Is a more inclusive wind blowing through the Court?

Recently the European Court of Human Rights issued an interesting judgment in a case concerning a Roma Marriage. (Muñoz Diaz v. Spain, 8 December 2009) Muñoz Diaz and M.D. married in 1971 according to Roma traditions. This marriage was recognized by the Roma community. When her husband died, Muñoz Diaz applied for a survivor’s pension, but this request was denied on the ground that she “was not and had never been the wife of the deceased prior to the date of death” as she never solemnized her marriage under Civil law. However, the husband of Muñoz Diaz had been working as a builder for more than 19 years and he contributed to the social security during the same period. These contributions were supporting his wife and six children as his dependants. His 6 children were also registered in the family record book issued to the couple by the Spanish civil registration authorities and the family was granted ‘first-category large-family status’.

Muñoz Diaz alleged a violation of article 14 in conjunction with art.1, Prot.1 and she hereby referred to other Spanish jurisprudence where the domestic court granted a survivors pension in cases where a the marriage was not valid but solemnized in good faith. Subsequently she alleged a violation of article 14 in conjunction with article 12 of the convention.

The Court stated that Muñoz Diaz could assume in good faith that the marriage was valid as it was de facto recognized by the authorities. Also, the Court emphasizes the fact that the applicant belongs to a community that is deeply rooted in Spanish society. In a very remarkable passage the Court stated 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”. Consequently, the Court found a violation of article 14 in conjunction with the applicant’s property rights. However, the Court didn’t go as far as to recognize the marriage as such, as it didn’t find a breach of article 12. In a similar case a few months ago (Serife Yigit v. Turkey) where an Islamic marriage was at stake, the Court found the denial of a survivors pension to the surviving spouse not discriminatory. In that case the Court didn’t take into account the good faith of the applicant. The question arises now if the current judgment represents a new wind through the jurisprudence of the court towards minority issues and especially towards legal pluralism. Finally if this new wind exists, the question arises whether it will also reach Serife Yigit’s case that is still pending before the Grand Chamber.

By Saïla Ouald-Chaib

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