Homosexuality and Human Rights After Oliari v. Italy

Abstract

PRELIMINARY REMARKS The Court observes that while the Government is usually better placed to assess community interests, in the present case the Italian legislature seems not to have attached particular importance to the indications set out by the national community, including the general Italian population and the highest judicial authorities in Italy. The Court notes 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. Reference is made particularly to the judgment of the Constitutional Court no. 138/10 in the first two applicants ‘ case, the findings of which were reiterated in a series of subsequent judgments in the following years … 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. With these few words, the European Court of Human Rights (ECtHR) endorsed the arguments put forward by several Italian judgments called upon to rule on the legal recognition of same-sex couples within the Italian legal system. Also with these words, the ECtHR underlined the indifference of the Italian legislator towards the social reality of the applicants as well as of all those samesex couples who, still today, are suffering from the absence of any form of legal recognition of their family life together. The Oliari case, condemning Italy for a violation of Article 8 of the European Convention on Human Rights (ECHR), thus represents for Italy, first, but for all the contracting states of the Council of Europe at the same time, a certain point of arrival in the strengthening of homosexuals ‘ right to family life under the Convention. This chapter therefore aims to investigate the developments of the ECtHR's case law on same-sex couples ‘ right to family life from a double perspective.