Decision of the ECHR of 14 December 2017 in the case of Orlandi and Others v. Italy (application No. 26431/12 and others).
In 2012, the applicants were assisted in preparing the application. The application was subsequently communicated in Italy.
In the case, the applicants' complaint to the refusal of the authorities to register same-sex marriages concluded abroad was successfully considered. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants, same-sex couples who married abroad, were asked to register their marriages in Italy. They were denied registration on the grounds that the Italian legal system does not allow marriage by same-sex couples. Following the July 21, 2015 judgment of Oliari and Others v. Italy (Italy), Italian law provides for the conclusion of civil unions in Italy. Subsequent decrees established that couples who married, civic union or other appropriate union abroad could register their union as civil in accordance with Italian law. The last normative act came into force in 2017, and most of the applicants used it.
In the European Court, the applicants complained under Articles 8, 12 and 14 of the Convention that the authorities refused to register their marriages concluded abroad.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. In accordance with Article 12 of the Convention and Article 14 of the Convention, in conjunction with Article 8 of the Convention, States may restrict access to marriage only for couples of different sexes. The same applies to article 14 of the Convention, in conjunction with article 12 of the Convention. Nevertheless, same-sex couples needed legal recognition and protection of their relationship. Civil unions provided an opportunity to obtain the legal status of equal or similar to marriage in many ways. In principle, such a prima facie system is sufficient to meet convention standards. Civil unions (and the registration of marriages concluded abroad as civil unions) also seem to have provided more or less the same protection as marriage for the key needs of the couple in a stable and faithful relationship. Currently, applicants can join a civil union or register their marriage as a civil union. In this connection, the Court must establish only whether the refusal to register the applicants' marriage in any form, leaving them in a legal vacuum and without any protection, pending the enactment of new legislation, a violation of their right under Article 8 of the Convention.
The key question is whether a fair balance was established between the affected competing interests. The authorities of the respondent State did not indicate a priority public interest in balancing the interests of the applicants and the legitimate aim of refusing to register marriages, except for the general phrase regarding "internal public order". Unlike other provisions of the Convention, Article 8 does not include the notion of "public order" among the legitimate aims for which the State could interfere with a person's rights. However, bearing in mind that, first of all, legislation should determine the rules regarding the validity of marriages and draw legal conclusions, the Court has previously recognized that the domestic regulation of the registration of marriages must meet the legitimate aim of preventing disturbances. Thus, the Court could agree for the purposes of the case that the impugned measures were taken to prevent unrest, since the applicants' situation was not provided for by Italian law. The essence of this case lies precisely in the fact that the situation of the applicants is not provided for by the law of the country, especially since the applicants could not claim recognition and defense in Italy of their relations in any form, be it de facto union or de jure union in accordance with the legislation of a foreign state.
The legal recognition of same-sex couples is rapidly spreading in Europe. Similar rapid development is noted on a global scale, pointing to the continuing international movement towards the legal recognition of such marriages. So far, 27 countries from among the member states of the Council of Europe have introduced legislation allowing the recognition of same-sex couples. The same can not be said for the registration of same-sex marriages concluded abroad, for which there is no consensus in Europe. In addition to the member states of the Council of Europe, in which same-sex marriage is permitted, the comparative legal information available to the European Court (limited to 27 states where same-sex marriage was not allowed at that time) shows that only three of the 27 participating States allow register such marriages, despite the absence (to date or in the period relevant to the circumstances of the case) in their legislation of same-sex marriage. Consequently, this lack of consensus confirmed that States in principle should have wide margin of appreciation regarding the decision to register marriages of such marriages as in the present case concluded abroad.
With regard to the interests of the state and society as a whole, in order to avoid registration of such marriages in order to prevent disorders, the authorities of Italy might want to keep from appealing their citizens in other states to specific institutions that are not recognized at the domestic level (such as same-sex marriage) and who The state is not obliged to recognize from the point of view of the Convention. Indeed, the refusals in the present case were the result of a lawmaker's decision not to allow same-sex marriage - this is a choice not condemned by the Convention. Accordingly, the Court decided that there was a legitimate interest of the State in ensuring that its legislative prerogatives were respected and, therefore, that it was impossible not to take into account the choice of democratically elected Governments. The refusal to register the applicants' marriage did not deprive them of their rights previously recognized in Italy, and the applicants could still enjoy in the state in which they married any rights and bear the obligations acquired in such a marriage. However, decisions to refuse registration of their marriage in any form, leaving applicants in a legal vacuum (before the adoption of new laws), did not take into account the social realities of the situation. Indeed, given the state of the legislation that took place before the introduction of new laws, the authorities could not formally recognize the legal existence of the applicants' union. No prevailing public interest was identified to justify a situation in which the applicants' relations were denied recognition and protection.
The Italian authorities could not reasonably disregard the situation of the applicants, which corresponded to family life within the meaning of Article 8 of the Convention, without offering them a means of securing their relations. However, until recently, the domestic authorities did not recognize this situation or did not provide any form of protection for the applicants' union as a result of the legal vacuum that existed in Italian law. It follows that the authorities of the respondent state did not establish a fair balance between any competing interests, as they did not provide applicants with access to a specific legal framework providing for the recognition and protection of their same-sex unions.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted by five votes "for" with two - "against").
In the light of the withdrawal in accordance with Article 8 of the Convention, it is not necessary to consider whether the case was also in violation of the requirements of article 14 of the Convention in conjunction with articles 8 or 12 of the Convention.
In the application of Article 41 of the Convention. The Court awarded each applicant EUR 5,000 in respect of non-pecuniary damage.