European Court of Human Rights: Italy should introduce possibility of legal recognition for same-sex couples

With its judgment issued on July 21, 2015 in the case of Oliari and Others, the European Court of Human Rights (ECtHR) found that Italy had violated Article 8 (right to respect for private and family life) on the grounds that under Italian legislation homosexual couples do not have the possibility to get married or enter into any other type of civil union.

In particular, the applicants in the present case, three Italian same-sex couples, complained that the legal protection currently available in Italy to homosexual couples not only failed to provide for the core needs relevant to a couple in a stable committed relationship, but it was also not sufficiently reliable. They also claimed that they had been discriminated on the basis of their sexual orientation (Article 14 ECHR) and that their right to marry had been violated (Article 12 ECHR).

In its previous case-law, the ECtHR had already found that the relationship of a cohabitating same-sex couple living in a stable de facto partnership fell within the notion of “family life” within the meaning of Article 8 and that same-sex couples are in need of legal recognition and protection of their relationship. In the present case, the Court observed that there was a conflict between the social reality of the applicants, who for the most part lived their relationship openly in Italy, and the law, which gave them no official recognition.

Considering that there was a trend among Council of Europe member States towards legal recognition of same-sex couples (24 out of the 47 member States having legislated in favour of such recognition) and that the same Italian Constitutional Court had repeatedly pointed out the need for legislation to recognise and protect same-sex relationships, the Court found that Italy had failed to fulfil its obligation to ensure that the applicants had available a specific legal framework providing for the recognition and protection of their union. In the absence of marriage, the option of a civil union or registered partnership would be the most appropriate way for same-sex couples like the applicants to have their relationship legally recognized.