Information Note on the Court’s case-law 187
July 2015
Oliari and Others v. Italy - 18766/11 and 36030/11
Judgment 21.7.2015 [Section IV]
Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Lack of legal recognition of same-sex partnerships: violation
Facts – The applicants are three couples living in stable same-sex relationships who were not allowed to publish marriage banns because the Italian Civil Code provided that the spouses had to be of the opposite sex. Following an appeal by the first couple, the appeal court made a referral to the Constitutional Court regarding the constitutionality of the legislation. In April 2010 the Constitutional Court declared the applicants’ constitutional challenge inadmissible after finding that the right to marriage, as guaranteed by the Italian Constitution, did not extend to homosexual unions and was intended to refer to marriage in its traditional sense. At the same time, that Constitutional Court pointed out that it was for the Parliament to regulate, in time and by the means and limits set by law, the juridical recognition of the rights and duties pertaining to same-sex couples. The appeal was consequently dismissed.
Law – Article 8: The Court had already held in previous cases that relationships of cohabitating same-sex couples living in stable de facto partnerships fell within the notion of “family life” within the meaning of Article 8. It also acknowledged that same-sex couples were in need of legal recognition and protection of their relationship, as both the Parliamentary Assembly and the Committee of Ministers of the Council of Europe had further underlined.
The Court considered that the legal protection currently available in Italy to same-sex couples failed to provide for the core needs relevant to a couple in a stable committed relationship. Whereas registration of same-sex unions with the local authorities was possible in about 2% of municipalities, this had a merely symbolic value and did not confer any rights on same-sex couples. Since December 2013 same-sex couples had had the possibility of entering into “cohabitation agreements”, which were however rather limited in scope. They failed to provide for some basic needs fundamental to the regulation of a stable relationship between a couple, such as mutual material support, maintenance obligations and inheritance rights. Moreover, such agreements were open to any cohabiting persons which meant that they did not primarily aim to protect couples. Furthermore, they required the couple concerned to be cohabiting, whereas the Court had already accepted that cohabitation was not a prerequisite for the existence of a stable union between partners given that many couples – whether married or in a registered partnership – experienced periods during which they conducted their relationship at long distance, for example for professional reasons.
Hence there existed a conflict between the social realities of the applicants living openly as couples, and their inability in law to be granted any official recognition of their relationship. The Court did not consider it particularly burdensome for Italy to provide for the recognition and protection of same-sex unions and considered that a form of civil union or registered partnership would allow them to have the relationship legally recognised which would be of intrinsic value for the persons involved.
The Court further noted a trend among Council of Europe member States towards legal recognition of same-sex couples, with 24 of the 47 member States having legislated in favour of such recognition. Moreover, the Italian Constitutional Court had pointed out the need for legislation to recognise and protect same-sex relationships, but the Italian legislature had for a long time failed to take this into account thus potentially undermining the authority of the judiciary and leaving the individuals concerned in a situation of legal uncertainty. Such calls by the Italian courts reflected the sentiments of a majority of the Italian population who, according to recent surveys, supported legal recognition of homosexual couples. The Italian Government had not denied the need for legal protection of such couples and had failed to point to any community interests justifying the current situation.
In view of the foregoing, the Court found that Italy had failed to fulfil its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. To find otherwise, the Court would have had to be unwilling to take note of the changing conditions in Italy and reluctant to apply the Convention in a way which was practical and effective.
Conclusion: violation (unanimously).
Article 41: EUR 5,000 each in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Schalk and Kopf v. Austria, 30141/04, 24 June 2010, Information Note 131; Vallianatos and Others v. Greece [GC], 29381/09 and 32684/09, 7 November 2013, Information Note 168; and Hämäläinen v. Finland [GC], 37359/09, 16 July 2014, Information Note 176)
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This summary by the Registry does not bind the Court.
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