Scandalous order of the ECtHR: Russia must introduce civil unions, in spite of the opposition of most Russians and it does not stem from the Convention

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● Three same-sex couples sued Russia before the European Court of Human Rights, demanding almost EUR 80,000 in compensation for ‘harm and expenses’ incurred as a result of their inability to marry.

● The ECtHR ruled that Russia had violated their right to respect for private and family life, but refused to award the amount requested.

● In the reasoning of the judgement, the Court, contrary to the provisions of the Convention and the applicable law, stated that the state is obliged to institutionalise same-sex partnerships, even if the majority of the society opposes it.

● The Court’s judgement is based on doubtful legal arguments, omitting Art. 12 of the Convention, which defines marriage as a relationship between woman and a man.

The case concerned three same-sex couples who at different times submitted declarations of the will to marry to Russian registry offices. The offices refused, referring to Art. 1 of the Russian Family and Guardianship Code, defining marriage as a voluntary relationship between a woman and a man. The couples attempted to challenge the decision of the authorities before the courts, which, however, upheld it, pointing out that neither national law nor international law obliges the authorities to promote or support same-sex relationships.

The first couple in 2010, and the second and third couple in 2014, lodged complaints with the European Court of Human Rights in Strasbourg, alleging that Russia had violated their right to respect for private and family life (Article 8 of the European Convention on Human Rights). In their complaint, they demanded to be awarded EUR 50,000 in compensation for ‘non-pecuniary loss’ and an additional EUR 27,900 in reimbursement for the alleged attorneys’ expenses.

In the proceedings before the Court, the Russian government presented a position in which it argued that the inability to marry by same-sex couples stems from the desire to protect the traditional family model based on the union between a woman and a man. Russian public opinion polls show that 80% of Russians are against the establishment of homosexual ‘marriages’. In addition, the Russian government referred to the need to protect children from the promotion of homosexuality, which may endanger their health and morals by instilling a distorted vision of family relationships in them.

In 2020, the Russian parliament passed an amendment to the Constitution of the Russian Federation, obliging federal and local authorities to ensure the protection of “marriage in the form of a union between a man and a woman”.

In the summer of 2021, the ECtHR pronounced that Russia violated Art. 8 of the Convention by not giving same-sex couples the possibility of formalising their relationships. In the opinion of the Court, a same-sex couple does not differ in any significant way from a relationship between a man and a woman, and therefore they should be protected by domestic law. The ECtHR stated that the protection of marriage provided for in the Russian constitution and the protection of the traditional family declared by the government do not oppose the institutionalisation of same-sex relationships, these values being not mutually exclusive. The Court considered the opinion of the Russian public to be irrelevant, pointing out that “respect

for the rights of minorities cannot depend on the acceptance of the majority”. On the other hand, the Court completely rejected the argument of protecting children against the promotion of homosexuality, stating that it was “irrelevant”.

The Court refused to award the applicants compensation, stating that the finding of a violation was in itself sufficient compensation for their non-pecuniary damage, and did not award the applicants attorneys’ expenses, pointing out that they had not been shown with a sufficiently reasonable degree of probability.

“The judgement in the Fedotov case is a step forwards in relation to the previous line of jurisprudence of the Court in Strasbourg, which since 2010 has been striving to impose so-called same-sex marriage or same-sex partnerships on the Member States of the Council of Europe. The argument of the Court is surprisingly doubtful in legal terms, as there is no provision in the European Convention on Human Rights that would grant same-sex couples any special rights. On the contrary, Art. 12 of the Convention defines marriage as the union between a woman and a man. The Tribunal, in a way omits this provision, referring to Art. 8 of the ECHR, which guarantees everyone the right to respect for private and family life. Also, this article lacks any mention of same-sex relationships, but the ECtHR interprets it with a substantial amount of creativity, arguing that ‘family life’ within the meaning of this provision is also meant to include homosexual relationships. Such an interpretation is not only contrary to the letter of the Convention, but also to the intentions of its authors, who during the legislative work did not discuss the status of same-sex relationships at all, so they could not want to establish a compulsion to institutionalise this type of relationship. Unfortunately, the Court does not pay attention to this, and in order to implement its concepts, it is ready to ignore the laws of democracy and the opinion of the majority of society, as in the present case, in which it disavowed the importance of the opposition of 80% of Russians to the establishment of same-sex ‘marriages’”, said Ms. Karolina Pawłowska, Director of the International Law Centre of the Ordo Iuris Institute.

The case of Fedotov et al. v. Russia, ECtHR judgement of July 13, 2021