ECtHR, Fourth Section, App. Nos. 18592/15 and 43863/15,  ECHR 18592/15, 11 May 2021
Judge Eicke (President), Judges Grozev, Vehabović, Motoc, Harutyunyan, Vilanova, Guerra Martins
Here the ECtHR ruled that Bulgaria had breached Articles 8 and 14 by excluding from entitlement to a family allowance payable to families with only one living parent, single mothers of minor children whose fathers were unknown. The Court found, inter alia, that the exclusion amounted to sex discrimination because “as maternity is determined by the act of birth, in the vast majority of cases it is only children’s paternity that can be unknown” (§110-111). Perhaps unsurprisingly, it was unsympathetic to the argument put for the state that the rule was justified because it “was a regular practice of certain ethnic and social communities in Bulgaria to ‘pretend’ that the mother was a single parent so as to more easily obtain State benefit” (§§98, 121).
Having accepted that Article 8 was applicable and that there were no procedural objections to the claim, the Court decided that the applicant was in an analogous situation to those men and women who were entitled to the benefit (§108), notwithstanding the government’s contention that, while the main purpose of the allowance was to “protect families and children … [it was also] aimed at compensating for the suffering resulting from the death of a parent”. In reaching this conclusion the Court pointed out that the “relevant domestic legislation … was geared towards providing ongoing support to children growing up in a disadvantaged family situation more generally”. At §109 the Court accepted that there was a difference in treatment between the applicant and others in a relevantly similar position and at §§110-111 that this difference was both on grounds of sex and family status. As to the question of justification:
- The Court observes firstly that the applicable law … itself … differentiates between that category of families and families with only one known parent, like that of the first applicant. In the Court’s view, the legal provision in question, as confirmed by the Constitutional Court’s interpretation, is based on a very traditional and outdated understanding of a family, in particular as regards the expectation that there must be two parents with whom the children have established legal ties … The Court has held that very weighty reasons would have to be advanced before a difference in treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention [citing Genovese v Malta, no. 53124/09, 11 October 2011 § 44, Camp and Bourimi v. the Netherlands (no. 28369/95, § 38, ECHR 2000-X].
- … stereotypes of this nature, requiring legally established ties to both parents in a family, cannot be considered to amount to sufficient justification for a difference in treatment, any more than similar stereotypes based on race, sex, colour or sexual orientation [citing Konstantin Markin v. Russia [GC], no. 30078/06, ECHR 2012, § 143; see also, mutatis mutandis, Genovese, § 44, and Camp and Bourimi § 38].
- The Court agrees with the Government’s point that the considerations on the basis of which the first applicant may not be willing to disclose the identity of her children’s father, and/or seek legal recognition through the courts in order to satisfy the requirements of section 7(9) of the FACA, may be numerous and that they are in any event strongly personal in nature (see paragraph 95 above). Contrary to the position of the Government, however, the Court does not consider that the applicant should be required to undertake steps – such as either asking the father to recognise the children … or instituting court proceedings seeking to establish paternity … if the father was known to her – as a precondition for equal treatment of her family to that of families with children who have had their legal ties to both parents established and one of whose parents has died. Accepting this would equate to a prior interference in her private and family life in order for her family to receive equal treatment. Consequently, making receipt of the allowance conditional on the applicant’s disclosure of intimate information, and/or taking legal steps through the courts to establish the children’s paternity – all of which fall squarely in the sphere of her private life and which she does not wish to do – amounts to making the full exercise of her right to respect for her family life conditional upon her relinquishing the exercise of her right to respect for her social and personal identity and psychological integrity, all of which are protected under Article 8 of the Convention [citing A.P., Garçon and Nicot v. France, nos. 79885/12, § 131, 6 April 2017; Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 159, 24 January 2017]. The existence of such a requirement can therefore hardly be considered objectively justified.
- As to the justification focused entirely on the loss of a parent … the Court notes that children whose father is unknown cannot as a rule be said to be in a better position than children with one deceased parent, without accounting for a whole range of surrounding and relevant other circumstances which inevitably vary greatly from case to case. Similarly, it cannot be said that such children require less care and protection. They may arguably be in an even worse position, given that, unlike children with established paternity, they could not be their father’s legal heirs. In objective terms, they are deprived of the care and protection of one of their parents in the same way as children one of whose parents has died.
- In the process of explaining the aim of the allowance … the Government also pointed out that a family allowance irrespective of the family’s income was provided under different provisions of the law also to families of children with disabilities, and to families of children who are cared for in their relatives’ families or in foster families … The underlying common reason for that, according to the Government, was the emotional trauma provoked by circumstances other than the death of a parent, and the legislature’s aim was to compensate, at least to a certain extent, those particularly vulnerable categories of children. The Court finds that the present applicant’s family situation, which, according to her, was characterised by the absolute absence of a father, cannot as a rule be considered advantageous to the children in her family. The arguments advanced by the Government to justify the exclusion of her family from receiving the benefit are therefore not consistent or convincing and, as a result, they cannot be taken to provide either reasonable or objective justification for that exclusion…
The Court went on to dismiss the government’s claim that the requirement to establish the identity of the father served to protect the State against fraud on the basis that (§121) there was no suggestion that the “applicant herself was attempting, or aiming, to defraud the State by claiming the allowance in question”, that the government had failed to provide any evidence in support of its assertion that there “was a regular practice of certain ethnic and social communities in Bulgaria aimed at claiming State benefits for which they would not otherwise be eligible”, and that there were “different legal and policy means for successfully combatting fraud [which in any event] is not relevant to the applicant’s personal situation. It also rejected the government’s objection that (§122) “including the category to which the applicant belongs in the benefit plan would result in an excessively high cost to the State, for which it lacked resources” and would likely result in the withdrawal of the allowance:
- … States are usually allowed a wide margin of appreciation when it comes to general measures of economic or social strategy … and the resources which the authorities may devote to family benefits are inevitably limited. Moreover, widely different systems for social benefits exist in the States Parties to the Convention. However, the lack of a common standard does not absolve those States which adopt family allowance schemes from the obligation to grant such benefits without discrimination … Even a wide margin of appreciation in the sphere of economic or social policy does not justify the adoption of laws or practices that would violate the prohibition of discrimination [citing J.D. and A v. the United Kingdom, nos. 32949/17 and 34614/17, 24 October 2019, §88]. Thus, even bearing in mind the wide margin of appreciation available to the State in matters of social and economic policies, the Court considers that the argument that making the applicant’s category eligible for the benefit is unacceptable because it would result in the authorities having to pay more than they currently do, is not in itself sufficient for justifying such a difference in treatment.
- Finally, while it is not for the Court to engage with the policy dimension of a potential measure of doing away with the benefit altogether, which the Government have warned may be necessary, this cannot prevent it from dealing with the essence of the complaint before it, under Article 14 of the Convention in conjunction with Article 8, in view of the fundamental importance of the prohibition of discrimination and the right to respect for one’s family life.”
The Court rejected the applicant’s claim for non-pecuniary damages for her children but granted her damages EUR 4,500 in respect of non-pecuniary damage and EUR 3,915 to cover the non-payment of the allowance during the relevant period “plus any tax that may be chargeable”.