Elderly English sisters, living together in their family home and fearing that inheritance taxes might force the survivor to sell if one dies, have narrowly lost their claim that this situation violates their basic human rights under the European Convention.

But Maltese judge Giovanni Bonello was one of the European Court of Human Rights judges who dissented with the sentence.

On 14 December, a seven-member chamber of the European Court of Human Rights, voting 4-3, ruled that the United Kingdom had not violated the sisters’ rights when it legislated to provide same-sex couples with relief from inheritance tax by registering as civil partners, but refused to extend similar relief to cohabiting

siblings.

Joyce and Sybil Burden, aged 88 and 80 respectively, have been living together in a home built on land inherited from their parents for the past 30 years. The land and house have so appreciated in value that they fear if one dies first, the other would have to sell in order to meet the rather stiff tax that the UK imposes on inherited property. Surviving legal spouses and civil partners are not subject to inheritance tax in such circumstances.

Until December 2005, the Burden sisters had no grounds for a discrimination complaint, since all unmarried cohabitants faced the same concern and the European Convention allowed governments to grant special rights and exemptions to married couples.

But on 5 December last year, the UK’s new Civil Partnership Law came into effect, allowing same-sex couples to form partnerships having the same inheritance and tax status as married couples, providing a basis for the Burden sisters to mount a discrimination claim.

However, a bare majority of the European court concluded that in matters of taxation, government parties to the Convention have a wide “margin of appreciation”, a term meaning the right of member governments to exercise discretion in managing their own affairs. Without engaging in any real analysis, the court majority treated this as a matter beyond the reach of the Convention.

But three dissenters were not persuaded. Judges Giovanni Bonello of Malta and Lech Garlicki of Poland criticised the majority for failing to provide a “full explanation” as to why it gave the British policy the discretion it did. They also criticised the British government’s failure to articulate any logical reason other than loss of revenue for failing to account for situations like the Burden sisters, arguing that “once the

legislature decides that a permanent union of two persons could or should enjoy tax privileges, it must be able to justify why such a possibility has been offered to some unions while continuing to be denied to

others.”

And the dissenters pointed out that many of the justifications for recognising same-sex couples also applied to cohabiting elderly siblings.

“It is very important,” wrote Bonello and Garlicki, “to protect such unions, like any other union of two persons, from financial disaster resulting from the death of one of the partners.”

The other dissenting judge, Stanislav Pavlovschi of Moldova, was even harsher in condemning the court’s judgment. Exhibiting striking empathy for the Burden sisters, he wrote: “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.”