1. Summary of the key facts:In this courtcase three homosexual couples complain that theItalian state, where they live, does notallow them to marry. The reason therefore is that in the State of Italy,according to the Civil Code and confirmed by the Court of Cassation, onlypersons of an opposite sex can marry.
The couples’ argument is that the Italian State violatesarticles 8 and 14 of The European Charter of the Fundamental Rights of theEuropean Union. According to those articles everyone has the right torespect for his private life, his home and correspondence (art. 8) , and theremay be no discrimination on any ground such as sex, race, colour, language, religion,political or other opinion, national or social origin. (art.
14) The fact that the Italian State prohibits them to marry, thecouples see as a discrimination, because opposite-sex couples are allowed tomarry according to the Italian law. 2. Applicant’s complained and the human rights involved:The argument of the couples is that they are discriminatedby the Italian State upon there sexual preference: For two persons of the samesex that live, in Italy there is no possibility to marry or to have anothertype of legal construction that gives them the same rights and protection asthere is for persons of the opposite sex. The applicants point out that the civil rights in articles8, 12 and 14 of the convention are violated by the Italian State.
Article 12 is the right to marry. Article 8 forms the basis-article, that prescribes thatevery person has the right to his own private life and that everyone, includinggovernments, has to respect that right. Article 14 containsthe principle of equality between all persons, and has to be read together witharticle 8. Preliminary objections:The Italian State has four objections to the complaint ofthe applicants: 1) Rule 47: The Italian State (Government) referedto arcticle 47 of the Rules of the Court, to conclude that the complaint of theapplicants can not be examened by the Court because article 47 has to be readin a stricter way.
The Court concludes that:° The Government does not indicate in whatway the applicants fail with their complaint, according to the requirements ofart. 47.° The obligation for a more strictinterpretation of article 47 started on 1 January 2014, and the complaint ofthe applicants dates already from 2011, so the Court concludes that there is noreason to say that the couples have notfulfilled the obligations of article 47. 2) Victim Status: The applicants have to point outthat they suffered actual damage.
According to the Court there are specificcircumstances, and they have legitimate personal interest because of theabsence of any legal frameworks of same-sex couples. 3) Exhaustion of domestic remedies:The Goverment’s main argument wasthat the applicants failed to exhaust all domestic remedies (Court of appeal –Court of Cassation) before they applied to the European Court.The Court decided that at the time thecouples followed procedure in Italy, there excisted already consolidatedjurisprudence of the highest court in that country , so the couples thenalready knew that their claims had little or totaly no prospect of success. 4) The six months term:The Government argues that the twocomplaints of the couples are too late, because the term of 6 months after thenational court verdict was expired on the moment the applications were lodgedto the Court.One of the couples answered that thenational violation of the articles 8, 12 and 14 had not stopped but were continuing, as long as same-sex-marriages orsimilar protective structures were not recognised by the Italian State.
The Court followed this argument beacausethe violation of the above mentionedarticles by the Italian State were no specific actions on a specific moment,but were continuous , because these rights of these people In Italy were deniedevery day. The court decides that we can speak of a daily denial of thoserights so the complaints of the couples does nog disrespect the term of 6months. Key legal arguments and reasoning applied by the Court:The object of article 8 is to protect against arbitraryinterference by public authorities. Same-Sex couples are in need of legalrecognition and protection on a similar basis as opposite-sex couples. In theState of Italy the applicants have been unable to have access to a specificlegal framework (for example a marriage) to give the neccassery protection fortheir family-rights as those excist for married couples. The cohabitationagreements that exist in Italy are not to be seen as to give fully recognitionand protection.The Italian law gives the applicants as same-sex couples noofficially recognition.
The arguments of the Italian State are insufficiant. TheCourt pointed out that the Italian State , despite from some attemps over thepast 3 decades, has been unable to enact the relevant legislation, so the Courtconcludes there is indeed a violation of article 8. Therefor the Court condamns the Italian government to makepayments to the applicants of € 9.
000,00 and € 15.000,00. Agreeing with the Court’s decision? Why(not)? I agree with the Court’s decision. In Italy there is adiscrimination between same-sex couples and opposite-sex couples.
Indeed the Italian rules are old, and at the moment theselaws were voted, the society only knew opposite-sex couples. Same-sex coupleswere the exception at that time and there was no common sense to make specialrules for these people. The past decennia the society , also the Italian one, hasevolved. No there is a wide acceptance for this form of living together. Manycountries have already changed their legislation to give same-sex couples equalrights as opposite-sex couples, and to permit them to marry, with al the rightsinvolved.
Is seems that the Italian government did not follow thissocial evolution, so same-sex couples still don’t have equal rights. According to my opinion it is not neccasary to admitsame-sex couples to the institution of marriage, but it is important that theyhave, when living together, the same rights and protection as a married couple.