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FOURTH
SECTION
CASE OF McNAMEE v. THE UNITED KINGDOM
(Application
no. 61949/00)
JUDGMENT
STRASBOURG
27 March
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 McNamee 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,
Stanislav
Pavlovschi,
Ljiljana
Mijović,
Ján
Šikuta,
Päivi
Hirvelä,
judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 4 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61949/00) 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 Mr Sean
McNamee (“the applicant”) on 5 May 2000.
- The
applicant was represented before the Court by McCann and McCann
Solicitors, Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr C. Whomersley
of the Foreign and Commonwealth Office, London.
- The
applicant complained under Articles 8 and 14 of the Convention and
Article 1 of Protocol No. 1 that, because he was a man, he was denied
social security benefits equivalent to those received by widows.
- By
a partial decision of 4 December 2001 the Court decided to
communicate the complaint concerning widows' benefits and declared
the remainder of the application inadmissible. It also decided to
join this application to other applications (nos. 60525/00,
60933/00, 60937/00, 60944/00, 61038/00, 61388/00,
62776/00, 63388/00, 63464/00, 63469/00, 63470/00, 63473/00, 63474/00,
63584/00, 63645/00, 63701/00, 63702/00, 64735/01 and 65723/01). By a
decision of 26 August 2003 the Court declared the remainder of the
application admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant lives in Northern Ireland.
- His
wife died in May 2000. They had no children from the marriage. His
claim for widows' benefits was made in June 2000 and was rejected on
15 June 2000 on the ground that he was not entitled to widows'
benefits because he was not a woman. 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 is 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, namely Widow's
Payment (“WPt”), 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...”
- The
Government argued that the applicant had not made an application for
a widow's benefit and therefore a woman in his position would not
have been entitled to any benefit in such a circumstance.
- The
Court notes that the applicant submitted a signed decision of the
Social Security Agency dated 15 June 2000 which evidences that he
made a claim which was in fact processed.
- In
these circumstances, 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.
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 23 July
2007 and 11 December 2007, the applicant's representatives did
not submit a claim under Article 41 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to disjoin the application from the
others to which it was joined;
- 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 the
applicant's complaint under Article 14 of the Convention taken in
conjunction with Article 8 of the Convention.
Done in English, and notified in writing on 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
