‘Until social norms say I do’: How the Grand Chamber taketh and giveth away in Fedotova and Others v. Russia

By Claire Poppelwell-Scevak

As we continue 2023, with the rise of the far right, the war in Ukraine and Russia’s absence at the Council of Europe, it may be difficult to be optimistic. However, I think that with the Grand Chamber’s judgment in Fedotova and Others v. Russia, there can be, at least, a sense of hope that the Court’s case-law on the recognition of same-sex couples is (slowly) moving forward.

Some may discount the importance of this judgment as, on the one hand, Russia is no longer a party to the Council and a brief glimpse over the Respondent State’s response is indicative of a (former) State Party that has appeared to have lost steam in putting forward its case before the Grand Chamber. On the other hand, you could see this case as simply continuing the trend of Oliari and Others v. Italy and Orlandi and Others v. Italy where the Court found that there is a positive obligation under Article 8 for Member States to afford some sort of recognition and protection to same-sex couples.

There may be some bias in my opinion as I co-wrote the third-party intervention, submitted by the Human Rights Centre, to the Grand Chamber; however, I believe that this case should be studied further for two reasons. First, it provides a damning insight into the Court’s inability to clarify what protections should be afforded to couples – regardless of whether they are different or same-sex. Second, it concretely foreshadows the impending clash between the consensus doctrine and traditional values as determinants to the width of the margin of appreciation.

Facts and decision

Two same-sex couples (note that there were initially three, however, one couple was struck out when this case went before the Grand Chamber) gave notice of marriage at their respective local Registry offices. Their notices were rejected as the authorities relied on the definition of marriage – by the Russian Family Code – to be a ‘voluntary marital union between a man and a woman’.

Due to Russia’s exit from the Council of Europe, the Grand Chamber quickly stated that it still had jurisdiction to examine this case. It then moved to an examination of Article 8, immediately finding that the applicants’ claims are applicable under both the private and family life aspects of Article 8. Note that this section will focus on Article 8 (alone) as the Court found that there was no need to examine any arguments under Article 14 taken in conjunction with Article 8.

Referencing its judgments in Oliari and Orlandi in particular, the Grand Chamber started its analysis by confirming that Article 8 ‘has already 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”’. However, this positive obligation does not (yet) extend to marriage available to same-sex couples.

Before turning to the margin of appreciation, the Grand Chamber engaged in a lengthy reasoning on the evolutive interpretation of the Convention, citing its previous case-law on this issue. In particular, the Grand Chamber held that there is ‘a clear ongoing trend with the States Parties towards legal recognition of same-sex couples (through the institution of marriage or other forms of partnership)’ with a ‘number of international bodies’ supporting this position.

With the above in mind, the Grand Chamber turned to determining the scope of the margin of appreciation. Given that an aspect of the applicants’ identity was at stake and in light of the ‘clear ongoing trend’ in favour of recognising same-sex couples, the Grand Chamber quickly found that Russia’s margin of appreciation was ‘significantly reduced’. However, the Grand Chamber added that ‘States Parties have a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same-sex couples’. This ability to choose extends ‘both to the form of recognition and to the content of the protection to be granted to same-sex couples’.

Here, the Grand Chamber shifted its stance on the consensus doctrine by finding that ‘while a clear ongoing trend is emerging towards legal recognition and protection for same-sex couples, no similar consensus can be found as to the form of such recognition and the content of such protection’. Thus, this issue remains in the domain of States Parties to decide. The caveat to this finding though, is that the protection chosen by the States Parties ‘should be adequate’. Reference is made by the Grand Chamber to a legal framework that would provide protection for same-sex couples, and specifies ‘material (maintenance, taxation or inheritance) or moral (rights and duties in terms of mutual assistance) that are integral to life as a couple and would benefit from being regulated within [such] a legal framework’.

The Grand Chamber then looked to whether Russia had struck a fair balance between the public interests and those of the applicants. According to the applicants, they had experienced a legal vacuum by not being legally recognised. Similarly, the Grand Chamber accepted that ‘gaining official recognition for their relationship has an intrinsic value for the applicants…[which] forms part of the development of both their personal and their social identity as guaranteed by Article 8’.

From the Russian Government’s perspective, the absence of such a legal framework was first based on the necessity to ‘preserve the traditional institutions of marriage and the family’. Whilst the Grand Chamber repeated its ‘support and encouragement of the traditional family’, such an aim was also ‘rather abstract and a broad variety of concrete measures may be used’, as well as the ‘concept of family [being] necessarily evolutive’. Moreover, the Grand Chamber held that providing protection for same-sex couples does not ‘harm families constituted in the traditional way’ or ‘prevent different-sex couples from marrying or founding a family’.

Russia’s second justification was that the Grand Chamber had departed from its reasoning in Oliari where it had taken into consideration the public’s attitude towards same-sex couples. The Grand Chamber noted that public opinion in Oliari was not a decisive factor in its reasoning. Additionally, the Grand Chamber was unconvinced by this justification as it has ‘consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority’ and that ‘traditions, stereotypes and prevailing social attitudes in a particular country cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment based on sexual orientation’. 

The final justification was the protection of minors. The Grand Chamber summarily dismissed this argument with reference to Bayev and Others v. Russia. Thus, the Grand Chamber found that there had been a violation of Article 8 as Russia to provide protection and recognition of the applicants’ relationships.

Commentary

Importantly, this case finally ends the discussion surrounding the extension of the reasoning in Oliari where the Court, for the first time, found there was an obligation on Italy to provide legal recognition and protection for same-sex couples. We see now that this positive obligation is no longer Italy-specific and a State Party which has not provided a legal framework for same-sex couples to recognise their relationship would most likely be seen as violating Article 8. Whilst this is a big step in the direction of equality for same-sex couples, there remain a variety of issues with the reasoning offered by the majority in this case, including the Court’s sidestep of examining either Article 12 or Article 8 in conjunction with Article 14. Such points are important, however, they have been examined in previous blogposts here and here. With this latest Grand Chamber judgment, the aim is to unpack the majority’s reasoning which continues to try to (and arguably fails at) navigate through the space of what recognition and protection means under the Convention (i), and the role the consensus doctrine will play in the widening of the margin of appreciation under Article 8.

The ongoing saga of Article 8 for same-sex couples

First, what does it mean for a couple to be protected and recognised under Article 8? Once again, same-sex couples – and States Parties – are left in the dark on this. The Grand Chamber sets out that there are a few basic requirements – confirming Vallianatos and Oliari – that domestic legislation must provide for, such as taxation, inheritance, and rights associated with mutual assistance. However, there is no clear structure or requirements for such protection as long as it is ‘adequate’. What such adequacy means remains for the State Party to outline within these very broad (and in some situations, vague) criteria placed by the Court.

Furthermore, it is within a State Party’s margin of appreciation to offer two different – but substantively similar – forms of recognition, but only make one of them available to same-sex couples. This approach continues the ‘same same but different’ line of reasoning (discussed in greater depth here). It is disappointing to see that after 13 years, since the seminal case of Schalk and Kopf, the Court has not moved any further away from this path. On the one hand, the Court’s reasoning has progressed with the understanding that there is a positive obligation on States Parties to provide a legal framework that protects and recognises same-sex couples. On the other hand, what such protection actually looks like is left to States Parties to create as opposed to the Court clarifying what Article 8 protection should be for same-sex couples. It is disheartening to note that Judge Wojtyczek, in his dissenting opinion, states that the Court’s mandate ‘does not encompass primary norm-making: either for the purpose of adapting the rules in force to social or societal changes or for the purpose of filling the lacunae in rights protecting or curing other shortcomings of the Convention’. Even if we were to agree with Judge Wojtyczek, it is difficult to see how the solution he offers – the creation of new treaties – could be successfully implemented when such treaty creation/amendments would require agreement from States Parties that actively practice excluding same-sex couples from the protection and recognition that they sorely need. Whilst I agree with Judge Wojtyczek that a ‘Convention that constantly adapts to the prevailing wisdom cannot guarantee rights which are genuinely practical and effective’, I find it naïve to think that State Parties would ‘only [be] incite[d] (…) to introduce the necessary reforms and improvements more frequently by way of new treaties’. Whilst this approach has worked in the past on issues that are perhaps perceived to be less morally contentious (e.g. Protocol No. 13: Abolition of the Death Penalty), it is not the case with respect to minority groups that have suffered decades of discrimination and stigmatisation not only from State Parties but the Former Commission and the Court.

Are we still counting on a consensus?

Second, the Court’s application of the consensus doctrine on this issue continues to be problematic. This blogpost does not purport to disagree that there is a consensus in favour of the recognition of same-sex couples. However, how the Grand Chamber comes to this conclusion is deeply concerning for the future of the right to marry. In this case (albeit not for the first time), the Court has grouped together States Parties which have allowed for same-sex couples to marry and Member States that have allowed for same-sex couples to be recognised under another form of protection such as registered partnership. The issue with such an approach is that it conflates two very separate forms of recognition – so separate, in fact, that the Court has acknowledged it is for the States Parties to decide which one should apply for same-sex couples – that are protected by two different Convention articles – Article 12 and Article 8, respectively. For example, the Court stated that there are 30 Member States which provide for the possibility of legal recognition for same-sex couples. These 30 Member States are divided between 10 for marriage, 12 for non-marital recognition, and 8 which provide both marriage and non-marital forms of recognition for same-sex couples. I argue that Member States which allow solely for same-sex marriage should not be included in this final number for the consensus doctrine as the Court has explicitly stated that Article 8 alone – or in conjunction with Article 14 – cannot be an alternative pathway to realising marriage equality under Article 12. It is thus confusing how marital recognition can be recognised as a criterion for the consensus doctrine under Article 8, and yet, the right to marry is so blatantly excluded from the Court’s reasoning throughout this case (and many preceding it). Put differently, how can the Court include both forms of recognition – marital and non-marital – under this umbrella ‘right to recognition’ term it has read into Article 8, and yet not acknowledge that it is discriminatory if a State Party actively excludes same-sex couples from the right to marry? It appears that marital recognition of same-sex couples is a bonus to the Court’s consensus reasoning under Article 8 but is noticeably absent under Article 12. This conflict leads to the final related point on the weight of the consensus doctrine in this area of case-law.

When deciding the width of the margin, the Grand Chamber outlined three factors: the margin will be narrowed when a particular important facet of an individual’s identity is at stake (i) and there is a consensus among the Member States (ii). Conversely, the margin will be wider where there is no consensus, particularly where the case raises sensitive moral or ethical issues (iii). As this issue clearly concerns both an important facet of an individual’s existence (a narrowing criterion) as well as the label of being morally sensitive or ethical (a widening criterion), it could, prima facie,appear that the consensus doctrine plays an important role in determining the margin. 

It is crucial, however, that scholars and strategic litigants do not underplay the weighting of the morally sensitive and ethical nature for determining the margin of appreciation. Whilst this element is often used in tandem with the non-existence of a consensus as a widening criterion of the margin of appreciation, it should be noted that even when the Court has found there to be a strong consensus, there is no guarantee that this will definitively narrow the margin of appreciation if the morally sensitive nature of the issue has not been removed. Indeed, this was a similar argument initially made in the case-law on abortion, and I argue that we are now veering into a collision course that is reminiscent of A, B and C v. Ireland if scholars and strategic litigators try to latch on the consensus doctrine as their guiding argument. There is no indication that the consensus doctrine will be able to decisively narrow the margin of appreciation with respect to either obliging Member States to allow for same-sex marriage through this broad legal framework of recognition and protection under Article 8 or through a more progressive and liberal interpretation of Article 12.

In connection to this point, I think the dissenting opinion from Judge Wojtyczek is telling of the debate had among the bench concerning the role of the consensus in future cases on this issue. Judge Wojtyczek identifies the methodological concern surrounding the application of the consensus doctrine as justification for a dynamic interpretation of the Convention. He holds that the fact the majority referred several times to ‘a “clear ongoing trend”…usually suggests that the interpretation adopted is not supported by other strong arguments relying on the interpretative rules accepted in international law’. Furthermore, he states that there ‘is an implicit recognition that there is no consensus among the High Contracting Parties on the relevant standards. It does not appear either that there is any evolving convergence as to the standards to be achieved’. He concludes, perhaps most tellingly, that ‘Europeans are also very divided on fundamental anthropological and moral ideas constituting the foundation of human rights, and the divergence in this domain has tended to grow in the last few decades’. This perspective is supported in the dissenting opinion of Judge Lobov who concludes in his separate dissenting opinion that this judgment ‘is more likely to deepen the division and heighten the clash resulting from divergent societal visions in Europe’. Thus, it would be wise to heed these separate opinions as there is a very clear ongoing discussion on the role of the consensus doctrine on human rights issues that are seen to be morally contentious to many States Parties.

Conclusion

With this in mind, I suggest that the focus should radically shift away from Article 8 protection to the inclusion of Article 14 in conjunction with Article 12 (see here for further development of this argument). This is supported by Judge Pavli joined by Judge Motoc in their partly dissenting opinion where they expressed their discontent that the Grand Chamber did not explore the arguments under Article 14. Noting, in particular, that ‘laws have a moral dimension and they help shape a society’s moral views’. Moreover, this opinion correctly notes that the majority has found that a State Party’s margin of appreciation ‘is “significantly reduced” when it comes to affirming same-sex couples some form of legal recognition…but the scope of State appreciation is “more extensive” in determining the exact nature of the relevant legal regime’. Thus, they correctly identify that ‘[f]uture legal battles on the rights of same-sex couples will play out in the space between the “significantly reduced” and the “more extensive” benchmarks of the States’ margin of appreciation’. To avoid this future, there needs to be a greater emphasis on the difference of treatment experienced by same-sex couples by not being able to access marital recognition. The majority has opened the possibility for a more flexible interpretation of what ‘family’ means under Article 8 in this case, and there should be no reason that a similar reading cannot be applied to ‘marriage’ under Article 12 in conjunction with Article 14.