PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA

Like the majority, I see no reason to question the respondent Government’s statement that the Deputy Military Prosecutor’s visit to Mr Markin’s home in the late evening of 31 March 2011 was related to the applicant’s proceedings before the Court. I share the conclusion that this visit caused intimidation and fear to the applicant and his family .

Unlike the majority, however, I am unable to dismiss the applicant’s complaints under Article 34 because “there [was] no evidence that th [is] visit ...and the circumstances attending it were calculated to induce the applicant to withdraw or modify his complaint or otherwise interfere with the effective exercise of his right of individual petition, or indeed had this effect” .

In my view this reasoning shifts the burden of proof in the context of States parties’ negative obligations, by requiring an individual to “prove beyond doubt” that the authorities’ action was intended, or “calculated”, to prevent the free exercise of the right of individual petition guaranteed by the Convention. Under Article 34 States parties undertake “not to hinder in any way the effective exercise” of this right – even if it is exercised in an abusive manner. In such circumstances the authorities should be required to provide a plausible explanation for the purpose of any contacts with applicants with regard to pending Convention proceedings and to demonstrate that their conduct was lawful and necessary in the pursuit of a legitimate aim in the public interest. I am not persuaded by the respondent Government’s explanations in this regard. I also fail to understand the relevance to the Convention proceedings of facts concerning the applicant’s subsequent personal life – the fact that he remarried in 2008 and had a fourth child with Ms Z. later that year, or that he left the army in 2010 for health reasons. In fact the Government did not rely on any of the prosecutor’s findings before the Grand Chamber. In these circumstances, the late visit and questioning “related to the Convention proceedings” remain unwarranted. Regardless of whether there was an intention to dissuade Mr Markin from pursuing his complaints before the Court, he was informed that the visit was related to them and it was carried out in a manner which clearly could have been perceived as threatening, thus causing feelings of intimidation and fear to him and his family. This suffices to render the authorities accountable for a failure to respect their undertaking “not to hinder in any way the effective exercise” of the right of individual petition as guaranteed by Article 34 of the Convention.

I am also unable to adhere to the majority’s view that the absence of an achieved effect of withdrawal or amendment of complaints may be regarded as indicative for the extent to which the authorities succeeded, or failed, in meeting this undertaking. Such a criterion risks making the exercise of the right of individual petition dependent on the threshold of tolerance by applicants to any form of pressure. In other words, it would depend on whether they are able or sufficiently courageous to sustain the resulting intimidation without withdrawing or modifying their complaints. I am not convinced that this approach would reflect the spirit of Article 34 correctly.

PARTLY DISSENTING OPINION OF JUDGE NUßBERGER JOINED BY JUDGE FEDOROVA

I wholeheartedly support the decision of the majority in the present case. However, I cannot agree with the Court’s finding under Article 41. As a violation of Article 8 in conjunction with Article 14 has been found, it is fair to grant the applicant costs and expenses. But in the specific circumstances of the case I am opposed to an award for non-pecuniary damage in addition.

The case is about equality between men and women. Without any reasonable justification Russian law treats servicemen and servicewomen differently for the purposes of parental leave. It is therefore a question of principle for the Court to react to such an inequality, which touches upon the fundamental values enshrined in the Convention.

However, whilst it is true that in the present case the applicant was treated differently from women, that does not mean that his treatment was worse in every respect. On the contrary, even though he had to wait for a year before being granted parental leave and even though he received only an ex gratia payment and not a payment based on law, it is obvious that ultimately the financial aid he was awarded (5,900 euros) was far greater than what a servicewoman would have received in his place (see paragraph 45 of the judgment: 40% of the salary for only a year and a half with a minimum amount of 37.50 euros per month).

In a case about equality and inequality it is impossible not to take into account this important factor. Therefore, I find it somewhat paradoxical to award 3,000 euros for non-pecuniary damage in addition to the ex gratia payment the applicant has already received. Even if he has suffered distress and frustration as a result of discrimination on grounds of sex, this has been largely compensated for by the ex gratia payment. The applicant’s “net gain” might be misunderstood as an invitation to fight for social benefits in Strasbourg.

Therefore I am of the opinion that the Chamber’s approach was much wiser. In the present case, the finding of a violation would have constituted in itself sufficient just satisfaction.