INTERNATIONAL LAW--HUMAN RIGHTS--EUROPEAN COURT OF HUMAN RIGHTS HOLDS THAT RUSSIA MUST GIVE LEGAL RECOGNITION TO SAME-SEX COUPLES.--Fedotova v. Russia, App. No. 40792/10 (July 13, 2021).
The relationship between Russia and the European Court of Human Rights (ECtHR) has been "turbulent" since Russia entered the Council of Europe in 1996. (1) At the time, critics questioned the wisdom of admitting Russia given its poor record of democracy and human rights. (2) In 2015, cracks deepened when Russia's Constitutional Court held that ECtHR decisions conflicting with the constitution could not be implemented. (3) In 2020, the Russian Constitution was amended to, among other changes, codify the primacy of the constitution over international agreements in the case of conflict. (4) The amended constitution also defined a state interest in protecting heterosexual marriage. (5) Recently, the relationship between Russia and the ECtHR was put to the test (6) in Fedotova v. Russia, (7) which held that Russia has a positive obligation to give legal recognition and protection to same-sex couples. (8) While Fedotova lands in a challenging political context, there is still opportunity for the decision to be implemented, opening the door to meaningful improvement in the lives of LGBTQ people in Russia and Eastern Europe.
In 2009, Rene Fet (9) and his partner Irina Shipitko tried to marry in Moscow by applying to register their union. (10) Two other same-sex couples applied to marry in St. Petersburg in 2013. (11) They were denied on the ground that Article i of the Russian Family Code describes marriage as a "voluntary marital union between a man and a woman." (12) Fet and Shipitko contested the decision, arguing that their marriage application complied with the Family Code (13) and that their right to marry was protected by the Russian Constitution and European Convention. (14) The Tverskoy District Court dismissed their claim, (15) and the Moscow City Court affirmed, concluding that "the absence of an explicit ban on same-sex marriage could not be construed as State-endorsed acceptance." (16) The Gryazi Town Court similarly rejected the claims of the other couples. Drawing on the Case of E. Murzin, (17) where the Constitutional Court found no right to same-sex marriage, the Gryazi court held that same-sex marriage contradicts "national and religious traditions[,] ... the State's policy of protecting family, motherhood and childhood, [and] the ban on the propoaganda of homosexuality." (18) The couples appealed to the ECtHR.
The ECtHR found a violation of the European Convention. (19) The court unanimously held that Russia's failure to legally recognize same-sex couples violates their right to private and family life under Article 8. (20) The court explained that Article 8 imposes a positive obligation on states to "ensure effective respect for" private and family life. (21) In assessing compliance, the court balances the "competing interests of the individual and of the community as a whole." (22) Although states "enjoy a certain margin of appreciation"--or discretion--in implementing positive obligations, "where a particularly important facet of an individual's ... identity is at stake," the...