The Decision of Fedotova v. Russia by the European Court of Human Rights on the Same-Sex Partnership

Abstract

On January 17, 2023, the Grand Chamber of the European Court of Human Rights ruled in Fedotova v. Russia that Russia’s failure to provide legal recognition to parties in same-sex unions violated Article 8 (Right to respect for private and family life) of the European Convention on Human Rights. This article aims to introduce the above judgment. In 2015, the decision of Oliari v. Italy by the European Court of Human Rights opined that Article 12 of the European Convention on Human Rights (Right to marry) did not guarantee the right to marry for same-sex couples. However, it declared that Italy bore the positive obligation to provide the legal institution for the protection of the same-sex couple based on the Article 8 of the European Convention on Human Rights (Right to respect for private and family life). The Fedotova decision reached the same result against Russia. While the Oliari judgment was based on internal Italian circumstances, the Fedotova decision is significant because it applies not only to Italy and Russia, but to all countries that are party to the European Convention on Human Rights. The Fedotova decision was based on the positive obligation of the state to respect the Convention Right. Whether such a positive obligation can be recognized in Korea requires further discussion.