In Fedotova v Russia, the ECtHR found that Russia overstepped the boundaries of its otherwise broad margin of appreciation because it had “no legal framework capable of protecting the applicants’ relationships as same-sex couples has been available under domestic law” (§ 53). This is a step forward from Oliari and others v. Italy, where the national legislature failed to respond to the Italian Constitutional Court’s calls — in the spirit of international trends — to recognize same sex unions. In the Russian case the Constitutional Court put no such pressure on the legislature: in fact, in line with its long-standing jurisprudence in March 2020 the Russian Constitution was amended to specify the protection of “marriage in a form of union between a man and a woman” (Article 72(1)).
Although Fedotova confirms the divide between the recognition of same sex marriage and same sex unions (in the spirit of ‘same but different’), the judgment is significant as it foreshadows a future wherein the familiar line of cases advancing the protection of same sex couples will need to be complemented by a jurisprudence that engages with the backslash against LGBTQI rights. And the European courts appear to be locked in a race to get it right, again. In June 2020, the ECtHR communicated a set of cases concerning the apparent lack of legal recognition for same sex unions and same sex marriage in Poland. The issues range from the Polish authorities’ refusal to recognize same sex marriage concluded abroad (Formela), refusal of a name change that would acknowledge a de facto same sex relationship (Starska), discrimination in inheritance tax compared to married couples (Meszkes) and damages for moral harms resulting from a temporary denial of family insurance (Grochulski). And on 15 July 2021 the European Commission launched infringement action against recent retrogressive measures in Poland and Hungary.
Fedotova and the positive obligation to recognize same-sex unions
In Fedotova, the applicants were attempting to get married in Russia, despite the heteronormative definition of marriage under the Russian Civil Code. Their attempts turned out to be futile, leading the Russian Constitutional Court to declare in 2006 that “no obligation on the State to create conditions for advocating, supporting or recognising same-sex unions flows from either the Constitution or the international obligations of the Russian Federation” (on quote at §25). The Russian Constitutional Court repeated this point in its opinion on the March 2020 law that ultimately inserted a heteronormative definition of marriage into the Constitution (Article 72(1)).
Following its established jurisprudence on positive obligations, the ECtHR turned to assessing the scope of positive obligations under Article 8, balancing the individual rights at stake with the interests of the community as a whole. On the side of individual rights, the ECtHR confirmed the capacity of same-sex couples to enter into committed relationships, and affirmed their need for formal recognition and protection to be relevantly similar to that of different sex couples (§48).
When assessing the interests of the community as a whole, the ECtHR — again — reaffirmed its existing jurisprudence that holds conditioning minorities’ exercise of Convention rights on the approval of the majority to violate the values of the Convention (§52). In response to the Russian government’s submission that the lack of formal legal recognition of same sex unions protected ‘traditional marriage’ the ECtHR stressed that same sex unions do not present a discernible risk to traditional marriage, as “it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives” (§54, also §56).
All in all, the ECtHR found that although there is no explicit requirement under Article 8 to formally recognize same sex unions (§49), the Russian government overstepped its otherwise broad margin of appreciation with providing no legal framework at all to protect the legal relationships of same sex couples (§56).
The terms of the dialogue on positive obligations
It is striking that the ECtHR placed relatively little weight on European trends or an emerging European consensus to provide legal protection to the family lives of same sex couples. Instead, it engaged extensively with the government’s contention that the lack of legal regulation aims to protect traditional families and that it reflects social sentiments. The ECtHR’s approach is best explained in light of power of the Constitutional Court to halt the execution of ECtHR judgments that violate the Russian Constitution (Article 79). This amendment was strongly criticized by the Venice Commission already when it was a simple statutory requirement.
In its recent opinion on the 2020 constitutional amendment the Venice Commission noted that the Russian authorities and scholars were concerned about the manner in which the ECtHR uses the concept of the ‘European consensus’ to define new legal obligations, without regard to the socio-cultural context of a member state (§44). Yet, as the Russian Constitutional Court’s opinion on the 2020 constitutional amendment left ample ambiguity on positive obligations to protect against infringements of fundamental rights on the basis of sexual orientation (3.1, at 17-18), the execution of the Fedotova judgment will trigger further judicial and institutional dialogue (haggling) on LGBTQI rights, a process where pragmatic solutions were seen to compromise human rights in the past.
The Venice Commission set the premises of this dialogue in the following terms: “The Russian Federation has made the political decision to join the Council of Europe and remain a member of the organisation. In ratifying the ECHR and accepting the jurisdiction of the Strasbourg Court, it has committed itself to executing the judgments of the Court” (§62).
From positive obligations to non-retrogression?
The Fedotova judgment opens the chapter where the European courts face backslash against LGBTQI rights, such as the demarcation of LGBT free zones in Poland or the recent ban on the propaganda of homosexuality in Hungary.
In May 2020 Hungary closed the door on legal gender change, a measure that is a major restriction on the rights of transgender and intersex people. In December 2020 it passed a constitutional amendment that makes it a state obligation to ensure the education of children according to their biological sex at birth, in line with the values of Hungarian constitutional identity and Christian values (Article XVI(1)). The amendment also added a clarification on the heteronormative definition of marriage to the Fundamental Law (Article L(1)). The Venice Commission found that with these amendments “there is a real and immediate danger that the amendments will further strengthen an attitude according to which non-heterosexual lifestyles are seen as inferior, and that they will further fuel a hostile and stigmatising atmosphere against LGBTQI people”(§30).
As the next step in rolling back the protection of LGBTQI rights, in June 2021 the Hungarian Parliament passed a ban on the propaganda of homosexuality, similar to the Russian laws that the ECtHR found to violate the Convention in Bayev v. Russia in 2017. The European Parliament called this law an instance of state-sponsored discrimination in a resolution on the very day when the law entered into force(§24). When international objections reached the site of the European Football Championship the Hungarian government responded with a Cabinet resolution that uses human rights language– the rights of traditional families and children — to incite animosity and hate against sexual minorities.
As states are experimenting with legal measures and policies that seek to harm LGBTQI persons, couples and their associations in mundane, everyday settings, the European courts are getting closer to confronting the question of regression (or retrogression) of protection afforded to the rights of LGBTQI persons. While the principle of non-retrogression is familiar from the area of socio-economic rights, it is far from well-developed as a general principle of human rights law. (Not to mention, it is a really contentious terrain in EU law ever since C-399/11, Melloni).
Recently, in the Maltese judges’ case (C-896/19, Reppublika v. Il-Prim Ministru), the CJEU addressed the issue of constitutional retrogression on the level of ground principles. Relying on Article 2 TEU in conjunction with Article 49 TEU it asserted that a Member State’s decision to join the Union is an instance of constitutional pre-commitment (§§ 60-61). This approach clearly resonates with the position of the Venice Commission concerning the consequences of the political decision to join the Council of Europe for compliance with membership obligations. According to the CJEU, a Member State’s free and voluntary commitment to the Union’s founding values at the time of accession entails that a Member State cannot amend its constitution after accession to the effect of reducing the existing protection its constitution provides to the Union’s founding values (para. 63). The consequences of viewing EU accession as a gesture of pre-commitment to the Union’s founding values are significant for addressing national measures that undermine the rule of law, as well as retrogression affecting human rights, equality and human dignity.
While the chilling effect of these measures is extremely important to point out, it does not capture the spirit that animates them. Adopting a law that is identical to the one that the ECtHR had already found to violate the European Convention is hardly an accident, a moment of weakness or recklessness. Rather, it is a calculated measure that reflects a bare desire to harm those who are targeted by it. The genuine way to confront such invidious measures is to expressly confirm the positive obligation of member states to refrain from wilfully harming individuals on the basis their sexual orientation and gender identity. Although — as the ECtHR said on numerous occasions — such state action is clearly incompatible with the values underscoring the Convention, recent developments in several member states call on both courts to state the obvious. The CJEU may have the chance to do so first, especially if the terms of the infringement actions request it to do so.