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FOURTH
SECTION
CASE OF SHIREBY v. THE UNITED KINGDOM
(Application
no. 28071/02)
JUDGMENT
STRASBOURG
9 December
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Shireby v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ledi
Bianku,
Mihai
Poalelungi,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 18 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28071/02) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr David Shireby (“the applicant”), on 18
January 2002.
- The
applicant was represented by Royds Rdw, solicitors in London. The
United Kingdom Government (“the Government”) were
represented by their Agent, Mr C. Whomersley of the Foreign and
Commonwealth Office, London.
- By a partial decision of 12 November 2002
the Court decided to communicate the application.
Subsequently, under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Sheffield.
- His
wife died on 3 April 2001. His claim for widows' benefits was made in
June 2001. On 22 June 2001 the applicant was informed that he was
entitled to Widowed Parent's Allowance (“WPA”). However,
on 14 January 2002 he was informed that he was not entitled to a
Bereavement Payment on the ground that the benefit did not exist at
the time of the applicant's wife's death. The applicant did not
appeal as he considered or was advised that such a remedy would be
bound to fail since no such social security benefits were payable to
widowers under United Kingdom law.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice are described in the Court's
judgment in the case of Willis v. the United Kingdom, no.
36042/97, §§ 14 26, ECHR 2002-IV.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL NO. 1 AND/OR ARTICLE 8
OF THE CONVENTION
- The
applicant complained that the United Kingdom authorities' refusal to
pay him the social security benefit to which he would have been
entitled had he been a woman in a similar position, constituted
discrimination against him on grounds of sex contrary to Article 14
of the Convention taken in conjunction with Article 1 of Protocol No.
1 and/or Article 8 of the Convention.
Article
14 of the Convention provides:
“The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
Article
1 of Protocol No. 1 provides:
“1. Every natural or legal person is
entitled to the peaceful enjoyment of his possessions. No one shall
be deprived of his possessions except in the public interest and
subject to the conditions provided for by law and by the general
principles of international law.
2. The preceding provisions shall not,
however, in any way impair the right of a State to enforce such laws
as it deems necessary to control the use of property in accordance
with the general interest or to secure the payment of taxes or other
contributions or penalties.”
Article
8 provides (as relevant):
“1. Everyone has the right to respect
for his private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of ... the economic well-being of the country...”
A. Widow's Payment
1. Admissibility
- The
Government submitted that this complaint had been declared
inadmissible by virtue of the Court's partial decision of 12 November
2002.
- The Court notes that the said decision declared
inadmissible complaints about discrimination in relation to widow's
benefits where the applicants had failed to make a claim for benefits
within the applicable time-limit. The Court recalls that, after 1997,
a widow had to make a claim for Widow's Payment (“Wpt”)
within three months of the date of her husband's death. The applicant
in the present case made his claim for benefits in June 2001; this
was acknowledged by the Government in their letter to the Registry of
4 July 2006. His wife died on 3 April 2001. Thus, the claim had been
made within the relevant domestic time-limit. On that account, this
particular complaint was not declared inadmissible in the decision
dated 12 November 2002.
- The
Court finds that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention, or inadmissible
on any other grounds. It must therefore be declared admissible.
2. Merits
- The
Court recalls that it has previously examined cases raising issues
similar to those in the present case and found a violation of Article
14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1 (see Willis, cited above, §§ 41-43).
- The
Court has examined the present case and finds that there are no facts
or arguments from the Government which would lead to any different
conclusion in this instance. Therefore the Court considers that the
difference in treatment between men and women as regards entitlement
to WPt, of which the applicant was a victim, was not based on any
“objective and reasonable justification” (see Willis,
cited above, § 42).
- There
has accordingly been a violation of Article 14 of the Convention
taken in conjunction with Article 1 of Protocol No. 1.
- The
Court, having concluded that there has been a breach of Article 14
of the Convention taken in conjunction with Article 1 of Protocol No.
1 as regards the applicant's non-entitlement to WPt, does not
consider it necessary to examine his complaints in that regard under
Article 14 of the Convention taken in conjunction with Article
8.
B. Widowed Mother's Allowance / Widowed Parent's
Allowance.
Admissibility
- The
Government submitted that the applicant had been given the
opportunity to apply for WPA instead of Widowed Mother's Allowance
(“WMA”) and consequently he was not a victim of the
alleged violation of the Convention.
- The
applicant acknowledged that on 22 June 2001 he had been granted WPA.
- The
Court considers that in these circumstances a woman would not have
enjoyed a more favourable treatment than the applicant. Thus, the
applicant cannot claim
to have been a victim of a violation of his rights under the
Convention and Protocol No.1. The complaint in
respect of WMA is therefore
incompatible ratione personae with
the provisions of the Convention and must be declared inadmissible in
accordance with Article 35 §§ 3 and 4 of the
Convention.
C. Widow's Pension
Admissibility
- In
relation to the claim for Widow's Pension (“WP”), the
Court held in its lead judgment regarding WP that at its origin, and
until its abolition in respect of women whose spouses died after 9
April 2001, WP was intended to correct “factual inequalities”
between older widows, as a group, and the rest of the population and
that this difference in treatment was reasonably and objectively
justified. Moreover, the Court considered that the United Kingdom
could not be criticised for not having abolished WP earlier and that
it was not unreasonable of the legislature to decide to introduce the
reform slowly (see Runkee and White, cited above, §§
40-41). The Court, consequently, considering it was not necessary to
examine separately the complaint in respect of Article 8, did not
find a violation of Article 14 taken in conjunction with Article 1 of
Protocol No. 1 in respect of the non-payment to the applicants of WP
or equivalent (ibid § 42).
- Consequently,
this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- Notwithstanding the Court's requests dated 19 March
2008 and 15 July 2008, the applicant's representatives did not
submit a claim under Article 41 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to declare the complaint about
non-entitlement to a Widow's Payment admissible and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
14 of the Convention taken in conjunction with Article 1 of Protocol
No. 1 concerning the applicant's non-entitlement to a Widow's
Payment;
- Holds that it is not necessary to examine
separately the applicant's complaint concerning Widow's Payment under
Article 14 of the Convention taken in conjunction with Article 8 of
the Convention.
Done in English, and notified in writing on 9 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
