Osservatorio delle libertà ed istituzioni religiose


Osservatorio delle Libertà ed Istituzioni Religiose

Sentenza 26 ottobre 2017


2. The Court’s assessment


(b) Compliance with Article 14 of the
Convention read in conjunction with Article 8


(iii) Application of the general
principles to the present case

38. The applicants
claimed that they had been discriminated against as a different-sex
couple, as they had no possibility of entering into a registered
partnership, an institution they preferred to marriage. The Court
therefore has to examine first whether, for the purpose of Article 14
of the Convention, the applicants were in a comparable situation to
same-sex couples who have access to registered partnerships and, if
so, whether any difference in treatment was justified.
39. The
Court accepts that different-sex couples are in principle in a
relevantly similar or comparable position to same-sex couples as
regards their general need for legal recognition and protection of
their relationship (see paragraph 35 above).
40. The Court
observes that the exclusion of different-sex couples from the
registered partnership has to be examined in the light of the overall
legal framework governing the legal recognition of relationships. The
registered partnership was introduced as an alternative to marriage in
order to make available to same-sex couples, who remain excluded from
marriage, a substantially similar institution for legal recognition
(see paragraph 13 above). Thus, the Registered Partnership Act (see
paragraphs 13-16 above) in fact counterbalances the exclusion of
same-sex couples in terms of access to legal recognition of their
relationships which existed before the Act entered into force in 2010.
In the case of Schalk and Kopf the Court found that the Registered
Partnership Act gave the applicants, a same-sex couple, the
possibility of obtaining a legal status equal or similar to marriage
in many respects. The Court concluded that there was no indication
that the respondent State had exceeded its margin of appreciation in
its choice of rights and obligations conferred by the registered
partnership (see Schalk and Kopf, cited above, § 109). Thus, the
institutions of marriage and the registered partnership are
essentially complementary in Austrian law. In this connection, the
Court observes further that, as has already been pointed out in Schalk
and Kopf, the legal status initially provided for by the Registered
Partnership Act was equal or similar to marriage in many respects, and
there were only slight differences in terms of material consequences
(ibid., § 109). Moreover, the Court observes that the legal
frameworks governing marriage and the registered partnership were
further harmonised after the Court had adopted its judgment in the
case of Schalk and Kopf and also after the applicants had lodged the
present application, and that to date no substantial differences
remain (see paragraph 16 above).
41. The applicants, as a
different-sex couple, have access to marriage. This satisfies –
contrary to same-sex couples before the enactment of the Registered
Partnership Act – their principal need for legal recognition.
They have not argued for a more specific need. Their opposition to
marriage is based on their view that a registered partnership is a
more modern and lighter institution. However, they have not claimed to
have been specifically affected by any difference in law between those
42. This being so, the Court considers that the
applicants, being a different-sex couple to which the institution of
marriage is open while being excluded from concluding a registered
partnership, are not in a relevantly similar or comparable situation
to same-sex couples who, under the current legislation, have no right
to marry and need the registered partnership as an alternative means
of providing legal recognition to their relationship. There has
therefore been no violation of Article 14 taken in conjunction with
Article 8 of the Convention.”

Sentenza 14 dicembre 2017


137. The applicants complained about the refusal to
register their marriages, contracted abroad, and the fact that they
could not marry or have any other legal recognition of their family
union in Italy. They considered that the situation was discriminatory
and based solely on their sexual orientation. They cited Article 8, 12
and 14.”

Ordinanza 06 giugno 2013, n.14329

Appare configurabile un contrasto tra l’art. 4 della legge n. 164
del 1982 (nella formulazione anteriore all’abrogazione intervenuta per
effetto del d.lgs. n. 150 del 2011) e gli artt. 2 e 29 della
Costituzione, nella parte in cui tale norma dispone che la sentenza di
rettificazione di attribuzione di sesso provoca l’automatica
cessazione degli effetti civili conseguenti alla trascrizione del
matrimonio religioso, così introducendo nel nostro ordinamento
l’unica ipotesi di “divorzio imposto ex lege”. Conforta il
prospettato dubbio di costituzionalità, sotto il profilo del
parametro imposto dagli artt. 8 e 12 della CEDU, una recentissima
pronuncia della Corte Europea dei diritti umani (caso H. contro
Finlandia, 13 ottobre 2012
[/areetematiche/documenti/documents/caseofh.v.finland.pdf]), nella
quale viene affrontata una questione analoga a quella in oggetto.