November 10, 2010
The first post I wrote for our blog was titled: “Is a more inclusive wind blowing through the Court?”. In this post I discussed the case of Muñoz Díaz v. Spain that came out atthe end of 2009, about the non-entitlement to a widow pension by a women who was married for 29 years, but whose marriage was not seen as legally binding since it was solemnized according to Roma rites. I concluded my post by questioning whether the judgment in Muñoz Díaz “represents a new wind through the jurisprudence of the court towards minority issues and especially towards legal pluralism” and “if this new wind exists, the question arises whether it will also reach Şerife Yiğit’s case that is still pending before the Grand Chamber”. This case is very similar to Muñoz Díaz, with the difference that here it concerns the non-entitlement of a widow pension to a woman who was only religiously married in Turkey and another difference is that the applicant does not belong to a minority in Turkey. We have been waiting one year in suspense for the answer to the last question. The answer the judges of the Grand Chamber unanimously gave last week was –again- a clear no.
The Court considers the case under article 1 Prot 1 in co. with art. 14 of the Convention and under article 8. The Court examines whether there was discrimination on the basis of the nature of the marriage. (Civil v. non-civil) “Taking into account the importance of the principle of secularism in Turkey” the Court accepts that the difference in treatment between Civil and non-civil marriages pursued the legitimate aims of protecting public order and protecting the rights and freedoms of others, namely women. In its proportionality assessment the Court distinguishes Şerife Yiğit’s case from Muñoz Díaz’ on the basis of good faith. The Spanish authorities recognized Muñoz Díaz as her partner’s spouse, she was granted large family status and she was also issued with a family record book. Moreover, Mrs. Muñoz Díaz at the moment of her marriage could not marry in Spain, without making first a prior declaration of apostasy or of affiliation to a different faith, to be married otherwise than in accordance with the rites of the Catholic church. As to Mrs. Yiğit, the Court states that she could not argue that she had a legitimate expectation of obtaining a survivors pension and that she was well aware of the fact that she had to regularize her relationship in accordance with the civil code (read: she was not in good faith). What is more, according to the Court she had sufficiently long time (26 years of marriage) to contract a civil marriage.
I think the distinction the Court makes here is disputable. Concerning the element of good faith, I think both cases are similar. Yiğit had 26 years to regularize her marriage, Muñoz Díaz had 29. Muñoz Díaz was referred to by the authorities as the “spouse of” and so was Yiğit. (cf. GC, §16 and Chamber, § 24). In the case of Muñoz Díaz the Court took the view that “the force of the collective beliefs of a community that is well-defined culturally cannot be ignored” (Muñoz Díaz, § 19), Şerife Yiğit argued that in her view “religious marriage was a social reality in Turkey” (GC § 65) and before the chamber she contended that “religious marriage was a feature of Turkish life”. However, there is an important difference between the two cases, namely that Spain recognizes some forms of non-civil marriages, while Turkey requires a Civil marriage from all its citizens. The Court concludes that the difference in treatment was proportionate and found no violation of art. 1 Prot. 1. The Court also did not find a violation of article 8 as the applicant was not prevented to enjoy peaceful family life.
Contrary to the Chamber judgment the Grand Chamber judgment actually contains a reasoning and a clear motivation why the Court thinks there is no violation in this case. However, an important element is –again- not discussed, namely the element of gender. The Court follows the Turkish authorities in the assessment of the legitimate aim, that the aim pursued by the Turkish legislator is the protection of women. Yet, ironically the complete denial of the –monogamous- marriage of Şerife Yiğit, exactly has as a consequence that a woman will be unprotected. And because of the still existing gender patterns where the man works and the women stays at home and takes care of the children, mainly women will be victim of such rules. In that sense we can speak of indirect discrimination on the basis of gender as the dissenting judges in first instance already pointed out.
Judge Rozakis makes a pertinent remark in his concurring opinion. For him, the real comparators in this case should be a long-standing cohabitation v. marriage instead of civil v. non-religious marriage. On the one hand I don’t think that we can just deny the elephant in the room, also addressed in the applicant’s argumentation, which is the fact that this concerns a religious marriage, but at this stage, I nevertheless agree with his opinion for two reasons.
Firstly, the qualification of the applicants relationship as a long-standing cohabitation, brings us closer to the particularities of the case, which is the fact that the applicant lived for 26 years with a man, gave birth to six children in this relationship and was financially dependant on her husband. In this sense, her relationship with her husband was de facto the same relationship as a lot of married couples have. Consequently, the question here is whether we should not accord the same consequences to these de facto similar relationships. In other words, this does not mean that you have to recognize the relationship as such, but that you would change the criteria for the situations where you accord some consequences to stable relationships like marriage or long standing cohabitation.
A second reason why I agree with judge Rozakis’ opinion is because of the fact that another qualification of the difference, would take away the Islamic element. Obviously, the fact that it concerns an Islamic marriage plays an important symbolic role. In this case, the Court attaches a lot of importance to the place of the woman in Islamic marriage which it describes as follows: “Turkey aimed to put an end to a marriage tradition which places women at a clear disadvantage, not to say in a situation of dependence and inferiority to men”.(§81) The Court seems once again to cast itself in the role of saver of THE oppressed Muslim women. Furthermore, under the section “Background to the case” the Court ‘clarifies’ how marriages can be dissolved under Islamic law: “Islamic law, save in some circumstances (for instance, the death of the husband), recognizes repudiation (talâk) as the sole means of dissolving a marriage”. I hereby refer to the concurring opinion of judge Kovler with whom I also totally agree: “I think it would have been wiser to refrain from making any assessment of the complexity of the rules of Islamic marriage, rather than portraying it in a reductive and highly subjective manner in the short section “History” …, where what is left unsaid speaks louder than what is actually said. Hence, to state that “Islamic law… recognizes repudiation … as the sole means of dissolving a marriage”, … and not to mention that the woman can also seek a divorce, for instance if her husband is unable to maintain the family, is to present only half the picture”.
The Court represents millions of Muslims living in the European Council states. I am afraid that if the Court continues to make incorrect or reductive statements such as these, it will alienate an important segment of the European population.
Unfortunately, the list of misplaced statements made and not made by the Court in cases concerning Islam or Islamic law becomes longer. I am thinking for example about Refah Partisi v. Turkey where the Court said that “sharia is incompatible with the fundamental principles of democracy, as set forth in the Convention” or Dahlab v. Switzerland : “It … appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination”. In this case, the Court did it again, once more…