BriefSummary of key facts of the Case- Caseoriginally started out in 2 applications which had been submitted against Italy(these being nos. 18766/11 and 36030/11) with the European Court of HumanRights under article 34 ECHR (the articles concerns the possibility ofapplications submitted by individuals to the court) by six Italian nationals(the applicants), namely Mr Enrico Oliari, Mr A., Mr. Gian Maria Felicetti, MrRiccardo Perelli Cippo, Mr Roberto Zaccheo and Mr Riccardo Zappa.- Theapplicants issued a complaint that because of their homosexual relationshipsthe Italian legislation had not given them the possibility to either getmarried or enter into any other type of civil union as these were, according toItalian legislation, only possible for heterosexual partners since the law required a difference in sex betweenthe partners.- That requirement had been upheld by the Italian Constitutional Court(CC), which had ruled that legal recognition of homosexual unions does notrequire a union equal to marriage, although it highlighted the need for theItalian legislature to take action to recognize and to protect homosexualrelationships.- Also the Italian Court of Cassation decided in a 2015 judgment that the lackof marriage rights for same sex couples wasn’t in conflict with either nationalor international human rights law nor that this was discriminatory. However justlike the CC it mentioned that the lack of alternatives of other forms of unionfor homosexual (and also for heterosexual) couples was a problem legislationhad to solve.
– Because of these decisions, the applicants went to the ECHR and arguedthat under internal law and under court decisions made by Italian judges theywere incapable of entering into civil unions and were thus discriminatedagainst because of their homosexuality. They continued by claiming that theItalian government had violated multiple articles of the ECHR: articles 8, 12and 14. · The applicants’ complaint and human rights involved; “3.
The applicants complained that theItalian legislation did not allow them to get married or enter into any othertype of civil union and thus they were being discriminated against as a resultof their sexual orientation. They cited Articles 8 (the right to respect forprivate and family life), 12 (the rightto marry) and 14 the prohibition if discrimination of the Convention. On 3December 2013 the Chamber to which the case was allocated decided that thecomplaints concerning Article 8 alone and in conjunction with Article 14 wereto be communicated to the Government. It further decided that the applicationsshould be joined.
The Courtjudgment contains a total of 4 different preliminary objections concerning theadmissibility of the applicants’ case which were made by the Italian government,these being:1. Rule 47 of the Rules of Courta. This first objection by the Italian governmentwas where it pointed out that according to a recent revision of Rule 47, therules on the requirements for individual applications had to be applied in astricter way, and that if these requirements (seen specifically in paragraphs 1and 2 of article 47) were not met the Court could not further investigate thecase. The Court dismissed the objection made by the government on the basisthat not only had the government failed to specify in what way exactly theapplicants had failed to meet the stricter requirements but also had it forgottenthat the amended Rule 47 would only enter into force on January 1st2014.2. Victim Status, article 34 ECHR a. According to article 34 of theEuropean convention on Human rights, the Court can receive applications fromany person claiming to be victim of a violation of any of the rights set forthin the ECHR.
The Italian government argued that the applicants had not sufferedany actual damage and that the injuries cited by the applicants were onlyabstract (such as inheritance rights, assistance to the partner, etc.), meaningthat the applicants weren’t victims. The Court however considered that theapplicants are directly concerned by the absence of any legal framework forsame-sex couples wanting to enter into a civil union, and that they have alegitimate personal interest in seeing a decision from the Court, thus thatthey therefore can be considered victims in the sense of article 34 ECHR. 3.
Exhaustion of domestic remediesa. Article 35, par. 1 of the Conventionstates that The Court may only deal with the matter after all domestic remedieshave been exhausted, although this rule is based on the assumption made in art.13 ECHR that there is an effective and sufficient remedy available.
TheGovernment claimed that the applicants had failed to exhaust these and thatnational courts could have given compensation for suffered damages as well as alegal recognition of the couples’ unions. The Court however made the followingremarks: not only did the Government fail to give any example of a formalrecognition by their courts, but also one could question if such a recognition,if even possible, would have had any legal effect on the applicants’ situationswhen the government hadn’t introduced a legal framework yet. Finally, the Courtdecided that the applicants couldn’t be blamed for not wanting to pursue ineffectiveremedies, and that because of these special circumstances the applicants hadbeen absolved of their obligation to firstly exhaust domestic legal options. 4. Six months a. The government claimed that theapplicants had failed to follow the general principles of the six-month period,which runs from the date of the final decision in the process in exhaustion ofdomestic remedies, and if no effective remedy is available the period startsfrom the date of the acts complained of or from the date of taking knowledge ofthese acts
