Information Note on the Court’s case-law 213

December 2017

Orlandi and Others v. Italy - 26431/12, 26742/12, 44057/12 et al.

Judgment 14.12.2017 [Section I]

Article 8

Article 8-1

Respect for family life

Respect for private life

Refusal to register same-sex marriages contracted abroad: violation

Facts – The applicants, same-sex couples who had contracted marriages abroad, sought registration of their marriages in Italy. Registration was refused on the basis that the Italian legal order did not allow for marriage between same-sex couples. Following the 2015 judgment in the case of Oliari and Others v. Italy , the Italian legislator provided for civil unions in Ita ly. By subsequent decrees it was provided that couples who had contracted marriage, civil union or any other corresponding union abroad could register their union as a civil union in terms of Italian law. The latter legislation came into being in 2017 and most of the applicants had recently benefited from it.

Before the European Court the applicants complained under Articles 8, 12 and 14 about the authorities’ refusal to register their marriages contracted abroad.

Law – Article 8: States were still free, un der Article 12 as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples. The same held true for Article 14 taken in conjunction with Article 12. Nevertheless, same-sex couples were in need of legal recognition and protection of their relationship. Civil unions provided an opportunity to obtain a legal status equal or similar to marriage in many respects. In principle, such a system would prima facie suffice to satisfy Convention standards. The new Italian legislation providing for civil unions (and registration of marriages contracted abroad as civil unions), also appeared to give more or less the same protection as marriage with respect to the core needs of a couple in a stable and committed re lationship. At present it was open to the applicants to enter into a civil union, or have their marriage registered as a civil union. As such, the Court had to determine solely whether the refusals to register the applicants’ marriage in any form with the result that they were left in a legal vacuum and devoid of any protection, prior to the new legislation coming into force, had violated their rights under Article 8.

The core issue was whether a fair balance had been struck between the competing interests involved. The Government had not put forward a prevailing community interest against which to balance the applicants’ interests nor indicated any legitimate aim for the failure to register the marriages, save for a general phrase concerning “internal publi c order”. Unlike other provisions of the Convention, Article 8 did not enlist the notion of “public order” as one of the legitimate aims in the interests of which a State might interfere with an individual’s rights. However, bearing in mind that it was pri marily for the national legislation to lay down the rules regarding validity of marriages and to draw the legal consequences, the Court had previously accepted that national regulation of the registration of marriage might serve the legitimate aim of the p revention of disorder. Thus, the Court could accept for the purposes of the case that the impugned measures were taken for the prevention of disorder, in so far as the applicants’ position was not provided for in domestic law. The crux of the case at hand was precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognised under the law of a foreign state – recognis ed and protected in Italy under any form.

Legal recognition of same-sex couples had developed rapidly in Europe. The same rapid development had been identified globally, showing the continuing international movement towards legal recognition. To date, 27 countries out of the 47 Council of Europe m ember States had enacted legislation permitting same sex couples to have their relationship recognised. The same could not be said about registration of same-sex marriages contracted abroad in respect of which there was no consensus in Europe. Apart from t he member States of the Council of Europe where same-sex marriage was permitted, the comparative law information available to the Court (limited to 27 countries where same-sex marriage was not, at the time, permitted) showed that only 3 of those 27 other m ember States allowed such marriages to be registered, despite the absence (to date or at the relevant time) in their domestic law of same-sex marriage. Thus, that lack of consensus confirmed that the States had to in principle be afforded a wide margin of appreciation, regarding the decision as to whether to register, as marriages, such marriages contracted abroad.

As to the interests of the State and the community at large, in respect of the failure to register such marriages, to prevent disorder Italy mig ht wish to deter its nationals from having recourse in other States to particular institutions which were not accepted domestically (such as same-sex marriage) and which the State was not obliged to recognise from a Convention perspective. Indeed the refus als in the present case were the result of the legislator’s choice not to allow  same-sex marriage a choice not condemnable under the Convention. Thus, the Court considered that there was also a State’s legitimate interest in ensuring that its legislative prerogatives were respected and therefore that the choices of democratically elected governments did not go circumvented.

The refusal to register the applicants’ marriage did not deprive them of any rights previously recognised in Italy, and the applicants could still benefit, in the State where they contracted marriage, from any rights and obligations acquired through such marriage. However, the decisions refusing to register their marriage under any form, thus leaving the applicants in a legal vacuum (pri or to the new laws), failed to take account of the social reality of the situation. Indeed, as the law stood before the introduction of the new laws, the authorities could not formally acknowledge the legal existence of the applicants’ union. No prevailing community interests had been put forward to justify the situation where the applicants’ relationship was devoid of any recognition and protection.

The Italian State could not reasonably disregard the situation of the applicants which corresponded to a fam ily life within the meaning of Article 8 of the Convention, without offering them a means to safeguard their relationship. However, until recently, the national authorities had failed to recognise that situation or provide any form of protection to the app licants’ union, as a result of the legal vacuum which existed in Italian law. It followed that the State had failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific leg al framework providing for the recognition and protection of their same-sex unions.

Conclusion : violation (five votes to two).

In view of the finding under Article 8, it was not necessary to examine whether there has also been a violation of Article 14 in conjunction with Article 8 or 12.

Article 41: EUR 5,000 each in respect of non-pecuniary damage.

(See Oliari and Others v. Ital y , 18766/11 and 36030/11, 21 July 2015, Information Note 187 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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