Landmark ruling for same sex couples in Italy

Oliari and Others v Italy (European Court of Human Rights, Chamber, Applications Nos. 18766/11 and 36030/11, 21 July 2015)

The European Court of Human Rights has concluded that Italy must provide legal recognition of same-sex couples. 

The ruling confirmed that Italy, by denying recognition to same-sex couples, was in violation of Article 8 of the European Convention on Human Rights, which provides for the right to respect for privacy and family life.

Facts

Oliari originated with two separate applications filed against the Italian Republic (Applications) by six Italian Nationals, Mr Oliari, Mr "A", Mr Felicetti, Mr Perelli Cippo, Mr Zacheo and Mr Zappa (Applicants).

In the case of each of the couples, the partners had applied to marry and been rejected from doing so on the basis that marriage is between spouses of the opposite sex.

The Applicants alleged that because Italian legislation did not allow them to get married, or enter into any other type of civil union, they were being discriminated against as a result of their sexual orientation, in breach of Articles 8, 12 and 14 of the Convention.

The Submissions

In relation to Article 8 of the Charter, the Applicants, inter alia, submitted that in view of the positive trend registered in Europe relating to the recognition of same-sex couples, the Court should impose on States (including Italy) a positive obligation to ensure that same-sex couples have access to an institution, of whatever name, which was more or less equivalent to marriage.

In turn, the Government submitted that while the Court recognised the Convention right of same-sex couples to see their union legally acknowledged, it considered that the relevant provisions (Articles 8, 12 and 14) did not give rise to a legal obligation on the Contracting States, as the latter enjoyed a wider margin of appreciation in the adoption of legislative changes able to meet the changed "common sense" of the Community.  Therefore, the States should have autonomy to decide on the timing and mode of legislative changes to reflect recognition of same-sex couples.

The Court's Conclusion

After considering the submissions, the Court ruled that Italy was in violation of Article 8 of the Convention [at 185-187].

The Court concluded that while the essential object of Article 8 is to protect individuals against arbitrary interference by public authorities, it may also impose on a State certain positive obligations to ensure effective respect of the rights protected by Article 8.

Disappointingly, however, the Court did not go so far as to indicate that marriage was required, simply referring to a "specific legislative framework", which the Court considered was needed to protect and recognise same sex unions, and to guarantee to them certain rights relevant to a couple in a stable and committed relationship. Therefore, in the absence of a prevailing community interest being put forward by the Government, against which to balance the Applicants "momentous interests", and in light of domestic courts' conclusions on the matter which remain unheeded, the Court found that the Government "overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the Applicants had a specific legal framework to recognise and protect their relationships".

Legislative change

The Court has previously adopted a cautious approach on the issue of same-sex partnerships. The ruling marks the first time it has taken a stance on the issue, making clear that same-sex couples must have legal protection, a new legal principle for the European Union. A similar conservative approach was taken by the UN Human Rights Committeein Joslin v New Zealand (902/99), whereby the Committee interpreted the right to marry as a right of heterosexual couples only - where the relevant Covenant referred specifically to "men and women" as opposed to "every human being". 

While the ruling in Oliari is non-binding on the rest of Europe, it is hoped that the ruling will be of some persuasive value and set a precedent for the rest of Europe, and in particular, the 23 Council of Europe States which have not yet enacted legislation permitting same-sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership.

Notably, while the Applications were being determined, an amended bill relating to amendments to the Italian Civil Code and other provisions on equality in access to marriage and filiation by same sex couples, civil unions and cohabitation and solidarity, was presented to the Senate and to the Lower House. Subsequently, on 10 June 2015, the Lower House adopted a motion to favour the approval of a law on same sex unions, taking particular account of the situations of persons of the same sex.

It is therefore expected that civil unions of same-sex couples will soon be recognised under Italian Law.

The decision can be found online here.

Ashlea Hawkins is lawyer at Lander & Rogers Lawyers.

Oliari and Others v. Italy, Applications nos. 18766/11 and 36030/11, Council of Europe: European Court of Human Rights, 21 July 2015