Russia must legally recognise same-sex relationships says European Court of Human Rights
The case concerns a lack of opportunity for the applicants, three same-sex couples, to have their relationships formally registered in Russia, which, they claimed, amounted to discrimination against them on the grounds of their sexual orientation. I wrote about the case here in 2016 when the Court communicated it.
In today's historic judgment, the Court has held that the lack of any opportunity to have same-sex relationships formally acknowledged in Russia is a violation of Article 8 of the European Convention on Human Rights.
The facts
On various dates between 2009 and 2013 the applicants, three same-sex couples, gave notice of their intended marriages to their local departments of the Register Office.
These notices were dismissed by the authorities, who relied on Article 1 of the Russian Family Code, which referred to marriage as a “voluntary marital union between a man and a woman”. Since the couples were not made up of “a man and a woman”, their applications for marriage could not be processed.
The applicants unsuccessfully challenged these decisions in the domestic courts.
Complaints to the Court
The applicants complained to the Court 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 relationships as it was impossible for them to enter into marriage.
The applicants also complained that they had no other possibility to gain formal acknowledgment for their relationships.
They relied on Article 8 of the Convention alone, and on Article 14 taken in conjunction with Article 8 of the Convention.
Admissibility
The Government claimed that the applicants’ complaints were manifestly ill-founded. The Government stated that the domestic courts ruled against the applicants to protect “interests of a traditional family unit”, which is subject to the special protection by the State. They also stated that a marriage is a “historically determined union between a person of male and a person of female sex, which regulates relationship between the two sexes and determines a status of a child in society”.
The Government argued that legal issues related to same-sex unions raise a number of legal disputes in Europe and there is no consensus regarding the formal acknowledgment of same-sex unions. The regulation of the matter should therefore be left to the Contracting State. They argued that the legal practice in European countries should not influence Russia, which should be given an opportunity to develop its policy in line with its traditional understanding of marriage and its unique historical path.
The Government further claimed that the formal acknowledgment of same-sex unions would be contrary to the crucial principle of protecting minors from the promotion of homosexuality. It may harm their health, morals and create in them “a distorted image of the social equivalence of traditional and non-traditional marital relations”.
In this respect the Government quoted research, by the Russian Public Opinion Research Center in 2015, that found that 15% of Russian population considered that homosexuals were ordinary people, but preferred not to have any contacts with them; 20% believed that homosexuality was a medical disease; 15% considered homosexuality to be “a social disease”; and 20% treated homosexuals as dangerous people which should be isolated from society. The number of people who were opposed to same-sex marriages increased from 38% in 1995 to 80% in 2015.
The Court paid no attention to these arguments by the Government at this stage. It simply stated that the facts of the case fell within the scope of the applicants’ “private life” and “family life” within the meaning of Article 8 of the Convention and, since the complaints were neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention, must therefore be declared admissible.
Merits
General principles
The Court began its consideration by stating that Article 8 of the Convention may impose on a State certain positive obligations to ensure effective respect for the rights protected by this Article. It added that the notion of “respect” is not clear-cut, especially as far as positive obligations are concerned and that the notion’s requirements will vary considerably from case to case. Nonetheless, the Court stated that certain factors have been considered relevant for the assessment of the content of those positive obligations on States including, of relevance to this case, a situation where there is "discordance between social reality and the law" (§ 45).
The Court recalled that the principles applicable to assessing a State’s positive and negative obligations under the Convention are similar. Regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Moreover, in implementing their positive obligations under Article 8 the States enjoy a certain margin of appreciation and a number of factors must be taken into account when determining the breadth of that margin. In the context of “private life” the Court recalled that it has considered that where a particularly important facet of an individual’s existence or identity is at stake the margin allowed to the State will be restricted.
The Court recalled its settled jurisprudence that same-sex couples are just as capable as different-sex couples of entering into committed relationships. As such, they are in a relevantly similar situation to a different-sex couple as regards their need for formal acknowledgment and protection of their relationships.
Application of general principles to the case
The Court reiterated that Article 8 enshrines the right to respect for private and family life and, as such, does not explicitly impose on the Contracting States an obligation to formally acknowledge same-sex unions. However, Article 8 implies the need for striking a fair balance between the competing interests of same-sex couples and of the community as a whole.
Having identified the individuals’ interests at play, the Court stated that it must proceed to weigh them against the community interests.
As such, given the nature of the applicants’ complaint, it was for the Court to determine whether Russia 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 relationships recognised and protected under domestic law.
The Court noted that the applicants, as other same-sex couples, had no means to have their relationships recognised by law. That situation, the Court stated,
"creates a conflict between the social reality of the applicants who live in committed relationships based on mutual affection, and the law, which fails to protect the most regular of “needs” arising in the context of a same-sex couple. That conflict can result in serious daily obstacles for same-sex couples" (§ 51).
The Court noted the Government’s assertion that the majority of Russians disapprove of same-sex unions. However, the Court recalled its settle view that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.
Moreover, the Government could not rely on arguments about protecting minors from displays of homosexuality because that was based on the domestic legal provision criticised by the Court in the case of Bayev v Russia.
The Court stated that it could not "discern any risks for traditional marriage which the formal acknowledgment of same-sex unions may involve, since it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives" (§ 54).
In the light of this, the Court stated that it could not identify "any prevailing community interest against which to balance the applicants’ interests" and, on this basis, found that the Government had "failed to justify the lack of any opportunity for the applicants to have their relationship formally acknowledged" (§ 55). As such, a fair balance between competing interests had not been struck.
The Court acknowledged that the Government has 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 civil solidarity act) but that the Government had overstepped that margin because no legal framework capable of protecting the applicants’ relationships as same-sex couples was available.
There had therefore been, the Court concluded, a violation of Article 8 of the Convention.
The Court considered that it was not necessary to examine whether there had also been a violation of Article 14 in conjunction with Article 8 of the Convention.
Brief commentary
This judgment is historic and extremely important.
The Court noted that the applicants, as other same-sex couples, had no means to have their relationships recognised by law. That situation, the Court stated,
"creates a conflict between the social reality of the applicants who live in committed relationships based on mutual affection, and the law, which fails to protect the most regular of “needs” arising in the context of a same-sex couple. That conflict can result in serious daily obstacles for same-sex couples" (§ 51).
The Court noted the Government’s assertion that the majority of Russians disapprove of same-sex unions. However, the Court recalled its settle view that it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.
Moreover, the Government could not rely on arguments about protecting minors from displays of homosexuality because that was based on the domestic legal provision criticised by the Court in the case of Bayev v Russia.
The Court stated that it could not "discern any risks for traditional marriage which the formal acknowledgment of same-sex unions may involve, since it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives" (§ 54).
In the light of this, the Court stated that it could not identify "any prevailing community interest against which to balance the applicants’ interests" and, on this basis, found that the Government had "failed to justify the lack of any opportunity for the applicants to have their relationship formally acknowledged" (§ 55). As such, a fair balance between competing interests had not been struck.
The Court acknowledged that the Government has 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 civil solidarity act) but that the Government had overstepped that margin because no legal framework capable of protecting the applicants’ relationships as same-sex couples was available.
There had therefore been, the Court concluded, a violation of Article 8 of the Convention.
The Court considered that it was not necessary to examine whether there had also been a violation of Article 14 in conjunction with Article 8 of the Convention.
Brief commentary
This judgment is historic and extremely important.
The judgment requires same-sex couples in Russia to be afforded the opportunity to have their relationships legally recognised by, for example, civil partnership, civil union, or civil solidarity act.
But the judgment extends beyond Russia because it effectively establishes a positive obligation on all States to grant same-sex couples legal recognition of their relationships in a form other than marriage. In addition to Russia, this will impact on the other Contracting States that do not legally recognise same-sex relationships (of the 47 Contracting States, as of June 2021, 16 States legally recognise and perform same-sex marriages, and 14 States legally recognise some form of civil union for same-sex couples).
One of the most important aspects of the judgment, therefore, is that it has definitively established a positive obligation under Article 8 regarding the legal recognition of same-sex relationships. To establish this positive obligation the Court relied upon its judgment in Oliari and Others v Italy. In Oliari the Court held that the Italian government had "failed to fulfil their positive obligation to ensure that the applicants [same-sex couples] have available a specific legal framework providing for the recognition and protection of their same-sex unions" (§ 185).
The crucial question arising from the Oliari judgment was whether the Court would impose this positive obligation on other States. The answer to that question was not straightforward because the judgment in Oliari was crafted in such a way, as Judges Mahoney, Tsotsoria and Vehabović pointed out, to potentially "limit [the] finding of the existence of a positive obligation to Italy and to ground [this in] a combination of factors not necessarily found in other Contracting States".
Today's judgment makes clear that the positive obligation established in Oliari does extend to all Contracting States and that States have very little margin of appreciation in respect of that obligation. The result is that States are under an obligation to provide same-sex couples with access to a legal framework (not marriage) that gives legal recognition to their relationships.
A further notable feature of the judgment is the sociological emphasis it places on the relationship between "social reality and the law". The judgment acknowledges the damage that can be done to LGBT people who live in contexts in which the law does not acknowledge and support the basic lived reality of those people.
My criticism of the judgment is the same criticism I had when the Court communicated the case back in 2016, which I expressed here, and it concerns the failure of the Court to engage with the issue of marriage under Article 12 of the Convention. The Court did not even communicate the case under Article 12 of the Convention which was striking given that the applicants' complaints concerned their inability to marry. It was unclear whether the omission of Article 12 from the communication was the choice of the applicants or the Court. Certainly, two applicants, Ms. Fedotova and Ms. Shipitko invoked Article 12 in the domestic courts in their appeal against the decision to refuse their application to marry. However, in the Court's communication it stated:
"The applicants in substance complained under Article 8 of the Convention alone and under Article 14 of the Convention taken in conjunction with Article 8 of the Convention 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. They also had no other possibility to gain legal recognition for their relationship."
It remains unclear, therefore, whether the Court omitted Article 12 from the complaint when determining its "substance", or whether the applicants themselves decided not to raise an Article 12 point. If it was the Court's decision then I would see this as further evidence that the Court regards Article 12, for all practical purposes, as inapplicable to same-sex couples (see here for a broader discussion of this). Even if the applicants chose not to make an Article 12 complaint, the Court could have examined the case under Article 12 of its own volition. The fact that the Court paid no direct attention to whether the central fact that underpinned the case - that same-sex couples were denied access to marriage - amounted to a violation of Article 12 represents another opportunity missed to address this fundamental aspect of discrimination in the majority of European societies.
But the judgment extends beyond Russia because it effectively establishes a positive obligation on all States to grant same-sex couples legal recognition of their relationships in a form other than marriage. In addition to Russia, this will impact on the other Contracting States that do not legally recognise same-sex relationships (of the 47 Contracting States, as of June 2021, 16 States legally recognise and perform same-sex marriages, and 14 States legally recognise some form of civil union for same-sex couples).
One of the most important aspects of the judgment, therefore, is that it has definitively established a positive obligation under Article 8 regarding the legal recognition of same-sex relationships. To establish this positive obligation the Court relied upon its judgment in Oliari and Others v Italy. In Oliari the Court held that the Italian government had "failed to fulfil their positive obligation to ensure that the applicants [same-sex couples] have available a specific legal framework providing for the recognition and protection of their same-sex unions" (§ 185).
The crucial question arising from the Oliari judgment was whether the Court would impose this positive obligation on other States. The answer to that question was not straightforward because the judgment in Oliari was crafted in such a way, as Judges Mahoney, Tsotsoria and Vehabović pointed out, to potentially "limit [the] finding of the existence of a positive obligation to Italy and to ground [this in] a combination of factors not necessarily found in other Contracting States".
Today's judgment makes clear that the positive obligation established in Oliari does extend to all Contracting States and that States have very little margin of appreciation in respect of that obligation. The result is that States are under an obligation to provide same-sex couples with access to a legal framework (not marriage) that gives legal recognition to their relationships.
A further notable feature of the judgment is the sociological emphasis it places on the relationship between "social reality and the law". The judgment acknowledges the damage that can be done to LGBT people who live in contexts in which the law does not acknowledge and support the basic lived reality of those people.
My criticism of the judgment is the same criticism I had when the Court communicated the case back in 2016, which I expressed here, and it concerns the failure of the Court to engage with the issue of marriage under Article 12 of the Convention. The Court did not even communicate the case under Article 12 of the Convention which was striking given that the applicants' complaints concerned their inability to marry. It was unclear whether the omission of Article 12 from the communication was the choice of the applicants or the Court. Certainly, two applicants, Ms. Fedotova and Ms. Shipitko invoked Article 12 in the domestic courts in their appeal against the decision to refuse their application to marry. However, in the Court's communication it stated:
"The applicants in substance complained under Article 8 of the Convention alone and under Article 14 of the Convention taken in conjunction with Article 8 of the Convention 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. They also had no other possibility to gain legal recognition for their relationship."
It remains unclear, therefore, whether the Court omitted Article 12 from the complaint when determining its "substance", or whether the applicants themselves decided not to raise an Article 12 point. If it was the Court's decision then I would see this as further evidence that the Court regards Article 12, for all practical purposes, as inapplicable to same-sex couples (see here for a broader discussion of this). Even if the applicants chose not to make an Article 12 complaint, the Court could have examined the case under Article 12 of its own volition. The fact that the Court paid no direct attention to whether the central fact that underpinned the case - that same-sex couples were denied access to marriage - amounted to a violation of Article 12 represents another opportunity missed to address this fundamental aspect of discrimination in the majority of European societies.
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