Information Note on the Court’s case-law No. 125
December 2009
Muñoz Díaz v. Spain - 49151/07
Judgment 8.12.2009 [Section III]
Article 14
Discrimination
Refusal to recognise validity of Roma marriage for purposes of establishing entitlement to survivor’s pension: violation
Facts – The applicant is a Spanish national belonging to the Roma community. In 1971 she married M.D., who also belonged to the Roma community, in a marriage solemnised according to the rites of that community. They had six children, who were all listed in a family record book issued by the Spanish authorities. In 1986 they were granted “large family” status. M.D. died in 2000. He had paid social-security contributions for over nineteen years. The applicant applied for a survivor’s pension but it was refused on the ground that her marriage to M.D. had not been registered in the Civil Register. That decision was confirmed in 2001. The applicant applied to the Labour Court and was recognised as being entitled to a survivor’s pension. However, the judgment was quashed by the Higher Court of Justice. The applicant lodged an amparo appeal but it was dismissed by a judgment of 2007.
Law – Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1: As regards the arrangements for survivor’s pensions at the material time, the General Social Security Act, as then worded, had recognised an entitlement to a survivor’s pension for the surviving spouse. That statutory provision had, however, been supplemented and nuanced both in the law itself and in the case-law of the domestic courts, including that of the Constitutional Court.
At the time of the applicant’s marriage in 1971 according to Roma rites and traditions, it had not been 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 applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, when she expressed her consent to marry according to Roma rites in 1971. Admittedly, following the entry into force of the Spanish Constitution of 1978, in particular, the applicant could have opted for a civil marriage. She had argued, however, that she had believed in good faith that the marriage solemnised according to Roma rites and traditions had produced all the effects inherent in the institution of marriage. In order to assess the applicant’s good faith the Court had to take into consideration the fact that she belonged to a community within which the validity of the marriage, according to its own rites and traditions, had never been disputed, nor had it been regarded as contrary to public order by the domestic authorities, which had even recognised in certain respects the applicant’s status as spouse. The force of the collective beliefs of a community that was well-defined culturally could not be ignored. Moreover, there was an emerging international consensus amongst the member States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle. 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 M.D.’s wife 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, a situation that was regarded as particularly deserving of assistance and required recognition of spousal status. The applicant’s good faith as to the validity of her marriage, which was confirmed by the authorities’ official recognition of her situation, had given her a legitimate expectation of being regarded as the spouse of M.D. and of forming a recognised married couple with him. After M.D.’s death it had been 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 had been at odds with the authorities’ previous recognition of such status. Moreover, the applicant’s particular social and cultural situation had not been taken into account when assessing her good faith. In that connection it was noted that, under the Framework Convention for the Protection of National Minorities, the States Parties to the Convention were required to take due account of the specific conditions of persons belonging to national minorities. In the circumstances of the case, the applicant’s situation revealed a disproportionate difference in treatment compared to that normally reserved for marriages contracted in good faith. In its judgment the Labour Court had interpreted the applicable legislation in the applicant’s favour. However, the Higher Court of Justice had quashed that judgment without drawing any conclusions from the specificities of the Roma minority. In the light of the foregoing, it had been disproportionate for the Spanish State, which had 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 came to the survivor’s pension.
Lastly, the Court could not 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. The prohibition of discrimination enshrined in Article 14 was meaningful only if, in each particular case, the applicant’s personal situation in relation to the criteria listed in that provision was taken into account exactly as it stood.
Conclusion: violation (six votes to one).
Article 41: EUR 70,000 for all heads of damage combined.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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