Fedyatova v Russia

Background

Fedyatova v Russia is a decision of the European Court of Human Rights to consider whether it was a breach of Articles 8 and 14 of the convention for the Russian state to refuse to afford legal recognition and protection of three married same-sex couples. Each applicant attempted to submit a marriage notice to their respective Register Office. On each occasion, the notices were refused, with the authorities relying on the Russian Family Code’s definition of marriage, which is confined to a man and a woman. 

The Claim

The applicants claim that the failure of the Russian state to recognise and protect their relationships in law is a breach of protected rights, namely Article 8 (Right to Respect for Private and Family life) and Article 14 (Prohibition of Discrimination). 

Lawyers for the Russian state argued that the prohibition aimed at legitimate aims, and the interference was necessary in a democratic society. The respondents referred to the duty placed on the Russian government by its constitution to preserve traditional family values and prevent the promotion of ‘non-traditional sex’ between minors. None of these arguments stood the test of the Court’s deliberation, and it was deemed that no realistic and substantial justification for such a stance was put forward by the respondents. 

The Judgement 

There are many noteworthy facets of this judgement, not least of all the consideration of whether the Court retains the jurisdiction to determine allegations made against the Russian state in light of Russia’s withdrawal from the convention from 16th September 2022 onwards. In short, the court ruled that as the applications, and the breaches complained of therein, were made whilst the Russian state was a party to the convention, the court accordingly retains jurisdiction. The respondents, the Russian government, boldly contested this. 

The Court referred to the ‘growing consensus’ across the contracting states and, in doing so, set out treatises & relevant literature from the Court of Justice of the European Union, The United Nations, and The Counsel of Europe, which universally held that the protection of same-sex rights is fundamental. The large majority of Western states are in some way moving to resolve discriminatory practices.  

The Court referred to the 16 contracting party states that do not recognise same-sex marriage in law but nonetheless viewed that there was an overarching consensus amongst states, which was supported by the tenet that the ‘convention is a living instrument’ and must guarantee effective and realisable rights for the citizens within contracting states. Therefore, a positive obligation under Article 8 to recognise same-sex relationships was imposed.

As above, the Court ruled that there was no ‘prevailing community interest that could outweigh the applicant’s individual interests’, and it was deemed that the inference with the applicant’s right to a private life was unfounded. 

Whilst states are under a positive obligation to make legal recognition available to same-sex couples, they do enjoy a margin of appreciation when determining the form that such recognition takes (i.e. if  ‘civil partnership’ is an available option as opposed to traditional marriage). However, that margin of appreciation was not so wide as to allow a state to refuse the right for same-sex couples to have their relationships recognised. Consequently, in a 14 to 3 majority, the Court held that there was a breach of Article 8 in the above case.  

Commentary

The potential long-term issues are perfectly summarised in the two diametrically opposing dissents appended to the judgement. The first, a dissent in part from Judge Pavli and Motoc, criticises the Court’s decision to limit the consideration of the applicant’s case to the breach of Article 8, holding that there was no need to examine the Article 14 claim (Prohibition of Discrimination) as it did not constitute a ‘fundamental aspect of the case’. The justices disagree starkly with this view, writing that the Court should have granted same-sex couples further protection by considering the extent of a state’s margin of appreciation when granting same-sex couples legal recognition. 

Judge Wojtyczek criticises the court from the flank, disagreeing completely with any finding of a breach of Article 8. Judge Wojtyczek’s view is based on the trite principle that the parties to the convention undertook to protect clearly defined legal rights, which did not include protections for same-sex couples at the time of signing. The justice does not oppose these protections being granted. Still, it puts forward that this should be done via the legislative process, and it is not the role of the judiciary to exercise ‘norm-making powers’. The fact that they have done so is antithetical to the very political foundation of the convention; democracy. 

Given Russia’s widespread disregard for international law norms, it is difficult to foresee that the ruling in this case will cause ripples or even be honoured. One may, in fact, take the reasonable view that this case, with all its indication of substantial progression, is merely the Court exposing to the world that it is not dressed in the finery it has been assured of for so long.  

Written by Charlie Jones