Credit: Wikimedia Commons, Cherry X
On July 21, 2015, in Oliari and Others v. Italy, the European Court of Human Rights (ECtHR) held that the State violated the European Convention on Human Rights (Convention) by failing to ensure that a legal framework recognizing and protecting same-sex unions was available. See ECtHR, Oliari and Others v. Italy, nos. 18766/11 and 336030/11, Judgment of 21 July 2015. The case was brought by three same-sex couples whose relationships were not recognized under Italian law, which does not allow for the possibility of marriage or any other type of civil union for homosexual couples. The Court, in deciding that Italian laws failed “to provide for the core needs relevant to a couple in a stable committed relationship,” also noted the increasing international and domestic support for legal recognition of same-sex couples. For example, the Court stated that Council of Europe Member States are increasingly putting into place legislation that legally recognizes same-sex couples. Similarly, the Italian Constitutional Court has repeatedly called for protection and recognition of same-sex couples. [ECtHR Press Release]
Facts and Domestic Procedure
The applicants are three homosexual couples who live in Italy.
Mr. Oliari and Mr. A.
Mr. Oliari and Mr. A., who were in a committed stable relationship, challenged the refusal of the Civil Status Office of the Trent Commune to issue a marriage bann (an announcement notifying the public of the marriage). They initially challenged this decision before the Trent Tribunal, which rejected their claim on the basis that the Civil Code required individuals to be of the opposite sex in order to get married and also noted that European Union law allowed Member States to regulate marriage rights. The applicants then appealed to the Trent Court of Appeal, which reiterated that the Civil Code did not permit same-sex marriage. The Trent Court of Appeal referred the issue to the Italian Constitutional Court to address the constitutional issues. In April 2010, the Italian Constitutional Court declared the constitutional challenge inadmissible on several grounds and rejected the applicants’ claim of a violation of the right to equality. As a result of the Constitutional Court’s decision, the Trent Court of Appeal rejected all of the applicants’ claims in September 2010. See id. at paras. 10-19.
Mr. Felicetti and Mr. Zappa
Mr. Felicetti and Mr. Zappa similarly applied for, but were denied, marriage banns in February 2011. Given the Constitutional Court’s decision, the applicants did not pursue a remedy under the Civil Code, since it could not have been considered effective. See id. at paras. 20-24.
Mr. Perelli Cippo and Mr. Zacheo
Mr. Perelli Cippo and Mr. Zacheo also requested, but were denied, marriage banns in November 2009. While they challenged the decision in the Milan Tribunal, which rejected their claim, they did not challenge the decision under the Code of Civil Procedure, because the remedy could not be considered effective following the Italian Constitutional Court decision. See id. at paras 25-32.
The three couples lodged applications with the European Court of Human Rights on March 21, 2011 and June 10, 2011, alleging violations of the following provisions of the European Convention on Human Rights: Article 8 (right to respect for private and family life), Article 14 (prohibition against discrimination) in conjunction with Article 8, Article 12 (right to marry), and Article 14 in conjunction with Article 12. The applicants argued that Italian law did not permit them to marry or enter into another type of civil union and that they were therefore discriminated against based on their sexual orientation. See id. at paras. 1, 3.
Admissibility
The Court rejected the State’s objections with respect to admissibility. These included that the applicants lacked standing and that they failed to submit their applications to the Court within six months from the date of the domestic court’s final decision. See id. at paras. 66-72, 86-98.
Additionally, the Court dismissed the State’s argument that the applicants failed to exhaust domestic remedies, noting that the Convention and prior jurisprudence of the Court require that such remedies be “effective” in practice as well as in law. See id. at para. 78. The Court noted that in this case, by the time the applicants had submitted their applications to the European Court of Human Rights, the Italian Constitutional Court had issued a judgment on the merits concerning Mr. Oliari and Mr. A.’s claim, as a result of which the Court of Appeal dismissed their claims. See id. at para. 81. Therefore, when the applicants brought their complaints to the Court, the domestic court system did not provide any remedies that “would have had any prospects of success.” See id. at para. 83. The Court went on to conclude that in this case, “there were special circumstances which absolved the applicants from their normal obligation to exhaust domestic remedies” and dismissed the State’s claim that the applicants had not exhausted domestic remedies. See id. at paras. 83, 85.
Article 8: Right to Respect for Private and Family Life
The Court emphasized that Article 8 not only protects individuals against arbitrary interference by public authorities, but also imposes positive obligations on the State to ensure respect for these rights. See id. at para. 159. The Court found that Italy violated Article 8 by failing to ensure that the applicants had access to a specific legal framework that would recognize and protect their same-sex unions. See id. at para. 168.
In reaching its conclusion, the Court assessed the interests of the individual in relation to the community. It found that same-sex couples, such as the applicants in this case, have an interest in having the option to enter a civil union or registered partnership as a form of legal recognition and protection of their relationship. See id. at para. 174. On the other hand, the Court noted that the State had not described the community’s interests in not allowing for a legal framework to provide recognition and protection to same-sex couples. Rather, the State had argued that it was in a better position to “assess the feelings of their community.” See id. at para. 176.
In its analysis of this point, the Court noted the increasing support for the recognition and protection of same-sex unions internationally and regionally. See id. at para. 178. The Court considered recommendations issued by the Parliamentary Assembly of the Council of Europe in 2000, which suggested that the Committee of Ministers call upon Member States to adopt legislation concerning registered partnerships, as well as a recent recommendation by the Committee of Ministers inviting Member States that have not “conferred rights or obligations on registered same-sex partnerships” to provide same-sex couples with “legal or other means to address the practical problems related to the social reality in which they live.” See id. at paras. 57, 59, 166. Presently 24 of 47 Council of Europe States, as well as States in the Americas and Australasia, have adopted legislation favoring the recognition and protection of same-sex unions. See id. at para. 178.
Additionally, in response to the State’s claim that it is better situated to assess the interests of the community, the Court noted that while this is generally the case, here, the Italian legislature had not given due weight to the views of either the community or the courts. See id. at paras 179. The Court explained that with respect to the judicial system, the Italian Constitutional Court has “notably and repeatedly” called for the juridical recognition of the rights and duties of same-sex unions.See id. at paras 180. Finally, the Court noted that official surveys show that a majority of the Italian population is in favor of same-sex unions. See id. at para. 181.
Because the Court held that Italy violated Article 8, it did not consider it necessary to examine whether there was also a violation of Article 14 in conjunction with Article 8. See id. at para. 188.
Article 12: Right to Marry and Article 12 in Conjunction with Article 14 (Prohibition Against Discrimination)
The Court reiterated that despite the increasing number of States that recognize same-sex marriage (eleven Council of Europe States), Article 12 does not impose an obligation on the State to grant same-sex couples access to marriage. Therefore, the Court rejected the complaint under Article 12 as manifestly unfounded. See id. at paras. 189-192.
The Court reasoned that Article 14, taken in conjunction with Article 12, a provision of a more general purpose and scope, cannot be interpreted as imposing an obligation on the State to grant same-sex couples access to marriage. Therefore, the Court also rejected the complaint under Article 12 in conjunction with Article 14 as manifestly unfounded. See id. at paras. 193-194.
Damages, Costs, and Expenses
The Court held that Italy had to pay the applicants 5,000 euros each for non-pecuniary damages. See id. at para. 199. Also, Italy was ordered to pay Mr. Oliari and Mr. A. 4,000 euros jointly for costs and expenses, and to pay Mr. Felicetti, Mr. Zappa, Mr. Cippo, and Mr. Zacheo 10,000 euros jointly for costs and expenses. See id. at para. 204.
Other Cases Concerning LGBT Rights and Violations of Article 8
The Court has found violations of Article 8 in other cases involving LGBT rights. ECtHR Factsheet—Gender Identity Issues. See also ECtHR Factsheet—Sexual Orientation Issues. For example, in Vallianatos and Others v. Greece, the Court found that the State violated Article 14 (prohibition against discrimination) in conjunction with Article 8 (right to respect for family and private life) when Greece introduced a law in 2008 entitled “Reforms concerning the family, children, and society,” which only provided for an official form of registered partnership for different-sex couples. The Court noted that of the 19 States parties to the Convention which authorized some form of registered partnership, only two countries limited it to different-sex couples. Additionally, the Court determined that Greece did not prove that it was necessary to bar same-sex couples from entering into such unions. See ECtHR, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, Judgment of 7 November 2013.
In Y.Y. v. Turkey, the Court found that the State violated Article 8 when the State refused to grant the applicant authorization for gender reassignment surgery on the grounds that the applicant, a transsexual, was not permanently unable to procreate. The Court emphasized that transsexuals have the right to personal development and physical and moral integrity and that the denial of the applicant’s initial request for access to surgery was not based on a sufficient ground. See ECtHR, Y.Y. v. Turkey, no. 14793/08, Judgment of 10 March 2015. [IJRC]
Additional Information
For more information about the European Court of Human Rights and the European human rights system, visit IJRC’s Online Resource Hub.