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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

In landmark ruling, European rights court orders Russia to allow same-sex unions

The Russian Federation is unlikely to obey the decision as it is no longer a member of the European Court of Human Rights, a result of its invasion of Ukraine.

STRASBOURG, France (CN) — Europe’s top rights court told Moscow on Tuesday it must recognize same-sex marriages, in a ruling likely to have little impact in the Russian Federation. 

The European Court of Human Rights sided with three gay couples who had asked for the recognition of their relationships but were denied by Russian authorities, ruling that countries have an obligation to make the legal protections of marriage available to same-sex couples. 

“The court holds … that there has been a violation of Article 8 of the Convention,” Judge Síofra O’Leary, president of the court, said when reading out the ruling, referring to the court's founding charter.  

Less than 15 years ago, the Strasbourg-based court concluded in another landmark ruling that the European Convention of Human Rights allows for gay marriage but does not require it. Now, however, consensus on the issue has shifted sufficiently that it is no longer optional.

“The trend already observed by the Court … is clearly confirmed today,” the 17-judge panel wrote. 

Two lesbian couples and one gay couple had applied at various times between 2009 and 2013 for marriage licenses in Russia. All three couples were denied, with courts citing the Russian constitution as well as various family law statutes as prohibiting all forms of same-sex unions. 

In 2021, a lower chamber of the court found that the refusal to legally acknowledge the relationships violated the convention but Moscow appealed. A hearing was scheduled for April 2022 but by then Russia had been removed from the Council of Europe, which oversees the court, for its invasion of Ukraine, and it has refused to participate in the proceedings. While the hearing was canceled, the court accepted written arguments from the parties and 16 advocacy organizations. 

Russia argued the court would be overstepping its authorities if it created an obligation that was not part of the 1953 treaty. Further, Moscow claimed that most Russians were opposed to same-sex marriage, citing survey data that 69% of its citizens were against any recognition of gay relationships. 

The Grand Chamber, however, found that the convention changes as society does.

“The Convention is a living instrument which must be interpreted in the light of present-day conditions,” the judges wrote. Moreover, the judges found protections for minorities do not rely on the acceptance of the majority. 

Moscow further claimed that allowing same-sex marriage could negatively impact society and harm the health and morals of minors. The court pointed to another judgment involving Russia, the 2017 decision in Bayev and Others v. Russia, which found that Russian laws preventing the discussion of homosexuality were discriminatory, given that similar laws didn’t exist to prevent the discussion of heterosexuality. 

“This is a huge victory for same-sex couples in Europe,” professor Robert Wintemute of King's College London said in a statement. He co-authored the written submissions from the LGB Alliance, a British advocacy group that fights for the rights of same-sex couples. 

The Council of Europe voted to remove Russia last April and, according to the treaty, Russia ceased to be a member of the court as of September. Legally, Moscow is still obliged to follow the court’s rulings for cases that were initiated before it departed but it seems unlikely to do so, as it is currently ignoring several other rulings against it. 

Only 13 years ago, the court held that although countries in Europe were trending towards acceptance of same-sex marriage, countries were not under any obligation to recognize gay unions as there was no general agreement on the issue. “The area in question must therefore still be regarded as one of evolving rights with no established consensus,” the court wrote in its 2010 decision in Schalk and Kopf v. Austria. The plaintiffs, Horst Schalk and Johan Kopf, first applied for the right to marry in Austria in 2002 but were denied. 

Of the Council of Europe’s 46 member states, 30 countries offer same-sex couples either marriage or an equal form of legal partnership. The remaining 16 - Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Georgia, Latvia, Lithuania, the Republic of Moldova, North Macedonia, Poland, Romania, Serbia, Slovakia, Türkiye and Ukraine - offer no legal standing for gay couples. 

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Categories / Appeals, Civil Rights, Government, International

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