A Case of Two Stamps

Published by Dmitry Shabelnikov at 01/02/2018

Stamp about the same sex marriage. Source: Facebook page of Pavel Stotsko

On 4 January 2018, two men, both Russian nationals, were legally married in Copenhagen, Denmark. On 25 January 2018, after returning to Moscow, they went to a district department of internal affairs migration office with a translated and properly notarized Danish marriage certificate, asking to have their marriage recorded in the Register of Civil Status Records and marital status pages in their passports duly stamped as “married.” The migration office clerk did both, and one of the men immediately shared the news on his Facebook page and then in an interview to Rain TV. On the next day, Russia’s Interior Ministry announced that the responsible clerk had been fired and that both men’s passports had been invalidated. Soon after that, police confiscated the passports and initiated administrative proceedings against the men under Article 19.16 of the Code of Administrative Offences for “intentional damage done to a document certifying a citizen’s identity (passport) or its loss due to negligence” carrying a fine of 100 to 300 rubles. The men said they would appeal the authorities’ actions to the relevant judicial instances.

As is well known, Russia does not only refuse to recognize same-sex marriages but imposes administrative penalties for “propaganda of non-traditional sexual relations” among minors—in particular, mentioning such relations in a positive context is considered “propaganda” (Article 6.21 of the Russian Code of Administrative Offences). So what was the Interior Ministry clerk’s reasoning as she stamped the two men’s passports?

While there is no way of knowing, it turns out that the pertinent Russian Family Code provisions, if interpreted literally, strongly suggest that adding the marriage record to the Russian civil registry was not only possible but legally required in this case. One should bear in mind, however, that the issue was not about registering a marriage in Russia but about recognizing a marriage that Russian nationals had registered in another country.

“Article 158. Recognition of Marriages Contracted outside the Russian Federation

Marriages between Russian citizens and marriages between Russian citizens and foreign citizens or stateless persons contracted outside Russia in accordance with the laws of the state in which the marriage is contracted shall be recognized as valid in Russia in the absence of circumstances preventing marriage as specified in Article 14 of this Code.”

“Article 14. Circumstances Preventing Marriage

Marriage cannot be registered between:

persons of whom at least one is already party to another registered marriage;
close relatives (relatives by direct ascending and descending lines (parents and children, grandfather, grandmother, and grandchildren), full-blooded and half-blooded (having common father or mother) brothers and sisters);
adoptive parents and adopted children;
persons of whom at least one person has been found by a court to be legally incompetent due to a mental disorder.”

As we can see, being of the same sex (or, e.g. being below marriage age established in Russia) is not listed as a circumstance preventing marriage recognition in Russia.

Admittedly, there is Article 12 of the Family Code stipulating “mutual voluntary consent of the man and the woman entering into marriage and their being of marriageable age” as necessary conditions for marriage, thereby effectively establishing that only a man and a woman can marry each other in Russia. However, Article 12 is about marriage registration in Russia, not about recognition of marriages already registered in other jurisdictions, and Article 158 contains no reference to this norm (although the legislator did find it appropriate to add a reference to Article 14).

The Family Code has another norm, worded rather vaguely, in my opinion:

“Article 167: Restriction of Application of Foreign Family Law

Norms of foreign family law shall not apply if their application would contravene the foundations of the rule of law (public order) of the Russian Federation. In such cases, Russian law shall apply.”

Even if we agree that same-sex marriage per se can “contravene the public order” of the Russian Federation—which is a matter for a separate discussion—recognizing such a marriage in Russia is based on the application of Russian family law in its literal interpretation, rather than any foreign country’s law.

The events described here have triggered a stormy discussion in social media. Notably, for the first time—at least in my memory—this discussion is not limited to habitual homophobic attacks and insults (and equally sharp retorts from the opposite camp) but also involves a serious analysis by professional lawyers, including some prominent and authoritative experts.

Thus, Marat D., an expert in international law, argues for the “literal interpretation” approach similar to that described above:

“First, this is not about applying foreign law (on marriage) but about recognizing the legal fact of a marriage already contracted. Why and on what legal grounds would the civil registry office apply the ‘public order’ reservation? They have the Russian Family Code in which everything is written in black and white.

Second … what are the limits where this reservation can be applied? If another country registers a marriage between 15-year-olds, should we refuse to recognize it? This would be an attempt to replace the logic of Article 158 of the Family Code which explicitly refers to recognizing a legal fact established under a different jurisdiction, with clearly specified exceptions. Otherwise, the Family Code should have stipulated that foreign marriages which do not meet the requirements established for marriages in Russia cannot be recognized in Russia. Article 158 in this sense is a special norm which explicitly indicates what the legislator considers to contravene “public order” in Russia.

Third, why and on what grounds would marriage recognition requirements differ for Russian citizens and foreigners? By the Russian Constitution, everyone is equal before the law and the court irrespective of nationality. Discriminatory application of Article 158 based on nationality would be unconstitutional (let alone contrary to the ECHR).

[Unless the law is amended], any refusal to recognize such a marriage in Russia and any ‘cancellation’ of its recognition will be absolutely unlawful.”

Roman Bevzenko, professor of the Research Centre for Private Law, former head of the Private Law Division of the Russian Supreme Commercial (Arbitration) Court and current partner with the Pepeliaev Group, does not agree with Marat D. and other supporters of the literal interpretation:

“I have seen comments from some colleagues suggesting, ‘everything is strictly in accordance with the letter of the law’. But this is based on a merely grammatical interpretation of Article 14 of the Family Code which contains a closed list of grounds for finding a marriage unacceptable.

An historical interpretation suggests a different answer. The Russian Family Code was adopted in 1995, and its Article 158 (concerning recognition of marriages contracted abroad) has never been updated. The Netherlands was the first country to legalize gay marriages in 2001. Therefore, it would be wrong to assume that back in 1995, the Russian legislators intended to recognize gay marriages contracted by Russian abroad.

Teleological interpretation leads to the same conclusion. The legal definition of marriage as a union of a man and a woman also suggests that, within the meaning of Article 14 of the Russian Family Code, a homosexual marriage entered into by Russian nationals abroad cannot be recognized in Russia.

Therefore, according to effective law, this is how the case should be resolved, in my opinion.

It is another matter altogether that from the perspectives of both legal theory and policy, denying gay couples a possibility to generate the same legal consequences as opposite-sex unions—such as inheritance, criminal immunity, healthcare decisions, etc.—is primitive, caveman mentality.”

Alexander Vereshchagin who holds a Ph.D. in Law from the University of Essex and has written numerous books on judicial rulemaking and judicial interpretation shares Bevzenko’s view:

“I find the interpretation unambiguous. This issue is up to the legislators to decide in any continental jurisdiction. Even a very independent court would never risk taking such a revolutionary step in the light of the effective regulation. Did the legislators think about this issue? No, they did not. Is it possible to have any intention without thinking about it? No, it is not possible. Consequently, they had no such intention. It’s mere logic and nothing more … What’s important is not that they did not have an intention not to recognize such marriages but that they did not have an intention to recognize them. Therefore, recognizing such a marriage for someone who applies the law would mean assuming the functions of a legislator. The fact that the law lists certain types of opposite-sex marriage which cannot be recognized does not mean that same-sex marriages are not covered by this restriction, because they are simply [ruled out altogether] by the premise that marriage can be only between a man and a woman. In other words, the legislators only recognized an opposite-sex union to constitute marriage and then provided for a few exceptions, in which opposite-sex marriages cannot be recognized. Why on earth would they fantasize and add any other exotic types of ‘marriages’ that might emerge—between a human and a pig, for example? Recognition of all such cases is ruled out automatically by the general definition of marriage. [Otherwise] this could lead to an absurd assumption that the law prohibits gay marriages in Russia but allows such marriages if registered abroad, with all favorable legal consequences applicable in Russia. Not only would it enable bypassing the law, but it would also lead to outright discrimination: if you have money, go to Denmark, get married and have your marriage fully recognized and protected in Russia, but if you don’t have money, stay in Russia and remain single.

It is as if Russia has outsourced the registration of gay marriages to Denmark yet does not mind them a bit, just cannot be bothered to deal with their registration! It is impossible to draw such conclusions from the legislation.”

In response, proponents of the literal interpretation argue that according to doctrinal principles, literal interpretation should take precedence as long as it unambiguously reveals the meaning of the legal norm (which, they believe, it does in this case). In addition, prohibitive norms should not be construed broadly.

No matter how it unfolds, the “case of two stamps” has already attracted the attention of the more active and reflexive part of Russia’s legal community and will perhaps catalyze changes in the long term. As for the near future, two options seem likely: (1) prompt amendment of Article 14 of the Family Code by the State Duma; however, it does not mean that the heroes of this story cannot challenge the invalidation of their passports and cancellation of their marriage recognition in court; (2) if the case comes before a court, filing a request with the Constitutional Court to clarify the existing norms is an option; given the Constitutional Court’s extremely conservative positions on most issues, predicting their response in this case won’t be difficult, however.

In any event, the matter now has every chance of being considered by the European Court of Human Rights; while it does not currently support an unconditional right to have same-sex marriages recognized, the Court considers it the State’s obligation at least to provide an alternative form of registered cohabitation (e.g. a civil union), particularly when the authorities refuse to register a marriage contracted abroad.

On January 20^th, it became known that the couple left Russia, having received numerous threats and told by the police that they “could not guarantee their safety”.[:]