JOINT PARTLY DISSENTING OPINION OF JUDGES WOJTYCZEK AND PEJCHAL

For if the persons be not equal, their shares will not be equal; and this is the source of disputes and accusations, when persons who are equal do not receive equal shares, or when persons who are not equal receive equal shares (Aristotle, Nicomachean Ethics , book V, translated by F.H. Peters, London, Kegan Paul 1893, p. 145).

1. We respectfully disagree with the view of the majority that the Convention has been violated in respect of the second applicant. We recognise that the two applicants are in a very difficult personal situation, nonetheless we agree in substance with the approach of the Supreme Court of the United Kingdom in the instant case. Moreover, we have serious reservations concerning the majority’s reasoning which, we have to admit, we are not able to fully understand.

2. Litigation under the principles of equality and non-discrimination is very specific and differs in many respects from other fundamental rights cases. Legal scholarship, in one of the fundamental works on social justice, explains the reasons for this peculiarity in the following terms:

“From whatever side we approach the problem, we see that there is no way in which we can make judgment that a particular legal system excludes certain groups of citizens (or discriminates against them in the distribution of rights) on the basis of purely formal features of legal rules. We must [...] appeal to more substantive judgments about the value of the ends of those rules and the relevance of legal means to achieving those ends. We say that the law is equal because we believe that it is just and not the other way round. The illusion that equality before the law can be ascertained independently of the substantive justness of the law is well expressed in these words by Justice Jackson: ‘Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation’. [footnote omitted] But we had better realize that our opinions about equality in law are unavoidably determined by our opinions about what law is just (in terms irreducible to standards of legal equality) and not by some objective properties of this law.” (W. Sadurski, Giving Desert Its Due. Social Justice and Legal Theory , D. Reidel Publishing Company, Dordrecht-Boston-Lancaster 1985, p. 96)

3. The Court’s case-law has established a methodology for the application of Article 14, clearly inspired by the Aristotelian tradition. This settled approach may be summarised as follows (see Guberina v. Croatia , no. 23682/13, 22 March 2016, emphasis added):

“68. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or status , are capable of amounting to discrimination within the meaning of Article 14 (see Eweida and Others v. the United Kingdom , nos. 48420/10 and 3 others, § 86, ECHR 2013).

69. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see X and Others v. Austria [GC], no. 19010/07, § 98, ECHR 2013). However, not every difference in treatment will amount to a violation of Article 14. A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013; Weller v. Hungary , no. 44399/05, § 27, 31 March 2009; and Topčić-Rosenberg v. Croatia , no. 19391/11, § 36, 14 November 2013).

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71. The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007 ‑ IV, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 388, ECHR 2012). This is only the case, however, if such policy or measure has no ‘objective and reasonable’ justification, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality’ between the means employed and the aim sought to be realised (see S.A.S. v. France [GC], no. 43835/11, § 161, ECHR 2014).”

The established case-law further underlines the following points (see Thlimmenos v. Greece [GC] , no. 34369/97, ECHR 2000 ‑ IV):

“44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment, cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.

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46. The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.).”

The Court has also highlighted (in Kurić and Others v. Slovenia [GC], no. 26828/06, § 388, ECHR 2012) that:

“... in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 44, ECHR 2009).”

Under the well-established case-law, the application of Article 14 is a two-stage exercise. The first stage consists in identifying the class of persons in analogous, or relevantly similar, situations as well as the class of persons in relevantly different situations. This identification is necessarily based upon fundamental primary axiological choices and therefore entails a very broad judicial discretion.

The second stage is the test of “objective and reasonable” justification for either (i) differentiating between persons in similar situations or (ii) not differentiating between persons in significantly different situations. The justification is deemed objective and reasonable if the authorities pursue a “legitimate aim” and if there is a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. The answer to these questions requires a balancing of conflicting values. It is also based upon fundamental primary axiological choices and again entails a very broad judicial discretion.

We note, moreover, that in some cases the Court, while assessing the reasonable relationship of proportionality, examines the contested legislative measures in abstracto, looking at general issues, i.e. those concerning whole classes of persons affected (see for instance the judgment in Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 54-67, ECHR 2006 ‑ VI) while in other cases it also assesses the impact of the measures in concreto , i.e. by looking into the individual situation of the applicant (see for instance the judgment in Glor v. Switzerland , no. 13444/04, §§ 89 and 96, ECHR 2009).

4. The majority state the following in paragraph 94 (emphasis added):

“The Court concludes that in light of the above the applicants, having been treated in the same way as other recipients of Housing Benefit who were subject to a reduction in their Housing Benefit, were particularly prejudiced by that measure because their situation was significantly different for reasons of disability, as regards the first applicant, and gender, as regards the second applicant .”

The majority further point to two characteristic features of the two applicants: (1) they demonstrated that they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their status (paragraph 92) and (2) because of their vulnerable status the applicants were significantly less able than other Housing Benefit recipients to mitigate their loss by taking in tenants or by working (paragraph 93).

We note in this context that the majority do not explain clearly which characteristic is relevant for the purpose of identifying: (i) similar situations and (ii) significantly different situations. In other words, the judgment does not delimit with precision the class of persons which is treated similarly in spite of being in a different situation. If we correctly understand our colleagues, in the class of persons receiving Housing Benefit one has to distinguish between three sub-classes of persons: (i) persons with disabilities or disabled children who demonstrate a particular need to be able to remain in their specifically adapted homes, (ii) victims of gender-based violence who demonstrate a particular need to be able to remain in their specifically adapted homes, and (iii) all other persons entitled to Housing Benefit. The situation of sub-classes (i) and (ii) would be significantly different from sub-class (iii). Therefore – for the majority – legislation reducing Housing Benefit has not differentiated between persons in significantly different situations.

There is no doubt that persons with certain disabilities have legitimate special needs in respect of housing – needs exceeding those of an average, ordinary family. It is also evident that many victims of domestic violence require special protection and that a specially adapted home may to a certain extent provide such protection. However, all these legitimate special needs in respect of housing may be satisfied in different homes. In particular, it has not been shown that effective protection against a potential aggressor could not be offered in new accommodation. It is therefore difficult to agree with the assertion that “[i]n the case of the second applicant, loss of her home would risk her personal safety” (see paragraph 92). For these reasons, it is difficult to understand why a particular need to be able to remain in the same home is a special characteristic justifying enhanced protection under the Convention. The relevant characteristic for the purpose of the discrimination test in the instant case should rather be presented as the existence of legitimate special needs in respect of housing – needs exceeding those of an average, ordinary family. We note in this context that there may be individuals with legitimate special needs in respect of housing not belonging to sub-classes (i) and (ii). In our view, the assumption that all individuals belonging to sub-class (iii) are in a situation which is significantly different from that of individuals belonging to sub-classes (i) and (ii) is problematic.

5. In the above-quoted passage, the majority take, as their point of departure for the assessment of the second applicant’s case, the premise of gender-based differentiation. We note in this respect that there are numerous victims of domestic violence who were not affected by the impugned legislative measures. Firstly, domestic violence affects all social classes and not all victims of domestic violence are on low incomes. Secondly, not all victims of domestic violence apply for protection under the Sanctuary Scheme. Thirdly, not all victims of domestic violence who receive Housing Benefit and who have been given protection under the Sanctuary Scheme will be forced to move out. Fourthly, not all victims of domestic violence insist on remaining in the same accommodation. On the contrary, many victims of domestic violence prefer to leave the place where the domestic violence occurred. The old accommodation reminds them of stressful moments and they want to start a whole new life somewhere else. Fifthly, no evidence based upon statistical data was provided which would show that the impugned legislation affects mainly victims of gender-based violence or, more generally, that it affects, for instance, a clearly higher percentage of women than men (compare the decision in Hoogendijk v. the Netherlands , no. 58641/00, 6 January 2005).

On the other hand, the new legislation affects many individuals who are not victims of domestic violence and who have legitimate special needs in respect of housing, such as disabled persons, persons with strong psychological difficulties to adapt to any new housing, families with several children, etc.

We also note that domestic violence does not always significantly impact upon the capacity of the victims to work and to earn money. Not all victims of domestic violence are significantly less able than other Housing Benefit recipients to mitigate their loss by working.

For all these reasons, we cannot agree with the view that the second applicant was particularly prejudiced because her situation was significantly different for reasons of gender . The impugned legislation appears to be gender-neutral. Following the path adopted by the majority, one could also say that the same legislation affects a numerically significant class of low-income persons belonging to ethnic minorities, so there would be a prima facie case for racial discrimination. It also affects a numerically significant class of low-income immigrants so there would be a prima facie case for anti-immigrant bias.

6. The second applicant, in her submissions, expressed strong anxiety about the idea of having to move to another home. In addition, the minority judges in the domestic courts had taken into consideration the fact that the she might have difficulty adapting to a new living environment (see paragraph 29).

We would like to note here briefly that we do not have at our disposal any scientific evidence which would show that particular difficulties with adapting to a new living environment are a typical consequence of domestic violence.

7. According to the above-presented methodology of the Court, after identifying a situation in which, without objective and reasonable justification, there has been a failure to treat differently persons whose situations are significantly different, it is necessary to answer the question whether there is an “objective and reasonable” justification for such a failure. For this purpose it is necessary to examine whether the failure to treat the applicant differently from other persons pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

In cases concerning a reduction in social security benefits, in order to answer these questions it is necessary to assess, among other elements, the actual economic burden placed upon the persons affected as well as the impact of the savings upon the budget. It is therefore necessary to take into consideration, in particular, the financial situation (income bracket) of the persons affected, the existence of other sources of income and – if any – their amount, the range of amounts of Housing Benefit provided, the financial needs to be met (in this case the range of rental payments), the price of satisfying the same need on the market (in this case the amounts of rent payable on the free market). The majority have failed to establish all these elements. Without all this data the proportionality assessment becomes irrational. In our view, there are no sufficient reasons to conclude that the British authorities failed to achieve a reasonable relationship of proportionality between the means employed and the aim sought to be realised.

8. In performing the proportionality assessment, the majority take into consideration the aims of the Sanctuary Scheme. In their view, its main aim is to enable the victims of domestic violence to stay in the same accommodation. In other words, it is the perpetrator of domestic violence who should move out whereas the victim should have the possibility to remain.

We agree with this assertion. There is, however, one important caveat to be added. The right of the victim to stay in the same home is not absolute. It is always granted rebus sic stantibus . The underlying implicit premise is that the victim should not be removed from accommodation as a result of domestic violence, but in some circumstances she may have to leave for other – legitimate – reasons. The victim may stay in the same accommodation as long as she is validly entitled to stay there. The legislation does not protect against other factors which may force someone to move, such as a loss of income, the termination of the lease agreement by the landlord, the fact that a person is no longer eligible for social housing, etc. Domestic violence does not entail reinforced protection of the tenant in relations with the landlord. The real aim of the legislation – interpreted in the broader context of all relevant provisions – appears to be that of enabling victims of domestic violence who benefited from protection in Sanctuary Schemes to remain in their own homes safely as long as they are not forced to move out for other reasons.

9. The majority stress the fact that two different pieces of legislation followed two legitimate but conflicting aims . In their view, “[t]he Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely” (see paragraph 104). This allegedly erroneous prioritisation is presented as the main reason for finding a violation of the Convention.

The majority seem to attach particular importance to the argument that enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely is the actual purpose of the law-maker. The relevant question is rather whether enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely is a value protected under the Convention. What could be relevant is the weight of this value, as well as the weight of the conflicting values, attributed to them within the axiological system underlying the Convention. In our view, the Convention remains silent on this question. In any event, the majority do not explain why the Convention would require the prioritisation, over other aims, of the aim of enabling victims of domestic violence who benefitted from protection in Sanctuary Schemes to remain in their own homes safely.

In our view, the fact that two different pieces of legislation follow conflicting aims is irrelevant for the solution of the instant case. We note in this respect that the legislator pursues numerous aims which are often in conflict, as they cannot be fully achieved simultaneously. A conflict of aims pursued by the legislator is a typical situation. These conflicts are resolved in practice by specific and detailed legal provisions which express the preferences of the legislator in respect of specific situations. The impugned measures reflect the trade-off (between two conflicting aims) which the British legislator found most appropriate.

Moreover, if one piece of legislation initially has an objective O1 and a subsequent piece of legislation has an objective O2 which is in apparent conflict with objective O1, the latter will usually be understood as a redefinition of the initial objective O1 into a new objective O1bis, which is the resultant of both pieces of legislation read in a systemic way.

10. The majority do not define with precision the class of persons who have been affected by differentiation contrary to Article 14. If we understand this part of the reasoning correctly, the impugned measures are considered disproportionate in so far as they concern persons who fulfil cumulatively the following criteria: (i) receive Housing Benefit; (ii) benefit from protection under the Sanctuary Scheme and (iii) live in a home with “extra” bedrooms. The impugned measures are considered proportionate in so far as they concern all other persons who demonstrated that they had a particular need to be able to remain in their specifically adapted homes for reasons directly related to their status .

We would like to note here that the first applicant is in a very difficult position. The disability of her child requires accommodation which is adapted to the child’s situation. Her family has legitimate special needs in respect of housing. The adaptation of their home to the disability is probably more costly than the application of the Sanctuary Scheme. We do not see any real reason to differentiate between the two applicants. In our view, a similar reasoning based upon erroneous prioritisation could have been applied to the first applicant. It would be equally justified – or equally unjustified – to say that the Government have not provided any weighty reasons to justify the prioritisation of the aim of the present scheme over that of enabling disabled persons to remain in their own homes .

11. Judicial independence, be it at national or international level, means that there should be no interference of the executive and legislative branches of government in the judicial process. The implicit assumption is that of reciprocity. Judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.

As explained above, the principles of equality and non-discrimination entail a very broad discretionary power and thus also a risk of undue interference in the sphere of political choices. The instant case is another illustration of this danger.

Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts. As a result of this, the broad discretionary judicial power under these principles may be exercised quite frequently. The problem becomes even more acute when differentiation concerns the distribution of public resources. A review of non-discrimination in the distribution of resources easily turns into decision-making about the distribution of those resources. We are not persuaded that judicial proceedings are the most appropriate forum for such decision-making. Rational allocation of public (or more precisely tax-payers’) money requires a comprehensive view, taking into account the totality of available funds and all legitimate needs. Given the scarcity of available resources and immensity of legitimate needs, not all of them can be satisfied and very painful trade-offs are unavoidable. Judicial proceedings in discrimination cases necessarily bring a very fragmentary and limited view of the question: they focus on a specific area, while all other areas of social life are completely overlooked. In our view, the judge and in particular the European judge, has to be extremely cautious in exercising his or her discretion in equality and discrimination cases, especially if their gist lies in an allegedly deficient allocation of financial resources. The majority, by addressing the issue of prioritisation of legislative aims in complete isolation from the Convention values, leave the area of judicial enforcement of Convention rights and enter the field of policy-making. Not only our views about what law is just, but also our views about what this Court’s mandate is, are very different.