Judgment 40792/10 30538/14 43439/14

Applicant type natural person
Number of applicants 3
Country Russia
Application no. 40792/10 30538/14 43439/14
Date 17/01/2023
Judges Robert Spano,
 Jon Fridrik Kjølbro,
 Síofra O’Leary,
 Georges Ravarani,
 Marko Bošnjak,
 Krzysztof Wojtyczek,
 Iulia Antoanella Motoc,
 Branko Lubarda,
 Yonko Grozev,
 Armen Harutyunyan,
 Stéphanie Mourou-Vikström,
 Pere Pastor Vilanova,
 Alena Poláčková,
 Tim Eicke,
 Darian Pavli,
 Frédéric Krenc,
 Mikhail Lobov
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Positive obligation
Type of privacy Relational privacy
Keywords Same sex couple; legal recognition
Facts of the case Art 8 • Positive obligations • Private and family life • Absence of any form of legal recognition and protection for same-sex couples • Confirmation of positive obligation to provide legal framework affording such couples adequate recognition and protection • Previous case-law of the Court consolidated by clear ongoing trend in legislation of a majority of States Parties and converging positions of various international bodies • Margin of appreciation reduced for providing a legal framework and more extensive for determining exact nature of the form of recognition and content of protection • Form of marriage not required • Public-interest grounds put forward not prevailing over applicants’ interests • Margin of appreciation overstepped
AnalysisOn the basis of its assessment, the Court finds that none of the public-interest grounds put forward by the Government prevails over the applicants’ interest in having their respective relationships adequately recognised and protected by law. The Court concludes that the respondent State has overstepped its margin of appreciation and has failed to comply with its positive obligation to secure the applicants’ right to respect for their private and family life.

A number of dissenting opinion underline that the Court is going too far, is reinventing rather than interpreting the Convention, that it is not its role to shape new rights, but that such should be done through additional protocols and that this effectively undermines national democracy.
Other Article violation? No violation 14 ECHR
Damage awarded Holds, by fifteen votes to two, that the finding of a violation of the Convention constitutes in itself sufficient just satisfaction for any non‑pecuniary damage sustained by the applicants;
Documents Judgment