14 July 2021
by Kirill Koroteev, head of international practice at Agora International Human Rights Group
Yesterday, everyone was excited by the news that the European Court of Human Rights [ECtHR] had ordered Russia to recognise same-sex marriage. The headlines are exciting, the details – as usual – disappear.
No, it’s not an order and not marriages. Yes, by virtue of international law, Russia has been obliged to recognise same-sex unions for several years already. And no, the new text of the Constitution doesn’t prevent the recognition of these unions.
Eleven years after the first complaint was filed, the ECtHR has finally considered several cases filed by same-sex couples. Previously, they tried to achieve recognition of their relationship by the Russian state, but were refused.
While the complaints were pending in Strasbourg, the ECtHR decided several cases, where it established a clear position that a blanket lack of recognition of same-sex couples is discriminatory. For example, in a case against Poland from back in 2010, the Court found a violation of the prohibition of discrimination under the Convention, because on the death of one spouse, the other could inherit the deceased’s lease under the same conditions, while the same-sex partner of a deceased tenant ended up homeless.
The principle was most clearly articulated in 2015 in the case of Oliari v Italy, where the absence of any recognition of a relationship between two people of the same sex was found to be a violation of the right to privacy. After the Oliari case, there was no ambiguity, and this practice was consistently applied to different countries that did not yet recognise either civil partnerships or alliances in any other form. The ECtHR – unlike, for example, the US Supreme Court – does not require the recognition of same-sex marriages specifically, but some form of civil union, which doesn’t necessarily require the same scope of rights as spouses in marriage.
The decision against Russia is therefore based on an already established practice that arose not yesteryday, but six to ten years ago, and therefore is entirely expected, and was adopted unanimously, including by a judge from the Russian Federation. Russian judge Dmitry Dedov has previously spoken out directly in favour of legalising partnerships. He noted that ‘the legal recognition of such partnerships can be a starting point for protection of all other needs usually arising between family members.’
If we return to yesterday’s decision of the ECtHR, the reference to the Russian law on the protection of minors from propaganda has been rejected by the Court many times, and public opinion cannot serve as a justification for refusing to exercise rights.
It is important that the Constitution of the Russian Federation, even as amended in 2020, does not interfere with the implementation of yesterday’s decision in Fedotova and others v Russia. The Basic Law now enshrines the protection of marriage between a man and a woman among the subjects of the joint jurisdiction of the Federation and its subjects, but no prohibition of same-sex civil unions follows from this. Yesterday the Court added the reminder that traditional heterosexual marriage will not suffer because people of the same sex can register their relationship.
Translated by Mercedes Malcomson