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 ta ken 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 wa s 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 r elate 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.