Last 21 July, the European Court of Human Rights (ECtHR) in Oliari and others v. Italy had once again the opportunity to analyze the status of same-sex couples wishing to marry or enter into a legally recognized partnership. This resulted in a groundbreaking judgment, with the Court asserting that the absence of a legal framework recognizing homosexual relationships violates the right to respect for private and family life, as provided by the European Convention of Human Rights (ECHR) in article 8.
Its relevance is twofold, as the Court poignantly plunges into the current legal situation of Italy, and at the same time builds up on the outcomes of its previous cases, Shalk and Kopf v. Austria and Vallianatos and others v. Greece, to slightly, yet significantly, extend the interpretation of the ECHR principles concerning same-sex individuals who enter stable intimate relationships.
The dispute at stake originated from two applications submitted by six Italian nationals in 2011. The applicants asserted that the absence of any legal provision allowing them to marry or access any form of civil union was a form of discrimination on the ground of sexual orientation, in violation of articles 8, 12 (right to marry) and 14 (non-discrimination) ECHR.
Although in about 155 municipalities Italian same-sex couples may register in local registries of civil unions, these are of “merely symbolic value” and do not attribute any official status to the subjects concerned, and may conclude cohabitation agreements, which are designed to regulate certain financial aspects of their life together.
Both the applicants and the government also referred to the main decisions delivered in the most recent years by domestic higher courts on this issue, which basically admitted that same-sex unions must be protected as form of social community under article 2 of Italian Constitution on a case by case basis, yet it is upon the legislature to introduce a form of legal partnership accessible to homosexual couples, and not to the judiciary. Such legal format should not however be marriage, as its constitutional definition must be interpreted in the traditional sense, as the union between a man and a woman.
The reasoning of the Court focused on the analysis of Article 8 ECHR and specifically on the meaning that the notion of “respect” entails in the present case. This led the Chamber to focus on the discrepancy between social reality and the law, as well as to determine if the State positive obligation to ensure such right is “narrow and precise or broad and indeterminate” (§161).
Respect for private and family life is not guaranteed in a State like Italy, where still today same-sex couples have no opportunity “to enter into a civil union or registered partnership (in the absence of marriage)” (§164). In a very insightful passage, the Court emphasized the conflict between the social reality of the applicants, who already live their lives as homosexuals committed in a relationship in Italy, and the silence of the law.
Instruments presented by the Government as adequate solutions are, according to the ECtHR, insufficient. The same Constitutional Court could not but invite the legislature to take action, while ordinary courts hardly have the competence to act more effectively than the higher court in assessing the rights of same-sex couples. Even if they could, the Chamber observed that judicial recognition without a proper legal framework would probably not have lasting legal effects in practice.
Indeed, the higher courts interpretation generated a state of uncertainty, not only as the suggested case by case approach proved to be successful for certain categories of rights more than others, but also in light of the government constant objection to the applicants’ claims.
Consequently, the Court found that the Government “has overstepped their margin of appreciation” (§ 185) and concluded that “the absence of a legal framework allowing for recognition and protection of [applicants] relationship violates their rights under Article 8 of the Convention”, also in light of the “movement towards legal recognition”, “which has continued to develop rapidly in Europe since the Court’s judgment in Shalk and Kopf” (§178).
Nonetheless, the judges remain overly cautious on the right to marry, as they reaffirm that States enjoy a wider margin of appreciation, thus reiterating the same conclusions held in Shalk and Kopf, to finally declare the claim under article 12 ECHR inadmissible.