European Human Rights Court Says Italy Must Create A Legal Structure for Same-Sex Couples

A seven-judge chamber of the European Court of Human Rights (ECHR) in Strasbourg has ruled that Italy’s failure to adopt a legal structure for same-sex relationships, such as a civil union or registered partnership similar to those in other European countries such as Austria or Germany, violates Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, a treaty to which 47 European countries are signatories.  The ruling in the Case of Oliari and Others v. Italy, Applications Nos. 18766/11 and 36030/11 (July 21, 2015), brought a unanimous conclusion, but the panel of judges was split 4-3 about the appropriate analysis and which section of Article 8 applies in the case.  Italy may petition for review by a larger panel of judges, called a Grand Chamber, before this decision becomes final.

The decision resulted from claims filed by three same-sex male couples.  Each of the couples sought to marry, each was turned down, and each sought relief without success in the Italian judicial system.  Ironically, several years ago Italy’s Constitutional Court had ruled that the nation is obligated to create a legal structure akin to marriage for same-sex couples, such as a civil union law, but thus far the Parliament has not acted on this mandate.  In the meantime, several municipalities had created registries for same-sex partners, but they have primarily symbolic value, as the municipalities cannot create legally enforceable rights under national law.  On the other hand, cohabiting same-sex couples in Italy are accorded several substantial rights in the absence of a formal legal relationship, as part of legal developments in Italy and in much of Europe that has recognized legal consequences of cohabitation.  The couple from Trent filed their appeal with the ECHR on March 21, 2011, and the two couples from Milan filed on June 10, 2011.  They contended that denial of their marriage applications violates Articles 8, 12 and 14 of the Convention.

Jurisprudence under the European Convention relies heavily on developing the meaning of the broadly-worded guarantees in light of emerging trends among the member nations.  In this regard, it is important to the court to keep track of European developments.  The court noted that eleven countries that are members of the Council of Europe now allow same-sex marriages: Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, and the United Kingdom.  In addition, of course, a recent referendum will extend marriage equality to the Republic of Ireland later this year, and Finland has legislated for marriage equality to come into effect in 2017, although there is a possibility that the Parliament may have to reconsider the issue in light of a recently-filed public petition.  Eighteen member states have some form of civil partnership open to same-sex couples.  Some of these also allow same-sex marriages, but give their residents a choice between the two.  These civil partnership states are Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland, and the U.K.  In addition, Estonia’s Registered Partnership Act will go into effect on January 1, 2016. Totaling things up, the court observed that 24 out of 47 CoE members now have some form of legal recognition for same-sex partners in effect, either marriage, civil union or registered partnerships, with the number to increase by several more over the next year or so.

Since more than of half the member nations are now extending such recognition, the court is in a position to decide that legal recognition has become enough of a norm in Europe so that Article 8 comes into play.  Article 8 has two numbered paragraphs.  Paragraph 1 provides that “Everyone has the right to respect for his private and family life, his home and his correspondence.”  Paragraph 2 provides that “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 and morals, or for the protection of the rights and freedoms of others.”  The general principles expressed in the Convention are subject to a “margin of appreciation” for the autonomy of member nations in exercising their discretion about whether and when to adopt particular policies.  The margin of appreciation varies depending upon the importance of the right and the countervailing concerns of each member nation.  Decisions by the ECHR are not self-executing.  It is up to member nations to respond to the rulings of the court through their own legislative and judicial processes.  Rulings by the ECHR are more than merely advisory opinions, because they are authoritative statements of treaty obligations, but it is up to each member state to take steps to comply with those obligations.

In describing how the requirement of “respect for private and family life” plays out in this case, the court commented, “Of relevance to the present case is the impact on an applicant of a situation where there is discordance between social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under Article 8.  Other factors relate to the impact of the alleged positive obligation on the State concerned.  The question here is whether the alleged obligation is narrow and precise or broad and indeterminate or about the extent of any burden the obligation would impose on the State.”

In the recent past, the ECHR has ruled that Greece violated the Convention when it established a civil union system but excluded same-sex couples, thus running afoul of the non-discrimination requirement in Article 14.  It also found relatively recently that Austria had not violated Article 12 of the Convention (the right to marry) by failing to open up marriage to same-sex couples, and that its adoption of a civil union law that had not yet gone into effect would constitute respect for private life and family under Article 8.  Referring to these recent decisions, the court said: “The Court reiterates that it has already held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.  It follows that the Court has already acknowledged that same-sex couples are in need of legal recognition and protection of their relationship.”

The willingness of Italian courts to enforce cohabitation contractual agreements was seen by the court as not sufficient to deal with the needs of same-sex couples for recognition and protection, and the court rejected the Italian government’s argument that same-sex couples should be relegated to litigating about particular legal claims as they arise.  “In the Court’s view,” it said, “the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened judicial system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life. This is further aggravated by a state of uncertainty.”  The reference to Italy’s “overburdened judicial system” reflects the reality that litigation there takes a long time due to the understaffed and heavily bureaucratic court system.

The court asserted that passing a law “to provide for the recognition and protection of same-sex unions” would “not amount to any particular burden on the Italian State be it legislative, administrative or other.  Moreover, such legislation would serve an important social need,” pointing out that it is estimated that “there are around one million homosexuals (or bisexuals), in central Italy alone.”  The court noted that the Italian government, in response to this case, had “failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole.” Instead, their position was that the ECHR should be patient and allow the Italian government to develop and pass legislation in its own time-frame.  The court pointed out that Italy had not asserted any interest in protecting “the original concept of the family or the morals of society” as a reason for failing to legislate on this subject. “The Government instead relied on their margin of appreciation in the choice of times and modes of a specific legal framework.”  The court pointedly observed that “in the present case the Italian legislature seems not to have attached particular importance to the indications set out by the national community, including the general Italian population and the highest judicial authorities in Italy,” referencing public opinion polls showing overwhelming popular support for providing civil unions for same-sex couples as well as a Constitutional Court ruling, with which the government has yet to comply, holding that the state was obligated to adopt such legislation.

“In conclusion,” wrote the court, “in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, and in the light of domestic courts’ conclusion on the matter which remain unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfill their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions.  To find otherwise today, the Court would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective.”

At the same time, the court said that there was not yet enough consensus on the matter in Europe to take the next step and require Italy to open up marriage to same-sex couples as an application of Article 12.  The court exercised its authority under Article 41 to award monetary damages to the applicants as well as money to cover some of the costs of the litigation.

While the finding of a violation of Article 8 was unanimous, three out of the seven judges submitted a separate opinion taking narrower approach.  They emphasized that because Italy’s Constitutional Court had already ruled that the government had an obligation under the Italian Constitution to adopt a civil union law, it was not necessary for the ECHR to find such an affirmative obligation in Article 8.  Instead, they would ground the court’s ruling on the Italian government’s failure to take the steps mandated by Italy’s Constitutional  Court, as an “interference” with the rights of the applicants in violation of Paragraph 2 of Article 8.  This narrower ruling would leave unaddressed the question whether other nations signatory to the Convention who have not yet adopted civil union laws are obligated to do so under Paragraph 1. But a close reading of the majority opinion shows that it is also very much grounded in the developments that have already taken place in Italy in terms of growing public support for same-sex civil unions, the actions of municipalities in registered same-sex couples (over the objections of some federal officials), and the ruling by the Constitutional Court.  Thus, even the majority opinion could not be seen as firmly establishing a general obligation for all nations signatory to the Convention to adopt civil union laws immediately.  However, the opinion strongly intimates that as the number of European countries with such laws continues to increase, the obligation of signatories to move in accord with the emerging European norm is growing.

The attorneys representing the applicants in this case included Mr. A. Schuster, a lawyer practicing in Trent, and Ms. M. D’Amico, Mr. M. Clarra, and Mr. C. Pieta, lawyers practicing in Milan.

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