Milestone or missed opportunity? The ECtHR Grand Chamber judgment in Fedotova v. Russia on the legal recognition of same-sex couples

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On the 17th of January 2023, the European Court of Human Rights issued its long-awaited Grand Chamber judgment in the case of Fedotova v. Russia (nos. 40792/10, etc).

Although the Court has dealt numerous times with the rights of same-sex couples, this was the first time that the Grand Chamber had to deal with the question whether the European Convention of Human Rights entailed a general positive obligation to provide same-sex couples with a form of legal recognition (be it marriage or equivalent). Incidentally, this was also the first Grand Chamber decision towards Russia after the State ceased to be a party to the ECHR (16 September 2022) and a member of the Council of Europe (16 March 2022).

The Court held, by fourteen votes to three, that Russia violated Art. 8 ECHR since it failed to justify the absence of means of legal recognition available for same-sex couples on grounds of public interest. Russia had indeed relied on grounds such as the importance of the “traditional family”, the negative views expressed by the majority of Russians, and the protection of minors from promotion of homosexuality. However, the Court decided it could not accept such justifications as these ultimately proved a general moral disapproval towards same-sex unions (see esp. para. 217 where the Court affirmed it could not “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”). Furthermore, Russia failed to identify any objective individual or societal harm posed by the recognition of same-sex unions: “In the present case, 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. 212).

In addition, the Court unequivocally found a general positive obligation to be existent. In doing so, the Grand Chamber relied on the previous case-law (which was indeed a grey area) as it was consolidated by a “clear ongoing trend”, both at national and international level, towards the legal recognition of same-sex couples.

Since the Grand Chamber has not departed substantively from the legal reasoning of the Chamber, this Post will only focus on the main relevant points of the judgment (however, for a more detailed discussion of the legal reasoning and comparisons with previous case-law see our previous comment on the Chamber decision of July 2021 here).

1. A right to a “private social life”?

It has to be noted that the Court found Art. 8 to be applicable not only in its traditional sense, but also since it guarantees the right to lead a “private social life”, that is to say the right to develop one’s social identity (paras. 143-144). The Court describes this right as “the possibility of approaching others in order to establish and develop relationships with them” (ibid.). When applied to the situation of same-sex couples, this amounts essentially to the idea that sexual orientation has not only a private but also a public dimension and that same-sex couples should be in principle free and able to decide how to present themselves to society.

The concept of a right to a “private social life” was basically developed in cases related to privacy in the workplace (see e.g., Barbulescu v. Romania, [GC] 2017), and it is the first time that the Court links it to the legal recognition of same-sex couples, by referring to Dadaouch v. Malta where it held that “a person’s civil status (be it married, single, divorced or widowed) formed part of his or her personal and social identity” (para. 143).

Truth be told, this idea that legal recognition of same-sex couples forms part of their social identity is not new. In numerous cases, the Court has highlighted that official recognition constitutes “an intrinsic value” for same-sex couples (…). But this is the first time that the Court translated this idea in a legal right protected by Article 8.

It is possible that this new right will open new doors and could be further developed to argue that all forms of legal recognition should be available to both different-sex and same-sex couples. As of now, however, the relevance of such rights seemed to have been overlooked in the Court’s case law (see Hamalainen v. Finland, where the Court disregarded the choice of a transgender person who wished to stay married after having transitioned; or see Ratzenbock and Seydl v. Austria, where a different-sex couple wanted to access civil partnerships instead of marriage because of personal beliefs; or also Orlandi v. Italy, where the Court considered that downgrading same-sex marriages contracted abroad in civil unions was Convention compliant).

2. Consensus as a means of Treaty modification?

To consolidate the positive obligation, the Grand Chamber heavily relied on national and international consensus, i.e. what was described as the “clear ongoing trend within the member States of the Council of Europe” (para. 178) in regard to legal recognition of same-sex couples (30 out of 46 CoE members). Consensus was therefore resurrected after the Third Section of the Court decided (deliberately?) not to mention it in its previous Chamber judgment.

The use of consensus of the Court were heavily criticized by Judge Wojtyczek (dissenting). According to his Opinion, the Grand Chamber relied on consensus to trigger a “major change of the rights protection paradigm” and “add new rights” to the Convention, since the treaty was originally designed to protect exclusively different-sex couples and families (para. 3.3). Accordingly, the operation of the Grand Chamber was not one of dynamic interpretation but rather one of treaty modification that exceeded the Court’s mandate.

Recently, the use of consensus in human rights adjudication has been the subject of extensive debate, as it raises various criticalities (see e.g. three books, here, here, and here, and the latest comparative analysis here). It is difficult to disagree with Judge Wojtyczek when he highlights that the particular use of consensus as a means of interpretation to derive new rights from the Convention is problematic. First of all, it appears problematic from a methodological point of view, since it is not clear how consensus should be assessed (is it by looking at social perceptions? By use of surveys? A comparative assessment of legislation?); neither is clear which is the relevant consensus (national? International?), nor how much consensus is really needed (the majority of States Parties? All States? Let us recall that in A, B and C v Ireland the Court justified the State’s excessive ban on abortion despite having a unanimous consensus of States parties contrary to it).

Secondly, the use of consensus in the context of minorities rights is problematic from a substantive point of view, since it makes the enjoyment of Convention rights conditional to the position of (at least) the majority of States Parties (see also here). This runs contrary to the well-established antimajoritarian principle underlying Convention rights, that the Court has also employed in para. 218 in order to disregard the relevance of the negative views of the majority of Russian people towards same-sex couples: “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”. This inconsistency is rightly noted by Judge Wojtyczek, who points out: “If one assumes that the case is indeed about the exercise of rights granted in the Convention, then the question arises whether it is compatible with the underlying values of the Convention for the exercise of Convention rights by a minority group to be made conditional on its being accepted in domestic legislation by the majority of States” (para. 3.3 of his Dissenting Opinion).

Finally, consensus might be problematic from an inter-temporal point of view, since it is not granted that the trend would grow inevitably. Consensus can also “go backwards”, as it seems to currently be happening in some CoE States, where “a climate of opposition to LGBT human rights has simultaneously gained ground” (see the CDDH Report on the implementation of Recommendation CM/Rec(2010)5 of the Committee of Ministers, 2019, para. 12). What would happen if consensus does regress? Would this hinder the protection that same-sex couples enjoy under the Convention?

It is true, as Wojtyczek suggested, that sometimes the Court have acted as the presence or absence of sufficient consensus was an indication that a certain Convention right existed or non-existed for same-sex couples. For example, in Schalk and Kopf, the Court affirmed that same-sex couples could not claim a right to registered partnership before the time Austria had decided to introduce them, since there was no “established consensus”. On the other hand, in Oliari v. Italy, the Court found that same-sex couples were entitled to a legal framework, as a “thin majority” of Member States afforded that kind of protection. The same can be said for the right to same-sex marriage. The Court has always rejected applications under Art. 12 (before Fedotova see Chapin and Charpentier v. France, 2016) because of the lack of consensus, but it is constantly hinting that this position might eventually change (see for ex. Orlandi v. Italy, para. 192: “States are still free […] to restrict access to marriage to different-sex couples”).

However, in Fedotova consensus does not appear to be used as an alleged means of treaty modification, as it might have been the case for previous case-law. In fact, the Court started its analysis by examining its case-law and established that Art. 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”” (para. 164). Then, the Court focused on the national and international consensus in order to consolidate this findings. Therefore, consensus was never the sole basis, neither the main justification for finding the positive obligation to be existent. The Court was careful to avoid this confusion and thus highlighted in paras. 179-180 that “this interpretation of Article 8 is guided by the concern to ensure effective protection of the private and family life of homosexual people” and by “the values of the “democratic society”” such as “pluralism, tolerance and broadmindedness”, and furthermore in line with “the general spirit of the Convention”. Therefore, the Court did not seem to have created new rights, but it rather derived those rights from a functionalist and contextual interpretation of Art. 8 in light of the general principles and values of the Convention.

3. Consensus as a means of Treaty interpretation

Consensus was also used to establish that States have a certain margin of appreciation in implementing the obligation and determining the exact nature, form and content of the legal framework to be adopted for same-sex couples (paras. 183-190). This appears to be the most suitable way to conceive and use consensus, namely as a means of treaty interpretation in order to clarify the scope of existing treaty obligations. By way of rules of interpretation, if a multilateral treaty obligation is not clear as to its content, it is perfectly understandable to look at implementational trends from States practice (cfr. Art. 32 VCLT). Therefore, since Art. 8 does not specify the content or form of the legal framework, States might have more or less margin of discretion in legislating depending on the trends observable in other countries.

In this regard, however, the Court does not say much. It limits itself to underline that, in the absence of a clear consensus, States can decide the form of the recognition, and the content in terms of rights and duties, as long as they make sure to afford “adequate” protection to same-sex couples (para. 190). In the same paragraph, the Court also mentions that it has referred in its case-law (Vallianatos, para. 81; Oliari, para. 169) to certain aspects that are integral to the life of a same-sex couple and that would benefit from being regulated within a legal framework. Nevertheless, little practical guidance is offered by the Court, leaving space for future litigation on this point (consider for example that in many countries civil unions do not entail the duty of fidelity, would this be a legitimate difference?).

4. Art. 14 examination: was it really unnecessary?

In line with the Chamber judgment, the Grand Chamber did not find it necessary to examine the complaint under Art. 14. As per the Dudgeon formula, the Court can limit the examinations to Art. 8 alone if the alleged discrimination is not a “fundamental aspect of the case” (Dudgeon v. UK, 1981, para. 67). Regardless, as it was noted by scholars and in this case also by judges Pavly and Motoc (partly dissenting), it is puzzling to maintain that the applicants’ sexual orientation was not the main raison, if not “the sole basis” (para. 4 of the Partly Dissenting Opinion), for denying them any form of legal recognition.

The majority appears conscious of this aspect of the case by reasoning almost entirely in terms of equality throughout the judgment. At para. 202, the Court seems to apply the typical comparative assessment of Art. 14, recalling that “same-sex couples, like different-sex couples, have “basic needs” for protection” and that both couples are in a relevantly similar situation as regard their need to recognition (see esp. para. 208, 211, 218). In order to reject the claims of public interest put forward by the Russian State, the Court refers to arguments deriving from equality principles and from its case law on Art. 14.

As regard to the correct choice of examination, it must be noted that analysis made under Art. 8 or Are 14 are similar (both needs a legitimate aim of public interest to justify restrictions, and these should be necessary and proportionate). However, by examining the case under Art. 14 instead of Art. 8, the Court could have avoided much of the criticism related to the use of consensus in treaty interpretation. While Art. 8 entailed examining whether the positive obligation actually existed, Art. 14 could have provided for a simpler comparative analysis with no underlining issues of dynamic interpretation. Art. 14 embodies a simple principle: equal entitlements under equal conditions. Therefore, if the Court agrees that different-sex and same-sex couples are similar as their need to legal recognition, and if different-sex couples enjoy access to a formal union, the same entitlement should be granted to same-sex couples by virtue of Art. 14. The dynamics of non-discrimination are syllogistic, while instead consensus analysis is often based on (much less solid) policy considerations. In this regard, compare with the IACtHR Advisory Opinion on the recognition of same-sex couples that rejected arguments based on consensus and privileged considerations based on equality (here).

On the other hand, it may also be implied that, by constantly omitting art. 14 when it comes to core Convention rights such as legal recognition (or marriage), the Court is endorsing an heteronormative narrative (see here) whereby different-sex couples and same-sex couples have different entitlements under the Convention. Therefore, one could maintain that the couples are not really equal in the Court’s eyes (see more broadly here), as it also suggested by Judge Wojtyczek (para. 3.5 of his dissenting opinion).

Lastly, Art. 14 might have been useful also to avoid the uncertainty regarding the content, in terms of rights and duties, of the legal framework destined to same-sex couples. Per relationem with the situation of different-sex couples, the Court could have better defined the characteristics of a legal regime that was Convention compliant, instead of referring to indeterminate notions such as “adequate protection” or “core needs of recognition”.

5. The uncertain future of Art. 12 for same-sex couples

The right to marry was the elephant in the room. Although the Court had not examined Art. 12, it appears in fact that originally the couples decided to bring the complaint under this article, but the Section President, sitting as a single judge, declared it was manifestly ill-founded (para. 82). The Russian State insisted, as part of their defence, that the case was all about Art. 12 and thus should accordingly have been rejected by the Chamber (para. 109).

If one looks at the Grand Chamber’s reasoning, it seems evident that many of the arguments raised by the Court are plausible and relevant also for the context of Art. 12. Consider for example para. 211, where the Court rejected the protection of the “traditional family” as a legitimate justification to deny legal recognition, if one rephrases it in marriages terms: “there is no basis for considering that affording [marriage to same-sex couples] could in itself harm families constituted in the traditional way or compromise their future and integrity. Indeed, the recognition of [same-sex marriages] does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term”. Or, again, regarding the importance of traditions: “traditions […] 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” (para. 217). And, finally, as to the views of the majority:

“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” (para. 218).

All these arguments could, mutatis mutandis, be employed in evaluating whether a total restriction on same-sex marriage is Convention compliant. However, in this case the President Section took the strong stance of declaring the complaint under Art. 12 inadmissible. One possible way to look at this is to argue that the Court considers Art. 12 (at least in practice) inapplicable to the case of same-sex couples, as some scholars suggest (here). But then, how to justify the turn that the case-law of the Court has taken in Schalk and Kopf, where the Court held that it “would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex” (para. 61)?

Another possible reading is that the Court considered that there was no sufficient consensus (yet) on same sex marriage to find a violation of Art. 12. Numerous times the Court has in fact hinted that, with the right amount of European consensus, things might change (see in this case paras. 154-155: “an obligation to make marriage available to same sex couples […] cannot be inferred from the Court’s case-law as it currently stands”; or see Orlandi v. Italy, para. 192: “State are still free to restrict access to marriage to different-sex couples”). But then again, the question becomes: how much consensus is really needed to make a plausible and arguable claim? As far as the current state of consensus goes, the momentum that same-sex marriage is gaining both at national and international level seems to be overlooked by the Court. As of today, 19 out of 46 CoE members have introduced marriage available to same-sex couples. For a comparison, at the time when the Court decided that restricting access to civil unions to different-sex couples was discriminatory (Vallianatos, 2013), the same number of CoE members (19) provided for a form of legal recognition to same-sex couples. Perhaps, something more than this is needed. Maybe the same “thin majority” of CoE members that supported the Court’s findings in Oliari. If this is the case, should activist start their countdown, wait for five more CoE States to introduce equal marriage before bringing a strategic case to Strasbourg and allowing the Court to find a violation of the right to marry?

6. Conclusions

Milestone or missed opportunity? When dealing with the rights of same-sex couples, if one focuses exclusively on a legal perspective, the risk is to miss the point. Cases such as this one touch upon moral values, conceptions of human relationships, dynamics of power and democracy. Their decisions are often informed by considerations of judicial policy, authority and legitimacy of the Court. Therefore, it does not seem entirely appropriate to assess Fedotova exclusively by saying whether the Court “applied the law” correctly or not.

All in all, the judgment presents the positive aspect that the Grand Chamber confirmed and consolidated its case-law on legal recognition of same-sex couples, affirming the existence of a general positive obligation that is de facto binding for every State that does not currently provide for neither equal marriage nor civil unions (see some Fedotova-like cases that are currently pending against Poland, cases nos. 18822/18, 11454/17, 11560/19, 131/15, 45301/19, 58828/12, 78030/14, 23669/16, and Romania, no. 5926/20, S.K.K. and A.C.G. v. Romania).

On the other hand, however, since considerations of judicial policy are a factor, one could argue that Court might have taken a different and more proactive stance giving the circumstances of the case (i.e. it could have avoided to rely so heavily on consensus, as the Chamber previously did). It is true that ensuring there is sufficient (if not overwhelming) consensus allows the Court to affirm rights without going too far, too quickly, thus retaining its legitimacy and authority (see here more broadly). Nevertheless, there is no legitimacy or authority to be retained towards a State that will not be a party to the Convention anymore or towards other States that are manifestly unwilling to be Convention compliant. And it is moreover doubtful that States that morally disapprove of same-sex unions will change their mind after reading a carefully redacted judgment with an overwhelming evidence of national and international consensus. In addition, the acceptance towards same-sex unions of European society is stronger than before and Russian-like positions tend to be marginalized. In this sense, even thought the approach taken by the Court was very well-balanced and careful, one might maintain that Fedotova represents a (at least partially) missed opportunity.

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