Case of European Court of Human Rights, September 05, 2019 (case Theodorou and Tsotsorou v. Greece)

Resolution Date:September 05, 2019
SUMMARY

Violation of Article 12 - Right to marry (Article 12 - Marry);Respondent State to take individual measures (Article 46-2 - Individual measures);Respondent State to take measures of a general character (Article 46-2 - General measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

 
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Information Note on the Court’s case-law 232

August-September 2019

Theodorou and Tsotsorou v. Greece - 57854/15

Judgment 5.9.2019 [Section I]

Article 12

Marry

Tardy annulment of marriage between a former brother-in-law and sister-in-law: violation

Facts – The applicants are a couple: the first applicant was previously married to the second applicant’s sister. Following the dissolution of that marriage by divorce in 2001, the applicants married each other in 2005.

Having been alerted by the first applicant’s ex-wife in 2006, the public prosecutor’s office brought proceedings in 2007 to have the new marriage declared null and void. The Greek Civil Code prohibits any marriage between persons related by direct descent and collateral affinity up to the third degree; this includes situations where the marriage giving rise to the affinity has been annulled or dissolved.

Holding that this prohibition served to uphold decency and respect for the institution of the family, the courts annulled the marriage; the annulment was upheld in 2015.

Law – Article 12: The applicants were in a permanent and long-term relationship. They had continued to live together following the definitive annulment of their marriage, without however enjoying official recognition of their relationship.

While the Court could accept limitations concerning the capacity for contracting marriage, consent, consanguinity or the prevention of bigamy, other prohibitions preventing marriage between consenting and legally competent adults could raise a problem under Article 12.

In view of the following considerations, the Court concluded that the confirmation of the nullity of the applicants’ marriage had disproportionality restricted their right to marry to such an extent that the very essence of that right had been impaired.

Firstly, the impediment in question had not served to prevent, for example, possible confusion or emotional uncertainty for the first applicant’s daughter from his previous marriage, or confusion as to the nature of or degree of kinship.

Secondly, a consensus could be observed within the member States of the Council of Europe concerning impediments to the marriage of (ex-) sisters-in-law and brothers-in-law: according to the information available, only two of the forty-two member States reviewed laid down such an impediment to marriage; moreover, that impediment was not absolute. This consensus was an important element in the Court’s analysis of the competing...

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