Постановление Европейского суда по правам человека от 07.10.2010 «Дело Константин Маркин (Konstantin Markin) против России» [англ.]

ent;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 7 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Christos ROZAKIS
President

{Soren} NIELSEN
Registrar

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Kovler is annexed to this judgment.

C.L.R.

S.N.

DISSENTING OPINION OF JUDGE KOVLER

I regret that I am unable to join the majority in finding a violation of Article 14 of the Convention in conjunction with Article 8 on account of the alleged discrimination in the exercise of the right to respect for family life of the applicant, an active serviceman.
First of all, I had serious doubts as to the applicant's victim status, taking into account the specific circumstances of the case (especially the fact that he was eventually granted parental leave until the third birthday of his youngest son and even received financial aid - see paragraph 16 of the judgment). Moreover, the Military Court held that the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care (see paragraph 12). Accepting the applicant's arguments that the matter was not effectively resolved at the domestic level within the meaning of Article 37 § 1 (b) of the Convention, the Court, in its conclusions on the admissibility of the case, gives the impression that the "issues on public-policy grounds in the common interest" are more important than the specific and delicate nature of the case (see paragraphs 39 - 40). I agreed with this approach by voting for the admissibility of the case on the basis that it would facilitate the expression of different views on the merits.
My second difficulty is with the application of the general principles of the Court's case-law concerning discrimination. I share the view of some scholars that the concept of non-discrimination is itself rather ambiguous (see, for example, X. Bioy, "{L'ambiguite} du concept de non-discrimination", in F. Sudre and H. Surrel (eds.), Le droit {а} la non-discrimination au sens de la Convention {europeenne} des droits de l'homme, Brussels, 2008, pp. 51 - 84). The Court has held on many occasions that not every difference in treatment will amount to a violation of Article 14: "It must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment and that this distinction is discriminatory" (see paragraph 43, with relevant references). The question is: does "preferential treatment" of servicewomen in the army as regards entitlement to parental leave amount to discrimination of male military personnel? What about the famous "positive discrimination" in the context of this case? I did not find a clear answer to my question in the present judgment.
"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 no reasonable relationship of proportionality between the means employed and the aim sought to be realised" states the judgment, citing the case of Stec and Others (see paragraph 43 for the reference). In my opinion the arguments advanced by the Russian Constitutional Court are more convincing and realistic than those of the Court.
The core argument of the Constitutio

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