THIRD SECTION

Application no . 35214/09 Antonio ALDEGUER TOMAS against Spain lodged on 22 June 2009

STATEMENT OF FACTS

The applicant, Mr Antonio Aldeguer Tomas, is a Spanish national, who was born in 1955 and lives in Madrid .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant cohabited with another man from 1990 to the latter ’ s death on 2 July 2002. During that period the applicant and his partner had lived together in an apartment belonging to his partner, in which the applicant was registered as a resident on 13 December 2001. When his partner died, the sister and only heir of the applicant ’ s partner gave the applicant, in view of the relationship he had had with her brother, an apartment that had belonged to the applicant ’ s partner and in which they had spent their holidays together since 1990.

On 19 September 2003 the applicant claimed social security allowances as a surviving spouse, under section 174 (1) of the General Social Security Act.

On 22 September 2003 the Social Security National Institute refused to grant the applicant a survivor ’ s pension on the ground that since he had not been married to the deceased person, he could not legally be considered his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. That decision was formally served on 13 June 2005.

On 3 July 2005 Act 13/2005 of 1 st July on amendments to the Civil Code in the field of the right to enter into marriage entered into force. Law 13/2005 legalised same-sex marriage in Spain .

On 5 July 2005 the applicant brought an administrative action against the decision of 22 September 2003. The action was dismissed by the Social Security National Institute on 11 August 2005.

On 26 September 2005 the applicant brought social proceedings before Madrid social-affairs judge no. 33.

In a judgment of 14 November 2005 the social-affairs judge ruled for the applicant. The judge noted from the o utset the recent passing of Law 13/2005, which had amended the Civil Code to make same-sex marriage legal in Spain, and determined that as the applicant had introduced the administrative remedy immediately after that Act had entered into force, the dispute should be resolved in the light of the new legislation. He then noted the applicant ’ s circumstances, namely that he had been prevented from marrying his partner because same-sex marriage was not recognised in domestic law at the time his partner passed away, and that the authorities had relied on the fact that they were not married to refuse the applicant a survivor ’ s pension. Subsequently, he drew attention to some provisions of Law 13/2005 to contend that this new legislation had a very strong egalitarian purpose, and that from the date it entered into force, 3 July 2005, all legal provisions concerning marriage should be interpreted as fully applying to same-sex marriage. In this connec tion, the judge referred to Law 30/1981 of 7 July on amendments to the Civil Code rules governing marriage and on proceedings to follow in the event of nullity, separation and divorce, and in particular Additional Provision no. 10 (2), which recognised the right to obtain a survivor ’ s pension for individuals who had been prevented from marrying a deceased person by the legislation in force until then, provided that he or she had cohabited in a relationship similar to marriage with the deceased person and that the deceased person had passed away before that Act entered into force. The judge argued that this provision was passed to provide a solution to those cohabiting couples consisting of a man and a woman who could not marry, and who thus did not qualify for a survivor ’ s pension under the legislation then in force, because one or even both of them were still married to another person whom he or she was prevented from divorcing, divorce having been legally impossible in Spain until the passing of Law 30/1981. The judge considered that the applicant ’ s circumstances were fully comparable to those outlined in Additional Provision no. 10 (2) of Law 30/1981, and that accordingly this provision was applicable to the applicant by force of Additional Provision no. 1 of Law 13/2005. The judge stated:

“Therefore, the interpretation that in my opinion better fits the legislature ’ s intention is the following:

If the First Additional Provision of Law 13/2005 states that provisions making reference to marriage shall apply irrespective of the sex of the spouses.

And one of [these provisions], currently in force to provide access to a survivor ’ s pension is Additional Provision no. 10 (2) of Act 30/1981.

The only way to apply it in a way which is consistent with the egalitarian intention of the legislation is to do so irrespective of the sexual orientation of the cohabiting couple.

In order to achieve the ultimate aim, of establishing that sexual orientation does not constitute a discriminatory ground in the application of Additional Provision no. 10 (2) of Law 30/1981, the right currently recognised thereby shall be interpreted as providing a solution to cases such as the one now before me in which the impediment to access to a survivor ’ s pension is none other than the sexual orientation [of the claimant].”

As to the degree of retroactivity that should be given to Additional Provision 10 (2) of Law 30/1981, the judge relied on the constitutional effects of Law 13/2005 to make it effective only from the date that law entered into force. Accordingly, the judge recognised the applicant ’ s right to be awarded a survivor ’ s pension with effect from 3 July 2005.

The Social Security National Institute appealed against that judgment before the Madrid High Court of Justice ( Tribunal Superior de Justicia ) .

On 18 September 2006 the Madrid High Court of Justice reversed the first-instance judgment. With regard to the constitutional significance of the issue, the High Court of Justice found that the Spanish legislature had not intended Law 13/2005 to cover same-sex unions which had ended before the law entered into force, even if the ending of the relationship had been caused by the death of one of the partners. It further argued that the lack of protection of these unions could not be considered discriminatory in the light of Article 14 of the Spanish Constitution (right not to be discriminated against), the difference between the situations before and after the passing of Law 13/2005 being essentially an expression of the principle of succession of laws, without constitutional implications as regards the right not to be discriminated against. As regards the applicability to the present case of Additional Provision no. 10 (2) of Law 30/1981, the Madrid High Court of Justice found that this provision was not app licable, for two main reasons: f irstly, because its effects had expired long ago: they were restricted in principle to those cases in which the partner had died before the entering into force of that Act, although its effects had later been extended exceptionally to other cases; secondly, because the Act had been envisaged for a different situation, namely as a guarantee for a surviving heterosexual partner who had been prevented from marrying his or her out-of-wedlock partner because divorce was not legal at the time. In this connection, the high court reasoned that before Law 13/2005 same-sex couples were absolutely prevented from marrying, whereas inability to enter into a new marriage for those affected by Law 30/1981 depended on the fact that divorce was not permitted at the time, the institution of marriage being nonetheless open to them as heterosexuals. Besides, the High Court of Justice contended that only those who were able to marry but had been prevented from marrying for whatever reason could be said to be cohabiting in a relationship similar to marriage, and that this was not the case with same-sex couples, who could never have cohabited as if married before the entering into force of Law 13/2005, because before then it would not have been possible for them to marry.

The applicant lodged an appeal on points of law with the Supreme Court for case-law unification. The appeal was declared inadmissible on 27 June 2007 on the ground that the applicant had failed to submit any contradictory case-law on the issue.

The applicant made a constitutional appeal to the Constitutional Court ( recurso de amparo ), which was declared inadmissible because the applicant had failed to substantiate the special constitutional significance of his case. This decision was served on 17 February 2009.

B. Relevant domestic law

1. The Constitution

Article 9

“2. It is incumbent upon the public authorities to promote conditions which ensure that the freedom and equality of individuals and of the groups to which they belong may be real and effective, to remove obstacles which prevent or hinder their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life ...

Article 14

“Spaniards are equal before the law and shall not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.”

Article 39

“1. The State authorities shall ensure that the family is afforded social, economic and legal protection .. . ”

2. The Royal Decree 1/1994 of 20 June on the Consolidated Text of the General Social Security Act (“The General Social Security Act”), as amended

Under section 174 of the General Social Security Act non-marital relationships do not entitle the survivor to a survivor ’ s pension, even where the persons concerned have lived together. Accordingly, the award of a survivor ’ s pension is conditional on the existence of a lawful marriage between the deceased and the claimant. Marriage shall be deemed to be “lawful” when it has been celebrated in accordance with one of the forms established by Article 49 of the Civil Code. The only exception to the above rule is established in Act 30/1981 of 7 July, below.

3. Law 30/1981 of 7 July, on amendments to the Civil Code rules governing marriage and on proceedings to follow in case of nullity, separation and divorce (“the Divorce Act”)

Additional Provision no. 10

“ On a provisional basis, until a definitive regulation shall be enacted in the relevant legislation, the following rules shall apply in matters concerning pensions and social security ...

2. For those who could not marry because the legislation in force to date prevented them from so doing, but who have lived as in marriage, and where the death of one of them has occurred before the entering into force of this Act, shall enjoy the right to the benefits to which reference has been made in the first paragraph of this provision and to the relevant pension, in accordance with what is stated in the following paragraph.

3. The right to a survivor ’ s pension and other passive rights to benefits on account of a death shall be awarded to the person who has been the legal spouse in proportion to the time lived with the deceased spouse, irrespective of the causes that had determined the separation or divorce ... ”

4. Law 13/2005 of 1 st July on amendments to the Civil Code as regards the right to enter into marriage

Preamble

“ ... Certainly, when the Constitution mandates the legislature to regulate marriage it does not rule out in any way whatsoever a regulation defining partner relationships in a different way than does the regulation existing to date, a regulation covering new forms of life-partner relationships. Moreover, the option reflected in this Act has some constitutional foundations that should be taken into account by the legislature. Hence, the promotion of effective equality between citizens in the free development of their personality (Articles 9 § 2 and 10 § 1 of the Constitution), the protection of freedom in so far as forms of coexistence are concerned (Article 1 § 1 of the Constitution) and the institution of a framework of real equality and enjoyment of rights without discrimination on account of sex, opinion or any other personal or social condition or circumstance (Article 14 of the Constitution), are values established in the Constitution that should be reflected in the rules defining the status of citizenship in a free, pluralistic and open society.

From this broad perspective, the regulation of marriage that is hereby established aims at establishing conformity with the manifest reality of Spanish society, in which changes have been brought about in that society with the involvement of groups seeking total equality for all in the enjoyment of rights, regardless of their sexual orientation, a reality that demands a framework establishing rights and duties for all who formalise their partner relationship.

In this context, this Act allows marriage to be celebrated between persons of the same or different sex, with full and equal rights and duties, irrespective of its membership. Accordingly, the effects of marriage, which are wholly maintained in respect of the objective constitution of the institution, shall be the same in all spheres, regardless of the sex of the spouses; amongst others, in the field of social rights and benefits as well as the possibility of being a party in adoption proceedings ...

On the other hand, and as a consequence of the First Additional Provision of this Act, all references to marriage included in our legal system shall be understood as applicable both to a marriage between two people of the same sex and to a marriage of two people of different sex.”

Sole Article. Amendment of the Civil Code as regards the right to enter into marriage

“The Civil Code is modified as follows:

One. A second paragraph is added to Article 44, with the following wording:

Marriage shall have the same requirements and effects whether the spouses are of the same or different sex.”

First Additional Provision : Application in the legal system

“Legal and regulatory provisions making reference to marriage shall be understood as applicable irrespective of the sex of its members.”

COMPLAINTS

The applicant complains under Article 14 of the Convention in conjunction with Article 8 that he has been the victim of a discriminatory interpretation of Additional Provision no. 10 (2) of Act 30/1981. In substance the applicant also relies on Article 14 of the Convention in conjunction with Article 1 of Protocol no. 1, in so far as he complains that he has been deprived of a survivor ’ s pension in discriminatory fashion.

QUESTION TO THE PARTIES

Has the applicant been a victim of discrimination contrary to Article 14 of the Convention in conjunction with Article 8 of the Convention and/or Article 1 of Protocol no. 1 to the Convention, on account of the refusal by the authorities to award him, after the entering into force of Law 35/2005, a survivor ’ s pension under Additional Provision no. 10 (2) of Law 13/1981?