Amicus curiae in the case “Fedotova and others vs Russia”

Dear Mr. President Spano,

The signatory organizations seek the leave from the Court to submit written comments and to take part in the hearing in the case of Fedotova and Others v. Russia (Applications nos. 40792/10), pursuant to Article 36 § 2 of the European Convention on Human Rights (the Convention) read with Rule 44 of the Rules of the Court.

The Proposed Interveners

1. The Russian LGBT Network (website: https://lgbtnet.org/) is a non-governmental LGBT rights organization working for the social acceptance of and protection of the rights of LGBT people in Russia. Founded in 2006, it was reformed into the first (and only) Russian inter-regional LGBT rights organization in 2008. The organization is a member of the International Lesbian and Gay Association (ILGA) and other international associations. The network offers organizational support and guidance to psychologists, lawyers and other professionals working with the LGBT community, activist groups and local human rights and LGBT rights organizations. With other human rights organizations like Memorial, it seeks recognition for members of the LGBT community who suffered criminal persecution in the USSR as victims of political repression. In 2017 the organization had revealed mass killings and detention of gay people the Chechnya region in Russia. Since 2017 more than 150 gay people were evacuated from the region with the support of the organization. More information about the organization can be found here: https://en.wikipedia.org/wiki/Russian_LGBT_Network .

2. Legal and Social Support Charitable Foundation “Sphere” (website: https://cfsphere.org) is a human rights organization that, starting from 2011, defends the rights of the LGBTQI+ community in Russia, fights against systemic homophobia, biphobia and transphobia, and is an expert at creating and coordinating human rights programs and initiatives. The goals of the Foundation are:

– Systemic improvement of the situation for the LGBTQI+ community in Russia;

– Reduction of the level of homophobia, biphobia and transphobia, and enhancement of attitudes toward the LGBTQI+ community;

– Supporting organizations working with the LGBTQI+ community;

– Establishing and developing partner relationships with organizations working with similar problems and groups of beneficiaries and sharing our principles;

– Researching the situation around violation of the rights of members of LGBTQI+ community in Russia;

– Helping people subjected to discrimination and/or violence.

Interest of the proposed interveners

The signatory organisations are NGOs promoting human rights for LGBTQI+ persons in Russia, where the Government provides no form of legal recognition and protection for families formed of same sex unions and/or couples having stable same-sex relationships. The proposed interveners  deal with cases arising due to lack of legal recognition and protection of their private and family life on daily basis and provide support to same-sex couples and families are unable to use due to the absence of recognition (e.g. the right to refuse witnessing against a partner, tax and insurance issues, children-related rights, alimony, inheriting, medical care and many others).  We have firsthand information on how lack of legal protection for same-sex couples affecting their everyday lives.

As the NGOs working with people facing the issue raised in this case we see the problem. Yearly increase of the number of requests for help from people who do not have national instruments and mechanisms for effective use of the rights that different sex couples have shows the importanсe and urgent relevance of the issue under consideration. One of the most popular questions among our beneficiaries each and every year is the possible ways to get married or have other forms of their relationship recognition and where they can have it. And, as we see, the marriage is not only a matter of the rights, but also a symbol of the dignity of the same-sex family – announcement of their relations to the society and recognition of the relations by the state. We regret to say that we have to suggest these people to travel to other countries to have their relationship recognised and have an official marriage there, without any guarantees that Russia would recognise this marriage under foreign law with respective legal consequences in Russia. As to the use of family rights, we have to invent quasi-legal or non-typical legal instruments, at least to get closer in the level of the enjoyment of rights for same-sex couples in the situations where heterosexual families have this or that right by default.

Since 2011, Sphere represents the Russian LGBT Network at home and internationally. Based on the litigation priorities, we advocate for the legal changes for LGBTQI+ in Russia. We trigger the key human rights mechanisms in the UN: Universal Periodic Review (UPR), Treaty-based bodies (CEDAW, CESCR, CAT, CCPR, CRPD, CRC), Special Procedures; cooperate with the Council of Europe’s PACE, CPT and the Commissioner for Human Rights; OSCE ODIHR, including via HDIM and the Moscow Mechanism. Thanks to the human rights monitoring and scrutiny of violations based on sexual identity, that we conduct all around the country, we submit reports and regularly update international/intergovernmental organizations on recent developments on specific cases or patterns, as well as the overall situation with LGBTQI+ rights in Russia.

The proposed interveners are committed to providing correct and comprehensive information regarding the evolution of LGBT rights in Russia. We believe that our experience in monitoring and reporting human rights abuses against LGBT persons in Russia, and being experts in the domestic law and national legal system in Russia our submission to the Court in consideration of this case.

Significance of the issues raised by the case

The Honourable Court is called to ensure that all Contracting Parties respect the rights and guarantees set out in the European Convention, which in Fedotova and Others v. Russia means that upholding democratic values implies protecting minorities that have been historically subjected to discrimination, exclusion and stigma. This case raises an opportunity for the Honourable Court to strengthen the protection of the right to family life and non-discrimination for persons who form same sex families in Russia and across the Contracting Parties to the European Convention.

Those  in Russia who are willing to form same-sex partnership, family or other forms of relations suffer from the lack of the recognition of their relationships. This recognition is not a symbolic matter or a gesture of respect by the state. The lack of such recognition eventually leads to the violation of their rights and freedoms guaranteed by national law and also set in the Convention, and practice of the Court as well as of national courts on this problem can be found.

We do believe that this case provides another opportunity for the Grand Chamber ensure an important and meaningful step towards for equal level of guarantees set by the Convention both for same-sex and heterosexual families. Subsequently this will create the framework for a healthier approach of the society and equal recognition of all rights regardless of the form of the union.

So far, the protection under the Convention in such cases was placed under Article 8; this case brings under review also Article 14 with respect to the fact that families of persons who are in same sex unions have the same needs of legal recognition and protection and should benefit from the same treatment as different sex couples and with respect to the legal exclusion that perpetuates stigma and discrimination against LGBT persons.

Proposed issues to be addressed

The signatory organizations seek the leave of the Court to submit written comments on the following issues of common concern:

1. Whether there is a positive obligation under Article 8 of the Convention for adopting a specific legal framework providing for the recognition and protection of same-sex union?
2. Whether a Contracting State’s refusal to provide a specific legal framework providing for the recognition and protection of same-sex unions amounts to discrimination, in violation of Article 14 in conjunction with Article 8 of the Convention?

We would cover these proposed themes in light of the experiences of families from Russia that do not benefit from legal recognition and protection, case-studies and legal summary of the matter in Russia. The proposed interveners will show how the lack of legal recognition and protection leads to real violations of the rights of people in various aspects of their everyday life, what are possible remedied and how the legal exclusion fosters more discrimination, while equally recognising and protecting all families brings about positive developments in society, in the law, and in the state of well-being of individuals concerned and their families.

If granted permission we would, of course, not comment on the specific facts or merits of the application in question. The intervention will be of a general nature and will be limited to the usual ten pages allocated to the third-party interveners.