Information Note on the Court’s case-law 251
May 2021
Yocheva and Ganeva v. Bulgaria - 18592/15 and 43863/15
Judgment 11.5.2021 [Section IV]
Article 14
Discrimination
Discriminatory denial of surviving parent allowance to single mother of minor children of unknown father:violation
Facts – The first applicant, a single mother whose minor children had not been recognised by their father, was refused a monthly allowance provided to families in which children had one living parent only. She unsuccessfully brought judicial review proceedings for discrimination before the domestic courts.
Law
Article 35 § 3 (b): Apart from the financial value of the allowance, the first applicant’s complaint was that as a result of the refusal to grant the benefit her children had been placed in a less favourable position than those with one living parent. It therefore raised an important question for the first applicant and for what was objectively at stake. Notwithstanding, respect for human rights also required an examination of the complaint on the merits as the authorities’ decisions necessitating the establishment of a father’s identity for eligibility for the allowance had broader repercussions for the right to freedom of discrimination and the right to private life.
Conclusion: preliminary objection dismissed.
Article 14 taken together with Article 8
(a) Whether the first applicant was in a relevantly similar or analogous situation to the groups who were entitled to the benefit – The Court replied in the affirmative. First, vis-à-vis fathers of children whose mothers had died, as with parental leave allowances, men and women were in an analogous situation with regard to family allowances which were meant to support families with children with one surviving parent; they were likewise “similarly placed” in terms of their role as sole carers for their children. Second, the first applicant was in “a relevantly similar situation” vis-à-vis widows whose children had been born in wedlock and single mothers whose children’s fathers had recognised them before dying, taking into account that the benefit scheme aimed to provide ongoing monthly support for families with children, who for a variety of reasons were in a vulnerable position, and the role of these groups of mothers in acting as their children’s sole carer.
(b) Whether there was a difference in treatment – The first applicant had been refused the allowance as she could not produce documents certifying that the father had died and the children were his legal heirs unlike the other groups of families which could claim the allowance, being able to produce those documents as their children had established legal ties to both parents. There had thus been a difference in treatment between the first applicant’s family and the other groups.
(c) Whether the difference in treatment was based on a ‘status’ envisaged under Article 14 – The first applicant had been treated differently on two grounds: (i) her sex: as maternity was determined by the act of birth, in the vast majority of cases it was only children’s paternity that could be unknown; as a mother of children with an unknown father, she could not provide the required documents under the law, while a single father whose children’s mother had died would normally be able to do so, and (ii) her family status, that is, a single mother, with the identity of her children’s father not having been established. This had resulted from the application of the relevant domestic law covering only families with one surviving parent and, as confirmed and clarified by the Constitutional Court, requiring one of the parents to have died.
(d) Whether the difference in treatment was objectively justified – In the absence of convincing arguments by the Government, the Court held that they had not provided a reasonable or objective justification for excluding the first applicant’s family from receiving the benefit. It took into account, inter alia, the following:
– The difference in treatment which emanated from the applicable law itself was based on a very traditional, outdated and stereotypical understanding of a family, as necessarily having two legal parents. This could not amount to sufficient justification for differential treatment, any more than similar stereotypes based on race, sex, colour or sexual orientation.
– Making receipt of the allowance conditional on the first applicant’s disclosure of intimate information and/or taking legal steps for paternal recognition – all of which fell squarely in her private life sphere and which she did not wish to do – amounted to making the full exercise of her right to respect for her family life conditional upon her relinquishing the exercise of her right to respect for her social and personal identity and psychological integrity, which were protected under Article 8.
– Children whose father was unknown, in objective terms, had been deprived of the care and protection of one of their parents in the same way as children one of whose parents had died. It could not be said that they required less care and protection than the latter or that they were in a better position, without accounting for a whole range of surrounding and relevant other circumstances which inevitably varied greatly from case to case.
– The first applicant’s family situation, which, according to her, was characterised by the absolute absence of a father, could not as a rule be considered advantageous to her children.
– To the extent that it could be inferred from the Government’s observations that the requirement to establish the father’s identity served to protect the State against fraud, the Government had not, at any point, argued that the first applicant had attempted or aimed to defraud the State by claiming the allowance. Further, and on a more general note, they had not provided evidence of widespread fraud or how the impugned policy was aimed at protecting against such fraud or that other standard measures directed towards preventing fraudulent claims had been ineffective.
– Neither the lack of a common standard in social benefit systems nor the wide margin of appreciation in the sphere of economic or social policy absolved States which adopted family allowance schemes from the obligation to grant such benefits without discrimination or justify the adoption of discriminatory laws or practices. Thus, the argument that making the first applicant’s category eligible for the benefit was unacceptable as it would result in the authorities paying more was not in itself sufficient for justifying such a difference in treatment. Moreover, in view of the importance of the prohibition of discrimination and the right to respect for one’s family life, the policy dimension of a potential measure of doing away with the benefit altogether, could not prevent the Court from dealing with the essence of the complaint before it.
– The Government had not alleged or produced evidence to show that the unknown father of the first applicant’s children had been providing care or support to them or had been in any way actually involved in their life. Hence, in the circumstances of the present case, they had not shown that there had been convincing reasons unrelated to the first applicant’s family status or her sex to offset the discriminatory effect of the applicable law on her family.
In view of all the above, the Court concluded that the first applicant had suffered discrimination on the grounds of both her family status and her sex.
Conclusion: violation (unanimously).
The Court also dismissed the second applicant’s complaints as having been lodged out of time (six months).
Article 41: EUR 3,915 in respect of pecuniary damage and EUR 4,500 in respect of non-pecuniary damage to the first applicant.
(See also Camp and Bourimi v. the Netherlands, 28369/95, 3 October 2000; Ünal Tekeli v. Turkey, 29865/96, 16 November 2004, Legal Summary; Genovese v. Malta, 53124/09, 11 October 2011, Legal Summary; Konstantin Markin v. Russia [GC], 30078/06, 22 March 2012, Legal Summary; and J.D. and A v. the United Kingdom, 32949/17 and 34614/17, 24 October 2019, Legal Summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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