyment of the rights enshrined
in Article 8. The Court noted in particular the impact on an individual when there is a discordance
between the law and social reality, as in the present case.
As regards same-sex couples, the Court reaffirmed that they were just as capable as different-sex
couples of entering into committed relationships, with a need for formal acknowledgment and
protection of their relationship. It was incumbent on the States to take that into account, and to
strike a balance between their needs and those of community at large. The Court determined that
there was no justification for the applicants’ not being able to place their unions on a legal footing.
In particular, regarding the argument that a majority of Russians disapprove of same-sex unions, the
Court stated that access to rights for a minority could not be dependent on the acceptance of the
majority. The Court furthermore reiterated that 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, were not against
other forms of legal acknowledgment.
As a result, the Court held that Russia had failed to meet its obligations under Article 8, leading to a
violation of the Convention.
Other articles
Owing to the judgment under Article 8, it was not necessary to examine the complaint under Article
14 in conjunction with Article 8.
Separate opinions
Judges Lemmens and Zund expressed a joint partly dissenting opinion.
