ECtHR: failure to enact laws on same-sex partnerships violates the Convention

The Strasbourg Court has heard an application brought by three Italian homosexual couples. The applicants alleged having been discriminated against on the ground of sexual orientation by Italian law which did not allow them to enter into a marriage or civil partnership. The Court ruled in their favour.

In 2008, Enrico Oliari and his partner requested marriage banns (a marriage licence) from the Civil Registry Office of Trent. After their request had been rejected, they complained to a court, which dismissed their complaint. The second instance court in Trent made a referral to the Constitutional Court, which ruled that the right to marry is reserved for opposite-sex couples. The Constitutional Tribunal also signalled the need to regulate the rights and duties of same-sex partners. The two remaining couples of applicants experienced similar situations.

The ECtHR ruled that since same-sex couples are unable to marry, they have a particular interest in obtaining the option of entering into a civil union or registered partnership. “According to the Court, this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection in the form of core rights for couples in homosexual relationships”, says Dr Dorota Pudzianowska, HFHR’s legal expert.

The ECtHR also considered the issue of proportionality of rights of the individuals, who may have an interest in having civil partnerships regulated, weighted against the community interests. The Strasbourg Court concluded that the Italian Government had failed to determine what, in their view, such interests would be. In arguing the case before the ECtHR, the Government relied on the state’s relevant margin of appreciation.

It emphasised the developing consensus on same-sex couples. “The majority of 24 out of 47 members of the Council of Europe have already recognised some form of same-sex unions. This evolution has been observed on a global scale”, Dr Pudzianowska adds.

The ECtHR also noted that Italian lawmakers had ignored social support for such unions and the need to adopt relevant measures signalled by the Italian Constitutional Court and Supreme Court. Statistics show that the majority of Italians accept same-sex relationships and support the notion that such unions should be regulated and protected.

The judgment in Oliari and Others v. Italy is a turning point within the existing ECtHR case law on the legal regulation of civil unions of same-sex partners. The Strasbourg Court is yet to hear a number of similar cases, including one case originating from Poland, which was brought by two female partners who complain about discriminatory treatment resulting from the absence of legal regulation of civil partnerships.

“In three years, the women brought a number of cases before the Polish courts claiming their right to be exempted from inheritance and donation tax, to file a joint tax return (being taxed as spouses), and to receive care allowance for looking after an ill partner”, says Irmina Pacho, HFHR’s lawyer. The Helsinki Foundation assisted the applicants in bringing their complaint to the Court.

The ECtHR is also expected to hear the case of Orlandi v. Italy, which concerns a violation of the right to respect for private and family life that was allegedly caused by Italy’s refusals to recognise civil partnerships registered abroad. The HFHR has presented an amicus curiae brief in the case.