Eduardo Savarese

On the Border of the Case Oliari: That Is How the Italian Limbo Has Violated the Positive Obligations Under ECHR Art. 8

  • Abstract

Informations and abstract

Keywords: Right to Private and Family Life; Rights of Same-Sex Couples; Positive Obligations; Margin of Appreciation; Interest of the Community; Legislative Inactivity

With the case "Oliari v. Italy", the European Court of human rights focuses on the right of same-sex couples to private and family life under art. 8 of the Convention. It is the first time in the case-law of the Court that this right is recognized throughout the assertion of a positive obligation upon the Italian State to adopt a general regulation concerning the family life of same-sex couples. The Court does not impose to Italy the adoption of such a regulation but, nonetheless, its reasoning entails the same effect: the lack of normative recognition of stable relationships among same-sex persons causes "per se" an art. 8 violation. This stems from the specific circumstances of the Italian case: i) the inactivity of the Italian Parliament; ii) the contradictory conduct of the executive power against the judiciary openness to the demand of recognition by same-sex couples and iii) the absence of general interests in the civil society which militate against the full recognition by law of same-sex couples. While the concurring opinions contest the progressive approach adopted by the majority, it is our view that the use of the general category of positive obligations upon the State is the most clear - cut and coherent answer to the juridical requests by same-sex couples.

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