Brief was only possible for heterosexual couples to get

Brief Summary of key facts of the Case:This case concerns 2 applications which had been submitted against Italy (these being nos. 18766/11 and 36030/11) with the European Court of Human Rights under article 34 ECHR (concerning the possibility of applications submitted by individuals) by six Italian nationals, namely Mr. Oliary and Mr. A.

(couple 1), Mr. Felicetti and Mr. Zappa {couple 2) and Mr. Perelli Cippo and Mr. Zacheo (couple 3)The applicants had first started separate procedures in domestic courts because all three couples wanted to get married yet were denied this possibility, as it was only possible for heterosexual couples to get married since the law required a difference in sex between partners. Italian domestic law also did not provide for any meaningful alternative union to marriage, either for homosexual or heterosexual couples.- Couple 1 had been in stable relationship when they requested the Civil Status Office of the Commune of Trent to issue their relevant marriage banns in 2008.

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After this request was rejected they challenged the decision before the local Tribunal, where they too rejected their claim. After this, the couple appealed to the Court of Appeal, who then made a referral to the Constitutional Court concerning the possible unconstitutionality of the law in force. The Constitutional Court declared this constitutional challenge inadmissible and urged the legislator to start acting. Due to this the Court of Appeal rejected the claims of couple 1 in full.

– Couple 2 had been in a committed stable relationship since 2003, when they requested that the relevant marriage banns would be issued in 2011. Their request got rejected and they did not go to the Court of Appeal, as they knew about Constitutional Court’s decision concerning the case of couple 1. – Couple 3 had also been in a committed stable relationship and had requested that the relevant marriage banns would be issued in 2009. Their request got rejected where after they challenged this decision.

After this failed they ceased further attempts, also knowing about the judgement of the Constitutional Court.After this, the applicants went to the ECHR and argued that under domestic law and through decisions made by Italian judges they were incapable of entering into civil unions and were thus discriminated against because of their sexual preferences. Because of this they argued that the Italian government had violated multiple articles of the ECHR: articles 8 ( right to respect for private and family life), 12 ( right to marry) and 14 ( prohibition of discrimination) of the Convention.On 3 December 2013 the Chamber to which the case was allocated decided that the complaints concerning Article 8 alone and in conjunction with Article 14 were to be communicated to the Government. It further decided that the applications should be joined.

Moving on, the Court judgment contains a total of 4 different preliminary objections concerning the admissibility of the applicants’ case which were made by the Italian government, these being:1. Rule 47 of the Rules of Court- This first objection by the Italian government was where it pointed out that according to a recent revision of Rule 47, the rules on the requirements for individual applications had to be applied in a stricter way, and that if these requirements (specifically in paragraphs 1 and 2 of article 47) were not met the Court could not further investigate the case. The Court dismissed the objection made by the government on the basis that not only had the government failed to specify in what way exactly the applicants had failed to meet the stricter requirements but also had it forgotten that the amended Rule 47 would only enter into force on January 1st 2014.2. Victim Status, article 34 ECHR – According to article 34 of the European convention on Human rights, the Court can receive applications from any person claiming to be victim of a violation of any of the rights set forth in the ECHR. The Italian government argued that the applicants had not suffered any actual damage and that the injuries cited by the applicants were only abstract (such as inheritance rights, assistance to the partner, etc.

), meaning that the applicants weren’t victims. The Court however considered that the applicants are directly concerned by the absence of any legal framework for same-sex couples wanting to enter into a civil union, and that they have a legitimate personal interest in seeing a decision from the Court, thus that they therefore can be considered victims in the sense of article 34 ECHR. 3. Exhaustion of domestic remedies- Article 35, par. 1 of the Convention states that The Court may only deal with the matter after all domestic remedies have been exhausted, although this rule is based on the assumption made in art. 13 ECHR that there is an effective and sufficient remedy available.

The Government claimed that the applicants had failed to exhaust these and that national courts could have given compensation for suffered damages as well as a legal recognition of the couples’ unions. The Court however made the following remarks: not only did the Government fail to give any example of a formal recognition by their courts, but also one could question if such a recognition, if even possible, would have had any legal effect on the applicants’ situations when the government hadn’t introduced a legal framework yet. Finally, the Court decided that the applicants couldn’t be blamed for not wanting to pursue ineffective remedies, and that because of these special circumstances the applicants had been absolved of their obligation to firstly exhaust domestic legal options. 4.

Six months – The government claimed that the applicants had failed to follow the general principles of the six-month period, which generally runs from the date of the final decision in the process in exhaustion of domestic remedies, but in case of a “continuing situation”, i.e. a state of affairs which operates by continuous activities by/on part of the state, the period restarts every day and will only actually start to run hen that situation ends. In casu there is a continuing situation as the applicants’ inability to marry or enter into a civil union has practical consequences on a daily basis, with no effective remedy available. Because of this, one cannot maintain that the applications are out of time like the government argued.Having seen the preliminary decisions be dismissed by the Court, let us move on to the most important part, the key legal arguments as well as the reasoning provided by the court.

1. The alleged violation of article 8 of the Convention and Article 14 in conjunction with article 8a. Admissibilityi. The court noted that the complaints had not been manifestly ill-founded following the meaning of article 35 of the Convention, and that they are not inadmissible on any other grounds.

b. Merits i. The court noted that whilst the primary goal of article 8 of the Convention is to protect individuals against arbitrary interference by the government, it may also impose some positive obligations to ensure effective respect for its rights, even in the sphere of the relations of individuals between themselves.ii.

Even though the idea of respect has no specific definition attached to it, in this case specifically the impact of a situation on an applicant where the current laws don’t match the social reality can be seen as an important factor in a judgement around article 8.iii. It is also important to be reminded that states enjoy a certain freedom of choice in implementing their obligation made by article 8, and that this freedom is wider when a balance between private and public interests must be found.iv. On the one hand, concerning the protection of the individual’s ( here that of the applicants) rights the Court had found that the then existing protection for homosexual couples was not only lacking substance, as it failed to fulfill core needs relevant to a couple in a stable committed relationship, but was also not stable enough, as factors such as cohabitation (for private agreements) and a slow judicial system ( in determining judicially a homosexual couple’s needs in uncertain circumstances) had limited it severely.v. On the other hand, concerning community interests the court noted that the government had failed to specifically show what according to them corresponded to the interests of the community as a whole whilst also denying that the non-existence of a legal framework was an attempt at protecting the morals of society. The Court however noted that both Italy’s highest courts as well as the general population through survey’s had certainly shown support for some kind of framework.

vi. Therefore the Court concluded that in a lack of a community interest against the enormous applicant’s interests the government had exceeded their freedom of choice meaning that there had been a violation of article 8 alone and in combination with article 14, which it did not find necessary to prove.2. Alleged violation of article 12 alone and in combination with article 14a.

The Court noted that in the Schalk and Kopf case it had found that it no longer though that under article 12 the right to marry had to be restricted in all circumstances to solely heterosexual couples, though the question on whether or not to allow same-sex marriage had to be left to regulation by the states themselves. This same decision was reiterated in a more recent Hämäläinen, where the court said that even if some contracting states had allowed same-sex marriage, article 12 did not impose a direct obligation to them, neither on its own nor in combination with the more general article 14.b.

The Court therefore found the complaint under article 12 alone and in combination with article 14 ill-founded and rejected them.3. Application of article 47 of the Conventiona. Damagesi. On the one hand, the Court rejected the pecuniary claim made by the applicants no. 18766/11 as both unquantified and unsubstantiated.

On the other hand the Court did decide that all applicants had suffered immaterial damages and should therefore all be rewarded 5000 euro each, plus any chargeable taxes.b. Expenses and costsi. The court rejected the applicants’ claim for costs made in the domestic cases, as no documents supported it, but otherwise considered it reasonable to reward the applicants of no. 18766/11 4000 euro for all of them and 10.000 euro for those in application no.

36030/11 to cover the proceedings before the Court.ii. The Court rejected further claims for just satisfaction.