EHRM, 08-12-2009, nr. 49151/07

The applicant observed that the Government had not explained why her situation had been regarded as a ‘more uxorio’ cohabitation and not as a marriage which was null and void but believed in good faith to exist, and which might entitle her, as surviving spouse, to a survivor's pension. She pointed out that there had been no reason for her to believe that the welfare entitlements she had enjoyed during her husband's life would be withdrawn from her after his death.

The applicant emphasised that, in other cases, the inexistence of a ‘legal’ marriage had not precluded the granting of such a pension: under the General Social Security Act a pension entitlement was granted, in the event of the nullity of a marriage, to a spouse who had shown good faith. In addition, case-law afforded a pension entitlement to couples who believed in the existence of a marriage even though it was not registered civilly, to couples who were prevented from legally marrying because of the impossibility of divorce, or to couples who did not marry because it was against their beliefs.

The Government contested that argument. They took the view that, the law applicable to the applicant being the same for all Spanish nationals, there had been no discrimination based on ethnic origin or any other reason and that the alleged difference in treatment could be explained by the fact that the applicant had not married M.D. but had had a more uxorio relationship with him.

The Government emphasised that there was no obligation to treat in the same manner those who had complied with the statutory formalities and those who, without being prevented from doing so, had not complied with them. The statutory requirement that there had to be a legal marital relationship for a survivor's pension entitlement to obtain did not constitute discrimination on racial or ethnic grounds. The refusal to grant the said pension to the applicant stemmed solely from her free and voluntary decision not to observe the statutory formalities of marriage, which were not based on the fact of belonging to a particular race, nor on the traditions, habits or customs of a particular ethnic group to the detriment of others. Those formalities did not therefore constitute direct or indirect discrimination against the Roma community.

The Unión Romaní pointed out that Roma marriage was no different to any other types of marriage. It explained that Roma marriage existed when a man and a woman expressed their intention to live together and their desire to found a family, which was the foundation of the Roma community. It took the view that it was disproportionate for the Spanish State, having issued the applicant and her family with a family record book, having granted them large-family status, having provided the applicant and her six children with healthcare and having collected her husband's contributions for over nineteen years, now to disregard the validity of her Roma marriage when it came to the survivor's pension.

According to the Court's established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. The ‘lack of objective and reasonable justification’ means that the impugned difference in treatment does not pursue a ‘legitimate aim’ or that there is not a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised’ (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175 and 196, ECHR 2007-…, with further references).

The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify different treatment (see, among other authorities, Gaygusuz, § 42, and Thlimmenos, § 40, both cited above). The scope of this margin will vary according to the circumstances, the subject-matter and the background. Thus, for example, Article 14 does not prohibit a member State from treating groups differently in order to correct ‘factual inequalities’ between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may, without objective and reasonable justification, give rise to a breach of that Article (see Thlimmenos, cited above, § 44; Stec and Others v. the United Kingdom [GC], no. 65731/01, § 51, ECHR 2006-VI; and D.H. and Others, cited above, § 175).

Similarly, a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the Court will generally respect the State's policy choice unless it is ‘manifestly without reasonable foundation’ (see, for example, National & Provincial Building Society and Others v. the United Kingdom, 23 October 1997, § 80, Reports 1997-VII, and Stec and Others, judgment cited above, § 52).

Lastly, as regards the burden of proof in the sphere of Article 14 of the Convention, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see D.H. and Others, cited above, § 177).

As to the circumstances of the present case, the applicant complained about the refusal to grant her a survivor's pension on the ground that she had not been married to M.D, her marriage according to Roma rites and traditions having been regarded as a more uxorio relationship — a mere de facto marital relationship. For the applicant, to treat her relationship with M.D. as a mere de facto marital relationship for the purposes of the survivor's pension constituted discrimination in breach of Article 14 of the Convention taken together with Article 1 of Protocol No. 1. That discrimination was based on the fact that her application for a survivor's pension had received different treatment in relation to other equivalent cases in which an entitlement to a survivor's pension had been recognised even though the beneficiary had not been married according to the statutory formalities, whereas, in her case, neither her good faith nor the consequences of the fact that she belonged to the Roma minority had been taken into account.

The Court finds that the applicant was married to M.D. in November 1971 according to the rites and traditions of the Roma community. They had six children together. The applicant lived with M.D. until his death on 24 December 2000. On 11 August 1983 the civil registration authorities issued them with a family record book indicating the couple and their children. On 14 October 1986 they were granted the administrative status of large family, for which the parents had to be ‘spouses’ (see paragraph 27 above), and were able to exercise all the corresponding rights. Moreover, M.D. was covered by social security, to which he contributed for nineteen years, three months and eight days, and his social security card indicated that he supported the applicant, as his wife, and his six children. The Court notes that this is an official document as it is stamped by the INSS Agency no. 7 of Madrid.

As regards the arrangements for survivor's pensions at the material time, the Court observes that the General Social Security Act, according to the version then in force, recognised an entitlement to a survivor's pension for the surviving spouse. That statutory provision was, however, supplemented and nuanced both in the law itself and in the case-law of the domestic courts, including that of the Constitutional Court (see paragraph 32 above).

The constitutional case-law has indeed taken into account, in recognising survivor's pensions, the existence both of good faith and of exceptional circumstances rendering the celebration of marriage impossible, even though no legally valid marriage has taken place. The Court notes that the tenth amendment to Law no. 30/1981 of 7 July 1981, amending the provisions pertaining to marriage (see paragraph 26 above), recognised an entitlement to a survivor's pension even in the absence of marriage, in cases where it had not been possible to give consent according to canonical rites. It observes that, according to the interpretation of that provision by constitutional case-law, a survivor's pension may be granted in the event of an impediment to marriage (in the canonical form), for example where a divorce could not be obtained, or where marriage was against the couple's beliefs (see paragraph 32 above). The General Social Security Act, as in force at the material time, recognised in section 174 an entitlement to a survivor's pension where there had been a belief in good faith in the existence of a marriage that was null and void. The Constitutional Court has moreover recognised, in particular in its judgment no. 99/04 (see paragraph 32 above), a survivor's pension entitlement in the event of a canonical marriage where the statutory requirements were not met, as the marriage had not been registered in the Civil Register for reasons of conscience.

In view of the foregoing, the question arising in the present case is whether the fact that the applicant was denied the right to receive a survivor's pension reveals discriminatory treatment based on her affiliation to the Roma minority, in relation to the manner in which legislation and case-law have treated similar situations where the persons concerned believed in good faith that they were married even though the marriage was not legally valid.

The applicant based her claim, firstly, on her conviction that her marriage, solemnised according to Roma rites and traditions, was valid, and secondly, on the conduct of the authorities, which had officially recognised her as the spouse of M.D. and had consequently accepted, in her submission, the validity of her marriage.

The Court takes the view that the two questions are closely linked. It observes that the domestic authorities did not deny that the applicant believed in good faith that she was really married. Her belief was all the more credible as the Spanish authorities had issued her with a number of official documents certifying her status as spouse of M.D.

For the Court, it is necessary to emphasise the importance of the beliefs that the applicant derives from belonging to the Roma community — a community which has its own values that are well established and deeply rooted in Spanish society.

The Court observes, in the present case, that when the applicant got married in 1971 according to Roma rites and traditions, it was not possible in Spain, except by making a prior declaration of apostasy, to be married otherwise than in accordance with the canon-law rites of the Catholic Church. The Court takes the view that the applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, in 1971, when she expressed her consent to marry according to Roma rites.

Admittedly, following the entry into force of the Spanish Constitution of 1978 and by virtue of Law no. 30/1981 of 7 July 1981 (paragraph 26 above), the applicant could have opted for a civil marriage. The applicant argued, however, that she believed in good faith that the marriage solemnised according to Roma rites and traditions produced all the effects inherent in the institution of marriage.

In order to assess the applicant's good faith the Court must take into consideration the fact that she belongs to a community within which the validity of the marriage, according to its own rites and traditions, has never been disputed or regarded as being contrary to public order by the Government or the domestic authorities, which even recognised in certain respects the applicant's status as spouse. The Court takes the view that the force of the collective beliefs of a community that is well-defined culturally cannot be ignored.

The Court observes in this connection that there is an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle (see paragraph 33 above, in particular the Framework Convention for the Protection of National Minorities), not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity that is of value to the whole community (see Chapman v. the United Kingdom [GC], no. 27238/95, § 93, ECHR 2001-I).

The Court takes the view that, whilst the fact of belonging to a minority does not create an exemption from complying with marriage laws, it may have an effect on the manner in which those laws are applied. The Court has already had occasion to point out in the Buckley judgment (albeit in a different context), that the vulnerable position of Roma means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (see Buckley v. the United Kingdom, 25 September 1996, §§ 76, 80 and 84, Reports 1996-IV; Chapman, cited above, § 96; and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004).

In the present case, the applicant's belief that she was a married woman, with all the effects inherent in that status, was undeniably strengthened by the attitude of the authorities, who had recognised her as the wife of M.D. and had done so very concretely by issuing her with certain social security documents, in particular a registration document showing her as a wife and the mother of a large family, this situation being regarded as particularly worthy of assistance and requiring, pursuant to Law no. 25/1971 of 19 June 1971, recognition of status as spouse.

For the Court, the applicant's good faith as to the validity of her marriage, being confirmed by the authorities' official recognition of her situation, gave her a legitimate expectation of being regarded as the spouse of M.D. and of forming a recognised married couple with him. After the death of M.D. it was natural for the applicant to hope that she would be entitled to a survivor's pension.

Consequently, the refusal to recognise the applicant as a spouse for the purposes of the survivor's pension was at odds with the authorities' previous recognition of such status. Moreover, the applicant's particular social and cultural situation were not taken into account in order to assess her good faith. In this connection, the Court notes that, under the Framework Convention for the Protection of National Minorities (see paragraphs 33 and 34 above), the States Parties to the Convention are required to take due account of the specific conditions of persons belonging to national minorities.

The Court takes the view that the refusal to recognise the applicant's entitlement to a survivor's pension constituted a difference in treatment in relation to the treatment afforded, by statute or case-law, to other situations that must be considered equivalent in terms of the effects of good faith, such as belief in good faith in the existence of a marriage that is null and void (section 174 of the LGSS; and Constitutional Court judgment no. 199/2004 of 15 November 2004 — see paragraph 32 above —, concerning a failure to register a religious marriage on grounds of conscience). The Courts finds it established that, in the circumstances of the present case, the applicant's situation reveals a disproportionate difference in treatment in relation to the treatment of marriages that are believed in good faith to exist.

Admittedly, section 174 of the LGSS, as in force at the material time, recognised a survivor's pension entitlement in the absence of a legal marriage only where the marriage was null and void and was believed in good faith to exist. However, that provision cannot exempt a respondent State from all responsibility under the Convention. The Court observes in this connection that Law no. 40/2007 introduced into the LGSS the possibility for a survivor's pension to be granted in cases of a de facto marital relationship (see paragraph 30 above).

The Court observes that in its judgment of 30 May 2002 Labour Court no. 12 of Madrid interpreted the applicable legislation in the applicant's favour. It referred to Article 4 § 1 of the Civil Code, which provides that norms may be applied mutatis mutandis where they do not specifically contemplate the case in question but a comparable one, the object in both cases being regarded as similar. The Labour Court accordingly interpreted the applicable legislation in accordance with the criteria set out by the Court in its above-mentioned Buckley v. the United Kingdom judgment.

The Labour Court judgment was, however, overturned on appeal by the judgment of 7 November 2002. The Higher Court of Justice of Madrid then took the view (see paragraph 15 above) that ‘the principle of equality and non-discrimination [was] based on the idea that equal situations [had to] be treated equally’ and ‘that equal treatment applied to situations which [were] not equal constitute[d] injustice’. The Court notes that the appellate court drew no conclusion from the specificities of the Roma minority, even though it did recognise that Roma marriage was ‘certainly meaningful and enjoy[ed] social recognition in the environment concerned’ and that the morality of the rite or its conformity with public order were not called into question. For the Higher Court of Justice, it was clear that this situation ‘[did] not exclude, and currently [did] not supersede, the law that [was] in force and [was] applicable to the present case’.

In the light of the foregoing and in view of the specific circumstances of the present case, the Court finds that it is disproportionate for the Spanish State, which issued the applicant and her Roma family with a family record book, granted them large-family status, afforded health-care assistance to her and her six children and collected social security contributions from her Roma husband for over nineteen years, now to refuse to recognise the effects of the Roma marriage when it comes to the survivor's pension.

Lastly, the Court cannot accept the Government's argument that it would have been sufficient for the applicant to enter into a civil marriage in order to obtain the pension claimed. The prohibition of discrimination enshrined in Article 14 of the Convention is meaningful only if, in each particular case, the applicant's personal situation in relation to the criteria listed in that provision is taken into account exactly as it stands. To proceed otherwise in dismissing the victim's claims on the ground that he or she could have avoided the discrimination by altering one of the factors in question — for example, by entering into a civil marriage — would render Article 14 devoid of substance.

Consequently, the Court finds that in the present case there has been a violation of Article 14 of the Convention taken together with Article 1 of Protocol No. 1.