July 04, 2023
by Dr. Andy Hayward, Durham Law School, Durham University, email@example.com
Following the important Grand Chamber decision in Fedotova and Others v. Russia, the Strasbourg Court has handed down two significant decisions on the legal recognition of same-sex couples. In Buhuceanu and Others v. Romania, the Court developed the principles established in Fedotova and weaponised the positive obligation route under Article 8 requiring Member States to introduce a legal framework offering protection and recognition for same-sex couples. In Maymulakhin and Markiv v. Ukraine, a different approach was taken with the Court instead using Article 14 read in conjunction with Article 8. This post will focus on the latter case and will reflect on its implications for the European Court of Human Rights’ approach to this important issue. It argues that Maymulakhin is significant as it both fortifies and harmonises the Court’s jurisprudence in this area. Moreover, the use of Article 14 and the framing of this issue as one of discrimination, reveals a continuing unwillingness of the Court to accept protection of the traditional family as a legitimate aim. This, in turn, limits the ability of States to justify discrimination on suspect grounds.
Background to the Case
The application was lodged by two Ukrainian nationals who had been living together in a stable and committed same-sex relationship since 2010. Their attempts to marry were rejected on the basis that the Constitution and Family Code of Ukraine limited marriage to different-sex couples. While certain aspects of their joint lives could be regulated using a private contract, they could not obtain the benefits and protections available to cohabiting couples as only different-sex couples were recognised under Ukrainian law. Such rights related to joint matrimonial property, succession, visitation in hospital and adoption.
Their position was made even more precarious by the outbreak of the war on 24 February 2022. After the start of the war, Markhiv joined the National Guard of Ukraine and when asked as to his next of kin, he was told that in the event of his death his mother, and not Maymulakhin, would be notified. Following a period of ill health, Markhiv later resigned from the National Guard. Using Articles 14 and 8, the applicants argued that the inability under Ukrainian law for them to marry or receive lesser protections as a de facto cohabiting couple constituted discrimination based on sexual orientation. They also raised Article 1 of Protocol No. 12 but the Court dealt with their case using Articles 14 and 8 only.
The Government’s response was that the applicants could obtain the same level of protection as a different-sex cohabiting couple in Ukraine. Moreover, while the scope of this protection was limited to certain property rights, there was nothing stopping the applicants from regulating their joint lives using private contractual agreements. The Government also emphasised that legislative steps were currently being taken to introduce registered partnerships for both different- and same-sex couples that would confer upon the applicants the protections they desired.
The Court’s Reasoning
The Court’s analysis proceeded in the standard way for discrimination claims. Article 14 requires a difference in treatment of persons in analogous situations and discrimination would be found where such difference has no objective or reasonable justification. States naturally possess a margin of appreciation, the scope of which varies according to the circumstances and subject matter of the dispute. The extent of the margin of appreciation would also be determined by the existence or non-existence of a European consensus. The Court noted that when discrimination was based on sexual orientation, the State’s margin would be narrow and particularly convincing and weighty reasons were needed by way of justification. Drawing upon recent case law such as X v. Poland and Macatė v. Lithuania, the Court reiterated that it has adopted a consistent stance of declining to ‘endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’ (para. 62).
The Court proceeded to further entrench ‘well-established’ and ‘settled principles’ in this area, notably that same-sex couples are ‘just as capable as different-sex couples of entering into stable, committed relationships and that they have the same needs in terms of mutual support and assistance’ (para. 63). Similarly, the ideals, values and general spirit of the Convention were consistent with Article 8 being read in a manner that same-sex couples were to be afforded legal protections and recognition. While referencing the development of that approach in Fedotova, the Court acknowledged that, to date, the positive obligation was limited to the creation of an adequate legal framework and had not been interpreted to require States to make marriage available to same-sex couples.
The Court accepted that the couple had been in a stable and committed de facto partnership since 2010 and are in a comparable situation to a different-sex couple requiring recognition of their relationship. However, different-sex couples can marry or have recognition based on living as a family without being married. Crucially, this offered couples a choice and, in stark contrast, same-sex couples in Ukraine are ‘denied any such choice’ (para. 68). Adopting its earlier stance taken in Oliari and Others v. Italy, the Court refused to accept private regulation using contracts as an effective substitute, believing these types of agreements to be ‘of limited scope’ (para. 69). This led the Court to conclude that the applicants ‘were and are still treated differently from different-sex couples on account of the absence of any legal recognition and protection’ (para. 70).
Unsurprisingly, this finding meant justification was key. While Ukraine is permitted to limit marriage to different-sex couples, the Court noted that the Government had ‘not advanced any reasons, let alone convincing and weighty reasons, by way of justification for the difference in treatment’ (para. 73). Merely emphasising an intention to comply with the Article 8 positive obligation of introducing a legal framework was far from persuasive. Similarly, while the aim of protecting the traditional family can potentially justify a difference in treatment on grounds of sexual orientation, the Court remarked that it was ‘rather abstract and a broad variety of concrete measures may be used to implement it’ (para. 75). Resultantly, the Court found that Ukraine had failed to provide any justification for treating the applicants differently to a different-sex couple and thus there had been a violation of Article 14 taken in conjunction with Article 8.
At face value, Maymulakhin could be viewed as merely a staging post in the Court’s journey towards enhanced legal protections for same-sex couples and potentially same-sex marriage. It does not break new ground and certainly has not received the same level of attention or academic critique as the important earlier cases of Fedotova and Oliari. However, there are important aspects to this decision that underline its broader significance and suggest it should not be overlooked in terms of its contribution.
First, the decision is undeniably bold, and, at times, the Court deploys reasoning that is particularly strident. Without the presence of dissenting judgments and with the Ukrainian judge Mykola Gnatovskyy voting in favour of the outcome, the unanimous decision arguably provides evidence of the Court’s frustration with certain types of arguments used to justify discrimination. For example, the Government placed considerable emphasis on its intention of introducing registered partnerships for both different- and same-sex couples that would offer protection for the applicant’s relationship in the future. However, the Court attached little weight to this argument believing that it ‘cannot speculate on a piece of legislation which does not exist yet’ (para. 74). The Court explored the political and social context too; it highlighted the fact that the Government had ‘already abandoned on one occasion, in 2019, its intention’ to introduce such a regime (para. 74). It also considered legislative activity to date and surveys and polls of the population regarding attitudes towards LGBT+ issues. While there is a gradual movement across Europe to introduce registered partnerships, this more rigorous approach of the Court suggests that a weak commitment by a Government to a future legislative project will not offer a convincing justification to discrimination on suspect grounds (for further details of this trend see here).
Additional evidence of this approach is provided when the Court discussed protection of the traditional family as a potential legitimate aim. Although the Court accepted that this argument can still theoretically provide a justification, it continued its approach of treating it with considerable suspicion and as a possible cloak for unjustifiable discrimination. What the Court appears to be doing is further hollowing out this line of argument, and its implications, by emphasising its vague and amorphous nature. More precisely, the Court is breaking down the dubious, but often invoked, connection advanced routinely by States that conferring legal protection upon same-sex couples invariably results in a diminution of the value of the traditional family. The Court in Maymulakhin noted that there is ‘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’ (para. 75). Moreover, conferring these protections does not constitute a barrier for different-sex couples marrying or involve ‘weakening the rights secured to other people or other couples’ (para. 75). This echoes the earlier views expressed in Buhuceanu where the Court noted that it could not discern ‘any risks for the institution of marriage’ when a State affords same-sex couples legal protections (para. 81).
Second, the use of Article 14, rather than the positive obligation route under Article 8, is particularly significant. While it is indisputable that Oliari, Orlandi and Others v. Italy and Fedotova are important breakthroughs in the legal recognition of same-sex couples, the development of a positive obligation naturally directed attention to its precise scope and content. This is perhaps understandable. Although States are now obliged to introduce a framework for the legal recognition of same-sex couples, it was noted recently in Buhuceanu that a more extensive margin of appreciation exists ‘both to the form of recognition and to the content of protection to be granted’ (para. 74). Considerable scope for argumentation arises because the Court to date has also not stipulated in any detail the irreducible core content of such schemes and prefers to use the somewhat unhelpful expression that the regime must be ‘adequate’ (see Buhuceanu para. 73 and Maymulakhin para. 65). While piecing together the jurisprudence reveals that the protections must not be merely tokenistic and should confer meaningful status-based ‘couple’ protections, the focus arguably overlooks key considerations and, as Fedele argues persuasively, runs the risk of steering the court towards a ‘purely practical-legalistic point of view’ (see here).
It should be noted that the Court in Maymulakhin did not select Article 14 read in conjunction with Article 8 as a preference over analysing the case through Article 8 alone. Rather this was the way the applicants had formulated their complaint and the Court found it ‘appropriate to follow this approach’ after citing its use in Schalk and Kopf v. Austria and Vallianatos and Others v. Greece (para. 42). But it is arguable that using Article 14 has several benefits. The most obvious is that using discrimination, and the State then being subject to a much higher threshold for justification, allows us to see the normative values that underpin legal recognition. The Court in Maymulakhin emphasised that legal recognition for same-sex couples ‘confers legitimacy’ and ‘promotes their inclusion in society’ (para. 64). More importantly, recognition responds to much broader imperatives underpinning the Convention as an instrument ‘built on the equal dignity of individuals and sustained by diversity’ (para. 64). Respect for dignity is also not merely a goal of the Convention but is something that is realised through the legal recognition of same-sex relationships. This very much echoes the Court’s earlier sentiments expressed in Vallianatos and Oliari that, irrespective of the extent or intensity of the rights conferred, there is an important ‘intrinsic value’ of legal recognition.
A related benefit of using Article 14 is that it gave the Court the opportunity to connect its discrimination jurisprudence derived from Schalk and Vallianatos with the positive obligation line of reasoning developed in Oliari, Orlandi and Fedotova. This has the effect of entrenching, harmonising, and strengthening the Court’s approach. It is also particularly beneficial as Oliari prompted concerns as to how sensitive the positive obligation would be to the prevailing social, political and cultural context of the particular Member State (for discussion, see here). Now that these caveats have ostensibly been removed, a much stronger and more unified response can be taken. This robust approach can be seen in Maymulakhin with the Court repeatedly cross-referencing and affirming Fedotova as the now definitive statement of the law.
Moreover, while the applicants in Maymulakhin did want to formalise their relationship, the Court noted the importance of legal protections per se and not just those secured through a registered partnership or marriage. The discussion of this aspect was probably attributable to the fact that Ukraine’s law on de facto cohabiting couples was limited to different-sex couples only, rendering the applicants unable to access any means of protection. This is a slight departure from Oliari where the Court’s discussion centred more on the value of formalisation and status-based rights attached to a specific framework. By reiterating that legal protections per se are dignity-enhancing and that their denial constitutes discrimination, the foundations are being laid for more expansive interpretations of Convention rights. Indeed, by developing the receptivity of Article 14 arguments in this context, there is much greater potential for access to same-sex marriage to be claimed in the future either under Article 12 or Article 8 read alone. By shifting the discourse, same-sex marriage now becomes a matter of equality, dignity, and discrimination rather than a bonus available to some couples after a State has complied with the baseline registered partnership positive obligation imposed by Fedotova.
Maymulakhin is a significant decision that adds to the steadily increasing Strasbourg jurisprudence on same-sex relationships. The decision is also important for Ukraine. Since the Russian invasion, Ukraine has sought to distance itself from the anti-Western homophobic rhetoric espoused by Russia and polls reveal a general decrease in the opposition towards same-sex relationships (see here). Indeed, with many LGBT+ people joining the war effort in Ukraine, the value of legal recognition for same-sex couples and the foundational values of the Convention itself are brought into sharp relief. Ukraine must therefore respond to the violation found in Maymulakhin and comply with the positive obligation in Fedotova. Compliance with the ruling has other implications too. Ascension to the European Union as a full member, which has now become more popular since the invasion, will require close consideration of Ukraine’s approach to LGBT+ issues. Thus Maymulakhin is more than just another addition to the Court’s jurisprudential canon on LGBT+ issues; it speaks also to Ukraine’s place within Europe.