Case of Orlandi and Others v. Italy

Orlandi ve Diğerleri / İtalya Kararı

Ayşen KÖSE

The case concerned a complaint by six same-sex couples which comprised of 1 Canadian national and 11 Italian nationals. Francesca Orlandi and Elisabetta Mortagna; Mr. D. P. And Mr. G. P.; Mario Isita and Grant Bray; Gianfranco Goretti and Tommaso Giartosio; Fabrizio Rampinelli and Alessandro Dal Molin; and Antonio Garullo and Mario Ottocento were married abroad and before applying to the Court, they attempted to have their marriages contracted abroad registered in Italy on their return to the country. However, they get rejected by the Italian authorities on the grounds of public order and the definite provision of the Italian Civil Code for marriage to be established between men and women. In 2016 by legislation Italy permitted same-sex couples to have their relationship recognised as a civil union. On 14.03.2018, the Court ruled in favour of the applicants with five votes to two, and found that there had been a violation of Article 8 of the Convention, stressing that the lack of legal recognition puts the couples in legal vacuum and that their rights should be protected even if they were not granted the right to marriage.

Article 8 of the ECHR, Right to Respect for Private and Family Life, Right to Marry, Same Sex Marriage, Recognition of the Marriages Contracted Abroad.

Orlandi ve Diğerleri / İtalya davasında başvurucular, Amerika, Kanada ve Hollanda’da evlenen altı eşcinsel çifttir. Ms. Orlandi ve Ms. Mortagna; Mr. D. P. ve Mr. G. P.; Mr. Isita ve Mr. Bray; Mr. Goretti ve Mr. Giartosio; Mr. Rampinelli ve Mr. Dal Molin yabancı ülkelerde yaptıkları evliliklerinin İtalya’da tanınması için başvuruda bulunmuşlardır. Ancak İtalyan hukukunda, o dönemde eşcinsel çiftlere evlilik, sivil partnerlik ve bunlara benzer herhangi bir hak tanınmamakta olduğundan, başvuruları reddedilmiştir. İtalyan otoritelerinin bu konudaki kararı temelde iki hususa dayandırılmıştır: kamu düzeni ve İtalyan Medeni Kanunu’nun evliliğin kadın ve erkek arasında kurulacağı hususundaki kesin hükmü. İç hukuk yollarının tükenmesinin ardından 2012 senesinde dava AİHM önüne getirilmiş ve 2018 senesinde karara bağlanmıştır. Bu süreçte İtalya’da 2016 yılında yapılan düzenleme ile eşcinsel çiftlere sivil partnerlik yolu açılmış; başvurucular, bu düzenleme sonrası evliliklerini sivil partnerlik olarak kaydettirme şansı bulmuşlardır. 14.03.2018 tarihinde Avrupa İnsan Hakları Mahkemesi, ikiye karşı beş oyla başvurucular lehine karar vermiş ve birlikteliklerinin yasal olarak tanınmamasının çiftleri yasal zorluğa soktuğunu ve evlilik hakkı tanınmasa dahi yasa önünde haklarının korunmasının gerekliliğini vurgulayarak Avrupa İnsan Hakları Sözleşmesi Madde 8’in ihlal edildiğine hükmetmiştir.

AİHS Madde 8, Özel Hayata ve Aile Hayatına Saygı Gösterilmesi Hakkı, Evlenme Hakkı, Eşcinsel Evlilik, Yabancı Ülkede Yapılan Evliliklerin Tanınması.

The Facts

The case concerned a complaint by six same-sex couples which comprised of 1 Canadian national and 11 Italian nationals namely Francesca Orlandi and Elisabetta Mortagna; Mr. D. P. And Mr. G. P.; Mario Isita and Grant Bray; Gianfranco Goretti and Tommaso Giartosio; Fabrizio Rampinelli and Alessandro Dal Molin; and Antonio Garullo and Mario Ottocento.

The couples were married abroad, the places of the celebration of their marriages were for the first three is Canada, for the fourth is the United States of America, and for the last two is the Netherlands, respectively.

Before applying to the Court, couples attempted to have their marriages contracted abroad registered in Italy on their return to the country. However, they get rejected by the Italian authorities.

Ms Orlandi and Ms Mortagna in 2011 and Mr D.P. and Mr G.P. in 2012 tried to register their marriages (contracted both in Canada) in the Italian municipalities where they lived. The authorities told that the Italian legal order did not allow marriage between people of the same sex, in addition with a reference to a circular from the Ministry of Internal Affairs, dated 2001. The circular states that “a marriage contracted abroad by persons of the same sex, one of whom was Italian, could not be registered as it was contrary to the norms of public order.”¹

At first, Mr Isita and Mr Bray and Mr Goretti and Mr Giartosio were also refused registration of their marriage in 2011 by the municipalities where they lived. However, after new guidance was issued by the mayors of Naples and Rome (the cities they lived) they were granted it in 2014. Yet, their registration was cancelled after a further circular from Ministry of Internal Affairs which ordered the reversal of such decisions regarding the same sex marriage registrations.

Fabrizio Rampinelli and Alessandro Dal Molin were equally unsuccessful in having their marriage registered like their fellow applicants.

Mr Garullo and Mr Ottocento requested the registration of their marriage in Latina, after marrying in The Hague in 2002. Their request was refused on the grounds that “the Italian legal order did not provide for the possibility of two persons of the same sex to marry”² . They began court proceedings to have the marriage registered, but lost their case. On their appeal to the Court of Cassation, they especially highlighted, inter alia, that the public order referred to in Art. 18 of Law no. 218/95, had to be interpreted as international public order, in the light of international instruments. The final decision being handed down by the Court of Cassation in 2012, and their appeal is rejected. Noting the Court’s case-law it acknowledged that “a marriage contracted abroad by two persons of the same sex was indeed existent and valid; however, it could not be registered in Italy in so far as it could not give rise to any legal consequence”³ . The Court of Cassation considered that the refusal could not be based on the ground that such a marriage ran counter to public order (as dictated by the Ministry of Internal Affairs circulars), but that the refusal was simply a consequence of the impossibility to recognise a same sex marriage as a marriage in the Italian legal order. The marriage did “exist” or was “valid” but it is unable to produce any legal effect in the Italian order as a marriage deed.

In 2017, twenty-seven member states, out of the forty-seven, of the Council of Europe have enacted legislation permitting same-sex couples to have their relationship recognised as a marriage or as a form of civil union or a registered partnership. And Italy became one of these members in 2016 by the legislation entitled “Regulation of Civil Unions between People of the Same Sex and the Rules Relating the Cohabitation”. The legislation passed after the ECHR judgment of Oliari and Others v. Italy, and supported by the further decrees.

Some of the couples have since benefited from 2016 legislation, which provided the same sex couples to register their marriages contracted abroad as a civil union in Italy.

To summarize so far, Italian authorities and courts rejected the appeals of the applicants on the grounds of internal public order as dictated by the relevant circulars of the Ministry of Internal Affairs and in addition, current Italian legal order. The decision of the Latina Tribunal noted that, same-sex marriage was in contrast with Italy’s history, tradition and culture, and the fact that so few European Union (EU) countries had provided such legislation went to show that it was not in line with the common principles of international law and ran counter to international public order too. Since if a same sex marriage had been contracted in Italy, it would not have been considered valid according to the current state of law, (as it failed to fulfil the most basic requirement of the law, that of having a female and a male) same sex marriages were against the current Italian legal order.

Decision

The applicant’s complaints under this provision mainly relate to the fact that they were refused registration of their marriage contracted abroad on their return to Italy, either as a marriage or under any other form, depriving them of any legal protection or associated rights in Italian legal system.

The Court reiterates that States are still free, to restrict access to marriage to different-sex couples under Article 12 of the Convention as well as under Article 14 taken in conjunction with Article 8. And the same holds for Article 14 taken in conjunction with Article 12. Nevertheless, the Court has acknowledged that same-sex couples are in need of legal recognition and protection of their relationship.

The Court observed that providing an opportunity to obtain a legal status similar to marriage, such as civil union or registered partnership, could satisfy the provisions of the European Convention.

The situation about the recognition of the same sex relationships in Italy had changed in 2016 after the “Regulation of Civil Unions between People of the Same Sex and the Rules Relating the Cohabitation” and further decrees. Some of the applicants’ relationship recognised under those provisions. Since the complaint had been made in 2012, four years before the legislation had come into effect, the core issue in the case was whether a fair balance had been established between the competing interests of Italy and the couples or not.

The States have a wide margin of appreciation when it comes to the matter of marriage, the Court accepted the fact that Italy’s choice not to allow same sex marriages could not be condemned under the Convention. But the crucial point of the case was that the couples had not been able to get any kind of legal recognition and protection for their relationships.

The Court noted rapid developments in this field, with 27 Council of Europe members now having legislation to recognise same-sex unions as a marriage, civil union or registered partnership. However, the Court considered the social reality and the obstacles the applicants faced; and stated that the lack of any recognition of their relationship left the couples in a legal vacuum. The couples were deprived of any recognition or protection. According to the Court, “Italy could not disregard their situation, which had corresponded to family life within the meaning of Article 8, without offering a means to safeguard their relationship.”⁴ The Court concluded that “The State had failed to strike a fair balance between the competing interests and that there had been a violation of the couples’ rights.”⁵

For these reasons the Court declared by a majority, the application admissible; holds by 5 votes to 2 that there has been a violation of Article 8 of the Convention; holds unanimously, that there is no need to examine the complaint under Article 14 in connection with Articles 8 and 12 of the Convention.

Seperate Opinions

Judge Koskelo has voted in favour of finding a violation of Art. 8 in the case. However, she examined the case through two main issues: refusal to register foreign same sex marriages as marriages and refusal to provide any other kind of legal framework for same sex unions.

According to her, there has been no violation of Art. 8 of the Convention on account of the Italian authoroties’ refusal to register the applicants’ foreign same sex marriage as marriages for the purposes of Italian law.

On the contrary, Judge Koskelo claims that there has been a violation of Art. 8, because, until the entry into force of Law no. 76/2016 and further amendments, no specific legal framework was available in Italy providing recognition and protection for same sex unions. And as the result, the applicants’ same sex marriages contracted abroad could not be given recognition in Italy in any form.

Judge Koskelo’s reasoning separates from the majority reasoning since the majority focuses on the refusal to register foreign same sex marriages as marriages in Italy while the concurring opinion reasoning focuses on the refusal to provide any other kind of legal framework for same sex unions.