DISSENTING OPINION OF JUDGE MYJER

“ Maria Luisa Muñoz pide en Estrasburgo una reparación hist ó rica para los gitanos ” ( “ Maria Luisa Muñoz seeks historic reparation for the Roma at the Strasbourg Court” ) , according to the headline of Nevipens Romani (1 ‑ 15 June 2009). The subheadline continues: “ Catorce millones de gitanos podr í an verse beneficiados de la decisi ó n del Tribunal de Derechos Humanos ” ( “ Fourteen million Roma stand to benefit from the judgment of the [European] Court of Human Rights ” ) .

I am genuinely in favour of Roma equality; indeed that cause has been the object of the Council of Europe ’ s efforts for many years. And I can well imagine that Roma may wish a marriage contracted between two persons of Roma ethnicity according to Roma traditions and standards to be recognised as a legally valid marriage by civil authority. Even so, I consider that it is not for this Court to translate such a wish into an obligation flowing from the Convention.

In its Section I, the Convention enumerates fundamental rights which Contracting States are bound to secure to everyone within their jurisdiction (Article 1). The Court ’ s task is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto” (Article 19). To that end the Court is entrusted with jurisdiction extending to “all matters concerning the interpretation and application of the Convention and the Protocols thereto which are referred to it” (Article 32). In so doing the Court must as far as possible limit its examination to the issues raised by the concrete case before it (see, among many other authorities, Deweer v. Belgium , 27 February 1980, § 40, Series A no. 35 , and Minelli v. Switzerland , 25 March 1983, § 35, Series A no. 62). Its task is not to review in abstracto under the Convention the domestic legislation complained of (see, among many other authorities, F. v. Switzerland , 18 December 1987, § 31, Series A no. 128).

Admittedly, the Convention is a living instrument and the Court has had occasion to extend the scope of Convention rights beyond their original intended meaning in the light of societal developments not envisaged at the time when the Convention was drafted (see, for example, Marckx v. Belgium , 13 June 1979, § 41, Series A no. 31 , and Opuz v. Turkey , no. 33401/02, § 164, ECHR 2009). In so doing the Court has recognised that “the very essence of the Convention is respect for human dignity and human freedom” ( see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 90, ECHR 2002 ‑ VI) but it has nonetheless weighed the general interest against the interest of the individual concerned ( ibid. , § 93).

However, the Court ’ s jurisdiction cannot extend to the creation of rights not enumerated in the Convention, however expedient or even desirable such new rights might be. In interpreting the Convention in such a way, the Court may ultimately forfeit its credibility among the Contracting States as a court of law, thus undermining the unique system of international human rights protection of which it has been the linchpin until now.

In guaranteeing “the right to marry”, Article 12 clearly leaves the modalities of the exercise of this right to domestic authority (“according to the national laws governing the exercise of this right”). As the Court held in the above-mentioned F. v. Switzerland judgment (§ 32):

“Article 12 secures the fundamental right of a man and a woman to marry and to found a family. The exercise of this right gives rise to personal, social and legal consequences. It is ‘ subject to the national laws of the Contracting States ’ , but ‘ the limitations thereby introduced must not restrict or reduce the right in such a way or to such an extent that the very ess ence of the right is impaired ’ ...

In all the Council of Europe ’ s member States, these ‘ limitations ’ appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments.”

As far as I am aware, all Contracting States attribute legal consequences to a lawful marriage. Those legal consequences are diverse in nature; they may relate to, for example, the mutual obligation of maintenance – in some cases, even after a marriage has ended –; pension or social security rights of the surviving spouse in the event of the death of the other; or inheritance rights. They may also be pertinent for third parties, who may have a right to seize marital property to secure the payment of debts owed by only one of the spouses. Some Contracting Parties provide for the registration of partnerships, attributing to registered partnerships all or part of the legal consequences of a marriage.

The Court has been slow to intervene in Contracting Parties ’ exercise of their prerogative in such matters; it has hitherto done so only in cases where a man and a woman were actually prevented by operation of law from contracting marriage ( see F. v. Switzerland , cited above , and B. and L. v. the United Kingdom , no. 36536/02, 13 September 2005). The present case is different.

I find, as the majority do (paragraph 8 0 of the judgment), that “ civil marriage ... is open to the Roma under the same conditions of equality as to persons not belonging to their community”. The applicant has therefore not been the victim of a “difference in treatment” relevant to Article 14 of the Convention. More generally, absent any such difference in treatment I do not accept that the State is under a positive obligation to adapt its marriage laws to the wishes of individuals or groups following a particular lifestyle, not even if, like Roma in Spain , such individuals or groups constitute a large proportion of the population. I therefore concur with the majority in declaring the complaint under Article 14 taken in conjunction with Article 12 inadmissible.

I dissent from the majority in that I find no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1. Although the majority claim to have arrived at their finding solely on the basis of the specific circumstances of the case, I have an uneasy feeling that they may have been moved to point out to the Spanish authorities what they see as the failure to adopt legislation that adequately reflects the special position of Roma. To me, this is apparent from, for example, paragraph 61 of the judgment, where they state the view that “whil e affiliation to a minority does not create an exemption form complying with marriage laws, it may have an effect on the manner in which those laws are applied”. I wonder whether such a statement can be based on the case-law cited in paragraphs 60 and 61 of the judgment , which – as the judgment itself admits – was developed against a wholly different factual and legal background, namely that of spatial planning.

Nor is it obvious to me that such reasoning is valid in the context of the application of social security legislation bestowing benefits on recipients. To me, a closer parallel is Goudswaard- V an der Lans v. the Netherlands (dec.), no. 75255/01, ECHR 2005-XI, which states:

“ ... although the Convention, supplemented by its Protocols, binds Contracting Parties to respect lifestyle choices to the extent that it does not specifically admit of restrictions, it does not place Contracting Parties under a positive obligation to support a given individual ’ s chosen lifestyle out of funds which are entrusted to them as agents of the public weal.”

This situation is distinguishable from that of a couple who are not lawfully married having children and starting a family. The Court has long recognised that children born out of wedlock may not be treated differently – in patrimonial as in other family-related matters – from children born to parents who are married to each other (principle stated in Marckx , cited above ; compare also, among other examples, Kroon and Others v. the Netherlands , 27 October 1994, § 30, Series A no. 297 ‑ C). The corollary, in my view, is that if the Spanish authorities had refused to recognise the applicant as the mother of a large family and grant her the attendant pecuniary benefits, or if they had refused to enter the children in the family record book, they would most likely have had to be found to be discriminating against the applicant and her family. But as is pointed out in the Marckx judgment ( cited above, § 67), that reasoning cannot be turned on its head:

“The fact that, in law, the parents of an ‘ illegitimate ’ child do not have the same rights as a married couple also constitutes a breach of Article 12 in the opinion of the applicants; they thus appear to construe Article 12 as requiring that all the legal effects attaching to marriage should apply equally to situations that are in certain respects comparable to marriage. The Court cannot accept this reasoning; in company with the Commission, the Court finds that the issue under consideration falls outside the scope of Article 12 . ”

The question might well be raised whether the applicant could reasonably be unaware of the precarious legal status of her Roma marriage. I am not convinced that the attitude of the Spanish authorities justifies the view that the applicant was entitled to assume that her marriage was valid as a matter of Spanish law. I am prepared to assume that she was unaware of the legal position when she was married according to Roma ri tes at the age of 15 . Even so, I consider it unreasonable to impute her ignorance to the respondent Party. It would be even more unreasonable to impute the equal treatment, in certain respects, of the applicant and her family as compared to marriage-based families to the Spanish authorities as a fault.

I get the impression from the written observations of the intervening third party, Uni ó n Roman í , and their oral submissions at the hearing that the applicant ’ s case is viewed as a test case to achieve the fulfilment of a long-held wish, namely the recognition of Roma marriage as lawful. This is also reflected by the newspaper headlines which I have quote d above. As matters stand, there appear to be many Spanish Roma who marry twice, both in accordance with Spanish law and according to Roma traditions, to be on the safe side. This is little different from the situation in many other countries, including my own (the Netherlands ), in which a lawful marriage is solemnised before a public authority after which, if the parties so wish, a religious ceremony may follow.

In that connection, I have doubts as to whether there is any factual or legal basis to paragraph 57 of the judgment: can it really be said that “the applicant could not have been required, without infringing her right to religious freedom, to marry legally, that is to say under canon law, in 1971, when she expressed her consent to marry according to Roma rites”? Nothing is known about the applicant ’ s religious affiliation, if any; moreover, the Convention (including Article 9 which guarantees freedom of religion) was not yet in force for Spain in 1971. That aside, a statement like that is a bold one to make obiter dictum .

I find it gratifying that on 3 December 2008 “ under the third amendment of L aw no. 40/2007 of 4 December 2007 pertaining to certain social security measures the applicant was granted a survivor ’ s pension with effect from 1 January 2007, as the partner of M.D. ” (see paragraph 21 of the judgment). A desirable situation has thus been achieved at the appropriate level, the domestic one.