Fundación Secretariado Gitano

Roma woman sues Spain before the Strasbourg Court for denying her widow's pension [editar]

• Equal treatment
• International

• The Fundación Secretariado Gitano (FSG) has supported a Roma woman named Joaquina Cortés Cortés in her lawsuit to the Court of Human Rights of the European Union, who is being denied the right to a widow's pension by the National Social Security Institute and the courts on the grounds that her marriage or unmarried partnership was not registered.

• In 2009, the FSG already obtained a ruling from the European Court condemning Spain for discriminating against another Roma woman in an almost identical case, so the plaintiff, after going to all available judicial instances in Spain, has requested the support of the foundation to base her case in Strasbourg.

• The organisation expects that this case will serve to ensure that Spanish legislation is modified so that cases as these, of indirect and intersectional discrimination, will not happen again and that women in vulnerable situations can have access to their widow's pension.

The Fundación Secretariado Gitano has supported in its application to the Court of Human Rights of the European Union a Roma widow married in accordance with the traditional rite in times previous to the actual Constitution, whose right to a widow's pension was not recognized by the authorities because she had not registered her marriage.

Joaquina Cortés Cortés got married in 1974, in pre-constitutional times, being a minor, and lived with her husband until his death in 2014. The couple had five children, all of them registered in the same family record book. Joaquina and her husband, both practically illiterate, were convinced that their marital relationship was official, and were confident at all times that, in the event of his death before her, she would receive a pension earned by her husband for his more than 28 years of contributions to the social security.

However, when Joaquina, who had devoted her whole life to the parenting and care of her family, tried to apply for a widow's pension, she was refused because she did not meet the formal requirement of having registered her marriage. With the help of Juan Pablo Mola, a lawyer and friend of the family, she appealed to several judicial bodies. The High Court of Justice of Andalusia found in her favour, ruling that the denial of the widow's pension would be discriminatory given the plaintiff’s personal situation. Subsequently, the National Social Security Institute appealed to the Supreme Court, which ruled otherwise, leading Joaquina to appeal for amparo to the Constitutional Court, which ruled against the decision in January this year, insisting that the denial of the widow's pension does not constitute discrimination.

At this point, Joaquina Cortés contacted the Fundación Secretariado Gitano, asking for its support to bring her case before the Court of Human Rights of the European Union, given its experience in discrimination against the Roma community strategic litigation, including a very similar case, that of María Luisa Muñoz Díaz ("La Nena").

María Luisa Muñoz Díaz (known in her community as "La Nena"), a Roma woman married in pre-constitutional times in accordance to the traditional rite, went through the same as Joaquina Cortés. She too was denied access to a widow's pension by the Spanish authorities, despite the fact that her husband had earned this right for his wife through his contributions, because they had not registered their marriage. The FSG, which had supported her case from the beginning, eventually took it to the Strasbourg Court which finally condemned Spain for discrimination against this woman, for not having taken into account her personal circumstances, including her being part of the Roma community. Her right to a widow's pension was finally recognised.

Indirect and intersectional discrimination

The lawsuit to the Strasbourg Court questions the failure of the Spanish courts to apply the jurisprudence of the Muñoz Díaz case in this almost identical case, and the fact that the good faith of Joaquina Cortés has been called into question. It is insisted that the denial of the widow's pension is a clear example of indirect discrimination, as it is a blind application of a legal requirement, without taking into account the personal circumstances of this Roma woman. It is also insisted that this is discrimination of intersectional nature, in which not only her Roma ethnic origin comes into play, but also her condition as a woman and the caring roles she has played through her life, her low level of education and her situation of socio-economic vulnerability.

Cristina de la Serna, Head of the Department of Equality and Combating Discrimination at the Fundación Secretariado Gitano, hopes that "this will be the last time that a woman in this situation is forced to seek justice outside Spain". "These cases highlight the need for the widow's pension regulations to be reviewed in line with European human rights standards, ensuring that elderly Roma women in vulnerable situations can equally access to their widow's pensions when their husbands have accrued such a right.