Communicated on 21 September 2020 Published on 12 October 2020

THIRD SECTION

Application no. 32667/19 Mercè DOMENECH ARADILLA against Spain lodged on 12 June 2019

SUBJECT MATTER OF THE CASE

The application concerns the refusal to grant a survivor ’ s pension to the applicant due to a declaration of unconstitutionality of Article 174 § 3 of the Law of Social Security .

The applicant and her partner lived together since 2005 and had a child. According to Article 234-1 of the Catalan Civil Code a civil partnership was considered stable when meeting any of these three circumstances: cohabitation for more than two years without interruption; cohabitation having a common child; or formalisation of the relationship by notarial deed. According to this regulation, the applicant and her partner were considered a civil partnership.

The applicant ’ s partner died on 5 November 2013. The applicant requested a survivor ’ s pension on 21 January 2014. A judgment of the Constitutional Court of 11 March 2014 declared the unconstitutionality of Article 174 § 3 of Social Security Law 1/1994 which referred to Catalonian legislation. The judgment imposed the same requirements in order to access to a survivor ’ s pension all over Spain: five years of cohabitation and, two years before passing away, either registration of the cohabitation in a public register or a notarial deed.

Labour Court no. 33 of Barcelona granted the survivor ’ s pension on the basis that the unconstitutionality declaration did not affect pre-existing situations in order to guarantee legal certainty. This judgment was revoked on appeal, holding that the unconstitutionality affected the applicant ’ s situation. The appeal judgment was upheld by the Supreme Court and by the Constitutional Court. The applicant was not awarded the survivor ’ s pension due to the lack of registration of her civil partnership for at least two years.

The applicant complains under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the refusal of a survivor ’ s pension on the grounds of the impossibility to comply with the formal requirements imposed by the Constitutional Court ruling in her case. She also complains of an alleged violation of Article 1 of Proto col No. 12 insofar as Catalonian women have been especially harmed by the described facts.

QUESTIONS TO THE PARTIES

1. Did the applicant ’ s survivor ’ s pension expectation constitute a “possession” within the meaning of Article 1 of Protocol No. 1? If so, did the deprivation of this right, in full, strike a fair balance between her individual rights and the public interest (see Apostolakis v. Greece , no. 39574/07, § 37, 22 October 2009)? Did the fact that, following the Constitutional Court ’ s judgment, the applicant was required to register her civil status constitute an excessive burden, considering that this was not required according to regional Catalan law at the relevant time (see Kho niakina v. Georgia , no. 17767/08, §70, 19 June 2012)?

2. Has there been due consideration, under Article 1 of Protocol No. 12, of the differences between the applicant ’ s case and other widows in the rest of Spain, as regards the specific legal situation arising from the Constitutional Court ’ s judgment? ( see , mutatis mutandis, Horváth and Kiss v. Hungary , no. 11146/11, § 128, 29 January 2013, and D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV)?

3. Did the applicant have a fair hearing in the determination of her civil rights and obligations and an effective remedy at her disposal, in accordance with Articles 6 § 1 and 13 of the Convention?