The ECHR judgment of 05 September 2019 in the case of Theodorou and Tsotsorou v. Greece (application No. 57854/15).
In 2015, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Greece.
In the case, the application on annulment of the applicants' marriage was successfully considered. The case has violated the requirements of Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicants are husband and wife. The applicant had previously been married to the applicant's sister. Following the dissolution of the marriage in 2001, the applicants married in 2005.
In 2006, the applicant’s ex-wife applied to the prosecutor’s office, which in 2007 initiated a case for annulment of a new marriage. The Greek Civil Code prohibits marriage between relatives in a direct line and in an indirect line to the third degree of kinship. This rule applies even when the marriage from which the kinship follows is annulled or dissolved.
Believing that the ban was intended to maintain morality and respect for the institution of the family, Greek courts declared the marriage invalid. The applicants' marriage was finally annulled in 2015.
QUESTIONS OF LAW
Regarding compliance with article 12 of the Convention. The applicants have developed a permanent and long-term relationship. Since the final annulment of their marriage, they continue to live together, but their relationship is not officially recognized.
If the Court can allow restrictions on the ability to marry, consent, consanguinity or the prevention of bigamy, other prohibitions that prevent marriage between consenting and legally capable persons may cause problems under Article 12 of the Convention.
As a result of the discussion below, the Court concludes that the recognition of the invalidity of the applicants' marriage disproportionately limited their right to marriage to such an extent that the very essence of this right was affected.
Firstly, the controversial measure did not serve the purpose of preventing, for example, possible incest or the risk of emotional upheaval for the applicant’s daughter from her first marriage, or mixing family ties or the degree of relationship.
Secondly, among the member states of the Council of Europe there is consensus in the field of the prohibition of marriages between (former) sons-in-law and sister-in-law: according to available information, only two out of 42 member states provide for such a prohibition, in addition, this prohibition is not absolute. The existence of this consensus is an important element for the Court to assess the various interests involved.
Thirdly, the question of annulment of the applicants' marriage was raised only a posteriori. Following the issuance of a divorce certificate between the applicant and his ex-wife in July 2004, the applicants held a religious marriage ceremony without any obstacles, and the country's authorized authorities did not prevent this.
In addition, Greek law provides for a number of procedural requirements for marriage: an announcement of the intention to marry should be posted in the city hall or community office, and if the couple live in a big city - published in a daily newspaper.
However, it does not follow from the case file that, after such publication, anyone objected to this marriage. The applicant’s ex-wife reported the marriage to the prosecutor’s office only about a year and five months after his marriage. The prosecutor, however, applied to the court only seven months later, that is, two years after the conclusion of the contested marriage.
In accordance with the Civil Code of Greece, the authorized authorities verify compliance with statutory conditions for marriage only if they believe that these conditions are met, they issue a permit for marriage. However, in the present case it appears that the authorized authorities did not express any doubt about the issuance of such a permit.
Fourthly, the applicants lived in such a marriage for a long time. Before their cassation appeal was dismissed, their marriage was de facto valid and had legal consequences. Thus, for more than 10 years, they have enjoyed not only the legal and social recognition of their marriage, but also the protection that is provided only to married couples.
Fifth, with regard to other arguments, the Greek authorities did not explain the following aspects:
- what specific problems of an "ethical" nature can be, especially in view of the fact that the situation has not changed for many years;
- how the disputed ban could help or serve the "social need of communication" between family members with the outside world;
- why the “biological considerations” and the practical risk of “confusion” (kinship and degree of kinship or generation) that guided the legislator are relevant to the present case, in which the applicants are not blood relatives and have no children in common.
Ultimately, the applicants were deprived of all the rights granted to married couples, the rights that they nonetheless enjoyed for 10 years.
In the case there was a violation of the requirements of Article 12 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicants jointly 10,000 euros (EUR) in respect of non-pecuniary damage. The Greek authorities are ordered to take the measures that they consider necessary in order to fulfill, in accordance with this Regulation, obligations related to ensuring the observance of the right to marriage of applicants and other persons in a similar situation.