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GRAND
CHAMBER
CASE OF
ŞERİFE YİĞİT v. TURKEY
(Application
no. 3976/05)
JUDGMENT
STRASBOURG
2 November
2010
This
judgment is final but may be subject to editorial revision.
In the case of Şerife Yiğit v. Turkey,
The
European Court of Human Rights, sitting as a Grand Chamber composed
of:
Jean-Paul
Costa,
President,
Christos
Rozakis,
Nicolas
Bratza,
Peer
Lorenzen,
Josep
Casadevall,
Corneliu
Bîrsan,
Nina
Vajić,
Anatoly
Kovler,
Dean
Spielmann,
Renate
Jaeger,
Sverre
Erik Jebens,
David
Thór Björgvinsson,
Ján
Šikuta,
Luis
López Guerra,
Nona
Tsotsoria,
Ann
Power,
Işıl
Karakaş,
judges,
and
Vincent Berger, Jurisconsult,
Having
deliberated in private on 16 December 2009 and on 8 September
2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 3976/05) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Ms Şerife Yiğit
(“the applicant”), on 6 December 2004.
- The
applicant, who had been granted legal aid, was represented by Mr M.S.
Tanrıkulu and Mr N. Kırık, lawyers practising in
Diyarbakır and Hatay respectively. The Turkish Government (“the
Government”) were represented by their Agent.
- Relying
on Article 8 of the Convention, the applicant alleged that, having
lived in a “religious marriage” (imam nikâhı)
with her partner, with whom she had six children, she had been unable
to claim retirement benefits (survivor's pension) or health insurance
(social security) cover on her partner's death in 2002, unlike the
children born of the relationship, which was not recognised by the
law or the national courts.
- The
application was allocated to the Second Section of the Court (Rule 52
§ 1 of the Rules of Court). On 20 January 2009 a Chamber of that
Section, composed of the following judges: Françoise Tulkens,
Ireneu Cabral Barreto, Vladimiro Zagrebelsky, Danutė Jočienė,
Dragoljub Popović, András Sajó and Işıl
Karakaş, and also of Sally Dollé, Section Registrar,
delivered a judgment in which it held by four votes to three that
there had been no violation of Article 8 of the Convention.
- On
14 September 2009, following a request from the applicant dated
7 April 2009, a panel of the Grand Chamber decided to refer the
case to the Grand Chamber under Article 43 of the Convention.
- The
composition of the Grand Chamber was determined according to the
provisions of Article 27 §§ 2 and 3 of the Convention and
Rule 24 of the Rules of Court.
- The
applicant and the Government each filed written observations on the
merits.
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 16 December 2009 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs Ş. Akİpek,
Counsel,
Mr M. Özmen, Co-Agent,
Mrs A.
Emüler,
Mrs M. Aksen,
Mr T. Taşkin, Advisers;
(b) for the applicant
Mr M.S. Tanrikulu,
Mr
N. Kirik, Counsel,
Mr İ. Sevİnç,
Adviser.
The
Court heard addresses by Mr Kırık, Mr Tanrıkulu, Mrs
Akipek and Mr Özmen.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1954 and lives in İslahiye.
- She
was the partner of Ömer Koç (Ö.K.), a farmer whom
she married in a religious ceremony in 1976 and with whom she had six
children. Ö.K. died on 10 September 2002. The applicant stated
that on that date, while she and her partner had been making
preparations for an official marriage ceremony, Ö.K. had died
following an illness.
A. Proceedings before the District Court
- On
11 September 2003 the applicant brought proceedings before the
İslahiye District Court on her own behalf and on behalf of her
daughter Emine seeking rectification of the entry concerning her in
the civil status register. She requested that her religious marriage
to Ö.K. be recognised and that her daughter be entered in the
register as the deceased's daughter.
- In
a judgment of 26 September 2003 the District Court refused the
applicant's request concerning her religious marriage but granted the
request for Emine to be entered in the register as Ö.K.'s
daughter. As no appeal was lodged, the judgment became final.
B. Proceedings before the Labour Court
- On
an unspecified date the applicant requested the Hatay retirement
pension fund (“Bağ Kur”) to award her
and her daughter Emine a survivor's pension and health insurance
cover on the basis of her late partner's entitlement. The fund
refused the request.
- On
20 February 2003 the applicant applied to the İslahiye Labour
Court to have that decision set aside. On 20 May 2003 the latter
decided that it had no jurisdiction ratione loci and that the
case should be heard by the Hatay Labour Court.
- In
a judgment of 21 January 2004 the Hatay Labour Court, in a ruling
based on the judgment of the İslahiye District Court, found that
the applicant's marriage to Ö.K. had not been validated.
Accordingly, since the marriage was not legally recognised, the
applicant could not be subrogated to the deceased's rights. However,
the court set aside the retirement fund's decision in so far as it
related to Emine and granted her the right to claim a pension and
health insurance cover on the basis of her deceased father's
entitlement.
- On
10 February 2004 the applicant appealed on points of law to the Court
of Cassation. She argued that the extract from the civil status
register stated that she was the wife of Ö.K., who was
registered in the village of Kerküt. She explained that in 1976
she had married Ö.K. in accordance with custom and practice. The
couple had had six children. The first five children had been entered
in the civil status register in 1985 under their father's name, while
the last child, Emine, born in 1990, had been entered under her
mother's name in 2002. The applicant asserted that, unlike her six
children, she had been unable to claim a pension or health insurance
cover based on her deceased partner's entitlement.
- In
a judgment of 3 June 2004, served on the applicant on 28 June
2004, the Court of Cassation upheld the impugned judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legislation
1. Civil Code
- Article
134 of the Civil Code provides:
“A man and a woman who wish to contract a marriage
must apply together to the civil status registrar in the place of
residence of either one of them.
The civil status registrar [who is to perform the
ceremony] shall be the mayor in the case of a municipality, or the
official whom he or she has designated for the purpose, or the muhtar
in the case of a village.”
- Articles
135 to 144 of the Civil Code lay down the substantive and formal
conditions governing the solemnisation of marriage between men and
women.
- Article
143 of the Code reads as follows:
“At the close of the [civil] marriage ceremony the
official shall issue the couple with a family record book.
No religious ceremony may be performed without the
family record book being produced.
The validity of the [civil] marriage is not linked to
the performance of a religious ceremony.”
- Article
176 § 3 of the Civil Code concerning maintenance payments
provides that maintenance in the form of an allowance or periodic
payments ceases to be due when the recipient remarries or one of the
two parties dies, or if the recipient is living in a de facto
marital relationship outside marriage, is no longer in financial
need or has an immoral lifestyle.
2. Criminal Code
- The
sixth paragraph of Article 230 of the Criminal Code reads as follows:
“Any person who solemnises a religious marriage
without having seen the document certifying that a marriage ceremony
was performed in accordance with the law shall be liable to a term of
imprisonment of between two and six months.”
3. Code of Obligations
- Article
43 of the Code of Obligations concerns the determination of
compensation awards depending on the circumstances and the
seriousness of the fault. Article 44 of the Code deals with
reductions in compensation awards. Article 45 concerns awards for
damages following a death: persons deprived of financial support as
the result of a death must receive compensation for loss of income.
4. Social Security Act
- Section
23(b) and (c) of the Social Security Act (Law no. 506) lists the
persons eligible for a survivor's pension on the death of a spouse
(where a civil marriage has taken place).
- Sections
32 to 34 of the General Health and Social Security Act (Law no. 5510)
set out the circumstances in which the persons entitled under the
deceased (where there was a civil marriage) may claim a survivor's
pension, and the method used to calculate the amount.
5. Law no. 5251 of 27 October 2004 on the organisation
and functions of the Directorate-General for the Status of Women
- The
aim of this Law is to safeguard women's social, economic, cultural
and political rights and to combat all forms of discrimination
against women and improve their level of educational attainment.
6. Law no. 3716 of 8 May 1991 on the correct recording
of the parentage of children born within or outside marriage and
those born of a relationship not based on a marriage certificate
- As
its title indicates, this Law (repealed on 16 May 1996) dealt with
the recording in the civil status register under the father or
mother's name of children born within or outside civil marriage and
with the regularisation of the situation of children whose parents
had not contracted a civil marriage. The new Civil Code, which
entered into force on 8 December 2001, no longer distinguishes
between children born within and outside marriage.
B. Case-law
1. Court of Cassation
- In
a judgment of 28 May 2007 (E. 2007/289, K. 2007/8718), the
Twenty-First Division of the Court of Cassation quashed a
first-instance judgment on the ground that a woman married in
accordance with religious rites should be paid compensation under
Articles 43 and 44 of the Code of Obligations following the death of
her partner in a work-related accident.
- In
a judgment of 11 September 1990 (E. 1990/4010, K. 1990/6972), the
Tenth Division of the Court of Cassation set aside a first-instance
judgment awarding compensation to a woman living in a religious
marriage following the death of her partner in a work-related
accident. After reiterating that marriage was a legal institution,
that a religious union between two persons of opposite sex could not
be recognised as a marriage and that section 23(c) and (b) of the
Social Security Act (Law no. 506) guaranteed compensation only
to the children born of a marriage or a union other than marriage,
the Court of Cassation ruled that the children were entitled to
social security cover following the death of their father, but that
the father's partner was not. The court held that in the absence of
legislation on the subject, the social security agency could require
the woman in question to repay the sums wrongly paid to her after her
partner's death.
- By
a judgment of 11 December 2003 (E. 2003/14484, K. 2003/14212),
on the basis of Article 176 § 3 of the Civil Code, the Third
Division of the Court of Cassation set aside a judgment of the lower
court on the ground that a former husband was no longer required to
pay maintenance to his ex-wife since the latter was living in a de
facto marital relationship with another man, albeit without a
marriage certificate, and the couple had a child together.
- In
a judgment of 6 June 2000 (E. 2000/3127, K. 2000/4891) the Fourth
Division of the Court of Cassation overturned a criminal court ruling
acquitting an imam who had performed a religious marriage ceremony
without first checking the document proving that a civil marriage had
taken place in accordance with the law.
2. Supreme Administrative Court
- In
a judgment of 17 October 1997 (E. 1995/79, K. 1997/479) the General
Assembly of the plenary Supreme Administrative Court (Danıştay
Dava Daireleri Genel Kurulu) upheld a first-instance judgment,
thereby overturning the judgment of the Tenth Division of the Supreme
Administrative Court, on the ground that the children and surviving
partner from a religious marriage should be awarded compensation
after their father and partner was accidentally killed (by police
bullets fired on the fringes of a demonstration). The General
Assembly observed that the action had been brought by the surviving
partner on her own behalf and that of her children, that four
children had been born of the relationship, resulting from a
religious marriage, and that following the man's death, the children
and their mother had been deprived of his financial support
(destekten yoksun kalma tazminatı). It pointed out that,
while domestic law did not afford protection to or validate such a
union, the couple had had children together whose births had been
recorded under the parents' names in the civil status register and
the deceased had supported the family financially. Accordingly, it
awarded compensation to the children and their mother on account of
the man's death.
3. Observations on the domestic law and case-law
- As
cohabitation on the basis of religious marriage is a social reality,
the courts apply two principles of civil liability in awarding
compensation to women whose partner in a religious marriage has died:
(a) compensation
for pecuniary and non-pecuniary damage (maddi ve manevi tazminat)
on the basis of Articles 43 and 44 of the Code of Obligations;
(b) compensation
for loss of financial support (destekten yoksun kalma tazminatı)
following a death, on the basis of Article 45 of the Code of
Obligations.
- In
the specific context of Article 176 § 3 of the Civil Code, the
legislation refers to couples living together as de facto man
and wife without having contracted a civil marriage. In practice,
this means religious marriage, and there is no requirement to
continue paying maintenance to the other party in the situations
contemplated (see paragraph 21 above). However, the Court of
Cassation does not award the two types of compensation referred to in
the previous paragraph in the case of same-sex or adulterous
relationships, which are deemed to run counter to morals (see, for
example, the judgment of the Twenty-First Division of the Court of
Cassation of 11 October 2001 (E. 2001/6819, K. 2001/6640)).
- The
legislature does not recognise any form of opposite-sex or same sex
cohabitation or union other than civil marriage. The domestic courts
interpret the law very strictly. The fact that the general principles
articulated in the Civil Code and the Code of Obligations are applied
cannot be viewed as tacit or de facto recognition of religious
marriage. Although the domestic courts award surviving partners
compensation on the basis of general principles of civil liability –
which cannot be equated with the principles governing social security
or civil marriage – they never grant them survivor's pensions
or social security benefits based on the deceased partner's
entitlement.
C. Background to the case
1. History
- Under
Islamic law, a religious marriage requires the presence of two male
witnesses (or one man and two women). The marriage is solemnised
simply by the couple exchanging vows in the presence of the
witnesses, without the need for a cleric (imam or equivalent) to be
present or for an official document to be drawn up. Under the Ottoman
empire, following a decision taken by the supreme Sunni religious
authority, the Sheikh-ul-Islam, the presence of an imam or a kadı
(judge) became compulsory for all marriage ceremonies, on pain of
penalties. This practice became widely established, and nowadays the
presence of an imam is required. Muslim marriages also include a
pecuniary element in the form of a dowry (mahr).
- Islamic
law, save in some specific circumstances (for instance, the death of
the husband), recognises repudiation (talâk) as the sole
means of dissolving a marriage. This is a unilateral act on the part
of the husband, who dismisses his wife and thereby severs the marital
bond. It entails the husband explicitly repudiating his wife by
saying the required form of words three times to her (for example: “I
repudiate you” or “You are repudiated”).
2. The Republic
- The
Turkish Republic was founded on a secular basis. Before and after the
proclamation of the Republic on 29 October 1923, the public and
religious spheres were separated through a series of revolutionary
reforms: the abolition of the caliphate on 3 March 1923; the repeal
of the constitutional provision declaring Islam the religion of the
State on 10 April 1928; and, lastly, on 5 February 1937, an
amendment to the Constitution according constitutional status to the
principle of secularism (see Article 2 of the 1924 Constitution
and Article 2 of the Constitutions of 1961 and 1982). The principle
of secularism was inspired by developments in Ottoman society in the
period between the nineteenth century and the proclamation of the
Republic (see Leyla Şahin v. Turkey [GC], no. 44774/98,
§§ 30-32, ECHR 2005 XI).
- One
of the major achievements of the Civil Code was the institution of
compulsory monogamous civil marriage between men and women, requiring
religious marriages to be preceded by a civil ceremony. The new Civil
Code, which entered into force on 8 December 2001, does not cover any
forms of cohabitation other than marriage. The national parliament
chose not to enact legislation in this sphere.
3. The Religious Affairs Directorate
- According
to the Religious Affairs Directorate (Diyanet İşleri
Başkanlığı), imams, who are appointed by the
Directorate, are expressly required to verify that the future husband
and wife have been married by a civil status registrar. The
“religious” ceremony before an imam appointed by the
Directorate is a mere formality which entails little solemnity. The
civil marriage takes precedence over the religious marriage.
III. COMPARATIVE LAW
- Of
the thirty-six countries surveyed in a comparative-law study,
fourteen (Cyprus, the Czech Republic, Denmark, Finland, Greece,
Ireland, Italy, Latvia, Lithuania, Malta, Poland, Portugal, Spain and
the United Kingdom) recognise varying forms of religious marriage.
Exclusively religious marriages are not recognised and are treated on
the same footing as cohabitation in the following countries: Albania,
Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina,
Bulgaria, Estonia, France, Georgia, Germany, Hungary, Luxembourg,
Moldova, Monaco, the Netherlands, Romania, Serbia, Slovenia,
Switzerland, “the former Yugoslav Republic of Macedonia”
and Ukraine.
- Of
the thirty-six countries surveyed, four (France, Greece, Portugal and
Serbia) expressly recognise cohabitation. In other countries,
although such arrangements are not expressly recognised, they produce
legal effects to one degree or another. This is the case in Austria,
Belgium, the Czech Republic, Denmark, Hungary, Italy, the
Netherlands, Slovenia and Switzerland. However, the majority of
States do not recognise cohabitation at all (Albania, Armenia,
Azerbaijan, Bosnia and Herzegovina, Bulgaria, Cyprus, Estonia,
Finland, Georgia, Germany, Ireland, Latvia, Lithuania, Luxembourg,
Malta, Moldova, Monaco, Poland, Romania, “the former Yugoslav
Republic of Macedonia”, Ukraine and the United Kingdom).
- In
twenty-four countries (Armenia, Austria, Azerbaijan, Belgium, Bosnia
and Herzegovina, Cyprus, the Czech Republic, France, Germany, Greece,
Hungary, Ireland, Luxembourg, Moldova, Monaco, the Netherlands,
Poland, Romania, Serbia, Slovenia, Spain, Switzerland, “the
former Yugoslav Republic of Macedonia” and Ukraine), the
national legislation allows the surviving spouse, subject to certain
conditions, to claim benefits based on the deceased's social security
entitlements. Of these countries, only six (Austria, Belgium, France,
Hungary, the Netherlands and Spain) extend this right to cohabitants.
In most of the member States of the Council of Europe, only married
couples who have contracted a civil marriage qualify for health
insurance cover on the death of one of the partners; hence,
cohabitants are not eligible.
- In
Denmark, Hungary, the Netherlands, Portugal, Slovenia and Spain a
survivor's pension may be awarded to a surviving cohabitant in
certain circumstances. In the vast majority of countries which have a
survivor's pension, cohabitants are not eligible to receive it.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
A. The Chamber judgment
- Before
the Chamber, the Government raised an objection of failure to exhaust
domestic remedies. They pointed out that the applicant had brought
proceedings before the İslahiye District Court seeking
recognition of her religious marriage to her deceased partner. The
action had been dismissed by the court and the applicant had not
appealed against that decision to the Court of Cassation.
- In
its judgment, the Chamber dismissed the Government's preliminary
objection, reasoning as follows:
“19. The Court observes that the
applicant complained that her application concerning her deceased
partner's retirement pension and health insurance rights had been
rejected by the Hatay Labour Court on 21 January 2004. That judgment
was upheld by the Court of Cassation judgment of 3 June 2004, served
on the applicant on 28 June 2004. The applicant lodged her
application with the Court on 6 December 2004, that is to say,
within the six-month time-limit laid down by Article 35 § 1 of
the Convention. Accordingly, the Government's objection must be
dismissed.”
B. The parties' submissions
- The
Government reiterated the same preliminary objection before the Grand
Chamber.
- The
applicant maintained that she had exhausted domestic remedies,
pointing out that she had applied unsuccessfully to the domestic
courts for a survivor's pension and social security benefits based on
her partner's entitlement.
C. The Court's assessment
- The
Court observes that after the death of her partner the applicant
first lodged an action with the İslahiye District Court seeking
rectification of the entry concerning her in the civil status
register, with a view to having her religious marriage recognised and
having her daughter registered as her partner's daughter. She
subsequently lodged another action, this time with the Hatay Labour
Court, seeking to obtain a survivor's pension and social security
benefits based on her late partner's entitlement. Hence, by
complaining in substance of her inability to obtain those benefits
the applicant made use, without success, of an appropriate and
available remedy before the Hatay Labour Court, whose judgment was
upheld by the Court of Cassation.
- Accordingly,
the Grand Chamber agrees with the Chamber's conclusion. It reiterates
in that regard that an applicant must have made normal use of
domestic remedies which are likely to be effective and sufficient and
that, when a remedy has been pursued, use of another remedy which has
essentially the same objective is not required (see Kozacıoğlu
v. Turkey [GC], no. 2334/03, § 40, ECHR 2009 ...,
and Micallef v. Malta [GC], no. 17056/06, § 58, ECHR
2009 ...). It follows that the Government's objection as to
non-exhaustion of domestic remedies must be dismissed.
II. THE NATURE OF THE APPLICANT'S COMPLAINT
- The
Grand Chamber observes that the Chamber examined the applicant's
complaint from the standpoint of Article 8 of the Convention only.
However, it should be reiterated that the scope of the Grand
Chamber's jurisdiction in cases submitted to it is limited only by
the Chamber's decision on admissibility (see Perna v. Italy [GC],
no. 48898/99, § 23, ECHR 2003 V, and Azinas
v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004 III).
Within the compass thus delimited, the Grand Chamber may deal with
any issue of fact or law that arises during the proceedings before it
(see Powell and Rayner v. the United Kingdom, 21 February
1990, § 29, Series A no. 172; Philis v. Greece (no. 1),
27 August 1991, § 56, Series A no. 209; Guerra and
Others v. Italy, 19 February 1998, § 44 in fine,
Reports of Judgments and Decisions 1998 I; and
Scoppola v. Italy (no. 2) [GC], no. 10249/03, §
48, ECHR 2009 ...).
- Furthermore,
since the Court is master of the characterisation to be given in law
to the facts of the case, it is not bound by the characterisation
given by the applicant or the Government. By virtue of the jura
novit curia principle, it has, for example, considered of its own
motion complaints under Articles or paragraphs not relied on by the
parties and even under a provision in respect of which the Court had
declared the complaint to be inadmissible while declaring it
admissible under a different one. A complaint is characterised by the
facts alleged in it and not merely by the legal grounds or arguments
relied on (see Scoppola, cited above, § 54; Powell
and Rayner, cited above, § 29; and Guerra and Others,
cited above, § 44). By virtue of Article 43 of the
Convention, it is the whole case, embracing all aspects of the
application previously examined by the Chamber, which is referred to
the Grand Chamber to be decided afresh by means of a new judgment
(see, among other authorities, Göç v. Turkey
[GC], no. 36590/97, § 36, ECHR 2002 V). The Grand Chamber
may proceed in the same manner in the present case.
- For
that reason the Grand Chamber invited the parties, in their
observations and pleadings before it, to also address the issue of
compliance in the instant case with Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1. In the light
of their submissions, it considers it necessary to first examine the
applicant's complaint from the standpoint of those provisions.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1
- In
connection with the invitation referred to in the preceding paragraph
the applicant submitted that the refusal of the domestic courts to
award her a survivor's pension and social security benefits based on
her deceased partner's entitlement had been in breach of Article 14
of the Convention taken in conjunction with Article 1 of Protocol No.
1.
Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article
1 of Protocol No. 1 provides:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions...
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Applicability of Article 14 taken in conjunction
with Article 1 of Protocol No. 1
- Article
14 of the Convention has no independent existence, since it has
effect solely in relation to the rights and freedoms safeguarded by
the other substantive provisions of the Convention and its Protocols.
Its application does not presuppose a breach of one or more of such
provisions and to this extent it is autonomous. For Article 14 to
become applicable it suffices that the facts of a case fall within
the ambit of another substantive provision of the Convention or its
Protocols (see Thlimmenos v. Greece [GC], no. 34369/97, §
40, ECHR 2000 IV, and Koua Poirrez v. France,
no. 40892/98, § 36, ECHR 2003 X; see also Fretté
v. France, no. 36515/97, § 31, ECHR 2002 I
and the case-law cited therein).
- As
regards the applicability of Article 1 of Protocol No. 1, the Court
ruled in Stec and Others v. the United Kingdom ((dec.) [GC],
nos. 65731/01 and 65900/01, §§ 42-56, ECHR
2005 X) that this provision did not oblige States to put in
place a social security or pension scheme; however, if a Contracting
State had in force legislation providing for the payment as of right
of a welfare benefit – whether conditional or not on the prior
payment of contributions – that legislation had to be regarded
as generating a proprietary interest falling within the ambit of
Article 1 of Protocol No. 1 for persons satisfying its
requirements.
- In
the instant case the applicant complained that she had been deprived
of a survivor's pension and social security benefits based on her
deceased partner's entitlement on discriminatory grounds covered, in
her view, by Article 14, namely her status as a woman married in
accordance with religious rites.
- The
Court notes that, under the national social security legislation,
only persons married in accordance with the Civil Code inherit their
late spouse's social security entitlements. It further observes that,
according to the settled case-law of the domestic courts, based on
the ordinary law on civil liability as defined in the relevant
provisions of the Civil Code and the Code of Obligations, a
retirement pension and social security benefits cannot be awarded to
a surviving partner where there has been no civil marriage. However,
the Court points to its own case-law to the effect that, although
Article 1 of Protocol No. 1 does not include the right to receive a
social security payment of any kind, if a State does decide to create
a benefits scheme, it must do so in a manner which is compatible with
Article 14 (see Stec and Others, cited above, § 55).
In the instant case the applicant complained that she had not been
awarded a retirement pension and social security benefits based on
her late partner's entitlement on discriminatory grounds for the
purposes of Article 14 of the Convention.
- Consequently,
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 is applicable in the present case.
B. Compliance with Article 14 taken in conjunction with
Article 1 of Protocol No. 1
1. The parties' submissions
(a) The Government
- The
Government began by pointing out that the regulation of marriage,
which was compatible with Article 12 of the Convention, fell within
the State's margin of appreciation. Civil marriage was clearly
defined by the provisions of the Civil Code. Only persons who had
contracted a civil marriage could enjoy the corresponding rights.
That was why the applicant's application to the Hatay Labour Court
seeking to benefit from her deceased partner's social security
entitlements had been rejected on account of the absence of a civil
marriage. Entitlement to a survivor's pension and social security
benefits was not governed by the rules on inheritance laid down by
the Civil Code. Under the domestic social security legislation, the
lawful surviving partner of a civil marriage and his or her children
could inherit such entitlement.
- Next,
the Government stressed the importance of the principle of
secularism, which was enshrined in the Constitution. It was not
possible to attach legal consequences to the application of religious
rules. The legislature's aim was to prevent religious marriages and
protect the most important building-block of society, namely the
family. As a secular State, Turkey did not recognise religious
marriages. In a similar situation where the woman rather than the man
was in employment, the latter would not be awarded a survivor's
pension or social security benefits on her death. Religious marriage
placed women at a disadvantage compared to men. In order to prevent
discrimination and grant the same rights to women and men, the law
required religious marriages to be preceded by a civil ceremony. The
law governing civil marriage did not impose any particular
restrictions on the right to marry, neither could the legislature
oblige persons who were living together to marry in accordance with
the Civil Code.
- In
the Government's submission, the domestic authorities had not
subjected the applicant to discriminatory treatment compared to other
persons in a similar situation. There was no provision of domestic
law which entitled a “surviving life companion” or
“surviving partner” to receive a survivor's pension or
social security benefits as the deceased's successor. The main
difference between religious and civil marriage was that the former
was not recognised by the law. Religious marriages were not
registered. Persons wishing to enter into such a union were free to
do so, but only after they had contracted a civil marriage. Article
230 of the Criminal Code made it a punishable offence to solemnise a
religious marriage before the civil ceremony. The object of that
provision was to protect women against polygamy. If religious
marriages were to be considered lawful all the attendant religious
consequences would have to be recognised, for instance the fact that
a man could marry four women. The only means of preventing that was
to promote civil marriage and not to attach rights to religious
marriage. A further legal argument militated against religious
marriage, namely the principle of presumption of paternity, which was
based on the existence of a civil marriage. Furthermore, the
recognition of a child by his or her father did not entail
regularisation of the latter's religious marriage. The applicant had
had the opportunity to contract a civil marriage in order to secure
entitlement to a survivor's pension and social security benefits in
the event of her partner's death.
- Lastly,
the Government submitted that a distinction needed to be made between
a claim for damages under private law and an application for a
survivor's pension and other social security benefits under the rules
of public law. Under the latter, entitlement to such benefits
required the existence of a legal relationship. As religious marriage
was not recognised the applicant could not legally claim a survivor's
pension or social security benefits based on her late partner's
entitlement. Granting such rights to persons living in religious
marriages would be tantamount to encouraging religious marriage.
Under domestic law, the introduction of a claim for damages did not
depend on the persons concerned being related. Admittedly, the courts
accepted that a fiancée or close friend who had cared for the
deceased or a person who had suffered a loss of income as a result of
the death could be awarded damages; however, in such situations
Turkish law provided for compensation irrespective of the existence
of a religious or civil marriage.
(b) The applicant
- During
the hearing, without making an explicit complaint in that regard, the
applicant stated that, as she herself had been born of a religious
marriage, her name had not been entered in the civil status register
until 15 October 2002. The delay in being registered was the
reason why she had been unable to contract a civil marriage with Ö.K.
As a woman married in accordance with custom and practice, she
submitted that the domestic courts had rejected her claim for social
security benefits on the death of her partner because she had not
contracted a civil marriage.
- The
applicant did not regard her application as tending towards the
recognition of religious marriage or polygamy. The Civil Code
recognised religious marriages provided that they were solemnised
after a civil ceremony had been performed. While she was aware of the
relevant provision of the Criminal Code, she had doubts as to its
effectiveness (see paragraph 22 above). In her view, religious
marriage was a social reality throughout Turkey. Furthermore, her
situation could have been regularised on the basis of the amnesty
laws which were enacted regularly with a view to ensuring that
children born outside marriage could be entered in the civil status
register.
- During
the hearing the applicant stated that she had always paid her own
medical expenses rather than being covered by her partner, as she had
never had entitlement through him.
2. The Court's assessment
(a) Relevant general principles
- According
to the Court's settled case-law, discrimination means treating
differently, without an objective and reasonable justification,
persons in relevantly similar situations (see D.H. and Others v.
the Czech Republic [GC], no. 57325/00, § 175, ECHR
2007 XII). A difference in treatment has no objective and
reasonable justification if it does not pursue a legitimate aim or if
there is not a reasonable relationship of proportionality between the
means employed and the aim sought to be realised (see Larkos
v. Cyprus [GC], no. 29515/95, § 29, ECHR 1999 I).
The provisions of the Convention do not prevent, in principle,
Contracting States from introducing general policy schemes by way of
legislative measures whereby a certain category or group of
individuals is treated differently from others, provided that the
difference in treatment which results for the statutory category or
group as a whole can be justified under the Convention and its
Protocols (see, mutatis mutandis, Zdanoka v. Latvia
[GC], no. 58278/00, § 112, ECHR 2006 IV).
- In
other words, Article 14 does not prohibit distinctions in treatment
which are founded on an objective assessment of essentially different
factual circumstances and which, being based on the public interest,
strike a fair balance between the protection of the interests of the
community and respect for the rights and freedoms safeguarded by the
Convention (see Ünal Tekeli v. Turkey, no. 29865/96, §
51, ECHR 2004 X).
- The
right not to be discriminated against in the enjoyment of the rights
guaranteed under the Convention is also violated when States without
an objective and reasonable justification fail to treat differently
persons whose situations are significantly different (see Thlimmenos,
cited above, § 44).
- The
Contracting States enjoy a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a different treatment in law (see Marckx
v. Belgium, 13 June 1979, § 33, Series A no. 31;
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
28 May 1985, § 72, Series A no. 94; and Stubbings and Others
v. the United Kingdom, 22 October 1996, § 72, Reports
1996 IV). That margin is wider when it comes to the adoption
by the State of general fiscal, economic or social measures, which
are closely linked to the State's financial resources (see Burden
v. the United Kingdom [GC], no. 13378/05, § 60, ECHR
2008 ..., and Petrov v. Bulgaria, no. 15197/02,
§ 55, 22 May 2008). However, it is ultimately for the Court
to decide, in the light of the circumstances of the case in question,
whether such measures are compatible with the State's obligations
under the Convention and its Protocols (see James and Others v.
the United Kingdom, 21 February 1986, § 46, Series A
no. 98, and National & Provincial Building Society,
Leeds Permanent Building Society and Yorkshire Building Society v.
the United Kingdom, 23 October 1997, § 80, Reports
1997 VII).
- As
to the burden of proof in this sphere, the Court has established that
once the applicant has shown a difference in treatment, it is for the
Government to show that it was justified (see D.H. and Others,
cited above, § 177; Timishev v. Russia, nos.
55762/00 and 55974/00, § 57, ECHR 2005 XII; and
Chassagnou and Others v. France [GC], nos. 25088/94,
28331/95 and 28443/95, §§ 91-92, ECHR 1999 III).
- With
regard to Article 12 of the Convention, the Court has already ruled
that marriage is widely accepted as conferring a particular status
and particular rights on those who enter it (see Burden, cited
above, § 63, and Shackell v. the United Kingdom (dec.),
no. 45851/99, 27 April 2000). The protection of marriage constitutes,
in principle, an important and legitimate reason which may justify a
difference in treatment between married and unmarried couples (see
Quintana Zapata v. Spain, Commission decision of 4 March
1998, Decisions and Reports (DR) 92, p. 139). Marriage is
characterised by a corpus of rights and obligations that
differentiate it markedly from the situation of a man and woman who
cohabit (see Nylund v. Finland (dec.), no. 27110/95, ECHR
1999 VI, and Lindsay v. the United Kingdom (dec.), no.
11089/84, 11 November 1986). Thus, States have a certain margin of
appreciation to treat differently married and unmarried couples,
particularly in matters falling within the realm of social and fiscal
policy such as taxation, pensions and social security (see, mutatis
mutandis, Burden, cited above, § 65).
(b) Application of the
above principles to the present case
(i) Whether the civil or religious nature
of a marriage can be a source of discrimination prohibited by Article
14
- It
is not disputed in the instant case that the applicant, although not
lawfully married, lived in a monogamous relationship with her partner
for twenty-six years until his death, and that she had six children
with him. According to the judgment of the Hatay Labour Court (see
paragraph 15 above), the applicant's claim for a survivor's
pension and social security benefits based on her late partner's
entitlement was rejected because she had not contracted a civil
marriage. The fact that the applicant, who was born of a religious
marriage, had not been registered at birth does nothing to alter
this.
- The
applicant considered herself to be in a situation comparable to that
of a widow in a civil marriage. She fulfilled all the legal
requirements for claiming the benefits in question apart from the
fact that her marriage had been religious rather than civil in
nature.
- While
contending that the national courts had not subjected the applicant
to discriminatory treatment in relation to other persons in a similar
situation, the Government took the view in particular that her
situation, as a person married according to religious rites, could
not be likened to that of a wife married in accordance with the Civil
Code. The refusal of the domestic courts to award the benefits in
issue to the applicant had been based on the law, the justification
for which was twofold: the protection of women, particularly through
efforts to combat polygamy, and the principle of secularism.
- Accordingly,
the Court must now examine whether the nature of a marriage –
that is, whether it is civil or religious – can be a source of
discrimination prohibited by Article 14.
- In
that regard the Court points out that Article 14 prohibits, within
the ambit of the rights and freedoms guaranteed, discriminatory
treatment having as its basis or reason a personal characteristic
(“status”) by which persons or groups of persons are
distinguishable from each other (see Kjeldsen, Busk
Madsen and Pedersen v. Denmark, 7 December 1976, § 56,
Series A no. 23). The characteristics in question are enumerated
in Article 14.
- However,
the list set out in that provision is illustrative and not
exhaustive, as is shown by the words “any ground such as”
(in French “notamment”) (see Engel and Others
v. the Netherlands, 8 June 1976, § 72, Series A
no. 22; James and Others, cited above, § 74; and Luczak
v. Poland, no. 77782/01, § 46, ECHR 2007 XIII).
Furthermore, discrimination prohibited by Article 14 may also be on
the ground of “other status” (“toute autre
situation” in French). As the nature of a marriage –
that is, whether it is civil or religious – does not feature as
such in the list of possible grounds of discrimination contemplated
by Article 14, the Court must examine whether it might come under the
heading of “other status”.
- In
that regard the Court has ruled in previous cases that children born
outside marriage were discriminated against compared to those born
within a civil marriage, as the difference in treatment was based
solely on the former's “status” as children born out of
wedlock (see, among many other authorities, Marckx, cited
above; Mazurek v. France, no. 34406/97, ECHR 2000 II;
and Inze v. Austria, 28 October 1987, Series A no. 126). The
Court has adopted similar reasoning in finding that a refusal to
grant access rights in respect of a child on the sole ground that the
child was born out of wedlock was discriminatory (see, for example,
Sahin v. Germany [GC], no. 30943/96, § 87,
ECHR 2003 VIII). Likewise, the Court considers that the absence
of a marriage tie between two parents is one of the aspects of
personal “status” which may be a source of discrimination
prohibited by Article 14.
- These
considerations apply, mutatis mutandis, to the instant case,
given that it has not been disputed that the difference in treatment
to which the applicant was subjected with regard to the benefits in
question was based solely on the non-civil nature of her marriage to
her partner.
(ii) Whether there was an objective and
reasonable justification for the difference in treatment
(α) Legitimate
aim
- The
Court must now ascertain whether the difference in treatment in
question pursued a legitimate aim. In that connection, taking into
account the importance of the principle of secularism in Turkey, the
Court notes that in adopting the Civil Code in 1926, which instituted
monogamous civil marriage as a prerequisite for any religious
marriage, 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, compared to men. For the same reason it
introduced the principle of gender equality in the enjoyment of civic
rights, particularly in relation to divorce and inheritance, and
prohibited polygamy. Marriage in accordance with the Civil Code is
specifically aimed at protecting women, for instance by laying down a
minimum age for marriage and establishing a set of rights and
obligations for women (in particular in the event of the dissolution
of the marriage or the death of the husband).
- In
the light of the foregoing, the Court accepts that the difference in
treatment in question primarily pursued the legitimate aims of
protecting public order and protecting the rights and freedoms of
others.
(β) Reasonable
relationship of proportionality between the means employed and the
aim sought to be realised
- As
to whether there was a reasonable relationship of proportionality, it
should be noted that the fact that the applicant had not contracted a
civil marriage and had not regularised her situation had adverse
legal consequences for her. Hence, she did not have the status of
heir which would have entitled her to claim a survivor's pension and
social security benefits on her partner's death. At the hearing the
applicant pointed out that she had paid her own medical expenses
while her partner was alive and that the latter had paid
contributions into the “Bağ-Kur” retirement
pension fund.
- The
Court notes, however, that the applicant was aware of her situation
and knew that she needed to regularise her relationship in accordance
with the Civil Code in order to be entitled to benefits on her
partner's death. The Civil Code requires a binding legal document to
be issued in order for a civil marriage to be valid and to produce
effects vis à vis third parties and the
State. Thus, at the close of the official marriage ceremony, a family
record book is handed over to the married couple. The Civil Code
states clearly that no religious marriage may be solemnised in the
absence of the family record book (see paragraph 20 above). In
order to ensure that the pre eminence of civil marriage is
observed the respondent State also provides for criminal sanctions
against any person who solemnises a religious marriage without first
ascertaining that a civil ceremony has taken place (see paragraph 22
above). For its part, the Religious Affairs Directorate – the
authority recognised by the legislature in this sphere –
expressly requires its imams to verify that the couple intending to
marry have already contracted a civil marriage before a civil status
registrar.
- The
present case is therefore clearly distinguishable from that of
Muñoz Díaz v. Spain (no. 49151/07, 8
December 2009), in which the Court observed that the Spanish
authorities had recognised the applicant – a member of the Roma
community who had married in accordance with Roma rites – as
her partner's “spouse”. The woman in question and her
family had been issued with a family record book and been granted
large family status; the mother, as a spouse, and her six
children had also been in receipt of health-care assistance. The
Court therefore took the view that the applicant's good faith as to
the validity of her marriage, confirmed by the authorities' official
recognition of her situation, had given her a legitimate expectation
of being entitled to a survivor's pension. Finally, when the
applicant had got married according to Roma rites and traditions, it
had not been possible in Spain, except by making 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.
- Unlike
the situation in Muñoz Díaz, the applicant in
the present case could not argue that she had a legitimate
expectation of obtaining a survivor's pension and social security
benefits on the basis of her partner's entitlement (see paragraph 58
above). Furthermore, the rules laying down the substantive and formal
conditions governing civil marriage are clear and accessible and the
arrangements for contracting a civil marriage are straightforward and
do not place an excessive burden on the persons concerned (see
paragraph 18 above). The applicant has never maintained otherwise.
What is more, she had a sufficiently long time – twenty-six
years – in which to contract a civil marriage. There is
therefore no justification for her assertion that the efforts she
allegedly undertook to regularise her situation had been hampered by
the cumbersome nature or slowness of the administrative procedures.
As to whether the civil status registrar could or should have
regularised her situation of his or her own accord on the basis of
the amnesty laws enacted in relation to children born outside
marriage (see paragraph 27 above), the Court notes that, while the
State may regulate civil marriage in accordance with Article 12 of
the Convention, this does not mean that it can require persons within
its jurisdiction to contract a civil marriage. The Court further
notes, as did the Government, that the amnesty laws in question are
not aimed at regularising religious marriages but at improving the
situation of children born out of relationships which are not legally
recognised, or outside the bonds of marriage.
- In
the light of these considerations, the Court concludes that there was
a reasonable relationship of proportionality between the impugned
difference in treatment and the legitimate aim pursued. There was
therefore an objective and reasonable justification for the
difference in question.
- There
has accordingly been no violation of Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- On
the basis of the same complaint as the one under Article 14 of the
Convention taken in conjunction with Article 1 of Protocol No. 1, the
applicant further alleged a breach of her right to respect for her
family life within the meaning of Article 8 of the Convention, the
relevant parts of which provide:
“1. Everyone has the right to respect
for his ... family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of ... the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.”
A. The Chamber judgment
- The
Chamber noted the existence in the present case of “family
life” within the meaning of Article 8 (see paragraph 27 of the
Chamber judgment). It held that there had been no violation of that
provision because the difference complained of had pursued a
legitimate aim and been based on objective and reasonable grounds,
namely the protection of the traditional family based on the bonds of
marriage (see paragraph 30 of the judgment).
B. The parties' submissions
- The
Government agreed with the Chamber's conclusion, taking the view that
Article 8 did not impose an obligation on the Contracting States to
adopt a special regime for couples living together without having
contracted a civil marriage.
- The
applicant reiterated her allegations.
C. The Court's assessment
1. Whether there was “family life”
- By
guaranteeing the right to respect for family life, Article 8
presupposes the existence of a family. The existence or non-existence
of “family life” is essentially a question of fact
depending upon the real existence in practice of close personal ties
(see K. and T. v. Finland [GC], no. 25702/94, § 150,
ECHR 2001 VII).
- Article
8 applies to the “family life” of the “illegitimate”
family as it does to that of the “legitimate” family (see
Marckx, cited above, § 31, and Johnston and Others v.
Ireland, 18 December 1986, § 55, Series A no. 112). The
notion of the “family” is not confined solely to
marriage-based relationships and may encompass other de facto
“family” ties where the parties are living together
outside of marriage (see Keegan v. Ireland, 26 May
1994, § 44, Series A no. 290, and Al-Nashif v. Bulgaria,
no. 50963/99, § 112, 20 June 2002). A child born out of
such a relationship is ipso jure part of that “family”
unit from the moment and by the very fact of his birth. Thus there
exists between the child and his parents a bond amounting to family
life (see Elsholz v. Germany [GC], no. 25735/94, § 43,
ECHR 2000 VIII).
- Furthermore,
questions of inheritance and voluntary dispositions between near
relatives appear to be intimately connected with family life. Family
life does not include only social, moral or cultural relations, for
example in the sphere of children's education; it also comprises
interests of a material kind, as is shown by, amongst other things,
the obligations in respect of maintenance and the position occupied
in the domestic legal systems of the majority of the Contracting
States by the institution of the reserved portion of an estate.
Whilst inheritance rights are not normally exercised until the
estate-owner's death, that is at a time when family life undergoes a
change or even comes to an end, this does not mean that no issue
concerning such rights may arise before the death: the distribution
of the estate may be settled, and in practice fairly often is
settled, by the making of a will or of a gift on account of a future
inheritance; it therefore represents a feature of family life that
cannot be disregarded (see Marckx, cited above, § 52, and
Merger and Cros v. France, no. 68864/01, § 46,
22 December 2004).
- In
addition, when deciding whether a relationship can be said to amount
to “family life”, a number of factors may be relevant,
including whether the couple live together, the length of their
relationship and whether they have children together (see X,
Y and Z v. the United Kingdom, 22 April 1997, § 36,
Reports 1997 II, and Kroon and Others v. the
Netherlands, 27 October 1994, § 30, Series A no.
297 C).
- In
its judgment in the present case, the Chamber held that Article 8
of the Convention was applicable, for the following reasons:
“27. In the instant case the Court
observes that the applicant entered into a religious marriage (imam
nikâhı) in 1976 with Ö.K. The couple had six
children, the first five of whom were entered in the civil register
under the father's name, while the last child was entered under the
applicant's name. It is not contested by the parties that the
applicant and her children lived with Ö.K. until his death in
2002. The Court considers that it does not have jurisdiction to rule
on the place or role of religious marriage in Turkish law and its
social consequences. It simply notes that the applicant, Ö.K.
and their children lived together in such a way that they constituted
a 'family' within the meaning of Article 8 of the Convention.”
- The
Grand Chamber fully agrees with this finding.
2. The applicant's right to respect for her “family
life”
- The
Court must therefore determine whether, in the particular
circumstances of the present case, the choice by the State to confer
a particular status on civil marriage as distinct from religious
marriage resulted in interference with the applicant's “family
life” within the meaning of Article 8 of the Convention.
It will do so in the light of the reasoning it adopted in relation to
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1 (see paragraphs 81 to 88 above).
- It
should be reiterated in this regard that the essential object of
Article 8 is to protect the individual against arbitrary
interference by the public authorities. There may in addition be
positive obligations inherent in effective “respect” for
family life. In both contexts regard must be had to the fair balance
that has to be struck between the competing interests of the
individual and the community as a whole, and in both contexts the
State is recognised as enjoying a certain margin of appreciation (see
Hokkanen v. Finland, 23 September 1994, § 55, Series
A no. 299 A). Furthermore, in the sphere of the State's planned
economic, fiscal or social policy, on which opinions within a
democratic society may reasonably differ widely, that margin is
necessarily wider (see, mutatis mutandis, James and Others,
cited above, § 46). This applies also in the present case (see
paragraph 82 above).
- As
to the applicant, she chose, together with her partner, to live in a
religious marriage and found a family. She and Ö.K. were able to
live peacefully as a family, free from any interference with their
family life by the domestic authorities. Thus, the fact that they
opted for the religious form of marriage and did not contract a civil
marriage did not entail any penalties – either administrative
or criminal – such as to prevent the applicant from leading an
effective family life for the purposes of Article 8. The Court
therefore finds no appearance of interference by the State with the
applicant's family life.
- Accordingly,
the Court is of the view that Article 8 cannot be interpreted as
imposing an obligation on the State to recognise religious marriage.
In that regard it is important to point out, as the Chamber did (see
paragraph 29 of its judgment), that Article 8 does not require
the State to establish a special regime for a particular category of
unmarried couples (see Johnston and Others, cited above, §
68). For that reason the fact that the applicant does not have the
status of heir, in accordance with the provisions of the Civil Code
governing inheritance and with the domestic social security
legislation, does not imply that there has been a breach of her
rights under Article 8.
- In
conclusion, there has been no violation of Article 8 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government's preliminary
objection;
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 1 of
Protocol No. 1;
- Holds that there has been no violation of
Article 8 of the Convention.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 2 November 2010.
Vincent Berger Jean-Paul Costa
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinions of Judges
Rozakis and Kovler are annexed to this judgment.
J.-P.C.
V.B.
CONCURRING OPINION OF JUDGE ROZAKIS
Together
with the majority of the Grand Chamber, I voted in this case in
favour of non-violation on both counts (Article 14 taken in
conjunction with Article 1 of Protocol No. 1, and Article 8 of
the Convention). However, I would like to express, through this
concurring opinion, certain points of disagreement regarding the
reasoning that the majority followed in reaching the conclusion that
there had been no violation.
In
dealing with the question of alleged discrimination under Article 14
taken in conjunction with Article 1 of Protocol No. 1, the Court was
apparently influenced by the applicant's argument that the issue to
be examined in the circumstances of the case was that she had been
denied a survivor's pension and social security benefits because of
her status as a woman married in accordance with religious rites, and
that the authorities' conduct in that regard had discriminated
against her since the Turkish State recognised civil marriage as the
sole basis for legal entitlement to social security benefits. On the
basis of this approach the Turkish Government maintained, in response
to her arguments, that the difference in treatment between couples
married only in accordance with religious rites and couples married
in accordance with the requirements of domestic civil law was
justified given the importance of the principle of secularism, and
pursued the legislature's aim of “de-legitimising”
religious marriage which, inter alia, placed women at a
disadvantage compared to men and allowed polygamy.
As a
consequence, the line followed by the Court in its judgment was that
the elements to be compared (the comparators) in the exercise of
establishing whether in the circumstances there had been
discrimination in breach of Article 14 of the Convention were
religious marriage on the one hand and civil marriage on the other.
This was the core distinction which led the Court to find that the
difference in treatment had a legal basis and a legitimate aim and
was proportionate to the aim pursued. And this is where I differ in
my consideration of the case.
I
believe that the issue in this case, in Convention terms, is
not religious marriage and its differences vis-à-vis
civil marriage. Religious marriage is the backdrop, la toile de
fond, which allowed the couple made up of the deceased man and
his partner, the applicant, to live together monogamously for
twenty-six years and have six children. The real comparators to be
taken into account in our assessment should have been a long-standing
and stable family relationship outside marriage on the one hand, and
marriage, as understood by the domestic legal system, on the other.
In other words, the elements to be compared are long-standing
cohabitation and marriage, rather than religious marriage and civil
marriage.
If
these two elements are the comparators, then we should examine
whether the distinction which the Turkish State makes between persons
married only in a religious ceremony (who are to be considered, under
Turkish law, as “unmarried”), and couples married in a
civil ceremony, justifies the different treatment afforded by the
State's legislation to the latter. And here I accept that the
Convention case-law confers a particular status and particular rights
on those who enter into a marital relationship. As it was correctly
stated in paragraph 72 of the judgment, “[t]he protection of
marriage constitutes, in principle, an important and legitimate
reason which may justify a difference in treatment between married
and unmarried couples. ... Marriage is characterised by a corpus of
rights and obligations that differentiate it markedly from the
situation of a man and a woman who cohabit. ... Thus, States have a
certain margin of appreciation to treat differently married and
unmarried couples, particularly in matters falling within the realm
of social and fiscal policy such as taxation, pensions and social
security.”
For
the above reasons, and considering that the comparators in the
present case are stable cohabitation outside marriage and marriage
itself, I accept that compliance with the Convention case-law must
lead us to the conclusion that in the circumstances of the case the
absence of social security benefits to the detriment of our
applicant's interests is not contrary either to Article 14 (read in
conjunction with Article 1 of Protocol No. 1) or to Article 8 of
the Convention. Nevertheless, in view of the new social realities
which are gradually emerging in today's Europe, manifested in a
gradual increase in the number of stable relationships outside
marriage, which are replacing the traditional institution of marriage
without necessarily undermining the fabric of family life, I wonder
whether this Court should not begin to reconsider its stance as to
the justifiable distinction that it accepts, in certain matters,
between marriage on the one hand and other forms of family life on
the other, even when it comes to social security and related
benefits.
CONCURRING OPINION OF JUDGE KOVLER
(Translation)
I
accepted – not without some hesitation – the Grand
Chamber's argument to the effect that States have a certain margin of
appreciation to treat differently couples who have contracted a civil
marriage and those who have not, particularly in matters falling
within the realm of social policy, including pensions and social
security. As the applicant's complaints focus on her right to claim a
survivor's pension and social security benefits based on the
entitlement of her late “partner” (within the meaning of
the domestic legislation) rather than the right to claim an
“ordinary” (old age) pension, the domestic courts'
refusal to award her the benefits in question was based on
well-defined domestic-law provisions and her situation was therefore
foreseeable. Accordingly, there was an objective and reasonable
justification for the impugned difference in treatment and the latter
did not amount to a violation of Article 14 of the Convention taken
in conjunction with Article 1 of Protocol No. 1.
Of
course it is regrettable that the respondent State, to judge by the
information supplied by the two parties, did not allow the applicant
to claim an ordinary pension. Viewed objectively, this lack of any
social welfare provision for widows who contracted a religious
marriage is an infringement of the freedom of choice as to the form
taken by “family life”, since, as the Court has stressed
on numerous occasions, the notion of the “family” is not
confined solely to marriage-based relationships and may encompass
other de facto “family” ties where the parties are
living together outside of marriage (see paragraph 94 of the
judgment, with further references). But the applicant's complaints do
not relate to this aspect of Article 8 of the Convention.
What
I cannot agree with in the text of the judgment are the Court's
pronouncements on marriage under Islamic law.
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 entitled “History” (see paragraphs 36-37),
where what is left unsaid speaks louder than what is actually said.
Hence, to state that “Islamic law ... recognises repudiation
(talâk) as the sole means of dissolving a marriage”,
such repudiation being “a unilateral act on the part of the
husband”, 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.
Had
the Court really been interested in the financial position of the
applicant, whose complaints it reclassified, it could have analysed
in greater detail in its judgment the financial relationship between
married couples under Islamic law. The husband has to pay a dowry,
which belongs to the wife unless she agrees otherwise (Koran, 4:4);
after divorce, the man cannot claim back the dowry unless the woman
agrees to it (Koran, 2:229); the woman can obtain a divorce by buying
back her freedom (Koran, 2:229); finally, men and women are each
entitled to a share of the inheritance (Koran, 4:7, 4:11 and 4:32).
This analysis would have enabled the Court to give a more qualified
interpretation of the “legitimate aim” of the 1926
Turkish Civil Code, instead of denouncing “a marriage tradition
which places women at a clear disadvantage, not to say in a situation
of dependence and inferiority, compared to men” (see paragraph
81). The language of politicians and NGOs is not always appropriate
to the texts adopted by an international judicial body.
Unfortunately, in another case (Refah Partisi (the Welfare Party)
and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98
and 41344/98, ECHR 2003 II), the Court had already, in my view,
committed a serious error by passing judgment on the Islamic system
of values (see my concurring opinion in that case), when it could
easily have refrained from such a demonstration of ideological
activism.
The
European Convention on Human Rights is not the only instrument of its
kind. The Universal Islamic Declaration of Human Rights (21 Dhul
Qaidah 1401 – 19 September 1981) also contains certain
provisions (in particular Article XX on the rights of married women)
which, had the Court taken them into account, would have prevented it
from reaching hasty conclusions which I regret being obliged to adopt
together with the rest of the text of the judgment. I would like to
see the European Court of Human Rights take a more anthropological
approach in the positions it adopts, by “not just exploring
difference, but exploring it differently” (“non
seulement penser l'autre, mais le penser autrement”) (see,
in particular, C. Eberhard, Le droit au miroir des cultures –
Pour une autre mondialisation, Paris, 2010). Otherwise, the Court
is in danger of becoming entrenched in “eurocentric”
attitudes.
