European Court of Human Rights communicates complaint about inability of same-sex couples to marry in Russia

The European Court of Human Rights has communicated the case of Fedotova and Shipitko v Russia, which concerns complaints by three same-sex couples about their inability to marry in the Russian Federation.

All three couples had declared their intention to marry and applied on several occasions to local departments of the Register Office to have their marriage registered. The Register Office examined their requests and dismissed them with reference to Article 1 of the Russian Family Code, which states that the regulation of family relationships is based on “the principle of a voluntary marital union between a man and a woman”. In other words, because the couples did not consist of “a man and a woman”, their marriage applications could not be processed. All of the applicants unsuccessfully challenged the Register Office’s decisions in the domestic courts.

The Court has communicated the following questions to the parties:
1.Has there been a violation of the applicants’ right to respect for their private and family life, contrary to Article 8 of the Convention? 
In particular, were the applicants able to have access to a specific legal framework capable of providing them with official recognition of their unions comparable to that guaranteed by the State to different-sex couples? If that is not the case, in what specific ways are the applicants disadvantaged by the lack of any legal recognition of their relationship?

Should the applicants be afforded a possibility to have their relationship recognised by law? If not, what are the reasons preventing such recognition? Was the issue of legal recognition of same-sex couples widely debated in society? Would legal recognition of same-sex unions in any form impose an excessive burden on the State? The Government are asked to support their submissions by authoritative studies and statistics, if applicable.

2. Have the applicants suffered discrimination in the enjoyment of their Convention rights on the ground of their sexual orientation, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention, in respect of their inability to enter into any type of civil union recognised by the State?
Some issues arising from the communication

No Article 12

It is interesting to note that the Court has not communicated the case under Article 12 of the Convention (right to marry). This is striking given that the applicants' complaints concern their inability to marry. It is unclear whether the omission of Article 12 from the communication is the choice of the applicants or the Court. Certainly, 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 states:
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 is unclear, therefore, whether the Court has 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 a previous post for a broader discussion of this).

Article 8

The questions raised under Article 8 focus on whether the applicants should be given access to a "legal framework" that would provide "official recognition" of their unions "comparable" to that given to opposite-sex couples. The Court appears, therefore, to be asking whether the Russian Federation should provide same-sex couples with access to some form of "civil partnership" rather than whether they should be given access to marriage. This may seem politically sensible, given the apparent hostility in Russia toward both homosexuality and the European Court of Human Rights. However, the substance of the applicants' complaints concerns the Russian authorities' refusal to register their marriage. It is open to question, therefore, whether the Court should seemingly exclude a direct question about marriage and focus solely on the issue of a "comparable" legal framework.

The case law 
most relevant to the questions raised under Article 8 can be found in the Court's 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 this judgment is whether the Court will impose this positive obligation on the Russian Federation. The answer is not straightforward because the judgment in Oliari was crafted in such a way, as Judges Mahoney, Tsotsoria and Vehabović pointed out, to "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". It remains to be seen whether, as those three judges pointed out, the "limitation of a positive obligation under the Convention to local conditions is conceptually possible". If such a limitation is deemed not to be possible, then the same positive obligation found in Oliari will be imposed on the Russian Federation. The result will be that the State is under an obligation to provide same-sex couples with access to a legal framework (not marriage) that gives legal recognition to their relationships. 

Article 14

The question regarding discrimination would appear to be central to this complaint. However, in Oliari the Court would not consider the applicants' complaints under Article 14 taken in conjunction with Article 8. Arguably, if the Court had found a violation of Article 14 in Oliari this would have more definitively established that Contracting States that do not provide same-sex couples with access to any legal recognition of their relationships are discriminating against them on the grounds of sexual orientation. Had this been the case, the current complaint against the Russian Federation would have almost certainly succeeded. However, because the Court avoided addressing the Article 14 complaints in Oliari, it remains to be seen whether it will consider the lack of legal recognition of same-sex relationships in the Russian Federation to constitute "discrimination" within the terms of the Convention.

General importance of the case

There is no question that should the Court eventually uphold the complaints in this case, that this would be a watershed moment for the Convention system. A judgment in favour of the applicants would no doubt be widely condemned in Russia and would have little chance of being executed (particularly in light of legal changes relating to the status of the Court's judgments). If the Court effectively required Russia to provide same-sex couples with access to civil unions then this would probably rank alongside the most contentious judgments issued by the Court, such as the "prisoner voting" judgment against the UK. However, the Court remains uniquely placed to deliver a judgment recognising that in Russia "same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship" (Oliari, § 165). Leaving aside the issue of compliance, such a judgement would send the significant and important message to same-sex couples in the Russian Federation that legal protection of their intimate relationships is their human right.