20 Jul Case of Maymulakhin and Markiv v. Ukraine: A Long Story Without End?
[Yaroslav Halieiev is a second-year Master’s student at the University of Tartu and a legal researcher on the Platform for Peace and Humanity.]
The Regulation of Same-Sex Marriages in Ukraine: General Remarks
The Case of Maymulakhin and Markiv v. Ukraine has extreme significance for Ukranian legislature and most likely will spark more fruitful (hopefully) discussion in the nearest future. Meanwhile, it is essential to explore the frame in which the Ukrainian LGBTQI+ community has been existing for over the last 10 years (the case started in 2014).
2014 by its nature in Ukrainian history is a new starting point: occupation of Crimea, armed conflict in Eastern Ukraine, aggression of Russia, so it seems that the case possesses some sort of symbolism.
From 2014 till 2022 not much changes happened in the realm of LGBTQI+ legal protection under Ukranian legislature. Nevertheless, some moments ought to be highlighted:
1. The Ukrainian Criminal Code criminalised the violation of equality of citizens depending on their race, nationality, religious beliefs, disability and other grounds (art.161). This article was meant to criminalise hate crimes, among others on the basis of gender and sexual orientation, however so far it remains ill-constructed from the legal side and rarely applicable in reality.
2. Ukrainian legislative system employs no legal means (affirmative actions) to ensure the rights of LGBTQI+ community, what leads to the absence of any form of legal recognition and protection for a same-sex couple.
3. The invasion of Ukraine on 24 February 2022 has changed the social frame, due to the fact, that many representative of LGBTQI+ community joined the armed forces. Eventually, 2022 became a year when the discussion on the LGBTQI+ protection sparked again.
4. In the summer 2022 the public petition to legalise same-sex marriages was submitted and received enough support to be considered by the President. The President’s response was based on the provision of the Constitution, which defines marriage as the union of a woman and a man, and since it is forbidden to change the Constitution under martial law, it is legally impossible to implement the primary demand of the petition. Nevertheless, the President requested the Government to develop the possible ways of implementation of the Petition, at that time, the primary focus was on the civil partnership which could have been introduced by the separate legislature without changing the Constitution.
5. Despite being requested by the President to develop possible legal remedies the Government did not act at full pelt. In March 2023 the draft law on civil partnership was submitted by the members of the Parliament. For the time being a few Parliament’s committees approved the further adoption of the law (with their comments and suggestions). Meanwhile, the Ukranian Ministry of Justice is against the new proposed draft, according to the Ministry: “..the Ministry works on introducing the institute of civil partnership which will comply with the traditional family values..”.
All those factors which, have been mentioned, reflect the frame in which the case of Maymulakhin and Markiv v. Ukraine shall be read.
Maymulakhin and Markiv v. Ukraine: the ECtHR approach
The decision of the European Court of Human Rights (the Court or ECtHR) was rendered on 1 June 2023, when the Pride Month officially started, that makes the case even more symbolic.
As it was already indicated, the case legally started in 2014 when Mr. Maymulakhin and Mr. Markiv were rejected by state authorities to register their marriage. The situation became even more complicated when Mr. Markiv joined the National Guard of Ukraine. Due to the “silence” of Ukrainian legislature with regard to same-sex couples the partners do not possess equal amount of rights as hereto couples do. So, when one of the partners was wounded in hostilities or hospitalised, another partner possesses no rights to access the medical information or a partner. The calamity of such a situation has been shown many times, for instance, it was reported here.
The Court started its reasoning by listing all the “promises” made by Ukraine to establish a legal framework to safeguard the rights of same-sex couples. Firstly, the Court pointed out that The National Human Rights Strategy (2015) [paras.17-20] already included provisions to adopt the legalisation of registered civil partnerships for different-sex and same-sex couples. However, the Ukrainian Ministry of Justice slowed down the process of implantation (not the very last time), due to receiving “..a significant number of petitions from regional, city and district councils, non-governmental and religious organisations..” [para.19]. Such reasoning to stop the process of implementation, at least, seems to be legally clumsy.
Later, the new National Human Rights Strategy (2021) purported to introduce the registered civil partnership and the government was (again) responsible for the implementation. By December 2023 the draft-law had to be presented, however (no surprise) it was not achieved, despite public petition and official request from the President to develop possible remedies. As it was highlighted earlier, the Ministry of Justice attempted to push back the possible implementation.
Apart from it, the Court referred to the EU candidacy of Ukraine and gradual growth of the public support of same-sex marriages [paras. 23-31].
Interestingly, the Court has paid particular attention to the role of the Churches in anti-LGBTQI+ companies by quoting the Report of the United Nations’ Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (2019) [para.32]. It is possible to find such examples here, here, here, here and here. The “protection of traditional family values” is typical rhetoric of the Churches in Ukraine and even the Ministry of Justice cited it to justify all possible delays with implantation of the civil partnership legislature (as it was highlighted earlier).
One of the most prominent moments of the Court’s assessment were a scope of the margin of appreciation and the presence of European consensus. The margin of appreciation reserves for the States the legal means to employ the policy in extremely sensitive matters (the same-sex marriages fall into the scope) which reflects cultural particularities of the State. Meanwhile, the margin of appreciation is counterbalanced by the European consensus. In the Fedotova and Others v. Russia, which has been widely cited by the Court in the Maymulakhin and Markiv v. Ukraine, the Court emphasised that the Court has already noted a clear ongoing trend at European level towards legal recognition and protection of same-sex couples within the member States of the Council of Europe [para.186]. The ECtHR in Fedotova and Others v. Russia affirmed the existence of the European consensus by data gathering: according to the data available to the Court, thirty States Parties currently provide for the possibility of legal recognition of same-sex couples. Eighteen States have made marriage available to persons of the same sex. Twelve other States have introduced alternative forms of recognition to marriage. Among the eighteen States which allow marriage for same-sex couples, eight also offer such couples the option of entering into other forms of union. In those circumstances, it is permissible to speak at present of a clear ongoing trend within the States Parties towards legal recognition of same-sex couples (through the institution of marriage or other forms of partnership), since a majority of thirty States Parties have legislated to that effect [para.175].
The ECtHR has consistently declined to endorse policies and decisions which embodied a predisposed bias on the part of a heterosexual majority against a homosexual minority. It has repeatedly held that, just like differences based on sex, differences based on sexual orientation require “particularly convincing and weighty reasons” by way of justification [para.62]. Many opponents of the civil partnership legalisations (as well same-sex marriage legalisation) refer to the clear will of the majority of the Ukrainian population to protect the traditional family [para.59]. Advancing its reasoning, the Court has emphasised, albeit in the context of its analysis under Article 8 of the Convention, that allowing same-sex couples to be granted legal recognition and protection undeniably serves these ideals and values in that recognition and protection of that kind confers legitimacy on such couples and promotes their inclusion in society, regardless of sexual orientation [para.64]. As icing on the cake the Court once more supported the idea of the European consensus, that States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship, bearing in mind, that States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples [para.65].
Upholding the general requirement of providing the legal framework allowing same‑sex couples to be granted adequate recognition and protection, the Court once more embraced the doctrine of minimum protection.
Assessing the case, the ECtHR highlighted that the applicants, being a same-sex couple, were and are still treated differently from different-sex couples on account of the absence of any legal recognition and protection, which is available for the latter. The prospect of legislative amendments referred to by the Government has no bearing on this conclusion as it remains remote and has no practical impact on the applicants’ daily life [para.70]. Furthering its reasoning, the Court reflected on the “customary argument” about traditional family values, admitting that that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment on grounds of sexual orientation. However, that aim is rather abstract and a broad variety of concrete measures may be used to implement it. Moreover, the concept of family is necessarily evolutive, as is shown by the changes it has undergone since the Convention was adopted. More importantly, the Court stated, that more broadly, securing rights to same-sex couples does not in itself entail weakening the rights secured to other people or other couples [para.75].
The ECtHR’s assessment ends with once more admitting a clear ongoing trend at European level towards legal recognition and protection of same-sex couples [para.78] and a violation of Article 14 of the Convention taken in conjunction with Article 8 [para.81].
Maymulakhin and Markiv v. Ukraine: the Outcomes
It is the first time that such a case has reached and has been decided by the European Court of Human Rights against Ukraine. The decision clearly highlights that Ukraine is under the positive obligations to safeguard the legal recognition and protection of same-sex couples due to the presence of European consensus and application of the doctrine on minimum protection. Apart from it, Ukraine cannot longer rely on the argument that there is a need to protect “traditional family values” or opportunities for the couples (both different-sex and same-sex) to enter into any contractual relations with regard to property rights.
It is a perfect moment for Ukraine finally to overstep the biases in the legal regulation and reflect on the timely issues which particularly have been raised in light of the Russian invasion. As it was pointed out by the representative of Ukrainian LGBTQI+ in the Armed Forces – “After all, we are protecting the country in the same way as heterosexuals”.