MINELRES: ERT Court-Watch: Spains Failure to Recognise Civil Effects of Roma Marriage Constitutes Discrimination

minelres@lists.microlink.lv minelres@lists.microlink.lv
Sat Dec 19 15:47:21 2009


Original sender: Equal Rights Trust <equalrightstrust1@response.pure360.com>


Spain: Non-recognition of Roma Marriage Violates Article 14 ECHR  
London, 17 December 2009  
 
On 8 December 2009 the European Court of Human Rights (ECHR) held that
Spain had violated Article 14 (prohibition of discrimination) of the
European Convention on Human Rights in conjunction with Article 1 of
Protocol 1 to the Convention (right to peaceful enjoyment of
possessions). The case of Munoz Diaz v Spain (Application no. 49151/07)
was lodged with the ECHR on 29 October 2007 following a series of
appeals in the Spanish Courts over the applicant’s entitlement to a
survivor’s pension under the General Social Security Act. 

The applicant, Mrs Maria Luisa Munoz Diaz, is a Spanish national of Roma
descent, living in Madrid. In November 1971, the applicant had married
Mr Munoz Diaz (MD) in accordance with Roma traditions and customs. On 24
December 2000, MD died and the applicant applied for a survivor’s
pension. MD had been making social security contributions for over 19
years. 

In March 2001, the Instituto Nacional de la Seguridad Social (the
National Institute of Social Security, hereinafter, the INSS) refused
the pension application on grounds that the applicant “[had] never been
the wife of the deceased prior to the date of death”. The INSS argued
that the applicant’s 1971 marriage did not constitute a valid civil
marriage as required by the relevant provisions of the marriage code and
the General Social Security Act 1994. Following a series of appeals, the
Spanish Constitutional Court held that the applicant had not been
subject to discrimination on grounds of race or social status, as she
had claimed. 

Decision

The Court observed that in previous cases concerning survivor’s
pensions, the Spanish Constitutional Court had taken into account the
existence of both good faith on the part of the applicant and
exceptional circumstances rendering marriage impossible in assessing the
validity of a marriage. It further observed that 1981 amendments to the
law recognised the entitlement to a survivor’s pension in the absence of
marriage where obtaining canonical consent for a marriage was impossible
on grounds of religious belief.

In assessing the applicant’s claim of good faith in believing herself to
be entitled to the survivor’s pension as a spouse, the Court observed
inter alia that the civil registration authorities had granted the
family status as a ‘large family’, for which the parents had to be
spouses. It further noted that the applicant’s particular social and
cultural situation had not been taken into account when assessing her
good faith. In assessing the applicant’s claim that in her case civil
marriage was impossible, the Court observed that in 1971 it was not
possible to be married other than with the Canon-law rites of the
Catholic Church.

The Court concluded that the applicant’s good faith, confirmed by the
actions of the State in recognising her marriage in other contexts, gave
her a legitimate expectation of entitlement to a survivor’s pension. It
found that the State’s refusal to recognise the marriage on the basis of
her good faith was at odds with its recognition of marriage for the
purpose of survivor pensions in other cases and that this constituted
discriminatory treatment within the meaning of Article 14.

Click here for a link to ERT’s case summary:
http://www.equalrightstrust.org/view-subdocument/index.htm?id=638