CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 12 décembre 2006

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } EUROPEAN COURT OF HUMAN RIGHTS   777 12.12.2006   Press release issued by the Registrar   CHAMBER JUDGMENT BURDEN AND BURDEN v. THE UNITED KINGDOM   The European Court of Human Rights has today notified in writing its Chamber judgment [1] in the case of Burden and Burden v. the United Kingdom (application no. 13378/05).   The Court held, by four votes to three, that there had been no violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, taken in conjunction with Article 1 of Protocol No.   1 (protection of property) to the Convention.   (The judgment is available only in English.)   1.     Principal facts   J.M. and S.D. Burden, are British nationals who were born in 1918 and 1925 respectively. They are unmarried sisters and live in Marlborough (United Kingdom).   The applicants have lived together all their lives; for the last 30 years in a house built on land they inherited from their parents. Each sister has made a will leaving all her property to the other sister.   The sisters, both in their eighties, are concerned that, when one of them dies, the other will be forced to sell the house to pay inheritance tax. Under the 1984 Inheritance Tax Act, inheritance tax is charged at 40% on the value of a person’s property. That rate applies to any amount in excess of GBP 285,000 (EUR 420,844) for transfers during the tax year 2006-2007 and GBP 300,000 (EUR 442,994) for 2007-2008.   Property passing from the deceased to his or her spouse or “civil partner” (a category introduced under the 2004 Civil Partnership Act for same-sex couples, which does not cover family members living together) is currently exempt from charge.             2.     Procedure and composition of the Court   The application was lodged with the European Court of Human Rights on 29 March 2005. A hearing on the admissibility and merits took place in public in the Human Rights Building, Strasbourg, on 12 September 2006.   Judgment was given by a Chamber of seven judges, composed as follows:   Josep Casadevall (Andorran), President , Nicolas Bratza (British), Giovanni Bonello (Maltese), Kristaq Traja (Albanian), Stanislav Pavlovschi (Moldovan), Lech Garlicki (Polish), Ljiljana Mijović (citizen of Bosnia and Herzegovina), judges , and also Lawrence Early , Section Registrar .   3.     Summary of the judgment [2]   Complaint   The applicants complained that, when one of them died, the survivor would face a heavy inheritance tax bill, unlike the survivor of a marriage or a civil partnership. They relied on Article 1 of Protocol No. 1 to the Convention, taken in conjunction with Article 14.   Decision of the Court   Admissibility The Court found, in the light of the applicants’ advanced age and the very high probability that one of them would be liable to pay inheritance tax upon the death of the other, that they could claim to be directly affected by the inheritance law in question.   The Court did not consider that the applicants could have been expected to have brought a claim for a declaration of incompatibility under section 4 of the 1998 Human Rights Act before bringing their application to the European Court of Human Rights, a remedy which was dependent on the discretion of the executive and which the Court had previously found to be ineffective on that ground. It expressed the view, however, that it was possible that at some future date, evidence of a long-standing and established practice of ministers giving effect to the courts’ declarations of incompatibility might be sufficient to persuade it of the effectiveness of the procedure.   Given that the applicants had been directly affected by a provision of domestic law and since there was no domestic remedy which the applicants could be required to exhaust, the six-month time-limit for bringing a case to the European Court did not apply.   Merits The applicants did not complain that they would be prevented from acquiring property; they complained instead that the survivor would be required to pay tax on property they jointly owned; an outcome which the Court found highly probable. Since the duty to pay tax on existing property fell within the scope of Article 1 of Protocol No. 1, Article 14 was applicable.   The applicants claimed to be in a similar or analogous position to co-habiting married and civil partnership couples for the purposes of inheritance tax. The United Kingdom Government, however, argued that there was no true analogy because the applicants were connected by birth rather than by a decision to enter into a formal relationship recognised by law.   It was true that a man and a woman outside the prohibited degrees of family relationship were generally free to choose whether or not to take on the “corpus of rights and obligations” involved in marriage. The applicants, as sisters, did not have that choice, and indeed it went to the heart of their complaint that, despite their decision to live together in an exclusive relationship for many years, English law did not accord a level of recognition to their co-habitation approaching that given to a married or civil partnership couple. The Court did not, however, have to decide if that lack of choice had any bearing on the question whether, for the purposes of inheritance tax, the applicants could be regarded as being in an analogous position to married and civil partnership couples, because, for the reasons set out below, it considered that, even assuming that the applicants could be compared to such a couple, the difference in treatment was not inconsistent with Article 14.   The Court recalled that the difference of treatment for the purposes of the grant of social security benefits, between an unmarried applicant who had a long-term relationship with the deceased, and a widow in the same situation, was justified, marriage remaining an institution that was widely accepted as conferring a particular status on those who entered it. The Court accepted the Government’s submission that the inheritance tax exemption for married and civil partnership couples pursued a legitimate aim, namely to promote stable, committed heterosexual and homosexual relationships by providing the survivor with a measure of financial security after the death of the spouse or partner. The Convention explicitly protected the right to marry in Article 12, and the Court had held on many occasions that sexual orientation was a concept covered by Article 14 and that differences based on sexual orientation required particularly serious reasons by way of justification. The State could not be criticised for pursuing, through its taxation system, policies designed to promote marriage; nor could it be criticised for making available the fiscal advantages attendant on marriage to committed homosexual couples.   In assessing whether the means used were proportionate to the aim pursued, and in particular whether it was objectively and reasonably justifiable to deny co-habiting siblings the inheritance tax exemption which was allowed to survivors of marriages and civil partnerships, the Court was mindful both of the legitimacy of the social policy aims underlying the exemption, and the wide margin of appreciation that applied in the field. Any system of taxation, to be workable, had to use broad categorisations to distinguish between different groups of tax payers. The implementation of any such scheme had, inevitably, to create marginal situations and individual cases of apparent hardship or injustice, and it was primarily for the State to decide how best to strike the balance between raising revenue and pursuing social objectives. The legislature could have granted the inheritance tax concessions on a different basis: in particular, it could have abandoned the concept of marriage or civil partnership as the determinative factor and extended the concession to siblings or other family members who lived together, and/or based the concession on such criteria as the period of cohabitation, the closeness of the blood relationship, the age of the parties or the like. However, the central question under the Convention was not whether different criteria could have been chosen for the grant of an inheritance tax exemption, but whether the scheme actually chosen by the legislature, to treat differently for tax purposes those who were married or who were parties to a civil partnership from other persons living together, even in a long-term settled relationship, exceeded any acceptable margin of appreciation.   In the circumstances of the case, the Court found that the United Kingdom could not be said to have exceeded the wide margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance tax exemptions was reasonably and objectively justified for the purposes of Article 14. There had accordingly been no violation of Article 14, read in conjunction with Article 1 of Protocol No. 1, in the applicants’ case.     Judges Bonello and Garlicki expressed a joint dissenting opinion and Judge Pavlovschi expressed a dissenting opinion, all of which are annexed to the judgment.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15) Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54) Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.   [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.