From Justice to Injustice: Lowering the Threshold of European Consensus in Oliari and Others versus Italy

Abstract:Oliari and Others v. Italy, decided by the European Court of Human Rights (ECHR) in 2015, changed its case law. The ECHR changed its position stated in Schalk and Kopf v. Austria (2010) when evaluating an alleged violation of Article 8 of the European Convention on Human Rights. It concluded that Italy has a positive obligation under the convention to guarantee alternative legal recognition for same-sex couples. The same conclusion was not reached in Schalk. In Oliari and Others, the ECHR heavily relied on the European consensus doctrine and eventually deepened formalization of two different institutions (marriage and civil unions). To challenge the ECHR's judicial interpretation techniques, the article attempts to address two questions: (i) whether the ECHR's approach to rely on the existence or absence of the majority view of the Council of Europe members should be considered as a reliable ground for justification in delivering a final judgment; (ii) whether creating two different institutions (marriage for heterosexual couples and civil unions for same-sex couples) is in line with the general principles of law. As it is argued, the ECHR's legal interpretation techniques applied in Oliari and Others have left many deficiencies that can be used to question the reliability of justice delivered.