Matteo De Longis

Oliari ed altri c. Italia, n. 36030/11, sentenza del 21.07.2015: il testo integrale

Con la sentenza intestata, la Corte Europea dei Diritti dell’Uomo ha condannato lo Stato italiano per violazione dell’art. 8 CEDU, stante la mancata implementazione di una legislazione, efficace ed effettiva, a tutela delle coppie same-sex.

In particolare, la Corte di Strasburgo ha censurato l’assordante silenzio del Parlamento Italiano che, di fatto, si è rifiutato di dare concreta attuazione ai molteplici moniti provenienti dalla Corte Costituzionale – cfr. ex plurimis, C.Cost. n. 138/2010.

Si riporta di seguito la parte motiva della sentenza in oggetto, rinviando in calce al presente articolo per il testo integrale della sentenza.

165.  The Court reiterates that it has already held that same-sex couples are just as capable as different-sex couples of entering into stable, committed relationships, and that they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship (see Schalk and Kopf, § 99, and Vallianatos, §§ 78 and 81, both cited above). It follows that the Court has already acknowledged that same-sex couples are in need of legal recognition and protection of their relationship.

166.  That same need, as well as the will to provide for it, has been expressed by the Parliamentary Assembly of the Council of Europe, which recommended that the Committee of Ministers call upon member States, among other things, “to adopt legislation making provision for registered partnerships” as long as fifteen years ago, and more recently by the Committee of Ministers (in its RecommendationCM/Rec(2010)5) which invited member States, where national legislation did not recognise nor confer rights or obligations on registered same-sex partnerships, to consider the possibility of providing same-sex couples with legal or other means to address the practical problems related to the social reality in which they live (see paragraphs 57 and 59 above).

167.  The Court notes that the applicants in the present case, who are unable to marry, have been unable to have access to a specific legal framework (such as that for civil unions or registered partnerships) capable of providing them with the recognition of their status and guaranteeing to them certain rights relevant to a couple in a stable and committed relationship.

168.  The Court takes note of the applicants’ situation within the Italian domestic system. As regards registration of the applicants’ same-sex unions with the “local registers for civil unions”, the Court notes that where this is possible (that is in less than 2% of existing municipalities) this action has merely symbolic value and is relevant for statistical purposes; it does not confer on the applicants any official civil status, and it by no means confers any rights on same-sex couples. It is even devoid of any probative value (of a stable union) before the domestic courts (see paragraph 115 above).

169.  The applicants’ current status in the domestic legal context can only be considered a “de facto” union, which may be regulated by certain private contractual agreements of limited scope. As regards the mentioned cohabitation agreements, the Court notes that while providing for some domestic arrangements in relation to cohabitation (see paragraphs 41 and 129 above) such private agreements fail to provide for some basic needs which are fundamental to the regulation of a relationship between a couple in a stable and committed relationship, such as, inter alia, the mutual rights and obligations they have towards each other, including moral and material support, maintenance obligations and inheritance rights (compare Vallianatos, § 81 in fine, and Schalk and Kopf, § 109, both cited above). The fact that the aim of such contracts is not that of the recognition and protection of the couple is evident from the fact that they are open to anyone cohabiting, irrespective of whether they are a couple in a committed stable relationship (see paragraph 41 above). Furthermore, such a contract requires the persons to be cohabiting; however, the Court has already accepted that the existence of a stable union is independent of cohabitation (seeVallianatos, §§ 49 and 73). Indeed, in the globalised world of today various couples, married or in a registered partnership, experience periods during which they conduct their relationship at long distance, needing to maintain residence in different countries, for professional or other reasons. The Court considers that that fact in itself has no bearing on the existence of a stable committed relationship and the need for it to be protected. It follows that, quite apart from the fact that cohabitation agreements were not even available to the applicants before December 2013, such agreements cannot be considered as giving recognition and the requisite protection to the applicants’ unions.

170.  Further, it has not been proved that the domestic courts could issue a statement of formal recognition, nor has the Government explained what would have been the implications of such a statement (see paragraph 82 above). While the national courts have repeatedly upheld the need to ensure protection for same sex-unions and to avoid discriminatory treatment, currently, in order to receive such protection the applicants, as with others in their position, must raise a number of recurring issues with the domestic courts and possibly even the Constitutional Court (see paragraph 16 above), to which the applicants have no direct access (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009). From the case-law brought to the Court’s attention, it transpires that while recognition of certain rights has been rigorously upheld, other matters in connection with same-sex unions remain uncertain, given that, as reiterated by the Government, the courts make findings on a case-by-case basis. The Government also admitted that protection of same-sex unions received more acceptance in certain branches than in others (see paragraph 131 above). In this connection it is also noted that the Government persistently exercise their right to object to such claims (see, for example, the appeal against the decision of the Tribunal of Grosseto) and thus they show little support for the findings on which they are hereby relying.

171.  As indicated by the ARCD the law provides explicitly for the recognition of a same-sex partner in very limited circumstances (see paragraph 146 above). It follows that even the most regular of “needs” arising in the context of a same-sex couple must be determined judicially, in the uncertain circumstances mentioned above. In the Court’s view, the necessity to refer repeatedly to the domestic courts to call for equal treatment in respect of each one of the plurality of aspects which concern the rights and duties between a couple, especially in an overburdened justice system such as the one in Italy, already amounts to a not-insignificant hindrance to the applicants’ efforts to obtain respect for their private and family life. This is further aggravated by a state of uncertainty.

172.  It follows from the above that the current available protection is not only lacking in content, in so far as it fails to provide for the core needs relevant to a couple in a stable committed relationship, but is also not sufficiently stable – it is dependent on cohabitation, as well as the judicial (or sometimes administrative) attitude in the context of a country that is not bound by a system of judicial precedent (see Torri and Others v. Italy, (dec.), nos. 11838/07 and 12302/07, § 42, 24 January 2012). In this connection the Court reiterates that coherence of administrative and legal practices within the domestic system must be regarded as an important factor in the assessment carried out under Article 8 (see paragraph 161 above).

173.  In connection with the general principles mentioned in paragraph 161 above, the Court observes that, it also follows from the above examination of the domestic context that there exists 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. In the Court’s view 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. Moreover, such legislation would serve an important social need – as observed by the ARCD, official national statistics show that there are around one million homosexuals (or bisexuals), in central Italy alone.

174.  In view of the above considerations, the Court considers that in the absence of marriage, same-sex couples like the applicants have a particular interest in obtaining the option of entering into a form of civil union or registered partnership, since this would be the most appropriate way in which they could have their relationship legally recognised and which would guarantee them the relevant protection – in the form of core rights relevant to a couple in a stable and committed relationship – without unnecessary hindrance. Further, the Court has already held that such civil partnerships have an intrinsic value for persons in the applicants’ position, irrespective of the legal effects, however narrow or extensive, that they would produce (see Vallianatos, cited above, § 81). This recognition would further bring a sense of legitimacy to same-sex couples.

175.  The Court reiterates that in assessing a State’s positive obligations regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole. Having identified above the individuals’ interests at play, the Court must proceed to weigh them against the community interests.

176.  Nevertheless, in this connection the Court notes that the Italian Government have failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole. They however considered that “time was necessarily required to achieve a gradual maturation of a common view of the national community on the recognition of this new form of family”. They also referred to “the different sensitivities on such a delicate and deeply felt social issue” and the search for a “unanimous consent of different currents of thought and feeling, even of religious inspiration, present in society”. At the same time, they categorically denied that the absence of a specific legal framework providing for the recognition and protection of same-sex unions attempted to protect the traditional concept of family, or the morals of society. The Government instead relied on their margin of appreciation in the choice of times and the modes of a specific legal framework, considering that they were better placed to assess the feelings of their community.

177.  As regards the breadth of the margin of appreciation, the Court notes that this is dependent on various factors. While the Court can accept that the subject matter of the present case may be linked to sensitive moral or ethical issues which allow for a wider margin of appreciation in the absence of consensus among member States, it notes that the instant case is not concerned with certain specific “supplementary” (as opposed to core) rights which may or may not arise from such a union and which may be subject to fierce controversy in the light of their sensitive dimension. In this connection the Court has already held that States enjoy a certain margin of appreciation as regards the exact status conferred by alternative means of recognition and the rights and obligations conferred by such a union or registered partnership (see Schalk and Kopf, cited above, §§ 108-09). Indeed, the instant case concerns solely the general need for legal recognition and the core protection of the applicants as same-sex couples. The Court considers the latter to be facets of an individual’s existence and identity to which the relevant margin should apply.

178.  In addition to the above, of relevance to the Court’s consideration is also the movement towards legal recognition of same-sex couples which has continued to develop rapidly in Europe since the Court’s judgment in Schalk and Kopf. To date a thin majority of CoE States (twenty-four out of fortyseven, see paragraph 55 above) have already legislated in favour of such recognition and the relevant protection. The same rapid development can be identified globally, with particular reference to countries in the Americas and Australasia (see paragraphs 65 and 135 above). The information available thus goes to show the continuing international movement towards legal recognition, to which the Court cannot but attach some importance (see, mutatis mutandis, Christine Goodwin, § 85, and Vallianatos, § 91, both cited above).

179.  Turning back to the situation in Italy, the Court observes 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 the indications set out by the national community, including the general Italian population and the highest judicial authorities in Italy.

180.  The Court notes that in Italy the need to recognise and protect such relationships has been given a high profile by the highest judicial authorities, including the Constitutional Court and the Court of Cassation. Reference is made particularly to the judgment of the Constitutional Court no. 138/10 in the first two applicants’ case, the findings of which were reiterated in a series of subsequent judgments in the following years (see some examples at paragraph 45 above). In such cases, the Constitutional Court, notably and repeatedly called for a juridical recognition of the relevant rights and duties of homosexual unions (see, inter alia, paragraph 16 above), a measure which could only be put in place by Parliament.

181.  The Court observes that such an expression reflects the sentiments of a majority of the Italian population, as shown through official surveys (see paragraph 144 above). The statistics submitted indicate that there is amongst the Italian population a popular acceptance of homosexual couples, as well as popular support for their recognition and protection.

182.  Indeed, in their observations before this Court, the same Italian Government have not denied the need for such protection, claiming that it was not limited to recognition (see paragraph 128 above), which moreover they admitted was growing in popularity amongst the Italian community (see paragraph 130 above).

183.  Nevertheless, despite some attempts over three decades (see paragraphs 126 and 46-47 above) the Italian legislature has been unable to enact the relevant legislation.

184.  In this connection the Court recalls that, although in a different context, it has previously held that “a deliberate attempt to prevent the implementation of a final and enforceable judgment and which is, in addition, tolerated, if not tacitly approved, by the executive and legislative branch of the State, cannot be explained in terms of any legitimate public interest or the interests of the community as a whole. On the contrary, it is capable of undermining the credibility and authority of the judiciary and of jeopardising its effectiveness, factors which are of the utmost importance from the point of view of the fundamental principles underlying the Convention (see Broniowski v. Poland [GC], no. 31443/96, § 175, ECHR 2004V). While the Court is aware of the important legal and factual differences between Broniowski and the present case, it nevertheless considers that in the instant case, the legislature, be it willingly or for failure to have the necessary determination, left unheeded the repetitive calls by the highest courts in Italy. Indeed the President of the Constitutional Court himself in the annual report of the court regretted the lack of reaction on behalf of the legislator to the Constitutional Court’s pronouncement in the case of the first two applicants (see paragraph 43 above). The Court considers that this repetitive failure of legislators to take account of Constitutional Court pronouncements or the recommendations therein relating to consistency with the Constitution over a significant period of time, potentially undermines the responsibilities of the judiciary and in the present case left the concerned individuals in a situation of legal uncertainty which has to be taken into account.

185.  In conclusion, in the absence of a prevailing community interest being put forward by the Italian Government, against which to balance the applicants’ momentous interests as identified above, 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.

186.  To find otherwise today, the Court 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.

187.  There has accordingly been a violation of Article 8 of the Convention.



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