Site Loader

The applicants were three same-sex couples that couldn’t get married in Italy because of the Italian law. It only allows heterosexual couples to marry.  The first couple was Mr. Oliari and Mr. A. They went to the Trent Tribunal to challenge the refusal of their marriage by the Civil Status Office. But it was rejected because to get married you have to be from the opposite sex and also because the EU law said that member states can choose their own marriage rights.  They also get rejected by the Trent Court of Appeal and the Italian Constitutional Court. The other couples were Mr. Feleicetti and Mr. Zappa and Mr. Perelli Cippo and Mr. Zacheo. They requested the same as the first couple but they were also denied. So in 2011 they went to the European Court of Human Rights. They said that there wasn’t a legal way to get married in Italy as a same-sex couple and they claimed that that is a discrimination on ground of their sexuality. They supported it by saying it was a violation of the following articles of the ECHR: Article 8 (right to respect for private and family life), article 12 (right to mary) and article 14 (prohibition against discrimination) in conjunction with article 8 and article 12. They also mentioned article 2,3 and 29 of the Italian Constitution because they support the fact that same-sex marriage has to be protected as a form of social community.  Preliminary objections  The government of Italy said that the criteria in rule 47 paragraph 1 and 2 of the Rules of Court on what an application must contain had to been applied in a more stricter way. But the Court noted that the Government failed to indicate in what way the applicants failed to fulfil the requirements of Rule 47. The stricter conditions of the rules couldn’t also apply to the application in 2011 from the applicants.  The second objection was that the Government said that the applicants had not indicated that they got harmed and that the injury of the applicants was just abstract. They indicated that the Court could only judge by specific situations. The court concluded that the applicants can be seen as victims according to article 34 of the Convention. The third objection was that the Government said that the applicants had failed to exhaust all domestic remedies. Mr. Oliari and Mr. A. hadn’t appealed to the Court of Cassation, Mr. Felicetti and Mr. Zappa hadn’t published their marriage to an administrative department and Mr. Perelli Cippo and Mr. Zaccheo hadn’t appealed against the first-instance judgement. The court concluded in this case that there were special reasons why the applicants had failed to exhaust all domestic remedies. So the Court dismissed the claim of the State about the domestic remedies. The final objection was that the applicants failed to be in time for the six months limit to submit an application. But the Court considered this situation to be a continuing one, so the application couldn’t be out of time.  Legal arguments  The ECHR decided that Italy had violated Article 8 by the absence of a legal framework that ensures the recognition and protection of the relationship of the applicants. There is also no guaranteed respect for private and family life in Italy because same-sex couples can’t enter into a civil union or a registered partnership. And same-sex couples have an interest in entering a civil union or registered partnership to protect their relationship legally. The ECHR also said that Italy hadn’t described the interests of the communities in not allowing for a legal framework. The Court also had noticed the increasing recognition of same-sex unions in Europe and even in whole the world after the Court’s judgement in Schalk and Kopf. Italy hadn’t also listened to the views of the community or the courts because the Italian Constitutional Court has a lot of times called for the juridical recognition of same-sex unions. Finally, the Court also mentioned that the majority of the Italians was pro same-sex unions. Although the applicants said that Italy had violated article 8 in conjunction with article 14, the Court decided to only examine the violation of article 8. The Court said that article 12 doesn’t obligate a state to grant same-sex couples access to marriage, despite that more and more states recognize same-sex marriage. The Court rejected the complaint of Article 12 as unfounded. Therefore, the Court also had also rejected the complaint of article 12 in conjunction with article 14 as unfounded. The Court decided that Italy had to pay 5.000 euros to all the applicant for non-pecuniary damages. They had to pay Mr. Oliari and Mr. A. 4.000 euros and Mr. Felicetti, Mr. Zappa, Mr. Cippo and Mr. Zacheo 10.000 euros for costs and expenses.  Conclusion  We are living in 2018 and it is very strange that we are still talking about topics like these. The Catholic Church is very dominant in the religious country of Italy and that is an import reason why gay people have less rights there than in other western countries in Europe.  The Court has done a good thing to finally take a stance on this issue by making a clear statement that same-sex couples must have legal protection but I think it would be better if the ruling in this case would be binding, not only for Italy, but for whole Europe.  The court had not indicated that marriage was required for the protection and recognising of same-sex unions. That’s very strange because it was one of the most important reasons why the applicants went to the Court. For me, being a couple and being married are 2 things that are very similar to each other so it is strange that the Court had different meanings about the 2. It needs probably more time before everyone can accept the concept of gay marriage, but it will come. Nevertheless, it is expected that civil unions of same-sex couples will soon be accepted and recognised under Italian law. 

Post Author: admin

x

Hi!
I'm Russell!

Would you like to get a custom essay? How about receiving a customized one?

Check it out