Maymulakhin and Markiv v Ukraine: Perspectives on Same-Sex Relations in Ukraine in Light of the European Court of Human Rights’ Decision

by | Aug 24, 2023

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About Sergiy Panasyuk

Sergiy is a Ph.D in constitutional law; Lecturer at the Department of Constitutional Law of the Faculty of Law of Charles University (Prague, Czech Republic); Visiting Fellow at the Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany); Professor at the Ukrainian-American Concordia University and the European University (Kyiv, Ukraine); Former academic consultant of the Judge of the Constitutional Court of Ukraine (2017-2023).

Since the publication of our previous blog post about perspectives on same-sex marriage legalization in Ukraine, an online petition about this issue, submitted to Ukrainian president Volodymyr Zelenskyy, has received an answer. Zelenskyy recognized that the topic is a very important one, and asked the Ukrainian Prime Minister to analyze the situation and propose an answer. But in reality, the status of same-sex relationships in Ukraine is still precarious. That could be changed if the Ukrainian government pays attention to a recent European Court of Human Rights decision, in which the Court recognized a violation of the European Convention on Human Rights by Ukraine.

Background: the Draft Law of 2023

In March 2023, Ukrainian MPs prepared a Draft Law creating an institute of ‘registered partnerships’, according to which same-sex couples could register their relations as an official family union. This would have put same-sex couples in almost the same position as different-sex cohabiting couples. But, the Ukrainian Ministry of Defense strongly opposed the Draft Law, arguing that if such a union were equal to marriage, it could contradict constitutional provisions.  In fact, however, the Draft Law was designed to give a legal status to same-sex relations without engendering constitutional violations, which is why it had proposed a new institute of registered partnerships.

The European Court’s Decision

Despite resistance to the legalization of same-sex relationships from some Ukrainian authorities, it seems that the cause may move forward with the help of a recent decision of the European Court of Human Rights: Maymulakhin and Markiv v Ukraine. The applicants were two Ukrainian men who live as a couple. One was a soldier, who joined the National Guard of Ukraine on 24th February 2022 to protect his motherland, but after a year, resigned for health reasons. The applicants were not able to register as family members, and hence they had limited rights in Ukraine’s domestic law.

The Court decided that the denial to the applicants, as a same-sex couple, of any form of legal recognition and protection of their relationship entailed a violation of Article 14 of the Convention (freedom from discrimination), read with Article 8 (right to respect for private and family life). The Court noted a clear, ongoing trend at the European level towards legal recognition and protection of same-sex couples within the member States of the Council of Europe, and concluded that Ukraine had failed to provide any justification for treating the applicants differently as a same-sex couple, as compared with different-sex couples.

Commentary on the Court’s Decision

Analyzing the case, the Court highlighted some very important points, of which Ukrainian officials ought to take heed. As the Court rightly pointed out, the Ukrainian National Human Rights Strategy identified preventing and combating discrimination as one of its strategic areas. The implementation of this Strategy includes putting into effect an Action Plan for the legalization of registered civil partnerships for different-sex and same-sex couples. But unfortunately, in 2019 and 2020, the Ministry of Justice reported receiving a significant number of petitions from some regional, city, and district councils, non-governmental and religious organizations arguing that the Action Plan was inadmissible regarding same-sex couples. Because of this, the Ministry of Justice decided that implementing this aspect of the National Human Rights Strategy would be impossible.

However, the Court pointed out (at paragraphs 23-24 of the judgment) that Ukraine’s path to membership of the European Union – often declared to be a goal of Ukrainian officials – includes the need to elaborate on the legislative possibility of marriage and the right to found a family for same-sex couples. But in response, the Ukrainian Government stated simply that ‘Ukrainian legislation does not provide the opportunity of marriage for same-sex couples [and for] the time being, the Government of Ukraine [was] taking measures to improve and study the issue of same-sex partnerships legalisation’.

The Court pointed out that, under its case law, Ukraine is free to restrict access to marriage to different-sex couples only. Still, the Ukrainian Government did not give reasons for its decision to exclude same-sex couples from legal status as a de facto family union, and people like the applicants should expect to be afforded adequate legal recognition and partnership protection. The Court considered that the protection of the family in the traditional sense (often given as a reason for excluding same-sex couples from certain legal rights) is a rather abstract aim, and that the concept of ‘family’ is necessarily evolutive.

After the Court’s decision, there is a glimmer of hope that same-sex couples in Ukraine will have real rights and a legislative basis for the official registration of their relations. But on the other hand, distracted by the war and other problems, the Ukrainian government may continue to act like the country is in the ‘dark ages’, and not a modern European democratic country, by denying same-sex couples any form of legal recognition.

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