The relationship between Russia and the European Court of Human Rights (ECtHR) has been “turbulent” since Russia entered the Council of Europe in 1996.1 At the time, critics questioned the wisdom of admitting Russia given its poor record of democracy and human rights.2 In 2015, cracks deepened when Russia’s Constitutional Court held that ECtHR decisions conflicting with the constitution could not be implemented.3 In 2020, the Russian Constitution was amended to, among other changes, codify the primacy of the constitution over international agreements in the case of conflict.4 The amended constitution also defined a state interest in protecting heterosexual marriage.5 Recently, the relationship between Russia and the ECtHR was put to the test6 in Fedotova v. Russia,7 which held that Russia has a positive obligation to give legal recognition and protection to same-sex couples.8 While Fedotova lands in a challenging political context, there is still opportunity for the decision to be implemented, opening the door to meaningful improvement in the lives of LGBTQ people in Russia and Eastern Europe.
In 2009, Rene Fet9 and his partner Irina Shipitko tried to marry in Moscow by applying to register their union.10 Two other same-sex couples applied to marry in St. Petersburg in 2013.11 They were denied on the ground that Article 1 of the Russian Family Code describes marriage as a “voluntary marital union between a man and a woman.”12 Fet and Shipitko contested the decision, arguing that their marriage application complied with the Family Code13 and that their right to marry was protected by the Russian Constitution and European Convention.14 The Tverskoy District Court dismissed their claim,15 and the Moscow City Court affirmed, concluding that “the absence of an explicit ban on same-sex marriage could not be construed as State-endorsed acceptance.”16 The Gryazi Town Court similarly rejected the claims of the other couples. Drawing on the Case of E. Murzin,17 where the Constitutional Court found no right to same-sex marriage, the Gryazi court held that same-sex marriage contradicts “national and religious traditions[,] . . . the State’s policy of protecting family, motherhood and childhood, [and] the ban on the propoaganda of homosexuality.”18 The couples appealed to the ECtHR.
The ECtHR found a violation of the European Convention.19 The court unanimously held that Russia’s failure to legally recognize same-sex couples violates their right to private and family life under Article 8.20
Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society . . . for the protection of health or morals, or for the protection of the rights and freedoms of others.
European Convention on Human Rights art. 8, Nov. 4, 1950, E.T.S. No. 5. The court explained that Article 8 imposes a positive obligation on states to “ensure effective respect for” private and family life.21 In assessing compliance, the court balances the “competing interests of the individual and of the community as a whole.”22 Although states “enjoy a certain margin of appreciation” — or discretion — in implementing positive obligations, “where a particularly important facet of an individual’s . . . identity is at stake,” the margin of appreciation is narrow.23
As for individual interests, Fedotova emphasized same-sex couples are “just as capable as different-sex couples of entering into committed relationships” and, therefore, are “relevantly similar . . . as regards their need for formal acknowledgment and protection.”24 Yet it noted that Russian law has only one form of recognizing relationships — marriage — from which same-sex couples are excluded.25 Without recognition, same-sex couples lack important rights such as inheritance of a partner’s property after death, testimonial privilege, and hospital visitation.26 This “creates a conflict between [couples’] social reality . . . and the law, which fails to protect the most regular of [their] ‘needs.’”27
At the same time, Fedotova found that popular disapproval of same-sex relations was not a countervailing community interest.28 In Oliari v. Italy,29 the ECtHR’s first decision finding a right to recognition, the court alluded to Italy’s changing norms to explain why it had to recognize same-sex unions.30 Drawing a contrast with Italy, the Russian government submitted statistics showing that in 2015, 20% of the Russian population believed “homosexuals [are] dangerous people who should be isolated from society” and that 80% opposed same-sex marriage.31 Nevertheless, the court concluded that the right found in Oliari applied to Russia.32 While acknowledging that “popular sentiment may play a role in the Court’s assessment” in the context of “social morals,” the court underscored that “[i]t would be incompatible with the underlying values of the Convention . . . if the exercise of Convention rights by a minority group were made conditional on” acceptance “by the majority.”33
Protection of heterosexual marriage was not a countervailing interest either. Although the court characterized “protection of ‘traditional marriage’” in Russia’s revised constitution as “in principle [a] weighty and legitimate interest,” it found no conflict between marriage and same-sex recognition.34 Because recognizing same-sex unions “does not prevent different-sex couples from entering marriage, or enjoying [its] benefits,” recognition poses no risk to different-sex marriage.35
Russia, Fedotova concluded, must recognize same-sex couples to address the “serious daily obstacles” they face.36 However, the court stopped short of articulating a right to marriage, focusing instead on legal protections such as inheritance and testimonial rights.37 At the same time, it held that the form of recognition — whether “partnership, civil union, or civil solidarity act” — lies within Russia’s margin of appreciation, “taking into account [Russia’s] specific social and cultural context.”38 Because it found a violation of Article 8, the court declined to consider whether Russia also violated the prohibition of discrimination under Article 14.39 Finally, the court ordered no damages, concluding that judicial recognition of the violation provided just satisfaction.40
Fedotova established a universal right to recognition for same-sex couples in Europe that is independent of public approval.41 The ECtHR became the second international human rights court to state such a right, following the Inter-American Court’s 2018 advisory decision to Costa Rica.42 Now, Russia must decide how Fedotova will be implemented.43 While the decision faces formidable political obstacles, its potential should be measured not only by the ability to inspire legislative reform, but also by subtler shifts in judicial behavior and public opinion.
Fedotova has not been kindly received by some members of the Russian political establishment.44 But the decision should be understood in the broader context of the relationship between Russia and the ECtHR, which is characterized by a surprising degree of cooperation.45 In the majority of cases, Russia pays victims of human rights abuses as required by the court,46 including 1.1 billion rubles in 2019 alone.47 And, although systemic reforms are limited, especially on political issues like protest restrictions, there appears to be some will to remedy more neutral questions of prison conditions and criminal procedure.48
Russia’s judiciary has been the branch most favorable to implementation of ECtHR decisions.49 For most of Russia’s time in the Council of Europe, the Constitutional Court “correctly referred to ECtHR judgments and used them in its decisions . . . reflect[ing] its general aspiration to remedy the situation in line with Strasbourg law.”50 After holding that conflict with the constitution precludes implementation of ECtHR judgments, the Constitutional Court found conflict in only two of the more than 1,112 decisions against Russia.51 First, responding to Anchugov v. Russia,52 which barred blanket prohibitions on prisoner voting, the court concluded that the constitution’s plain text53 excludes prisoners from the franchise.54 Nevertheless, it took some steps to implement the spirit of Anchugov by successfully pressing the Duma to create nonprison penalties that preserve voting rights.55 Second, likely for pragmatic reasons, the court blocked a 1.9 billion euro judgment in Yukos v. Russia,56 the largest sum awarded in the EctHR’s history.57
Fedotova, however, creates little financial burden, and the Constitutional Court will be hard-pressed to find a conflict based on the constitution’s plain language.58 Article 72 protects marriage as a different-sex institution but creates no bar to alternative forms of same-sex recognition.59 Neither do other parts of the constitution express hostility toward LGBTQ people. On the contrary, the Constitutional Court has recognized that, in theory, the constitution prohibits discrimination based on sexual orientation, albeit in a decision upholding the gay propaganda law.60 The court might draw inspiration from Hungary, which has a nearly identical different-sex marriage provision in its constitution,61 but allows same-sex partnerships.62 Indeed, although Hungary recently enacted its own version of Russia’s propaganda law,63 same-sex couples still enjoy “all the tax, social, labor and immigration” benefits of marriage.64 If the Constitutional Court does not find a conflict with the constitution, then, under Russian law, Fedotova must be implemented.65
What might implementation look like? Even if Fedotova does not inspire legislative change in the short term, it could shift judicial behavior. Take, for example, Bayev v. Russia.66 There, the court found that Russia’s so-called gay propaganda law, which barred advocating for gay rights in the earshot of minors, violated the right to freedom of expression and nondiscrimination.67 Although the law remains on the books, Russian courts have become increasingly reluctant to enforce it. Before Bayev, in 2016, about 67% of those charged with propaganda were convicted.68 But by 2019, the conviction rate fell to 20%.69 Explaining these low conviction rates, Alexander Belik of the Russian LGBT Network observed that the majority of courts “continue to follow the ECtHR’s decision in Bayev v. Russia.”70 The propaganda law still serves as pretext for denying event permits for Pride.71 Yet Bayev suggests that even where a decision fails to inspire needed legislative change, it can yield incremental improvement in the courts. If, in the wake of Fedotova, same-sex couples continue to be denied recognition by the legislature, the judiciary may begin to acknowledge their claims.
In this regard, it is notable that a conservative Putin nominee, Judge Dedov, joined the majority in Fedotova, despite his vocal dissent in Bayev,72 suggesting that Fedotova has some appeal for those who, like Judge Dedov, fear encroachment on Russian values.73 Judge Dedov argued that Bayev “d[id] not take seriously . . . that ‘heterosexuality’ could create any values” and was unwilling to engage in “dialogue with the Russian Constitutional Court.”74 His reversal in Fedotova suggests that he found this decision more persuasive. Fedotova’s moderate stance on same-sex marriage may have assuaged his concerns by acknowledging Russia’s marriage amendments and its “specific social and cultural context” as appropriate to shaping the form of same-sex recognition.75 The decision’s restraint may similarly make it palatable to the judges on the Constitutional Court who share Judge Dedov’s philosophy.
Public opinion may overlap with judicial reception: support for LGBTQ rights is growing in Russia, and the government seems to be losing appetite for homophobic rhetoric. Consider the official statistics Russia offered in Fedotova.76 Between 2015 and 2021, the share of the population viewing gays and lesbians as dangerous people who should be isolated fell from 20% to 11%.77 Conversely, the share of those who do not distinguish among people based on sexual orientation rose from 22% to 31%.78 Same-sex marriage remains unpopular, with 75% disapproval.79 But a 201980 independent study by Levada suggests 47% of Russians believe LGBT citizens should enjoy equal rights, up from 39% in 2013.81 One explanation is that “the government is no longer appealing to the homophobic sentiments of the population.”82 If true, both the public and state officials may be increasingly receptive to Fedotova.
While Fedotova faces formidable challenges, its failure to inspire change is not a foregone conclusion. How the decision plays out will be a valuable test for the power of human rights courts to influence authoritarian states. Yet its potential should be gauged not only by the ability to inspire LGBTQ-friendly legislation but also by subtler wins in domestic courts and shifts in public opinion. Outside Russia, couples in the Council of Europe states that do not yet recognize same-sex unions83 now have the power to sue, and win, at the ECtHR. And in states that have codified restrictions on same-sex marriage in their national constitutions,84 Fedotova maintains the possibility of a more equal future.