MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-40

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-40 Maymulakhin and Markiv v. Ukraine (Application No. 75135/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)244, DH-DD(2024)1102

 

Application	Case	Judgment of	Final on	Indicator for the classification
75135/14	MAYMULAKHIN AND MARKIV	01/06/2023	01/09/2023	Complex problem

·  Co-operation project: 3523 – Support for implementing European standards relating to anti-discrimination and rights of national minorities in Ukraine

Case description

This case concerns the unjustifiable denial to the applicants as a same-sex couple of any form of legal recognition and protection as compared with different-sex couples amounting to discrimination on the grounds of their sexual orientation (violation of Article 14 taken in conjunction with Article 8). 

Status of execution

This is the first examination of the case. The authorities submitted two action plans on 28 February and 1 October 2024, which are summarised below (see DH-DD(2024)244 and DH-DD(2024)1102 for  details).

Individual measures

The just satisfaction awarded was paid in full within the set time limit.

The authorities confirm that at present in Ukraine there is no legal framework allowing same-sex couples to enter into any type of civil union recognising their relationship.

General measures

The authorities provided information on the security situation in Ukraine and the challenges in their work caused by continuous attacks of Russia, in particular, on critical infrastructure and residential areas. They nevertheless emphasised ongoing efforts to prevent and combat discrimination in Ukraine.

a)     legislative developments

Two draft laws are pending before the Parliament:

1.  Draft Law No. 9103 (tabled on 13 March 2023) which aims to introduce the registered partnership, defined as a voluntary family union of two adults of the same or different sex, registered in compliance with the procedure set out by this draft law, and based on mutual respect, understanding and support, as well as mutual rights and obligations.

The following key aspects are envisaged to be regulated by the Draft Law No. 9103:

·         state registration will be carried out by the authorities registering civil status acts;

·         it will be possible to recognise a family union or same-sex marriage registered abroad as a registered partnership in Ukraine;

·         registered partners will be considered “close relatives” (близькі родичі) with regard to each other;

·         registered partners will have the right to conclude an agreement on registered partnership covering, in particular, their property rights and obligations and the legal regime of their property;

·         personal non-property rights, such as the right to respect for one's individuality, habits and preferences, the right to physical and spiritual development, the right to receive education and the right to terminate the registered partnership, as well as personal non-property obligations, such as the obligation of both registered partners to provide for the family, are explicitly indicated;

·         property acquired by registered partners will be jointly owned unless an agreement on registered partnership stipulates otherwise;

·         registered partners will be considered heirs of first priority by law and will have the right to make a common will concerning joint property;

·         social protection of registered partners, including special guarantees for the military, will be ensured;

·         a registered partner, in case of the death or disappearance of the other registered partner, will have the right to officially identify the body, to participate in the examination of causes of death, to obtain compensation for pecuniary and non-pecuniary damage;

·         the rules defining the list of necessary documents, requirements concerning the partners’ presence during the state registration, time-limits for state registration, legal consequences of the state registration of the registered partnership, as well as the rules regulating invalidation and termination of registered partnerships, including grounds and legal consequences, are included into the draft law. It will be possible to have a registered partnership invalidated or terminated by a court.

Draft Law No. 9103 aims to amend more than 40 legislative instruments, inter alia, the Family Code, Civil Code, laws related to social protection as well as rights of the military personnel and those serving in the Armed Forces.

2.  Draft Law No. 11523 (tabled on 26 August 2024) which aims to complement the Draft Law No. 9103 and regulates issues pertinent to the choice-of-law rules applicable to multi-jurisdictional cases.

The authorities also referred to other laws which contain provisions adopted to prevent and combat discrimination on grounds of sexual orientation. Among others, they indicated that the Law No. 3515-IX amending legislation in respect of allocation and payment of a one-time monetary allowance entered into force on 29 March 2024. It guarantees, in particular, the right of military servicemen to make a personal order designating an individual or individuals who will be entitled to receive such allowance in the event of their death. In the absence of a personal order, members of the family, including an individual with whom the deceased was living as a family regardless of their sex, are entitled to receive such allowance.

b)     awareness-raising initiatives and public opinion

The authorities informed the Committee about numerous training and awareness-raising initiatives concerning equality and anti-discrimination, including those implemented with the support of the Council of Europe. They also highlighted important work done by the civil society in this respect and the positive changes in the public opinion, as demonstrated by the recent opinion polls.

Rule 9 communications from civil society

On 28 October 2024, the NGO Insight submitted a communication (see DH-DD(2024)1269), in which they underlined the continued absence of legal recognition and protection of same-sex couples under the current legal framework and complained about the lack of progress with the adoption of Draft Law No. 9103.

On 30 October 2024, the NGO Gender Stream submitted a communication (see DH-DD(2024)1269) highlighting the challenges faced by same-sex partners due to the absence of legal recognition of their relationships. The NGO also emphasised the need to amend legislation to strengthen protection of the LGBTIQ+ persons from hate crimes.

In their reply to these submissions (see DH-DD(2024)1269), the authorities provided information on the work done in the Parliament to prepare Draft Law No. 9103 for further consideration.

Analysis of the Secretariat

The measures taken by the Ukrainian authorities to collect information and report on the implementation of the judgment irrespective of the difficulties faced in the context of the continued aggression of the Russian Federation are to be welcomed.

Individual measures

The current legal framework does not allow same-sex couples to have their relationship legally recognised and protected by the state. The individual measures are therefore intrinsically linked to the general measures and the adoption of legislation providing to same-sex couples adequate recognition and protection of their relationship.

General measures

It should be recalled that in accordance with their positive obligations, the States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship[1] and that, as established in the present judgment, the unjustifiable denial of such recognition and protection is discriminatory.[2]

The execution of the present judgment implies therefore that a clear legal framework is put in place in Ukraine allowing same‑sex couples to be granted adequate recognition and protection of their relationship. While States enjoy a degree of discretion allowing them to determine the exact nature of the legal regime to be made available,[3] both as regards the form of recognition and the content of protection to be granted to same-sex couples,[4] the respective legal framework should ensure regulation of mutual rights and obligations of same-sex couples, including inter alia moral and material support,[5] as well as a possibility to rely on the existence of their relationship in dealings with the judicial or administrative authorities.[6]

The legislation already adopted, in particular, the Law No. 3515-IX, while aimed at preventing and combatting discrimination, does not provide for the recognition of same-sex relationships as such. Its adoption cannot be regarded as the implementation of Ukraine’s obligation to introduce a legal framework for adequate recognition and protection of same-sex couples in line with the Convention standards, as required for the execution of the present judgment finding a violation of Article 14 in conjunction with Article 8. It should also be borne in mind that in 2006 Ukraine ratified Protocol No. 12 to the Convention which provides for a general prohibition of discrimination in the enjoyment of any right set forth by law, which shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

It is therefore positive that the authorities developed targeted draft legislation on registered partnerships aimed at overcoming discrimination against same-sex couples. The Draft Law No. 9103 complemented by the Draft Law No. 11523 appears to set an important foundation for legal recognition and protection of same-sex relationship. More specifically, the authorities, within the limits of their discretion, chose the registered partnership, a union also open to same-sex couples, as the form of recognition of same-sex relationships. It is notable that the draft legislation envisages a range of important personal non-property rights and obligations as well as property rights of registered partners. It further defines state bodies responsible for the registration of same-sex partnerships, the procedure of registration as well as the grounds and procedures for invalidation and termination of registered partnership, including by court decisions. Finally, it is important that the draft legislation allows the recognition in Ukraine of same-sex marriages and same-sex civil unions registered abroad as registered partnerships.

It is essential now, as also highlighted by the civil society, that the authorities move promptly forward with further legislative steps in respect of the Draft Law No. 9103, pending before the Parliament since March 2023. The Committee may wish to invite the authorities to establish a concrete timeline to this end. The authorities may also be encouraged to benefit from the Council of Europe co-operation activities, notably those provided by the SOGIESC unit and its co-operation projects in Ukraine, and expertise in the course of the legislative process ahead.

Financing assured: YES