On 13 July 2021, the European Court of Human Rights (ECtHR) in the case of Fedotova and Others v. Russia observed that Russia failed to justify the lack of opportunities faced for same-sex couples. According to a press release, the ECtHR ruled that Russia should provide a legislative framework and policy that provides same-sex couples identical protection under the law as opposite-sex couples. 

THE CASE

The case was premised on three applications to the ECtHR filed by same-sex couples who had endeavored to tie the knot since 2009. The couples had their marriage applications denied by local registry offices on account of the recent amendment in the Russian Constitution which bans same-sex marriages.

The ECtHR observed that the lack of any incentive to have lawfully recognised same-sex relationships in Russia violates article 8 of the European Convention on Human Rights—the right to respect for private and family life. Although article 8 does not expressly necessitate the acknowledgement of same-sex marriages, it does signify a need to strike a reasonable balance between the needs of same-sex couples and those of the community—as the court observed. 

The ECtHR dismissed the Russian government's assertion that recognizing same-sex unions would be inconceivable considering the massive proportion of Russians who condemn these unions, stating that “access to rights for a minority could not be dependent on majority acceptance”.

The Court concluded in its judgment that States have “a margin of appreciation to choose the most appropriate form of registration of same-sex unions taking into account its specific social and cultural context,” but Russia had “outstripped that margin because no legal framework capable of protecting the applicants' relationships as same-sex couples has been available under domestic law”.

AFTERMATH

Amnesty International’s Moscow Office Director, Natalia Zviagina, said, “this landmark decision underlines that the Russian government is on the wrong side of history, supporting and enabling homophobia and depriving LGBTI people of their basic human rights. The court explicitly stated that the Russian state is obliged to respect the human rights of same-sex couples and guarantee their equal recognition under the law”.

RUSSIA’S STAND ON COURT’S DECISION

Russian officials have dismissed the order from the ECtHR to acknowledge same-sex unions. "The ruling, which tries to make Russia register same-sex marriages, contradicts the foundations of Russian rule of law and morality," said Vasily Piskarev, a Russian parliamentarian. Russian lawmakers have criticised the court for "trying to interfere" in domestic affairs. Russia prohibited same-sex marriage in constitutional amendments ratified last year, stating that the "institution of marriage is a union between a man and a woman". Dmitry Peskov, a Kremlin spokesman, has reiterated that same-sex marriages are "not authorised" under Russia's constitution. He has also asserted that article 79 of the Russian constitution enables Russia to disregard international treaties that are in confrontation with the Russian constitution. 

Furthermore, after the ECtHR rulings and Constitutional amendments to the Russian constitution, lawmakers introduced a new draft legislation “prohibiting” same-sex marriage. With institutionalising a de facto ban in the constitution, any prospective successors would find it extremely difficult even if they desired to legalise same-sex marriage in the state. The draft legislation, which is predicted to be promptly approved by the State Duma, Russia's lower house of parliament, officially prohibits homosexual marriage and prohibits same-sex couples from adopting children, which they certainly cannot do even before the draft. The legislators have stated the scope of the ban will incorporate transgender individuals also.