JOINT DISSENTING OPINION OF JUDGE S TULKENS, ZAGREBELSKY AND SAJÓ

(Translation)

We do not share the majority ’ s view that there has been no violation of Article 8 of the Convention in this case.

1. The applicant was the partner of Ö.K., with whom she entered into a religious marriage in 1976 in accordance with custom and practice and had six children, born between 1977 and 1990. When Ö.K. died in 2002 the applicant requested that she be granted the benefit of his retirement pension and health insurance rights. The request was refused by a judgment of the Hatay Labour Court on 21 January 2004, upheld by a Court of Cassation judgment of 3 June 2004, on the ground that since the applicant ’ s marriage to Ö.K. had not been validated, it could not be legally recognised and she could not therefore be subrogated to the deceased ’ s rights.

2. Before the Court, the applicant alleged that the refusal of the domestic courts to grant her the benefit of certain social security rights of her late partner, the father of her children, had breached her right to family life under Article 8 of the Convention which, in substance, could also be read in conjunction with Article 14. The Court must confine its attention to the requirements of the Convention, without making any judgment on the place and role of civil and religious marriage in Turkish law.

3. In line with the Court ’ s well-established case-law concerning the concept of family life, the judgment does not contest the fact that the applicant ’ s life with Ö.K. (until his death) and with their children amounted to family life within the meaning of Article 8 of the Convention (see paragraph 27). The Court has, indeed, frequently had occasion to observe that the notion of family life encompasses both marriage-based relationships and other de facto relationships (see Merger and Cros v. France , no. 68864/01, § 44, 22 December 2004 ) and that de facto situations may lead it to recognise the existence of conventional family life in the absence of legal ties. Fa ctors to be taken into consideration in this connection include whether the couple live together, the length of their relationship and , in general terms, any factors which demonstrate their commitment to each other , such as their having had children together (see Al-Nashif v. Bulgaria , no. 50963/99, § 112 , 20 June 2002 ). All these factors were present in the instant case.

4. It is not disputed, either, that the applicant was deprived of the social security entitlements normally granted to a surviving spouse; the Government simply argued that “ no one could benefit from the rights conferred by marriage unless he or she had fully complied with the requirements of the law ” (see paragraph 22). Hence, it would have been possible to examine the applicant ’ s complaint under Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention. In that connection, we would point to the Court ’ s very solid case-law on the subject of discrimination in the social security sphere based on nationality (see, among other authorities, Gaygusuz v. Austria , 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV ; Wessels-Bergervoet v. the Netherlands , no. 34462/97, ECHR 2002 ‑ IV ; Willis v. United Kingdom , no. 36042/97, ECHR 2002 ‑ IV ; Koua Poirrez v. France , no. 40892/98, ECHR 2003 ‑ X ; Niedzwiecki v. Germany , no. 58453/00, 25 October 2005 ; Okpisz v. Germany , no. 59140/00, 25 October 2005 ; and Luczak v. Poland , no. 77782/01, ECHR 2007 ‑ XIII ), which could also be considered in terms of marital status.

5. Following fairly general reasoning which focuses mainly on the State ’ s margin of appreciation in the sphere of marriage and the fact that the latter remains an institution widely recognised as conferring a particular status on those who enter it (see paragraph 29), the majority bases its conclusion that there has been no violation of Article 8 of the Convention solely on the finding that “ the difference in treatment between married and unmarried couples with regard to survivors ’ benefits pursued a legitimate aim and was based on objective and reasonable grounds, namely the protection of the traditional family based on the bonds of marriage ” (see paragraph 30). Whether it is based on Article 8 of the Convention or also on Article 14 – as the Court implies by making at least partial use of the method for assessing compliance with that provision – we are not persuaded by this line of argument, which appears to us to be defective from both a legal and a factual viewpoint.

6. In finding that there was indeed a difference of treatment in the instant case between married and unmarried couples, the majority confines itself to asserting that this was based on “objective and reasonable grounds”. However, the Court has made clear in numerous judgments that the requirement of proportionality is inherent in the notion of objective and reasonable grounds: the impugned measure must normally be such as to enable the legitimate aim to be achieved and must be necessary to that end (see Karner v. Austria , no. 40016/98, § 41, ECHR 2003 ‑ IX , and Ãœnal Tekeli v. Turkey , no. 29865/96, § § 64 and 65 , ECHR 2004 ‑ X). However, this was not specifically established, or even suggested, in the present case.

7. Furthermore, as the Court has pointed out on several occasions, Article 8 of the Convention, and also Article 14 in certain cases, may entail positive obligations on States to ensure the effective exercise of the right in question. In the instant case, however, the majority did not provide any response to the applicant ’ s argument that the domestic authorities, given the remark entered in the civil register, had been aware of the situation and had done nothing to remedy it: should those responsible for maintaining the register not have referred the matter to the competent authorities?

8. Lastly, the judgment also omits to address the applicant ’ s other argument, under Article 14, that the sole victims in such situations are women and not men (see paragraph 24). This raises the issue of possible indirect discrimination (see Hoogendijk v. the Netherlands (dec.), no. 58641/00, 6 January 2005). Here, we would simply point to Directive 79/7/EEC of the Council of the European Union of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security , and Recommendation Rec(2007)17 of the Council of Europe ’ s Committee of Ministers to member States on gender equality standards and mechanisms, dated 21 November 2007 (Part B – Standards in specific areas , point 6 – Social protection, §§ 37 et seq.).