No New Rights in Fedotova

In Fedotova and others v Russia issued on 17 January 2023,  the  Grand Chamber of the European Court of Human Rights (ECtHR or the Court), held that Russia had breached its positive obligation to secure the applicants’ right to respect for their private and family life under Article 8 of the Convention by failing to provide any form of legal recognition and protection for same sex couples.

In a post published on 24 January 2023, Zuzana Vikarská argued that this is a significant judgment worthy of greater attention. While I agree with this, I want to challenge the claim advanced in the post that the ECtHR, in this judgment, does not merely interpret an existing right in present day conditions but “creates a new right”. I argue that this is an unconvincing reading of the case, both from a legal doctrinal perspective and from a normative perspective. The ground-breaking aspect of the judgment is, in my view, the clear rejection by the Court of the justifications advanced by the Contracting State.

Fedotova as a departure from previous caselaw

According to the author, the previous Court’s judgments in Oliari v Italy and Orlandi v Italy “have often been misconstrued as having articulated a positive obligation under Article 8 for all States to legally recognise same-sex couples. However, that happened only in Fedotova”. Unfortunately, Dr. Vikarská does not provide us with her own analysis of the way in which Fedotova departs from previous caselaw, but links instead to early blog posts (by Dmitri Bartenev, Renáta Uitz, and Giulio Fedele). As I read them, none of these posts argue that the Court introduced a right in Fedotova which had not already been recognised in the previous cases. Bartenev agrees that ‘Fedotova “should be viewed as the logical development of well-established principles”. It differs from the Italian cases because it is “the first judgment against a Member State which has fiercely opposed the very concept of the legal recognition of civil unions between same-sex couples”. This may well have practical, as well as symbolic implications. But from a legal doctrinal perspective, it is not a relevant difference. A state either has a duty under the Convention to secure a right or it does not. Whether the state itself agrees that it has that duty is not relevant.

It is true that, in Oliari, three of the Judges issued a concurring opinion in which they stated that they “do not see the need to argue that Article 8 imposes on Italy what our colleagues characterise as a positive obligation”, and they indicated that they wanted to restrict the reasoning of the case to the factual circumstances in Italy. However, the concurring opinion is evidence that the majority did not restrict the applicability of the positive obligation to the particular Italian circumstances but laid down a general positive obligation on all Contracting States. This position was reaffirmed in Orlandi, where the majority asserted that Italy had failed to fulfil their positive obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their same-sex unions

As the Grand Chamber put it in para 164 of the Fedotova judgment “It can […] be seen from the case-law of the Court that Article 8 of the Convention has already been interpreted as requiring a State Party to ensure legal recognition and protection for same-sex couples by putting in place a “specific legal framework”. The Grand Chamber merely reiterated that interpretation, albeit against a more openly recalcitrant state.

Fedotova as an illegitimate imposition on Contracting States

Dr. Vikarská insists that, in its judgment, the Court “made the most political judgment of all times”. Questions concerning the legal status of same sex couples are ‘mega political’ in that they concern “matters of outright and utmost political significance”. Such questions should, according to the author, be left to the States and to legislative processes, rather than being decided by the Court.

I agree that the decision is of great political significance. I disagree that this means that the court should not have taken it.

Under Article 1 ECHR, the Contracting States agreed to secure the rights in the Convention to “everyone within their jurisdiction”.

These rights include the right, under Article 8, of respect for private and family life. The Court has found, and the Contracting States have not disputed, that sexual orientation and the ability of an individual to develop their social identity in a manner consistent with that orientation, falls within the personal sphere protected by Article 8 of the Convention. Similarly, the Court found, In Schalk and Kopf v Austria  that “cohabiting same-sex couple living in a stable de facto partnership, fell within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would”.

Where a Contracting State fails to ensure legal recognition and protection for same-sex couples by putting in place a “specific legal framework”, that state fails to provide sufficient protection of the private and family life of same sex couples. As the Court noted in Oliari (para 115) the lack of recognition of their union affected and disadvantaged the applicants in many specific and concrete ways.

This is not a ‘new right’. The right of individuals to develop their personal lives, together with ‘significant others’, to have their relationship recognised and respected by the State and by society at large, is a right that has been recognised in the Convention since its inception. The only difference is that the founders perhaps did not consider that such a right should extend also to homosexual couples. But they were wrong. The text of the Convention requires states to extend the protection to ‘everyone’. Just as the French revolutionaries were wrong when they affirmed that the Declaration of the Rights of Man did not extend to women, even as they put Olympe de Gauges to death for claiming the rights which they sought to deny her, so are Contracting States wrong when they argue that the Convention does not require them to respect the private and family life of the LGBTQ+ community.

Fedotova as a ground-breaking judgment

Where I agree with Dr. Vikarská is in her observation that this judgment is highly significant and should receive greater attention. The ground-breaking aspect of the judgment is, in my view, the clear rejection by the Court of the justifications advanced by the Contracting State.

Russia argued that its refusal to recognise, in any way, same sex couples were required by the need to protect the traditional family. The Court insisted that “recognition of same-sex couples does not in any way prevent different-sex couples from marrying or founding a family corresponding to their conception of that term”.

Russia argued that the refusal was necessary in order to respect the feelings of the majority of the Russian population. The Court reiterated 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”.

Finally, Russia argued that the measures were necessitated by the need to protect children from the promotion of homosexuality. The Court responded that such arguments embodied “a predisposed bias on the part of the heterosexual majority against the homosexual minority” reinforced stigma and prejudice and encouraged homophobia and were therefore “incompatible with the notions of equality, pluralism and tolerance inherent in a democratic society”.

As Prof. Uitz notes in an earlier Verfassungsblog post, a number of European states are introducing measures rowing back on LGBTQ+ rights. These measures are deliberate efforts by those states to “harm individuals on the basis their sexual orientation and gender identity”. The only principled response to such measures by the ECtHR is to unambiguously declare that they are entirely incompatible with the values underscoring the Convention.