THE FACTS

The facts of the case, as submitted by the applicant, may be summarised

as follows:

The applicant is a citizen of the United Kingdom. He was born in 1933

in England and now resides in Dublin. He is a property developer and

surveyor by profession.

In May 1934 the applicant was formally adopted in England by a Miss X.,

a retired nurse. He was married in 1960. His wife is Irish. In March

1963 he moved to Ireland with his wife and his mother by adoption and

settled there. In April 1964 his mother died, aged 81.

The applicant was left about £20,000 under his mother's will. Under

Irish law, legacy duty was payable on this bequest. It appears that the

rates of legacy duty in Ireland in 1964 were 1% for the children of the

deceased and 10% for "strangers in blood". Under the Adoption Act 1952

it was expressly provided that for the purposes of legacy duty an

adopted person was to be considered as the child of the adopter. The

1952 Act did not define the meaning of the term "adopted person", but

by the Adoption Act 1964 it was provided that an "adopted person" meant

a person in respect of whom an adoption order had been made. The term

"adoption order" was itself defined in the 1952 Act as meaning an order

made under Section 9 of that Act. Consequently the effect of the two

adoption Acts was that only a person in respect of whom an adoption

order had been made under the  1952 Act, i.e. a person who had been

adopted under Irish law, could claim to be considered as a child of the

adopter for the purposes of legacy duty. Since the applicant had been

adopted under the relevant provisions of English law he was treated as

a "stranger in blood" on his mother's death and was therefore required

to pay 10% legacy duty.

The applicant was informed by his legal advisers that the only way he

might avoid paying duty was if he could show that his mother was not

domiciled in Ireland at the time of her death, i.e. that she intended

one day to return to England. When the Revenue Commissioners took

proceedings against him for payment of the duty he therefore attempted

to establish that his mother had been domiciled in England. The High

Court rejected this defence and on .. February 1971 ordered that the

applicant should pay the 10% legacy duty. The applicant did not appeal

against this judgment. He states that he accepts the Court's findings

that his mother died domiciled in Ireland and admits that in those

circumstances he was obliged under Irish law as it then stood to pay

10% duty. What he cannot accept, however, is that he should be treated

any differently from a person adopted under Irish law. It seems that

this was his real complaint at the time of the proceedings, but because

the relevant provisions of the Adoption Acts were clear, he was not

able to put this particular point to the court.

Despite the Court judgment against him, the applicant continued to

withhold payment. On .. April 1972 he petitioned the Minister for

Finance asking for relief. After setting out the facts of his case he

stated that he had always been prepared to pay 1% duty. He ended: "I

understand that you are willing to consider grievances caused by the

anomalies of tax law and hope you will give my petition every

consideration". The applicant also wrote to the Dail Deputy for his

constituency, who was then Shadow Minister for Finance, requesting his

assistance.

It seems that it was partly because of the applicant's situation that

the Finance Bill 1972 contained a section giving relief for the

purposes of death duties to those persons adopted abroad, putting them

in the same position as those adopted in Ireland. During the debate on

the Bill in the Dail, the applicant's Deputy welcomed this section and

stated that he hoped it would be possible to make some retrospective

provision. The Minister for Finance replied that because of the

difficulties this would lead to it was not possible to make the benefit

retrospective. The section was only to apply in respect of anyone dying

after the passing of the Act.

As a result of representations made on the applicant's behalf the

Revenue Commissioners considered the matter again and made their final

reply on .. August 1972. The applicant's request for relief was turned

down and it was stated that the Commissioners had to proceed to recover

the amount due under the High Court judgment.

On .. February 1973, after execution proceedings had been started

against the applicant and his goods were on the point of being seized,

he paid the full amount claimed by the Revenue Commissioners.

Complaints

The applicant complains that he has been deprived of his possessions

on the basis of a discriminatory law.

He complains that this has been a humiliating episode for him, not

least because of the disrespect it has shown to his family.

He submits that the provision in the Finance Act 1972 remedying for the

future the anomaly he had exposed should also have been made

retrospective. He challenges the argument of the Finance Minister that

this would have created too many difficulties and points out that

relief given in similar circumstances by the Finance Act 1960 to

children informally adopted was made retrospective to 1 January 1953.

The applicant alleges the violation of Article 1 of Protocol No. 1 in

conjunction with Article 14 and Article 1 of the Convention. He states

that his object is to achieve equality for all purposes with persons

of equal status, namely persons adopted under Irish law.

THE LAW

1.   The applicant has complained that on the death of his mother, who

had adopted him in England, he has had to pay ten times as much legacy

duty as a child adopted in Ireland would have paid. He alleges that he

has thereby been deprived of his possessions on the basis of a

discriminatory law, in violation of Article 14 (Art. 14) of the

Convention in conjunction with Article 1 of Protocol No. 1 (P1-1).

Article 1 of Protocol No. 1 (P1-1) provides that:  "Every natural or

legal person is entitled to the peaceful enjoyment of his possessions.

No one shall be deprived of his possessions except in the public

interest and subject to the conditions provided for by law and by the

general principles of international law.

"The preceding provisions shall not, however, in any way impair the

right of a State to enforce such laws as it deems necessary to control

the use of property in accordance with the general interest or to

secure the payment of taxes or other contributions or penalties."

Article 14 (Art. 14) lays down that the enjoyment of the rights and

freedoms set out in the Convention shall be secured without

discrimination on any ground such as, inter alia, national origin,

birth or other status.

The Commission finds first that there is no question of there having

been a breach in this case of Article 1 of Protocol No. 1 (P1-1) taken

alone and notes that such a violation has not even been alleged by the

applicant. The interference with the peaceful enjoyment of the

applicant's possessions was clearly covered by the saving provisions

of this article. The Commission has gone on to consider whether there

might nevertheless have been a possible violation of this article in

conjunction with Article 14 (Art. 14) of the Convention, bearing in

mind the ruling of the Court in the Belgian Linguistic Cases that :

"measure which in itself is in conformity with the requirements of the

article enshrining the right or freedom in question may, however,

infringe this article when read in conjunction with Article 14

(Art. 14) for the reason that it is of a discriminatory nature". The

Court went on to say that:  "In spite of the very general wording of

the French version ("sans distinction aucune"), Article 14 (Art. 14)

does not forbid every difference in treatment in the exercise of the

rights and freedoms recognised ... It is important then, to look for

the criteria which enable a determination to be made as to whether or

not a given difference in treatment, concerning of course the exercise

of one of the rights and freedoms set out in the Convention,

contravenes Article 14 (Art. 14). On this question the Court ... holds

that the principle of equality of treatment is violated if the

distinction has no objective and reasonable justification". (Judg.

Court, 23 July 1968, paragraphs 9 and 10.)

Since the applicant has shown that he has been treated differently from

persons adopted under Irish law the Commission has examined whether

this difference of treatment had such an objective and reasonable

justification. The Commission observes here that for the purposes of

taxation laws there are bound to be numerous distinctions between

different categories of persons. The Commission's function, in the

light of the above ruling of the Court, is to consider whether such

distinctions are discriminatory as being arbitrary and without

reasonable justification. In the present instance the Commission notes

that, for the purpose of fixing the scale of legacy duty payable by

adopted children, the relevant test laid down by Irish law, prior to

the Finance Act 1972 was whether the child concerned had been adopted

under the provisions of Irish law or of foreign law. Bearing in mind

the differences in the conditions for adoption and in adoption

procedures from one country to another and the differences in status

resulting from such adoption, the Commission finds that this test was

reasonable and objective and therefore not discriminatory.

An examination by the Commission of this complaint as it has been

submitted does not therefore disclose any appearance of a violation of

the rights and freedoms set out in the Convention and in particular in

the above two articles.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention.

2.   The Commission has also considered the applicant's complaint that

this difference in treatment showed disrespect to his family. The

Commission has examined ex officio whether there might thereby have

been a violation of Article 14 (Art. 14) in conjunction with Article

8 (Art. 8) of the Convention, which provides that everyone has the

right to respect for his private and family life.

It is true that, as a person adopted under a foreign law, the applicant

has been accorded a less privileged status than persons adopted under

Irish law. However, for the same reasons as those expressed above, the

Commission finds that this difference in treatment was based on an

objective and reasonable criterion and thus not discriminatory.

An examination by the Commission of this complaint as it has been

submitted, including an examination made ex officio, does not therefore

disclose any appearance of a violation of Article 14 (Art. 14) in

conjunction with Article 8 (Art. 8) of the Convention.

It follows that this part of the application is likewise manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE