Human Rights – Case Studies
European Court of Human Rights vindicates our client for human rights violations.
The European Court of Human Rights (ECHR) delivered yesterday 13/10/2015 its judgment in the case of Vrountou v. Republic of Cyprus (application no. 33631/06).
Our law firm represented the applicant in the appeal procedure in the national courts as well as before the ECHR.
The ECHR found that the Republic of Cyprus violated Article 14 (discrimination on grounds of sex), taken in conjunction with Article 1 of Protocol No. 1 of the Convention, as well as Article 13 of the Convention (right of recourse).
The case concerned the failure to grant Ms Vrountou a refugee card on the ground that while her mother was a displaced person, her father was not.
The Facts of the Case.
As it is well known, after the Turkish invasion of Cyprus in 1974 more than 200,000 Greek Cypriots were made refugees and expelled from their land and homes.
On 19 September 1974 the Council of Ministers of the Republic of Cyprus approved the introduction of a scheme of aid for displaced persons and war victims. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined as being any person whose permanent home was in the areas occupied by the Turkish armed forces, in an inaccessible area, or in an area which had been evacuated to meet the needs of the National Guard.
To implement the scheme, the Director of the Care and Rehabilitation of Displaced Persons Service (“SCRDP”) issued a circular on 10 September 1975. The circular provided that non-displaced women whose husbands were displaced could be registered on the refugee card of their husbands. It also provided that children whose fathers were displaced could be registered on the refugee card of their fathers (see paragraph 20 below). No provision was made for the children of displaced women to be registered on the refugee cards of their mothers.
Mrs Vrountou’s mother has been a refugee since 1974 and is the holder of a refugee card.
In September 2002, the applicant married and began looking for a house for her family outside Nicosia. She wished to obtain housing assistance and so, on 27 February 2003, applied to the Civil Registry and Migration Department of the Ministry of the Interior for a refugee card with occupied Skylloura, the place from which her mother was displaced, as her place of displacement.
By letter dated 6 March 2003 the request was rejected on the basis that the applicant was not a displaced person because, while her mother was a displaced person, her father was not.
The applicant then filed a recourse before the Supreme Court challenging the above decision. She claimed, inter alia, that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. She claimed that it also breached Article 13 of the Convention.
On first instance, a single judge of the Supreme Court dismissed the recourse on 12 May 2004, finding that, on the basis of the relevant case-law, the extension of the applicable criteria so as to cover the children of displaced women was not possible. The question of extending the term “displaced” to cover the children whose mothers were displaced but whose fathers were not had been repeatedly discussed before the House of Representatives’ Committee for Refugees. A proposal to change the law to that effect had been placed before the Committee but was never approved. Furthermore, because of the consequences which would ensue from such an extension of the term “displaced”, the Minister of the Interior had referred the question to the Council of Ministers for its consideration and, on 19 April 1995, the Council of Ministers had decided not to extend the term in this manner.
On 23 June 2004 the applicant filed an appeal before the Supreme Court. By judgment of 3 March 2006 a five-judge panel of the Supreme Court dismissed the appeal and upheld the findings of the first instance court.
The Case before the ECHR.
The applicant then lodged a recourse before the ECHR putting forward three complaints:
First, the applicant complained that the refusal of the authorities to grant her a refugee card breached her property rights under Article 1 of Protocol No. 1. She maintained that having a refugee card provided the holder with a number of benefits such as financial aid, scholarships, free education, medical treatment, housing assistance, and help in the form of clothing and footwear. She had applied for a refugee card with a view to seeking housing assistance.
Second, she complained that denying her a refugee card on the basis that she was the child of a displaced woman rather than a displaced man was discriminatory on the grounds of sex and thus in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No.1.
Third, the applicant further complained that there had been a violation of Article 13 of the Convention (right to effective remedy) as no authority in Cyprus, including the courts, had examined her complaint and, as a result, given her relief.
The decision of the ECHR.
The ECHR found in favour of the applicant on all three grounds dismissing the contentions of the government.
Article 1 of Protocol 1 was applicable.
The Court held that the prohibition of discrimination enshrined in Article 14 extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. These principles apply generally in cases under Article 1 of Protocol No. 1 and are equally relevant when it comes to welfare benefits.
The relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question.
The Court found that, but for the need to have a refugee card, the applicant would have had a right, enforceable under Cypriot law, to receive housing assistance.
There was discriminatory treatment.
The Court then found that there was discriminatory treatment on the basis of sex thus violating Article 14 of the Convention.
Examining whether the discriminatory treatment could be objectively and reasonably justified, the Court found against the Republic of Cyprus rejecting all the justifications that were put forward. The government argued that the discriminatory treatment could be justified on the basis of sociological and budgetary considerations.
The Court however, reiterated that the advancement of gender equality is today a major goal in the member States of the Council of Europe and very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man’s primordial role and the woman’s secondary role in the family.
On the facts the Court decided that there was violation of Article 14 in conjunction with Article 1 of Protocol 1 and of Article 1 of Protocol 12.
The right of effective remedy has also been violated.
It then examined the alleged violation of Article 13 of the Convention and found in favour of the applicant. The complaint of the applicant under Article 13 was that no authority in Cyprus, including the courts, had examined her complaint and given her relief.
In the present case, the reason the Supreme Court was unable to consider whether the applicant was entitled to the remedy she sought (the quashing of the decision to refuse her a refugee card) was that it considered that it did not have jurisdiction to extend the refugee card scheme without infringing the constitutional principle of the separation of powers. In other words, the Supreme Court, applying that principle, found itself unable to consider the merits of the applicant’s discrimination claim and thus unable to grant her appropriate relief.
The Court held that the consequence of the Supreme Court’s approach was that, in so far as the applicant’s Convention complaints were concerned, recourse to the Supreme Court was not an effective remedy for the applicant. Since the Government have not submitted that any other effective remedy existed in Cyprus at the material time to allow the applicant to challenge the discriminatory nature of the refugee card scheme, it follows that there has been a violation of Article 13 of the Convention.
The Court then awarded damages to the applicant on the basis of Article 41 of the Convention which provides that the applicant should so far as possible be put in the position she would have enjoyed had the violation found by the Court not occurred. Thus the Court awarded the applicant the grant of housing assistance she would have received but for the difference in treatment she suffered. This was the sum of CYP 8,520. Adjusting that sum to reflect interest and inflation since 2003, and ruling on an equitable basis, the Court awards the applicant EUR 21,500. The Court also accepted that the applicant has suffered non-pecuniary damage resulting from the nature of the discrimination awarding EUR 4,000 as damages under this head.