The not guaranteed, where still today same-sex

The final objection that came up was the six – month limit.  Some applications had not all the characteristics like it had to be.   But according to the ECHR the objections were insufficient. The ECHR decided that Italy had failed to ensure that the men had specific legislation at their disposal to provide for the recognition and protection of homosexual couples. The ECHR ruled that Italy had exceeded her discretion and said  that the absence of a legal framework that ensures the recognition and protection of the relationship, violates Article 8 of the Convention so they ordered Italy to pay each of the men a compensation of 5,000 euros after the missing legislation yet was introduced on May 11, 2016. The argumentation of the Court focused on the analysis of Article 8 ECHR and especially about the meaning of “respect” entails in the present case. This led the Court focus on the difference between social reality and the law, as well as to establish if the State positive obligation to ensure right is “narrow and precise or broad and indeterminate”2 . In a land like Italy is respect for private and family life not guaranteed, where still today same-sex couples have no opportunity “to enter into a civil union or registered partnership (in the absence of marriage)”3. In a passage, the Court accentuated the conflict between the social reality of the applicants, who already live their lives as homosexuals in a relationship in Italy, and the silence of the law. The judges remain overly cautious on the right to marry, as they reaffirm that States enjoy a wider margin of appreciation, thus reiterating the same conclusions held in Shalk and Kopf, to finally declare the claim under article 12 ECHR. Although most applicants claimed that there was a violation of article 8 in conjunction with article 14, the Court decided to analyze a possible violation of article 8 alone. In this way, the judges overlooked critical on this investigation keeping the respect for the right of private and family life in light of the non-discrimination principle in mind. By ignoring an evaluation of the case under article 14 ECHR, the Court’s reasoning results flattened to a reflection about the meaning of the term “respect” in the Italian context, it thus misses the opportunity to verify in detail whether Italy satisfied the balance test under article 14, by investigating if the Government treated subjects in similar situations differently, just on the basis of their sexual orientation, and if it is like that, whether the State had especially convincing and heavy reasons to prove such treatment to be reasonably justified and legitimate. Finally, the Court’s analysis of the right to marry argument is disappointing and fails making progress like previous cases like Shalk and Kopf or Hämäläinen v. Finland.  Cause they concluded that the lack of any legal recognition of a stable relationship between homosexual partners is a violation of article 8 ECHR and not of article 12. So it even goes “backwards”, considering that in Oliari the Chamber of the Court declared the claim under article 12 inadmissible, whereas in Shalk and Kopf they judged it was acceptable.

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