DISSENTING OPINION OF JUDGES PEJCHAL AND WOJTYCZEK

1. We respectfully disagree with the view of our colleagues that there has been a violation of the Convention in the instant case. Our objections concern the methodology of treaty interpretation, the methodology for ascertaining whether Convention rights have been upheld and also the application of the relevant principles and rules of law in the instant case.

2. The Convention is an international treaty which must be expounded according to the rules of treaty interpretation established in international law and codified in the Vienna Convention on the Law of Treaties.

We note in this context that the Preamble to the Convention presents the Convention as one of the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration. The Preamble refers also to further realisation of rights as one of the methods for the achievement of greater unity between the member States of the Council of Europe. It follows that the role of the Convention is the protection of a limited number of rights, defined therein. Further realisation of human rights must serve the purpose of achieving greater unity between the members of the Council of Europe and is to be undertaken by way of international treaties.

The mandate of the European Court of Human Rights is defined in Article 19 of the Convention in the following terms: to ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto . While the Court must interpret and clarify the provisions of the Convention in the context of the new cases that are brought before it, it is not mandated to change the scope of the engagements undertaken by the High Contracting Parties and in particular to adapt the Convention to societal changes. The Court should be the servant, not the master, of the Convention.

Moreover, the Preamble to the Convention refers to two tools for the maintenance of fundamental freedoms: effective political democracy and a common understanding and observance of human rights. Effective political democracy requires the existence and functioning of legislatures elected according to the standards set forth in Article 3 of Protocol No 1. In this context, the task of adapting the Convention to the evolution of the societies in European States belongs to the High Contracting Parties, and necessarily presupposes the participation of democratically elected legislatures. In our view, even identical societal developments in all the States Parties to the Convention cannot alter the scope of their engagements under the Convention. This applies a fortiori to societal changes which occur in only some European States. Changes which occur in some States can never affect the scope of the other States ’ engagements.

3. The European Convention on Human Rights should not be read in a legal vacuum but placed in the context of the most important international human-rights instruments. The Preamble of the Convention refers to the Universal Declaration of Human Rights, which aims at securing the universal and effective recognition and observance of the Rights therein declared. The Universal Declaration of Human Rights sets out the following rights in Article 16:

“(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of the intending spouses.

(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

The minimum universally binding human rights standards have been set forth in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Article 23 of the International Covenant on Civil and Political Rights has the following wording:

“1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

In both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights marriage is understood as a union between a man and a woman. Moreover, in both instruments the family – based upon marriage between a man and a woman – was declared the natural and fundamental group unit of society and as being entitled to protection by society and the State . Marriage is the only “legal framework” for family life mentioned in those documents.

The Human Rights Committee has expressed the following view concerning the meaning of Article 23 of the Covenant:

“Given the existence of a specific provision in the Covenant on the right to marriage, any claim that this right has been violated must be considered in the light of this provision. Article 23, paragraph 2, of the Covenant is the only substantive provision in the Covenant which defines a right by using the term “men and women”, rather than “every human being”, “everyone” and “all persons”. Use of the term “men and women”, rather than the general terms used elsewhere in Part III of the Covenant, has been consistently and uniformly understood as indicating that the treaty obligation of States parties stemming from article 23, paragraph 2, of the Covenant is to recognize as marriage only the union between a man and a woman wishing to marry each other.” (Communication No. 902/1999, Ms. Juliet Joslin et al. v. New Zealand , CCPR/C/75/D/902/1999 , views adopted on 17 July 2002).

It follows that the two above-mentioned instruments differentiate the legal status of heterosexual and homosexual couples. There is no doubt that between heterosexual and homosexual couples there are certain similarities and certain differences. However, from the axiological perspective of the two international instruments, the differences prevail over the similarities. It follows that their situations are not comparable for the purpose of assessing the permissibility of legal differentiations in the field of family law.

4. Article 8 § 1 of the Convention states that “ everyone has the right to respect for his private and family life, his home a nd his correspondence ”. Under Article 12 of the Convention, “ men and women have the right to marry and to found a family, according to national laws governing the exercise of this right ”. It transpires from those provisions that the family unit is founded primarily by a man and a woman through marriage.

The right to respect for one ’ s private and family life, home and correspondence presupposes an obligation on the State to refrain from interfering with the freedom of the right-holder. Positive action is required from the State primarily to ensure protection from interference by private parties and to impose sanctions for undue interference by public authorities or by private parties.

Much broader positive obligations on the State stem from Article 12, which imposes the obligation to recognise marriage as social and legal institution. Moreover, Article 5 of Protocol No. 7 requires that family law ensures equality between spouses. This last provision emphasises not only the rights but also the responsibilities of the spouses. Contracting a marriage entails not only rights and protection but also responsibilities and duties vis-à-vis the other spouse, children and society. Moreover, the Court ’ s case-law stresses the obligation to protect the best interests of children. Legislation on family law should therefore protect the best interests of children and, especially, ensure a stable family environment, free from State interference.

Article 8 of the Convention, as interpreted according to the applicable rules of treaty interpretation, does not impose upon the High Contracting Parties an obligation to provide for other legal institutions (such as civil unions) for the development of family life. In particular, there is no obligation to ensure that persons have available specific legal frameworks providing for the recognition and protection of their unions , be they from different sexes or same-sex. This matter belongs to the exclusive domestic jurisdiction of the High Contracting Parties.

The reasoning of the majority refers to the need for protection and recognition (see paragraph 192 of the judgment). There is no doubt that the State authorities in the exercise of their sovereign powers must take into consideration social realities and societal changes as well as the legitimate needs of their citizens. However, needs do not entail per se Convention rights. It is not clear which legitimate needs should entail positive obligations under Article 8 of the Convention. Under the approach proposed by the majority it would be necessary to establish objective criteria for identifying the needs entailing positive obligations for the States.

We agree with the view that under Articles 8 and 12 the States enjoy a broad margin of appreciation. In our view, however, it is not correct to state that they have a broad margin of appreciation when setting up legal frameworks for recognition of interpersonal unions other than marriage (within the meaning of Article 12). In reality, they preserve their complete freedom of action in this respect, since the issue falls outside Convention regulation.

5. Article 12 has been interpreted in many judgments and decisions of the European Court of Human Rights. The Court has expressed, in particular, the following views in this respect:

“In the Court ’ s opinion, the right to marry guaranteed by Article 12 ... refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 ... is mainly concerned to protect marriage as the basis of the family” ( Rees v. the United Kingdom , 17 October 1986, § 49, Series A no. 106).

“The Court recalls that the right to marry guaranteed by Article 12 refers to the traditional marriage between persons of opposite biological sex. This appears also from the wording of the Article which makes it clear that Article 12 is mainly concerned to protect marriage as the basis of the family. Furthermore, Article 12 lays down that the exercise of this right shall be subject to the national laws of the Contracting States. The limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired. However, the legal impediment in the United Kingdom on the marriage of persons who are not of the opposite biological sex cannot be said to have an effect of this kind (see the above-mentioned Rees judgment, p. 19, §§ 49 and 50)” ( Sheffield and Horsham v. the United Kingdom , 30 July 1998, § 66, Reports of Judgments and Decisions 1998 ‑ V) ”

“... the Court observes that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another. The Court reiterates that it must not rush to substitute its own judgment in place of that of the national authorities, who are best placed to assess and respond to the needs of society (see B . and L. v. the United Kingdom , cited above, § 36).” ( Schalk and Kopf v. Austria , no. 30141/04, § 62, ECHR 2010). ”

“The Court has accepted that the protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Karner , cited above, § 40, and Kozak , cited above, § 98)”( X and Others v. Austria [GC], no. 19010/07 , § 138, ECHR 2013). ”

More recently :

“ The Court reiterates that Article 12 of the Convention is a lex specialis for the right to marry. It secures the fundamental right of a man and woman to marry and to found a family. Article 12 expressly provides for regulation of marriage by national law. It enshrines the traditional concept of marriage as being between a man and a woman (see Rees v. the United Kingdom, cited above, § 49). While it is true that some Contracting States have extended marriage to same-sex partners, Article 12 cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples (see Schalk and Kopf v. Austria, cited above, § 63)” ( Hämäläinen v. Finland [GC], no. 37359/09, § 96, ECHR 2014). ”

We agree with those views, which have their basis in the Convention as expounded under the applicable rules of treaty interpretation. They are in harmony with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. We note furthermore that the Preamble to the Convention contains a reference to a common understanding of human rights and to a common heritage of political traditions, ideals, freedom and the rule of law . The understanding of marriage as a stable union of a man and a woman underlying family life is part of the common legal heritage.

6. In a number of cases the Court has also addressed the issue of the possible “extension” of marriage. In the instant case the majority expresses the following view in this respect: “The Court reiterates that States are still free, under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8, to restrict access to marriage to different-sex couples (see Schalk and Kopf , cited above, § 108, and Chapin and Charpentier , cited above, § 108)” (see paragraph 192 of the principal judgment).

In this context we note firstly that that the terms “to marry” and “marriage” have become polysemes. Marriage in its initial meaning presupposes the community of lives between a man and a woman. We note in this context the following definitions of marriage: “ Nuptiae sunt coniunctio maris et feminae et consortium omnis vitae, divini et humani iuriscommunicatio ” (Modestinus, Digesta Iustiniani 23.2.1); “ Nuptiae autem sive matrimonium est viri et mulieris coniunctio, individuam consuetudinem vitae continens ” ( Institutiones Iustiniani , 1.10). The complementariness of the biological sexes of the two spouses is a constitutive element of marriage. Moreover, marriage in this meaning is - by definition - a social institution open to procreation. The fact that certain married couples may suffer from infertility does not affect its social function.

Marriage in its second meaning designates a union of two persons living together. The term “marriage” in this second sense has a different connotation and a different denotation to the term “marriage” as used in the first meaning. This second meaning has developed only recently.

Granting access to marriage within the meaning of Article 12 to same-sex couples is conceptually impossible. “Extending” the scope of the right to marry to homosexual couples presupposes that the term “marriage” is used in a different meaning (that is, the second meaning explained above). Thus, Article 12 cannot be applicable to same-sex couples wishing to marry or to same-sex couples who are already married under the domestic system of another State (see paragraph 145 in fine ). The “extension” of the scope of marriage to homosexual couples not only affects the denotation but also substantially changes the connotation of the term “marriage”.

Secondly, the majority states that “States are still free...” ( emphasis added). This suggests the Court intends to revise this view in the future. We strongly disagree with such an approach, which presupposes that the scope of treaty obligations may be adapted by the Court on the basis of societal changes and - what is more - that those societal changes can and will develop in only one direction. The Court has no mandate to favour or inhibit societal changes. The States remain free to decide on different issues under the Convention until such time as this treaty has been modified by the masters of the treaty.

7. The majority notes a rapid development towards legal “recognition” of same-sex couples (see paragraph 204 of the judgment) as well as the lack of consensus regarding the registration of same-sex marriages contracted abroad (see paragraph 205 of the judgment) . We note that marriage is constitutionally defined as a union between a man and a woman in a growing number of European States: Bulgaria, Croatia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Montenegro, Poland, Serbia, Slovakia and Ukraine.

8. The majority considers that the facts of the present application fall within the notion of private life as well as family life within the meaning of Article 8 (see paragraph 143 of the judgment) and draws the conclusion that these Articles apply in the present case. In our view this assertion is based upon a fundamental methodological error.

That certain facts of a case fall within the meaning of private or family life does not in itself mean that Articles 8 or 12 are applicable. A Convention provision protecting a human right is applicable in certain circumstances if it offers at least a prima facie protection against the alleged interference with this right. What matters here are not the factual circumstances presented by an applicant, but the grievances raised in the application. This may be illustrated by the following fictitious example. A couple who wish to marry travel by plane to the place of the marriage ceremony, but their flight is delayed . Such facts may prima facie fall within the scope of private and family life for the purpose of Article 8. This does not, however, mean that Articles 8 or 12 are applicable if the grievance raised concerns the compensation claims in respect of the delay, since Articles 8 and 12 do not protect couples who wish to marry from such inconveniences.

The majority has expressed the following view in paragraph 145: “Since the Court has already held Article 12 to be applicable to a same sex-couple wishing to marry, the provision must also be applicable to same-sex couples who are already married under the domestic system of another State”.

We note in this respect that the premise referred to in this sentence is false: it is not correct to state that in Chapin and Charpentier v. France , (no. 40183/07, 9 June 2016) the Court also considered that Article 12 applied to the applicants, a same -sex couple seeking to marry (see § 31 of that judgment). In that case, the Court considered that Article 12 applied to the specific grievance raised by the applicants for the purpose of assessing that grievance from the viewpoint of that provision. Whether Article 12 is applicable to couples who are already married under the domestic system of another State depends upon the grievance they raise. If, for instance, a married couple complains that their home has been unlawfully expropriated, Article 12 does not apply, in that it does not protect against expropriation.

The methodological fallacy identified above may lead to the application of a provision to grievances that fall beyond the scope of negative or positive prima facie obligations under that provision. It also gives the false impression that State obligations that might arise in a new case have already been established in a previous case. In order to answer the question whether a provision protecting a human right applies it is necessary to have previously established, with sufficient precision, the scope of the State obligations stemming from the relevant provision.

9. The majority expresses the following views in the present judgment:

“197. While the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities, there may in addition be positive obligations inherent in effective ‘ respect ’ for family life. However, the boundaries between the State ’ s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts 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; and in both contexts the State enjoys a certain margin of appreciation (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 106, 3 October 2014, and Wagner and J.M.W.L. v. Luxembourg , no. 76240/01, § 118, 28 June 2007).

198. The Court does not consider it necessary to decide whether it would be more appropriate to analyse the case as one concerning a positive or a negative obligation since it is of the view that the core issue in the present case is precisely whether a fair balance was struck between the competing interests involved (see, mutatis mutandis , Dickson v. the United Kingdom , no. 44362/04, § 71, 18 April 2006).”

We do not agree with the view that the boundaries between the State ’ s positive and negative obligations under Article 8 do not lend themselves to precise definition. Although in many cases numerous State actions and omissions of different types are entangled, there is, in our view, a clear distinction between the obligation to act and the obligation to refrain from acting. The methodology to be followed in respect of the two types of obligations is different. If the State acts in a domain protected from State interference, it must demonstrate that this interference serves a legitimate aim and is really necessary to achieve this aim. It must also show that the interference has a basis in domestic law. If a State refrains from acting or acts without due diligence, the question whether the interference has a basis in domestic law does not arise, but it is necessary to verify whether there is an obligation to act at all and to establish the meaning and scope of any such obligation. It must also be shown that an obligation to act may be inferred from specific provisions of the Convention under the applicable rules of treaty interpretation. The meaning of the obligation imposed upon the States has to be established with the necessary precision. The Court may establish a violation of a positive obligation to act only if it previously identifies the scope and meaning of this obligation and shows that it stems from the provisions of the Convention. It may also verify whether domestic legislation contains the necessary provisions empowering public authorities to act as required under the Convention,

The present case clearly concerns the existence and scope of an obligation on State authorities to act. However, the majority has not established with sufficient precision the meaning and the scope of the legal rule which has been allegedly infringed by the domestic authorities. The scope of State obligations to act under Article 8 remains completely unclear.

10. The majority also expresses the following views in the present judgment:

“201. Indeed, the crux of the case at hand is 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 – recognised and protected in Italy under any form.”

“201. The Court considers that, in the present case, the Italian State could not reasonably disregard the situation of the applicants which corresponded to a family life within the meaning of Article 8 of the Convention, without offering the applicants a means to safeguard their relationship. However, until recently, the national authorities failed to recognise that situation or provide any form of protection to the applicants ’ union, as a result of the legal vacuum which existed in Italian law (in so far as it did not provide for any union capable of safeguarding the applicants ’ relationship before 2016). It follows that the State 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 legal framework providing for the recognition and protection of their same-sex unions”.

We observe in this respect that any couple, be they heterosexual or homosexual, have the means to preserve their relationship without any assistance from the State. The ability to live a happy life as a couple does not depend on any positive action by the State authorities but on the absence of State interference. We note - en passant - that in Italy as in other European States a growing number of heterosexual couples decide freely neither to marry nor to enter into a civil union and find their situation fully satisfactory. They assert their right to live their family lives outside any legal framework provided by legislation. Whatever the available legal frameworks, there will necessarily be substantial groups of persons who consider that those frameworks do not fit their needs.

We note, furthermore, that the terms “recognition” and “protection” are vague and ambiguous. It is not clear which concrete measures are required to ensure recognition and protection, nor is it easy to identify the inconveniences against which protection is required. In any event, a marriage or a civil union are not the only possible forms of recognition or protection. The States authorities can recognise cohabiting couples by taking their needs into consideration and can ensure them protection by refraining from undue interference and by granting certain positive rights. In this context, we note that it is not correct to state that the national authorities failed to recognise or to protect same-sex couples. All cohabiting couples were recognised in many Italian laws and could benefit from various rights. For instance, all cohabiting couples are recognised in tax law and the tax regime applicable to cohabiting couples is aligned with the tax regime applicable to married couples (as a result of Constitutional Court judgment no. 179/1976). Similarly, housing legislation protects a partner in the event of the other partner ’ s death or where a couple separate (as a result of Constitutional Court judgment no. 559/1989). It has not been shown in the instant case that the protection afforded to the applicant couples has been insufficient.

11. The present judgment relies on the judgment in the case of Oliari and Others v. Italy (nos. 18766/11 and 36030/11 , 21 July 2015) . In that case, the Court held 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. ... In such cases, the Constitutional Court, notably and repeatedly called for a juridical recognition of the relevant rights and duties of homosexual unions ..., a measure which could only be put in place by Parliament” ( Oliari , § 180).

The Court also considered 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...” ( Oliari , § 184).

Furthermore, Judge Mahoney in his concurring opinion to that judgment, joined by Judges Tsotsoria and Vehabović, considered it decisive the fact that the Italian State had chosen, through its highest courts, notably the Constitutional Court, to declare that two people of the same sex living in stable cohabitation are invested by the Italian Constitution with a fundamental right to obtain juridical recognition of the relevant rights and duties attaching to their union.

In our assessment the approach adopted in the Oliari v. Italy judgment, and in the concurring opinion thereto, is mistaken. The Italian Constitutional Court expressed its views in the reasoning, not in the operative part of its decisions. The dicta cannot be considered binding upon the Italian Parliament. Such a situation cannot be compared to the failure to execute an obligation imposed by a judgment of a constitutional court in its operative part, which is binding upon the State authorities.

12. We note the following inconsistency in the judgment. In paragraph 200 the majority identifies the prevention of disorder as the value underlying the authorities ’ attitude. On other hand, the majority do not see any prevailing interest put forward to justify the situation created by the authorities ’ attitude (see paragraph 209 of the judgment). The weight of the conflicting values at stake has not been assessed.

13. For the reasons explained above, the applications should have been declared inadmissible as manifestly ill-founded. Moreover, in our view the applicants can no longer claim to have victim status, in that their unions have been finally registered as civil unions under Italian law or can be registered as such if they so request. Furthermore , certain applicants (the authors of applications nos. 3 and 5) do not reside in Italy. In principle, positive obligations on the States do not apply to persons residing abroad. It is not clear how their civil status under Italian law can affect the quality of their life abroad. The question whether these applicants remain within the jurisdiction of Italy within the meaning of Article 1 has not been addressed.

14. To sum up: in our view the majority have departed from the applicable rules of Convention interpretation and have imposed positive obligations which do not stem from this treaty. Such an adaptation of the Convention comes within the exclusive powers of the High Contracting Parties. We can only agree with the principle: “no social transformation without representation”.

[1] . http://contrattoconvivenza.com/ last accessed June 2016

[2] . Article 1 § 2 of L aw no. 7/2001, as amended by L aw no. 23/2010 of 30 August 2010 – “A free union is the juridical situation between two persons, who irrespective of their sex, have been living in conditions analogous to those of married couples for more than two years”

[3] . European Parliament resolution of 4 February 2014 on the EU Roadmap against homophobia and discrimination on grounds of sexual orientation and gender identity, Resolution no. A7-0009/2014, para. 4(H )( ii).

[4] . Case C-38/98. Judgment of the Court (Fifth Chamber) of 11 May 2000, Régie nationale des usines Renault SA v Maxicar SpA and Orazio Formento