AS TO THE ADMISSIBILITY OF

Application No. 38696/97

by John Cuthbert D'Ewes COKE

and 21 Others

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting in private on 9 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 27 June 1997 by John Cuthbert D'Ewes COKE and 21 Others against the United Kingdom and registered on 20 November 1997 under file No. 38696/97;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are all British citizens, resident in the United Kingdom.  A list of the applicants is annexed to the present decision.  They are represented before the Commission by Mr. J. Russell, a solicitor with Blount Petre Kramer & Co in London.  The facts of the application, as submitted by the applicants' representative, may be summarised as follows.

The Armed Forces Pension Scheme (the "Scheme") is an occupational pension scheme based on representative rates of pay.  The rules of the Scheme are contained in prerogative instruments made under three statutes, one for each of the armed services: the Navy and Marine Pensions Act 1865 for the Royal Navy and the Royal Marines; the Pensions & Yeomanry Pay Act 1884 for the Army and the Air Force (Constitution) Act 1917 for the Royal Air Force.  The Scheme is in substantially the same form for each of the three services.

Under rules introduced in 1973 it was provided that the widow of a serviceman, who had married whilst her late husband was still serving, could receive a pension equal to half of the late husband's service pension.  Those servicemen who were serving on 31 March 1973 were permitted, if they so elected, to buy-in their previous reckonable service for a half-rate pension for their future widows.  This option was not available to those servicemen who had already retired by this date.

Further rules were introduced in 1978 which provided that a serviceman who retires after 6 April 1978 can earn a pension for his widow should he marry after his retirement.  The pension is based on one thirty-fourth of a normal service widow's pension entitlement for each year of service from 6 April 1978.

The rules have been subsequently amended, but the 1973 and 1978 rules as described above are still in force and the complaints in this application relate to those rules.

The applicants divide into four groups.  The first group, Group A, consists of the first to seventh and sixteenth to eighteenth applicants, all of whom are retired officers.  The remaining applicants, in Groups B, C and D, are officers' widows.

Group A 

The first applicant was commissioned into the Royal Marines in 1935, retired in 1966 and married in 1971.  The second, third, fourth and fifth applicants are in a similar position to that of the first applicant in that they are all officers who retired before 1978 and married their wives after they retired.

The second applicant was commissioned in 1939 and retired in 1972.  He married in 1944 and divorced in 1976.  He married for the second time in 1977.

The third applicant joined the army in 1939 and was commissioned in 1941.  In 1974 he paid to upgrade the pension of his widow from one third to a half-rate and such payments were made until he retired in 1976.  In 1986, his first wife died.  He married again in 1991.

The fourth applicant was commissioned into the Royal Air Force in 1951 and retired in 1970.  From 1970 to 1984, he worked as a school teacher.  He first married in 1942 and was divorced in 1989.  He married again in 1989.

The fifth applicant was commissioned in 1941 and retired in 1977.  He married an officer's widow in 1980.

The sixth applicant commenced his service in 1942 and was commissioned in 1943.  He retired in 1978.  He first married in 1950 and in 1973 bought in to secure a half-rate service pension for his widow.  His first wife died in 1983.  He married again in 1985.

The seventh applicant is in a similar position to that of the sixth applicant in that he also bought in to the pension scheme to secure a half-rate service pension for his widow.  He was in the army until 1948 when he joined the Royal Air Force.  He retired on 29 September 1978.  He divorced his first wife in May 1988 and married again in June 1988.

The sixteenth applicant joined the Royal Air Force in 1930 and was commissioned in 1941.  He married in 1944 and retired in 1962.  The seventeenth applicant served in the Royal Air Force and retired early in 1968 at the age of 51.  He is married.  The eighteenth applicant served in the army from 1939 to 1971.  He married in 1948.

Group B

The eighth to thirteenth applicants are in a similar position in that none of them receives a service pension.  They married after their husbands retired but their retirement was before 1978.

The eighth applicant's late husband retired in January 1974.  He was married for the first time in 1942 and his first wife died in 1973.  He married the eighth applicant in August 1974 and died in 1993.

The ninth applicant's late husband joined the Royal Navy in 1929, was commissioned in 1931, retired in 1950 and died in 1984.  He married the ninth applicant in 1953.

The tenth applicant's late husband was commissioned in 1939, retired in 1958 and died in 1996.  He married the tenth applicant in June 1978.

The eleventh applicant's late husband served in the Royal Air Force from 1920 to 1946.  His first wife died in 1962 and in 1963 he married the eleventh applicant.  He died in 1993.

The twelfth applicant's late husband retired in 1954.  He married his second wife, the twelfth applicant, in 1970 and died in 1984.

The thirteenth applicant married her first husband, an army officer, in 1941.  He later deserted her and they were divorced in 1964.  She married another army officer in 1964, subsequent to his retirement.  He had served from 1926 to 1957 and he died in 1994.

Group C

The fourteenth and fifteenth applicants are in a similar position in that they are each entitled to a restricted pension.  They married after their husbands retired but their retirement was shortly after the 1978 rules were introduced and therefore they did not have time in service to build up contributions to their widows' pensions.

The fourteenth applicant's late husband was commissioned in 1937, retired on 30 June 1978 and died in 1994.  His first wife died in 1982 and he married the fourteenth applicant in 1984.  Her entitlement to a service pension is based on her late husband's service between 6 April 1978, when the pension rules were changed, and his retirement on 30 June 1978.

The fifteenth applicant's late husband joined the Royal Air Force in 1942, retired on 26 May 1979 and his first wife died in January 1988.  He married his second wife, the fifteenth applicant, in September 1988 and died in 1989.  The fifteenth applicant receives a service pension based on her late husband's service from 6 April 1978 to the date of his retirement, 26 May 1979.

Group D

The nineteenth to twenty-second applicants are in a similar position in that each receives a service pension based on one-third of their late husbands' service pensions.  Their late husbands retired before the 1973 rules were introduced.

The nineteenth applicant's late husband joined the Royal Air Force in 1928 and was commissioned in 1940.  He retired in 1967 and died in 1983.  They were married in 1949.

The twentieth applicant's late husband joined the Army in 1924, retired in 1965 and died in 1986.  They married in 1936.

The twenty-first applicant's late husband was commissioned in 1942, served until 1959 and died in 1995. They were married in 1949.

The twenty-second applicant's late husband joined the Royal Navy in 1940, served until 1958 and died in 1978.  They were married in 1947.      

COMPLAINTS

The first group of applicants, Group A, composed of retired officers, complain that although they receive pensions, if they should die before their wives, their widows would not be eligible for either any service pension at all or only for a restricted amount.

The applicants in Group B complain that, as widows who married after their late husbands retired before 1978, they are not entitled to a service pension.    The applicants in Group C complain that they are only in receipt of a restricted pension because their late husbands married after retirement but retired very soon after the 1978 rules were introduced and therefore did not have sufficient time in service to build up contributions to their widows' pensions.  The applicants in Group D complain that they are only eligible for a one-third pension because although they married whilst their husbands were still in service,their husbands retired before the 1973 rules were introduced.

All the applicants complain that the reason for a widow receiving a pension or not depends on her date of marriage or the date of her late husband's retirement, which they allege are arbitrary and discriminatory grounds of differentiation between the widows of servicemen.  They invoke Article 1 of Protocol No. 1 to the Convention, together with Article 14 of the Convention.9

THE LAW

1. The first group of applicants, Group A, that is officers complaining on behalf of their wives, claim to be victims of an alleged violation of Article 1 of Protocol No. 1 of the Convention, together with Article 14 of the Convention.

The Commission recalls the constant case-law of the Convention organs in respect of Article 25 of the Convention which provides that a petition to the Commission must be from a person who claims to be a victim of a violation of a Convention right or rights.  Article 25 therefore requires that an individual should claim to have been actually affected by the violation alleged and does not institute for individuals a kind of actio popularis for the interpretation of the Convention (cf. Eur. Court HR, Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 17, para. 33).

In the present case, the applicants are complaining about how the pension scheme may affect not them, but their wives, and not now, but in the future.  The Commission considers that these applicants cannot claim to be victims of an alleged violation of the Convention as they themselves will never be directly or indirectly affected by the legislation.

It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must be rejected in accordance with Article 27 para. 2 of the Convention.

2. The applicants in Group B, all of whom are officers' widows who married after their late husbands retired and the husbands retired before 1978, complain that they are not entitled to any pension at all and invoke Article 1 of Protocol No. 1 to the Convention.

Article 1 of Protocol No. 1 to the Convention provides as follows:

"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."

The Commission recalls that the Convention does not guarantee a right to an old-age pension although the making of compulsory contributions to a fund may create property rights (cf. No. 5849/72, Dec. 1.10.75, D.R. 3, p. 25).  The European Court of Human Rights has recently found that the right to emergency assistance was a pecuniary right for the purposes of Article 1 of Protocol No. 1 (Eur. Court HR, Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, No. 14, pp. 1141-1142, paras. 39-41).  In that case, the applicant had paid contributions to an unemployment insurance fund which was a pre-condition for payment of emergency assistance.

In the present case, by contrast, none of the widows ever contributed to the pension scheme.  Indeed, as their position as regards their entitlement to a pension was clear when they married, they never even had an expectation that they would be eligible for a pension.  The Commission considers that these complaints do not disclose any interference with these applicants' rights under Article 1 of Protocol No. 1 to the Convention.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 27 para. 2 of the Convention.

3. The applicants in Group C are officers' widows entitled to a restricted pension.  They also married their late husbands after the husbands had retired.  However, the officers were still in service after the introduction of the 1978 rules which enabled them to contribute to a pension for their future wives.  These applicants also invoke Article 1 of Protocol No. 1.

The Commission notes that, as above, these applicants never made a contribution to the pension scheme themselves.  The officers made contributions to the scheme for their future wives for as long as they were able to.  In the case of the fourteenth applicant, her late husband paid a contribution for two months and in the case of the fifteenth applicant, her late husband paid a contribution for thirteen months.  The amount of pension which these applicants receive therefore reflects the amount of contribution made by their late husbands.  The applicants never had any expectation to receive more than that limited amount.  The Commission therefore considers that these complaints do not disclose any interference with these applicants' rights under Article 1 of Protocol No. 1 to the Convention.

It follows that this part of the application is also incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 27 para. 2 of the Convention.             

4. The applicants in Group D are officers' widows who married while their husbands were still serving but who retired before 31 March 1973, the date of introduction of rules enabling a serviceman still serving on that date to contribute to a pension scheme which would leave his widow with a pension of half the rate of his service retired pay.  They also invoke Article 1 of Protocol No. 1.

The Commission notes that these applicants are each in receipt of a service pension based on one third of their late husbands' service pensions.  The applicants never had an expectation that they would be entitled to any more than one third as their husbands had only contributed the amount necessary to provide them with a third and had retired prior to the introduction of the 1973 rules which provided for a higher pension for those serving on 31 March 1973 and who wished to pay in more money in order to obtain a half-rate pension for their widows.  The Commission considers that these complaints do not disclose any interference with these applicants' rights under Article 1 of Protocol No. 1 to the Convention.

It follows that this part of the application is also incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 27 para. 2 of the Convention.

5. All the applicants allege a violation of Article 14 of the Convention in that they believe that the widows of servicemen have been discriminated against on the grounds of their dates of marriage or the dates of their husbands' retirement.

Article 14 of the Convention provides as follows:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour , language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

According to the established case-law of the Convention organs, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols (see Eur. Court HR, Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 32).  It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions.  Since the rest of the application falls outside the scope of the Convention, Article 14 does not apply.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention and must be rejected in accordance with Article 27 para. 2 of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO   M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber

Annex

Name Nationality Domicile Date of

birth

1. John Cuthbert

D'Ewes COKE British Fordingbridge 18.11.16

2. Philip Sidney

NEWTON British Winchester 14.8.20

3. Donald Harley

SCARFE British Salisbury 25.2.21

4. John GANT British Abingdon 10.2.23

5. William Robert

CORBOULD British Camberley 7.6.22

6. Patrick Michael

Causabon

VINCENT British London 7.2.25

7. Peter Ernest

CHARLTON British Nottingham 13.4.25

8. Kathleen

BARTHOLOMEW British Bridport 16.2.22

9. Jean HALE British Torrington 22.3.15

10. Jenifer Diana

MASON British Bungay 6.10.36

11. Caroline Helen

FLORENCE British Arbroath 27.5.17

12. Maureen Allen

Wallace PRICE British Newton Abbot 26.5.17

13. Coralie Doreen

BELL British Reading 13.2.16

14. Peggy Joyce

CLEGG British Aylesbury 16.11.16

15. Rosemary Sara

LOCK British Amersham 28.6.39

16. Charles Frank

WAKE British Deal 17.2.13

17. George Edward

Frederick

GOODE British Bath 8.4.17

18. Harrison

Harvey CAIL British London 3.6.21

19. Dolores

BALLAM British Ilfracombe 13.1.30

20. Alice May

HARBIN British Hook 21.12.12

21. Lynda LYALL British Wells 5.1.25

22. Avis Gloria

DALZELL British Reading 20.5.26