CONCURRING OPINION OF JUDGE MAHONEY JOINED BY JUDGES TSOTSORIA AND VEHABOVIĆ

1. We, the three judges subscribing to this concurring opinion, have voted with our four colleagues for a violation of Article 8 of the Convention in the present case, but on the basis of different, narrower reasoning. In short, we find no need to assert that today Article 8 imposes on Italy what our colleagues characterise as a positive obligation to provide same-sex couples such as the applicants with a specific legal framework providing for the recognition and protection of their same-sex unions (paragraph 185 in fine of the judgment). What is decisive for us in the present case may be briefly summarised as follows:

- the Italian State has 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;

- it is this voluntary, active intervention by the Italian State into the sphere of personal relations covered by Article 8 that attracts the application of the Convention’s guarantee of the right to respect for private and family life, without there being any call to invoke the pre-existence of a positive Convention obligation;

- the requirements flowing from Article 8 as regards any State regulation of the exercise of the right to respect for private and family life were not met in the circumstances of the present case because of the defective nature of the follow-up, within the Italian legal order, to the Constitutional Court’s authoritative judicial declaration of a constitutional entitlement for persons in the position of the applicants to some form of adequate legal recognition of stable same-sex unions.

This reasoning is explained in further detail below.

2. In its judgment no. 138 of 15 April 2010 in relation to the constitutional challenges of the applicants Mr Oliari and Mr A, the Italian Constitutional Court, while rejecting the arguments under Article 29 of the Constitution (on the institution of marriage), ruled that, by virtue of Article 2 of the Constitution, two people of the same sex in stable cohabitation have a fundamental right to freely express their personality in a couple, obtaining – in time and by the means and the limits to be set by law – juridical recognition of the relevant rights and duties (these are the words in which the ruling is summarised in paragraph 16 of the judgment; the text of Articles 2 and 29 of the Italian Constitution is set out in paragraph 33 of the judgment). This ruling represents an authoritative statement of the regulation, within the Italian legal order, of the applicants’ right to respect for their private and family life as far as the legal status that should be given to their union as a same-sex couple is concerned. The “fundamental right” thereby recognised to obtain juridical recognition of the relevant rights and duties attaching to a same-sex union is one deriving, not from any positive obligation enshrined in the Convention, but from the wording of Article 2 of the Italian Constitution.

3. Under the constitutional arrangements in Italy, while the Constitutional Court may make a pronouncement of unconstitutionality in respect of existing legislation, it has no power to fill a legislative lacuna even though, as in its judgment no. 138/2010, it may have identified that lacuna as entailing a situation which is not compatible with the Constitution. Thus, in the case of Mr Oliari and Mr A in 2010, it was not for the Constitutional Court to proceed to the formulation of the appropriate legal provisions, but for the Italian Parliament (see paragraphs 36 and 45 of the present judgment for similar explanations of its powers given by the Constitutional Court in its subsequent rulings reiterating the general conclusion stated in judgment no. 138/10). As the present judgment (at paragraph 82) puts it, “the Constitutional Court ... could not but invite the legislature to take action” (see likewise paragraphs 84 and 180 in fine of the judgment). In this connection it is worth citing the report that the then President of the Constitutional Court addressed to the highest Italian constitutional authorities in 2013 (quoted at paragraph 43 of the judgment):

“Dialogue is sometimes more difficult with the [Constitutional] Court’s natural interlocutor. This is particularly so in cases where it solicits the legislature to modify a legal norm which it considered to be in contrast with the Constitution. Such requests are not to be underestimated. They constitute, in fact, the only means available to the [Constitutional] Court to oblige the legislative organs to eliminate any situation which is not compatible with the Constitution, and which, albeit identified by the [Constitutional] Court, does not lead to a pronouncement of anti-constitutionality. ... A request of this type which remained unheeded was that made in judgment no. 138/10, which, while finding the fact that a marriage could only be contracted by persons of a different sex to be constitutional compliant, also affirmed that same-sex couples had a fundamental right to obtain legal recognition, with the relevant rights and duties, of their union. It left it to Parliament to provide for such regulation, by the means and within the limits deemed appropriate.”

In sum, as explained by the then President of the Constitutional Court:

- the Constitutional Court had affirmed the fundamental right of same-sex couples under the Italian Constitution to obtain legal recognition of their union;

- however, the only means available to the Constitutional Court to “oblige” the legislative organs to eliminate the unconstitutional lacuna in Italian law denying same-sex couples this nationally guaranteed fundamental right was to “solicit”, or address a “request” to, Parliament to take the necessary legislative action.

The applicants in application no. 36030/11 added their explanation that “Constitutional Court judgment no. 138/10 had the effect of affirming the existence of ... a constitutional duty upon the legislature to enact an appropriate general regulation on the recognition of same-sex unions, with consequent rights and duties for partners” (paragraph 114 of the judgment).

4. Yet, to date, five years have elapsed since the judgment of the Constitutional Court, with no appropriate legislation having been enacted by the Italian Parliament. The applicants are thus in the unsatisfactory position of being recognised by the Constitutional Court as enjoying under Italian constitutional law an inchoate “fundamental right” affecting an important aspect of the legal status to be accorded to their private and family life, but this inchoate “fundamental right” has not received adequate concrete implementation from the competent arm of government, namely the legislature. The applicants, like other same-sex couples in their position, have been left in limbo, in a state of legal uncertainty as regards the legal recognition of their union to which they are entitled under the Italian Constitution.

5. On the basis of the foregoing facts, it is not necessary for the Court to decide whether Italy has a positive obligation under paragraph 1 of Article 8 of the Convention to accord appropriate legal recognition within its legal order to the union of same-sex couples. The declaration by the Constitutional Court that Article 2 of the Italian Constitution confers on two people of the same sex living in stable cohabitation a “fundamental right” under domestic constitutional law to obtain juridical recognition of their union constitutes an active intervention by the State into the sphere of private and family life covered by Article 8 of the Convention. Judgment no. 138/10 was not an isolated ruling: in the words of the present judgment (at paragraph 180), “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”, with the Constitutional Court repeatedly calling on Parliament to adopt the requisite legislation giving juridical recognition of the relevant rights and duties of homosexual unions. In our view, this voluntary action of the State in relation to the legal regulation of the applicants’ private and family life in itself and of itself attracts the application of Article 8 of the Convention in their cases and the accompanying obligation on the Italian State to comply with the requirements flowing from Article 8, notably those set out in its paragraph 2.

6. Undeniably, given what the respondent Government describe as the difficult exercise of reaching a balance between “different sensitivities on such a delicate and deeply felt social issue” (paragraph 126 of the judgment), the Italian State is to be recognised as having a certain margin of appreciation in regard both to the choice of the precise legal status to be accorded to same-sex unions and to the timing for the enactment of the relevant legislation (see paragraph 177 of the judgment, which makes a similar point).

7. On the other hand, whatever constitutional framework and distribution of powers between the arms of government a Contracting State may choose to adopt, there is an overall duty of trust and good faith owed by the State and its public authorities to the citizen in a democratic society governed by the rule of law (see, mutatis mutandis , Broniowski v. Poland [GC], no. 31443/96, §§173 and 175, ECHR 2004-V). In our view, despite the margin of appreciation available to the Italian State, this duty of trust was not respected in the present case as regards the follow-up to judgment no. 138/10 of the Constitutional Court in which an unconstitutional lacuna, involving the denial of a “fundamental right”, was identified as existing in the Italian legal order. There is, and has remained for five years, a discordance between the Constitutional Court’s declaration as to the entitlement of a given category of individuals under the Constitution and the action, or rather inaction, of the Italian legislature, as the competent arm of government, in implementing that entitlement. The beneficiaries of the declaration of the Constitutional Court as to the incompatibility with the Constitution of the lack of adequate legal recognition of same-sex unions have been denied the level of protection of their private and family life to which they are entitled under Article 2 of the Italian Constitution.

8. Furthermore, Italian law regarding the legal status to be accorded to same-sex unions has been left in a state of unregulated uncertainty over an excessive period of time. This enduring situation of legal uncertainty, relied on in the present judgment (for example, at paragraphs 170, 171 and 184 in fine ), is such as to render the domestic regulation of the applicants’ same-sex union incompatible with the democratic concept of “law” inherent in paragraph 2’s requirement that any “interference” with the right to respect for private and family life be “in accordance with the law”. This is especially so since, as the judgment points out (at paragraph 171),

“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”.

What is more, the judgment adds (at paragraph 170), the Government persistently exercise their right to object to such claims of equal treatment brought before the national courts on a case-by-case basis in various branches of the law by same-sex couples.

9. Like our colleagues, we note that “the Italian Government have failed to explicitly highlight what, in their view, corresponded to the interests of the community as a whole” in order to explain the omission of the Parliament to legislate so as to implement the fundamental constitutional right identified by the Constitutional Court (see paragraph 176 of the judgment). We likewise agree with our colleagues in rejecting the various arguments that the Government did adduce by way of justification of this continuing omission, notably the arguments as to registration of same-sex unions by some municipalities, private contractual agreements and the capacity of the domestic courts on the domestic law as it stands to afford adequate legal recognition and protection (see, in particular, paragraphs 81-82 and 168-172). As our colleagues point out, it is also significant that “there is amongst the Italian population a popular acceptance of homosexual couples, as well as popular support for their recognition and protection”, such that the rulings of the highest judicial authorities in Italy, including the Constitutional Court and the Court of Cassation, reflect the sentiments of a majority of the community in Italy (paragraphs 180-181 of the judgment).

10. Where we part company with our colleagues is as regards the question where to situate the analysis of the facts of the case for the purposes of Article 8 of the Convention. Our colleagues are careful to limit their finding of the existence of a positive obligation to Italy and to ground their conclusion on a combination of factors not necessarily found in other Contracting States. To begin with, we are not sure that such a limitation of a positive obligation under the Convention to local conditions is conceptually possible. Secondly, at some points our colleagues nonetheless appear to rely, at least partly, on general reasoning capable of being read as implying a free-standing positive obligation incumbent on all the Contracting States to provide a legal framework for same-sex unions (see, for example, paragraph 165 of the judgment). It might conceivably be reasoned that, on analogy with A, B and C v. Ireland [GC] (application no. 25579/05, ECHR 2010, §§253, 264 and 267), a “positive obligation” on the Italian State to enact adequate implementing legislation arises from Article 2 of the Italian Constitution as interpreted by the Constitutional Court. That may well be true as a matter of Italian constitutional law, as argued by the applicants in application no. 36030/11 (see paragraph 3 in fine above of the present concurring opinion). However, this is not what is normally meant by a positive obligation being imposed by a Convention Article. In particular, whenever a State chooses to regulate the exercise of an activity coming within the scope of a Convention right, it is obliged to do so in compliance with the express and inherent requirements of the Convention Article in question – for example, in a manner that does not involve excessive legal uncertainty for the Convention right-holder. In such circumstances, we are in the realm of right-regulation, not the realm of positive Convention obligations. This is why we have urged (at paragraph 5 above in the present concurring opinion) that the applicants’ grievance should be analysed in terms of defective State intervention in the sphere of private and family life, rather than in terms of failure to fulfil a positive Convention obligation.

11. In conclusion, for us, the unsatisfactory state of the relevant domestic law on the recognition of same-sex unions, displaying a prolonged failure to implement a nationally recognised fundamental constitutional right in an effective manner and giving rise to continuing uncertainty, renders the active intervention of the Italian State into the regulation of the applicants’ right to respect for their private and family life incompatible with the requirements of Article 8 of the Convention.

12. The foregoing concurring opinion is not to be taken as expressing a view on whether, in the present-day conditions of 2015 in the light of evolving attitudes in democratic society in Europe, paragraph 1 of Article 8 should now be interpreted as embodying, for Italy or generally for all Contracting States, a positive obligation to accord appropriate legal recognition and protection to same-sex unions. Our point is that there is no necessity in the present case to have recourse to such a “new” interpretation, as in any event a finding in favour of the applicants is dictated on a narrower ground on the basis of existing jurisprudence and the existing classic analysis of the requirements accompanying active State intervention regulating the exercise of the right under Article 8 of the Convention to respect for private and family life.

APPENDIX

Application no. 18766/11

N o .

Firstname LASTNAME

Birth date

Birth year

Nationality

Place of residence

Representative

A.

1976

Italian

Trento

A. SCHUSTER

Enrico OLIARI

15/07/1970

1970

Italian

Trento

A. SCHUSTER

Application no. 36030/11

N o .

Firstname LASTNAME

Birth date

Birth year

Nationality

Place of residence

Representative

Gian Mario FELICETTI

18/06/1972

1972

Italian

Lissone

M.E. D’AMICO

Riccardo PERELLI CIPPO

23/03/1959

1959

Italian

Milan

M.E. D’AMICO

Roberto ZACHEO

10/05/1960

1960

Italian

Milan

M.E. D’AMICO

Riccardo ZAPPA

29/10/1964

1964

Italian

Lissone

M.E. D’AMICO

[1] . http://contrattoconvivenza.com/ last accessed June 2015

[2] . On 22 May 2015 Ireland voted in favour of same-sex marriage in a referendum. In Finland, a bill legalising same-sex marriage was approved by Parliament on 12 December 2014 and signed by the President on 20 February 2015. The Marriage Act will not take effect until 1 March 2017.

[3] . Article 1 § 2 of law no. 7/2001, as amended by law 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 . ”

[4] . Alternative registration systems in 5 of 8 states and territories, in addition to recognition of cohabiting same-sex couples at the federal level in all 8 states and territories.

[5] . Federal legislation on capacity to marry applying to all 13 provinces and territories, in addition to recognition of cohabiting same-sex couples at the federal level and in all 13 provinces and territories, and civil unions in Québec.

[6] . At least 2 states and the Federal District.

[7] . Reference re Same-Sex Marriage , [2004] 3 S.C.R. 698.

[8] . See R. Wintemute , "Sexual Orientation and the Charter", (2004) 49 McGill Law Journal 1143; Civil Marriage Act, Statutes of Canada 2005, chapter 33.

[9] . Fourie v. Minister of Home Affairs (30 Nov. 2004), Case No. 232/2003.

[10] . Minister of Home Affairs v. Fourie ; Lesbian & Gay Equality Project (Cases CCT60/04, CCT10/05).

[11] . The Californian Court’s decision allowed same-sex couples to marry in California from 16 June 2008 until 4 November 2008, when 52% of voters in a referendum supported an amendment to the Californian Constitution (Proposition 8). Proposition 8 converted the rule denying access to legal marriage to same-sex couples from a sub-constitutional rule (adopted after the 2000 referendum on Proposition 22 and struck down by the Court in 2008) to a constitutional rule that could only be repealed after a second referendum: Article I, Section 7.5: “Only marriage between a man and a woman is valid or recognized in California.” The Court upheld Proposition 8 in Strauss v. Horton (26 May 2009), but maintained the validity of the legal marriages of same-sex couples who married before 4 November 2008. The Court’s decision was reinstated, and Proposition 8 struck down, by the procedural effect of Hollingsworth v. Perry , 133 S.Ct . 2652 (26 June 2013).

[12] . See http://www.stf.jus.br/portal/cms/verNoticiaDetalhe.asp?idConteudo=178931 (last accessed June 2015)

[13] . Sentencia C-577/11, http://www.corteconstitucional.gov.co/relatoria/2011/C-577-11.htm (last accessed June 2015), pp. 193-194.

[14] . Amparos en Revisión 457/2012, 567/2012, 581/2012, Primera Sala de la Suprema Corte de Justicia .

[15] . See Acórdão 359/09 (9 July 2009), http://w3.tribunalconstitucional.pt/acordaos/acordaos09/301-400/35909.htm (last accessed June 2015) ( Declaração de Voto : Judges Gil Galvão and Maria João Antunes ).

[16] . See http://www.sexualorientationlaw.eu/documents/austria.htm . (no longer accessible)

[17] . Recommendation 1474 (2000), para. 11(iii )( i ). See also Resolution 1547 (2007), para. 34.14.

[18] . “Resolution on equal rights for homosexuals ... in the EC” (8 Feb. 1994), OJ C61/40 at 42, para. 14.

[19] . Staff Regulations of [EC] officials ..., Article 1d( 1); Annex VII, Article 1(2)(c); Annex VIII, Article. 17, as amended by Council Regulation 723/2004/EC (22 March 2004), OJ L124/1. Cf. Decision No. 2005/684/EC of the European Parliament, Art. 17(9), (28 Sept. 2005), OJ L262/6 (“[p] artners from relationships recognised in the Member States shall be treated as equivalent to spouses”).

[20] . Resolution CM/ Res( 2008)22, 19 Nov. 2008.

[21] . See Irizarry v. Board of Education of City of Chicago , 251 F.3d 604 (7th Cir. 2001).

[22] . The Court of Justice of the European Union effectively granted such an exemption in K.B. , Case C-117/01 (7 Jan. 2004), which implicitly entitled Ms. K.B. and Mr. R. (her transsexual male partner) to an exemption from the marriage requirement until U.K. legislation was amended. If she had died on 8 January 2004 (the day after the judgment), he would have been entitled to a survivor’s pension even though he was not married to her (the U.K. had yet to implement Goodwin ). Cf. Maruko , Case C-267/06 (1 April 2008) (Council Directive 2000/78/EC requires equal survivor's pensions for same-sex registered partners if national law places them “ in a situation comparable to that of [different-sex] spouses”) .

[23] . “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States: Part 1 – Legal Analysis”,

http://fra.europa.eu/en/publication/2010/homophobia-and-discrimination-grounds-sexual-orientation-eu-member-states-part-i . (last accessed June 2015)

[24] . published on 17 May 2012