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Media brief: Fedotova and others

The European Court of Human Rights issued its judgment in the case of Fedotova and Others v. Russia (applications nos. 40792/10 and 2 others) at a public hearing on 17 January 2023 at 11 a.m. in Strasbourg.

The case concerns the Russian authorities’ refusal to ensure legal recognition and protection for the applicants as same-sex couples. LGBTI Organization Deystvie intervened in the case, together with 7 other LGBTI rights groups in the region. We have argued in favor of the applicants and against the Russian government, by claiming there is a positive obligation under Article 8 of the Convention for adopting a specific legal framework providing for the recognition and protection of same-sex unions. We also claimed that Russia’s refusal to regulate a specific legal framework providing for the recognition and protection of same-sex unions amounts to discrimination, in violation of Article 14 in conjunction with Article 8 of the Convention.

LGBTI Organization Deystvie made these claims in light of the experiences of families that do not benefit from legal recognition and protection, sociological and psychological studies and comparative law analysis. The interveners have shown how the lack of legal recognition and protection leads to real harms affecting these families in various aspects of their everyday life and how the legal exclusion fosters more discrimination and stigmatization, while equally recognising and protecting all families brings about positive developments in society, in the law, and in the state of well-being of individuals concerned and their families.

Summary of the Amicus Curiae

The amicus argues that restrictions of legal recognition of family based on sexual orientation is not justifiable in a democratic state and that moreover it is a direct violation of basic human rights. Legal exclusion of same sex families leave them in the situation of falling through the safety net of the social protection system – they remain unacknowledged, unincluded, and therefore unsupported.

The amicus goes to show how same-sex families endure real harms due to lack recognition and legal protection from the State. Every day of delay is a day of tangible injury and real costs, injury and costs the State does not even acknowledge. By denying access to equal marriage, same-sex families are completely unprotected in case of separation, death of a spouse, being able to be with or visit their partner in hospital in case of medical emergencies.

In regards to the argument brought by Russia that not recognizing same-sex families protects the tradition of the country and comes from the lack of acceptance of the Russian society towards the LGBTQIA+ community, the Amicus argues that same-sex unions not being legally protected is a human rights violation, not a disagreement on the understanding of marriage or a matter of opinion. Although people are entitled to their views, the law is not supposed to discriminate. Moreover, providing equal access to marriage sends a message to society towards accepting gay persons as equal citizens that have the same human value. When it excludes gay people from marriage, the Government’s action is not neutral. It is creating discrimination and reinforcing prejudice, sending a harmful message, branding LGBTI people as second-class citizens whose rights are not important to uphold. And time is not neutral either. Waiting is not a neutral thing; every day of delay in upholding equal treatment and human right guarantees is a day of real harm to real people. Denying equal access to legal protection encourages homophobia.

This Court has previously held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship. The amicus urges the Court to stand firm and strengthen the values that in turn strengthen Europe. In the last 10 years, since the Court’s judgment in Schalk and Kopf, we have seen Austria (2019), Denmark (2012), Finland (2017), France (2013), Germany (2017), Iceland (2010), Ireland (2015), Luxemburg (2015), Malta (2017), Portugal (2010), Switzerland (2021), and the United Kingdom (2014) ending the exclusion of same-sex couples from marriage, showing accelerated momentum in much of democratic Europe. Same-sex marriages will soon be legal in Andorra (2023). An additional twelve European countries legally recognise some form of civil union, namely Croatia, Cyprus, the Czech Republic, Estonia, Greece, Hungary, Italy, Latvia, Liechtenstein, Monaco, Montenegro, and San Marino.

Why is this important for Bulgaria?

Currently, same-sex couples in Bulgaria face the same issue.

A positive judgment from the Grand Chamber will send a clear signal to all states part of the European Convention of Human Rights that the legal protection of same-sex couples cannot be put on hold for eternity. All countries that fail to regulate civil partnership and/or equal access to marriage are liable to be held in violation of Article 8 and Article 14 of the Convention – obligation to protect private and family life and to secure a life free from discrimination for all citizens. Currently, LGBTI Organization Deystvie is awaiting decisions from ECHR in the case of Koilova and Babulkova v. Bulgaria (application № 40209/20).

What is the Fedotova and others v. Russia case about?

Six Russian citizens, Irina Fedotova, Irina Shipitko, Dmitriy Chunosov, Yaroslav Yevtushenko, Ilmira Shaykhraznova and Yelena Yakovleva, form 3 same sex couples. On various dates the applicants gave notice of their intention to marry at their local registry offices in Moscow and Gryazi. Their applications were rejected. The applicants challenged those decisions in the courts, which upheld the administrative decisions.

Relying on Articles 8 (right to respect for private and family life) and 14 (prohibition of discrimination), the applicants complained, in particular, that they had been discriminated against on the grounds of their sexual orientation because they had no means of securing a legal basis for their relationship as it was impossible for them to enter into marriage or any other formal union. The application was lodged with the European Court of Human Rights on 20 July 2010.

The Court judgement was issued on July 13 2021. The judgement reiterates there is a positive obligation to set up a legal framework guaranteeing the effective enjoyment of the rights enshrined in Article 8. The Court noted in particular the impact on an individual when there is a discordance between the law and social reality, as in the present case. As regards same-sex couples, the Court reaffirmed that they were just as capable as different-sex couples of entering into committed relationships, with a need for formal acknowledgment and protection of their relationship. It was incumbent on the States to take that into account, and to strike a balance between their needs and those of the community at large.

The Court determined that there was no justification for the applicants’ not being able to place their unions on a legal footing. In particular, regarding the argument that a majority of Russians disapprove of same-sex unions, the Court stated that access to rights for a minority could not be dependent on the acceptance of the majority. The Court furthermore reiterated that giving the applicants access to formal acknowledgment of their couples’ status in a form other than marriage would not be in conflict with the “traditional understanding of marriage” prevailing in Russia, or with the views of the majority to which the Government referred, as those views opposed only same-sex marriages, were not against other forms of legal acknowledgment.

As a result, the Court held that Russia had failed to meet its obligations under Article 8, leading to a violation of the Convention.

On 12 October 2021, the Russian Government requested that the case be referred to the Grand Chamber to be reassessed. On 22 November 2021 the Grand Chamber panel of five judges decided to refer the case to the Grand Chamber. The public hearing scheduled for April 27 2022 was canceled because of Russia’s withdrawal from the European Convention of Human Rights following its attack on Ukraine. However, all court judgements remain mandatory for those cases filed before September 1st 2022 and consolidate the jurisprudence of ECHR, which is obligatory for all contracting states, including Bulgaria.

Who are the interveners?

1. ACCEPT Association is the first non-governmental organisation (NGO) in Romania who promotes the human rights for LGBT persons since 1996. Its vision is to live in a society where sexual orientation and gender identity are simply innate characteristics of the human being.

2. Youth LGBT Organization Deystvie is an LGBTI organization from Bulgaria, founded in 2012. Deystvie is dedicated to contributing to the change in the lives of LGBTI people in Bulgaria through legislative change and regulation of the rights of same-sex partners and their families. Our vision is to achieve full legal recognition and social inclusion of LGBTI people in Bulgarian society, in which they feel safe and acknowledged.

3. National LGBTI Rights Organization LGL, founded in 1993, aims to attain effective social inclusion and integration of the local LGBTI community in Lithuania and strives for consistent progress in the field of human rights for LGBTI people. LGL actively advocates for same sex family rights recognition at the national and regional level.

4. Love Does Not Exclude Association — Stowarzyszenie Miłość Nie Wyklucza is a Polish NGO, founded in 2009, committed to introducing marriage equality in Poland. Our goal is to ensure the right to marry for all, regardless of their sexual orientation and gender identity. We are working towards it via social campaigns, educational projects, advocacy initiatives and strategic litigation.

5. Polish Society for Antidiscrimination Law, founded in 2006 and based in Warsaw (Poland), is an NGO consisting of law practitioners. It aims to promote the protection of human rights, anti-discrimination, the principle of equal treatment regardless of gender, age, race and ethnicity, sexual orientation, religion and beliefs and disability.

6. Iniciatíva Inakosť (Otherness Initiative) is the main human rights NGO working to achieve equality for LGBTI people in Slovakia. Inakosť was founded in 2006 and its main activities include advocacy for the human rights of LGBTI people, public education campaigns about LGBTI people, Slovak Queer Film Festival (FFI), community organizing, human rights training, research and data collection.

7. Insight public organization is an NGO from Ukraine working on reaching LGBTQI equality and protecting the rights of LGBTQI people.

8. Sarajevo Open Center is an NGO working to advance human rights for LGBTI people and women in Bosnia and Herzegovina, through representation, advocacy for legal, policy, economic, social and cultural changes in all areas of life.

Outcomes from the Judgement

In its Judgement form 17 January 2022 on the case of Fedotova and Others v. Russia the Court held that there had been a violation of the right to respect for private and family life.

The Court reiterates that while the essential object of Article 8 of the European Convention on Human Rights is to protect individuals against arbitrary interference by public authorities, it may also impose on the State certain positive obligations to ensure effective respect for the rights protected by Article 8.

The Court observes that the case before it raises the issue of whether Article 8 of the Convention gives rise to a positive obligation for States Parties to allow same-sex couples to enjoy legal recognition and protection of their relationship.

In the present case, the Court is not called upon to examine whether the fact that it was impossible for the applicants to get married in Russia breached the Convention. It reiterates in this connection that the applicants’ complaint of a violation of Article 12 of the Convention has been rejected as being manifestly ill-founded in a final decision.

The present case concerns the absence in Russian law of any possibility of legal recognition for same-sex couples, regardless of the form such recognition may take. The Russian legal framework cannot be said to provide for the core needs of recognition and protection of same-sex couples in a stable and committed relationship.

The European Court of Human rights examines the reasons put forward by the respondent State to justify the lack of any legal recognition and protection for same-sex couples. The Government relied on traditional family values, the feelings of the majority of the Russian population and the protection of minors from promotion of homosexuality.

The Court considers that the protection of the traditional family cannot justify the absence of any form of legal recognition and protection for same-sex couples in the present case.

The Court has rejected the Government’s argument that the majority of Russians disapprove of homosexuality, in the context of cases concerning freedom of expression, assembly or association for sexual minorities. That 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 to freedom of religion, expression and assembly would become merely theoretical rather than practical and effective as required by the Convention.

The Court finds that these considerations are entirely relevant in the present case, meaning that the allegedly negative, or even hostile, attitude on the part of the heterosexual majority in Russia cannot be set against the applicants’ interest in having their respective relationships adequately recognised and protected by law.

The Court finds that none of the public-interest grounds put forward by the Government prevails over the applicants’ interest in having their respective relationships adequately recognised and protected by law. The Court concludes that the respondent State has overstepped its margin of appreciation and has failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life.

There has therefore been a violation of Article 8 of the Convention.

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