113.  The applicants argued that the police intervention had been neither proportionate nor gradual, in contradiction with the domestic requirements on the use of force by the police. The police officers treated the second applicant as if she had been a complete stranger trespassing on school  <mask>, thus ignoring the fact that, at that point, she had been providing personal assistance to her son on an almost daily basis for more than six years. They averred that the disproportionate character of the police intervention was emphasised by the gravity of the injuries caused to the second applicant, the relatively insignificant offence for which she had been sanctioned and the minor sanction applied.


72.  The applicants submitted that according to Article 1531I of the Civil Code, commercial leases which were protected by law (before the amendments introduced by Act X of 2009) were liberalised in the sense that a termination date was established (not later than 2028). This gave the opportunity to the landlords of a commercial lease to enjoy their  <mask> once the lease agreement terminates (in 2028). Moreover, it made it feasible for a long-term investor to buy commercial premises, notwithstanding a running lease, in view of the knowledge that possession of the property would be returned within a foreseeable future. However, the applicants were being discriminated against since, as the law stood, they were obliged to renew their lease agreement on a yearly basis.


31.  The Government submitted that protection of urban  <mask>, which in their view comprised band clubs, under controlled rents with an obligation to renew the lease had been in force since 1925. They argued that the 1955 amendments had been effected to distinguish band clubs from other urban property as these clubs had evolved over the years, and by 1947 there were sixty band clubs, with one or more for every parish. Nevertheless, the applicants’ ancestors had freely entered into the lease agreement with KOBC on 1 May 1946, knowing what the consequences would be. Thus, in the Government’s view, the applicants had not been subjected to an interference and could not claim to be victims of the alleged violation.


172.  The Government argued that they enjoyed a wide margin of appreciation in reforming the country’s political and economic system. Restitution of dwellings to the “previous owners” was meant to correct the injustices committed in the post-war period and excluded the right of the occupancy right holder to acquire ownership of the same dwelling. The reforms had a legal basis in the SZ and ZDen, as well as in Amendment XCIX to the Constitution, which provided for the transformation of socially-owned  <mask> into public and other forms of property to be regulated by law. The occupancy right, a typical element of the former socialist system based on a planned economy and socially-owned property, could not continue to exist in a market economy.


44.  The Government argued that the applicant had failed to raise his complaint of discrimination during the proceedings before the administrative authorities concerning the adoption of the decision on his request for tax exemption. In particular, he had not relied on the provisions of the Prevention of Discrimination Act in his appeal against the first-instance decision, nor had he raised the matter in his administrative action before the High Administrative Court. Moreover, he could have instituted separate civil proceedings for damages under the Prevention of Discrimination Act but had failed to avail himself of that opportunity. He had thus failed to use the effective domestic remedies concerning the allegations of discrimination. The Government conceded that the Constitutional Court had not declared the applicant’s constitutional complaint inadmissible for non-exhaustion of remedies, but they considered, without elaborating further on the matter, that the provision on exhaustion of remedies under the Constitutional Court Act had a different scope and meaning from the rule on exhaustion of remedies under the Convention. The Government also pointed out that in his constitutional complaint the applicant had failed to cite the exact provision of the Constitution guaranteeing the right to  <mask>.


164.  The applicant claimed 967,686.75 euros (EUR) in respect of pecuniary damage resulting from the violation of Article 1 of Protocol No. 1. In support of her claim she produced documents from the Greek tax authorities for the  <mask> located in Greece and expert reports drawn up in Turkey for the relevant property there. She also claimed EUR 30,000 in respect of non-pecuniary damage resulting from the violation of Articles 6 and 14 of the Convention. She claimed EUR 8,500 in respect of costs and expenses.


123.  The applicant claims that his house and  <mask> in Basoğ were attacked and damaged by the village guards and gendarmes, after they had raided Ormandışı. In his memorial, he claims that the walls were riddled with bullets and all the windows broken. The guards set fire to some sacks outside, destroyed farming equipment also by riddling them with bullets and burned the harvested crops.


56.  The applicant also pointed out that he had not sought any preferential status but had merely requested the authorities to exempt him from the obligation to pay tax due to the particular circumstances of his case. To the applicant, it was obvious that he had not sought tax exemption so as to become unjustly enriched, since he had sold his old flat in order to buy a smaller real  <mask> adapted to the his family’s needs in relation to his son’s disability.


41.  The applicants pointed out that A. had been conceived in Belgium via anonymous donor insemination. Although she had been raised from birth by both women, for legal purposes she had only one parent, namely the second applicant. The latter had passed on her surname to A., exercised sole parental responsibility and would leave her  <mask> to A. on her death. By contrast, from a legal viewpoint the first applicant had no obligations or rights vis-à-vis the child. The applicants explained that they had sought to remedy that situation by applying for a simple-adoption order, which would have created a legal parent-child relationship in addition to the original relationship. A. would thus have had two parents in the eyes of the law, with the legal certainty that entailed. This had been refused them by the domestic courts.


162.  The applicants also alleged that they had suffered certain pecuniary damage, namely the loss of earning opportunities in Latvia, and that their  <mask> had been taken away by the Latvian authorities. The applicants stated that they were unable to submit any documents in support of their claim for compensation in respect of pecuniary damage as all the relevant documents had been left behind in Latvia. Therefore, the applicants specified no particular sum in regard to this claim.


44.  The applicant complained that he had been denied any share at all in his mother’s estate as a result of the domestic courts’ refusal to recognise his right to bring an action for abatement in respect of the deed of inter vivos division; this had, he alleged, been to the detriment of his rights as heir statutorily entitled to a reserved portion of the estate. He submitted that the discrimination he had suffered was a direct consequence of the interpretation of the transitional provisions of the Laws of 3 January 1972 and 3 December 2001 by the Court of Appeal and the Court of Cassation. Like the court of first instance, he contended that section 14 of the Law of 3 January 1972, which had had the effect of depriving illegitimate children of their inheritance rights where their parent had made a gift prior to the date on which the Law had come into force, should be disregarded as being contrary to Articles 8 and 14 of the Convention. In his submission, the provisions of the Law of 3 December 2001 should apply to the present case because his mother’s succession had opened on the date of publication of the Law but had not yet given rise to division. The deed of inter vivos division of 1970 did not itself produce final and unalterable effects, since it contained a reserve clause retaining title to all the immovable  <mask> and a sum of FRF 130,000. He added that the deed had also contained a provision whereby the donors retained throughout their lives the possibility of revoking the terms of the deed and securing the return of the property.


45.  The Government submitted that they had no knowledge about the applicant's alleged possessions. Moreover the  <mask> described in paragraph 8 above was registered in the name of a limited company whose legal personality was separate from that of its shareholders. Therefore, the applicant could not, as an individual, claim a “possession” in respect of that property. Her allegation that the declaration made at the District Land Office in Kyrenia on 11 June 1973 was not registered until 20 July 1974 was “highly doubtful”. The inability to register the property for a period as long as 13 months gave the impression that there had been some impediment.


65.  The Government submitted that the reform of the rent laws had been principally aimed at tackling the old leases, namely the controlled leases that had been created prior to 1995. According to the Government the reasons for such different treatment (between the old and the new leases) was that the rents applicable to the old leases had been tied to the rental values applicable at the beginning of the 1900s, which had amounted to a disproportionate burden on the owners of  <mask>. The Government noted that the sub-emphyteusis relative to the property in this case had been converted to a lease in 1987 and such a lease had been a controlled lease which had been based on free market lease values of the 1960s. Therefore in the Government’s view it was not correct on the part of the applicants to argue that they had suffered a violation by the introduction of the new leases that had not been subject to rent control (that is to say leases post 1995).


50.  The Government noted that the applicant had on many occasions in her observations erroneously referred to compulsory divorce legislation. However, if the spouse’s consent was received, the marriage turned automatically, ex lege, into a registered partnership. The expression “turns into” in section 2 of the Transsexuals (Confirmation of Gender) Act had been explicitly used to illustrate the fact that the legal relationship continued with only a change of title and minor changes to the content of the relationship. This continuity preserved certain derived rights, such as a widower’s pension, and did not create a right or obligation to divide the  <mask> between the spouses. The length of the partnership was calculated from the beginning of the relationship, not from the change of title of it. Moreover, the rights and obligations pertaining to parenthood did not depend on the gender of the parent. Consequently, there was no obligatory divorce in Finland but, on the contrary, the possibility of divorcing was at the applicant’s own discretion. Finnish legislation offered the chance to reconcile both the right to sexual self-determination and the right to marry, in the form of a registered partnership.


241.  The Government further observed that it was not established that applicant no. 1 (Mrs Cornelia Berger-Krall) had ever requested the “previous owners” to remedy defects in the dwelling. Moreover, she had failed to institute judicial proceedings requesting the “previous owners” to carry out maintenance work (Section 92 of SZ) in order to make the dwelling suitable for normal use. In a decision of 29 November 2010 the Ljubljana Court had ordered the said “previous owners” to pay applicant no. 1 compensation for the investments she had made in the dwelling. Lastly, the husband of applicant no. 1 was the owner of a vineyard cottage and the co-owner of a 91 m² residential building. As a family member of applicant no. 1 owned  <mask> suitable for occupation, the applicant was no longer entitled to “protected tenant” status.


71.  The Government contested the applicants’ complaints under this head. They maintained that since the Commission’s decision allocating the applicants their father’s  <mask> had been overturned by court decisions, the applicants could not claim property rights over the villa. Accordingly, having regard to the court decision that had determined their property claims, the applicants were entitled to the guarantees offered by Article 1 of Protocol No. 1 only in respect of the plots of land measuring 48.55 sq. m and 46.70 sq. m respectively.


141.  The applicants further complained that the refusal to recognise the applicant Church was preventing it from acquiring legal personality, thus depriving it of its right of access to a court, as guaranteed by Article 6 of the Convention, so that any complaint relating to its rights, and in particular its  <mask> rights, could be determined. In addition, they alleged that the refusal to recognise, coupled with the authorities’ stubborn persistence in holding to the view that the applicants could practise their religion within the Metropolitan Church of Moldova, infringed their freedom of association, contrary to Article 11 of the Convention.


35.  The applicants submitted that the  <mask> had not been assigned to J.G. because he had required social accommodation but only because of an automatic conversion of an emphyteusis into a controlled and protected lease by operation of law. In the opinion of the applicants, the fact that the law had not provided a mechanism for distinguishing between those in social need and others, had been one of the reasons why the law had failed to address the proportionality issue. As a result, J.G. and later his daughter P.G. had benefited and were still benefiting from a controlled-rent regime irrespective of their means.


50.  The applicant alleged that on 18 September 1994 gendarmes had raided his village and that his home and possessions had been destroyed, together with those of six other villagers related to him. He requested the Court to find that the destruction of his  <mask> and the failure to carry out an effective investigation by the authorities engaged the responsibility of the respondent State under Articles 3, 6, 8, 13, 14 and 18 of the Convention and Article 1 of Protocol No. 1 and that each of these Articles had been violated.


178.  The applicant alleged that the domestic law of the respondent State was discriminatory and insufficient to protect women, since a woman’s life was treated as inferior in the name of family unity. The former Civil Code, which was in force at the relevant time, contained numerous provisions distinguishing between men and women, such as the husband being the head of the family, his wishes taking precedence as the representative of the family union. The then Criminal Code also treated women as second-class citizens. A woman was viewed primarily as the  <mask> of society and of the male within the family. The most important indicator of this was that sexual offences were included in the section entitled “Crimes Relating to General Morality and Family Order”, whereas in fact sexual offences against women are direct attacks on a woman’s personal rights and freedoms. It was because of this perception that the Criminal Code imposed lighter sentences on persons who had murdered their wives for reasons of family honour. The fact that H.O. received a sentence of fifteen years is a consequence of that classification in the Criminal Code.


48.  The Government also submitted that the comparison to the Government scheme mentioned by the applicants was not tenable as that scheme provided for acquiring shops on a temporary emphyteusis for forty‑five years. The Government submitted that an empyhteutae is granted a real right on the  <mask> entitling him to exercise all the rights of ownership during the relevant period and thus his or her status was more similar to that of a landlord than a lessee. Moreover, an empyhteutae had an obligation to affect all necessary maintenance unlike the lessee.


91.  The Government submitted that the applicants Abdullah Doğan, Cemal Doğan, Ali Murat Doğan, Hıdır Balık, İhsan Balık, Kazım Balık, Mehmet Doğan, Hüseyin Doğan and Ali Rıza Doğan (applications nos. 8803, 8804, 8807, 8809, 8810, 8811, 8813, 8816 and 8819/02 respectively) did not have victim status in respect of their complaints under Article 1 of Protocol No. 1 since they had failed to prove that they had owned  <mask> in Boydaş village.


38.  The applicants noted that according to law the lease will never terminate and will subsist indefinitely meaning that the applicants will never enjoy their  <mask> as its owners, and that, in that light, any eventual sale transaction will suffer from a price reduction. Thus, the legislative measures introduced also failed to meet the “foreseeability” requirement since the law did not provide a termination date for the lease in question.


124.  The Government considered that the case was complex, given that it concerned crimes committed by many villagers during a whole night, and that an expert assessment of the value of the damaged  <mask> was needed. They alleged that the applicants were partly responsible for the length of the civil proceedings, as for many weeks they had refused to pay the expert appointed by the court.


66.  The Government then proceeded to analyse the rights and obligations arising out of civil unions and concluded that the applicants’  <mask> and personal status had in no way been affected by their exclusion from the scope of the legislation on civil unions. With regard to property issues, the Government reiterated their arguments concerning the admissibility ratione personae of the complaint. They observed that civil unions did not produce any automatic and binding effects with regard to the partners’ property status. As to social security matters, same-sex couples were in an identical position to different-sex couples who decided to enter into a union. As far as maintenance and inheritance issues were concerned, these could be regulated within a same-sex couple without a civil union, by means of a contractual agreement.


268.  The applicant claimed EUR 4,730 for approximately 68 hours of legal work on the case at the hourly rate of EUR 70. She also claimed EUR 331 in respect of translation, mailing and copying costs. The applicant submitted a legal fees' agreement between her and their lawyer, a time-sheet and receipts. She requested that the above amounts – EUR 5,061 in total – be paid directly into their lawyer's bank account, after deduction of the legal aid received from the Council of Europe. Finally, the applicant also claimed EUR 128 for the cost of the report on the value of the  <mask>. The Government did not comment.


80.  The applicants considered that there had been no objective justification behind such a legislative choice. The Government considered that the objective justification for the exclusion of the applicants from the relevant amendments was the fact that it was more important to protect band clubs than  <mask> used for commercial use, and that in any event the applicants had had other benefits, which had not been applied to owners of property leased for commercial purposes. The Government were also of the view that the owners of property leased for commercial purposes were suffering more than the applicants as a result of the applicable rent laws prior to the reform and that it was for that reason that the reform firstly tackled the latter group and then the group of persons in the applicants’ position.


62.  The Government further stressed that the State, as a Party to the CRPD, had implemented a number of positive measures aimed at ensuring accessibility for disabled people, and that almost seventy per cent of public buildings in Zagreb had been adapted for that purpose. Moreover, a recent visit to Croatia by the United Nations Special Rapporteur on Disability had commended those efforts expended by the State. With regard, in particular, to the tax exemptions set out in the Real  <mask> Transfer Act, the Government stressed that the positive measures implemented by the State were primarily aimed at financially disadvantaged individuals and that they could not address the needs of all vulnerable groups. However, the State had put in place various tax benefits for disabled persons relating, for instance, to income and health services taxation. Moreover, in harmonising its activities with the relevant international standards, the State had adopted a National Strategy to Secure Equal Opportunities for Persons with Disabilities 2007-2015, and was actively implementing various measures at the national and local levels in order to meet the needs of disabled people.


35.  The Government emphasised that shares in the tips left by customers in cheque and credit card vouchers were in fact paid to the applicants by their employer. The applicants ultimately obtained  <mask> in those sums. It was clear from the terms of their contract of employment that they had a legitimate expectation that the tips would pass to them – but only after the tips had become the property of their employer. However, the applicants could not rely on the principle of legitimate expectation to base an argument that it was the intention of the customers to transfer property in the tips directly to them without the tips first becoming the property of their employer. The domestic courts rejected their customer-intention plea and the Government relied on the reasons given by the domestic courts in this connection (see paragraphs 20 and 21 above).


36.  The applicant averred that there had been no need for him to join the State in the proceedings lodged against him, in so far as the court of first instance and the appeal court had found in his favour. He also considered that as the interference with his  <mask> rights had been caused by the 28 January 2003 decision, if he had lodged a new action against the State he would have missed the six-month time-limit provided for in Article 35 § 1 of the Convention.


24.  The Government reiterated that they could not be held liable under the Convention for the acts of the authorities of the “TRNC”. They further maintained that the applicant's claims to his  <mask> needed to be considered in the context of the political situation in Cyprus and the de facto state of affairs on the island. In particular, they averred that the applicant was not restricted in his access to his property in the “TRNC” by the actions of Turkey or the Turkish armed forces, but by, inter alia, the existence of the United Nations Buffer Zone. Furthermore, property rights were the subject of on-going inter-communal talks and the applicant's claim could only be resolved through negotiations aimed at a bi-zonal and bi-communal settlement of the Cypriot problem.


104.  The applicant company submitted that, in the light of the circumstances of the case, it was entitled to seek from the State, pecuniary damage caused by the violation of its right of  <mask>, reimbursement of the value of its initial 49% shareholding in Sovtransavto-Lugansk less 9,200 United States dollars (USD), being the payment it had received on the winding-up. It sought USD 14,921,674 under this head.


31.  The Government asserted that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In the Government’s view, the applicant had only claimed a violation of the principle of equality (Gleichheitsgrundsatz) under Article 7 § 1 of the Federal Constitution, but had neither explicitly nor in substance relied on her right of  <mask> in her complaints lodged with the Constitutional Court and the Administrative Court. Noting that the applicant had been represented by counsel throughout the domestic proceedings, the Government argued that she could have been expected to raise her complaint concerning her right of property with the domestic authorities, in addition to her allegation of discrimination. In conclusion, the Government claimed that the applicant had not duly exhausted domestic remedies in respect of her complaint under Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention.


40.  The Government pointed out that foundations were entitled to acquire immovable  <mask> only to the extent provided for in their constitutions. If the applicant foundation was not so entitled, this had to be regarded as the consequence of the fact that, in its declaration of 1936, it had not reserved for itself the legal capacity to acquire other immovable property by purchase or donation.


84.  The applicants claimed 1,260,996 euros (EUR) in respect of pecuniary damage. That sum reflected (i) the rent due to them from 1998 to 2015 amounting to EUR 730,330 calculated on the basis of the valuation of an estate agent at EUR 3,500 per month, (EUR 42,000 annually) in 2015, projected backwards to the year 1998 based on two indices for  <mask> prices published by the Central Bank of Malta – by means of example, such projections show the rents for the respective years as follows: EUR 6,857 annually in 1988, EUR 18,476 in 1998 and EUR 41,649 in 2008; (ii) EUR 502,006 in simple interest at 8% (capped so as not to exceed the rent of a particular year); and (iii) EUR 28,660 (supported by an architect’s report) in repairs needed to the property since the tenant had failed to take adequate care of the property. In this connection the applicants noted that as things stand, they will remain suffering the effects of the violation even after the Court judgment, for an unspecified amount of years to come. In this light they also considered that their claim of EUR 54,000 in respect of non-pecuniary damage already suffered, representing EUR 2,000 annually since 1988, should be upheld in full.


38.  The Government noted that the rent paid by J.G. – EUR 233 (MTL 100) per annum – in 1962 had been considered to be a substantial sum of money. They submitted that, following the conversion of the sub‑emphyteusis into a lease by operation of law in 1988 the applicants had bought the  <mask> at a considerably reduced value (in the light of the fact that the property had been occupied). Thus, the applicants were aware, prior to the purchase of the property – for the modest sum of EUR 25,600 (reflecting its limitations) – that it had been leased to J.G. and in fact they had accepted rental payments from J.G. until his death on 7 May 2008. The rent had also been raised (every fifteen years) in accordance with the rate of inflation as established in the law. Therefore, the Government considered that the applicants, who had made a business decision assuming the risks associated with it, had been well aware of the consequences of the legal regime applicable to their property and they could not argue that they had been subject to a forced lease or that the interference had been arbitrary or unforeseeable.


2. The Government regret the occurrence of individual cases of destruction of home,  <mask> and possessions resulting from the acts of agents of the State in south-east Turkey, obliging civilians to leave their villages, and of failure by the authorities to carry out effective investigations into the circumstances surrounding such events, as in the case of the applicants, Makbule and Ramazan Kınay, notwithstanding existing Turkish legislation and the resolve of the Government to prevent such acts and to remedy such failures.


100.  The applicant claimed CYP 4,086 (EUR 6,981) for the costs and expenses she had incurred before the Supreme Court, plus interest. She further claimed EUR 10,000 for the costs and expenses she had incurred in proceedings before the Court. Finally, the applicant claimed EUR 575 for the preparation of the valuation report on  <mask> prices in Kokkynotrimithia (see paragraph 93 above).


38.  The applicants maintained in reply that at the moment a gratuity was handed over by a customer the waiter had a right to receive a share in it, which was capable of computation at that point. This was so whether the gratuity was paid in cash into the tronc administered by the tronc master, or by cheque or credit card to be administered by the employer. In either case, the employee had a legal right to claim the payment from the intermediary. That legal right was a  <mask> right. In their submission, the applicable legislation made it clear that they were to receive remuneration for time worked and their employer in reality appropriated their entitlement to shares in the tips left by customers who paid by cheque or credit card in order to discharge its statutory obligations.


38.  The Government argued that the applicant foundation did not have a “possession” within the meaning of Article 1 of Protocol No. 1. That provision only applied to  <mask> actually owned and the annulment of the applicant’s title corresponded simply to the rectification of a registration error. Following the annulment of its title, it transpired that the foundation had not possessed the property in question ab initio and that it had been re-registered in the name of its original owners and not in that of the Treasury. The property had been transferred under the law on inheritance.


42.  The applicant stressed that she did not claim compensation for any purported expropriation of her  <mask> since she was still the legal owner of the property and no issue of expropriation arose. Her claim was thus confined to the loss of use of the land and the consequent lost opportunity to lease or rent it. Relying on two valuation reports assessing the value of her property and the return that could be expected from it, she claimed 587,399 Cyprus pounds (CYP) by way of pecuniary damage concerning the period between 28 January 1987, the date of the acceptance by Turkey of the compulsory jurisdiction of the Court, and the end of 2005.


42.  The Government argued that the present case was considerably different from the case Amato Gauci (cited above) since in that case the owner of the  <mask> had been forced into a unilateral lease, while in the present case the applicants had acquired a property which had already been subject to an existing lease of which they had had full knowledge. Thus, unlike in the present case, in that case it had been unforeseeable that an emphyteutical concession would have been converted into a lease. As to the case of Zammit and Attard Cassar (cited above) the Government pointed out that that case had referred to property which had involved a private interest of a commercial nature, while in this case the property concerned was purely intended for residential purposes.


45.  The applicants argued that other security measures would not be sufficient. Indeed, before the domestic courts it had been shown that there was no access to the applicants’  <mask> for fire engines, except for a Scout fire engine, which would be inadequate for a house fire. The relevant insurance also did not cover bodily injury or damage to property from a defect in the fireworks, or the failure of fireworks to ignite. They considered it ironic that streets in the vicinity were closed off for safety reasons but that the State felt no need to protect the applicants from the same dangers.


152.  The Government submit that the applicant himself made no complaint to the authorities and, when questioned by the public prosecutor, did not allege that any damage had been caused to his  <mask>. The event that was subject of the applicant’s allegations was investigated by the Silvan public prosecutor, who took statements from villagers and village guards. At the end of the investigation and trial, the village guards were released, the evidence against them being held insufficient.


51.  The applicants challenged the effectiveness of the remedies referred to by the Government. As regards the remedy introduced by the new  <mask> Act, they argued that it could not provide an effective remedy within the meaning of the Convention. They further observed that their property rights had been determined in a final judgment and that an administrative body could not therefore re-examine the same issue. Lastly, they maintained that, had the domestic court awarded compensation in one of the forms provided for by law, the bailiffs would not have been able to enforce that decision. It was up to the Government to adopt effective measures, either by classifying the State properties available for compensation in kind or by providing sufficient budgetary funds for pecuniary compensation, in order to make such a means of redress feasible. In conclusion, the applicants maintained that the Government had so far failed to take effective steps to find solutions relating to the issue of compensation.


54.  The applicant submitted that the domestic authorities had established his liability to pay the tax on the basis of an imprecise and unforeseeable provision and without a proper assessment of the particular circumstances of his case. Moreover, they had failed to make any assessment of proportionality of the interference with his  <mask> rights. The applicant therefore considered that the refusal to grant him the tax exemption imposed an excessive individual burden on him, contrary to Article 1 of Protocol No. 1. Whereas the applicant accepted that the domestic authorities enjoyed a wide margin of appreciation in matters of taxation, he pointed out that according to the Court’s well-established case-law their discretion could not be exercised in a manner incompatible with Article 14 of the Convention.


45.  The applicant submitted that he had properly exhausted remedies before the administrative authorities and the Constitutional Court. In particular, his complaints at the domestic level concerning the alleged discrimination by dint of unfair application of the tax legislation had not been so different as to require a separate examination of the discrimination from the  <mask> complaint. Accordingly, by properly exhausting the administrative remedies he had not been required to pursue any other remedy under the Prevention of Discrimination Act with the same objective since it was the Court’s well-established case-law that in the case of several potentially effective remedies an applicant was required only to use one of them. At all events, the Constitutional Court had not declared his constitutional complaint inadmissible for non-exhaustion of domestic remedies, which suggested that he had properly exhausted the relevant remedies before the administrative authorities. The applicant also emphasised that he had properly raised his complaints before the Constitutional Court, complaining in substance of a discriminatory violation of his property rights related to an unfair application of the tax legislation.


93.  The applicants claimed that the Government’s observations gave the impression that Russian authorities had considered the child to be the mother’s  <mask>. Thus, they had put considerable emphasis on the mother’s freedom of movement and her right to take the child with her wherever she had gone, irrespective of the child’s best interests. The Court had however found in Maumousseau and Washington, cited above, that a minor had had the right not to be removed from one of his or her parents and retained by the other. M. had been indeed free to move to Nizhniy Novgorod or anywhere else; her freedom of movement had not however given her any right to take X with her without the first applicant’s consent.


177.  The Government noted that all investigations were carried out by the police, and all prosecutions were carried out by the Attorney‑General. The latter, who enjoyed all judicial guarantees of independence (Article 158), was the supervisor of the police forces in the conduct of investigations. The criminal justice system in Cyprus was based on the English “accusatorial system”, and the standard of proof was that of “beyond reasonable doubt”. As to civil cases, the “TRNC” courts applied the provisions of the Civil Wrongs Law, which was a codification of the English common law. The standard of proof in a civil case was that of “beyond the balance of probabilities”. The acts of assault and battery, trespass to  <mask>, libel and harassment constituted crimes under the Criminal Code as well as civil wrongs.


36.  The applicant argued that the nationalisation and destruction of her late mother's  <mask> were flagrant and continuous breaches of her property rights. She also claimed that the decision of 25 September 1992 and the judgment of 3 April 1996 restored her property rights and entitled her to the return of the plot or proper compensation. However, the plot was not returned to her, and no compensation was afforded in breach of Article 1 of Protocol No. 1. According to the applicant, the violation of her property rights occurred only because her late mother's land was on a valuable location in the centre of the resort. Accordingly, the State allegedly discriminated against her in breach of Article 14 of the Convention.


73.  The applicants observed that the Government had failed to explain how the threshold of EUR 185 had been established. In this connection the explanation that the Government had attempted to give had been contradictory since the Government had first stated that the amount of EUR 185 had been fixed with reference to a date (that is to say the rental values applicable in 1914) and had then explained that such an amount was not based on a date but rather on the amount of the rent due. Furthermore, considering the justification given by the Government (that the amendments of 2009 had been deemed necessary in order to increase those rents that were very low) the Government ought to have recognised that there were cases where the limit of EUR 185 continued to be unjustifiable. In the applicants’ view the distinction made by the Government between persons renting properties at amounts less than EUR 185 and persons renting properties at EUR 185 or higher was not objective since it failed to consider that the amount of the rent depended on the location and size of the  <mask>. Moreover, comparing the threshold of EUR 185 per annum with the minimum wage applicable in Malta, it was evident that even persons on the minimum wage would be able to rent property for an amount higher than EUR 185 per annum.


43.  The Government submitted that the information supplied by the applicant was not sufficient to establish a proprietary interest. In particular, on the certificates provided by the applicant (see paragraph 8 above), the name of the owner was recorded as “Androulla Savva Olymbiou, née Kyriakos Anatolitis”. Thus, there was no evidence that the applicant, Mrs Andri Olymbiou, was the same person as the alleged owner of the  <mask> in question. Further, as the property had been acquired in 1980 (see paragraph 10 above), the applicant did not have any existing proprietary right in 1974; therefore, it could not be argued that she had been “dispossessed” due to the Turkish intervention, which had occurred six years earlier.


78.  The Government maintained that the relevant legislation regulating the use of prisoners’ money was compatible with the requirements of Article 1 of Protocol No. 1. They argued that that provision did not impair the right of States to adopt such laws as they deemed necessary to control the use of  <mask> in accordance with the general interest or to secure the payment of taxes and other contributions or penalties.


63.  The applicants further relied on Article 14 in conjunction with Article 1 of Protocol No. 1, firstly, in so far as their lease had been subject to different and less favourable laws than leases entered into after 1995. Secondly, on the basis that Act X of 2009 had treated the applicants differently in so far as they had not been able to benefit from an increase in rent, unlike owners of other properties which had been rented at a sum lower than EUR 185. Furthermore the sum of EUR 185 had also been discriminatory as it had made no distinction according to the size, value or condition of the  <mask>. The relevant Article reads as follows:


34.  The applicants contested the decision of the domestic courts to treat tips included by customers in cheque or credit card payments, and intended for them, as the  <mask> of their employer with the result that the latter was entitled to treat such tips as remuneration. In the applicants’ submission, the effect was to interfere with their right to the peaceful enjoyment of their possessions, in breach of Article 1 of Protocol No. 1, which states:


51.  The applicant further submitted that in any case not all the expressly listed grounds of prohibited discrimination in Article 14 fell within the notion of “personal characteristic”. He pointed to the inclusion of the word “property” in the list and the Court's conclusion in Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999‑III that the different treatment of landowners based on the size of the  <mask> they owned was discriminatory and in breach of Article 14. Accordingly, the applicant concluded that even if a ejusdem generis construction were to be considered appropriate, this would not lead to a limitation of the scope of Article 14 based on personal characteristics. The applicant further referred to a number of cases in which he claimed that the Court had found Article 14 to be applicable without insisting on a “personal characteristic” (citing, inter alia, Stubbings and Others v. the United Kingdom, 22 October 1996, Reports 1996‑IV; National Union of Belgian Police v. Belgium, 27 October 1975, Series A no. 19; Larkos v. Cyprus [GC], no. 29515/95, ECHR 1999‑I; and Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004‑VIII). He further pointed out that being a prisoner has previously been found by the Court to constitute “status” (see Shelley v. the United Kingdom, no. 23800/06, 4 January 2008) and argued that the correct test for deciding whether Article 14 applied was whether there was a distinct legal situation which was inextricably bound up with the individual's personal circumstances and existence. In the applicant's case, he was a member of a group to whom a differential legal regime applied, which was a regime that controlled his release into society and his relationships with his family, which were clearly matters of personal circumstances and existence.


95.  The applicant submitted that she had incurred considerable pecuniary damage. Since the  <mask> in issue had been in existence for twenty-seven years without having been subject to any measures, she had undertaken restoration of the land and house in good faith and invested considerably in it. When she had inherited the house from her father, it had been in poor condition; she had decided to renovate it, being in no doubt as to its lawfulness. She had thus incurred damage of 62,635 euros (EUR) for the loss of the house, EUR 43,865.46 for the investments made and EUR 3,025 for the demolition costs.


146.  The applicants argued that the specially protected tenancy was the strongest civil right over a socially-owned dwelling. It was a sui-generis right comparable to ownership, and the exclusive right to purchase precluded everybody else from acquiring ownership of the same dwelling. The specialised literature cited by the Government, stating that the protected tenancy was a non- <mask> right, should not be understood in a negative sense but in the sense that it represented more than a property right, as it also comprised some managerial entitlements. In any event, the Government’s allegations did not take due account of the reasoning followed by the Constitutional Court in its decision Up-29/98 (see paragraph 11 above).


146.  The applicants maintained that they had never had any reason to doubt the lawfulness of the transactions whereby they or persons from whom they had inherited had become owners in good faith. The initial idea underlying section 7 of the Restitution Law had been to sanction those who had obtained  <mask> by abusing their position of power during the communist past. However, the open-ended language of section 7 and its interpretation by the courts had resulted in depriving individuals of their property for nothing more than a trivial administrative omission on the part of municipal clerks. Such a situation did not meet the Convention requirements for lawfulness as the applicable law opened the door to arbitrariness.


35.  The applicants submitted that according to the Court’s jurisprudence, noise pollution, damage to  <mask> and exposure to physical and personal hazards amounted to an interference with their Article 8 rights. In the present case, noise levels reached at least 120db according to expert reports, and in their view amounted to noise pollution. Moreover, the fireworks industry had claimed ten lives in the last two years, and the applicants had suffered damage to their property and developed hearing impairments.


31.  The applicant further pointed out that small landowners whose hunting rights had been the subject of a compulsory transfer to an ACCA did not receive compensation unless those rights were being leased at the time of transfer. He added that, while large landowners retained that option, small landowners were permanently deprived of the possibility of leasing the hunting rights over their  <mask>. This not only deprived them of income but also affected the market value of the property. Furthermore, the ACCA was only required to make good any damage to their land caused by game within the limits of its liability for negligence under ordinary law.


41.  The Government submitted that the income of the tenant (a seventy‑year-old unmarried pensioner) was GBP 900 per month (circa EUR 1,200). Therefore, subtracting the rent (around EUR 39 per month) from the pensionable income, the amount left was EUR 1,160, a sum from which all expenses including medical expenses associated with old age and maintenance costs of the  <mask>, had to be paid. Thus, in the opinion of the Government the authorities had struck a fair balance between the various rights and interests involved in the case at hand. Furthermore, the applicants had had procedural safeguards at their disposal to protect their interests.


97.  The Government considered that the amount indicated by the applicant as representing the market value of her  <mask> was unrealistic. In their view, the house was worthless on the property market. Articles 141 and 142 of the decree of 18 May 1999 imposed an obligation, upon the sale of any immovable property, to inform the buyer of the existence of planning permission. Since she would have been unable to produce evidence of such permission, the applicant would not have been able to find a buyer. Her house had not thus added any value to the land, of which, moreover, she had not been dispossessed. Her claim in respect of pecuniary damage should therefore be dismissed.


75.  The Government considered that it was not correct to say that the situation of the applicants had not benefited from the reform. According to the Government, the provisions of the reform had been applicable to leases which had arisen by operation of law upon the termination of contracts of emphyteusis or sub-emphyteusis by means of sub-article 4 of Article 38 (sic.) [39] of Act X of 2009 (see paragraph 30 above). Therefore, in the opinion of the Government the amendments introduced by Act X of 2009 had increased low rents to EUR 185 (with further increases every three years), while those rents which already exceeded EUR 185 had been excluded from the revision. The amendment had been deemed necessary in order to increase those rents that were very low even when compared to low incomes; thus the distinction between  <mask> rented for an amount lower than EUR 185 and property rented for an amount higher than EUR 185 had objective and justifiable reasons based on economic assessments.


45.  The applicants submitted that their forcible eviction from their homes and deliberate destruction of their  <mask> by the State security forces constituted a violation of their right to peaceful enjoyment of their possessions and their right to respect for their family life. They also claimed that the circumstances surrounding the destruction of their property and their forcible eviction from their village also amounted to inhuman and degrading treatment.


71.  The applicants considered that, contrary to that held by the domestic court, the comparators in the present case were not other landlords of a club, but landlords of other commercial leases as per Article 1531I of the Civil Code. Rent legislation in Malta broadly distinguished between residential and commercial premises. However, it was amply clear that premises used as a ‘band club’ were not residential in nature, particularly, if a significant part of the premises were operated commercially. Thus, landlords of commercial leases and landlords of a band club were in a ‘relatively similar situation’ and, the right of enjoyment of  <mask> should thus apply to both indiscriminately. They recalled that the Convention prohibited discrimination on the bases of status, and that status included the status of the applicants as the landlords. They relied on Berger Krall and Others v. Slovenia (no. 14717/04, 12 June 2014).


37.  The applicant submitted that his forcible eviction from his family home and deliberate destruction of his  <mask> by the State security forces constituted a violation of his right to peaceful enjoyment of his possessions and his right to respect for his family life. He contended that the circumstances surrounding the destruction of his property and his eviction from his village also amounted to inhuman and degrading treatment. Furthermore, the applicant disputed the veracity of his statements dated 9 November 2005, the content of which he learned from his lawyers, and claimed that he had never told the gendarme officers that he had not been intimidated or that the houses had not been burned by the security forces. He also had not told the gendarme officers that he had owned 3,000 trees. He had owned, together with his brother, 30,000 poplar trees, as he had already claimed in his application form. Finally, the applicant pointed out that the statements taken from Z.T., N.B. and H.Ç. should be treated with caution given that these witnesses were village guards and thus could not be impartial and that the first two witnesses had been tried on charges of murder.


300.  The Government argued that the difference in treatment depended on the existence of a “previous owner”, whose rights needed to be protected and who could not be forced to sell the  <mask> he or she had obtained through restitution (see paragraphs 287 and 288 above). The Court accepts that obliging the “previous owner” to sell would have rendered theoretical and illusory the principle of restitution in natura of expropriated real estate and could have been perceived as a de facto new expropriation (see, mutatis mutandis, Strunjak and Others v. Croatia (dec.), no. 46934/99, 5 October 2000).


48.  The applicants submitted that their forcible eviction from their homes and deliberate destruction of their  <mask> by the State security forces constituted a violation of their right to peaceful enjoyment of their possessions and their right to respect for their family life. They also claimed that the circumstances surrounding the destruction of their property and their forcible eviction from their village also amounted to inhuman and degrading treatment.


85.  The Government submitted that if a violation were to be found a declaration to that effect would suffice. In any event, they considered that the valuations were exorbitant, speculative and not based on an architect’s report. They noted that the  <mask> had been purchased in 1988 at EUR 25,600 it had therefore hardly been imaginable that it could now have a rental value of EUR 42,000 annually. Indeed if it had to be divided over the years, their claim in rent amounted to around EUR 27,000 annually which would surely not reflect the rental value in the eighties and nineties. They further considered that since the applicants had accepted rent until 2008, their claim should only refer to the subsequent years. Moreover, the tenant had deposited rent for the period between 2009-15 amounting to EUR 2,796 which had to be deducted from the award of compensation. As to interest the Government noted that under domestic law, interest was due only on amount liquidated, which was not the case here. Moreover a rate of 8% was far beyond any commercial rate of interest currently available in the banking sector in respect of deposits. As to the structural works the Government considered this clam unproven and hypothetical. Lastly, the Government considered that an award under this head should not exceed EUR 10,000, which would be EUR 2,123.66 annually over six years, and an award for pecuniary damage should not exceed EUR 4,000.


46.  The applicants submitted that the requirement for them to pay fees for their secondary education had been unjustified. In their view, the manner in which domestic law regulated this matter bred a lack of clarity, led to errors and abuse and had imposed a disproportionate burden on them. It was unclear who was liable to pay the fees: the students, who had no income or  <mask>, or their parents. The fees did not pursue any legitimate aim and failed to strike a proper balance between the interests of the individual and the public interest. In Bulgaria, secondary education was a precondition for any sort of employment, and the lack of such education meant that those concerned would be unable to integrate properly or even ensure their livelihood. Under Article 28 of the United Nations Convention on the Rights of the Child, the State had the duty to assist children in their drive to become fully fledged members of society. By erecting insuperable obstacles to the completion of their secondary education, the State was preventing them from developing in that way. The requirement for the applicants to pay fees had been discriminatory because they had been in an identical situation to the rest of their schoolmates. Under the 1991 Constitution, all individuals residing in Bulgaria had the same rights and obligations regardless of their nationality and status. Lastly, it had to be borne in mind that the applicants had been children at the material time and thus entitled to special protection under the Convention on the Rights of the Child, which was part of domestic law.


133.  The applicant was questioned again by the public prosecutor on 2 July 1996, the public prosecutor also taking a statement from the village muhtar. Neither is recorded as upholding any allegation against the village guards concerning damage to the applicant’s  <mask>. The applicant asserts that both he and the muhtar were threatened by the gendarmes before they saw the public prosecutor and that he was too scared to say that his house had been burned down. There is no independent evidence in support of this assertion.


214.  The applicants basically relied on the same reasons put forward under Article 1 of Protocol No. 1. They argued that by losing their specially protected tenancy, they had been deprived not only of their  <mask> but also of their homes. The changes in the leases had further restricted their rights and the new entitlements of the “previous owners” had jeopardised their situation, especially as the non-profit rent had been rising to levels that many of them could hardly afford, exposing them to the risk of eviction for overdue rent. They complained about various forms of chicanery, intimidation and lawsuits on the part of the “previous owners”.


68.  The applicants further argued that there was no  <mask> for the difference in treatment. In this regard, they considered the fact that, prior to 1 July 1997, the Brigade’s home base had been in Hong Kong (and before that, Malaya) to be immaterial as the Brigade was at all times eligible for deployment on any British Army mission in any country in the world. Likewise, they contended that the fact that Gurkhas historically retired to Nepal was not logically connected to the pension that they should receive for the service they rendered. Once it was acknowledged that Gurkhas served the British Army in the same way as other soldiers, it was inescapable logic that they should receive the same pension. This was particularly so given that a pension was a form of deferred pay, and where a worker comes from and how they spend their income should be irrelevant to the level of remuneration that they receive.


27.  The Government maintained that there had been an  <mask> for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates in view of the nature of the service, which involved bearing and using firearms. They submitted that male candidates had already received training in use of firearms and were able to work in rural areas and at night time, where necessary.


51.  The Government further submitted that in 2004 the Music Academy had had neither the infrastructure (in terms of resources, equipment and teaching staff) for students with disabilities nor any regulations on matters relating to disability. As regards the allegation that the applicant had suffered discriminatory treatment, the Government pointed out that discrimination meant treating differently, without an  <mask>, persons in similar situations. “No objective and reasonable justification” meant that the distinction in issue did not pursue a legitimate aim or that there was not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Sejdić and Finci v. Bosnia-Herzegovina [GC], nos. 27996/06 and 34836/06, § 42, ECHR 2009, and Ali v. the United Kingdom, no. 40385/06, § 53, 11 January 2011). They also cited the case-law of the Court regarding the margin of appreciation enjoyed by States (see Andrejeva v. Latvia [GC], no. 55707/00, § 82, ECHR 2009). The Government concluded by stating that they were well informed of the Court’s case-law relating to the applicant’s complaints and that they respected the Court’s decision to intervene.


64.  The applicant considered that the differences in treatment complained of lacked any  <mask>. Men did not have any specific abilities which might render them more fit for jury service than women. The aim of the jury system should be to ensure that the accused was tried by a sample of society. A jury predominantly composed of men would create an unbalanced system of criminal justice in relation to trials in which women were defendants, victims or witnesses.


56.  The Government, on the contrary, submitted that the difference in treatment which had persisted after the Second Inheritance Rights Equalisation Act of 12 April 2011 had come into force had been based on an  <mask>. It had been justified by the overriding concern of protecting the legitimate expectations of people who had already acquired rights in an inheritance case, which themselves were protected by Article 1 of Protocol No. 1 to the Convention. The retroactive extension of the amendment to the date of the Court’s judgment in Brauer (cited above) had struck a proportionate balance between the interests of descendants affected by that amendment and those of children born outside marriage. The fact that under domestic law an heir acquired the estate upon a decedent’s death without any further legal action necessary precluded a more far-reaching change of that legal provision. Furthermore, it would cause legal and practical problems in inheritance cases where the estate had already been divided between the heirs. Proportionality, therefore, had not required a further expansion of the retroactive effect of the law, particularly with regard to the principle of legal certainty and the underlying principles set out in the Court’s judgment in Marckx (cited above).


25.  The Government argued that even if this was not the case there was an  <mask> for the difference in treatment. They referred to the historical development of the tax relief available for maintenance payments in the context of the taxation of married couples, in particular to maintain the status quo for the purposes of taxation for married couples after the breakdown of a marriage. They also submitted that it promoted the institution of marriage in conferring special rights and privileges on those choosing to marry, even after marriage break-down and that aim had been recognised as legitimate and within the margin of appreciation by Convention case-law. Legal obligations adhered to marriage and its breakdown that did not apply in non-legally binding partnerships. It was incorrect to state that the difference penalised illegitimacy, as the recipient of maintenance was always not taxable, irrespective of birth status. The very limited tax allowance made available to ex-spouses but not to former cohabitees was therefore objectively justified and well within the margin of appreciation to be afforded to the democratically elected national legislature in a complicated area of economic and social policy.


40.  The Government, on the contrary, submitted that the difference in treatment had been based on an  <mask>. The decisions taken by the legislature and the domestic courts had been appropriate and not discriminatory. The intention of the legislature had been to preserve legal certainty and any “legitimate expectations” that the deceased and their families might have had in view of the Federal Constitutional Court’s settled case-law in that regard and in view of the legislature’s repeated explicit decisions that the exception provided for in the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act was to be maintained. Furthermore, in the present case the deceased had bequeathed his whole estate to his wife, knowing that the applicant, under domestic law, was excluded from any statutory claims, a decision which had to be respected.


61.  The Government also argued that there had been no discriminatory treatment of the applicant in relation to his child’s disability because the reason for the dismissal of his tax exemption request was his financial situation. This had an  <mask> in that the State had sought to protect financially disadvantaged individuals. The applicant did not belong to that category of persons since he had owned a satisfactory flat.


124.  The applicants maintained that they had been discriminated against in that because of their race or ethnic origin they had been treated less favourably than other children in a comparable situation without any  <mask>. They relied in that connection on Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1, which provide as follows:


94.  The Government denied that the applicants had been treated less favourably than non-Roma children in a comparable situation. Moreover, inasmuch as their treatment in education had been different from that of non-Roma (and other Roma) children of the same age, it had had an  <mask>. Moreover, they had not been treated differently from non-Roma children with similar socio-cultural disadvantages.


48.  The Government maintained that there had been an  <mask> for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates in view of the nature of the service and the need to recruit male personnel. Referring to the considerations of the human resources department of TEDAŞ (see paragraph 7 above) the Government contended that all female candidates had been refused appointment to the post in question.


74.  The Government acknowledged that the applicants had been treated differently from owners of commercial premises. However, they opined that the distinction had an  <mask>. The Government submitted that commercial leases had been freed from the obligation of renewal as from 2028 as part of a rent law reform aimed to tackle old leases created prior to 1995. The rents applicable to those leases were tied to values of the early 1900s which created a disproportionate burden on owners. The Government also noted that the position of owners of premises leased as band clubs had also been improved through the reform by means of the 2014 amendments, which increased their rent - a measure which was not applied to owners of commercial premises.


39.  The Government submit that there is an  <mask> for making the difference in treatment at issue in the present case, namely – apart from the reasons set out in the explanatory memorandum to the Cassation Regulations for the Netherlands Antilles and Aruba – the purpose pursued by the Antillean justice system ensuring that as many cases as possible are tried in the presence of the accused. The means used to this end cannot, according to the Government, be regarded as disproportionate.


40.  The Government observed that, according to the judgment of 23 July 1968 in the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” (merits) (Series A no. 6), the equality of treatment enshrined in Article 14 of the Convention is violated only where a distinction has no  <mask> (loc. cit., pp. 34-35, § 10). In the light of their arguments concerning the alleged violation of Article 3 of Protocol No. 1 taken separately, the Government submitted that the distinction criticised had been based on such a justification. They pointed out in particular that the applicant was not the only candidate on her list who was required to undergo a verification of her linguistic competence. There had accordingly been no violation of Article 14.


183.  The applicants’ allegation in the present case is not that they were in a different situation from non-Roma children that called for different treatment or that the respondent State had failed to take affirmative action to correct factual inequalities or differences between them (see Thlimmenos, cited above, § 44, and Stec and Others, cited above, § 51). In their submission, all that has to be established is that, without  <mask>, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination.


138.  The applicants added that it would be helpful for the Grand Chamber to clarify the Court’s case-law by determining whether there was an  <mask> for the purposes of Article 14 for the difference in treatment in the present case and specifying the conclusions that should be drawn in the absence of a satisfactory explanation. Referring to, inter alia, the judgments in Timishev v. Russia (nos. 55762/00 and 55974/00, § 56, ECHR 2005‑XII) and Moldovan and Others v. Romania (no. 2) (nos. 41138/98 and 64320/01, § 140, 12 July 2005), they stated that where an applicant had established a difference in treatment the onus was on the respondent State to prove that it was justified. In the absence of a racially neutral explanation, it was legitimate to conclude that the difference in treatment was based on racial grounds. In the applicants’ submission, neither an inadequate command of the Czech language, nor poverty nor a different socio-economic status could constitute an objective and reasonable justification in their case. They denied that the disproportionately large number of Roma children in special schools could be explained by the results of intellectual capacity tests or justified by parental consent (see also paragraphs 141-42 below).


61.  The applicant further pointed out that she had first come to Latvia at the age of 12 and had spent all her working life there, and that her employment during the Soviet era had involved protection of Latvia’s environment. However, the amount of the retirement pension she received was considerably lower than the amount that a Latvian citizen in the same position would receive. Nationality was therefore the sole criterion for the distinction in issue, which had no  <mask>. Firstly, the applicant pointed out that her former employers had paid social tax to the Soviet tax authorities on her behalf, on the same basis as for those who had been recognised as Latvian citizens after 1991. Had the Soviet Union not broken up, she would receive, just like them, a monthly pension of 97.50 Soviet roubles, paid from the USSR central budget. Secondly, she pointed out that the difference in treatment complained of had not existed before 1 January 1996; it had been introduced only by the State Pensions Act 1995, and no reasons had been given for this change in the law, even by the members of parliament who had proposed it.


32.  The Government maintained that there had been an  <mask> for the refusal of the domestic authorities to appoint the applicant to the post of security officer. They noted that the post in question had been reserved for male candidates who had completed military service. According to the Government such a requirement could not be deemed discriminatory in view of the nature of the duties of the post, which involved using firearms and working at night.


44.  The Government argued that there was an  <mask> for the difference in treatment complained of, and that the distinction fell within the Contracting States' margin of appreciation. On this point, the Government submitted that, given the prevailing social attitudes at the material time, a married woman's entitlement to insurance under the Act was linked to her husband as the latter was the breadwinner in the vast majority of cases. After social attitudes had changed, the system had been altered with effect from 1 April 1985 and gave married women an independent right to insurance and benefits under the Act. As changes in social attitudes occurred gradually, it was virtually impossible to indicate with precision when a change had taken place in society that eliminated a justification derived from social attitudes. However, the question of whether periods were insured had to be answered on the basis of the provisions that applied at the material time. Finally, arguing that the receipt in full of two or more social-security pensions should be avoided, the Government pointed out that the applicant was receiving a pension from a foreign country as well as a reduced pension under the General Old Age Pensions Act.


52.  The applicants complain of a difference in treatment on the basis of sex, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference of treatment is, however, discriminatory if it has no  <mask>; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006; Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV).


28.  The applicant submitted that in its judgment in Chassagnou and Others (cited above) the Court had not confined itself to criticising the Loi Verdeille for obliging small landowners who were opposed to hunting on ethical grounds to tolerate hunting on their property. In his view, the Court had taken issue with the very principle of compulsory transfer of hunting rights to the ACCAs, whether or not the landowners in question were opposed to hunting, on the grounds that there was no  <mask> for compelling only small landowners to transfer their rights, particularly since the system introduced by the Loi Verdeille applied only in some parts of the country. He referred in that regard to paragraphs 89-94 and 120-21 of the judgment.


106.  The Government agreed that Article 14 of the Convention was applicable here as the case fell within the scope of Article 8, but argued that there was no separate issue under Article 14. Were the Court to have a different opinion, the Government pointed out that cissexuals were not in a similar situation to the applicant because they were not applying for a change of their gender. In any event, there had been an  <mask>. The Finnish legal system prohibited discrimination based on transsexualism.


73.  The applicant also sought support for his claim of discrimination from the military service record of four soldiers of his unit – R.L., V.S., J.Š. and M.I. He considered that those four soldiers had been in a similar situation to that of himself, but had been treated differently. On this point the Court reiterates that Article 14 of the Convention affords protection against different treatment, without an  <mask>, of persons in similar situations (see Hoffmann v. Austria, 23 June 1993, § 31, Series A no. 255‑C, and Vojnity v. Hungary, no. 29617/07, § 29, 12 February 2013). However, having given due consideration to the facts (paragraphs 36-40 above), it is the Court’s opinion that such an assertion is not substantiated. The professional military service histories of those four servicemen show that each of them was entitled to serve until the expiry of their contracts, despite the fact that they had reached retirement age, because, unlike the applicant, they had military specialist codes. Conversely, as the applicant himself acknowledged during the court proceedings, at the time of his discharge from the army he had no such status (see paragraphs 19 and 26 above).


37.  The applicant argued that the difference in treatment between men and women as regards entitlement to a widow's payment and a widowed mother's allowance was not based on any  <mask>. In particular, it was based upon gender-stereotyping and broad generalisations which were no longer an accurate reflection of social conditions in the United Kingdom. The fact that widows' benefits were not means-tested meant that high-earning women in a position similar to that of the applicant would benefit, while the applicant and other men would be denied such benefits regardless of their need. The fact that resources were finite did not justify concentrating all the resources which were available on the protection of bereaved women to the detriment of widowed men. Indeed, the applicant highlighted the fact that working women in his wife's position were required to pay the same proportion of their earnings to the National Insurance Fund as men, notwithstanding the more limited benefits offered to their surviving relatives in the event of their death. He pointed out the less discriminatory approaches taken by the majority of the other member States of the Council of Europe in the context of survivors' benefits.


402.  The applicants contended that by excluding only US nationals from its international adoption programme, the Russian authorities were subjecting US applicants to differential treatment based on their nationality in breach of the Convention. Before December 2012 the US applicants had had the right to adopt children from Russia on an equal footing with other foreigners. They had started the procedure in compliance with the requirements of both the US and Russian authorities. However, the procedure had been cut short by the introduction of the ban on adoption which only extended to the US nationals and was devoid of any  <mask>.


23.  The applicant argued that there was no  <mask>. The tax break might have been small to the Government but was a significant proportion of his weekly net earnings. He disputed that the historical background of the previous system provided any justification or explanation for why they did not provide the QMPA (qualifying maintenance payment allowance) in a non-discriminatory fashion to all couples, who having separated, had to bear the costs of two households. Nor had the Government explained convincingly why the fact of marriage provided a justification for treating child maintenance payments differently; the fact that there might exist an objectively justifiable basis for the difference in treatment in respect of spousal maintenance payments did not mean that there was also a justifiable basis for the difference in treatment in respect of child maintenance payments. A father was compelled by statute to provide maintenance for children irrespective of his married status. It was inconsistent to treat unmarried fathers the same as married fathers for the purpose of imposing financial obligations and then treat them differently by denying them tax breaks for those payments. He also doubted the validity of arguments that providing the tax break to married fathers after divorce somehow promoted the institution of marriage or that the margin of appreciation justified such blatant discrimination.


160.  The applicants noted that, if, as the Court of Cassation had pointed out (judgment no. 4184/12), the notion of marriage under Italian law included same- <mask> marriage (in line with the Charter and the Convention), then it was contradictory to argue that a same-sex marriage celebrated abroad was against the international public order. Despite this judgment and the decision in Schalk and Kopf, the Italian authorities continued to apply the regulations issued by the Ministry of the Interior. Furthermore, the guidelines used by the registrars of civil status simply referred to public order, without clarifying whether it was national or international; those guidelines also indicated that judgment no. 4184/12 was irrelevant in relation to registrations. The applicants disputed that Article 16 of Law no. 218/95 was applicable to the circumstances of the case, as that provision governed the application in Italy of foreign law, but the applicants were not asking the authorities to apply Dutch law (to give them the right and protection they would have obtained under Dutch law), but simply to register their marriage celebrated abroad and thus to obtain the limited effects of registration under Italian law, namely certification that the marriage was valid, which could be used every time conjugal status needed to be proved for the application of a specific law.


73.  The Government argued that the lower courts had rejected the applicant’s claim not only because the applicant and A.Z. were of the same  <mask> but principally because their community had insufficient substance. The applicant was neither A.Z.’s relative nor was he his partner under Slovenian law. The Constitutional Court ruled that the lower courts had not breached the principle of equality before the law protected by the Constitution.


50.  The applicant further contended that very weighty and convincing reasons were necessary when justifying discrimination on the ground of sexual orientation. In the case at issue no such reasons existed, as it was unreasonable to allow for the possibility of obtaining a residence permit for unmarried different- <mask> couples while excluding such a possibility for same-sex couples. Any possible argument concerning the protection of family in the traditional sense was inapplicable in this context since there had been various other less restrictive means for achieving that aim. The applicant also stressed that her request for a residence permit on the ground of family reunification with her partner had been dismissed at the outset since the relevant domestic law per se excluded the possibility of family reunification of same-sex couples. This, in her view, amounted to a direct discrimination contrary to the requirements of the Convention.


12.  The applicant complained that the United Kingdom authorities’ refusal to pay him the social security and tax benefits to which he would have been entitled had he been a woman in a similar position, namely Wpt, WMA, WBA and WP constituted discrimination against him on grounds of  <mask> contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 and/or Article 8.


14.  The applicant complained that the United Kingdom authorities’ refusal to pay him the social security and tax benefits to which he would have been entitled had he been a woman in a similar position, namely Widow’s Payment (“Wpt”), Widowed Mother’s Allowance (“WMA”), Widow’s Bereavement Allowance (“WBA”) and Widow’s Pension (“WP”) constituted discrimination against him on grounds of  <mask> contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. and / or Article 8.


40.  The Government submitted that since citizenship was not a right covered by the Convention differential treatment based on illegitimate status could not violate Article 14 of the Convention. As to any distinction based on  <mask>, according to the Government this protection only applied to persons claiming discrimination when compared with other persons of a different sex. In the present case, the applicant was not ineligible for Maltese nationality on the ground of his sex, and the legal distinction based on the sex of his parent was a condition applicable irrespective of his sex. They further submitted that there was no distinction between voluntary acknowledgment of a child and judicial acknowledgment, as even if a father was recognised on the birth certificate, the child would not be eligible for citizenship on the grounds that he or she was illegitimate.


16.  The applicant complained that the national authorities’ refusal to allow her to bear only her maiden name after her marriage, despite the fact that she had submitted the Court’s judgment on the same topic (Ünal Tekeli, cited above) to the domestic courts in support of her request, had amounted to a breach of Articles 6, 8 and 13 of the Convention. She further claimed that the fact that Turkish law allowed married men but not married women to bear their own surname after marriage constituted  <mask> discrimination and was incompatible with Article 14 of the Convention.


56.  The Government have argued that the situation was justified by the differences that existed at the material time between the overall sets of benefits and burdens for same- <mask> and opposite-sex couples, married or unmarried. The Court considers this more an explanation of the situation in domestic law at that time than a weighty reason that would prevent the difference of treatment at issue in this case from falling foul of Article 14. Bearing in mind the purpose of the regulations, which is to avoid placing an excessive financial burden on the absent parent in their new circumstances, the Court perceives no reason for treating the applicant differently. It is not readily apparent why her housing costs should have been taken into account differently than would have been the case had she formed a relationship with a man (see P.M., cited above, § 28).


36.  The applicant complained of a violation of her right to a fair hearing within a reasonable time and also that she had been a victim of discrimination on grounds of  <mask>. She further alleged that she had been unable to obtain redress for the violation of her fundamental right as acknowledged by the Constitutional Court. She relied on Articles 6 § 1 and 14 of the Convention, which read as follows:


64.  The Government stated that, prior to the enactment of Law no. 3719/2008, domestic law had afforded limited recognition to different‑ <mask> couples living together outside marriage. In particular, Article 1444 of the Civil Code made reference to “de facto partnership[s]”. Under that provision, divorced persons who remarried or lived in a de facto partnership lost the right to maintenance payments. De facto partnerships were also mentioned in Articles 1456 and 1457 of the Civil Code concerning assisted reproduction. Article 1456 provided that, if an unmarried woman sought recourse to assisted reproduction techniques, the man with whom she lived in a de facto partnership had to give his consent before a notary. Article 1457 laid down the conditions in which “artificial insemination [was permitted] following the death of the woman’s husband or the man with whom she live[d] in a de facto partnership”.


52.  The Government also considered that the applicant was not in a comparable situation with unmarried different- <mask> couples given that the relevant domestic law defined extramarital relationship of different-sex couples and same-sex couples differently. Moreover, even if the Aliens Act allowed for a family reunification of unmarried different-sex couples, the applicant would not satisfy the requirements of the relevant domestic law as at the moment when she had submitted her request for family reunification she had not been in a relationship with D.B. for a period of three years. In any case, there was nothing under the Convention imposing an obligation on the State to allow for family reunification, in particular in matters concerning same-sex couples.


62.  The applicants contended that Article 57 of the Russian Criminal Code established a sentencing policy which differentiated on the basis of  <mask> and age with regard to life imprisonment. The Court notes that “sex” is explicitly mentioned in Article 14 as a prohibited ground of discrimination and that it has previously accepted that “age” is also a concept covered by this provision (see Schwizgebel v. Switzerland, no. 25762/07, § 85, ECHR 2010 (extracts), and Nelson, cited above).


60.  The applicants referred to the judgment in Schalk and Kopf v. Austria (no. 30141/04, ECHR 2010), in which the Court had acknowledged that the relationship of a cohabiting same- <mask> couple living in a stable de facto partnership fell within the notion of “family life”. They contended that, although European countries’ legislation on the issue was not entirely uniform, there was nevertheless a trend towards legal recognition of same-sex couples. The applicants observed that, to their knowledge, Greece was to date the only European country to have introduced a legal alternative to marriage that was confined to different-sex couples. In other words, Greece was the only country to have enacted legislation governing a form of civil partnership while under the same legislation excluding same-sex couples from its scope. Greece was thus clearly and radically out of step with the norm among European countries in that regard. The applicants argued that the wish to preserve the ties of the traditional heterosexual family could not constitute substantive grounds such as to justify treating same-sex couples differently. Instead of taking positive steps to overcome prejudice against gays and lesbians in Greek society, the respondent State had reinforced that prejudice by enacting Law no. 3719/2008 without including same-sex couples. In the applicants’ view, the Law in question cast a negative moral judgment on homosexuality as it reflected an unjustifiable reserve, not to say hostility, towards same-sex couples. Having decided to move away from marriage as the sole formal basis of family life, the legislature had shown a clear disregard for same-sex couples by excluding them from the scope of Law no. 3719/2008.


81.  The Government distinguished the present case from Kiyutin in that none of the applicants could be considered a long-term or settled migrant within the meaning of the Court’s case-law. They submitted in particular that Mr Novruk’s second marriage had been very recent, that he had not had any children with his new wife and had lived with her at different addresses, and that he did not work or maintain contact with his child from the first marriage. In Ms Kravchenko’s case, the domestic courts had duly taken into account the fact that her husband and child were Russian nationals. Ms Ostrovskaya had recently arrived in Russia; her sister lived far away in Magadan Region; and her adult son was no longer a member of her “core family” (here the Government referred to Slivenko v. Latvia [GC], no. 48321/99, §§ 94, 97, ECHR 2003‑X). Although V.V. claimed in the domestic proceedings that he had lived for a long time with his same- <mask> partner, he did not give any details about their duration of their relationship, nor did he submit any evidence of “family life” showing that they shared expenses, jointly acquired household items, or lived under the same roof. When asked by the medical authorities, V.V. stated that he had not had any sexual relations in the past year. Moreover, V.V. did not prove that he was working or continuing his studies at the material time. The Government concluded that he did not have a stable relationship similar to “family life”, nor did he maintain any other activities falling under the notion of “private life” (here they referred to W.J. and D.P. v. the United Kingdom, no. 12513/86, Commission decision of 13 July 1987).


71.  The applicants also referred to the judgment delivered on 14 December 2009 by the United Kingdom Judicial Committee of the Privy Council in the case of Rodriguez v. Minister of Housing ([2009] UKPC 52 – Privy Council Appeal No 0028 of 2009) finding that a policy excluding same- <mask> couples in a stable and long-term relationship from access to joint tenancies was discriminatory. They pointed out, further, that, in his opinion of 15 July 2010 in the case of Römer v. Freie und Hansestadt Hamburg (case C-147/08), the Advocate General of the CJEU had considered that disallowing any form of legally recognised union available to persons of the same sex could be regarded as practising discrimination on the basis of sexual orientation. They submitted that a consensus was emerging in democratic societies, which, in their view, was against a government being able to reserve a certain right or advantage to married couples while denying it to same-sex couples on the pretext that the persons in question were not married.


73.  The applicants pointed out, lastly, that the aim of their application was not to obtain a right to marry or access to a form of registered partnership. They explained that they were merely asking the Court to develop its decision in Karner v. Austria (no. 40016/98, ECHR 2003‑IX) and state that excluding same- <mask> couples from the right to a residence permit for family reasons was discriminatory. They submitted that, with regard to other rights recognised as belonging to married couples, the Court could decide on a case-by-case basis, distinguishing, for example, the right to obtain a residence permit from the right to adopt. Accordingly, in their view, concluding that there had been a violation of Article 14 of the Convention in the present case was not incompatible with the conclusions reached by the Court in its judgment in Gas and Dubois (cited above).


52.  The applicants complain of a difference in treatment on the basis of  <mask>, which falls within the non-exhaustive list of prohibited grounds of discrimination in Article 14. Article 14 does not prohibit a Member State from treating groups differently in order to correct “factual inequalities” between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article. A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006; Willis v. the United Kingdom, no. 36042/97, §§ 14-26, ECHR 2002-IV).


38.  The applicant contended that the various health conditions from which she suffered had been caused by the medical intervention of May 1995. She also argued that those specific conditions had not resulted from her previous health problems, contrary to the findings of the Supreme Administrative Court. In fact, her faecal and urinary incontinence, the difficulty in having  <mask> and her depression had been caused exclusively by the medical error which had occurred during the operation.


23.  The applicants complained of discrimination based on their  <mask> and sexual orientation because of their permanent exclusion from the legal institution of a registered partnership. Maintaining the arguments they had already raised in the domestic proceedings (see paragraph 9 above), they argued that marriage was not a suitable alternative for them because of the differences between the legal frameworks governing marriage and the registered partnership. In their view, Article 8 of the Convention did not oblige the Contracting States to introduce a registered partnership as such; however, if a State decided to do so, it was barred from excluding couples from this new partnership institution solely on the basis of their sex and sexual orientation. Moreover, the applicants argued that the Court’s conclusions in the case of Schalk and Kopf, which had concerned the opposite situation (namely a same-sex couple being denied access to marriage), could not be applied in the present case.


72.  The applicants also stated that 24 member States of the Council of Europe had enacted laws allowing same- <mask> couples to register their partnership (a survey on this subject, which had been updated to 30 June 2015, appeared in Oliari and Others, cited above, §§ 53 to 55), and that the possibility of obtaining a residence permit, for a homosexual partner who was not an EU national, existed in at least31 States. They considered that the European consensus on that point was therefore greater today than that which had been observed at the time of adoption of the judgments in Schalk and Kopf and Gas and Dubois (cited above).


24.  The applicant submitted that “very weighty reasons” had to be provided to justify  <mask> discrimination and that the more lenient test under Article 1 of Protocol 1, whereby only measures “manifestly without reasonable foundation” were challengeable, did not apply in such cases. There was no reason why he should have to pay towards the NHS for a longer period than women, which obligation had no objective connection with the state pension age. The recent increase in deductions from the NI Fund for NHS funding purposes was manipulating NICs as a general taxation source which aggravated the existing inequality. As the NI Fund was not in fact self-financing but could be topped up by money from general taxation, it could not be said that changes in contributions would prejudice the equilibrium of the scheme. If women were required to pay, it would in fact boost the amount of funds. Any differences in entitlement were a consequence only of the way in which the Government had chosen to structure the benefit system.


45.  The Government submitted further that, under Article 3 § 1 of the above-mentioned directive, which had been transposed into Italian law by Law no. 97 of 6 August 2013 ..., the host Member State had to facilitate entry and residence for the following persons: “a)  any other family members, irrespective of their nationality ... where serious health grounds strictly require the personal care of the family member by the Union citizen”, and “b)  the partner with whom the Union citizen has a durable relationship, duly attested”. They observed that those provisions did not confer a right to the residence permit requested: firstly, the person with a serious illness was the first applicant, who was an Italian citizen; secondly, it fell to the States which, like Italy, did not guarantee same- <mask> couples a means of legal recognition, to decide whether the conditions for obtaining a residence permit were satisfied. The Government concluded on that point that the decisions made by the Italian authorities in the present case were compatible with EU law. In any event the second applicant had not lodged an application under Law no. 97 of 2013 and had not registered in the population register for Cecina (Livorno) as a person cohabiting with the first applicant.


64.  The Government submitted that the applicants had not been the subject of discrimination prohibited by the Convention. They referred first to judgment no. 138 of 15 April 2010, in which the Constitutional Court had stated that homosexual unions, namely, those in which persons of the same  <mask> lived together as a couple, had to be regarded as a “social group” within the meaning of Article 2 of the Constitution. Accordingly, in the Government’s submission, in order to protect specific situations, homosexual couples had the right to request “equal treatment”, that is, treatment comparable to that of married couples (judgment no. 138 of 2010 is described in Oliari and Others v. Italy, nos. 18766/11 and 36030/11, §§ 15 to 18, 21 July 2015). Moreover, the civil rights of unmarried homosexual and heterosexual couples were the subject of debate in several European States and in the Italian Parliament, in the light, inter alia, of the Court’s case-law and of Council of Europe documents.


41.  The applicant argued that, under the domestic law, she was forced to choose between two fundamental rights recognised under the Convention, namely, her right to sexual self-determination and her right to remain married, with the result that she was effectively compelled to forego one of them. Such legislation placed her in a quandary. She referred in that respect to a judgment of the Federal Constitutional Court of Germany of 27 May 2008. The object of her application was not to extend marriage rights to same- <mask> couples but only to preserve her pre-existing marriage to her spouse. In her case, same-sex marriage was an unintended and accidental outcome of legal gender recognition. She sought protection of a pre-acquired right and not the presumptive right to marry a woman.