The Fourth Section ECtHR has held unanimously that the fact that under Italian law same-sex couples are unable to marry or enter into any other type of legally-recognised civil union violates Article 8 ECHR (private and family life).
In Italy same-sex couples are not allowed to contract marriage, as affirmed in the Constitutional Court judgment no. 138 of 15 April 2010, nor does domestic law provide for any alternative type of civil union, either for same-sex or for opposite-sex couples. In Oliari & Ors v Italy [2015] ECHR 716 the applicants complained that they were being discriminated against in breach both of Article 14 (discrimination) in conjunction with Article 8 and of Article 12 (right to marry), taken on its own and in conjunction with Article 14.
In previous cases the Court had already found that the relationship of a cohabiting same-sex couple in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8. It had also acknowledged that same-sex couples were in need of legal recognition and protection of their relationships; and that need had been underlined in recommendations by the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, inviting state parties to consider providing same-sex couples with some form of legal recognition [166]. The Court considered that the legal protection currently available to same-sex couples in Italy not only failed to provide for the core needs relevant to a couple in a stable committed relationship but was also insufficiently stable [72].
As regards the possibility since December 2013 of entering into a private contractual “cohabitation agreement” (which was not specifically provided for in domestic law [41]), they were limited in scope and failed to provide for some basic needs which were fundamental to the regulation of a relationship between a couple in a stable and committed relationship, such as mutual material support, maintenance obligations and inheritance rights. Moreover, the fact that cohabitation agreements were open to any set of people who were cohabiting, such as friends, flatmates or carers, showed that they did not primarily aim to protect same-sex couples [41]. Furthermore, a cohabitation agreement required the couple concerned to be cohabiting, whereas the Court had already accepted that the existence of a stable union between partners was independent of cohabitation, given that many of them – whether married or in a registered partnership – experienced periods during which they maintained their relationship while physically apart, perhaps for professional reasons [169].
A civil union or registered partnership would be the most appropriate way for same-sex couples to have their relationship legally recognised. The Court pointed out that there was a trend among Council of Europe states parties towards legal recognition of same-sex unions – half the member states having legislated for some kind of recognition – that the Italian Constitutional Court had repeatedly called for their protection and recognition and that, according to recent surveys, a majority of Italians supported such a move. Moreover, the Italian Government had not denied the need for legal protection for same-sex couples – and had failed to point to any community interests justifying the current situation.
There was no prevailing community interest against which to balance the applicants’ interest to have their relationships legally recognised. Italy had therefore failed to fulfil its obligation to ensure that the applicants had a specific legal framework for the recognition and protection of their union and there had accordingly been a violation of Article 8.
As to the complaint under Article 12, however, despite the gradual change in thinking among states parties on same-sex marriage (for which there was currently provision in eleven CoE states), the Court reiterated that it did not oblige states to introduce same-sex marriage: nor could Article 14 taken in conjunction with Article 8 or with Article 12 be interpreted as imposing such an obligation. Both the complaint under Article 12 alone and under Article 14 taken with Article 12 were therefore manifestly ill-founded [192-194].
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