Zubczewski v Sweden: margin of appreciation as a blank check

An observer of the Strasbourg case-law should always remember to include the inadmissibility decisions in her research. The changes in the Court’s procedures, introducing committees of three judges and judges sitting alone, have made this more difficult (those decisions are not on HUDOC), yet at the same time have resulted in a situation in which the inadmissibility decisions that figure on HUDOC are already a selection, since the most interesting ones are still likely to be dealt with by a chamber of seven. Inadmissibility decisions can be frustrating , because the Court’s reasoning in such cases tends to be quite succinct. This is particularly the case if you do not agree with the Court’s finding that a case is ‘manifestly ill-founded’.

This was my experience recently with the case of Zubczewski v Sweden. As a result of his marriage at the age of 63, this gentleman found his pension reduced with approximately 50 Euros per month. The reasoning behind this is the idea that persons who live together have lower expenses per head than persons living alone. Yet as Zubczewski’s wife did not have any income, this reasoning did not apply to his case. Total expenses of the household had increased while the pension had decreased. He claimed that the lack of an exception for his situation was discriminatory.

I do not spontaneously sympathize with men who invoke the economic dependency of their wives as a source of discrimination. Yet the Court’s reasoning in this case left me unsatisfied.

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Strasbourg dances around the Cypriot question

Recently, the Strasbourg Court declared inadmissible a series of applications by Greek-Cypriot applicants claiming a violation of their property rights due to the continued occupation of the Northern part of Cyprus by Turkey.

The eight admissibility cases were the first such applications to be examined by the Court following the pilot-judgment Xenides-Arestis v. Turkey (app. no. 46347/99, 2006) in which the Chamber had found a violation of articles 8 and 1 Protocol 1. In Xenides-Arestis v. Turkey the Court had instructed Turkey to introduce a remedy which secures genuinely effective redress for the Convention violations.

In the decisions of Demopoulos and others v. Turkey and 7 similar cases, the Grand Chamber of the Court declared the applicants’ claims inadmissible due to non exhaustion of domestic remedies. The Grand Chamber was of the opinion that the amended Compensation Law, as enacted by the authorities of the “Turkish Republic of Northern Cyprus” (“TRNC”) following the pilot-judgment, provided an accessible and effective framework for redress. It came to this decision despite, inter alia, claims of a lack of subjective impartiality of the responsible body, the Immovable Property Commission (IPC), which features Turkish military personnel among its members, who are all appointed by the “TRNC” President.

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