Corte europea dei diritti dell’uomo
21 luglio 2015
CASE OF OLIARI AND OTHERS V. ITALY
(Applications n. 18766/11 and 36030/11)
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Oliari and Others v. Italy,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Päivi Hirvelä, President,
Yonko Grozev, judges,
and Françoise Elens-Passos, Section Registrar,
Having deliberated in private on 30 June 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in two applications (nos. 18766/11 and 36030/11) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Italian nationals, Mr Enrico Oliari, Mr A., Mr Gian Mario Felicetti, Mr Riccardo Perelli Cippo, Mr Roberto Zaccheo and Mr Riccardo Zappa (“the applicants”), on 21 March and 10 June 2011 respectively.
2. The first two applicants were represented by Mr A. Schuster, a lawyer practising in Trent. The remaining applicants were represented by Ms M. D’Amico, Mr M. Clara and Mr C. Pitea, lawyers practising in Milan. The Italian Government (“the Government”) were represented by their Agent, Ms Ersiliagrazia Spatafora.
3. The applicants complained that the Italian legislation did not allow them to get married or enter into any other type of civil union and thus they were being discriminated against as a result of their sexual orientation. They cited Articles 8, 12 and 14 of the Convention.
4. On 3 December 2013 the Chamber to which the case was allocated decided that the complaints concerning Article 8 alone and in conjunction with Article 14 were to be communicated to the Government. It further decided that the applications should be joined.
5. On 7 January 2013 the Vice-President of the Section to which the case had been allocated decided to grant anonymity to one of the applicants under Rule 47 § 3 of the Rules of Court.
6. Written observations were also received from FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, Associazione Radicale Certi Diritti, and ECLJ (European Centre for Law and Justice), which had been given leave to intervene by the Vice-President of the Chamber (Article 36 § 2 of the Convention). Mr Pavel Parfentev on behalf of seven Russian NGOS (Family and Demography Foundation, For Family Rights, Moscow City Parents Committee, Saint-Petersburg City Parents Committee, Parents Committee of Volgodonsk City, the regional charity “Svetlitsa” Parents’ Culture Centre, and the “Peterburgskie mnogodetki” social organisation), and three Ukrainian NGOS (the Parental Committee of Ukraine, the Orthodox Parental Committee, and the Health Nation social organisation), had also been given leave to intervene by the Vice-President of the Chamber. However, no submissions have been received by the Court.
7. The Government objected to the observations submitted by FIDH, AIRE Centre, ILGA-Europe, ECSOL, UFTDU and UDU jointly, as they had reached the Court after the set deadline, namely on 27 March 2014 instead of 26 March 2014. The Court notes that at the relevant time the Vice-President of the Chamber did not take a decision to reject the submissions presented, which were in fact sent to the parties for comment. The Court, having considered that the observations were anticipated by e‑mail and received by the Court at 2.00 a.m. on 27 March 2014, and that the hard copy received by fax later that day contained an apology as well as an explanation for the delay, rejects the Government’s objection.
8. The applicants in application no. 18766/11 requested that an oral hearing be held in the case. On 30 June 2015 the Court considered this request. It decided that having regard to the materials before it an oral hearing was not necessary.
THE CIRCUMSTANCES OF THE CASE
9. The details concerning the applicants may be found in the Annex.
The background to the case
1. Mr Oliari and Mr A.
10. In July 2008 these two applicants, who were in a committed stable relationship with each other, declared their intention to marry, and requested the Civil Status Office of the Trent Commune to issue the relevant marriage banns.
11. On 25 July 2008 their request was rejected.
12. The two applicants challenged the decision before the Trent Tribunal (in accordance with Article 98 of the Civil Code). They argued that Italian law did not explicitly prohibit marriage between persons of the same sex, and that, even if that were the case, such a position would be unconstitutional.
13. By a decision of 24 February 2009 the Trent Tribunal rejected their claim. It noted that the Constitution did not establish the requirements to contract marriage, but the Civil Code did and it precisely provided that one such requirement was that spouses be of the opposite sex. Thus, a marriage between persons of the same sex lacked one of the most essential requirements to render it a valid legal act, namely a difference in sex between the parties. In any event there was no fundamental right to marry, neither could the limited law provisions constitute discrimination, since the limitations suffered by the applicants were the same as those applied to everyone. Furthermore, it noted that European Union (“EU”) law left such rights to be regulated within the national order.
14. The applicants appealed to the Trent Court of Appeal. While the court reiterated the unanimous interpretation given to Italian law in the field, namely to the effect that ordinary law, particularly the Civil Code, did not allow marriage between people of the same sex, it considered it relevant to make a referral to the Constitutional Court in connection with the claims of unconstitutionality of the law in force.
15. The Italian Constitutional Court in judgment no. 138 of 15 April 2010 declared inadmissible the applicants’ constitutional challenge to Articles 93, 96, 98, 107, 108, 143, 143 bis and 231 of the Italian Civil Code, as it was directed to the obtainment of additional norms not provided for by the Constitution (diretta ad ottenere una pronunzia additiva non costituzionalmente obbligata).
16. The Constitutional Court considered Article 2 of the Italian Constitution, which provided that the Republic recognises and guarantees the inviolable rights of the person, as an individual and in social groups where personality is expressed, as well as the duties of political, economic and social solidarity against which there was no derogation. It noted that by social group one had to understand any form of community, simple or complex, intended to enable and encourage the free development of any individual by means of relationships. Such a notion included homosexual unions, understood as a stable cohabitation of two people of the same sex, who have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and limits to be set by law – juridical recognition of the relevant rights and duties. However, this recognition, which necessarily requires general legal regulation aimed at setting out the rights and duties of the partners in a couple, could be achieved in other ways apart from the institution of marriage between homosexuals. As shown by the different systems in Europe, the question of the type of recognition was left to regulation by Parliament, in the exercise of its full discretion. Nevertheless, the Constitutional Court clarified that without prejudice to Parliament’s discretion, it could however intervene according to the principle of equality in specific situations related to a homosexual couple’s fundamental rights, where the same treatment of married couples and homosexual couples was called for. The court would in such cases assess the reasonableness of the measures.
17. It went on to consider that it was true that the concepts of family and marriage could not be considered “crystallised” in reference to the moment when the Constitution came into effect, given that constitutional principles must be interpreted bearing in mind changes in the legal order and the evolution of society and its customs. Nevertheless, such an interpretation could not be extended to the point where it affected the very essence of legal norms, modifying them in such a way as to include phenomena and problems which had not been considered in any way when it was enacted. In fact it appeared from the preparatory work to the Constitution that the question of homosexual unions had not been debated by the assembly, despite the fact that homosexuality was not unknown. In drafting Article 29 of the Constitution, the assembly had discussed an institution with a precise form and an articulate discipline provided for by the Civil Code. Thus, in the absence of any such reference, it was inevitable to conclude that what had been considered was the notion of marriage as defined in the Civil Code, which came into effect in 1942 and which at the time, and still today, established that spouses had to be of the opposite sex. Therefore, the meaning of this constitutional precept could not be altered by a creative interpretation. In consequence, the constitutional norm did not extend to homosexual unions, and was intended to refer to marriage in its traditional sense.
18. Lastly, the court considered that, in respect of Article 3 of the Constitution regarding the principle of equality, the relevant legislation did not create unreasonable discrimination, given that homosexual unions could not be considered equivalent to marriage. Even Article 12 of the European Convention on Human Rights and Article 9 of the Charter of Fundamental Rights did not require full equality between homosexual unions and marriages between a man and a woman, as this was a matter of Parliamentary discretion to be regulated by national law, as evidenced by the different approaches existing in Europe.
19. In consequence of the above judgment, by a decision (ordinanza) lodged in the relevant registry on 21 September 2010 the Court of Appeal rejected the applicants’ claims in full.
2. Mr Felicetti and Mr Zappa
20. In 2003 these two applicants met and entered into a relationship with each other. In 2004 Mr Felicetti decided to undertake further studies (and thus stopped earning any income), a possibility open to him thanks to the financial support of Mr Zappa.
21. On 1 July 2005 the couple moved in together. In 2005 and 2007 the applicants wrote to the President of the Republic highlighting difficulties encountered by same-sex couples and soliciting the enactment of legislation in favour of civil unions.
22. In 2008 the applicants’ physical cohabitation was registered in the authorities’ records. In 2009 they designated each other as guardians in the event of incapacitation (amministratori di sostegno).
23. On 19 February 2011 they requested their marriage banns to be issued. On 9 April 2011 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below).
24. The two applicants did not pursue the remedy provided for under Article 98 of the Civil Code, in so far as it could not be considered effective following the Constitutional Court pronouncement mentioned above.
3. Mr Perelli Cippo and Mr Zacheo
25. In 2002 these two applicants met and entered into a relationship with each other. In the same year they started cohabiting and since then they have been in a committed relationship.
26. In 2006 they opened a joint bank account.
27. In 2007 the applicants’ physical cohabitation was registered in the authorities’ records.
28. On 3 November 2009 they requested that their marriage banns be issued. The person in charge at the office did not request them to fill in the relevant application, simply attaching their request to a number of analogous requests made by other couples.
29. On 5 November 2009 their request was rejected on the basis of the law and jurisprudence pertaining to the subject matter (see Relevant domestic law below).
30. Mr Perelli Cippo and Mr Zacheo challenged the decision before the Milan Tribunal.
31. By a decision (decreto) of 9 June 2010 lodged in the relevant registry on 1 July 2010 the Milan Tribunal rejected their claim, considering that it was legitimate for the Civil Status Office to refuse a request to have marriage banns issued for the purposes of a marriage between persons of the same sex, in line with the finding of the Constitutional Court judgment no. 138 of 15 April 2010.
32. The applicants did not lodge a further challenge (reclamo) under Article 739 of the Code of Civil Procedure, in so far as it could not be considered effective following the Constitutional Court pronouncement.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL LAW AND PRACTICE
A. Relevant domestic law and practice
1. The Italian Constitution
33. Articles 2, 3 and 29 of the Italian Constitution read as follows:
“The Republic recognises and guarantees inviolable human rights, both as an individual and in social groups where personality is developed, and requires the fulfilment of obligations of political, economic, social solidarity, against which there is no derogation.”
“All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organization of the country.”
“The Republic recognises the rights of the family as a natural society founded on marriage. Marriage is based on the moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family.”
34. Under Italian domestic law, same-sex couples are not allowed to contract marriage, as affirmed in the Constitutional Court judgment no. 138 (mentioned above).
35. The same has been affirmed by the Italian Court of Cassation in its judgment no. 4184 of 15 March 2012 concerning two Italian citizens of the same sex who got married in the Netherlands and who had challenged the refusal of Italian authorities to register their marriage in the civil status record on the ground of the “non-configurability as a marriage”. The Court of Cassation concluded that the claimants had no right to register their marriage, not because it did not exist or was invalid, but because of its inability to produce any legal effect in the Italian order. It further held that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under Article 8 of the European Convention; therefore, in the exercise of the right to freely live their inviolable status as a couple they may bring an action before a court to claim, in specific situations related to their fundamental rights, the same treatment as that afforded by law to married couples.
36. Furthermore, the Constitutional Court in its judgment no. 170/2014 concerning “forced divorce” following gender reassignment of one of the spouses, found that it was for the legislator to ensure that an alternative to marriage was provided, allowing such a couple to avoid the transformation in their situation, from one of maximum legal protection to an absolutely uncertain one. The Constitutional Court went on to state that the legislator had to act promptly to resolve the legal vacuum causing a lack of protection for the couple.
3. Other relevant case-law in the context of same-sex couples
37. In a case before the Tribunal of Reggio Emilia, the claimants (a same-sex couple) had not requested the tribunal to recognise their marriage entered into in Spain, but to recognise their right to family life in Italy, on the basis that they were related. The Tribunal of Reggio Emilia, by means of an ordinance of 13 February 2012, in the light of the EU directives and their transposition into Italian law, as well as the EU Charter of Fundamental Rights, considered that such a marriage was valid for the purposes of obtaining a residence permit in Italy.
38. In the judgment of the Tribunal of Grosseto of 3 April 2014, delivered by a court of first instance, it was held that the refusal to register a foreign marriage was unlawful. The court thus ordered the competent public authority to proceed with registration of the marriage. While the order was being executed, the case was appealed against by the State. By a judgment of 19 September 2014 the Court of Appeal of Florence, having detected a procedural error, quashed the first-instance decision and remitted the case to the tribunal of Grosseto.
4. Cohabitation agreements
39. Cohabitation agreements are not specifically provided for in Italian law.
40. Protection of cohabiting couples more uxorio has always been derived from Article 2 of the Italian Constitution, as interpreted in various court judgments over the years (post 1988). In more recent years (2012 onwards) domestic judgments have also considered cohabiting same‑sex couples as deserving such protection.
41. In order to fill the lacuna in the written law, with effect from 2 December 2013 it has been possible to enter into “cohabitation agreements”, namely a private deed, which does not have a specified form provided by law, and which may be entered into by cohabiting persons, be they in a parental relationship, partners, friends, simple flatmates or carers, but not by married couples. Such contracts mainly regulate the financial aspects of living together, cessation of the cohabitation, and assistance in the event of illness or incapacity.
5. Civil unions
42. Italian domestic law does not provide for any alternative union to marriage, either for homosexual couples or for heterosexual ones. The former have thus no means of recognition.
43. In a report of 2013 prepared by Professor F. Gallo (then President of the Constitutional Court) addressed to the highest Italian constitutional authorities, the latter stated:
“Dialogue is sometimes more difficult with the [Constitutional] Court’s natural interlocutor. This is particularly so in cases where it solicits the legislature to modify a legal norm which it considered to be in contrast with the Constitution. Such requests are not to be underestimated. They constitute, in fact, the only means available to the [Constitutional] Court to oblige the legislative organs to eliminate any situation which is not compatible with the Constitution, and which, albeit identified by the [Constitutional] Court, does not lead to a pronouncement of anti-constitutionality. ... A request of this type which remained unheeded was that made in judgment no. 138/10, which, while finding the fact that a marriage could only be contracted by persons of a different sex to be constitutional compliant, also affirmed that same-sex couples had a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union. It left it to Parliament to provide for such regulation, by the means and within the limits deemed appropriate.”
44. Nevertheless, some cities have established registers of “civil unions” between unmarried persons of the same sex or of different sexes: among others are the cities of Empoli, Pisa, Milan, Florence and Naples. However, the registration of “civil unions” of unmarried couples in such registers has a merely symbolic value.
6. Subsequent domestic case-law
45. Similarly, the Italian Constitutional Court, in its judgments nos. 276/2010 of 7 July 2010 lodged in the registry on 22 July 2010, and 4/2011 of 16 December 2010 lodged in the registry on 5 January 2011, declared manifestly ill-founded claims that the above-mentioned articles of the Civil Code (in so far as they did not allow marriage between persons of the same sex) were not in conformity with Article 2 of the Constitution. The Constitutional Court reiterated that juridical recognition of homosexual unions did not require a union equal to marriage, as shown by the different approaches undertaken in different countries, and that under Article 2 of the Constitution it was for the Parliament, in the exercise of its discretion, to regulate and supply guarantees and recognition to such unions.
More recently, in a case concerning the refusal to issue marriage banns to a same-sex couple who had so requested, the Court of Cassation, in its judgment no. 2400/15 of 9 February 2015, rejected the claimants’ request. Having considered recent domestic and international case-law, it concluded that – while same-sex couples had to be protected under Article 2 of the Italian Constitution and that it was for the legislature to take action to ensure recognition of the union between such couples – the absence of same-sex marriage was not incompatible with the applicable domestic and international system of human rights. Accordingly, the lack of same-sex marriage could not amount to discriminatory treatment: the problem in the current legal system revolved around the fact that there was no other available union, apart from marriage, be it for heterosexual or homosexual couples. However, it noted that the court could not establish through jurisprudence matters which went beyond its competence.
7. Recent and current legislation
46. The House of Deputies has recently examined Bill no. 242 named “Amendments to the Civil Code and other provisions on equality in access to marriage and filiation by same-sex couples” and Bill no. 15 “Norms against discrimination in matrimony”. The Senate in 2014 examined Bill no. 14 on civil unions and Bill no. 197 concerning amendments to the Civil Code in relation to cohabitation, as well as Bill no. 239 on the introduction into the Civil Code of an agreement on cohabitation and solidarity.
47. A unified bill concerning all the relevant legal proposals was presented to the Senate in 2015 and was adopted by the Senate on 26 March 2015 as a basic text to enable further discussions by the Justice Commission. Amendments were to be submitted by May 2015, and a text presented to the two Chambers constituting Parliament by summer 2015. On 10 June 2015 the Lower House adopted a motion to favour the approval of a law on civil unions, taking particular account of the situation of persons of the same sex.
8. Remedies in the domestic system
48. A decision of the Civil Status Office may be challenged (within thirty days) before the ordinary tribunal, in accordance with Article 98 of the Civil Code.
49. A decree of the ordinary tribunal may in turn be challenged before the Court of Appeal (within ten days) by virtue of Article 739 of the Code of Civil Procedure.
50. According to its paragraph (3) no further appeal lay against the decision of the Court of Appeal. However, according to Article 111 (7) of the Constitution as interpreted by consolidated case-law, as well as Article 360 (4) of the Code of Civil Procedure (as modified by legislative decree no. 40/06) if the appeal decree affects subjective rights, is of a decisive nature, and constitutes a determination of a potentially irreversible matter (thus having the value of a judgment), the appeal decision may be challenged before the Court of Cassation within sixty days, in the circumstances and form established by Article 360 of the Code of Civil Procedure. According to Article 742 of the Code of Civil Procedure a decree which does not fall under the above-mentioned definition remains revocable and modifiable, at any future date subject to a change in the factual circumstances or underlying law (presupposti di diritto).
51. According to Articles 325 to 327 of the Code of Civil Procedure, an appeal to the Court of Cassation must be lodged within sixty days of the date on which the appeal decision is served on the party. In any event, in the absence of notification such an appeal may not be lodged later than six months from the date it was lodged in the registry (pubblicazione).
52. According to Article 324 of the Code of Civil Procedure, a decision becomes final, inter alia, when it is no longer subject to an appeal, to the Court of Appeal or Cassation, unless otherwise provided for by law.
B. Comparative and European law and practice
1. Comparative-law material
53. The comparative-law material available to the Court on the introduction of official forms of non-marital partnership within the legal systems of Council of Europe (CoE) member States shows that eleven countries (Belgium, Denmark, France, Iceland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden and the United Kingdom) recognise same-sex marriage.
54. Eighteen member States (Andorra, Austria, Belgium, Croatia, the Czech Republic, Finland, France, Germany, Hungary, Ireland, Liechtenstein, Luxembourg, Malta, the Netherlands, Slovenia, Spain, Switzerland and the United Kingdom) authorise some form of civil partnership for same-sex couples. In certain cases such union may confer the full set of rights and duties applicable to the institute of marriage, and thus, is equal to marriage in everything but name, as for example in Malta. In addition, on 9 October 2014 Estonia also legally recognised same-sex unions by enacting the Registered Partnership Act, which will enter into force on 1 January 2016. Portugal does not have an official form of civil union. Nevertheless, the law recognises de facto civil unions, which have automatic effect and do not require the couple to take any formal steps for recognition. Denmark, Norway, Sweden and Iceland used to provide for registered partnership in the case of same-sex unions, but was abolished in favour of same-sex marriage.
55. It follows that to date twenty-four countries out of the forty-seven CoE member States have already enacted legislation permitting same-sex couples to have their relationship recognised as a legal marriage or as a form of civil union or registered partnership.
2. Relevant Council of Europe materials
56. In its Recommendation 924 (1981) on discrimination against homosexuals, the Parliamentary Assembly of the Council of Europe (PACE) criticised the various forms of discrimination against homosexuals in certain member States of the Council of Europe.
57. In Recommendation 1474 (2000) on the situation of lesbians and gays in Council of Europe member States, the PACE recommended that the Committee of Ministers call upon member States, among other things, “to adopt legislation making provision for registered partnerships”. Furthermore, in Recommendation 1470 (2000) on the more specific subject of the situation of gays and lesbians and their partners in respect of asylum and immigration in the member States of the Council of Europe, it recommended to the Committee of Ministers that it urge member States, inter alia, “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnerships and families are treated on the same basis as heterosexual partnerships and families ...”.
58. PACE Resolution 1547 (2007) of 18 April 2007 entitled “State of human rights and democracy in Europe” called upon all member States of the CoE, and in particular their respective parliamentary bodies, to address all the issues raised in the reports and opinions underlying this resolution and in particular, to, inter alia, combat effectively all forms of discrimination based on gender or sexual orientation, introduce anti‑discrimination legislation, partnership rights and awareness-raising programmes where these are not already in place;” (point 34.14.).
59. Resolution 1728 (2010) of the Parliamentary Assembly of the Council of Europe, adopted on 29 April 2010 and entitled “Discrimination on the basis of sexual orientation and gender identity”, calls on member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000”, by providing, inter alia, for:
“16.9.1. the same pecuniary rights and obligations as those pertaining to different‑sex couples;
16.9.2. ‘next of kin’ status;
16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship;
16.9.4. recognition of provisions with similar effects adopted by other member states;”
60. In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member States:
“1. Examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity;
2. Ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them ...”
61. The Recommendation also observed as follows:
“23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same‑sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights.
24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation.
25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different-sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.”
3. European Union law
62. Articles 7, 9 and 21 of the Charter of Fundamental Rights of the European Union, which was signed on 7 December 2000 and entered into force on 1 December 2009, read as follows:
“Everyone has the right to respect for his or her private and family life, home and communications.”
“The right to marry and to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.”
“1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.”
63. The Commentary of the Charter of Fundamental Rights of the European Union, prepared in 2006 by the EU Network of Independent Experts on Fundamental Rights, states as follows with regard to Article 9 of the Charter:
“Modern trends and developments in the domestic laws in a number of countries toward greater openness and acceptance of same-sex couples notwithstanding, a few states still have public policies and/or regulations that explicitly forbid the notion that same-sex couples have the right to marry. At present there is very limited legal recognition of same-sex relationships in the sense that marriage is not available to same-sex couples. The domestic laws of the majority of states presuppose, in other words, that the intending spouses are of different sexes. Nevertheless, in a few countries, e.g., in the Netherlands and in Belgium, marriage between people of the same sex is legally recognized. Others, like the Nordic countries, have endorsed a registered partnership legislation, which implies, among other things, that most provisions concerning marriage, i.e. its legal consequences such as property distribution, rights of inheritance, etc., are also applicable to these unions. At the same time it is important to point out that the name ‘registered partnership’ has intentionally been chosen not to confuse it with marriage and it has been established as an alternative method of recognizing personal relationships. This new institution is, consequently, as a rule only accessible to couples who cannot marry, and the same‑sex partnership does not have the same status and the same benefits as marriage ...
In order to take into account the diversity of domestic regulations on marriage, Article 9 of the Charter refers to domestic legislation. As it appears from its formulation, the provision is broader in its scope than the corresponding articles in other international instruments. Since there is no explicit reference to ‘men and women’ as the case is in other human rights instruments, it may be argued that there is no obstacle to recognize same-sex relationships in the context of marriage. There is, however, no explicit requirement that domestic laws should facilitate such marriages. International courts and committees have so far hesitated to extend the application of the right to marry to same-sex couples ...”
64. A number of other Directives may also be of interest in the present case: they can be found in Vallianatos and Others v. Greece ([GC], nos. 29381/09 and 32684/09, §§ 33-34, ECHR 2013 (extracts)).
4. The United States
65. On 26 June 2015, in the case of Obergefell et al. v. Hodges, Director, Ohio Department of Health et al, the Supreme Court of the United States held that same-sex couples may exercise the fundamental right to marry in all States, and that there was no lawful basis for a State to refuse to recognise a lawful same-sex marriage performed in another State on the ground of its same-sex character.
The petitioners had claimed that the respondent state officials violated the Fourteenth Amendment by denying them the right to marry or to have marriages lawfully performed in another State given full recognition.
The Supreme Court held that that the challenged laws burdened the liberty of same-sex couples, and abridged central precepts of equality. It considered that the marriage laws enforced by the respondents were unequal as same-sex couples were denied all the benefits afforded to opposite-sex couples and were barred from exercising a fundamental right. This denial to same-sex couples of the right to marry worked a grave and continuing harm and the imposition of this disability on gays and lesbians served to disrespect and subordinate them. Indeed, the Equal Protection Clause, like the Due Process Clause, prohibited this unjustified infringement of the fundamental right to marry. These considerations led to the conclusion that the right to marry was a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Supreme Court thus held that same-sex couples may exercise the fundamental right to marry.
Having noted that substantial attention had been devoted to the question by various actors in society, and that according to their constitutional system individuals need not await legislative action before asserting a fundamental right, it considered that were the Supreme Court to stay its hand and allow slower, case-by-case determination of the required availability of specific public benefits to same sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.
Lastly, noting that many States already allowed same-sex marriage – and hundreds of thousands of these marriages had already occurred – it opined that the disruption caused by the recognition bans was significant and ever‑growing. Thus, the Supreme Court also found that there was no lawful basis for a State to refuse to recognise a lawful same-sex marriage performed in another State.
I. PRELIMINARY OBJECTIONS
A. Rule 47
66. The Government cited Article 47 of the Rules of Court. They highlighted that according to the recent revision of Article 47 of the Rules issued by the Plenary Court, the rules on what an application must contain must be applied in a stricter way. Thus, failure to comply with the requirements set out in paragraphs 1 and 2 of this rule may result in the application not being examined by the Court.
67. The applicants in application no. 18766/11 submitted that on the basis of the principle of tempus regit actum, the new Rule 47 adopted in 2013 could not apply to an application lodged in 2011.
68. The Court notes that, quite apart from the failure of the Government to indicate in what way the applicants failed to fulfil the requirements of Rule 47, it is only from 1 January 2014 that the amended Rule 47 applied stricter conditions for the introduction of an application with the Court. In the present case, the Court notes that all the applicants lodged their applications in 2011, and there is no reason to consider that they have not fulfilled the requirements of Rule 47 as applicable at the time.
69. It follows that any Government objection in this respect must be dismissed.
B. Victim status
70. Although not explicitly raised as an objection to the applications’ admissibility, the Government submitted that the applicants had not indicated in what way they had suffered any actual damage, and the reference to the injury of the applicants was only abstract (inheritance rights, assistance to the partner, sub-entry into economic relationships acts). They pointed out that the Court could only judge upon specific circumstances of a case and not make evaluations going beyond the scope of the applications.
71. The Court considers it appropriate to deal with the argument at this stage. It notes that the applicants are individuals past the age of majority, who, according to the information submitted, are in same-sex relationships and in some cases are cohabiting. To the extent that the Italian Constitution as interpreted by the domestic courts excludes same-sex couples from the scope of marriage law, and that because of the absence of any legal framework to that effect the applicants cannot enter into a civil union and organise their relationship accordingly, the Court considers that they are directly concerned by the situation and have a legitimate personal interest in seeing it brought to an end (see, mutatis mutandis, Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 49, ECHR 2013 (extracts), and by implication, Schalk and Kopf v. Austria, no. 30141/04, ECHR 2010).
72. Accordingly, the Court concludes that the individuals in the present applications should be considered “victims” of the alleged violations within the meaning of Article 34 of the Convention.
C. Exhaustion of domestic remedies
1. The Government
73. The Government submitted that the applicants had failed to exhaust domestic remedies. They noted that in cases such as the present one it is possible to appeal against refusal to publish wedding banns before the relevant tribunal. The first-instance decision could then be challenged before the Court of Appeal and the Court of Cassation. However, Mr Oliari and Mr A. had failed to lodge a further appeal to the Court of Cassation, Mr Felicetti and Mr Zappa had not made any challenge to the administrative refusal to publish their banns, and Mr Perelli Cippo and Mr Zaccheo had failed to appeal against the first-instance judgment handed down in their case.
74. The Government referred to the principle of subsidiarity, and considered that the domestic courts could have given the applicants adequate redress for the damage suffered and offered them the legal and judicial means to obtain a statement at least recognising their union as a social formation like a life partnership as traditionally understood [sic]. In support of this the Government made reference to the Court of Cassation judgment no. 4184 delivered in 2012 concerning the registration of same‑sex marriage contracted abroad, which according to their translation reads as follows:
“[T]he case law of this Court (of Cassation) – according to which the difference in sex of the engaged couple is, together with the manifestation of the will expressed by the same in the presence of the civil state officer celebrant, indispensable minimum requirement for the ‘existence of civil marriage’ as legally relevant act – is no more suitable to the current legal reality, having been radically overcome the idea that the difference in sex couples preparing for marriage is a prerequisite, as to say ‘natural’ of the same ‘existence’ of marriage. For all the above reasons, the no-transcription of homosexual unions depends – not from their ‘non-existence’, nor by their ‘invalidity’ but – by their inability to produce, as marriage records precisely, legal effects in the Italian system.”
In that light, the Government considered that if the applicants had brought their case before the domestic judges they would at least have had a legal recognition of their union. However, they had deliberately chosen not to do so.
75. Furthermore, they noted that the claims lodged before the domestic courts solely concerned their inability to obtain same-sex marriage and not the inability to obtain an alternative form of recognition for such couples.
2. The applicants
76. The applicants submitted that while the Constitutional Court in its judgment of no. 138/10 had found that Article 2 of the Constitution required legal protection of same-sex unions, it had no other option but to declare the complaint inadmissible, given the legislature’s competence in the matter. A similar situation obtained in judgment no. 170/14 (see paragraph 36 above). Furthermore, the applicants submitted that the Government had not proved, by means of examples, that the domestic courts could provide any legal recognition of their unions. Indeed, given that the flaw related to the law (or lack thereof), ordinary domestic courts were prevented from taking any remedial action: even the court with competence to review the laws was unable to do this. Within the domestic system the appropriate remedy would have been a challenge before the Constitutional Court, which the Court had already stated was not a remedy to be used, it not being directly accessible to individuals (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). Moreover, in the present case such a challenge would not have been successful, given the precedent which lay in judgment no. 138/10, subsequently confirmed by other decisions.
3. The Court’s assessment
77. The Court reiterates that Article 35 § 1 of the Convention requires that complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance (see Akdivar and Others v. Turkey, 16 September 1996, § 66, Reports 1996‑IV, and Gäfgen v. Germany [GC], no. 22978/05 §§ 144 and 146, ECHR 2010). The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). That rule is based on the assumption, reflected in Article 13 of the Convention, with which it has close affinity, that there is an effective remedy available in respect of the alleged breach in the domestic system (ibid.). To be effective, a remedy must be capable of remedying directly the impugned state of affairs, and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006‑II).
78. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, İlhan v. Turkey [GC], no. 22277/93, § 97, ECHR 2000-VII). It is for the Court to determine whether the means available to an applicant for raising a complaint are “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see Kudła v. Poland [GC], no. 30210/96, §§ 157-158, ECHR 2000‑XI). Whether the redress given is effective will depend, among other things, on the nature of the right alleged to have been breached, the reasons given for the decision and the persistence of the unfavourable consequences for the person concerned after that decision (see, for example, Freimanis and Līdums v. Latvia, nos. 73443/01 and 74860/01, § 68, 9 February 2006). In certain cases a violation cannot be made good through the mere payment of compensation (see, for example, Petkov and Others v. Bulgaria, nos. 77568/01, 178/02 and 505/02, § 80, 11 June 2009 in connection with Article 3 of Protocol No. 1) and the inability to render a binding decision granting redress may also raise issues (see Silver and Others v. the United Kingdom, 25 March 1983, § 115, Series A no. 61; Leander v. Sweden, 26 March 1987, § 82, Series A no. 116; and Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 118, ECHR 2006‑VII).
79. The only remedies which Article 35 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Akdivar and Others, cited above, § 66, and Vučković and Others v. Serbia [GC], no. 17153/11, § 71, 25 March 2014).
80. In addition, according to the “generally recognised principles of international law”, there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal (see Selmouni, cited above, § 75). However, the Court points out that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Vučković and Others, cited above, § 74, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001‑IX). The issue of whether domestic remedies have been exhausted shall normally be determined by reference to the date when the application was lodged with the Court. This rule is however subject to exceptions which might be justified by the specific circumstances of each case (see, for example, Baumann v. France, no. 33592/96, § 47, 22 May 2001; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; and Mariën v. Belgium (dec.), no. 46046/99, 24 June 2004).
81. As regards the Government’s main argument that none of the applicants availed themselves of the full range of remedies available (up to the Court of Cassation), the Court observes that at the time when all the applicants introduced their applications before the Court (March and June 2011) the Constitutional Court had already given judgment on the merits of the first two applicants’ claim (15 April 2010), as a result of which the Court of Appeal dismissed their claims on 21 September 2010. The Constitutional Court subsequently reiterated those findings in two further judgments (lodged in the relevant registry on 22 July 2010 and 5 January 2011, see paragraph 45 above) also delivered before the applicants introduced their applications with the Court. Thus, at the time when the applicants wished to complain about the alleged violations there was consolidated jurisprudence of the highest court of the land indicating that their claims had no prospect of success.
82. The Government have not shown, nor does the Court imagine, that the ordinary jurisdictions could have ignored the Constitutional Court’s findings and delivered different conclusions accompanied by the relevant redress. Further, the Court observes that the Constitutional Court itself could not but invite the legislature to take action, and it has not been demonstrated that the ordinary courts could have acted more effectively in redressing the situations in the present cases. In this connection, and in the light of the Government’s argument that they could have obtained a statement at least on the recognition of their union based on the Court of Cassation judgment no. 4184/12, the Court notes as follows: firstly, the Government failed to give even one example of such a formal recognition by the domestic courts; secondly, it is questionable whether such recognition, if at all possible, would have had any legal effect on the practical situation of the applicants in the absence of a legal framework – indeed the Government have not explained what this ad hoc statement of recognition would entail; and thirdly, judgment no. 4184, referred to by the Government (which only makes certain references en passant), was delivered after the applicants had introduced their application with the Court.
83. Bearing in mind the above, the Court considers that there is no evidence enabling it to hold that on the date when the applications were lodged with the Court the remedies available in the Italian domestic system would have had any prospects of success. It follows that the applicants cannot be blamed for not having pursued an ineffective remedy, either at all or until the end of the judicial process. Thus, the Court accepts that there were special circumstances which absolved the applicants from their normal obligation to exhaust domestic remedies (see Vilnes and Others v. Norway, nos. 52806/09 and 22703/10, § 178, 5 December 2013).
84. Without prejudice to the above, in reply to the Government’s last argument the Court observes that the domestic proceedings (undertaken by four of the applicants in the present case) related to the authorities’ refusal to permit the applicants to marry. As the opportunity to enter into a registered partnership did not exist in Italy, it is difficult to see how the applicants could have raised the question of legal recognition of their partnership except by seeking to marry, especially given that they had no direct access to the Constitutional Court. Consequently, their domestic complaint focused on their lack of access to marriage. Indeed, the Court considers that the issue of alternative legal recognition is so closely connected to the issue of lack of access to marriage that it has to be considered as inherent in the present application (see Schalk and Kopf, cited above, § 76). Thus, the Court accepts that such a complaint, at least in substance, included the lack of any other means to have their relationship recognised by law (ibid., § 75). It follows that the domestic courts, particularly the Constitutional Court hearing the case concerning the first two applicants, was in a position to deal with the issue and, indeed, addressed it briefly, albeit only to conclude that it was for the legislature to take action on the matter. In these circumstances, the Court is satisfied that national jurisdictions were given the opportunity to redress the alleged violations being complained of in Strasbourg, as also characterised by the Court (see, mutatis mutandis, Gatt v. Malta, no. 28221/08, § 24, ECHR 2010).
85. It follows that in these circumstances the Government’s objection must be dismissed.
D. Six months
1. The Government
86. The Government submitted that the complete application no. 18766/11 of 4 August 2011 was received by the Court on 9 August 2011, one year after the judgment of the Court of Appeal of Trent dated 23 September 2010, and that the complete application no. 36030/11 of 10 June 2011 was received by the Court on 17 June 2011, one year after the judgment of the Milan Tribunal of 9 June 2010, lodged in the relevant registry on 1 July 2010 in respect of Mr Perelli Cippo and Mr Zaccheo and in the absence of any judgment in respect of Mr Felicetti and Mr Zappa. Any material submitted to the Court before those dates had not contained all the characteristics of the application.
2. The applicants
87. The applicants in application no. 18766/11 submitted that under Italian law the decision of the Trent Court of Appeal served on the applicants on 23 September 2010 became final after six months. It followed that the application introduced on 21 March 2011 complied with the six‑month rule provided in the Convention.
88. The applicants in application no. 36030/11 considered that the alleged violations had a continuous character, as long as same-sex unions were not recognised under Italian law.
3. The Court’s assessment
(a) Dates of introduction of the applications
89. The Court reiterates that the six-month period is interrupted on the date of introduction of an application. In accordance with its established practice and Rule 47 § 5 of the Rules of Court, as in force at the relevant time, it normally considered the date of the introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application. Such first communication, which at the time could take the form of a letter sent by fax, would in principle interrupt the running of the six-month period (see Yartsev v. Russia (dec.) no. 1376/11, § 21, 26 March 2013; Abdulrahman v. the Netherlands (dec.), no. 66994/12, 5 February 2013; and Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, § 45, 12 June 2014).
90. In the instant case, concerning application no. 18766/11, the first communication indicating the wish to lodge a case with the Court as well as the object of the application (in the instant case in the form of an incomplete application), was deposited by hand at the Court Registry on 21 March 2011: a completed application followed in accordance with the instructions of the Registry. There is thus no doubt that the date of introduction in respect of application no. 18766/11 was 21 March 2011. Similarly, concerning application no. 36030/11 a complete application was received by the Court by fax on 10 June 2011, it was followed by the original received by the Court on 17 June 2011. There is therefore also no doubt that the introduction date in respect of application no. 36030/11 must be considered to be 10 June 2011. It follows that in these circumstances the date of “receipt” by the Court of the original or the completed application forms is irrelevant for determining the date of introduction; the Government’s argument to that effect is therefore misconceived.
91. It remains to be determined whether the applications introduced on those days complied with the six-month rule.
(b) Compliance with the six-month time-limit
(i) General principles
92. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 259, ECHR 2014 (extracts)). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period as the date when the applicant first became or ought to have become aware of those circumstances (ibid., § 260; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012, and Paul and Audrey Edwards v. the United Kingdom (dec.), no. 46477/99, 4 June 2001).
93. In cases where there is a continuing situation, the period starts to run afresh each day, and it is in general only when that situation ends that the six‑month period actually starts to run (see Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 159, ECHR‑2009).
94. The concept of a “continuing situation” refers to a state of affairs which operates by continuous activities by or on the part of the State which render the applicants victims (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 75, 10 January 2012; see also, conversely, McDaid and Others v. the United Kingdom, no. 25681/94, Commission decision of 9 April 1996, Decisions and Reports (DR) 85-A, p. 134, and Posti and Rahko v. Finland, no. 27824/95, § 39, ECHR 2002‑VII). The Court has however also established that omissions on the part of the authorities may also constitute “continuous activities by or on the part of the State” (see, for example, Vasilescu v. Romania, 22 May 1998, § 49, Reports of Judgments and Decisions 1998‑III concerning a judgment preventing the applicant from regaining possession of her property; Sabin Popescu v. Romania, no. 48102/99, § 51, 2 March 2004 concerning a parent’s inability to regain parental rights; Iordache v. Romania, no. 6817/02, § 66, 14 October 2008; and Hadzhigeorgievi v. Bulgaria, no. 41064/05, §§ 56-57, 16 July 2013, both concerning non-enforcement of judgments, as well as, by implication, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 104, ECHR 2012, concerning the inability to broadcast television programmes).
95. In its case-law the Court has considered that there were “continuing situations” bringing the case within its competence with regard to Article 35 § 1, where a legal provision gave rise to a permanent state of affairs, in the form of a permanent limitation on an individual Convention‑protected right, such as the right to vote or to stand for election (see Paksas v. Lithuania [GC], no. 34932/04, § 83, 6 January 2011, and Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 77, 4 July 2013) or the right of access to court (see Nataliya Mikhaylenko v. Ukraine, no. 49069/11, § 25, 30 May 2013), or in the form of a legislative provision which intrudes continuously on an individual’s private life (see Dudgeon v. the United Kingdom, 22 October 1981, § 41, Series A no. 45, and Daróczy v. Hungary, no. 44378/05, § 19, 1 July 2008)
(ii) Application to the present case
96. Turning to the particular features of the present case, the Court notes that in so far as the rights under Articles 8, 12 and 14 concerning the inability to marry or enter into a civil union are at issue the applicants’ complaints do not concern an act occurring at a given point in time or even the enduring effects of such an act, but rather concern provisions (or in this case the lack thereof) giving rise to a continuing state of affairs, namely a lack of recognition of their union, with all its practical consequences on a daily basis, against which no effective domestic remedy was in fact available. The Convention organs have previously held that when they receive an application concerning a legal provision which gives rise to a permanent state of affairs for which there is no domestic remedy, the question of the six-month period arises only after this state of affairs has ceased to exist: “... in the circumstances, it is exactly as though the alleged violation was being repeated daily, thus preventing the running of the six‑month period” (see De Becker v. Belgium, (dec.) 9 June 1958, no. 214/56, Yearbook 2, and Paksas, cited above, § 83).
97. In the instant case, in the absence of an effective domestic remedy given the state of domestic case-law, and the fact that the state of affairs complained of has clearly not ceased, the situation must be considered as a continuing one (see, for example, Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 77, 4 July 2013, albeit a different line had been taken previously in British cases concerning similar circumstances, see Toner v. The United Kingdom (dec.), § 29, no. 8195/08, 15 February 2011, and Mclean and Cole v. The United Kingdom (dec.), § 25, 11 June 2013). It cannot therefore be maintained that the applications are out of time.
98. Accordingly, the Government’s objection is dismissed.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION AND ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8
99. The applicants in application no. 18766/11 complained that they had no means of legally safeguarding their relationship, in that it was impossible to enter into any type of civil union in Italy. They invoked Article 8 alone. The applicants in application nos. 18766/11 and 36030/11 complained that they were being discriminated against in breach of Article 14 in conjunction with Article 8. Those provisions read as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. 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 or morals, or for the protection of the rights and freedoms of others.”
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
100. The Court reiterates that it is the master of the characterisation to be given in law to the facts of the case (see, for example, Gatt, cited above, § 19). In the present case the Court considers that the complaints raised by the applicants in application no. 36030/11, also fall to be examined under Article 8 alone.
101. The Government, referring to Schalk and Kopf (§§ 93-95), did not dispute the applicability of Article 14 in conjunction with Article 8.
102. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, for instance, E.B. v. France [GC], no. 43546/02, § 47, 22 January 2008; Karner v. Austria, no. 40016/98, § 32, ECHR 2003‑IX; and Petrovic v. Austria, 27 March 1998, § 22, Reports 1998‑II).
103. It is undisputed that the relationship of a same-sex couple, such as those of the applicants, falls within the notion of “private life” within the meaning of Article 8. Similarly, the Court has already held that the relationship of a cohabiting same-sex couple living in a stable de facto partnership falls within the notion of “family life” (see Schalk and Kopf, cited above, § 94). It follows that the facts of the present applications fall within the notion of “private life” as well as “family life” within the meaning of Article 8. Consequently, both Article 8 alone and Article 14 taken in conjunction with Article 8 of the Convention apply.
104. The Court notes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
1. The parties’ submissions
(a) The applicants in application no. 18766/11
105. The applicants referred to the evolution which had taken place, as a result of which many countries had legislated in favour of some type of institution for same-sex couples, the most recent additions being Gibraltar and Malta, whose legislation enacted in 2014 gave same-sex couples grosso modo the same rights and duties applicable to married couples; registered partnership for same-sex couples had also been instituted in Croatia. They considered that there was no reason why those unions should not be provided for in Italy. They noted in particular that the Italian Constitutional Court itself had considered that the state had an obligation to introduce in its legal system some form of civil union for same-sex couples. They referred to the Court’s jurisprudence concerning the positive obligations inherent in an effective respect for private and family life, and reiterated that according to the Court, where a particular facet of an individual’s existence or identity was at stake, or where the activities at stake involved a most intimate aspect of private life, the margin allowed to a State was correspondingly narrow (Söderman v. Sweden [GC], no. 5786/08, § 79, ECHR 2013).
106. The applicants noted that the Government had given no justification for the failure to legislate to this effect. On the contrary, they had tried to convince the Court that same-sex couples were already protected, despite the lack of a specific legal framework. This in itself was contradictory, because if the Government recognised the need to protect, then there was no other way of doing so than by providing a stable legal framework, such as marriage or a similar institution of registered partnership, or the like. Further, the applicants failed to understand the connection between the protection of family in its traditional sense and the legal recognition of a stable relationship of a same-sex couple.
107. The applicants considered that the recognition in law of one’s family life and status was crucial for the existence and well-being of an individual and for his or her dignity. In the absence of marriage the State should, at least, give access to a recognised union by means of a solemn juridical institution, based on a public commitment and capable of offering them legal certainty. Currently they were denied such protection in law, and same-sex couples suffered a state of uncertainty, as shown by the domestic cases cited by the Government, which left people in the applicants’ situation at the mercy of judicial discretion. The applicants noted that despite the fact that Italy had transposed EU directive 78/2000, the administration continued to deny certain benefits to same-sex couples, and did not consider them equal to heterosexual couples.
108. The applicants considered that the Government was misleading the Court by a wrong interpretation of the decision of the municipality of Milan concerning registration (see paragraph 130 below). The registration referred to did not provide for the issuance of a document certifying a “civil union” based on a bond of affection, but of a “union for record purposes (unione anagrafica)” based on a bond of affection. It solely concerned registration for the purposes of statistical records of the existing population, which was not to be confused with the notion of an individual’s civil status. While noting that certain municipalities had embraced this system, very few couples had actually registered, since it had no effect on a person’s civil status, and could only be produced as proof of cohabitation. Indeed it had no effects vis-ŕ-vis third parties, nor did it deal with matters such as succession, parental matters, adoption, and the right to create a family business (impresa famigliare). Similarly, the judgment of the tribunal of Grosseto concerning the registration of the marriage of a homosexual couple (see paragraph 38 above) had been a unique judgment and was, at the time of the submission of observations, pending appeal at the request of the Government. They further noted that the remarks made by the Court of Cassation in its judgment no. 4184/12, to the effect that a same-sex marriage contracted abroad was no longer contrary to the Italian public order, had been said in passing (obiter dictum), were not binding and the administration had not followed suit. Indeed the Court of Cassation had clearly decided the matter, in the sense that no such marriage was possible.
109. In connection with Article 14, the applicants reiterated that the State’s margin of appreciation was narrow when the justification for evading such an obligation was based on the sexual orientation of individuals (they referred to X and Others v. Austria [GC], no. 19010/07, ECHR 2013, and X v. Turkey, no. 24626/09, 9 October 2012), and very weighty reasons were necessary to justify a difference of treatment based on such grounds. They relied on the dissenting opinions in the judgment of Schalk and Kopf. They further considered that in the present case there was no point in arguing that it was not open for heterosexual couples to enter into some sort of registered union, given that heterosexual couples had the opportunity to marry, while homosexual couples had no protection of this kind whatsoever.
(b) The applicants in application no. 36030/11
110. The applicants submitted that in view of the positive trend registered in Europe, the Court should now impose on States a positive obligation to ensure that same sex-couples have access to an institution, of whatever name, which was more or less equivalent to marriage. This was particularly so given that in Italy the Constitutional Court had upheld the need for homosexual unions to be recognised in law with the relevant rights and duties; despite this the legislator had remained inert.
111. The applicants noted that the Government had failed to demonstrate how recognition of same-sex unions would adversely affect actual and existing “traditional families”. Neither had the Government explained that prevention of any adverse effects could not be attained through less restrictive means. The applicants also noted that a finding of a violation in the present case would only oblige Italy to take legislative measures in this regard, leaving to the State the space to address any legitimate aim by tailoring the relevant legislation. It followed that the margin of appreciation, which was particularly narrow in respect of a total denial of legal recognition to same-sex couples, was, conversely, existent in relation to the form and content of such recognition, which however was not the subject of this application. They further noted that the present case did not raise moral and ethical issues of acute sensitivity (such as the issue of abortion) nor did it involve a balance with the rights of others, in particular children (such as adoption by homosexuals): the present case simply related to the rights and duties of partners towards each other (irrespective of the recognition of rights such as parental rights, adoption or access to medically assisted procreation).
112. The applicants submitted that in Schalk and Kopf one of the Chambers of the Court had found no violation of Article 14 in conjunction with Article 8, by a tight majority (4-3), considering that States enjoyed a margin of appreciation as to the timing of such recognition, and that at the time there was not yet a majority of States providing for such recognition. The applicants noted that until June 2014 (date of observations) 22 of 47 States recognised some form of same-sex union. These included all the Council of Europe (CoE) founding States except Italy, as well as countries sharing, like Italy, a deep attachment to the Catholic religion (such as Ireland and Malta). In addition Greece was also under an obligation to introduce such recognition following the judgment in Vallianatos. This meant that, at the time they submitted their observations, 49% of States had recognised same-sex unions. However, the applicants noted, with respect, that in Schalk and Kopf the Chamber had taken as a decisive factor “the majority of member States”, while in earlier case-law (namely Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 84, ECHR 2002‑VI), notwithstanding the little common ground that existed between States, and the fact that a European common approach was still lacking, the Grand Chamber chose to give less importance to those criteria and to give more importance to the clear and uncontested evidence of a continuing international trend. Further, the applicants noted that in the present case it could not be said that there was a consensus on the practice followed by Italy.
113. The applicants contended that the Court could not be reduced to being an “accountant” of majoritarian domestic views. On the contrary, it had to be the guardian of the Convention and its underlying values, which include the protection of minorities (they referred in this connection to L. and V. v. Austria, nos. 39392/98 and 39829/98, § 52, ECHR 2003‑I, and Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 97, ECHR 1999‑VI). The applicants noted that bias was still present throughout Europe, and could be stronger in certain countries where prejudice against homosexuals was rooted in traditional, if not archaic, convictions and where democratic ideals and practices had only established themselves in recent times. The applicants noted that empirical evidence (submitted to the Court) showed that lack of recognition of same-sex couples in a given state corresponded to a lower degree of social acceptance of homosexuality. It followed that by simply deferring normative choices to the national authorities, the Court would fail to take account of the fact that certain national choices were in fact based on prevailing discriminatory attitudes against homosexuals, rather than the outcome of a genuine democratic process guided by the consideration of what is strictly necessary in a democratic society.
114. In the applicants’ view, even accepting a certain margin of appreciation it was not appropriate for the Italian Government to rely on it for the specific reason that the domestic courts had upheld the existence in domestic constitutional law of an obligation to recognise same-sex unions. The applicants contended that under the Court’s jurisprudence once a State provided for a right in domestic law it was then obliged to provide effective and non-discriminatory protection of such a right (they referred to A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010). The applicants noted that Constitutional Court judgment no. 138/10 had the effect of affirming the existence of a constitutional fundamental right for same-sex partners to obtain recognition of their union and, to this effect, of a constitutional duty upon the legislature to enact an appropriate general regulation on the recognition of same-sex unions, with consequent rights and duties for partners. The recognition by the domestic courts that the concept of family was not limited to the traditional notion based on marriage had gone even beyond judgment no. 138/10. Other judgments in the field of fundamental rights held that as a matter of domestic constitutional law the notion of traditional family played a minor role in justifying restrictions: examples pertained to medically assisted procreation (nos. 162/14 and 151/09); rules on the transmission of the family name to children (no. 61/06); a partner’s right to succeed in a lease contract (no. 404/88); and a partner’s right to refrain from giving testimony in judicial proceedings (no. 7/97).
115. The lack of recognition of their union affected and disadvantaged the applicants in many specific and concrete ways. The applicants noted that even if the law recognised some specific and limited rights for non-married (heterosexual or same-sex) couples, these were not dependent on status, but on a de facto situation of cohabitation more uxorio. In fact, in the domestic cases concerning reparation in the case of a partner’s death, the Court of Cassation (judgment no. 23725/08) had held that for such purposes the existence of a stable relationship providing mutual, moral and material assistance would have to be proved, and that declarations made by the interested individuals (affidavit) or indications given to the administration for the purposes of statistics would not suffice. Thus, the applicants submitted that to exercise or claim their rights they could not rely on status resulting from an act of common will, but had to resort to proving the existence of a factual situation. In addition, only a limited number of rights had been recognised in respect of de facto partners, and in most cases they remained without legal protection. They submitted the following as a non‑exhaustive list of examples of the latter (on the basis of legal provisions, and in certain cases confirmed by case-law): the law failed to regulate the respective rights and duties of partners (as also noted by the Constitutional Court) in spheres such as material and moral assistance between partners, the responsibilities in contributing to the needs of the family, or their choices concerning family life; there was a lack of inheritance rights in the case of intestate succession; de facto partners were not entitled to a reserved portion (legitim) and a surviving partner did not enjoy a right in rem to live in the family home owned by the deceased partner (Constitutional Court judgment no. 310/89); there existed no right to a survivor’s pension (Constitutional Court judgment no. 461/2000); de facto partners had limited rights concerning assistance to a hospitalised partner when the latter was not able to express his or her will; in principle a de facto partner had no right to access his or her companion’s medical file (although the Garante della Privacy in its decision of 17 September 2009, found otherwise, in the event of proof of written consent); de facto partners did not have maintenance rights and duties; de facto partners were not entitled to special leave from work to assist a partner affected by a serious disability; de facto partners did not benefit from most taxation or social policies relating to family: for example, they could not benefit from tax deductions applicable to dependent spouses; and de facto partners had no access to adoption or to medically assisted procreation.
116. The applicants noted that while a certain limited degree of protection could have been obtained by means of private agreements, this was irrelevant, and the Court’s Grand Chamber had already rejected such an argument in Vallianatos (§ 81). Furthermore, such arrangements were time‑consuming and costly, as well as stressful, and again it was a burden only to be carried by the applicants and not by heterosexual couples, who could opt for marriage, or by couples who were not interested in having any legal recognition. The lack of legal recognition of the union, besides causing legal and practical problems, also prevented the applicants from having a ritualised public ceremony through which they could, under the protection of the law, solemnly undertake the relevant duties towards each other. They considered that such ceremonies brought social legitimacy and acceptance, and particularly in the case of homosexuals, they went to show that they also have the right to live freely and to live their relationships on an equal basis, both in private and in public. They noted that the absence of such recognition brought about in them a sense of belonging to an inferior class of persons, despite their needs in the sphere of love being the same.
117. The applicants submitted that the fact that 155 of the existing 8,000 municipalities had recently instituted what are known as “registers of civil unions” had not corrected the situation. Accepting their political and symbolic importance, the applicants submitted that such registers, available only on a small portion of the territory, were merely administrative acts which were unable to confer a status on the applicants or bestow any legal rights. Such initiatives only testified to the willingness of certain authorities to include unions outside marriage when taking measures concerning families, within their sphere of competence.
118. The applicants submitted that the alleged violation was a direct consequence of the vacuum in the legal system in force. The applicants’ were in a relevantly similar situation to that of a different-sex couple as regards their need for legal recognition and protection of their relationship. They further claimed that they were also in a position which was significantly different from that of opposite-sex couples who, though eligible for marriage, did not wish to obtain legal recognition of their union. They noted that the only basis for the difference in treatment suffered by the applicants was their sexual orientation, and that the Government had failed to give weighty reasons justifying such treatment, which constituted direct discrimination. Neither was any justification submitted as to why they were subject to indirect discrimination, in that they were treated in the same way as persons who were in a significantly different situation (they referred to Thlimmenos v. Greece [GC], no. 34369/97, ECHR 2000‑IV), namely that of heterosexual couples who were not willing to marry.
119. The Government, relying solely on their margin of appreciation, gave no reasons at all, let alone weighty ones, to justify such a situation. In the applicants’ view this stance was already sufficient to find a violation of the cited provisions.
120. Nevertheless, even assuming that the difference in treatment may be considered to be aiming at “the protection of the family in the traditional sense”, given the Court’s evolving case-law they considered that it would be unacceptable to frame restrictions on the basis of sexual orientation as aimed at protecting public morals. This, in their view, would be in radical contrast with the demands of pluralism, tolerance and broadmindedness without which there was no democratic society (they referred to Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24). In connection with the notion of the traditional family the applicants referred to the Court’s findings in Vallianatos (cited above, § 84) and Konstantin Markin (cited above, § 127).
121. Lastly, they noted that in Vallianatos the Court stressed that “the principle of proportionality does not merely require the measure chosen to be suitable in principle for achievement of the aim sought. It must also be shown that it was necessary, in order to achieve that aim, to exclude certain categories of people – in this instance persons living in a homosexual relationship – from the scope of application of the provisions at issue ... the burden of proof in this regard is on the respondent Government.” Moreover, the need for any restriction was to be assessed in relation to the principles which normally prevail in a democratic society (they referred to Konstantin Markin, cited above).
(c) The Government
122. The Government noted that the Court recognised the Convention right of same-sex couples to see their union legally acknowledged, but considered that the relevant provisions (Articles 8, 12 and 14) did not give rise to a legal obligation on the Contracting States, as the latter enjoyed a wider margin of appreciation in the adoption of legislative changes able to meet the changed “common sense” of the community. Indeed, in that light, in Schalk and Kopf, although lacking legislation on marriage or other forms of recognition of homosexual unions, the Austrian State was not held responsible for violations of the Convention. In the Government’s view, as in Gas and Dubois v. France, (no. 25951/07, ECHR 2012), the Court had acknowledged that the State had no obligation to provide for same-sex marriage, so it also had no obligation to provide for other same-sex unions.
123. Referring to the principles laid down by the Court, the Government observed that the social and cultural sensitivities of the issue of legal recognition of homosexual couples gave each Contracting State a wide margin of appreciation in the choice of the times and modes of a specific legal framework. They further relied on the provisions of Protocol No. 15. They noted that the same margin had been provided for in EU law, particularly Article 9 of the Bill of Rights. This matter had thus to be left to the individual State (in this case Italy), which was the only entity capable of having cognisance of the “common sense” of its own community, particularly concerning a delicate matter which affected the sensitivity of individuals and their cultural identities, and where time was necessarily required to achieve a gradual maturation of a common sense of national community on the recognition of this new form of family in the Convention sense.
124. In the Government’s view the Court had no power to impose such an obligation. Nor could such an obligation be dictated by other States which, in the meantime – most of them only recently (see for example, Malta, 2014) – had adopted a rule as a result of an internal process of social maturation. The Government noted that, at the time of the submission of their observations, less than half the European Contracting States had provided legal forms of protection for unmarried couples, including homosexuals, and many had done so only recently (for example, Austria in 2010, Ireland in 2011, and Finland in 2012), and in the other half it was not provided for at all. They further considered that the fact that at the end of a gradual evolution a State was in an isolated position with regard to an aspect of its legislation did not necessarily mean that that aspect was in conflict with the Convention (they referred to Vallianatos, § 92). The Government thus considered that no positive obligation to legislate in the matter of homosexual couples descended from any article of the Convention. It was solely for the State to decide whether to prohibit or allow same-sex unions, and currently there was no trend to this effect (this process and result could also be seen in the United States of America, where each state was allowed to regulate the matter).
125. Turning to the situation pertaining to Italy, the Government referred to judgment no. 138/10 (see paragraph 16 above), in which the Constitutional Court had recognised the importance for same-sex couples of being able to see their union legally acknowledged, but had left it to Parliament to identify the timing, methods and limits of such a regulatory framework. Thus, contrary to the applicants’ argument, there was no immediate obligation, and the Constitutional Court had not enshrined such a constitutional obligation. Reference to this finding had also been made in the recent Constitutional Court judgment no. 170/14 concerning “forced divorce” following gender reassignment. However, unlike in the present case, in the latter case the Constitutional Court had invited the legislator to act promptly because the individuals concerned had already established a marital relationship productive of effects and consequences which were suddenly brought to a halt. In the instant case, the Constitutional Court acknowledged the existence of a fundamental right, with a consequent need to ensure the legal protection of same-sex unions whenever unequal treatment arose. However, it had delegated to the ordinary national courts the role of controlling, on a case-by-case basis, whether in each specific case the rules provided for different gender unions were extendable to same‑sex ones. If, in the courts’ view, there was unequal treatment to the detriment of same-sex couples, they could refer the question to the Constitutional Court claiming the rule examined to be discriminatory and calling for corrective intervention by the judge.
126. The Government further submitted that the Italian State had been engaged in developing legal status for same-sex unions since 1986, by means of intense debate and a variety of bills on the recognition of civil unions (also between same-sex couples). The issue had always been considered timely and relevant, and recent bills to this effect, introduced by various political parties, were in the process of undergoing parliamentary scrutiny (see paragraphs 46-47 above). Thus, while noting the widespread social and legal ferment on the issue, the Government highlighted that the matter had continued to be debated in recent times. They referred particularly to the President of the Italian Council of Ministers, who had publicly claimed to have assigned top priority to the legal recognition of same-sex unions and to the imminent discussion and examination in the Senate of Bill no. 14 on civil unions for same-sex couples, which, in terms of obligations, specifically corresponded to the institution of marriage and the rights therein, including adoption, inheritance rights, the status of a couple’s children, health care and penitentiary care, residence and working benefits. Thus, Italy was perfectly in line with the pace of maturation which would lead to a European consensus, and could not be blamed for not having yet legislated on the matter. This intense activity in the past thirty years showed an intention on the part of the State to find a solution which would meet with public approval, as well as corresponding to the needs of the protection of a part of the community. It also showed, however, that despite the attention paid to the issue by various political forces, it was difficult to reach a balance between the different sensitivities on such a delicate and deeply felt social issue. They noted that the delicate choices involved in social and legislative policy had to achieve the unanimous consent of different currents of thought and feeling, as well as religious sentiment, which were present in society. It followed that the Italian State could not be held responsible for the tortuous course towards recognition of same-sex unions.
127. The Government, however, contended that they had still, in many ways, demonstrated that they recognised homosexual unions as legally existing and relevant, and that they had offered them specific and concrete forms of legal protection, through judicial and non-judicial means. Domestic jurisprudence had in most circumstances recognised same-sex unions as a reality, with legal and social importance. Indeed, the Italian supreme courts recognised that, in some specific circumstances, same-sex couples may have the same rights as heterosexual married couples: they referred to the Constitutional Court judgments nos. 138/10; 276/2010 and 4/2011 (all mentioned above) and particularly the Court of Cassation judgment no. 4184/12, as well as the Reggio Emilia ordinance of 13 February 2012 and the decision of the Tribunal of Grosseto (see paragraph 37 above): according to the Government, subsequent to the latter decision registration of such marriages became the common practice (an example was the decision of the Municipality of Milan of 7 May 2013).
128. The Government pointed out that the protection of same-sex couples was not limited to the recognition of the union and the family relationship itself. It was actually ensured with specific reference to concrete aspects of their common life. The Government referred to a number of judgments of the ordinary courts: the Rome Tribunal judgment no. 13445/82 of 20 November 1982 which, in a case concerning the lease of an apartment, considered cohabitation by a homosexual couple to be on an equal footing with that of a heterosexual couple; the Milan Tribunal ordinance of 13 February 2011, in which the surviving partner, who had had a long-standing relationship with the victim, was awarded non-pecuniary damages for the loss of the same-sex partner; the Milan Tribunal ordinance of 13 November 2009 [sic] admitting the application as a civil party of the homosexual partner of a victim for the purposes of compensation for the loss suffered; Judgment no. 7176/12 of the Milan Court of Appeal, Labour Section of 29 March 2012, lodged in the relevant registry on 31 August 2012, which granted to the same-sex partner the welfare benefits payable by the employer to the family living with the employee; Judgment of the Rome Court of Minors no. 299/14 of 30 June 2014 which granted “the right to adopt to a homosexual couple” [sic], recte: the right of a non-biological “mother” to adopt her lesbian partner’s child (conceived through medically assisted procreation, abroad, in pursuance of their wish for joint parenthood) given the best interests of the child.
129. The Government further stressed that same-sex couples wishing to give a legal framework to various aspects of their community life could enter into cohabitation agreements (contratti di convivenza). Such agreements enabled same-sex couples to regulate aspects related to; i) the manner of sharing common expenses, ii) the criteria for the allocation of ownership of assets acquired during the cohabitation; iii) the manner of use of the common residence (whether owned by one or both partners); iv) the procedure for the distribution of assets in the event of termination of cohabitation; v) provisions relating to rights in cases of physical or mental illness or incapacity; and vi) acts of testamentary disposition in favour of the cohabiting partner. Such agreements had recently been publicised by the National Council of Notaries, in the light of the growing phenomenon of de facto unions. The Government explained that in order to give cohabitation agreements the organic nature of a legal framework for de facto unions, whether between couples of the same or different sex, a proposal had been made for the Civil Code to be amended, which introduced a regulatory body dedicated to these situations (Civil Code Chapter XXVI, Article 1986 bis et sequi).
130. The Government further noted that since 1993 a growing number of municipalities (to date 155) had established a Register of Civil Unions, which allowed homosexual couples to register themselves to enable their recognition as families for the purposes of administrative, political, social and welfare policy of the city. This was in place in both small and larger towns, and was an unequivocal sign of a progressive and growing social consensus in favour of the recognition of such families. Concerning the content and effects of this form of protection, the Government referred by way of example to the regulations of the register of civil unions issued by the city of Milan (resolution no. 30 of 26 July 2012) according to which the city was committed to protecting and supporting civil unions, in order to overcome situations of discrimination and to promote integration into the social, cultural and economic development of the territory. The thematic areas within which priority action was required were housing, health and social services, policies for youth, parents and seniors, sports and leisure, education, school and educational services, rights, participation, and transportation. The acts of the administration were to provide non‑discriminatory access to these areas and to prevent conditions of social and economic disadvantage. Within the city of Milan, a person enrolled in the register was equivalent to “the next of kin of the person with whom he or she is registered” for the purposes of assistance. The City Council shall, at the request of interested parties, grant a certificate of civil union based on an affective bond of mutual, moral and material assistance.
131. The Government further submitted that since 2003 Italian legislation had been in place for equal treatment in employment and occupation under Directive 2000/78/EC. They noted that the protection of civil unions received more acceptance in certain branches of the State than in others. As an example, they referred to a decision of the Garante della Privacy (a collegial body made of four elected parliamentarians that deals with the protection of personal data) of 17 September 2009, which recognised a surviving partner’s right to request a copy of the deceased partner’s medical records, despite the heirs’ opposition.
132. In their observations in reply, the Government denied categorically that the aim of the contested measure, or rather the absence of such a measure, was to protect the traditional family or the morals of society (as had been claimed by the applicants).
133. In particular, in connection with Article 14, the Government distinguished the present case from that of Vallianatos. They noted that it was not possible yet to state that there existed a European common view on the matter and most states were, in fact, still deprived of this kind of regulatory framework. They further relied on the Court’s findings in Shalk and Kopf. The Government submitted that while the Italian State had engaged in the development of a number of bills concerning de facto couples, they had not given rise to unequal treatment or discrimination. Similarly, given the concrete recognition and legal judicial, legislative, and administrative protection awarded to same-sex couples (as described above), the conduct of the Italian State could not be considered discriminatory. Furthermore, the applicants had not given specific details of the suffering they alleged, and any abstract or generic damage could not be considered discriminatory. Had it been so, it could also be considered discriminatory against heterosexual unmarried couples, as no difference of treatment existed between the two mentioned types of couples.
(d) Third-party interveners
(i) Prof Robert Wintemute, on behalf of the non-governmental organisations FIDH (Fédération Internationale des ligues de Droit de l’Homme), AIRE Centre (Advice on Individual Rights in Europe), ILGA-Europe (European Region of the International Lesbian, Gay, Bisexual, Trans and Intersex Association), ECSOL (European Commission on Sexual Orientation Law), UFTDU (Unione forense per la tutela dei diritti umani) and LIDU (Lega Italiana dei Diritti dell’Uomo).
(α) positive obligation to provide some means of recognition
134. Those intervening submitted that there existed an emerging consensus, in European and other democratic societies, that a government may not limit a particular right, benefit or obligation to married couples, to the exclusion of same-sex couples who were legally prevented from getting married. They referred to the situation in March 2014, where at the time 44.7% of CoE member States had legislated in favour of same-sex relationships (see above for the current situation) and where Greece was yet to amend its legislation following the judgment in Vallianatos, as well as the Italian Constitutional Court’s invitation to the legislature to legislate accordingly. They noted that up until March 2014, outside Europe legislation had been adopted in Argentina, Australia, Canada, Mexico, New Zealand, South Africa and Uruguay. In the United States, 21 of 50 states (42%) and the District of Columbia had granted legal recognition to same-sex couples, through access to marriage, civil union or domestic partnership, as the result of legislation or a judicial decision. The interveners opined that there was a growing consensus in European and other democratic societies that same-sex couples must be provided with some means of qualifying for particular rights, benefits and obligations attached to legal marriage, and as noted in Smith and Grady v. the United Kingdom (nos. 33985/96 and 33986/96, § 104, ECHR 1999‑VI), even if relatively recent, the Court cannot overlook the widespread and consistently developing views and associated legal changes to the domestic laws of Contracting States on this issue. The Court had therefore to take account of this evolution and any further development until the date of its judgment. They considered that the Court’s approach in Goodwin (§ 85; see also §§ 91, 93, 103) to give more weight to “a continuing international trend” applied, mutatis mutandis, in the present case.
135. They submitted that judicial reasoning in a growing number of decisions required at least an alternative to legal marriage, if not access to legal marriage for same-sex couples. They noted that although many of the courts (mentioned below) found direct discrimination based on sexual orientation, and required equal access to legal marriage for same-sex couples, their reasoning supported a fortiori (at least) a finding of indirect discrimination based on sexual orientation, and (at least) a requirement that governments provide alternative means of legal recognition to same-sex couples. They noted the following:
The first court to require equal access for same-sex couples to the rights, benefits and obligations of legal marriage, while leaving it to the legislature to decide whether this access would be through legal marriage or an alternative registration system, was the Vermont Supreme Court in Baker v. State, 744 A.2d 864 (1999):
“We hold only that plaintiffs are entitled under ... the Vermont Constitution to obtain the same benefits and protections afforded ... to married opposite-sex couples. We do not purport to infringe upon the prerogatives of the Legislature ... other than to note ... [the existence of] ‘registered partnership’ acts, which ... establish an alternative legal status to marriage for same-sex couples, ... create a parallel ... registration scheme, and extend all or most of the same rights and obligations ... [T]he current statutory scheme shall remain in effect for a reasonable period of time to enable the Legislature to ... enact implementing legislation in an orderly and expeditious fashion.”
A law on same-sex civil unions was passed in 2000.
The British Columbia Court of Appeal went further in EGALE Canada (1 May 2003), 225 D.L.R. (4th) 472, holding that the exclusion of same-sex couples from legal marriage amounted to discrimination violating the Canadian Charter. It could not see (§ 127):
“... how according same-sex couples the benefits flowing to opposite-sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions ...”
The Ontario Court of Appeal agreed with the above in Halpern (10 June 2003), 65 O.R. (3d) 161 (§ 107):
“... [S]ame-sex couples are excluded from ... the benefits that are available only to married persons ... Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite-sex relationships ... [and] offends the dignity of persons in same-sex relationships.”
The Ontario Court ordered the issuance of marriage licences to same-sex couples that day.
The British Columbia Court followed on 8 July 2003 (228 D.L.R. (4th) 416). A federal law (approved by the Supreme Court of Canada) extended these appellate decisions to all ten provinces and three territories from 20 July 2005.
On 18 November 2003 the Massachusetts Supreme Judicial Court reached the same conclusion as the Canadian courts in Goodridge, 798 N.E.2d 941:
“The question before us is whether, consistent with the Massachusetts Constitution, the [State] may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex ... We conclude that it may not.”
On 30 November 2004, South Africa’s Supreme Court of Appeal agreed with the Canadian and Massachusetts courts, and restated the common-law definition of marriage as: “the union between two persons to the exclusion of all others for life.” On 1 December 2005, South Africa’s Constitutional Court concluded that the remaining statutory obstacle to marriage for same‑sex couples was discriminatory (§ 71):
“ ... The exclusion of same-sex couples from ... marriage ... represents a harsh if oblique statement by the law that same-sex couples are outsiders ... that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples ... that their capacity for love, commitment and accepting responsibility is by definition less worthy of regard than that of heterosexual couples ...”
South Africa’s Parliament responded by enacting the Civil Union Act (No. 17 of 2006, in force on 30 November 2006), allowing any couple, different-sex or same-sex, to contract a “civil union” and choose whether it should be known as a ‘marriage’ or a ‘civil partnership’.
On 25 October 2006, in Lewis v. Harris, 908 A.2d 196 (2006), the New Jersey Supreme Court adopted the same approach as the Vermont Supreme Court:
“Although we cannot find that a fundamental right to same-sex marriage exists in this State [cf. Schalk & Kopf], the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples ... given to their heterosexual counterparts violates the equal protection guarantee ... [T]he Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. ... The name to be given to the statutory scheme ..., whether marriage or some other term, is a matter left to the democratic process.”
A law on same-sex civil unions was passed in 2006.
On 15 May 2008 the California Supreme Court decided In re Marriage Cases, 183 P.3d 384 (2008). It found that legislation excluding same-sex couples from legal marriage breached (prima facie): (a) their fundamental right to marry, an aspect of the right of privacy; and (b) their right to equal protection based on sexual orientation, a ‘suspect classification’. It subjected the legislation to ‘strict scrutiny’ and found that it was not ‘necessary’ to further a ‘compelling constitutional interest’, even though same-sex couples could acquire nearly all the rights and obligations attached to marriage by California law through a “domestic partnership”.
On 10 October 2008 the Connecticut Supreme Court agreed with the California Court in Kerrigan v. Commissioner of Public Health, 957 A.2d 407 (2008).
On 3 April 2009 in Varnum v. Brien, 763 N.W.2d 862 (2009), the Iowa Supreme Court agreed with the decisions in Massachusetts, California and Connecticut:
“[C]ivil marriage with a person of the opposite sex is as unappealing to a gay or lesbian person as civil marriage with a person of the same sex is to a heterosexual. Thus, the right of a gay or lesbian person ... to enter into a civil marriage only with a person of the opposite sex is no right at all. ... State government can have no religious views, either directly or indirectly, expressed through its legislation. ... This ... is the essence of the separation of church and state. ... [C]ivil marriage must be judged under our constitutional standards of equal protection and not under religious doctrines or the religious views of individuals ... [O]ur constitutional principles ... require that the state recognize both opposite-sex and same-sex civil marriage.”
On 5 May 2011 Brazil’s Supremo Tribunal Federal (STF) interpreted Brazil’s Constitution as requiring that existing legal recognition of ‘stable unions’ (cohabitation outside marriage) include same-sex couples. On 25 October 2011 Brazil’s Superior Tribunal de Justiça (STJ) ruled in Recurso Especial no. 1.183.378/RS that, in the absence of an express prohibition (as opposed to authorisation) of same-sex marriage in Brazilian law, two women could convert their ‘stable union’ into a marriage under Article 1726 of the Civil Code (“A stable union can be converted into a marriage at the request of the partners before a judge and following registration in the Civil Registry”). On 14 May 2013, relying on the decisions of the STF and the STJ, the Conselho Nacional de Justiça (CNJ, which regulates the judiciary but is not itself a court, Resoluçăo No. 175) ordered all public officials authorised to marry couples, or to convert ‘stable unions’ into marriages, to do so for same-sex couples. A constitutional challenge to the resolution of the CNJ by the Partido Social Cristăo has been pending in the STF since 7 June 2013: Açăo Direta de Inconstitucionalidade (ADI) 4966. It seems likely that the STF will endorse the reasoning of the STJ and the CNJ.
On 26 July 2011 Colombia’s Constitutional Court “exhorted” Colombia’s Congress to legislate to provide same-sex couples with the same rights as married different-sex couples. Congress refused to do so, triggering the Court’s default remedy from 20 June 2013: same-sex couples have the right to appear before a notary or judge to “formalise and solemnise their contractual link”.
On 5 December 2012 Mexico’s Supreme Court decided that three same‑sex couples in the state of Oaxaca had the right under the federal constitution to marry.
On 19 December 2013 in Griego v. Oliver, 316 P.3d 865 (2013), the New Mexico Supreme Court became the fifth state supreme court to require equal access to marriage for same-sex couples:
“We conclude that the purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property. Prohibiting same-gender marriages is not substantially related to the governmental interests advanced ... or to the purposes we have identified. Therefore, barring individuals from marrying and depriving them of the rights, protections, and responsibilities of civil marriage solely because of their sexual orientation violates the Equal Protection Clause ... of the New Mexico Constitution. ... [T]he State of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections, and responsibilities that derive from civil marriage under New Mexico law.”
136. As regards national supreme courts in Europe, although no court has yet interpreted its national constitution as prohibiting the exclusion of same-sex couples from legal marriage, or requiring alternative means of legal recognition, on 9 July 2009 two of the five judges of Portugal’s Tribunal Constitucional dissented from the majority’s decision to uphold the exclusion. On 2 July 2009, Slovenia’s Constitutional Court held in (U-I-425/06-10) that same-sex registered partners must be granted the same inheritance rights as different-sex spouses. On 7 July 2009, Germany’s Federal Constitutional Court held (1 BvR 1164/07) that same-sex registered partners and different-sex spouses must be granted the same survivor’s pensions. And, since 22 September 2011, Austria’s Constitutional Court has issued five decisions finding that (same-sex) registered partners must have the same rights as (different-sex) married couples.
137. Those intervening