FOURTH SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 4479/06
by Andrew COURTEN
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 4 November 2008 as a Chamber composed of:
	Lech Garlicki, President,
	Nicolas Bratza,
	Ljiljana Mijović,
	David Thór Björgvinsson,
	Ján Šikuta,
	Päivi Hirvelä,
	Mihai Poalelungi, judges,
and , Deputy Section Registrar,
Having regard to the above application lodged on 25 January 2006,
Having regard to the observations submitted by the parties,
Having deliberated, decides as follows:
THE FACTS
The applicant, Andrew Courten, is a British national who was born in 1957 and lives in London. He is represented before the Court by Mr P. Hamlin, a solicitor practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant first met his long-term partner, Mr Stanley, in October 1978 and they began living together shortly afterwards. They took the decision that all income and assets would be jointly owned. In 1984 they purchased a property which they owned as joint tenants and shared the mortgage payments. In 2003 they celebrated 25 years together.
On 1 January 2005 Mr Stanley died suddenly.
On 21 April 2005 the applicant wrote a letter to the Inland Revenue (later renamed HMRC) asking for an extra-statutory tax concession equivalent to the exemption from inheritance tax which a spouse would have received under section 18 of the Inheritance Tax Act 1984 (“ITA”).
By letter dated 22 June 2005 the Inland Revenue informed the applicant that the exemption under section 18 was not available and referred him to the case of Holland v. IRC ([2003] STC (SCD) 43) in which the section 18 exemption was refused to an unmarried heterosexual co-habiting couple.
By letter dated 25 July 2005, the applicant distinguished the Holland case by pointing out that he and his partner, unlike heterosexual co-habitees, had been unable to marry and had been denied access to any right to exemption. He submitted that the refusal to extend the exemption to a same-sex cohabiting couple that had been prohibited from marrying was contrary to Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
On 28 July 2005 the HMRC sent the applicant a Notice of Determination indicating that the Commissioners had determined that section 18 did not apply to his estate.
On 24 August 2005 the applicant gave notice that he intended to appeal to the Special Commissioners for Revenue and Customs, invoking inter alia Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
On 12 January 2006 the applicant was advised by leading counsel, Lord Lester Q.C., that his appeal had no reasonable prospect of success under the Human Rights Act 1998 since it was not possible, in the light of the decision of the House of Lords in R (Wilkinson v IRC) ([2005] 1 WLR 1718) for section 18 to be construed so as to comply with the Convention or for HMRC to grant to him an extra-statutory concession equivalent to the statutory exemption.
The applicant stated that he had been assessed as liable to pay a sum in excess of GBP 475,000 in respect of Mr Stanley’s share of their jointly-owned assets, including their home.
B.	Relevant domestic law
See the Relevant Domestic Law, as set out in Burden v. the United Kingdom [GC], . 13378/05, §§13-24,ECHR 2008-...).
COMPLAINT
The applicant complained under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 that as a survivor of a same-sex couple who were unable to marry he has been denied the tax exemption from inheritance tax available to married couples.
THE LAW
The applicant complained that the liability to inheritance tax imposed on him following the death of his partner disclosed a breach of Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.
Article 14 of the Convention:
“The enjoyment of the rights and freedoms set forth in [the] 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:
“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.
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.”
The Government submitted that the applicant should have brought his complaint before the courts, arguing under section 3 of the Human Rights Act 1998 ("HRA") that the word "spouse" in section 18 of the Inheritance Tax Act 1984 should have been interpreted as extending to his relationship with Mr Stanley, referring to the House of Lords’ judgment in Ghaidan v. Godin-Mendoza [2004] 2 AC 557 which encouraged use of that section as the prime remedial remedy and, on the facts before it, found that in the rent legislation under consideration the words "person who was living with the original tenant as his or her husband or wife" extended not only to heterosexual couples but also the survivor of a long-term stable homosexual relationship.
They also submitted that the applicant could have applied under section 4 of the HRA for a declaration of incompatibility which would have provided a mechanism for correcting defects in non-compliant legislation, either by primary legislation or by Ministerial power of amendment. As regarded the substance of the applicant’s complaints, the Government disputed that the applicant was in an analogous situation to married persons or persons in a civil partnership, emphasised that the legal status and legal effects of marriage marked it out as different and that the policy underlying the concession given to married couples in order to promote marriage was proportionate and well within the wide margin of appreciation in this area. They relied inter alia on the Court’s judgment in Burden (cited above).
The applicant submitted that while relationships based on consanguinity could be distinguished from married couples and civil partners this ground of distinction could not apply to cohabiting same sex couples. Therefore it was implicit in the Grand Chamber judgment in Burden (cited above) that cohabiting same sex couples would be in an analogous position to married heterosexual couples. He argued that the fact that the latter had entered into a binding legal relationship could not be relied on as a distinguishing feature as at the time gay couples had no choice about whether to enter an equivalent arrangement. It was this element of choice which made it possible to compare and distinguish married heterosexual couples and civil partners and those who cohabited without a legally binding agreement.
As concerns exhaustion of domestic remedies, the Court notes the Grand Chamber’s comments that, while it cannot be excluded that at some time in the future the practice of giving effect to the national courts’ declarations of incompatibility may be so certain as to indicate that section 4 of the HRA is to be interpreted as imposing an obligation, such is not yet the case (Burden, cited above, §§ 43-44). As concerns whether the applicant should have given the courts the opportunity to interpret “spouse” as including long term homosexual partners as had been done in the domain of rent regulation, the Court does not need to decide whether this would have had reasonable prospects of success in the tax sphere, since it finds that the complaint must be rejected for the reasons given below.
As to the substance, the Court recalls that under Article 14 not every difference in treatment will amount to discrimination contrary to this provision. It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction (see Fredin v. Sweden (no. 1), judgment of 18 February 1991, Series A no. 192, p. 19, § 60; Stubbings and Others v. the United Kingdom, judgment of 22 October 1996, Reports of Judgments and Decisions1996‑IV, § 72). Further, States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Petrovic v. Austria judgment of 27 March 1998, Reports 1998-II, p. 587, § 38).
The Court has had previous occasion to remark that, notwithstanding social changes, marriage remains an institution that is widely accepted as conferring a particular status on those who enter it and, indeed, it is singled out for special treatment under Article 12 of the Convention. It has held, for example, that the promotion of marriage, by way of limited benefits for surviving spouses, cannot be said to exceed the margin of appreciation afforded to the respondent Government (Shackell v. United Kingdom, no. 45851/99, (dec.) 27 April 2000; see also Lindsay v. United Kingdom, application no. 11089/84, Commission decision of 11 November 1986, DR 49, p. 181, where a married couple could not claim to be in an analogous situation with unmarried couples where tax allowances were concerned). This distinction has been recently confirmed by the Grand Chamber in Burden v. United Kingdom, which held:
“63.  Moreover, the Grand Chamber notes that it has already held that marriage confers a special status on those who enter into it. The exercise of the right to marry is protected by Article 12 of the Convention and gives rise to social, personal and legal consequences (B. and L. v. the United Kingdom, cited above, § 34). In Shackell (cited above), the Court found that the situations of married and unmarried heterosexual cohabiting couples were not analogous for the purposes of survivors’ benefits, since “marriage remains an institution which is widely accepted as conferring a particular status on those who enter it”. The Grand Chamber considers that this view still holds true.
64.  Since the coming into force of the Civil Partnership Act in the United Kingdom, a homosexual couple now also has the choice to enter into a legal relationship designed by Parliament to correspond as far as possible to marriage (see paragraphs 16-18 above).
65.  As with marriage, the Grand Chamber considers that the legal consequences of civil partnership under the 2004 Act, which couples expressly and deliberately decide to incur, set these types of relationship apart from other forms of co-habitation. Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature. Just as there can be no analogy between married and Civil Partnership Act couples, on one hand, and heterosexual or homosexual couples who choose to live together but not to become husband and wife or civil partners, on the other hand (see Shackell, cited above), the absence of such a legally binding agreement between the applicants renders their relationship of co-habitation, despite its long duration, fundamentally different to that of a married or civil partnership couple. ...”
The Court would note that while the Grand Chamber equated civil partnerships between homosexual couples with marriage this was on the basis that in both situations the parties had undertaken public and binding obligations towards each other. The judgment therefore is of no assistance in that respect to the applicant who lived with his partner in a long term but informal relationship.
The applicant has pointed out that he was unable at the relevant time, through no choice of his own, to enter into a legally-binding arrangement akin to marriage, since the facts of his case predated the entry into force of the Civil Partnership Act 2004 by which the legislature has now provided same-sex couples with a formal mechanism for recognising and giving legal effect to their relationships, including, as from 5 December 2005, exemption from inheritance tax (for further details of the legislation, see Burden, cited above, §§ 13-20). However, in the area of evolving social rights where there is no established consensus, States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes (see Petrovic v. Austria, gment of 27 March 1998, Reports ‑II, §§ 36-43; Stec and Others v. the United Kingdom[GC], no. 65731/01, §§63-65, ECHR 2006‑...) and the Government cannot be criticised for not having introduced the 2004 legislation at an earlier date and thereby enabled the applicant to obtain the benefit of the inheritance tax exemptions conferred on the survivor of a civil partnership.
For the purposes of Article 14, the applicant cannot, therefore, claim that he was in an analogous situation to married couples. His complaints must be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4.
For these reasons, the Court unanimously
Declares the application inadmissible.
		Lech Garlicki
	Deputy Registrar	President