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Article European Court of Human Rights: Decision on Gay Marriage in Italy

(Sept. 14, 2015) On July 21, 2015, the European Court of Human Rights (ECHR) issued a landmark judgment concerning homosexuals and their right to marry in Italy. In the case of Oliari and Others v. Italy, the ECHR found in favor of six male applicants who were in committed, stable relationships with other men, but who were denied the right to marry or to enter into any type of civil union. (Case of Oliari and Others v. Italy, Applications Nos. 18766/11 & 36030/11 (July 21, 2015), HUDOC.) The ECHR reiterated that under article 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) there is no right to marry for same-sex couples. (Id. ¶ 191). However, the ECHR held that the Convention imposes positive obligations on Member States of the Council of Europe to offer legal alternatives to such couples, either in the form of civil unions or registered partnerships, and that Italy failed to ensure that “the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.” (Id. ¶ 185; Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950, as amended through 2010), Council of Europe website.)


The case involved two complaints filed by three homosexual couples whose requests to marry were denied by Italian authorities. The Italian Civil Code required that a legal marriage occur only between people of opposite genders. That requirement was subsequently upheld by the Italian Constitutional Court (CC), which ruled that legal recognition of homosexual unions does not require a union equal to marriage. The CC, in a judgment adopted in 2010 in the case of Oliari, had emphasized the need for the Italian legislature to take action to recognize and protect same-sex relationships. The Italian Court of Cassation, the highest court in Italy, in a 2015 judgment, held that the absence of same-sex marriage rights was not incompatible with national and international human rights law and that such an absence was not discriminatory. It pointed out, however, that the lack of availability of other forms of union for either homosexual or heterosexual couples was a problem. (Case of Oliari and Others v. Italy, ¶ 45, summarizing the Italian decisions.)

The ECHR stated that civil unions for homosexual or heterosexual couples are not recognized in Italy and neither are cohabitation agreements. However, the ECHR took note of a new development in Italy that began in 2013, in which homosexual couples had the option to enter into cohabitation agreements by signing a document regulating the financial aspects of a couple’s relationship and the assistance to be provided by each partner to the other in case of incapacity or illness. Some local authorities permitted the registration of same-sex unions, but this action did not confer any legal rights on same-sex couples. (Id. ¶¶ 39-42.)

The Petition

The applicants argued before the ECHR that under domestic law and court decisions, they were not able to enter into civil unions and were discriminated against due to their sexual orientation. The applicants also argued that the Italian government had failed to establish that some form of recognition of same-sex unions would adversely affect the “existing traditional families.” (Id. ¶ 110.) The applicants claimed that the Italian authorities had violated several articles of the Convention: article 8 (right to respect for private and family life) alone, article 14 (prohibition of discrimination) in conjunction with article 8, article 12 (right to marry) alone, and article 14 (prohibition of discrimination) in conjunction with article 12. (Id. ¶ 3.)

Judgment of the ECHR

The ECHR, in addition to considering domestic law and court decisions, reviewed comparative and European law and practice, Council of Europe materials such as resolutions of the Parliamentary Assembly, and the documents of the Committee of Ministers of the Council of Europe. The Council of Europe materials and the Committee documents urged Council of Europe Member States to provide same-sex couples some form of legal recognition. (Id. ¶ 166.) In addition, the ECHR considered European Union law and in particular articles 7, 9, and 21 of the Charter of Fundamental Rights, which recognize the right to marry and found a family in accordance with domestic law and prohibit any discrimination on the basis of sex or sexual orientation. (Id. art. 62; Charter of Fundamental Rights of the European Union, 2000 O.J. (L 364) 1, EUROPA.) The ECHR also cited the June 26, 2015, United States Supreme Court judgment in the case of Obergefell v. Hodges (No. 14-556, slip op., Supreme Court website) in which the Supreme Court upheld the right of homosexuals to marry in every state and held that a state has no legal grounds not to recognize a lawful same-sex marriage performed in another state. (Case of Oliari and Others v. Italy, ¶ 65.)

The ECHR in previous cases (Case of Schalk and Kopf v. Austria, (Application No. 30141/04), Final (Nov. 22, 2010), HUDOC; Case of Vallianatos and Others v. Greece (Applications Nos. 29381/09 & 32684/09), Grand Chamber (Nov. 7, 2013), HUDOC) has held that homosexual couples committed to a stable relationship fell within the ambit of article 8 of the Convention, on the right to family life. The ECHR noted that the cohabitation agreements that were available to everyone, not just homosexuals, did not offer real protection to gay couples. It also recognized the trend among Member States of the Council of Europe to provide for some form of legal recognition of same-sex couples; 24 out of the 47 Member States have legislation endorsing such recognition. (Case of Oliari and Others v. Italy, ¶¶ 178-179.)

The ECHR also noted that there was a gap in Italy between the law, which did not provide any legal alternatives to same-sex couples, and the applicants’ daily social life, because they were involved in committed relationships with no protection. The ECHR held that Italy, in the absence of its permitting marriage for same-sex couples, had a positive obligation to provide other options, such as civil unions or registered partnerships, in view of the fact that in Italy there are close to one million homosexuals and bisexuals. (Id. ¶¶ 173-174.)

With regard to Convention article 12, taken jointly with article 14, the ECHR held that article 12 does not impose a requirement on a state to recognize a right to marry for same-sex couples. Therefore, it did not find a violation of article 12. The ECHR reiterated that article 14 on discrimination has no standing alone; it complements the other substantive provisions of the Convention. (Id. ¶¶ 189-194.)

The ECHR concluded that Italy had violated article 8 in respect of the applicants and ordered the government to pay each applicant €5,000 (about US$5,593) as non-pecuniary damages. (Id. ¶ 4, (a) (i).)

Recent Developments in Italian Law

In 2014, the upper house of the Italian Parliament, reviewed two bills: one on civil unions and the other on introducing into the Civil Code a provision on cohabitation. In 2015, the Senate examined the two measures and merged them into one piece of legislation. It was expected that the legislation would be reviewed by both Chambers of the Italian Parliament, but in June the lower House adopted a motion endorsing the original, separate text on civil unions. (Id; Gay Civil Unions Measures Passed, Commits Government to ‘Promote Adoption of a Law,’ ANSA POLITICS (June 10, 2015).)

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