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The issue of lack of legal recognition for same-sex partnerships has come before the European Court of Human Rights yet again, but this time before the Grand Chamber.1
Three same-sex couples – two female and one male – wished to marry. On various dates they gave notice of marriage to the Register Office's local departments in Moscow and St Petersburg, but their notices were rejected. Article 1 of the Russian Family Code defines marriage as a voluntary marital union between a man and a woman, and because the applicant couples were not made up of ‘a man and a woman’ they were told that their notices could not be processed. Their appeals to the domestic courts were unsuccessful and they took the matter to Strasbourg.
At first instance, the President of the Third Section ECtHR gave notice of the applications to the Russian Government in May 2016 under Article 8 (taken alone) and Article 14 (taken in conjunction with Article 8). He declared the complaints under Article 12 (right to marry) inadmissible as being manifestly ill-founded.2 The Third Section joined the three applications and in its judgment on 13 July 2021 declared them admissible, holding that there had been a violation of Article 8 (respect for private and family life) and that there was no need to examine the merits of the complaints under Article 14 (discrimination) taken in conjunction with Article 8.3 The Russian judge, Dedov, did not dissent and the Chamber judgment was unanimous. The Russian Federation appealed.
Before the Grand Chamber, the three couples relied primarily on Articles 8, 12 (right to marry and found a family) and 14. They had been in stable relationships as same-sex couples and they argued that Article 8 was therefore applicable under the heads of both ‘private life’ and ‘family life’, in accordance with the Court's case-law. They submitted that Russia had a positive obligation to put in place a legal alternative to marriage that would enable them to exercise their Article 8 rights. Such an alternative could take the form of a civil partnership, a civil union, a civil solidarity agreement or another arrangement, always provided that same-sex couples were in a similar position to that of married different-sex...