Professor Robert Wintemute, Professor of Human Rights Law at The Dickson Poon School of Law, wrote a third-party intervention in the case (Fedotova and Others v Russia) addressing Russia’s failure to allow same-sex couples to marry or otherwise register their relationships in the context of its obligations under the European Convention on Human Rights (EConHR).
On 17 January 2023, the 17-judge Grand Chamber of the European Court of Human Rights (ECtHR) ruled by 14 to 3 that Russia must create a “legal framework” for same-sex couples, similar to the UK’s Civil Partnership Act 2004. Although the Russian Government has a legal obligation to comply with the Court’s judgment, it is unlikely to do so. However, the principle of the judgment will apply to 16 countries that are still member states of the Council of Europe: Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Georgia, Latvia, Lithuania, Moldova, North Macedonia, Poland, Romania, Serbia, Slovakia, Turkey, and Ukraine.
The Court said (paras. 178, 180, 219): “in accordance with their positive obligations under Article 8 [respect for family life] of the [European] Convention [on Human Rights], the member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship. … [R]ecognition and protection of that kind confers legitimacy on such couples and promotes their inclusion in society, regardless of sexual orientation. The Court emphasises that a democratic society within the meaning of the Convention rejects any stigmatisation based on sexual orientation … [T]he 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.”
This is a huge victory for same-sex couples in Europe. It ends over seven years of uncertainty about whether Oliari & Others v. Italy (2015) - which led to Italy’s 2016 law on civil unions for same-sex couples - would apply to countries in Eastern Europe, such as Turkey, Ukraine, Poland, and Romania. It paves the way for a future judgment of the Court, at the appropriate time, requiring all 46 Council of Europe member states to grant same-sex couples equal access to legal marriage.– Professor Robert Wintemute, Professor of Human Rights Law