Legal summary

January 2023

Fedotova and Others v. Russia [GC] - 40792/10, 30538/14 and 43439/14

Judgment 17.1.2023 [GC]

Article 8

Positive obligations

Absence of any form of legal recognition and protection for same-sex couples: violation

Facts – The applicants – three same-sex couples – gave notice of marriage to their local departments of the Register Office. Their notices were rejected on the grounds that the relevant domestic legislation defined marriage as a “voluntary marital union between a man and a woman”, thus excluding same-sex couples. The applicants challenged those decisions, but without success. They complained before the Court that it was impossible for them to have their respective relationships formally registered and that because of the legal vacuum in which they found themselves as couples, they were deprived of any legal protection and faced substantial difficulties in their daily lives.

In a judgment of 13 July 2021 (see Legal summary ), a Chamber of the Court held, unanimously, that there had been a violation of Article 8 because the respondent State had failed to justify the lack of any opportunity to have a same-sex relationship formally acknowledged.

On 22 November 2021 the case was referred to the Grand Chamber at the Government’s request.

Law – Article 8:

1. Whether the Court had jurisdiction to deal with the case – The respondent State had ceased to be a member of the Council of Europe on 16 March 2022 and had also ceased to be a Party to the Convention on 16 September 2022. The Court referred in that connection to Article 58 of the Convention (§§ 2 and 3 in fine ) and also to its “Resolution on the consequences of the cessation of membership of the Russian Federation to the Council of Europe in light of Article 58 of the European Convention on Human Rights”, adopted on 22 March 2022. In the present case, the facts giving rise to the violations of the Convention alleged by the applicants had taken place before 16 September 2022. Since the applications had been lodged with it in 2010 and 2014, the Court had jurisdiction to deal with them.

2. Victim status – The Government submitted that the applicants were no longer victims because the three couples had separated, in one case after having married abroad. However, it did not appear from the material submitted to the Court that the national authorities had acknowledged, explicitly or in substance, the violations alleged by the applicants or afforded redress in that regard. Besides that, the applicants’ life choices following the decisions of the Russian authorities in their case could not have any bearing on their status as victims Indeed, it could not be ruled out that the possible changes in the applicants’ circumstances were precisely the result of their inability to have their relationships recognised and protected in Russia.

3. Applicability of Article 8

(a) Private life – The unavailability of a legal regime for recognition and protection of same-sex couples affected both the personal and the social identity of the applicants.

(b) Family life – At the time of their initial approaches to the Russian authorities, the applicants had formed stable and committed relationships which they were seeking to have recognised and protected.

Conclusion : Article 8 applicable under both its “private life” and “family life” aspects (see also Orlandi and Others v. Italy ; Pajić v. Croatia ; Chapin and Charpentier v. France ; and Taddeucci and McCall v. Italy ).

4. Merits –

(a) Whether there was a positive obligation to provide legal recognition and protection to same-sex couples – The present case concerned the absence in Russian law of any possibility of legal recognition for same-sex couples, regardless of the form such recognition might take. It raised the issue of whether Article 8 gave rise to a positive obligation for States Parties to allow same-sex couples to enjoy recognition.

(i) State of the Court’s case-law – Article 8 had been interpreted as requiring a State Party to ensure legal recognition and protection for same-sex couples by putting in place a “specific legal framework” ( Oliari and Others v. Italy , and Orlandi and Others v. Italy ), but not by making marriage available ( Hämäläinen v. Finland [GC]). This coincided with the interpretation of Article 12 ( Schalk and Kopf v. Austria ; Hämäläinen v. Finland [GC]; Oliari and Others v. Italy ; and Orlandi and Others v. Italy ) and of Article 14 taken in conjunction with Article 8 ( Schalk and Kopf v. Austria ; Gas and Dubois v. France ; and Chapin and Charpentier v. France ).

(ii) Degree of consensus to be found at national and international level – The case-law cited above concerning Article 8, from which it followed that the States Parties had a positive obligation to provide legal recognition and protection to same-sex couples, was in line with the tangible and ongoing evolution of the States Parties’ domestic legislation and of international law. It was permissible to speak at present of a clear ongoing trend within the States Parties towards legal recognition of same-sex couples (through the institution of marriage or other forms of partnership), since a majority of thirty States Parties had legislated to that effect.

This trend was consolidated by the converging positions of a number of international bodies, including several Council of Europe bodies, which had stressed the need to ensure legal recognition and protection for same-sex couples within the member States. The Inter-American Court of Human Rights had held that the States Parties to the American Convention on Human Rights were required to ensure access to all the legal institutions existing in their domestic laws in order to guarantee the protection of the rights of families composed of same-sex couples, without discrimination in relation to families constituted by different-sex couples.

(iii) Conclusion – Having regard to its case-law as consolidated by a clear ongoing trend within the Council of Europe member States, the Court confirmed that in accordance with their positive obligations under Article 8, the member States were required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship.

This interpretation of Article 8 was guided by the concern to ensure effective protection of the private and family life of homosexual people. It was also in keeping with the values of the “democratic society” promoted by the Convention, foremost among which were pluralism, tolerance and broadmindedness.

As far as the issue raised by the present case was concerned, allowing same-sex couples to be granted legal recognition and protection undeniably served those ideals and values in that recognition and protection of that kind conferred legitimacy on such couples and promoted their inclusion in society, regardless of sexual orientation. A democratic society within the meaning of the Convention rejected any stigmatisation based on sexual orientation. It was built on the equal dignity of individuals and was sustained by diversity, which it perceived not as a threat but as a source of enrichment.

Many authorities and bodies viewed the recognition and protection of same-sex couples as a tool to combat prejudice and discrimination against homosexual people.

(b) Scope of the national authorities’ margin of appreciation – Given that particularly important facets of the personal and social identity of persons of the same sex were at stake and that, in addition, a clear ongoing trend had been observed within the Council of Europe member States, the States Parties’ margin of appreciation was significantly reduced when it came to affording same-sex couples the possibility of legal recognition and protection.

Nevertheless, no similar consensus could be found as to the form of such recognition and the content of such protection. The States Parties therefore had a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples, which did not necessarily have to take the form of marriage. Indeed, States had the “choice of the means” to be used in discharging their positive obligations inherent in Article 8. The discretion afforded to them in that respect related both to the form of recognition and to the content of the protection.

However, it was important that the protection afforded should be adequate. In that connection, the Court referred to various aspects, in particular material (maintenance, taxation or inheritance) or moral (rights and duties in terms of mutual assistance), that were integral to life as a couple and would benefit from being regulated within a legal framework available to same-sex couples.

(c) Whether the respondent State had satisfied its positive obligation –

At the time when the applicants had applied to the domestic authorities for legal recognition, Russian law had not provided for that possibility and there had been no change at all since the present applications had been lodged. Contrary to the situation in a substantial number of States Parties, the respondent State had not informed the Court of any intention to amend its domestic law to that effect.

(i) The applicants’ individual interests – Gaining official recognition for their relationship had an intrinsic value for the applicants. Such recognition formed part of the development of both their personal and their social identity.

Partnerships constituting an officially recognised alternative to marriage had an intrinsic value for same-sex couples irrespective of the legal effects, however narrow or extensive, that they produced. Accordingly, official recognition of same-sex couples conferred an existence and a legitimacy on them vis-à-vis the outside world.

Beyond the essential need for official recognition, same-sex couples, like different-sex couples, had “basic needs” for protection. Indeed, the recognition and the protection of a couple were inextricably linked. Same-sex couples were in a relevantly similar situation to different-sex couples as regards their need for formal acknowledgment and protection of their relationship.

ln the present case, in the absence of official recognition, same-sex couples were nothing more than de facto unions under Russian law. The partners were unable to regulate fundamental aspects of life as a couple such as those concerning property, maintenance and inheritance except as private individuals entering into contracts under the ordinary law, rather than as an officially recognised couple. Nor were they able to rely on the existence of their relationship in dealings with the judicial or administrative authorities. Indeed, the fact that same-sex partners were required to apply to the domestic courts for protection of their basic needs as a couple constituted in itself a hindrance to respect for their private and family life. That being so, the Russian legal framework, as applied to the applicants, could not be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship.

(ii) Public-interest grounds put forward by the respondent State –

- Protection of the traditional family – The Court had already held that protection of the family in the traditional sense was, in principle, a weighty and legitimate reason which might justify a difference in treatment on grounds of sexual orientation. However, that aim remained rather abstract, and a broad variety of concrete measures could be used to implement it. Moreover, the concept of family was necessarily evolutive, as was shown by the changes it had undergone since the Convention was adopted.

With regard to same-sex couples, the Court had held under Article 14 in conjunction with Article 8 that excluding a person in a same-sex relationship from succession to a tenancy in the event of the partner’s death could not be justified by the need to protect the traditional family ( Karner v. Austria , and Kozak v. Poland ). The Court had reached a similar conclusion concerning the refusal to grant a same-sex partner a residence permit on family grounds ( Taddeucci and McCall v. Italy ). It had likewise found that it had not been shown that excluding second-parent adoption in a same-sex couple in Austria, while allowing that possibility in a different-sex couple, could be justified by the protection of the traditional family ( X and Others v. Austria ).

In the present case, there was no basis for considering that affording legal recognition and protection to same-sex couples in a stable and committed relationship could in itself harm families constituted in the traditional way or compromise their future or integrity ( Bayev and Others v. Russia ). Indeed, recognition of same-sex couples did not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term. More broadly, securing rights to same-sex couples did not in itself entail weakening the rights secured to other people or other couples. The Government had been unable to prove the contrary.

Accordingly, the protection of the traditional family could not justify the absence of any form of legal recognition and protection for same-sex couples in the present case.

- Feelings of the majority of the Russian population – The Court had already rejected the Government’s argument that the majority of Russians disapproved of homosexuality, in the context of cases concerning freedom of expression, assembly or association for sexual minorities ( Bayev and Others v. Russia ). 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. Were this so, a minority group’s rights would become merely theoretical rather than practical and effective as required by the Convention.

Those considerations were entirely relevant in the present case, meaning that the allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia could not be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law.

- Protection of minors from promotion of homosexuality – Ruling on the legislative ban on promotion of homosexuality or non-traditional sexual relations among minors in Bayev and Others v. Russia , the Court had held that “the legislative provisions in question embodied a predisposed bias on the part of the heterosexual majority against the homosexual minority”. It had concluded that “by adopting such laws the authorities reinforce stigma and prejudice and encourage homophobia, which is incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society”. The Court could see no reason to depart from that conclusion in the present case.

(d) Conclusion – None of the public-interest grounds put forward by the Government prevailed over the applicants’ interest in having their respective relationships adequately recognised and protected by law. Accordingly, the respondent State had overstepped its margin of appreciation and had failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life.

Conclusion : violation (fourteen votes to three).

Article 41: finding of a violation sufficient in respect of non-pecuniary damage.

(See also Karner v. Austria , 40016/98 , 24 July 2003; Kozak v. Poland , 13102/02, 2 March 2010, Legal summary ; Schalk and Kopf v. Austria , 30141/04, 24 June 2010, Legal summary ; Gas and Dubois v. France , 25951/07, 15 March 2012, Legal summary ; X and Others v. Austria [GC], 19010/07, 19 February 2013, Legal summary ; Vallianatos and Others v. Greece [GC], 29381/09 and 32684/09, 7 November 2013, Legal summary ; Hämäläinen v. Finland [GC], 37359/09, 16 July 2014, Legal summary ; Oliari and Others v. Italy , 18766/11 and 36030/11, 21 July 2015, Legal summary ; Pajić v. Croatia , 68453/13, 23 February 2016, Legal summary ; Chapin and Charpentier v. France , 40183/07 , 9 June 2016; Taddeucci and McCall v. Italy , 51362/09, 30 June 2016, Legal summary ; Bayev and Others v. Russia , 67667/09 et al., 20 June 2017, Legal summary ; Orlandi and Others v. Italy , 26431/12 et al., 14 December 2017, Legal summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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