MATA ESTEVEZ v. SPAIN
Inadmissible
Georg Ress
The applicant, Antonio Mata Estevez, is a Spanish national. He was born in 1953 and lives in Madrid. The applicant lived with another man, Mr G.C., for more than ten years. During that period the applicant and Mr G.C. ran a joint household, pooling their income and sharing their expenses. The applicant considered that the nature of their relationship reflected their right to respect for their private and family life since, being homosexual, they could not sanction it by marrying because under Spanish law only heterosexual couples could marry. On 13 June 1997 Mr G.C. died in a road accident. The applicant claimed the social-security allowances for the surviving spouse, arguing that he had cohabited with the deceased for many years. The National Institute of Social Security (“INSS”) granted the applicant’s claim in respect of an allowance for death expenses, which amounted to 5,000 pesetas. However, in a decision of 24 September 1997, it refused to grant him a survivor’s pension on the ground that since he had not been married to Mr G.C., he could not legally be considered as his surviving spouse for the purposes of section 174 (1) of the General Social Security Act. The applicant appealed against that decision, but his appeal was dismissed. The applicant then appealed to the Madrid Social and Employment Court no. 15. In a judgment of 22 April 1998, delivered after a hearing deemed to be inter partes, the court dismissed the appeal. It based its decision on, among other things, the case-law established by a number of judgments of the Constitutional Court dismissing appeals lodged by heterosexual applicants whose claims for a survivor’s pension had been dismissed on the ground that they had been able to marry but had freely decided not to. The court held that the case-law in question could be extended to de facto partnerships between homosexuals living together as a married couple in so far as that type of relationship could not be equated with the traditional concept of family and marriage protected by the legislature and the Constitution. The court also stated that Articles 8, 12 and 14 of the European Convention on Human Rights did not guarantee equality of treatment between de facto homosexual partnerships and heterosexual marriages. The applicant appealed against that judgment to the Madrid High Court of Justice. In a judgment of 26 January 1999 that court dismissed the appeal and upheld the reasoning of the lower court. The High Court added, however, that it was for the legislature and not for the courts to take a decision regarding the extension of survivors’ pensions to stable de facto partnerships, be they heterosexual or not. Accordingly, the High Court held that section 174 (1) of the General Social Security Act was compatible both with the Constitution and the international treaties to which Spain was a party. Relying on Articles 14 (principle of non-discrimination) and 39 (social, economic and legal protection of the family) of the Constitution, the applicant lodged an application for the protection of fundamental rights (an amparo appeal) with the Constitutional Court. In a decision of 21 October 1999, in which it referred to its established case-law, that court dismissed the appeal on the ground that it was ill-founded. The relevant Articles of the Constitution provide: “Spaniards shall be equal before the law and may not be discriminated against in any way on account of birth, race, sex, religion, opinion or any other condition or personal or social circumstance.” “1. The State authorities shall ensure that the family is afforded social, economic and legal protection. ...” Under section 174 non-marital relationships between men and women 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” where it has been celebrated in accordance with one of the forms established by Article 149 of the Civil Code. The only exception to the above rule is that the surviving partner of an unmarried couple who could not marry each other because there was no divorce before 1981 may claim a survivor’s pension.