FIRST SECTION
DECISION
Application no. 59963/21
Ettore ZANOLA
against Italy
The European Court of Human Rights (First Section), sitting on 21 November 2023 as a Chamber composed of:
Alena Poláčková, President,
Krzysztof Wojtyczek,
Lətif Hüseynov,
Péter Paczolay,
Ivana Jelić,
Gilberto Felici,
Raffaele Sabato, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to the above application lodged on 1 December 2021,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ettore Zanola, is an Italian national who was born in 1939 and lives in Milan. He was represented before the Court by Mr E. Ganzarolli, a lawyer practising in Milan.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant cohabited with his same-sex partner from 1976 until the death of his partner on 14 June 2015. On 29 July 2015 the applicant claimed a survivor’s pension from the National Social Security Fund and Assistance for Engineers and Architects (Inarcassa).
4. On 16 September 2016 Inarcassa refused the request on the grounds that the applicant had not been married to the deceased person and that therefore he could not be considered a “surviving spouse” entitled to such a pension for the purposes of section 24 of the Inarcassa General Welfare Regulation.
5. On 6 October 2016 the applicant challenged that decision in the Milan Labour Court. He pointed out, among other things, that his right to a survivor’s pension stemmed from the domestic and international law applicable at the time.
6. He referred in particular to the Constitutional Court’s decision no. 138 of 15 April 2010, which concerned the question of the constitutionality of the Articles of the Civil Code that excluded same-sex couples from marrying. The Constitutional Court had declined to review the Articles, having concluded that, although same-sex unions fell within the ambit of fundamental rights (Article 2 of the Constitution), it was for Parliament to define the way the right to form such a union was to be given formal recognition in the Italian legal system, possibly through institutions other than marriage. The Constitutional Court had also found that there had been no infringement of Article 3 of the Constitution (the principle of equality, including the principle of non-discrimination), holding that same-sex unions were not equivalent to marriage. The applicant also referred to the Court’s judgments in Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010) and Oliari and Others v. Italy (nos. 18766/11 and 36030/11, 21 July 2015).
7. In the meantime, on 5 June 2016 Law no. 76 of 20 May 2016 (“Law no. 76 of 2016”) entered into force, introducing civil unions for same-sex couples and recognising, among other things, their right to survivors’ pensions (section 1, subsection (20), of the Law).
8. In a judgment of 8 March 2017, the Milan Labour Court ruled against the applicant. It held firstly that section 1, subsection (20), of Law no. 76 of 2016 was not applicable to the case since the applicant and his partner had not been in a civil union. It further held that the scope of section 24 of the General Rules on Social Security could not be extended to unmarried couples on the basis of the provisions of the Italian Constitution and Article 8 of the Convention. The Labour Court reiterated that, as already stated by the Court of Cassation (judgment no. 22318 of 3 November 2016), the situation of unmarried couples was not comparable to marriage since only marriage provided for a set of economic rights and obligations during the relationship and thus justified the adoption of a different welfare regime in the event of the death of one of the spouses. Therefore, no discrimination had occurred in the present case.
9. The applicant lodged an appeal against that decision. He referred to the principle of solidarity under Article 2 of the Constitution, holding that that Article established a positive right for same-sex partners to obtain a survivor’s pension. He also challenged the judge’s reference to a complaint of unjustifiable discrimination between unmarried heterosexual couples and same-sex couples. He affirmed repeatedly that he had deliberately decided not to raise that issue and that therefore the Labour Court’s conclusion on this issue was merely obiter. In any case, the comparison should have been made with married couples and not with de facto unions. The decision was therefore incorrect and his case had been misconstrued.
10. By a judgment delivered on 26 July 2018, the Milan Court of Appeal reversed the first-instance decision. It considered that the purpose of survivors’ pensions was the protection of family life, a fundamental right recognised by Article 2 of the Constitution not only for married couples but for all couples in a relationship as defined by law, irrespective of their sexual orientation. The Court of Appeal referred in that connection to the Constitutional Court’s decision no. 138 of 15 April 2010 (see paragraph 6 above), and also to the Court of Cassation’s judgments no. 4184 of 14 March 2012 and no. 2400 of 9 February 2015, which reiterated the reasoning of the Constitutional Court. Given that domestic courts were under a duty to implement and enforce domestic law in accordance with the Constitution, the Court of Appeal concluded that the applicant should have been granted a survivor’s pension.
11. On 14 September 2021, on appeal by Inarcassa, the Court of Cassation quashed the Court of Appeal’s decision, holding that retrospective effect had been unlawfully attributed to section 1, subsection (20), of Law no. 76 of 2016, which, at the time of the applicant’s partner’s death, had not yet entered into force. The Court of Cassation further held that there was no incompatibility with the Constitution, which, in its view, gave Parliament a wide discretion in defining the protection to be afforded to same-sex couples.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
12. The relevant domestic law and practice is set out in the Court’s judgments in Oliari and Others (cited above, § 33-45) and Orlandi and Others v. Italy (nos. 26431/12 and 3 others, §§ 74-105, 14 December 2017).The Italian Constitution
13. Articles 2 and 3 of the Italian Constitution read as follows:
Article 2
“The Republic shall recognise and guarantee inviolable rights of the person, both as an individual and in social groups where personality is developed, and shall require the fulfilment of obligations of political, economic and social solidarity, without derogation.”
Article 3
“All citizens shall have equal social dignity and shall be equal before the law, without distinction on grounds of sex, race, language, religion, political opinion, or personal or social status.
It is the duty of the Republic to remove obstacles of an economic or social nature which constrain the freedom and equality of citizens and thereby impede the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country.”Law no. 76 of 20 May 2016 Regulating civil unions of same-sex couples and cohabitation
14. The relevant provisions of this Law are the following:
Section 1
“1. The present law recognises civil unions between persons of the same sex as specific social formations for the purposes of Articles 2 and 3 of the Constitution and regulates de facto cohabitation.
2. Two adult persons of the same sex may enter into a civil union by declaration before the registrar of civil status and in the presence of two witnesses.
3. The registrar of civil status shall record the same-sex civil union in the civil status register.
...
20. For the sole purpose of ensuring the effective protection of the rights and the fulfilment of the obligations arising from the civil union between persons of the same sex, the provisions that refer to marriage and the provisions containing the words ‘spouse’, ‘spouses’ or equivalent terms, wherever they occur in laws, instruments having the force of law, regulations and administrative acts and collective agreements, shall also apply to each of the parties to the same-sex civil union ...”Law no. 6 of 3 January 1981 on Social security regulations relating to engineers and architects
15. The following provisions of this Law are relevant to the present case:
Section 7 - Survivors’ and indirect pensions
“1. The pensions referred to in sections 2, 3, 4 and 5 shall be payable to survivors, in the cases and under the conditions laid down for State employees, in accordance with the following provisions:
(a) to the spouse, to the extent and with the addition provided for in subsection 2, in respect of each child who is a minor or who has reached the age of majority and is incapable of gainful employment;
(b) in the absence or upon the death of the spouse, to the minor children and to children who have reached the age of majority and are incapable of gainful employment ...”Inarcassa General Welfare Regulations
16. The Inarcassa general welfare regulations of 19 December 2012 read as follows, in so far as relevant:
Section 24 - Survivors’ and indirect pensions
“1. Old-age pensions, unified old-age pensions (pensione di vecchiaia unificata), and disability, invalidity, supplementary and contributory pensions shall be payable:
(a) to the [deceased’s] spouse, as long as he or she retains widowhood status;
(b) to the [deceased’s] children, legitimate or equivalent, who are minors or who are of full age and incapable of gainful employment or who are of full age and suffering from a serious disability established in accordance with Law no. 104 of 5 February 1992 ...”
COMPLAINTS
17. Relying on Article 8 of the Convention, the applicant complained that the denial of his request for social security allowances as a surviving partner amounted to a breach of his right to respect for his family life.
18. Under Article 14 of the Convention, taken in conjunction with Article 8, he also claimed to have been discriminated against compared with married different-sex couples.
19. Lastly, the applicant relied on Article 1 of Protocol No. 1, alone and in conjunction with Article 14 to the Convention without, however, specifying his claim.
THE LAWAlleged violation of Article 8 of the Convention
20. The applicant contended that his right to respect for his family life had been breached in the present case. Article 8 of the Convention provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
21. Relying on the Court’s case-law (Schalk and Kopf, cited above; Şerife Yiğit v. Turkey [GC], no. 3976/05, 2 November 2010; and Oliari and Others, cited above), as well as on the Constitutional Court’s judgment no. 138 of 15 April 2010, the applicant claimed to have a right to the same treatment as was given to the surviving member of an opposite-sex married couple, and therefore to a survivor’s pension in respect of his deceased partner.
22. The Court notes firstly that the present case only concerns the lack of recognition of a survivor’s pension entitlement for same-sex partners and not the applicant’s general need for legal recognition and core protection as a member of a same-sex couple. In that respect it differs from Oliari and Others (cited above, §§ 174 and 177), in which the Court’s judgment was given before Italy recognised civil unions for same-sex couples by Law no. 76 of 20 May 2016.
23. The general principles concerning the applicability of Article 8 of the Convention to social welfare benefits have been clarified in Beeler v. Switzerland ([GC], no. 78630/12, §§ 59-83, 20 October 2022). The Court in that case rejected the idea that certain earlier cases, in which it had examined social welfare benefits under Article 8 alone, could be interpreted as saying that this Article imposed positive obligations on the State in the social security sphere (ibid., § 60).
24. In any event, since Law no. 76 of 2016, which provided for new social benefits, entered into force after the applicant’s partner’s death and did not contain any specific provisions giving it retroactive effect, it could not – as stated by the Court of Cassation – be applied to the applicant’s situation.
25. The Court would further emphasise that States enjoy a wide margin of appreciation as regards the content of the protection – which should, however, be adequate – in the field of legal recognition of same-sex couples, an area which has been regarded as one of evolving rights with no established consensus (see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others, §§ 189-90, 17 January 2023).
26. Therefore, since Article 8 cannot be interpreted as guaranteeing the right to a specific social welfare benefit, such as a survivor’s pension, and since the applicant had no right to such a pension under the domestic law at the relevant time, it follows that this complaint must be declared inadmissible ratione materiae pursuant to Article 35 §§ 3 and 4 of the Convention.Alleged violation of Article 1 of Protocol No. 1 to the Convention
27. The applicant also complained under Article 1 of Protocol No. 1 of the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
28. As the Court has observed above in connection with Article 8 (see paragraph 24), the right to a survivor’s pension was extended to same-sex couples by Law no. 76 of 20 May 2016, which came into force a year after the applicant’s partner’s death and did not contain any provision making it retroactive. Before that, the benefit had been available only to married couples. Therefore, at the time of his partner’s death the applicant had neither a right to a survivor’s pension nor a legitimate expectation to one under national law.
29. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.Alleged violation of Article 8 of the Convention and Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention
30. Lastly, the applicant submitted that, unlike the surviving member of a married couple, he had not been entitled to a survivor’s pension after his partner’s death, which he claimed had amounted to discrimination. He relied on Article 14 of the Convention, read in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1 to the Convention. Article 14 provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
31. The Court reiterates that the applicability of Article 14 does not necessarily presuppose the violation of one of the substantive rights guaranteed by the Convention. It is necessary, but it is also sufficient, for the facts of the case to fall within the ambit of one or more of the Convention Articles. Moreover, the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the ambit of any Convention Article, for which the State has voluntarily decided to provide (see Beeler, cited above, § 48). Thus, the inadmissibility of the above-mentioned complaints under Article 8 and Article 1 of Protocol No. 1 does not necessarily prevent the assessment of the application under the same provisions in conjunction with Article 14 of the Convention.
32. Nonetheless, pursuant to Article 35 § 1 of the Convention, the Court may only deal with an application after the exhaustion of those domestic remedies that relate to the breaches alleged and are also available and sufficient. States are exempted from answering before an international body for their acts until they have had an opportunity to put matters right through their own legal system (see, among other authorities, Gherghina v. Romania (dec.) [GC], no. 42219/07, §§ 83-84, 9 July 2015).
33. Article 35 § 1 must be applied with a certain degree of flexibility and without excessive formalism. Thus, under the Court’s case-law, it is not always necessary for the Convention to be explicitly relied on in domestic proceedings: it is sufficient for the complaint to be raised “at least in substance”. This means that the applicant must put forward legal arguments of equivalent or similar effect based on domestic law (see Kemal Çetin v. Turkey, no. 3704/13, § 28, 26 May 2020). Therefore, in order to properly exhaust domestic remedies, it is not sufficient for a violation of the Convention to be “evident” from the facts of the case or the applicant’s submissions. Rather, the applicant must actually have complained (expressly or in substance) of that violation in a manner which leaves no doubt that the same complaint that is subsequently submitted to the Court had indeed been raised at the domestic level (see Fu Quan, s.r.o. v. the Czech Republic [GC], no. 24827/14, § 172, 1 June 2023, with further references).
34. In the present case, the Court notes that references to the principles of equality and non-discrimination, as well as to the Court’s case-law, appear in several quotations from domestic decisions and that the applicant also referred to the Court’s case-law in his pleadings. However, the applicant referred to the Court’s case-law only to demonstrate that his right to a survivor’s pension could be inferred by the principle of solidarity under Article 2 of the Italian Constitution, as well as by his right to respect for family life under Article 8 of the Convention. At no point when arguing his case during the domestic proceedings did the applicant raise a complaint, even in substance, concerning a breach of his right not to be discriminated against under Article 14 of the Convention. On the contrary, the Court notes that the applicant explicitly and repeatedly challenged the part of the first‑instance judgment in which the Milan Labour Court had referred to discrimination, explaining that he had deliberately decided not to raise that issue and that, by taking into account that principle, the Labour Court had misconstrued his case (see paragraph 9 above). As a consequence, both the Court of Appeal and the Court of Cassation confined themselves to the applicant’s arguments and based their reasoning on Article 2 of the Italian Constitution, without any reference to the non-discrimination principle. It appears, therefore, that in raising Article 14 before the Court, the applicant has consciously changed his strategy from the one he followed before the domestic courts.
35. The Court has recently reiterated that, even in those jurisdictions where the domestic courts in civil proceedings are able, or even obliged, to examine issues in a case of their own motion (that is, to apply the principle of jura novit curia), applicants are not released from the obligation to raise in the domestic courts a complaint which they may intend to subsequently make to the Court, it being understood that for the purposes of exhaustion of domestic remedies the Court must take into account not only the facts but also the legal arguments presented domestically (see Fu Quan, s.r.o., cited above, § 171, and the cases cited therein). Therefore, in a case such as the one under consideration, where the applicant expressly rejected the non-discrimination argument in his pleadings before the domestic courts, it cannot be said that the complaint was raised at the domestic level.
36. In these circumstances, the Court cannot but conclude that this part of the application is inadmissible for non-exhaustion of domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, by a majority,
Declares the application inadmissible.
Done in English and notified in writing on 14 December 2023.
Liv Tigerstedt Alena Poláčková
Deputy Registrar President
Full & Egal Universal Law Academy