Italy was the last Western European country that banned same sex marriages. This case has its origins in three others, similar processes in which same-sex couples want to connect to commit their relationship and live happily ever after. Sadly, those requests were denied and rejected by the State repeatedly and thus was giving notice of appeal or being put in the right quite impossible.
The applicants’ opinions that the Italian legislation discriminating them on their sexual orientation was not done, concerning the articles 8, 12 and 14 of the convention which contains the right to respect for the private and family life, the right to marry and the prohibition of discrimination. No permission to get married or any other form which shows commitment or confirmation was not allowed, which means a clear violation of human rights.
First, according to rule 47, the Government alleged that the rules should be more strictly complied and that the non-compliance could result in not examining the argument. The applicants responded that the rule, which was adopted in 2013, was not compatible with the applications adopted in 2011, based on the principle ‘Tempus Regit Actum’, meaning that the time determines the act. The court concluded that the more stringent conditions became effective on 1 January 2014, and that the objection of the Government thereby was fired as the applications were submitted in 2011.
Another argument that the Government cited was that the applicants had not clearly stated how they have suffered any damage, including the fact that the Court can only rule on more specific conditions within their scope. The court considers that because of the absence of any legal framework in the Italian Constitution, the requests of the applicants contained a personal, legal interest and thereby were involved in the situation. Indeed, “the Court held that the applicants could be regarded as a ‘victim’ of the alleged violations under article 34.”
In addition, the issue of the exhaustion of domestic remedies came up, in which the Government invoked the principle of subsidiarity by referring to a judgement of the court of Cassation. If the applicants would have brought their case to justice, then they got at least a recognition. The applications also happened before the domestic courts were doubted about the impossibility to obtain sex marriages, not about the impossibility to recognise alternative forms. In contradiction, the applicants threw that they had no other option than to let it rest as article 2 of the Constitution would explain their request immediately inadmissible. They also brought up that the Government did not prove that these Courts could give recognition, whereby appeals against the judgements would have no chance to success.
The court concluded that, on the one hand, the existence of doubts about chances to find some solutions offered no valid reason not to exhaust domestic resources. But on the other hand, the Government has no example given of such a recognition and therefore was no provement that the date of application would be potential for success. The court mentions in other words that there are special circumstances which dismissed the applicants from their duty to exhaust those domestic remedies. The other argument the Government cited turned out to be dismissed since the national courts also concluded that it was the task of the legislature to take action.
A final argument that the Government tried to get his right was the fact that the applications were too late submitted, precisely one year after the judgements of the Court of Appeal of Trent and the Court of Milan. The applicants clearly noticed that the applications satisfy the desired period mentioned in the convention. They also claimed that the judgement of the Court of Milan had a continuing character if it was not recognised.
First, the Court examined the dates of introduction of the applications, which established that both requests were filed at time and decided that these dates are irrelevant to determine the date of the application, so the Government was wrong.
The second point contained determining whether the applications satisfied the six-months period. The Court concluded that the conditions were regarded as continuous as no domestic, clear remedy existed and the state of affairs never has ceased to exist because one has received no recognition. Therefore, one cannot conclude that the claims were filed out at time and thus the last argument of the Government fell.
Some important points are listed on which the Court relied in his final conclusion. The court should determine in its final decision if Italy has failed in fulfilling its positive obligation to provide gay couples recognition and protection of their relationship.
First, the Court noticed that the applicants are in an unfavourable position as they had no access to a judge. The so-called ‘local registers for civil unions (mentioned in art. 168 of the judgement) ‘offered a symbolic value to the applicant, yet the system could not give them recognition or rights. Also, the ‘cohabitation agreements (mentioned in article 169 and further) failed to fulfil the aim of the applicants, since they could not create basic needs, only private agreements. One cannot assume that such a contract is the living proof of a stable and established relationship and the need for protection.
To strengthen their arguments, the applicants could bring up several recurring problems with the national courts, since the recognition of certain rights were insured but other elements neglected.
the Court also stressed that the right to go to the court to claim an equal treatment contains no barrier to get respect for their situation. It follows, therefore, that the current protection if flawed not only in its content but also in its stability.
Subsequent, the court also decided that the Italian Government has failed to expressly mention the interests of the community. Since the width of the margin knows many factors, they are not relevant to this case. This involves only the need for legal recognition and the protection of those couples.
Also, the Italian law did not attach importance to the interests of the community, since it consists of the opinions of the population and the highest legal bodies that support this need, given the several decisions and statements leaving it to the legislature to take action.
The Italian legislation failed to set up any relevant legislation, according to the situation. The legislation has knowingly or unknowingly unheard repeated calls from the highest courts and thereby made a heavy mistake.
From the reasons above, the Court concludes that the Italian Government has coloured outside its lines on the margin of appreciation and also has failed in fulfilling their obligation to provide protection and recognition, which means a violation of article 8.
The applicants also invoked the violation of article 12, whether in combination with article 14. Despite the argument that more and more countries recognize same sex marriages or other options, article 12, whether read in conjunction did not provide an obligation to the responded State to create a regulation. The argument must be rejected in accordance with article 35 §3 of the Convention.
The claim for compensation was on the one hand declared unproven, but on the other hand the applicants received a compensation, including the costs during the procedure. The Court also decided the State concerned to submit an implementation dependent on the measures for the rights of the applicants and others who are in the same situation.