The many troubles of the Fedotova judgment

On 17 January 2023, the Grand Chamber of the European Court of Human Rights (ECtHR/Court) ruled in Fedotova v Russia that the absence of any legal recognition and protection for same-sex couples amounts to a violation of Art. 8 of the Convention. For 30 Member States of the Council of Europe (CoE), this judgment changes nothing since their legal orders already allow same-sex couples to enter into marriage (18 countries) or into other forms of legally recognised relationships (12 countries). For the remaining 16(+1) countries, however, the Fedotova judgment amounts to an external judicial pressure to change their legal landscape in a politically very sensitive area of LGBT+ rights.

I find it very difficult to write a coherent blogpost about Fedotova. As a staunch proponent of equality, I am far from criticising the result that leads (at least in theory) to better protection of LGBT+ rights. As a human rights lawyer, however, I am quite alarmed. The ECtHR has crafted a new right in a sensitive mega-political area, has based this decision on a ‘clear ongoing trend’ (as opposed to the European consensus that previously used to be the threshold), and the majority’s reasoning does not even attempt to refute the pressing issues raised by the dissenting judges. Furthermore, one might be puzzled to see that the former Russian judge still participates in the Court’s decision-making in 2023, despite Russia’s exit from the CoE in September 2022. I address these issues in turn.

Nothing new under the sun?

I was surprised that news of this judgment did not flood (my) social media. It seemed like no one noticed, neither in my const-law bubble, nor among the general public. I can think of two explanations: firstly, for most of the European countries, this judgment brings nothing new as they already recognise same-sex partnerships. Second, the Court’s judgments in Oliari v Italy and Orlandi v Italy have often been misconstrued as having articulated a positive obligation under Art. 8 for all States to legally recognise same-sex couples. However, that happened only in Fedotova.

Ms Fedotova and her partner brought their case to the ECtHR in the summer of 2010, less than a month after the judgment in Schalk and Kopf v Austria where the ECtHR had refused to articulate a positive obligation for the States to legally recognise same-sex couples. Yet, 11 years later, in the chamber ruling in Fedotova, the Court unanimously held Russia liable for a violation of Art. 8 under similar factual conditions. Others have already done an excellent job explaining what Fedotova added to Oliari and Orlandi (see posts by Dmitri Bartenev, Renáta Uitz, or Giulio Fedele). For a better understanding of pre-Fedotova case-law, I also highly recommend this long-read by Laurence R. Helfer and Clare Ryan on litigating LGBT rights before the ECtHR.

Last week, the Grand Chamber confirmed the chamber ruling by a 14:3 majority, holding that member States are “required to provide a legal framework allowing same-sex couples to be granted adequate recognition and protection of their relationship” (para 178).

LGBT+ rights as a mega-political issue…

So far, two Grand Chamber judgments have been delivered in 2023. In Fedotova v Russia, the ECtHR stated for the first time that same-sex couples have a right to legal recognition. In Macatė v. Lithuania, the Court ruled that labelling a book of fairy tales as ‘harmful to minors’, because it featured same-sex couples, amounted to a violation of freedom of expression.

Both these cases are equally mega-political as they both concern LGBT+ rights, i.e., “matters of outright and utmost political significance that often divide whole polities,” as Ran Hirschl famously wrote. Both cases would have been decided differently a decade ago, both thus serve as great examples of societal change and of evolutive interpretation of the Convention. Yet, a significant difference can be spotted between the two: while Macatė interprets an existing light in present-day conditions, Fedotova creates a new right. I submit that while the former is unavoidable, the latter is unfortunate.

…to be decided by (national) legislature rather than (international) court…

In his dissenting opinion, Judge Wojtyczek argues that new rights should be introduced by means of additional protocols to the Convention, not through the Court’s case-law. At the outset, his argument seems unpersuasive when he claims that the States “have not undertaken to protect undetermined rights whose precise content could change in time and could be adapted without their clear consent” (para 1.1). In fact, the establishment of the ECtHR shows that the States were well aware of the inevitable indeterminacy of legal provisions and were open to further interpretation of their obligations. Moreover, meetings of the high contracting parties in Brighton (2012) and Copenhagen (2018) have not upheld the challenges to the Court’s legitimacy, but “strongly reaffirmed the central role of the Court, and its approach to rights protection.”

However, Wojtyczek continues with an interesting claim: if the Court opted for more self-restraint, such approach would not hinder progress “but would only incite the States to introduce the necessary reforms and improvements more frequently by way of new treaties (additional protocols), ratified through democratic procedures…” (para 2.2). In this argument, Wojtyczek follows in the originalist footsteps of Scalia, to whom he also refers. His argumentation furthermore resembles Waldron’s position that “ultimately important decisions in the polity should be made by the people or their elected representatives.”

Absolutely! In highly political questions, decision-making by elected representatives definitely presents a better alternative than adjudication of an international court. That, however, fails to address the more challenging question: what is the Court’s role if the elected representatives remain silent, either due to their genuine beliefs, or as a result of “rise of nationalist sentiments and forms of political populism”, and if this inactivity cuts deep into private lives of individuals?

…unless existing rights are at stake

In Fedotova, the ECtHR emphasised that the case did not concern the right to marry (Art. 12). Furthermore, a majority of judges did not see a need to examine the case under the non-discrimination provision (Art. 14). Although I fully understand the legal-technical need to decide the case solely on Art. 8, I am convinced that in the heart of the litigation there is the desire to gain equal access to marriage as the highest a noblest form of state recognition of personal relationships. That, however, would run counter to the text of the Convention.

Instead of the European consensus required in previous cases, in Fedotova the Court settled for a lower threshold of a clear ongoing trend observed in slightly less than two thirds of the contracting States. That, however, makes the Court’s (otherwise strong) argumentation rather unpersuasive. How are we to trust the judges that they won’t overrule the very wording of Art. 12 in a couple of years when another clear ongoing trend is observed in European states?

For this reason, I offer an – admittedly controversial – proposition. Until the European countries reach a consensus that all people should be treated equally, not only with respect to some recognition of their relationship but also in respect to marriage as the highest form of recognition, the Court should not impose any “right solution” on the contracting Parties. Two main reasons support this claim. First, pragmatically, the ECtHR does not have the tools necessary to force the States to comply with its judgment. Especially in this area (and especially with Russia showing no interest to implement the Court’s judgments), the risk of non-compliance remains high and poses a risk to the Court’s legitimacy. Second, the problems stemming from the non-recognition of same-sex partnerships can always be framed as individual breaches of Art. 14 in connection with Art. 8 (or other provisions) – just like in Vallianatos v Greece. Albeit this requires bringing more cases illustrating the inequalities encountered by same-sex couples in various everyday situations, it represents an approach more respectful to what the States have actually signed up for when they ratified the Convention.

And what is the Russian judge still doing on the bench?

Last but not least, how is it that although Mikhail Lobov does not appear on the list of the current ECtHR judges, is listed on the webpage of the Court as a judge whose tenure both began and ended in 2022, and was apparently not invited to join the family photo of the Court’s composition on 28 November 2022, he still sat on the bench in Fedotova, decided in January 2023?

The Rules of the Court contain a provision (Rule 24-4) that judges who have already been involved in a case continue to sit in the Grand Chamber until the case is finished. “Even after the end of their terms of office, they shall continue to deal with the case if they have participated in the consideration of the merits.” This rule explains why we can sometimes witness judges deciding cases after the end of their nine-year mandate.

But should that rule apply to the situation of Russia’s exit from the Council of Europe?

As has been pointed out by Judge Poláčková in her dissenting opinion, it is true that the national judge should sit on the bench as an ex officio member of the Court (as per Art. 26-4 of the Convention); but “the position of ‘national judge’ presupposes the existence of a mandate of a judge as such, which in the present case ceased to exist after 16 September 2022” (para 11 of her dissenting opinion).

The lack of information on Judge Lobov’s position after Russia’s exit from the CoE is alarming. Russian exit from the CoE is a difficult legal question and the Strasbourg stakeholders have undoubtedly invested lots of time and energy to resolve the issue. On 16 September 2022, the ECtHR issued a press release that referred to an unnumbered Resolution of 5 September 2022 by which the Plenary of the Court “takes formal notice of the fact that since the Russian Federation ceases to be a High Contracting Party to the Convention on 16 September 2022, the office of a judge in the Court with respect to the Russian Federation also ceases to exist.” Given this background, it is all the more unfortunate that the judgment issued in January 2023 contains no information as to why the Russian judge was involved. (The information is also missing in 7 other chamber cases where Judge Lobov appears after 16/9/2022.)

First, it is not a given that the situation falls under Rule 24-4. Second, if the Court believes that Rule 24-4 does apply to the situation, it should explain why – or at least make a brief reference to support that conclusion. Third, the lack of any explanation as to Judge Lobov’s appearance in the Court’s composition is even more disturbing given that there is a dissenting opinion by Judge Poláčková raising concerns about that very issue, and another dissenting opinion of Judge Lobov himself on the substance of the case. All in all, as a reader of the Court’s case-law, I would like to hear why a judge from a non-member country is included in the Court’s composition.

Whatever the conclusion on this issue, seeing Mikhail Lobov’s name in a judgment that postdates the end of his mandate feels like a déjà vu. Last spring, Rick Lawson invited the ECtHR to handle the personnel situation better than the CJEU had handled the end of Eleanor Sharpston’ mandate; yet, the ECtHR seems to have missed the opportunity to be clear and transparent about the issue.

Conclusion

Today, conservatives and liberals are at war when it comes to LGBT+ rights. By criticising the Court for its ruling in Fedotova, I am not saying that LGBT+ rights do not deserve protection by European apex courts. However, ends do not justify the means – and even as a strong advocate of LGBT+ rights, I must conclude that the Court made a mistake when it issued what probably amounts to the most political judgment of all times.