CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 juin 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sA36B60A1 { font-family:Arial; font-style:italic } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .s13907D4E { margin-top:18pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s57AA983F { margin-top:18pt; margin-left:21.3pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s76CC6FD2 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid } .s37CDBE05 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s1B50D646 { width:185.6pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .s1EC78E58 { margin-top:6pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       THIRD SECTION               CASE OF ALDEGUER TOMÁS v. SPAIN   (Application no. 35214/09)                   JUDGMENT     STRASBOURG     14 June 2016     FINAL   14/09/2016   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Aldeguer Tomás v. Spain, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Helen Keller,   Johannes Silvis,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková, judges,   Blanca Lozano Cutanda, ad hoc judge, and Stephen Phillips, Section Registrar, Having deliberated in private on 17 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35214/09) against the Kingdom of Spain lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Spanish national, Mr   Antonio   Aldeguer   Tomás (“the applicant”), on 22 June 2009. 2.     The applicant, who had been granted legal aid, was represented by Mr   M.   Ródenas   Pérez, a lawyer practising in Madrid. The Spanish Government (“the Government”) were represented by their Agent, Mr   F.   Sanz   Gandásegui, State Attorney. 3.     The applicant complained under Article 14 of the Convention taken in conjunction with Article 8 that he had been discriminated against on the ground of his sexual orientation in that he had been denied a survivor’s pension following the death of his partner, with whom he had lived in a de   facto marital relationship for twelve years. In substance the applicant also relied on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention. 4.     On 18 October 2012 the application was communicated to the Government. 5.     Judge Luis López Guerra, the judge elected in respect of Spain, withdrew from sitting in the case (Rule 28 of the Rules of Court). On 11   February 2015, the President of the Section accordingly appointed Ms   Blanca   Lozano   Cutanda to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule   29 §   1   (a) of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1955 and lives in Pozuelo de Alarcón (Madrid). 7.     The applicant cohabited with another man in a homosexual relationship from 1990 until the latter’s death on 2 July 2002. During that period they lived together in an apartment belonging to the applicant’s partner. When his partner died, the sister and only heir of the applicant’s partner gave the applicant, because of the relationship he had had with her brother, an apartment that had belonged to the applicant’s late partner and in which the couple had spent their holidays together since 1990. 8.     On 19 September 2003 the applicant claimed social security allowances as a surviving spouse, under section 174 (1) of the General Social Security Act, arguing that he had cohabited with his deceased partner for many years. 9.     On 22 September 2003 the National Institute of Social Security ( Instituto Nacional de la Seguridad Social , hereafter referred to as “INSS”) 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 as 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. 10.     On 1 July 2005 Law no. 13/2005 amending the provisions of the Civil Code with respect to the right to enter into marriage was passed. Two days later it entered into force. This law legalised same-sex marriage in Spain. In accordance with its first additional provision all legal and regulatory provisions making reference to marriage should be understood thereafter as applicable to all marriages irrespective of the sex of its members (see paragraph 35 below). 11.     On 5 July 2005 the applicant filed an administrative complaint against the decision of 22 September 2003. This complaint was dismissed by the INSS on 11 August 2005. The INSS noted that there was no provision in the legislation in force that allowed, for the purposes of social security rights, the person who had been cohabiting with the deceased to gain the status of a widower. 12.     On 26 September 2005 the applicant challenged that decision before the Madrid Social Tribunal no. 33 (“the Social Tribunal”). 13.     In a judgment of 14 November 2005 the Social Tribunal ruled for the applicant. The Social Tribunal firstly outlined that the facts of the case had to be assessed in the light of the newly enacted Law no. 13/2005, which was already in force and deemed constitutional by the tribunal. As to the merits, the Social Tribunal observed that the issue at stake was whether the applicant, as the surviving partner of a same-sex relationship that ended (following his partner’s death) before the entry into force of Law   no.   13/2005, had the right to a survivor’s pension. The Social Tribunal then reiterated that, according to the well-established domestic case-law, surviving partners of unmarried couples were not entitled to a survivor’s pension under section 174 of the General Social Security Act, marriage being a constitutive element to access any such social-security benefit; that the applicant had been prevented from marrying his partner because same-sex marriage had not been recognised in domestic law at the time his partner died; that the social security administration had relied on the fact that the couple had not married to refuse the applicant a survivor’s pension; and that it was evident that after the entry into force of Law no. 13/2005, surviving spouses of same-sex marriages were entitled to survivors’ pensions on the same footing as survivors of different-sex marriages. 14.     The Social Tribunal was of the view that the solution to the legal issue raised by the applicant’s case depended on whether it could be inferred from Law no. 13/2005 that Parliament’s intention had been that surviving partners of same-sex couples who had been prevented from marrying under the former legislation could access a survivor’s pension on a similar footing to same-sex couples who could marry after the entering into force of that Act. The Social Tribunal drew attention in this regard to the provisions and the explanatory memorandum of Law no. 13/2005 to contend that this new legislation had a very strong egalitarian purpose, and that from the date it entered into force, that is to say 3 July 2005, all legal provisions concerning marriage should be interpreted on the basis of the first additional provision of Law no. 13/2005 as applying fully to same-sex marriage (see paragraph   35 below). The Social Tribunal held in this regard that: “This is a wide-ranging provision which affects all the other provisions of the legal system making reference to marriage. From now onwards all references to marriage established in the law shall be understood as applying also to marriage celebrated between two persons of the same sex. Accordingly, whoever shall be called to interpret or apply any marriage-related provision should do so in egalitarian terms without taking into consideration whether the spouses are of the same or different sex”. 15.     The Social Tribunal further recalled that additional provision   no.   10   (2) of Law no. 30/1981 of 7 July 1981 amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce, recognised the right to obtain a survivor’s pension for individuals who had been prevented from marrying a person who later died 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 had died before Law no. 30/1981 entered into force. 16.     The Social Tribunal stressed that such a provision was included in order to provide a solution for those cohabiting couples consisting of a man and a woman who could not have married under the legislation in force until that time, and thus did not qualify for a survivor’s pension, because one or even both of them had still been married to another person whom they had been prevented from divorcing, divorce having been legally impossible in Spain until the passing of Law no. 30/1981. The Social Tribunal considered that the applicant’s circumstances were “fully comparable” to those outlined in additional provision no. 10 (2) of Law no. 30/1981 in so far as: “- the claimant could not marry his partner because the legislation then in force prevented him from doing so; - the claimant had shared a marital life with his partner until the latter’s death; - the latter’s death had taken place before the entry into force of Law   no.   13/2005” 17.     The Social Tribunal acknowledged, however, that whereas Law   no.   30/1981 was aimed at protecting the rights of those cohabiting heterosexual couples who were prevented from marrying because divorce was prohibited at the time, Law no. 13/2005 was aimed at protecting the rights of those who could not marry on account of their sexual orientation, and that this distinction was the main impediment to the recognition of the applicant’s right to a survivor’s pension. 18.     The Social Tribunal considered nonetheless that treating these two groups differently would not be in harmony with the strong egalitarian intention expressed by Parliament with the passing of Law no. 13/2005 and that, accordingly, additional provision no. 10 (2) of Law no. 30/1981 was applicable to the applicant by force of additional provision no. 1 of Law   no.   13/2005. The Social Tribunal stated as follows: “Therefore, the interpretation that in my opinion better fits the legislature’s intention is the following: - If the first additional provision of Law no. 13/2005 sets out 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 Law   no.   30/1981. - The only method to apply it in a way which is consistent with the egalitarian intention of the legislature is to do so irrespective of the sexual orientation of the members of the cohabiting couple. - In order to ensure that sexual orientation does not constitute discriminatory grounds in the application of additional provision no. 10 (2) of Law no. 30/1981, the right thereby recognised shall currently be interpreted as providing a solution to factual situations such as the one in the instant case in which the impediment to access to a survivor’s pension is no other than the sexual orientation [of the claimant].” 19.     As regards the administration’s submission that in the area of social security benefits the governing principle was that of non-retroactivity of laws and that according to the law in force at the time the applicant’s partner died the former did not qualify for a survivor’s pension because they were not married, the Social Tribunal was of the view that this general principle was not absolute and that it did not apply where there was a specific rule giving retroactive effect to laws more favourable to the citizens, as is true of the instant case. Thus, additional provision no. 10 (2) of Law   no.   30/1981 should be read in the light of the first additional provision of Law   no.   13/2005. 20.     As to the degree of retroactivity that should be given to additional provision   10   (2) of Law no. 30/1981 in the applicant’s case, the Social Tribunal relied on the constitutive effects of Law no. 13/2005 which created new rights and was effective only from the date it entered into force. Accordingly, the Social Tribunal recognised the applicant’s right to be awarded a survivor’s pension with effect from 3 July 2005. 21.     The INSS and the Treasury General of Social Security appealed ( recurso de suplicación ) against that judgment to the Madrid High Court of Justice ( Tribunal Superior de Justicia ). 22.     On 18 September 2006 the Madrid High Court of Justice upheld the appeal and reversed the first-instance judgment. The court found that the legislature had not intended Law no. 13/2005 to cover same-sex partnerships which had been ended by the death of one of the partners before said law had entered into force and that the lack of protection of these unions could not be considered discriminatory in the light of Article   14 of the Spanish Constitution. 23.     For the court, it was only as from the entry into force of Law   no.   13/2005 that marriage between same-sex couples was recognised and that this law affected other rights for those persons who would wish to marry thereafter. Hence, the court was of the view that Law no. 13/2005 had no retroactive effects, except as otherwise expressly provided, which was not the case at hand. 24.     The court further stated that even though Law no. 13/2005 had been inspired by the constitutional principle of equality, prior legislation preventing same-sex marriage could not be deemed unconstitutional as contrary to either any constitutional principle or to the right not to be discriminated against. The court referred to constitutional case-law dating from 1994 according to which the requisite of heterosexuality for the purposes of marriage was fully constitutional and that it was within the margin of appreciation of the public authorities to treat heterosexual marriages more favourably than homosexual partnerships. In this connection, the court maintained that despite the reference in the preamble of Law no. 13/2005 (see paragraph 35 below) to the discriminatory treatment to which homosexuals had traditionally been subjected on account of their sexual orientation, the aim of Parliament in passing that law was merely to respond to a new social reality and award homosexuals the right to marry, but not to protect same-sex partnerships which had already ended before its enactment. 25.     The court referred to constitutional case-law according to which a difference in legal treatment of individuals due to subsequent changes in the law does not necessarily entail discrimination, even if those persons could be said to be in similar circumstances. Given the complexity that a change in legislation might involve, it was for Parliament to establish the characteristics of the legal transition, either by introducing retroactivity clauses or by restricting the application of the new legislation to circumstances arising after its entry into force. 26.     The court noted in this regard that Law no. 13/2005 had not included any provision concerning same-sex partnerships which had already ended at the time of its entry into force and that it strictly concerned same-sex couples still in existence at that time and who would be willing to enter into marriage. The court considered that the difference between the situations before and after the passing of Law no. 13/2005 was essentially an expression of the principle of succession of laws without constitutional implications as regards the right not to be discriminated against. 27.     As regards the applicability to the present case of additional provision   no.   10   (2) of Law no. 30/1981, the Madrid High Court of Justice found that this provision was not applicable to the applicant’s case for two main reasons. Firstly, that provision could not be considered as among the provisions to which the first additional provision of Law   no.   13/2005 referred. Additional provision no. 10 (2) was, as the Constitutional Court had established, of a provisional or transitory nature and had been envisaged for those specific cases in which one of the partners had died before the entry into force of Law no. 30/1981. It had not been intended to govern future situations. Secondly, that provision had been envisaged for a totally different situation from that of the applicant. Additional provision   no.   10   (2) of Law no. 30/1981 was aimed at guaranteeing a survivor’s pension to those heterosexuals who had been prevented from marrying their out-of wedlock partner because divorce had not been legal at the time of the latter’s death. The inability to remarry for those affected by additional provision   no. 10   (2) of Law no. 30/1981 was based on the fact that divorce was not permitted at the time. The institution of marriage was open to them in their capacity as heterosexuals. On the contrary, same-sex couples were absolutely prevented from marrying before Law no. 13/2005 since the institution of marriage was until then restricted to heterosexual couples. 28.     Furthermore, the court contended that the applicant could never have fulfilled the more uxorio marital cohabitation requirement established by additional provision no. 10 (2) of Law no. 30/ 1981 of, because only those who were in principle eligible for marriage but had been prevented from marrying for whatever reason could qualify for de facto marital cohabitation. The applicant and his partner could have never cohabited “as if married” before the entry into force of Law no. 13/2005, because before then they were ineligible for marriage as they were both male. 29.     The applicant lodged an appeal on points of law seeking harmonisation of the case-law ( recurso de casación para la unificación de doctrina ). In a decision of 27 June 2007, the Supreme Court (Social Chamber) declared the appeal inadmissible on the ground that the decision produced for purposes of comparison, specifically a judgment of the High Court of Justice of the Canary Islands of 7 November 2003, was not relevant. That decision was served on 26 July 2007. 30.     Relying on Articles 14 (principle of equality and prohibition of discrimination) and 24 § 1 (right to effective judicial protection), the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 11 February 2009, served on 17 February 2009, the Constitutional Court declared the appeal inadmissible on the grounds that the applicant had failed to substantiate the special constitutional relevance of his complaints. II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     The Constitution 31.     The relevant provisions of the Spanish Constitution read as follows: 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 be real and effective, to remove obstacles which prevent or hinder their full enjoyment [of these rights], and to facilitate the participation of all citizens in political, economic, cultural and social life.   ...” Article   14 “All Spaniards are equal before the law and may 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   32 “1. Men and women shall have the right to enter into a marriage with full legal equality. 2. The law shall determine the forms of marriage, the requisite age and capacity for marriage, the rights and duties of the spouses, the grounds for separation and dissolution and the effects thereof.” Article   39 “1. The State authorities shall ensure that the family is afforded social, economic and legal protection. ...” B.     The Civil Code 32.     The relevant provision of the Civil Code reads as follows: Article   2 “3. Statutes shall not have retroactive effect, unless otherwise provided therein”. C.     Law no. 30/1981 of 7 July 1981, amending the provisions of the Civil Code pertaining to marriage and the procedure to be followed for cases of annulment, judicial separation and divorce (“the Divorce Act”) 33.     The relevant provisions of “the Divorce Act” read as follows: Additional provision   no.   10 “On a provisional basis, until a definitive regulation is enacted in the relevant legislation, the following rules shall apply in matters concerning pensions and social security ... 2. For those who have not been able to marry on account of the legislation in force until now but who have lived as a married couple, when the death of one of the partners has occurred before the entry into force of the present Law, the survivor will be entitled to the benefits provided for in the first paragraph of the present provision and to the corresponding pension in accordance with 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 ...” D.     The Royal Legislative Decree no. 1/1994 of 20 June 1994 on the Consolidated Text of the General Social Security Act, as in force at the time of the death of the applicant’s partner (“the General Social Security Act”) 34.     Under section 174 § 1 of “the General Social Security Act” non ‑ marital relationships did not entitle the survivor to a survivor’s pension, even where the persons concerned had lived together. Accordingly, the award of a survivor’s pension was conditional on the existence of a lawful marriage between the deceased and the claimant/survivor. Marriage was deemed to be “lawful” when it had been celebrated in accordance with one of the forms established by Article 49 of the Civil Code. E.     Law no. 13/2005 of 1 July 2005 amending the provisions of the Civil Code as regards the right to enter into marriage 35.     The relevant parts of Law no. 13/2005 read as follows: Preamble “The legislature has decided to remove a long history of discrimination based on sexual orientation. The establishment of a personal framework that allows those who freely adopt sexual and emotional ties with persons of their own sex to develop their personality and exercise their rights under equal conditions is demanded by the citizens of our time, and this law intends to provide a response to that demand. 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 law 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 establishment 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 conforming to 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; this is a reality that demands a framework establishing rights and duties for all those who formalise their partner relationships. In this context, this Law allows marriage to be celebrated between persons of the same or different sex, with full and equal rights and duties, irrespective of its composition. Accordingly, the effects of marriage, which are wholly maintained in respect of the objective make-up of the institution, shall be the same in all spheres, regardless of the sex of the spouses; this includes, amongst other areas, the sphere of social rights and benefits as well as the possibility of being a party to 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 persons of the same sex and to a marriage between two persons of the opposite sex.” Single 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 to the legal system “Legal and regulatory provisions making reference to marriage shall be understood as applicable irrespective of the sex of its members.” F.     Law   no.   40/2007 of 4 December 2007 on social security measures, amending the General Social Security Act 36.     Law   no.   40/2007, which entered into force on 1 January 2008, amended Article 174 of the General Social Security Act (Article 174 §   3) recognising for the first time the right to a survivor’s pension for unmarried couples, heterosexual or homosexual, who had lived together continuously for more than five years before the death of the insured partner. In addition, the third additional provision of this Law extended retroactively this right to de facto partners who had been widowed prior to the entry into force of the   law and where the survivor was found in situations of particular need. In   this regard, the third additional provision established, among other requirements, that the couple “had had children together”. The claim had to   be filed within a period of twelve months of the entry into force of Law   no.   40/2007 (see Muñoz Díaz v. Spain , no. 49151/07, §   30, ECHR   2009). G.     The case-law of the Constitutional Court 37.     In its decision no. 222/1994 of 11 July 1994 the Constitutional Court dismissed an amparo appeal which requested that the equivalent effects as marriage be granted to the more uxorio cohabitation of two homosexuals, for the purposes of a survivor’s pension. It stated that “in the same way as a heterosexual couple cohabiting, a partnership between persons of the same biological sex is not a legally regulated institution, nor is its establishment embodied in a constitutional right; quite the opposite to marriage between a man and a woman, which is a constitutional right (Article 32 § 1 of the Constitution)”. The court upheld the constitutionality of the heterosexual principle as the defining criterion of a marital bond. Consequently, it accepted that the public powers granted privileged status to a family union consisting of a man and a woman, as opposed to a homosexual union. The Constitutional Court relied on the case-law of the Court under Article 12 of the Convention ( Rees v. the United Kingdom , 17 October 1986, §   11, Series   A no. 106, and Cossey v. the United Kingdom , 27 September 1990, §   22, Series A no.   184). 38.     The Constitutional Court followed the same approach in its decision of 21 October 1999 in the case of Mata Estevez v.   Spain ((dec.), no.   56501/00, ECHR 2001-VI), in which it declared the amparo appeal inadmissible on the grounds that it was ill-founded. 39.     On 30 September 2005 seventy-two members of Parliament (representing an opposition party at that time) brought an action before the Constitutional Court challenging the constitutionality ( recurso de inconstitucionalidad ) of Law no. 13/2005. They argued that Law no.   13/2005 denaturalised the concept of marriage set forth in Article 32 of the Spanish Constitution, which explicitly referred to men and women. 40.     In its judgment no. 198/2012 of 6 November 2012 the Constitutional Court, sitting as a full court, dismissed the constitutional action and concluded that Law no. 13/2005 was fully compliant with Article 32 of the Constitution. As regards the situation before the entry into force of Law   no.   13/2005, the court did not consider that it was necessary to address the issue of whether homosexual couples would have had the constitutional right to marry at that time. 41.     In its judgment no. 41/2013 of 14 February 2013 the Constitutional Court considered that the requirement of having had children to access a survivor’s pension in the case of de facto unions established by the third additional provision of Law no. 40/2007 (see paragraph 36 above) was in breach of the principle of equality before the law enshrined in Article 14 of the Constitution. The Constitutional Court was of the view that the difference in treatment established by the law, based on the requirement of having had children together, led to a disproportionate result by denying certain survivors of unmarried couples (homosexual and heterosexual couples who had not had their own or adopted children together, for legal or biological reasons) access to the protection provided by the pension. It therefore concluded that the difference in treatment lacked an objective and reasonable justification. The court considered that it was not necessary to examine whether the impugned provision was also discriminatory on grounds of sexual orientation. As to the effects of this ruling, the Constitutional Court indicated that the fact of declaring unconstitutional the requirement of having had children together, as established by the third additional provision of Law no. 40/2007, did not mean that those persons who had not filed a claim for a survivor’s pension within the deadline of twelve months from the entry into force of the law could now do so. Nor could this judgment call into question the authority of res judicata of final judgments in which the courts had applied the contested requirement. 42.     In its judgment no. 92/2014 of 10 June 2014 the Constitutional Court examined the constitutionality of Article 174 § 1 of the General Social Security Act, as it stood before the entry into force of Law no. 40/2007 on social security measures. The Constitutional Court examined this issue in the context of an amparo appeal lodged by an appellant who complained, under Article 14 of the Constitution, about the denial of a survivor’s pension following the death of his homosexual partner in 2002 (before the entry into force of Law no. 40/2007). The court referred to the margin of appreciation of the legislature in the area of social security rights and to the Court’s decision in Mata Estevez v. Spain (cited above), where the Court had accepted that the exclusion of same-sex couples from the survivor’s pensions social security scheme was not in breach of Article 8, taken in conjunction with Article 14 of the Convention. In the view of the Constitutional Court, it was solely for the legislature to decide when to extend the right to a survivor’s pension to other situations, and to what extent to do so. This is what the Spanish legislature had done by introducing same-sex marriage in 2005 (thus allowing same-sex couples to enter into marriage and benefit from survivors’ pensions) and by extending in 2007 the right to a survivor’s pension to stable, de facto unions, both heterosexual and homosexual, under certain conditions. According to the court, this was the legislature’s policy choice and the situation existing before could not, of itself, be considered incompatible with the principle of equality, as protected by Article 14 of the Constitution. 43.     The Constitutional Court applied the principles set out in its judgment no. 92/2014 and therefore rejected on the merits several amparo appeals, including those where the appellant had relied on the application by analogy of additional provision no. 10 (2) of Law no. 30/1981, following the entry into force of Law no. 13/2005 (see for instance, judgments no.   124/2014 of 21 July 2014, no. 157/2014 of 6 October 2014, in which the public prosecutor had supported the grant of the amparo relief to the individuals concerned). H.     The case-law of the Supreme Court 44.     In its judgment of 29 April 2009, the Supreme Court (Social Chamber) ruled on an appeal on points of law seeking harmonisation of the case-law on the specific issue of survivors’ pensions for same-sex couples in which one of the partners had died before the entry into force of Law   no.   13/2005. The Supreme Court noted that Law no. 13/2005 did not contain any transitional provision giving retroactive effect vis-à-vis situations predating the entry into force of the law. Nor was it possible to apply by analogy additional provision no. 10 (2) of Law no. 30/1981, which concerned only cohabiting heterosexual couples who had been prevented from marrying because divorce had not been legal before 1981. The situation of same-sex couples before 2005 was totally different, in that same-sex marriage was not regulated at all and there had been no constitutional right to same-sex marriage before that date. In the view of the Supreme Court, Law no. 13/2005 had not been enacted to put an end to a previous situation of discrimination which ran contrary to the Constitution. Its purpose was to create a new set of rights and obligations for same-sex couples, with only ex nunc effects for the future. 45.     The judgment of the Supreme Court contained a dissenting opinion authored by Judge F. Salinas Molina, which was joined by four other judges of the Social Chamber. The dissenting judges considered that additional provision   no.   10   (2) of Law no. 30/1981 should be applied by analogy to same-sex couples who had been prevented from marrying before 2005. This application by analogy was based on the similarity between the two situations (existence of a legal impediment to enter into marriage before the entry into force of a new law and impossibility to marry after that date due to the death of one of the members of the couple), and on the fact that in both cases the purpose of the pension was to meet the needs of the surviving partner. The fact that during the legislative process concerning Law   no.   13/2005 the transitional or retroactive scope of the law had not been discussed did not mean that additional provision no. 10 (2) of Law   no.   30/1981 was not applicable by analogy. Furthermore, Law   no.   13/2005 was aimed at securing full equality for same-sex couples in the field of marriage, including for the purposes of social rights and benefits. Accordingly, judges should interpret and apply the legislation in conformity with that purpose, in order to avoid discriminatory treatment. The dissenting judges referred to the case-law of the Court, as well as Article   26 of the International Covenant on Civil and Political Rights and Article   21 § 1 of the Charter of Fundamental Rights of the European Union. I.     Relevant Council of Europe materials 46.     In its Recommendation 924 (1981) on discrimination against homosexuals, the Parliamentary Assembly of the Council of Europe (PACE) criticised the various forms of discrimination against homosexuals in certain member States of the Council of Europe. In Recommendation   1474 (2000) on the situation of lesbians and gays in Council of Europe member States, it called on member States, among other things, to enact legislation to provide for registered partnerships. Furthermore, in Recommendation 1470 (2000) on the more specific subject of the situation of gays and lesbians and their partners in respect of asylum and immigration in the member States of the Council of Europe, it recommended to the Committee of Ministers that it urge member States, inter alia, “to review their policies in the field of social rights and protection of migrants in order to ensure that homosexual partnership and families are treated on the same basis as heterosexual partnerships and families ...”. 47.     Resolution   1728 (2010) of the Parliamentary Assembly of the Council of Europe, adopted on 29 April 2010 and entitled “Discrimination on the basis of sexual orientation and gender identity”, calls on member States to “ensure legal recognition of same-sex partnerships when national legislation envisages such recognition, as already recommended by the Assembly in 2000”, by providing, inter alia , for: “16.9.1. the same pecuniary rights and obligations as those pertaining to different-sex couples; 16.9.2. ‘next of kin’ status; 16.9.3. measures to ensure that, where one partner in a same-sex relationship is foreign, this partner is accorded the same residence rights as would apply if she or he were in a heterosexual relationship; 16.9.4. recognition of provisions with similar effects adopted by other member states;” 48.     In Recommendation CM/Rec(2010)5 on measures to combat discrimination on grounds of sexual orientation or gender identity, the Committee of Ministers recommended that member States: “1. examine existing legislative and other measures, keep them under review, and collect and analyse relevant data, in order to monitor and redress any direct or indirect discrimination on grounds of sexual orientation or gender identity; 2. ensure that legislative and other measures are adopted and effectively implemented to combat discrimination on grounds of sexual orientation or gender identity, to ensure respect for the human rights of lesbian, gay, bisexual and transgender persons and to promote tolerance towards them; ...” 49.     The Recommendation also observed as follows: “23. Where national legislation confers rights and obligations on unmarried couples, member states should ensure that it applies in a non-discriminatory way to both same ‑ sex and different-sex couples, including with respect to survivor’s pension benefits and tenancy rights. 24. Where national legislation recognises registered same-sex partnerships, member states should seek to ensure that their legal status and their rights and obligations are equivalent to those of heterosexual couples in a comparable situation. 25. Where national legislation does not recognise nor confer rights or obligations on registered same-sex partnerships and unmarried couples, member states are invited to consider the possibility of providing, without discrimination of any kind, including against different sex couples, same-sex couples with legal or other means to address the practical problems related to the social reality in which they live.” J.     The United Nations Human Rights Committee 50.     The United Nations Human Rights Committee has examined the issue of pension rights for same-sex survived partners in two individual cases. In both cases, the Human Rights Committee found a violation of Article 26 of the International Covenant on Civil and Political Rights (equality before the law and prohibition of discrimination). In the first case, Young v. Australia, communication no. 941/2000, 6 August 2003, the Human Rights Committee observed as follows (footnotes omitted): “10.3 The Committee notes that the State party fails specifically to refer to the impugned sections of the Act (sections 5(E), 5(E) 2 and 11) on the basis of which the author was refused a pension because he did not meet with the definition of a "member of a couple" by not "living with a member of the opposite sex". The Committee observes that the State party does not deny that the refusal of a pension on this basis is a correct interpretation of the VEA but merely refers to other grounds in the Act on which the author’s application could have been rejected. The Committee considers, that a plain reading of the definition "member of a couple" under the Act suggests that the author would never have been in a position to draw a pension, regardless of whether he could meet all the other criteria under the VEA, as he was not living with a member of the opposite sex. The State party does not contest this. Consequently, it remains for the Committee to decide whether, by denying a pension under the VEA to the author, on the ground that he was of the same sex as the deceased Mr. C, the State party has violated article 26 of the Covenant. 10.4 The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It recalls that in previous communications the Committee found that differences in the receipt of benefits between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry with all the entailing consequences. It transpires from the contested sections of the VEA that individuals who are part of a married couple or of a heterosexual cohabiting couple (who can prove that they are in a "marriage-like" relationship) fulfill the definition of "member of a couple" and therefore of a "dependant", for the purpose of receiving pension benefits. In the instant case, it is clear that the author, as a same sex partner, did not have the possibility of entering into marriage. Neither was he recognized as a cohabiting partner of Mr. C, for the purpose of receiving pension benefits, because of his sex or sexual orientation. The Committee recalls its constant jurisprudence that not every distinction amounts to prohibited discrimination under the Covenant, as long as it is based on reasonable and objective criteria. The State party provides no arguments on how this distinction between same-sex partners, who are excluded from pension benefits under law, and unmarried heterosexual partners, who are granted such benefits, is reasonable and objective, and no evidence which would point to the existence of factors justifying such a distinction has been advanced. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author a pension on the basis of his sex or sexual orientation.” 51.     In the case of X. v. Colombia, communication no. 1361/2005, 30   March   2007, the Human Rights Committee held as follows (footnotes omitted) : “7.1     The author claims that the refusal of the Colombian courts to grant him a pension on the grounds of his sexual orientation violates his rights under article 26 of the Covenant. The Committee takes note of the State party’s argument that a variety of social and legal factors were taken into account by the drafters of the law, and not only the mere question of whether a couple live together, and that the State party has no obligation to establish a property regime similar to that established in Act   No.   54 of 1990 for all the different kinds of couples and social groups, who may or may not be bound by sexual or emotional ties. It also takes note of the State party’s claim that the purpose of the rules governing this regime was simply to protect heterosexual unions, not to undermine other unions or cause them any detriment or harm. 7.2     The Committee notes that the author was not recognized as the permanent partner of Mr. Y for pension purposes because court rulings based on Act No. 54 of 1990 found that the right to receive pension benefits was limited to members of a heterosexual de facto marital union. The Committee recalls its earlier jurisprudence that the prohibition against discrimination under article 26 comprises also discrimination based on sexual orientation. It also recalls that in previous communications the Committee found that differences in benefit entitlements between married couples and heterosexual unmarried couples were reasonable and objective, as the couples in question had the choice to marry or not, with all the ensuing consequences. The Committee also notes that, while it was not open to the author to enter into marriage with his same-sex permanent partner, the Act does not make a distinction between married and unmarried couples but between homosexual and heterosexual couples. The Committee finds that the State party has put forward no argument that might demonstrate that such a distinction between same ‑ sex partners, who are not entitled to pension benefits, and unmarried heterosexual partners, who are so entitled, is reasonable and objective. Nor has the State party adduced any evidence of the existence of factors that might justify making such a distinction. In this context, the Committee finds that the State party has violated article 26 of the Covenant by denying the author’s right to his life partner’s pension on the basis of his sexual orientation.” K.     The Inter-American system of human rights protection 52.     In the case of Atala Riffo and daughters v. Chile ((Merits, Reparations and Costs), judgment of 24 February 2012, Series C No.   239), the Inter ‑ American Court of Human Rights considered that the decision of the Chilean courts to remove three children from the custody of their lesbian mother constituted discriminatory treatment against her on the basis of her sexual orientation, in breach of her right to equality (Article 24, in conjunction with Article 1 § 1 of the American Convention on Human Rights) and her right to private and family life (Arti