In to the Milan Tribunal, but without success. These

In many
states there occurred a great leap forward concerning the recognition of
same-sex couples. The first legislation that allowed such a marriage was enacted
in the Netherlands and, shortly afterwards, Belgium also enacted a law
regarding this issue. However, not all countries of the world are that
broad-minded and do not have a legislation or even prohibit the same-sex
marriages.

The Case of Oliari and others versus Italy is all
about that contemporary discussion, in particular, the recognition and
protection of homosexual people. Three same-sex couples wanted to seal their
love by getting married. Unfortunately, their requests were rejected by the
Italian government. Now, the six men claim that their human rights have been
violated because of the refusal of Italy to allow them to marry.

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Key facts of the case

There were
two complaints lodged against Italy with the European Court of Human Rights. The
two applicants from the first complaint went to the Trent Tribunal, after their
request to marry was rejected. The Tribunal remarked that the Italian Civil
Code only allows spouses of the opposite sex to marry. The two men continued
the proceedings and applied to the Trent Court of Appeal. The latter referred
them to the Constitutional Court. While considering that it was up to the
Parliament to decide whether to recognize the marriage between homosexuals, the
Constitutional Court called the request inadmissible. Furthermore, the judges
noted that there was not any unreasonable discrimination that arises from the
Italian legislation. As the domestic courts did not grant their request, the
gay couple went to the European Court of Human Rights.

The second
couple did not go to court because of the pronouncement of the Constitutional
Court concerning the request of the first applicants in this case. After their
request to marry was not accepted, the last same-sex couple went to the Milan
Tribunal, but without success. These two couples also decided to lodge a
complaint against their native country with the European Court of Human rights.

Preliminary objections

The first
objection that the Government made, concerns Article 47 of the Rules of the
Court. According to Italy, the application was not strict enough. Thus, the
application should not be examined by the Court. The applicants replied that
this rule was only adopted in 2013, whereas their petition had already been
lodged in 2011. According to the Court ‘there is no reason to consider that
they have not fulfilled the requirements of Rule 47 as applicable at that time’1.

Moreover, the
Italian Government alleged that the same-sex couples did not explicitly say in
which way they have suffered any damage. According to the Court, this argument
is not significant. The applicants should be considered as directly involved by
this case. The couples are victims, whether they have suffered any damage.

A third
objection that is raised by the respondent Government is the fact that the
applicants did not go through all the judicial authorities. In their opinion,
the couples surely would have attained that their union was legally recognized,
but instead they did not exhaust the domestic remedies. Besides, they pointed
out that the men did not lodge a claim before the Italian judicial authorities
concerning the impossibility to acquire a different form of recognition. Only the
impossibility to marry for same-sex couples had been mentioned. The applicants
did not agree with the argument that they would have obtained legal recognition
because the domestic courts were unable to take such a decision.

The European
Court of Human Rights stated that there was a justification for not exhausting
the domestic remedies. After all, the Constitutional Court had given judgment
when the applicants lodged their applications with the Court. Thus, they
already went to the highest court of Italy. Furthermore, it is very uncertain
that the domestic courts would have recognized the same-sex couples. The last
assessment of the Court implied that the claim of the applicants about an
alternative legal recognition is connected with their complaint about their
inability to marry. Finally, the Court decided to reject the Government’s
objection.

The last
objection that Italy cited is the fact that the applications had been
introduced belatedly. The applicants of the first application countered the
argument by stating that they respected the six-month rule. The other
applicants said that ‘the alleged violations had a continuous character, as
long as same-sex unions were not recognized under Italian law’2.
According to the Court, the six-month rule is not relevant when there is a
continuing state of affairs. In this case, this was the failure to recognize
the union of homosexual couples. Consequently, the Court dismissed again the
objection of the Government.

The applicant’s complaint and human rights involved

The
applicants of the first application alleged that their relationship was not
legally protected and that they could not get any form of marital status. They
claimed that there was a breach of Article 8 of the Convention. The other
applicants pointed out that there was a violation of Article 14 in conjunction
with Article 8 of the Convention. These couples submitted that they have been
discriminated towards heterosexual couples. The Court decided that both
complaints are admissible. After all, private life within the meaning of
Article 8 contains also the relationship of same-sex couples.

The first
complaint that the applicants made, is that the Italian Government must adapt
their legislation to the evolution. Furthermore, they claimed that the
Constitutional Court already had said that Italy must recognize their union. The
applicants lived in a state of uncertainty, given that their family life and
status were not recognized. They were disadvantaged in many ways. Also, the
argument of the Government that they could register their relationship in
certain municipalities has been countered by the applicants, by saying that
such a recognition does not have any legal effects. Another remark of the same-sex
couples was that the Italian Government did not justify their difference of
treatment between hetero- and homosexual couples. Moreover, they claimed that
Italy did not prove that their union would endanger the image of traditional
families.

The
respondent Government cited that they were not obligated to recognize the
same-sex couples, but that they had a wide margin of appreciation. They claimed
that they were free to decide whether to recognize same-sex couples. Italy
contested the argument of the applicants that they were obligated to recognize
their union, by saying that it was up to the Parliament to introduce a
regulation about this recognition. The Government had also offered legal
protection to homosexual people and same-sex couples were able to enter into
cohabitation agreements. Furthermore, they denied that they had caused any form
of discrimination towards the applicants.

The
applicants also claimed that there was a violation of Article 12 and Article 14
of the Convention. They referred to Schalk
and Kopf, in which the Court accepted the applicability of Article 12 to a
similar case. The Court replied that Article 12 does not obligate the states to
accept the marriage of same-sex couples. Consequently, it considered this
alleged violation ill-founded and rejected it.

The Court’s assessment

According to
the Court, it is important that same-sex couples are recognized just like
heterosexual couples and that their relationships are legally protected. The
homosexual people could only get a certain status when they were cohabiting,
but the Court noted that nowadays a lot of couples are not cohabiting. Further,
the national courts had confirmed that there must be some protection and
recognition for those people. Another point in the Court’s assessment was that
the Government must take the social reality into account. It also considered
the fact that a lot of European states already recognized same-sex couples. The
Court regretted that Italy was not able to enact a legislation after three
decades, which caused a situation of legal uncertainty for those people.
Finally, the Court concluded that Italy had exceeded the margin of appreciation
and that they did not ensure the protection and recognition of the homosexual
couples, which caused a failure of their positive obligation. The Court decided
that there has been a violation of Article 8 of the Convention.

Finally, the
Court granted the applicants 5,000 euros each because of their non-pecuniary
damage and awarded the first couple 4,000 euros for their costs and expenses and
10,000 euros jointly for the other two couples. Most importantly, they
obligated Italy to enact a legislation concerning same-sex couples.

My Opinion

In my
opinion, each person should freely choose his or her spouse. It does not matter
if the person is from the same sex instead of the opposite sex. The most
important thing is that the couple can live a happy life. That is why I agree
with the pronouncement of the Court. It must be very hard for same-sex couples
to feel discriminated towards ‘normal’ heterosexual couples. I do not understand
the point of view of the Italian Government that homosexual couples should not
marry, but should only obtain a certain status. I think that this case involves
a lot of discrimination, which can be easily prevented by recognizing their
union and grant them the same privileges as heterosexual couples get. It is
just not fair that spouses of the opposite sex are allowed to marry and that
they are legally recognized and protected by the Government, whereas same-sex
couples must exhaust all the domestic remedies and after that must lodge a
complaint with the European Court of Human Rights to embark on matrimony.

The fact that
a lot of European states have recognized same-sex couples in the past years,
does raise the question whether Italy may follow this example. I think that
this recognition by other states is the utterance of a positive development of
the respect of homosexual people. Moreover, many European citizens already
respect that some people are attracted by people of the same sex. Furthermore,
there have always been homosexual people, but they were too afraid to reveal
their sexual orientation because they would have been considered as
‘different’. Nowadays, there has been an enormous evolution in the human
thinking and I am firmly convinced that we must stop discriminating these
people and we must leave the past behind.

It is about
time that we treat everybody the same way, despite differences between people,
like sexual orientation. So, it is now up to Italy to make this difference in
treatment disappear!

1 Case
of Oliari and Others v. Italy (Applications nos. 18766/11 and 36030/11), Judgment
of 21 July 2015, §68

2 Case of Oliari and Others v. Italy
(Applications nos. 18766/11 and 36030/11), Judgment of 21 July 2015, §88

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