CEDH · CASELAW;CLIN;ENG — 13 octobre 2015

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Cyprus - 33631/06 Judgment 13.10.2015 [Section IV] Article 14 Discrimination Denial of refugee card on the basis that the applicant was the child of a displaced woman rather than a displaced man: violation Facts – In 2003 the applicant applied for a refugee card under a scheme introduced in 1974 for war victims and persons displaced from areas occupied by the Turkish armed forces or evacuated to meet the needs of the National Guard. Under the scheme, refugee cards made their holders eligible to a range of benefits, including housing assistance. The applicant’s request was rejected because, while her mother was a displaced person, her father was not. The applicant’s ensuing judicial proceedings were unsuccessful. After the applicant lodged her application to the European Court, the 1974 scheme was amended, so that children of displaced women became eligible for housing assistance on the same terms as the children of displaced men as of 2013. Law – Article 14 in conjunction with Article   1 of Protocol No.   1: In 2003 the primary condition of entitlement to housing assistance was that the person applying for it had to be the holder of a refugee card. Hence, had the applicant at that time had the right to be issued with a refugee card, she would also have had a right, enforceable under domestic law, to receive housing assistance. Therefore, housing assistance constituted a “benefit” for the purposes of Article   1 of Protocol No.   1 and the facts of this case fell within the ambit of that provision. The Court further established the existence of a difference in treatment on the grounds of sex on account of the fact that, in being entitled to a refugee card (and thus to housing assistance) the children of displaced men enjoyed preferential treatment over the children of displaced women. As to whether there was a reasonable and objective justification for this difference in treatment, the main argument advanced by the Government was the socio-economic differences between women and men allegedly existing in Cyprus when the scheme was introduced. However, the Court recalled that this kind of reference to “traditions, general assumptions or prevailing social attitudes” provided insufficient justification for a difference in treatment on grounds of sex. Moreover, even assuming it reflected the general nature of economic life in rural Cyprus in 1974, it did not justify regarding all displaced men as breadwinners and all displaced women as incapable of fulfilling that role. Nor could it justify subsequently depriving the children of displaced women of the benefits to which the children of displaced men were entitled, particularly when most benefits the children of displaced men were entitled to did not refer to a means test. Nor could the difference in treatment be justified simply by reference to the need to prioritise resources in the immediate aftermath of the 1974 invasion. As to the margin of appreciation the State allegedly enjoyed in choosing the timing and means for extending the 1974 scheme to the children of displaced women, the Court noted that the scheme had excluded the children of displaced women for almost forty years. Budgetary considerations alone could not justify such a difference in treatment based solely on gender, particularly when the successive expansions of the scheme between 1974 and 2013 had themselves had financial consequences. Furthermore, the fact that the scheme had persisted for so long and yet continued to be based solely on traditional family roles as understood in 1974 meant that the State had exceeded any margin of appreciation it enjoyed in this field. Very weighty reasons would have been required to justify such a long-lasting difference in treatment. None had been shown to exist. There was accordingly no objective and reasonable justification for the difference in treatment. Conclusion : violation (unanimously). The Court also found, unanimously, a violation of Article   13 on account of the lack of effective remedies at the material time which to enable the applicant to challenge the discriminatory nature of the scheme. Article 41: EUR 4,000 in respect of non-pecuniary damage; EUR 21,500 in respect of pecuniary damage. (See also Konstantin Markin v. Russia [GC], 30078/06, 22   March 2012, Information Note   150 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes