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 receive d 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 ’ ambiguité du concept de non ‑ discrimination”, in F. Sudre and H. Surrel (eds.), Le droit à la non ‑ discrimination au sens de la Conv ention européenne des droits de l ’ homme , Brussels, 2008, pp. 51-84). The Court has held o n 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 rel evant references). The question i s: 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 reali s ed” 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 Constitutional Court in support of the limitation of the rights of military personnel was that military service imposed specific demands in so far as it required uninterrupted performance of duties and that, consequently, the taking of parental leave by servicemen on a large scale would have a negative effect on the fighting power and operational effectiveness of the armed forces. Given the special (armed forces) context of the case and the wide margin of appreciation left to States in matters of national security, I am prepared to accept the Constitutional Court ’ s argument as providing objective and reasonable justification for the difference in treatment between military personnel and civilians as regards entitlement to parental leave.

Further, as regards the fact that the exclusion from entitlement to parental leave concerns only servicemen, while servicewomen are entitled to take such leave, I agree that in principle there is no objective or reasonable justification for different treatment of men and women in this sphere in civilian life. However, the conditions and demands of military life are by their very nature different from those of civilian life and certain restrictions on rights which could not be imposed on civilians are acceptable in the army (see the case-law cited in paragraphs 51-52). The Constitutional Court held that women were few in number in the armed forces and that for that reason the taking of parental leave by them would have no impact on the fighting capacity of the army. It was therefore a policy choice, motivated by women ’ s special social role as mothers, to grant them entitlement to parental leave on an exceptional basis. The authorities ’ direct knowledge of their society and its needs means that they are in principle better placed than the international judge to appreciate what is in the public interest. This is a common meaning of the principle of subsidiarity. In such a case the Court would generally respect the legislature ’ s policy choice unless it is “manifestly without reasonable foundation” (see, mutatis mutandis , Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 XIII). In my opinion it cannot be said that the decision to grant parental leave to servicewomen, while at the same time denying that entitlement to servicemen, is “manifestly without reasonable foundation”. I would respect the legislature ’ s decision, which has moreover been approved by the Constitutional Court .

Finally, it is also relevant that it was the applicant ’ s free choice to pursue a military career and that, by signing a military service contract, he accepted a system of military discipline that by its very nature implied the possibility of placing on the rights and freedoms of members of the armed forces limitations incapable of being imposed on civilians (see, for similar reasoning, Kalaç v. Turkey , 1 July 1997, § 28 , Reports 1997 ‑ IV ).

In view of the foregoing, I consider that the difference in treatment between servicemen and all other parents – namely, servicewomen and civilian men and women – as regards entitlement to parental leave was reasonably and objectively justified.

My last observation concerns the application of Article 46 of the Convention. I would suggest that, unlike other structural problems concerning Russia such as the non-enforcement of judgments of national courts, supervisory review or conditions of pre-trial detention, this isolated case does not impose on the respondent State a legal obligation to implement appropriate general measures – even taking into account the fact that the Court merely recommends such measures, as it states in paragraph 67.