DISSENTING OPINION OF JUDGE PAVLOVSCHI

This case confirms, yet again, the truth of the words uttered by Benjamin Franklin many, many years ago, to the effect that “nothing in this world is certain but death and taxes”. Practice shows that this statement is still valid, even in our 21st century.

There is a well-known opinion that all judicial decisions can, in theory, be split into four categories: (a) legal and fair; (b) illegal, but fair; (c) illegal and unfair; and (d) legal, but unfair.

In my view, the decision reached by the majority in this case may be placed in the fourth category. I am firmly convinced that a judicial decision, which represents, by its very nature, the highest expression of justice, cannot be unfair. Yet I have genuine difficulty in accepting the fairness of the judgment delivered in the case of Burden and Burden v. the United Kingdom .

Unfortunately, in reaching their conclusion that

“ ... the United Kingdom cannot be said to have exceeded the margin of appreciation afforded to it and that the difference of treatment for the purposes of the grant of inheritance tax exceptions was reasonable and objectively justified ... ” (see paragraph 61) ,

the majority failed to adduce any reason or argument for doing so. This circumstance prevents me from expressing my opinion concerning the legal aspects of the above conclusion.

Therefore, I will focus only on the issue of the general unfairness of this judgment.

In particular, this unfairness leads me to disagree with the judgment and prevents me from sharing the majority ' s opinion that there has been “no violation” in the instant case.

In my opinion, the decisive element in the case before us is the nature of the property belonging to the applicants, and their personal attitude to it.

Had assets purchased by the applicants during their co-habitation been at stake, I would have had no difficulty in accepting the majority ' s approach and, moreover, I would have readily agreed that part of such shared assets, inherited by a surviving sibling, could and should be considered as taxable property. In the case before us, however, we are faced with a qualit at ively different situation. The case concerns the applicants ' family house, in which they have spent all their lives and which they built on land inherited from their late parents. This house is not simply a piece of property - this house is something with which they have a special emotional bond, this house is their home.

It strikes me as absolutely awful that, once one of the two sisters dies, the surviving sister ' s sufferings on account of her closest relative ' s death should be multiplied by the risk of losing her family home because she cannot afford to pay inheritance tax in respect of the deceased sister ' s share of it.

I find such a situation fundamentally unfair and unjust. It is impossible for me to agree with the majority that, as a matter of principle, such treatment can be considered reasonable and objectively justified. I am firmly convinced that in modern society there is no “pressing need” to cause people all this additional suffering.