FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56721/00 by Dominic Fitzger NEILL and Others against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 29 January 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza ,

Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 26 November 1999 and registered on 19 April 2000,

Having regard to the application form and further observations submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are British citizens, resident in the United Kingdom. A list of applicants is annexed to the present decision. They are represented by before the Court by Mr J. H. Briggs, a solicitor with Blount Petre Kramer in London.

A. The circumstances of the case

The applicants are retired officers from the British armed forces. The first and third applicants have died since the application was introduced before the Court, and their complaints are being continued by their respective estates. A list of the applicants is annexed to this decision.

The applicants are divided into three groups. The first group, Group One, consists of the first and second applicants. The second group, Group Two, consists of the third to sixth applicants. The third group, Group Three, consists of the seventh and eighth applicants.

Group One

The first and second applicants retired from the armed forces before 31 March 1973 and married while serving. The first applicant received a pension under the Armed Forces Pensions Scheme (“the Scheme”) until his death on 24 December 1999. Following his death, his wife has been entitled as his widow to a pension of one-third of that paid to the first applicant. The second applicant receives a pension under the Scheme but in the event of his death his widow will similarly be entitled only to a one-third pension.

Group Two

The third, fourth, fifth and sixth applicants retired from the armed forces before 6 April 1978 and married after they retired. The third applicant received a pension under the Scheme until his death on 3 May 2000. Following his death, his wife has had no entitlement to any pension under the Scheme. The fourth, fifth and sixth applicants receive a pension under the Scheme but in the event of their deaths their widows will similarly be have no pension entitlement.

Group Three

The seventh and eighth applicants retired from the armed forces after 6 April 1978 having served the majority of their careers before that date, and married after they retired. They receive a pension under the Scheme but in the event of their deaths their widows will be entitled only to a restricted pension under the Scheme.

B. Relevant domestic law

The Armed Forces Pension Scheme is the occupational pension scheme for members of the British armed forces, the rules of which are contained in prerogative instruments made under three statutes, one for each of the armed services: the Navy and Marine Pay and Pensions Act 1865 for the Royal Navy and Royal Marines, the Pensions and Yeomanry Pay Act 1884 for the Army and the Air Force (Constitution) Act 1917 for the Royal Air Force. The Scheme is substantially the same for each of the three services.

Although the Scheme is described as non-contributory, there is an abatement applied in the calculation of military salaries to allow for the comparative worth to servicemen of their pensions, currently 7%.

The widow of a serviceman who retired before 31 March 1973 and who married while serving receives a pension of one-third the value of her husband ’ s service pension following his death. As of 31 March 1973, new rules (“the 1973 rules”) entered into force which increased this entitlement to half of the husband ’ s service pension following his death. The rate of abatement applied to salaries did not change as a result of these new rules. 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 that date.

The widow of a serviceman who retired before 6 April 1978 and who married after his retirement receives no pension under the Scheme following his death. As of 6 April 1978, new rules (“the 1978 rules”) entered into force which provided that the widow of a serviceman who retired after that date and who married after his retirement would be entitled to a pension based upon one thirty-fourth of a normal service widow ’ s pension for each year of service by her husband after 6 April 1978. Service up to 6 April 1978 did not count towards the pension as it would if the serviceman had married while still serving. The rate of abatement applied to salaries did not change as a result of these new rules.

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.

COMPLAINTS

The applicants in Group One complain that their widows are, or will be, entitled to only a one-third pension under the Scheme because, although they married whilst the applicants were still in service, the applicants retired before the 1973 rules were introduced. The applicants in Group Two complain that their widows are not, or will not be, entitled to a service pension because they married after the applicants ’ retirement but before the 1978 rules were introduced. The applicants in Group Three complain that their widows will be entitled to only a restricted service pension because they married after retirement but the applicant retired very soon after the 1978 rules were introduced and therefore did not have enough time in service under the 1978 rules to build up significant contributions to their widows ’ pensions.

All the applicants complain that the calculation under the Scheme of their wives ’ service pension entitlements in the event of their deaths, based as it is upon the date of marriage or the date of retirement, is arbitrary and discriminatory. They invoke Article 1 of Protocol No. 1 to the Convention together with Article 14 of the Convention.

THE LAW

1. Victim status

All of the applicants claim to be victims of an alleged violation of Article 1 of Protocol No. 1 to the Convention, together with Article 14 of the Convention. They complain that they are personally disadvantaged by the Scheme in that they are conscious of their wives ’ restricted pension rights in the event of their death. They argue that they are forced to make additional payments into private pensions in order to make provision for their wives, in the event that they are widowed, at the same level enjoyed by those covered by the improved Scheme under the 1973 and 1978 rules. On these grounds, the applicants argue that the Commission ’ s decision in Coke and others v. the United Kingdom (application no. 38696/97, admissibility decision of 9 September 1998) was based upon a misunderstanding of the disadvantages faced by the applicants falling within “Group A” as described in that case.

The Court recalls the consistent case-law of the Convention organs under Article 34 of the Convention and its predecessor, the old Article 25 of the Convention, which provides that an individual application under the Convention must be made by a person who claims to be a victim of a violation of a Convention right or rights. It notes that the applicants are not complaining about how the Scheme affects, or may affect, their wives, but rather about how it has affected themselves. However, given the conclusions reached below the Court considers that it is not necessary to determine whether or not the applicants can claim to be “victims” for the purposes of Article 34.

2. Article 1 of Protocol No. 1 to the Convention

Article 1 of Protocol No. 1 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 Court recalls that the Convention does not as such guarantee a right to a State pension or to similar State-funded benefits. However, where a right to such benefits based on a contributory scheme is provided for in domestic legislation, such right may be treated as a pecuniary right for the purposes of Article 1 of Protocol No. 1 so as to render applicable that provision ( Gaygusuz v. Austria judgment of 16 September 1996, Reports 1996-IV, §§ 39-41). The Court further recalls that, in the Gaygusuz case itself, the applicant had satisfied all the statutory pre-conditions for obtaining the emergency assistance in question, including the making of contributions to the unemployment fund, save that of being of Austrian nationality.

The applicants in Group One complain that their widows are, or will be, entitled only to a one-third pension under the Scheme because, although they married whilst the applicants were still in service, the applicants retired before the 1973 rules were introduced. They argue that they enjoy, as part of their terms of engagement, the expectation of receiving a pension under the Scheme following their retirement, both for themselves and for their widows. They submit that this expectation is a “possession” for the purposes of Article 1 of Protocol No. 1 to the Convention in light of the abatements of pay which they have suffered by virtue of the Scheme. They maintain that the limits placed by the Scheme upon the pension rights of their widows amount to an unlawful interference with that possession contrary to Article 1.

The Court notes that the wives of the applicants falling within Group One are receiving, or will in the event of widowhood receive, a service pension based on one third of their husbands ’ service pensions. This right is unaffected by the provisions of the 1973 rules. The applicants and their wives have no right under the rules to a higher pension since the applicants retired prior to 31 March 1973 and were thus not eligible under the terms of the rules themselves. Nor did they have any claim amounting to a legitimate expectation that, on widowhood, the applicants ’ wives would be entitled to a pension in an amount higher than one third of their husband ’ s service pension. Accordingly, the Court finds that, insofar as the applicants falling within Group One had pecuniary rights amounting to possessions for the purposes of Article 1 of Protocol No.1 to the Convention, the facts disclose no interference with those rights.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4 of the Convention.

The applicants in Group Two complain that their widows are not, or will not be, entitled to a service pension because these applicants retired before the 1978 rules were introduced and married following their retirement. They advance the same arguments in relation to Article 1 of Protocol No. 1 to the Convention as were advanced by the applicants in Group One.

In contrast to the position in the above-mentioned Gaygusuz case, the pre-conditions under the Scheme for the grant of a service pension to the applicants ’ wives in the event of widowhood were never satisfied in the present case since the applicants retired before the 1978 rules were introduced and since they married following their retirement. Nor, in these circumstances, did the applicants or their wives have a claim amounting to a legitimate expectation that the wives would become eligible for a pension under the Scheme in the event of widowhood. Accordingly, the Court finds that the applicants falling within Group Two had no “possessions” within the meaning of 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 35 § 3 of the Convention.

The applicants in Group Three complain that their widows will be entitled only to a restricted service pension. This is because they married after retirement but retired very soon after the 1978 rules were introduced and therefore did not have sufficient time in service following the coming into force of the 1978 rules to build up significant contributions to their widows ’ pensions. They also advance the same arguments in relation to Article 1 of Protocol No. 1 to the Convention as were advanced by the applicants in Group One.

The Court notes that the applicants made contributions to the Scheme for their future wives for as long as they were able, following the coming into force of the 1978 rules. The amount of the pensions to which their wives will become entitled in the event of their deaths will therefore reflect the amount of the contributions made by the applicants. The applicants and their wives have never had an expectation that they would be entitled to any more than that amount. Accordingly, the Court finds that, insofar as the applicants falling within Group Three had pecuniary rights amounting to possessions for the purposes of Article 1 of Protocol No.1 to the Convention, the facts disclose no interference with those rights.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

3. Article 14 of the Convention

All of the applicants complain under Article 14 of the Convention that the calculation under the Scheme of their wives ’ service pension entitlements in the event of their deaths, based as it is upon the date of marriage or the date of retirement, discriminates against them as compared with servicemen in an analogous position who married or retired on different dates.

Article 14 provides as follows:

“The enjoyment of the rights and freedoms set forth in [the] 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.”

The Court recalls that, according to its established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions, and to this extent is autonomous, there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see the Abdulaziz , Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, § 71). The Court further recalls that not every difference of treatment in the enjoyment of the rights and freedoms guaranteed by the Convention will amount to a violation of Article 14. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction ( Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, p.1507, § 72).

The Court notes that, in the case of the applicants in Group Two, it finds their complaint under Article 1 of Protocol No. 1 to be incompatible with the provisions of the Convention. However, having regard to the close link between the complaints made by the applicants in each of the three groups, the Court considers it appropriate to examine the complaints of all the applicants under Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1.

The Court observes that, in making provision for the future payment of service pensions to servicemen and to their widows, national authorities are in principle permitted to set conditions governing entitlement to such pensions and, in particular, to restrict such entitlement to those who are still in service at the time of introduction of the new provisions, and to fix the level of entitlement by reference to the period of service completed following introduction of the relevant provisions.

The Court finds in the present case that, insofar as the applicants in Groups One and Two may be considered to be in an analogous situation to those who were still in service at the date of introduction of the relevant rules, the differences in treatment under the Scheme may be reasonably and objectively justified, the conditions for entitlement to service pensions being neither arbitrary nor unreasonable.

Similarly, insofar as the applicants in Group Three may be considered to be in an analogous situation to those who have remained in service for a longer period after the introduction of the 1978 rules, the difference in treatment under the Scheme may be reasonably and objectively justified, the conditions for entitlement to the enhanced pensions being neither arbitrary nor unreasonable.

The Court accordingly finds no appearance of a violation of Article 14 of the Convention in respect of the applicants in any of Groups One, Two or Three. It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

M. O ’ Boyle M. Pellonpää Registrar President

Annex

No

NAME

DATE OF BIRTH

ADDRESS

1NEILL

Dominic Fitzgerald

09.12.1921

Okehampton

2INVERARITY

George Arnold

23.09.1919

Shoreham-by-Sea

3BARTHELMAS

David Walter

13.05.1921

Aldeburgh

4MAUD

John Michael

22.12.1925

Constantine

5HILLEN

Reginald Guy

26.04.1917

Norwich

6FRANCIS

John Douglas

19.01.1931

Bembridge

Isle of Wigh

7JOHNSON

John Malcolm

19.06.1933

Newton-le-Willows

8STEELE

Arthur George

02.10.1923

Bournemouth