Case Watch: European Court Urges Italy to Legally Recognize Same-Sex Relationships
By Zsolt Bobis
In “Case Watch” reports, lawyers and staff at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
Italy violates same-sex couples’ right to respect for private and family life by not providing them any form of legal partnership recognition, according to a European Court of Human Rights ruling delivered on July 21. This marks the first time the Strasbourg-based court, which oversees 47 member states’ compliance with human rights norms in the Council of Europe, has found a state is obligated to legally recognize same-sex relationships.
The applicants in the case of Oliari and Others v. Italy, three Italian same-sex couples, complained of their inability to get married or enter into any other type of civil union, alleging violations of their right to respect for private and family life (Article 8) and to marry (Article 12) as well as of the prohibition of discrimination (Article 14) under the European Convention on Human Rights.
In their applications, the couples pointed out that legal recognition of family life was crucial for an individual’s well-being and dignity. They argued the lack of formal partnership status deprived them of a wide array of protections and benefits, including the right to assistance to a hospitalized partner; inheritance rights; tax, pension and other social benefits.
The court agreed with the applicants. It held that the limited legal protection same-sex couples could enjoy in Italy—as people in “de facto” unions who may enter into cohabitation agreements with each other—failed to provide for the core needs relevant to a couple in a stable committed relationship and was not sufficiently reliable. To remedy this situation in the absence of marriage, the court urged Italy to introduce a form of civil union or registered partnership as the most appropriate way for same-sex couples to have their relationship legally recognized, sufficiently protected, and thus, legitimized.
The fact that the majority of Council of Europe states—24 out of 47—now provide some form of recognition to same-sex couples was not lost on the court, as it took note of a rapid movement towards the legal recognition of same-sex relationships both inside the Council of Europe and globally. The court also considered the Italian courts’ repeated calls for a legislative remedy that has so far gone unheeded; the Italian population’s majority support for legal recognition of same-sex relationships; and the Italian government’s failure to provide any community interests justification for the current status quo.
In light of the above, the court ruled that Italy had overstepped its margin of appreciation (a concept which allows states a degree of leeway in interpreting human rights obligations in a way that reflects their specific circumstances). It concluded that Italy also failed to fulfil its positive obligation to ensure that the applicants had access to a specific legal framework providing for the recognition and protection of their unions—finding a violation under the right to respect for private and family life (Article 8) but not in relation to the right to marry (Article 12). To hold otherwise, the court argued, it would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way that is practical and effective, proving that the court interprets the Convention as a living instrument.
The court had already established in previous cases that cohabiting same-sex couples living in a stable partnership fall within the notion of “family life” under Article 8 and had acknowledged their need for legal recognition and protection of their relationship. However, it is noteworthy that merely two years ago the court had carefully avoided having to tackle the question that formed the core of the Oliari decision.
In the 2013 case of Vallianatos and Others v. Greece, in which Greek same-sex couples contested their exclusion from civil unions, the court categorically set limits on the scope of the case, emphasizing that the applicants’ complaint did not relate in the abstract to a general obligation on the Greek State to provide for a form of legal recognition for their relationships. In that case, the court only considered whether an already existing legal regime other than marriage needs to be inclusive to same-sex couples, eventually holding that it does. (Greece has yet to open up its civil union scheme to couples of the same sex.)
While the Oliari decision concerned Italy, similarly situated same-sex couples in other Council of Europe member states should now be able to effectively rely upon its finding of a right to legally recognized same-sex unions both domestically and in Strasbourg. The 22 member states that currently have a similar legal situation to Italy, including Turkey and Russia, should move to change their laws without the need for any further rulings.
This judgment follows two historic developments pertaining to the rights of sexual minorities: the June decision by the Supreme Court of the United States that the Constitution guarantees a right to same-sex marriage, and Ireland’s referendum in May, making marriage equality legal nation-wide.
Until September 2021, Zsolt Bobis was a senior associate policy officer with the Open Society Justice Initiative.