Tuesday, 21 July 2015

Ground-breaking judgment of the European Court of Human Rights in Oliari and Others v Italy: same-sex couples in Italy must have access to civil unions/registered partnerships

The Fourth Section of the European Court of Human Rights has today (21 July 2015) issued its judgment in Oliari and Others v Italy. The applicants are three male same-sex couples - six men who were born between 1959 and 1976 and live in Italy - who complained that under Italian legislation they did not have the possibility to get married or enter into any other type of civil union and that, consequently, they were being discriminated against on the grounds of their sexual orientation.

In its judgment the Court has, for the first time, found that the inability of same-sex couples to gain some form of legal recognition of their relationships other than marriage, in a country which only offers marriage to different-sex couples, amounts to a violation of the European Convention on Human Rights. As a consequence, the Italian legislature will be required to provide same-sex couples with access to some form of civil union or registered partnership. Simultaneously, the Court rejected the applicants' complaint that their inability to marry was a violation of the Convention.


The judgment is a significant development in the Court's case law. It goes beyond the judgment in Vallianatos and Others v Greece, in which the Grand Chamber of the Court found that making 'civil unions' available to different-sex couples but not to same-sex couples amounted to a violation of the Convention. It sets the strong precedent that Council of Europe states that fail to provide same-sex couples with some form of legal recognition (other than marriage) may be in violation of positive obligations under Article 8 of the Convention.

The judgment will require careful scrutiny, but on first reading a number of points seem initially very interesting:

Article 8 alone

One of the most striking features of the judgment is that the Court chose not to engage with the applicants' complaints that the inability of same-sex couples to gain legal recognition for their relationships in Italy constituted a form of discrimination on the ground of sexual orientation. All three couples had made this complaint, invoking Article 14 in conjunction with Article 8. Four of the applicants explicitly addressed discrimination in their submission and argued, for example, that 'lack of recognition of same-sex couples in a given state corresponded to a lower degree of social acceptance of homosexuality' and that, if the Court simply deferred to the choices to the national authorities, it 'would fail to take account of the fact that certain national choices were in fact based on prevailing discriminatory attitudes against homosexuals' (§ 113).

Yet, despite all of the applicants relying on Article 14, the Court decided to examine the merits of the complaint under Article 8 alone. Only one of the three couples had invoked Article 8 alone, but the Court, relying on the established principle that it is the 'master of the characterisation to be given in law to the facts of the case', stated that the complaints of the other two couples also fell to be examined under Article 8 alone (§ 99-100).

The Court went on to find a violation of Article 8 alone and reasoned this in the following terms: 

The Court observed that there is 
'a conflict between the social reality of the applicants, who for the most part live their relationship openly in Italy, and the law, which gives them no official recognition on the territory' (§ 173). 
The Court then stated that 
'an obligation to provide for the recognition and protection of same-sex unions, and thus to allow for the law to reflect the realities of the applicants’ situations, would not amount to any particular burden on the Italian State be it legislative, administrative or other' (§ 173). 
The Court reiterated that in assessing a State’s positive obligations under Article 8 it must have regard to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. In this respect, when weighing the interests of the applicants against the community interests the Court noted that the Italian Government had failed to explicitly highlight the interests of the community as a whole. The Government had instead relied on its margin of appreciation to determine what action it took. In this respect, the Court observed that while the Government is usually better placed to assess community interests, in the present case the Italian legislature seems not to have attached particular importance to certain developments in both the Italian population and the highest judicial authorities in Italy. In this respect, the Court noted both the sentiments of a majority of the Italian population, as shown through official surveys, which indicate a popular acceptance of homosexual couples as well as popular support for their recognition and protection (see § 144). In addition, it noted that the need to recognise and protect such relationships had been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation (see § 45). In light of this, the Court held:
'[I]n the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests [...], and in the light of domestic courts’ conclusions on the matter which remained unheeded, the Court finds that the Italian Government have overstepped their margin of appreciation and failed to fulfil their positive obligation to ensure that the applicants have available a specific legal framework providing for the recognition and protection of their same-sex unions' (§ 185).
The point about the failure of the Italian legislator to heed the conclusions of the domestic courts, as well as the point made about social attitudes about homosexuality, are very important and mean that the 'positive obligation' established by the judgment cannot simply be applied to other states, such as the Russian Federation. The Court emphasised that '[t]o find otherwise today, [it] would have to be unwilling to take note of the changing conditions in Italy and be reluctant to apply the Convention in a way which is practical and effective' (§ 186). It is, therefore, the 'changing conditions in Italy' which are decisive to the Court's judgment. Indeed, in their concurring opinion, judges Mahoney, Tsotsoria, Vehabović were careful to point out that this 'new' positive obligation existed 'on the basis of a combination of reasons not necessarily found in all the Contracting States' (§ 10). Mahoney, Tsotsoria, Vehabović would have preferred to have found a 'negative' violation of Article 8 based on a 'classic' analysis of whether the Italian state, in interfering with Article 8(1), had any justification under Article 8(2).

The good news for same-sex couples in Italy, therefore, is that in order to fulfil its obligations under the Convention, the Italian legislature will need to make available 'a specific legal framework providing for the recognition and protection of [...] same-sex unions'. 

Why no Article 14?

The Court stated that '[h]aving regard to its finding under Article 8 [...], [it] considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 14 in conjunction with Article 8' (§ 188). 

As I stated above, all of the applicants had invoked Article 14 in conjunction with Article 8 and the issue of discrimination was clearly addressed by Professor Robert Wintemute in his extensive submission on behalf of a number of Third-Party Interveners (§ 140-143).

However, because the Court examined the merits of the complaints under Article 8 alone it did not deal with the issue of the alleged discrimination. As such, the judgment does not explicitly address the claim that the difference in treatment complained of was based solely on the applicants' sexual orientation. By failing to consider this claim under Article 14, the Court does not establish whether the treatment of the applicants amounts to discrimination in violation of the Convention.   

This seems a very odd approach, and one which is now largely out of step with the Court's jurisprudence relating to sexual orientation. In stating that an examination of Article 14 is not necessary, the Court returns to its approach prior to 1999, when it would not consider nor find a violation of Article 14 in respect of a complaint relating to sexual orientation even when it had found a violation of Article 8 of the Convention. 

One could speculate that the Court may have been reluctant to find a violation of Article 14 taken in conjunction with Article 8 because this may have more strongly established a precedent about 'discrimination' applicable to all Council of Europe states. 

At the very least, the failure of the Court to examine the Article 14 complaints means that it has not answered the question put to it by the anti-gay European Centre for Law and Justice that asked 'why homosexuality was more acceptable than polygamy' and 'child marriage' (§ 153). The Court could have responded that a difference in treatment based on sexual orientation amounted to a form of discrimination repugnant to Article 14 of the Convention, unlike the regulation of polygamy and marriage involving children.

Should this judgment be referred to the Grand Chamber, it will be very interesting to see whether the approach to Article 14 adopted by the Fourth Section is continued. 

Article 12

The Court's consideration of Article 12 is extremely significant. All of the applicants complained that their inability to marry was in violation of Article 12 of the Convention. One couple invoked Article 12 alone, and all couples invoked Article 14 in conjunction with Article 12. 

The Court declared these complaints inadmissible, finding them manifestly ill-founded and rejecting them in accordance with Article 35 §§ 3 and 4 of the Convention.

To find the Article 12 complaints manifestly ill-founded amounts, in my view, to a significant 'step backwards' for litigation on same-sex marriage in the Court. In Schalk and Kopf v Austria, in which the Court first considered a complaint about the inability of a same-sex couple to marry, it declared the Article 12 complaint admissible but found no violation. In Hämäläinen v Finland, the Grand Chamber of the Court found that there was no need to examine a complaint under Article 12 made by a transexual applicant who, according to Finnish law, was required to divorce her wife in order to gain full legal recognition of her acquired sex. 

In the present case, the Court has taken the regressive step of declaring the Article 12 complaints inadmissible. The Court's justification for doing so is ostensibly that there has been insufficient change across Council of Europe states for it to depart from its established jurisprudence. Despite the fact that the number of states permitting same-sex marriage has nearly doubled since the judgment in Schalk and Kopf, the Court felt that this 'gradual evolution' (§ 192) did not constitute the sufficient consensus necessary to impose an obligation on Italy to grant a same-sex couple like the applicants access to marriage.

Specifically in respect of the complaints under Article 14 in conjunction with Article 12, the Court makes a rather curious statement: 
'in Schalk and Kopf, the Court held that Article 14 taken in conjunction with Article 8, a provision of more general purpose and scope, cannot be interpreted as imposing such an obligation [on the respondent Government to grant a same-sex couple like the applicants access to marriage]. The Court considers that the same can be said of Article 14 in conjunction with Article 12' (§ 193).
I am not sure how the Court's reiteration of the view in Schalk and Kopf - that if Article 12 does not impose an obligation on Contracting States to provide same-sex couples with access to marriage then neither does 'a provision of more general purpose and scope' (Article 14 taken in conjunction with Article 8) - is relevant to dealing with a complaint under Article 12 when it is combined with Article 14. 

To my mind, the Court's admissibility decision in respect of Article 12 is further evidence that the 'right to marry' remains, practically and effectively, inapplicable to same-sex partners. Although there is much dispute about the 'applicability' of Article 12 to same-sex couples - I last wrote about this on the European Courts website - the decision to declare the complaint inadmissible should raise further concerns about the extent to which the Court considers Article 12 applicable to marriage between persons of the same sex. If Article 12 is applicable to same-sex couples, on what grounds could a complaint about a total legal prohibition of same-sex marriage be manifestly ill-founded? Although the Court reiterated the principle established in Schalk and Kopf that 'it would no longer consider that the right to marry must in all circumstances be limited to marriage between two persons of the opposite sex', it is clear that such 'circumstances' do not include a legal ban imposed on same-sex marriage by the state. My interpretation of the admissibility decision is that it is further evidence of the Court's entrenched (but politely expressed) view that Article 12 does not apply to same-sex couples and they should not trouble the Court with their complaints.

Conclusion

This is a ground-breaking judgment that advances the human rights and freedoms of same-sex couples in significant ways. It establishes that there is a positive obligation for Italy under Article 8 to provide same-sex couples with some form of legal recognition of their relationships. Although this positive obligation has been established in the context of the social and legal relations of Italy, it is clear that this may set an important precedent in respect of all other states. 

The failure to examine the Article 14 complaints (particularly in conjunction with Article 8) is perplexing and somewhat worrying. The applicants had clearly suffered a difference in treatment based solely on the grounds of their sexual orientation - given that this was the only reason they could not establish a legal relationship with the partner of their choice - and the Court should have found that this amounted to discrimination in violation of Article 14 taken in conjunction with Article 8.

The decision to declare the Article 12 complaints manifestly ill-founded sends a very strong message that the Court has no intention of changing its position that, for all practical and effective purposes, the right to marry does not extend to same-sex partners. 


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