Here we go again? Is Fedotova and Others just splitting hairs when it comes to same-sex couples?

By Claire Poppelwell-Scevak

When the Court rendered its judgment on Fedotova and Others v. Russia, I received numerous e-mails from colleagues who appeared to be split over the importance of this case. Camp One thought it was a repeat of Oliari but with Russia as the Respondent State instead of Italy, and Camp Two felt that one could perhaps write a book chapter on this case due to the many pertinent issues it raises. As my own PhD includes a sizeable discussion on the Court’s same-sex marriage jurisprudence, I realised that I was close to having both feet in Camp Two. Similarly, when I noted that there have been three blogposts (here, here and here) that have all made important and varied conclusions on this case, Camp Two suddenly became more enticing.

That being said, with three blogposts already written on this case, it is crucial that I offer another perspective to this discussion. This is difficult given that the reasoning is short. However, I have observed that it may still remain unclear to the generalist Strasbourg-enthusiast, why this case is any different than Oliari or even, more recently, Orlandi. Moreover, why is this case so important in the grand scheme of the Court’s jurisprudence? Are there specific jurisprudential tools that the Court applied, such as the consensus doctrine, or evidentiary issues which perhaps leave a bitter taste in one’s mouth? Thus, this post will underscore the importance of this case in the Court’s same-sex marriage/partnership narrative as well as highlight some unusual elements of the Court’s reasoning that deserve some greater insights.

Facts

In Fedotova and Others, the applicants were three same-sex couples whose intention to marry notices had been rejected, respectively, by the Russian authorities. The applicants complained that there had been a violation of Article 8 alone and Article 14 in conjunction with Article 8 of the Convention as that due to their sexual orientation, they ‘had no means of securing a legal basis for their relationship as was impossible for them to enter into marriage’. Furthermore, they ‘had no other possibility to gain formal acknowledgment for their relationship’.

Judgment

In its general principles, the Court re-stated the general principles from Schalk and Kopf and Vallianatos that same-sex couples ‘are in a relevantly similar situation to a different-sex couple as regards their need for formal acknowledgment and protection of their relationship’. Further, the Court confirmed its findings in Oliari and Orlandi that of ‘relevance to the present case is the impact on an applicant of a situation where there is discordance between social reality and the law’.

When looking to the facts of the case, the Court began by stating that Article 8 ‘does not explicitly impose on the Contracting States an obligation to formally acknowledge same-sex unions. However, it implies the need for striking a fair balance between the competing interests of same-sex couples and of the community as a whole’. The Court quickly identified, by reference to Oliari and Orlandi, that the applicants’ interests was for the ‘provision of a legal framework allowing them to have their relationship recognised and protected under domestic law’.

As domestic law only allowed for one form of family union – a different-sex marriage – the Court observed that

Consequently, the Court held that this situation ‘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’. In the Court’s view, such a conflict ‘can result in serious daily obstacles for same-sex couples’.

When looking to the Russian Government’s arguments, the Court rejected the argument (also put forward by the Russian Government in Bayev and Others v. Russia (2017); see also the blogpost on this case here) that the prevention of recognising same-sex relationships was in the ‘interest [of] protecting minors from display of homosexuality’. Moreover, when examining the Russian Government’s argument that ‘the majority of Russians disapprove of same-sex unions’, the Court noted that

Accordingly, the Court found that to take the Russian Government’s approach 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’.

With respect to the protection of ‘traditional marriage’ (which, as of 2020, is also a recent inclusion to an amendment of the Russian Constitution), the Court found that this argument ‘is in principle [a] weighty and legitimate interest, which may have [a] positive effect in strengthening family unions’. However, the Court was unconvinced that by allowing recognition of same-sex couples would place the traditional marriage at risk as ‘it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives’.

With the above discussion in mind, the Court found it could not ‘identify any prevailing community interest against which to balance the applicants’ interests’, and the Respondent State had ‘failed to justify the lack of any opportunity for the applicants to have their relationship formally acknowledged’. Thus, the Court held that no fair balance had been struck between the competing interests.

Importantly, in its final paragraph, the Court acknowledged that there is a margin of appreciation granted to the member state to ‘choose the most appropriate form of registration of same-sex unions taking into account its specific social and cultural context’. The Court gave the examples of ‘civil partnership, civil union, or civil solidarity’; however, the Court did not stipulate the difference in rights or obligations under either of these forms of recognition nor did it explain which rights a same-sex couple must enjoy under a non-marriage alternative registration.

The Court concluded that the Respondent State had overstepped its margin of appreciation as it had provided no legal framework for the recognition of a same-sex couple’s relationship. Accordingly, the Court unanimously found a violation of Article 8 and did not find it necessary to examine whether there had also been a violation of Article 14 in conjunction with Article 8.

Commentary

As we turn to the analysis of this case, I will briefly underscore some important and specific points on the reasoning of this case before taking a step back and looking at this case in the context of the Court’s reasoning more broadly.

First, what does this case mean in the ongoing marriage equality saga? Article 12, the right to marry, was not discussed by the Court (in the communication, the applicants only complained ‘in substance’ under Articles 8 and 14) and thus, it is difficult to postulate the impact of this case to marriage equality in general. I would like to point out that Russia (currently) offers only marriage as a form of recognition to different-sex couples. Thus, it is curious that the applicants, who had attempted to be recognised by marriage had made no complaints, in substance, according to the Court, under Article 12.

It is argued that without a discussion of Article 12, the Court has reinforced its stance (first espoused in Oliari) that same-sex couples have this general need to be recognised, and that this need can be satisfied under Article 8 (as opposed to Article 12). The Court has been quite vague with respect to what rights can be granted under Article 8 for same-sex couples, and thus, I argue that the ‘Same same but different’ status between those who can access marriage and those who can access a registered partnership/civil union is maintained in this case.

Second, the Court’s reasoning is striking in its wording. Immediately the reader is put on the backfoot as the Court stridently states that it does ‘not explicitly impose on the Contracting States an obligation to formally acknowledge same-sex unions’. However, a sentence later looks to whether the Respondent State had complied with its positive obligation, under Article 8, to ensure respect for the applicants’ private and family life through the creation of a legal framework which protected and recognised their relationship. The Court’s back and forth here is quite puzzling, especially as, in Oliari, the Court went to great lengths to establish a positive obligation through the balancing of competing interests. If we know from Oliari (para 172) that same-sex couples have core needs which require protection and recognition, then why not begin with these core needs as a basis for this positive obligation? Why not begin with Oliari rather than with a statement that does nothing more than confuse?

Third, the label of ‘tradition’ once more rears its ugly head in this debate of the conventional family. The Court has continuously allowed domestic legislation that denies same-sex couples from the right to marry under the guise that such legislation has the legitimate aim of protecting the traditional family. Furthermore, in this instance, the fact that the Russian Constitution has been amended in 2020 to include the protection of the traditional family is found by the Court to be ‘in principle [a] weighty and legitimate interest’. The reason that the traditional family argument does not sway the Court to a finding of a non-violation is not because of its anti-LGBTQI+ foundation, but due to it not preventing different-sex couples from entering into marriage or from ‘enjoying the benefits which the marriage gives’. Once more, the Court’s focus remains glued to the protection of the so-called ‘traditional marriage’ rather than the protection of the minority group who are excluded from such rights.

That being said, the Court is not completely unaware of the damage caused by catering to the majority’s views. In particular, despite the national sentiment to be against the protection and recognition of same-sex couples, the Court noted that that such majoritarian views should not hinder an interpretation of the Convention to protect LGBTQI+ persons under Article 8. Whilst this is not the first time that the Court has stated such views (Bayev and Others v. Russia, para 70; Alekseyev v. Russia, para 81). It is noteworthy that the Court does not refer to the existence of a European consensus in favour of the recognition and protection of same-sex couples, as was seen so clearly in Oliari and Orlandi. Rather, I suggest that the Court’s stance in Fedotova is stronger than in Oliari as there is no reliance on what other member states have done or are doing. The Court looks to the protection of a minority group and prioritises the realisation of Convention protections over the majoritarian perspective. This stance is at odds with the Court’s previous cases, notably Oliari (para 178) and Schalk and Kopf (para 105), where specific attention was paid to the number of member states who had legislated in favour of same-sex partnerships.

Also relevant is the Court’s interpretation of the survey submitted by the Russian Government as evidence of anti-LGBTQI+ sentiment. It is not uncommon for the Court to refer to surveys, indeed, in Oliari and Others, the Court noted that ‘official surveys’ indicated that there was ‘a popular acceptance of homosexual couples, as well as popular support for their recognition and protection’ (para 181). However, the Court’s attention to the surveys in Fedotova and Others is quite bizarre as the Court appears to not grasp the seriousness of the data gathered from the survey as the Court states in its final substantive paragraph that:

To clarify, ‘those views’ the Court is referring to is the data from the Russian Government’s submitted  survey which found that (from the people questioned):

It is a damning representation on the Court’s reasoning that it did not take greater steps to process the anti-LGBTQI+ sentiment behind this survey and narrowed its analysis to the survey’s question relating to same-sex marriage. A particular concern is how the Court could conclude that same-sex couples having access to a marriage-alternative form of recognition would not be in conflict with the data from this survey? This data does not just reflect an opinion against same-sex couples being recognised and protected under Russian law, it also demonstrates a real (and measurable) hate against LGBTQI+ individuals. In particular, given that the Court has emphasised the ‘social reality’ (para 51) of same-sex couples living in Russia, surely the way same-sex couples are treated in Russia should lead the Court to question the submission of this survey when it reflects such animosity to a group of persons the Court has identified, in the same breath, to not being protected by domestic legislation?

It could be argued that this is the Court’s in concreto review in action as the issue in this case is access to legal recognition and protection for same-sex couples. Additionally, it is important that the Court engages with the evidence depended on by the Russian Government. To engage in this piece of evidence is necessary insofar as assuring both parties that the Court has looked at all of the evidence submitted to it. However, this simplified discussion of the survey brings to the fore the Court’s disjointed reasoning that it will find, on the one hand, that the majoritarian anti-LGBTQI+ perspective has no place in preventing a finding of violation of Article 8 and, on the other hand, limit this anti-LGBTQI+ perspective to the issue of same-sex unions rather than the damaging – and hateful – rhetoric this survey demonstrated.  In other words, why limit the scope of what the data in this survey is reflecting if it has already been stated that the majoritarian view should not be relied upon to deny access to a certain group of people?

With the above in mind, it’s important to acknowledge the symbolism of this case. Once more, Russia has been found wanting for its violations of the LGBTQI+ community. The Court has sent a strong signal to all member states now that, under Article 8, same-sex couples require legal protection and recognition within their domestic legal frameworks. However, the realistic possibility of this happening in Russia, will require a formidable and (no doubt, protracted) game plan (such as Rule 9 submissions), one that must be pushed by LGBTQI+ advocates at the implementation level if same-sex couples are to achieve protection and recognition.