PROCEDURE

The case originated in an application (no. 49151/07) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mrs María Luisa Muñoz Díaz (“the applicant”), on 29 October 2007.

The applicant was represented by Ms M. Queipo de Llano López‑Cózar, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr I. Blasco Lozano, Head of the Human Rights Department at the Ministry of Justice.

The applicant, a Rom of Spanish nationality, complained about a refusal to grant her a survivor’s pension, following the death of M.D., also a Rom of Spanish nationality, on the sole ground that they were not a married couple under Spanish law. She alleged that there had been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and Article 12 of the Convention.

On 13 May 2008 the Court decided to give notice of the application to the Government. As provided for by Article 29 § 3 of the Convention, it was also decided that the Chamber would examine the admissibility and merits of the case at the same time.

The parties filed their observations. In addition, third-party comments were received from Unión Romaní which had been given leave by the President to intervene in the written procedure as amicus curiae (Article 36 § 2 of the Convention and Rule 44 § 2 of the Rules of Court).

A hearing took place in public in the Human Rights Building, Strasbourg, on 26 May 2009 (Rule 59 § 3). There appeared before the Court: (a) for the Government Mr I. Blasco Lozano, Head of the Human Rights Department at the Ministry of Justice, Agent; (b) for the applicant Ms M. Queipo de Llano López-Cózar, Mr S. Sánchez Lorente, Counsel; (c) for the third party Mr J.D. Ramírez Heredia, Chairman of Unión Romaní. The Court heard addresses by Mr Blasco Lozano, Ms Queipo de Llano López-Cózar and Mr Sánchez Lorente and their replies to questions from Judges López Guerra and Myjer. It also heard statements by Mr Ramírez Heredia and by Mrs Muñoz Díaz, the applicant.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1956 and lives in Madrid.

The applicant and M.D., both members of the Roma community, were married in November 1971 according to their community’s own rites. The marriage was solemnised in accordance with Roma customs and cultural traditions and was recognised by that community. For the Roma community, a marriage solemnised according to its customs gives rise to the usual social effects, to public recognition, to an obligation to live together and to all other rights and duties that are inherent in the institution of marriage.

The applicant had six children, who were registered in the family record book issued to the couple by the Spanish civil registration authorities (Registro civil) on 11 August 1983.

On 14 October 1986 the applicant and her family were granted first-category large-family status, under the number 28/2220/8, pursuant to the Large-Family Protection Act (Law no. 25/1971 of 19 June 1971).

On 24 December 2000 the applicant’s husband died. He was a builder and at the time of his death had been working and paying social security contributions for nineteen years, three months and eight days, supporting his wife (registered as such) and his six children as his dependants. He had been issued with a social security benefit card, stamped by Agency no. 7 of Madrid of the National Institute of Social Security (Instituto Nacional de la Seguridad Social – “the INSS”).

The applicant applied for a survivor’s pension. In a decision of 27 March 2001, the INSS refused to grant her one on the following ground: “[she was] not and [had] never been the wife of the deceased prior to the date of death, as required by paragraph 2 of the seventh amendment to Law no. 30/1981 of 7 July 1981 (in force at the material time), combined with section 174 of the General Social Security Act [Ley General de la Seguridad Social – “the LGSS”] approved by Royal Legislative Decree no. 1/1994 of 20 June 1994.”

That decision was confirmed by a decision of the same Institute dated 10 May 2001.

The applicant filed a claim with the Labour Court. In a judgment dated 30 May 2002 of Labour Court no. 12 of Madrid, she was granted an entitlement to receive a survivor’s pension with a base rate of 903.29 euros per month, her Roma marriage thus being recognised as having civil effects. The relevant part of the judgment read as follows: “... In our country the Roma minority (etnia gitana) has been present since time immemorial and it is known that this minority solemnises marriage according to rites and traditions that are legally binding on the parties. These marriages are not regarded as being contrary to morality or public order and are recognised socially. ... Article 61 of the Civil Code provides that marriage has civil effects from the time it is solemnised but that it must be registered in the Civil Register if those effects are to be recognised. Roma marriages are not registered in the Civil Register because they have not been regarded by the State as a feature of the ethnic culture which has existed in our country for centuries. ... The argument relied upon against the applicant in order to deny her a survivor’s pension is solely the non-recognition of the civil effects of her marriage to the insured person (a working man of Spanish nationality with rights and obligations governed by domestic and European Community law), notwithstanding the fact that Spain has ratified the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966. ... The lack of regulation of the recognition of the civil effects of Roma marriage cannot hinder the protective action to which the State has committed itself by laying down social security norms. ... Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin is applicable to the present case, where the denied benefit derives from the employment relationship of the insured person, who died from natural causes while he was still working. ... Article 4 § 1 of the Civil Code states [that] ‘norms are applied mutatis mutandis where they do not specifically contemplate the case in question but a comparable one which can be regarded as having a similar object’. Such application mutatis mutandis is applicable to the present case. ... The applicant’s marriage is not registered in the Civil Register, although that is not expressly ruled out. It is not recognised as having civil effects or as giving rise to the enjoyment of social protection by the survivor on the death of either spouse. Roma marriage is not covered by Spanish legislation, in spite of that ethnic minority’s social and cultural roots in our country. However, as noted above, marriages solemnised according to certain religious rites and customs that were, until quite recently, foreign to our society, [do] have a legal framework. These are therefore similar cases, albeit that it is not a religion that is concerned here. They have a similar object (community of cultures and customs present within the Spanish State). The refusal by the INSS to grant the applicant a survivor’s pension, the sole obstacle being that the marriage between the widow and the deceased is not recognised, reveals discriminatory treatment on grounds of ethnic affiliation in breach of Article 14 of the Spanish Constitution and Directive 2000/43/EC.”

The INSS appealed. In a judgment of 7 November 2002, the Madrid Higher Court of Justice quashed the impugned judgment, giving the following reasons: “... It should be noted that the principle of equality and non-discrimination is based on the idea that equal situations should be treated equally and on [the idea] that equal treatment applied to situations which are not equal constitutes injustice. This also means that the law applicable to all should not be departed from in such a manner [as to enable] the creation of more exceptions than those that are expressly contemplated in that law. ... A distinction must be made between the legislation that is in force and is applicable at all times and what may be considered desirable by a given sector of society. ... Under the provisions of Article 49 of the Civil Code, every Spanish national (such as the applicant and the deceased) may opt for a civil marriage before a magistrate, a mayor or a public official designated [by that Code], or for a religious marriage as provided for by law. ... In accordance with the foregoing, if a civil marriage is to be solemnised through regulated formalities, that must also be the case for a religious marriage, whose formalities will be those of the religious denomination – such formalities being laid down by the State, or otherwise accepted by its legislation. [It will be in such circumstances] that the marriage produces civil effects. ... A marriage solemnised solely and exclusively according to Roma rites is not covered by any of the above-mentioned cases, as even though an ethnic group is concerned, the norms or formalities of that group do not produce any legal effect outside its own environment and are not enshrined in the law that provides for the impugned pension. [Such a marriage], which is certainly meaningful and enjoys social recognition in the environment concerned, does not exclude, and currently does not supersede, the law that is in force and is applicable to the present case, in so far as it concerns a marriage between Spanish nationals that took place in Spain. An ethnic group, moreover, is merely a group which is differentiated on grounds of race ... and a rite is merely a custom or ceremony. ... As far as customs are concerned, under Article 1 § 3 of the Civil Code they only apply in the absence of an applicable law. ... The morality of the rite or its conformity with public order are not called into question, but only its capacity to produce erga omnes obligations, whereas in Spain there are statutory norms governing marriage. The answer, clearly, can only be in the negative. ... A marriage, in order to produce civil effects, can only be one that is solemnised civilly or religiously according to the terms set out above. Roma marriage does not correspond, in the current framework of our law, to the nature of the marriages referred to above. Section 174 of the LGSS requires that a person be the spouse of the deceased in order to benefit from the survivor’s pension, and the notion of spouse has been interpreted strictly according to an established constitutional and ordinary case-law (in spite of dissenting views), according to which a couple living together de facto as husband and wife and many others who, in reality, are not married under the applicable law, are excluded from the benefit of that pension.”

The applicant lodged an amparo appeal with the Constitutional Court, relying on the principle of non-discrimination in terms of race and social condition. In a judgment of 16 April 2007, the Constitutional Court dismissed the appeal as follows: “... The court, in a plenary sitting, reiterated ... the reasons for concluding that to limit the survivor’s pension to cases of institutionalised cohabitation as husband and wife, excluding other forms of partnership or cohabitation, did not constitute discrimination on social grounds. In this connection, it was submitted that the legislature retained a significant degree of discretion in determining the configuration of the social security system and in assessing the socio-economic circumstances in a context of the administration of limited resources with a view to addressing a large number of social needs, bearing in mind that an entitlement to a survivor’s pension was not strictly conditional, in a contribution-related system, on an actual situation of necessity or economic dependence, or even unfitness for work, in the case of the surviving spouse. In any event, the plenary court also commented on the fact that the extension, by the legislature, of the survivor’s pension to other forms of partnership was not prohibited by Article 14 of the Spanish Constitution either. ... A supposed discrimination on social grounds must be rejected for the reasons given above. ... No violation of Article 14 arises from the fact of limiting the survivor’s pension in practice to married couples. Similarly, no discriminatory treatment, whether direct or indirect, for racial or ethnic reasons, arises from the fact that the applicant’s partnership, in accordance with the rites and customs of the Roma community, has not been assimilated with marriage for the purposes of the said pension, and that the same legal rules as those applying to ‘more uxorio’ cohabitation have been applied to it. Firstly, ... the court reiterated that ‘discrimination by absence of differentiation’ did not arise from Article 14 of the Spanish Constitution, as the principle of equality did not afford a right to [differentiated] treatment, nor did it protect the lack of distinction between different cases. There was thus no individual right to differentiated normative treatment. ... Secondly, the statutory requirement of a marital relationship as a condition for the enjoyment of a survivor’s pension, and the interpretation arising from the impugned decision, taking into account the marital relationship that stems from the legally recognised forms of access to marriage, and not any other forms of cohabitation, in particular partnerships according to Roma habits and customs – such requirement not being in any way related to racial or ethnic considerations, but to the fact [for the interested parties] of having freely chosen not to formalise marriage by recognised statutory, civil or religious procedures – never takes into consideration a person’s race or the customs of a given ethnic group to the detriment of others. As a result, there is no form of covert discrimination here against the Roma ethnic group. ... Lastly, the court must reject the idea that the recognition of the civil effects of a marital relationship created by certain specific religious rites, but not one that has been solemnised according to Roma rites and customs, and the refusal of the judicial body to accept the latter mutatis mutandis [...], may entail directly or indirectly, the alleged ethnic discrimination. ... To sum up, in view of the fact that the law establishes a general possibility – neutral from a racial and ethnic point of view – of marrying in the civil form, and that the legislature, in deciding to attach statutory effects to other forms of accession to a marital relationship, did so exclusively on the basis of religious considerations and thus without reference to any ethnic grounds, no discriminatory treatment with an ethnic connotation, as alleged, may be found.”

A dissenting opinion was appended to the judgment. It referred to judgment no. 199/2004, in which the Constitutional Court had found a violation of the right to equality in a case concerning the widower of a civil servant, after finding that a marital relationship existed but not a marriage, since it had not been registered civilly, the parties having expressly refused such registration of their marital relationship which had been solemnised in a religious form.

For the dissenting judge, that case of a surviving spouse from an unregistered religious marriage was comparable to that of the applicant, in that the two claimants had applied for a survivor’s pension on the basis of what they considered to be a marital relationship, albeit that it had not been registered civilly.

Furthermore, the dissenting judge pointed out that, even though Spain was a party to the Framework Convention for the Protection of National Minorities, which it signed at Strasbourg on 1 February 1995, the case-law of the Constitutional Court did not take into account the rites, practices or customs of a specific ethnic group, nor did it regard as valid and subject to constitutional protection the acts of individuals belonging to minorities who sought respect for their cultural traditions.

According to the dissenting judge, the situation presented in this amparo appeal showed, for the first time, that the protection of minorities had a much broader constitutional significance than simply the response received by the applicant. The applicant should not have been obliged to take her case to a supranational body in order to obtain the protection claimed. In cases concerning the protection of ethnic minorities, the guarantee of equality required measures of positive discrimination in favour of the underprivileged minority, and respect, with the appropriate sensitivity, for the subjective value that a person belonging to such a minority accorded and required as regards respect for its traditions and the heritage of its cultural identity. The dissenting judge concluded as follows: “It is disproportionate for the Spanish State, which took into consideration the applicant and her Roma family by issuing them with a family record book, granting them large-family status, affording health-care assistance to her and her six children and collecting the corresponding contributions from her Roma husband for nineteen years, three months and eight days, now to refuse to recognise the Roma marriage when it comes to the survivor’s pension.”

On 3 December 2008, under the third amendment of Law no. 40/2007 of 4 December 2007 pertaining to certain social security measures, the applicant was granted a survivor’s pension with effect from 1 January 2007, as the partner of M.D.

II. RELEVANT DOMESTIC AND EUROPEAN LAW

The relevant provisions of the Spanish Constitution are as follows: Article 14 “Spaniards shall be equal before the law; they may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” Article 16 “1. Freedom of ideas, religion and worship shall be guaranteed to individuals and communities without any restrictions on its expression other than those necessary for the maintenance of public order as protected by law.

No one shall be required to declare his ideological, religious or other beliefs. ...” Article 32 § 2 “1. Men and women shall have the right to enter into a marriage with full legal equality.

The law shall determine the forms of marriage, the requisite age and capacity for marriage, the rights and duties of the spouses, the grounds for separation and dissolution and the effects thereof.”

The relevant provisions of the Civil Code, as in force in 1971, read as follows: Article 42 “The law recognises two forms of marriage: the canonical form and the civil form. Marriage shall be solemnised in the canonical form when at least one of the participants identifies with the Catholic faith. Civil marriage shall be authorised where it is established that neither of the parties identifies with the Catholic faith.”

The provisions applicable to the present case of the Civil Registration Rules, as in force at the relevant time (Decree no. 1138/1969 of 22 May 1969), read as follows: Article 245 “Persons who have renounced the Catholic faith shall, as soon as possible, provide proof that they have given notice of such renunciation to the priest of their home parish.” Article 246 “...

In cases not provided for by the previous provision, proof of non-affiliation to the Catholic faith may be produced, either by a certificate of affiliation to another religious denomination, delivered by the competent minister or the authorised representative of the religious association in question, or in the form of an express declaration by the person concerned before the registrar.”

The relevant provisions of the Civil Code, in its current version, read as follows: Article 44 “A man and a woman shall have the right to enter into marriage in accordance with the provisions of the present Code.” Article 49 “Any Spanish national is entitled to marry in Spain or abroad:

Before a magistrate, a mayor or a public servant designated by the present Code.

In the religious form provided for by law. [Any Spanish national] may also marry abroad in accordance with the formalities required by the law in the place where the marriage is solemnised.”

The relevant provision of Law no. 30/1981 of 7 July 1981, amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of nullity, judicial separation and divorce, reads as follows: Tenth amendment “...

[As regards persons] who have not been able to marry on account of the legislation currently in force but who have lived as [a married couple], when the death of one of the partners has occurred before the entry into force of the present Law, the survivor will be entitled to the benefits provided for in the first paragraph of the present provision and to the corresponding pension in accordance with the following paragraph.”

Section 2 of the Large-Family Protection Act (Law no. 25/1971 of 19 June 1971) reads as follows: “1. A family shall be classified as large when, in addition to fulfilling the other conditions laid down herein, it is made up of: (a) the head of the household, his spouse and four or more children ...”

Section 174 of the Ley General de la Seguridad Social (“the LGSS”) (as in force at the material time) read as follows: “1. The surviving spouse ... shall be entitled to a survivor’s pension.

... In the event of nullity of a marriage, the surviving spouse’s entitlement to the survivor’s pension shall be recognised in proportion to the period of his or her cohabitation with the insured person, provided he or she has not acted in bad faith and has not remarried ...”

Section 174 of the LGSS, approved by Royal Legislative Decree no. 1/1994 of 20 June 1994, reads as follows: “1. A survivor’s pension shall be granted for life ... to the surviving spouse when, on the death of his or her spouse the latter had been working ... and had paid contributions for the statutory period ...

In the event of judicial separation or divorce, a survivor’s pension shall be granted to a person who is or was a lawful spouse, provided in the case of divorce that he or she has not remarried, in proportion to the period of cohabitation with the deceased spouse and regardless of the causes of the judicial separation or divorce. In the event of nullity of a marriage, a survivor’s pension shall be granted to the surviving spouse provided that he or she has not acted in bad faith and has not remarried, in proportion to the period of his or her cohabitation with the insured person. ...”

Law no. 40/2007 of 4 December 2007 on social security measures, amending the LGSS, reads as follows: Third transitional amendment “Exceptionally, a survivor’s pension shall be granted where the death of the insured person occurred before the entry into force of the present Act, subject to fulfilment of the following conditions: (a) at the time of the death of the insured person, who was working and paying social security contributions as provided for by section 174 of the simplified text of the General Social Security Act, [the survivor] was unable to claim an entitlement to the survivor’s pension; (b) the beneficiary and the insured person lived together continuously as unmarried partners ... for at least six years prior to the death; (c) the insured person and the beneficiary had children together; (d) the beneficiary has no recognised entitlement to receive a contributory pension from the social security; (e) to have access to the pension [hereunder], the claim must be filed within a non-extendable period of twelve months following the entry into force of the present Act. The recognition of the pension entitlement will take effect from 1 January 2007, subject to the fulfilment of all the conditions provided for in the present provision.”

Various cooperation agreements have been entered into between the Government and religious denominations: agreement with the Holy See (Concordat of 1979), agreement with the Evangelical Federation under Law no. 24/1992 of 10 November 1992, agreement with the Islamic Commission under Law no. 26/1992 of 10 November 1992, and agreement with the Jewish Federation under Law no. 25/1992 of 10 November 1992. Marriages solemnised according to the rites of those religious denominations are therefore recognised by the Spanish State as constituting a valid form of expression of consent to marriage. They thus produce civil effects by virtue of agreements entered into with the State.

The relevant case-law of the Constitutional Court is as follows: “Constitutional Court judgments no. 260/1988 of 22 December 1988 and no. 155/1998 of 13 June 1998, among others, concerned entitlements to a survivor’s pension in cases where canonical marriage had not been possible because of the impossibility of divorce. Constitutional Court judgment no. 180/2001 of 17 September 2001 recognised the right to compensation for the death of a partner if a canonical marriage had not been possible on account of a conflict with freedom of conscience or religion (before the legislative amendment of 1981). Constitutional Court judgment no. 199/2004 of 15 November 2004 concerned a survivor’s pension entitlement derived from a canonical marriage that did not fulfil the statutory conditions of form because the parties had voluntarily omitted to register it in the Civil Register. The Constitutional Court recognised in that case an entitlement for the widower to receive a survivor’s pension.”

The Council of Europe’s Framework Convention for the Protection of National Minorities, opened for signature on 1 February 1995, contains the following provisions in particular: Article 1 “The protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international cooperation. ...” Article 4 “1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.

The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.

The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.” Article 5 “1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage.

Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.”

Spain signed the Convention on the day that it was opened for signature and ratified it on 1 September 1995. It came into force in respect of Spain on 1 February 1998.