Resolution CM/ ResDH (2011)265 [1]

Execution of the judgment of the European Court of Human Rights

Muñoz Diaz against Spain

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)

Judgment of

Final on

Muñoz Diaz (49151/07)

8/12/2009

8/03/2010

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent state to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see appendix);

Having noted that the respondent state paid the a p plicant the just satisfaction, as provided in the judgment;

DECLARES, that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Appendix to Resolution CM/ ResDH (2011)265

Information about the measures to comply with the judgment in the case of

Muñoz Diaz against Spain

ACTION REPORT [3]

CASE: MUÑOZ DÍAZ against Spain

APPLICATION No.: 49151/07

JUDGMENT DATE: 8/12/2009

DATE OF TRANSMISSION FOR EXECUTION: 8/03/2010

ORIGINAL FRENCH

CIRCUMSTANCES OF THE CASE: The European Court considered that there had been a violation of Article 14 of the Convention (prohibition of discrimination) in conjunction with Article 1 of Protocol No. 1 (right to the peaceful enjoyment of possessions) on the ground that entitlement to receive Spanish social security benefits constituted a proprietary right for the purposes of the Convention. The Court considered that in the present case the application for a reversionary pension had been dealt with differently in comparison with equivalent cases and that neither the applicant ’ s good faith nor her membership of the Roma minority, nor the special circumstances existing at the time of her marriage according to the Roma rite had been taken into account.

The Court did not find a violation of Article 14 in connection with Article 12 (right to marry) (paragraph 79 of the judgment). Thus the absence of recognition of the marriage according to the Roma rite did not infringe Articles 12 or 14 of the Convention.

(1) INDIVIDUAL MEASURES

The applicant ’ s right to the reversionary pension has been recognised since 1 January 2007 pursuant to Law No. 40/2007, supplementary provision 3 o of 4 December, in her capacity as “ de facto spouse”.

The judgment has also been disseminated and published.

Spain considers no other individual measures are necessary.

(2) GENERAL MEASURES

The European court notes in its judgment that this case concerns an accumulation of particular circumstances (paragraph 69) and that the law had been amended to respond to such situations (paragraph 30). Law No. 40/2007, supplementary provision 3, recognises the right to a reversionary pension in circumstances where “the beneficiary would have led an uninterrupted life in common, as a de facto couple according to the conditions provided in Article 174.3, paragraph 4, sub-paragraph 1 of the “General Law on Spanish Social Security, in the wording provided by Article 5 of the present Law, with the person in whom the right is vested for a minimum of six years before the latter ’ s decease”.

A transitional legal provision (third supplementary provision) was added to this amendment so as to allow persons not entitled to a pension to apply for it within 12 months of the entry into force of Law 40/2007.

As the Court recognised, there is already a law (tenth additional provision to Law 40/2007) as well as constitutional case-law, which takes into account good faith and exceptional circumstances in decisions on the right to a reversionary pension (Paragraphs 26, 32 and 53).

The Judgment has been published and disseminated within the judicial system. It has also been widely publicised in the media. A recent judgment by the Social Affaires Chamber of the Extramadura Higher Court of Justice of 22 February 2010 demonstrates this: although the court rejected the applicant ’ s request, it referred in its reasoning to the present judgment of the European Court, but noted that the applicant had not been in a situation comparable to that of the applicant in Muñoz Díaz .

In the light of the above, Spain considers that it is not necessary to adopt further general measures.

(3) JUST SATISFACTION

Having regard to the period between the death of the applicant ’ s partner and the said date, the European Court granted just satisfaction of 70 000 EUR in respect of both pecuniary and non-pecuniary damage. It should be highlighted that the applicant ’ s calculation of the pecuniary damage sustained (i.e. the amount of pension not received between 2000 and 2007) amounted to 53 319,88 EUR. The Court added the sum of 5412,56 EUR for costs and expenses.

These sums were paid to the applicant on 12 April 2010.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member states on the improvement of domestic remedies.

[3] The French translation was not prepared by a translator under oath.