DISSENTING OPINION OF JUDGE POPOVIĆ

Much to my regret I could not follow the majority of colleagues in this case. My disagreement is not based on the arguments the majority developed, but mostly on the assessment of facts. It concerns two different aspects. One of these pertains to Article 8 in conjunction with Article 14 of the Convention, whereas the other is related to Article 34 of the Convention.

I. Article 8 in conjunction with Article 14 of the Convention

(1) The applicant stated he had divorced his wife by way of mutual agreement on 6 October 2005. He alleged that his community of life with his ex-spouse had ceased immediately afterwards, thus obliging him to raise their three children alone. He also submitted to the Court that his wife had left for another city several days after the divorce, which in fact occurred only six days after she had given birth to their third child. On the basis of such submissions the majority found that the community of life of the former spouses had effectively ceased.

At this point my finding runs counter to that of the majority, for it seems that many significant elements of the common life of the former spouses persisted, despite the fact that they had agreed to divorce. These elements are the following.

(a) The applicant’s ex-spouse allegedly signed an employment contract in the city to which she purported to have moved. However the contract has never been duly registered with the authorities. It remains unclear whether it has ever produced proper effects for the purposes of labour law.

(b) The applicant’s ex-spouse has never obtained a passport stamp confirming the divorce.

(c) Although it was stipulated in the divorce agreement that the ex-wife should pay child allowances to the applicant, she has never done so. The applicant has not reacted to this behaviour of his former wife in any possible way. He has neither demanded payments from her, nor brought any action against her, as he was entitled to do according to the law, on the basis of the divorce agreement.

(d) The fact that the applicant’s ex-spouse represented him in a case before a court of law in an unrelated matter clearly shows the persistence of their mutual understanding, of which the applicant denied the existence exclusively in respect of matters concerning his application to this Court.

(e) The applicant continued to live in the city in which he had lived with his ex-spouse and did not change address after the divorce, for he remained in the apartment that had previously been shared with his ex-wife’s parents, who continued living with the applicant and his children.

(f) It is beyond any doubt that the applicant’s lodging in the same apartment as his ex-spouse’s parents has never been interrupted, and this is a fact that in many important aspects has maintained an unaltered environment for his children, even though their mother had allegedly left for another city.

(g) The events concerning the applicant’s divorce started on 6 October 2005, whereas on 1 April 2008 the applicant remarried his former spouse.

(h) The applicant’s fourth child was born in August 2010. The child’s mother is the lady the applicant had divorced on 6 October 2005 and whom he remarried on 1 April 2008.

On the grounds of the above-mentioned facts I find that, despite a formal divorce, the community of life between the applicant and the mother of his four children has never been substantially interrupted.

Regretfully, this point was not elucidated by the majority, although it warranted the Court’s attention, as it had to be considered whether the applicant’s behaviour was not guided by the idea of acting in fraudem legis domesticae .

The circumstances mentioned above, taken in their entirety, thus lead me to find that the applicant in the present case did not have victim status.

(2) Even assuming that the majority were justified in finding that the applicant nevertheless had victim status, he should be considered to have lost it for the following reasons.

(a) The applicant obtained leave from service to an extent which almost equalled his demand.

(b) Apart from the fact that the applicant was indeed granted leave from service, he was awarded by the authorities a considerable amount of money on an ex gratia basis, corresponding to more than six months’ worth of salary.

For the reasons I have thus set out, I find the Government’s objection as to the applicant’s victim status under Article 8 of the Convention to be justified and in my view the objection should be sustained. Consequently I consider that under Article 37 § 1 (b) of the Convention the matter has been resolved, and this should in my opinion have led to the striking out of the application from the Court’s list in so far as it concerned Article 8 of the Convention, taken together with Article 14.

II. Article 34 of the Convention

(3) The second aspect of my disagreement with the majority is related to its finding that there has been no violation of Article 34 of the Convention in the present case. The Contracting Parties are obliged by that provision not to hinder in any way the effective exercise of the right of individual application to the Court.

The Grand Chamber held in Akdivar and Others v. Turkey (16 September 1996, § 105, Reports of Judgments and Decisions 1996 ‑ IV) that, owing to their vulnerable position, applicants to this Court must not be exposed to “behaviour on the part of the authorities ... amounting to a hindrance in respect of the applicants in breach of [the above-mentioned] provision”.

I consider the conduct of the authorities vis-à-vis the applicant in the present case to be in violation of Article 34 of the Convention, as interpreted in the light of the rule in Akdivar that I have just quoted. This opinion is based on the fact that the applicant was visited one evening at his home, where he lived with his family, by an official belonging to the Military Prosecutor’s service. The purpose of the visit, according to the Government’s submissions to the Court, consisted in clarifying certain facts. However, the whole set of circumstances concerning this particular event leads me to conclude that there has been a violation of Article 34 of the Convention. The reasons for such a conclusion are the following.

(a) The official’s visit was not announced in advance. Its abrupt character had an effect of surprise and put pressure on the applicant.

(b) The Government failed to provide any evidence that the applicant had been summoned to make a statement in order to clarify the facts concerning his family situation, instead of providing clarifications at home upon a surprise visit by a State official.

(c) The official’s visit had no grounds in the domestic law of the respondent State. It was instigated by the respondent Government’s Agent before this Court and this clearly demonstrates its connection to the application lodged with the Court, accordingly attracting the protection of Article 34 of the Convention.

(d) The prosecutor in question, during his visit, warned the applicant that if he failed to produce certain documents, which he was by no means under a legal duty to do, the investigation would be conducted by way of questioning the applicant’s neighbours.

These are the elements which I find sufficient to prove that the applicant has been hindered in the exercise of his right of individual application to the Court under Article 34 of the Convention. I am therefore of the opinion that there has been a violation of Article 34 of the Convention in the present case.

[1] . This principle was expressed for the first time by the Court in the Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 23 July 1968, p. 33, § 9, Series A no. 6). In other words, Article 14 also applies when “the subject matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed” ( National Union of Belgian Police v. Belgium , 27 October 1975, § 45, Series A no. 19) or the measures complained of are “linked to the exercise of a right guaranteed” by the Convention ( Schmidt and Dahlström v. Sweden , 6 February 1976, § 39, Series A no. 21). The Court has added that the notion of discrimination within the meaning of Article 14 includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention ( Abdulaziz, Cabales and Balkandali v. the United Kingdom , 28 May 1985, § 82, Series A no. 94).

[2] . Such as different tax-exemption regimes for residents and non-residents ( Darby v. Sweden , 23 October 1990, §§ 33-34, Series A no. 187), different emergency-assistance regimes for nationals and non-nationals ( Gaygusuz v. Austria , 16 September 1996, § 50, Reports of Judgments and Decisions 1996 ‑ IV), different contributory obligations for unmarried childless men aged 45 or over and unmarried childless women of the same age ( Van Raalte v. the Netherlands , 21 February 1997, § 43, Reports 1997-I), different pension-entitlement regimes of married women and married men ( Wessels-Bergervoet v. the Netherlands , no. 34462/97, § 54 , ECHR 2002-IV), different pension-entitlement regimes for former servicemen ( Bucheň v. the Czech Republic , no. 36541/97, §§ 74-76, 26 November 2002) and different pension-entitlement regimes for nationals and non-nationals ( Andrejeva v. Latvia [GC], no. 55707/00, §§ 88-91, ECHR 2009).

[3] . This right has been construed upon Article 3 ( Ä°lhan v. Turkey [GC], no. 22277/93, § 87, ECHR 2000 ‑ VII; KudÅ‚a v. Poland [GC], no. 30210/96, §§ 91-94, ECHR 2000 ‑ XI; Mouisel v. France , no. 67263/01, §§ 40-42, ECHR 2002 ‑ IX; Paladi v. Moldova [GC], no. 39806/05, § 71, 10 March 2009; V.D. v. Romania , no. 7078/02, §§ 94-99, 16 February 2010; and Slyusarev v. Russia , no. 60333/00, § 43, 20 April 2010).

[4] . This right has been based on Article 8 ( Glass v. the United Kingdom , no. 61827/00, §§ 74-83, ECHR 2004 ‑ II; TysiÄ…c v. Poland , no. 5410/03, §§ 107-08, ECHR 2007 ‑ I; and A, B and C v. Ireland [GC], no. 25579/05, § 245, ECHR 2010) or on Article 2 ( Oyal v. Turkey , no. 4864/05, § 72, 23 March 2010).

[5] . This right has been derived from Article 8 ( López Ostra v. Spain , 9 December 1994, § 51, Series A no. 303-C; Guerra and Others v. Italy , 19 February 1998, §§ 57- 60, Reports 1998-I; Hatton and Others v. the United Kingdom [GC], no. 36022/97, §§ 96-99, ECHR 2003-VIII; and Georgel and Georgeta Stoicescu v. Romania , no. 9178/03, §§ 61-62, 26 July 2011) or from Article 2 ( Öneryıldız v. Turkey [GC], no. 48939/99, § 90, ECHR 2004 ‑ XII). In a case of conflicting social rights, the Court has even decided that the State’s positive obligation to protect the environment prevails over the obligation to protect a minority’s way of life in the relevant regulatory planning framework ( Chapman v. the United Kingdom [GC], no. 27238/95, §§ 96, 113-15, ECHR 2001 ‑ I).

[6] . The failure to provide proper housing has been censured under Article 3 ( Moldovan and Others v. Romania (no. 2) , nos. 41138/98 and 64320/01, §§ 107 (g) and 110, ECHR 2005 ‑ VII, and M.S.S. v. Belgium and Greece [GC], no. 30696/09, §§ 263-64, ECHR 2011) or under Article 8 ( Marzari v. Italy (dec.), no. 36448/97, 4 May 1999, with regard to an “individual suffering from a severe disease”, and Stanková v. Slovakia , no. 7205/02, §§ 60 ‑ 62, 9 October 2007, which finds the reasoning of the Constitutional Court “convincing”). The Court has even been prepared to assess public policies on housing from the perspective of their impact on the rights of owners ( James and Others v. the United Kingdom , 21 February 1986, § 46, Series A no. 98; Mellacher and Others v. Austria , 19 December 1989, § 45, Series A no. 169; Spadea and Scalabrino v. Italy , 28 September 1995, § 29, Series A no. 315-B; and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 224-25, 239, ECHR 2006 ‑ VIII).

[7] . The Court considered that a “wholly insufficient” pension raised an issue under Article 3 ( Larioshina v. Russia (dec.), no. 56869/00, 23 April 2002, and Budina v. Russia (dec.), no. 45603/05, 18 June 2009) or under Article 2 ( Kutepov and Anikeyenko v. Russia , no. 68029/01, § 62, 25 October 2005, and Huc v. Romania and Germany (dec.), no. 7269/05, § 59, 1 December 2009).

[8] . The Court derived the right to collective negotiations foreseen by Article 6 of the European Social Charter from the freedom to form trade unions, as provided for in Article 11 of the Convention, in spite of the fact that the respondent State had not accepted Article 6 when it ratified the Charter ( Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 153 and 154, ECHR 2008). This approach was reiterated in Enerji Yapi-Yol Sen v. Turkey (no. 68959/01, §§ 24, 31-32, 21 April 2009), which acknowledged the right to strike under Article 11 of the Convention.

[9] . Such as procedures for the determination of sickness allowances ( Feldbrugge v. the Netherlands , 29 May 1986, § 40, Series A no. 99), social security allowances based on an industrial-accident insurance scheme ( Deumeland v. Germany , 29 May 1986, § 75, Series A no. 100) or reversionary pensions ( Massa v. Italy , 24 August 1993, § 26, Series A no. 265-B). The positive obligation to establish a judicial system which ensures effective protection of a social right has already been determined by the Court ( Danilenkov and Others v. Russia , no. 67336/01, § 136, ECHR 2009).

[10] . See, for instance, Renucci, Traité de Droit Européen des Droits de l’Homme , Paris, 2007, pp. 492-93. In the same vein there is the criticism according to which, since there is no clear definition of a right which “falls within the ambit” of a provision of the Convention, no dividing line has been drawn between those cases which should be dealt with under Article 14 of the Convention and those that should be examined in accordance with Article 1 of Protocol No. 12, and therefore any right set forth by national law could artificially be considered to “fall within the ambit” of the Convention itself (for example, Tomuschat, “Social rights under the European Charter on Human Rights”, in Breitenmoser (Hrsg.), Human Rights, Democracy and the Rule of Law: Liber Amicorum Luzius Wildhaber , Zürich, 2007, p. 862-63, Sudre, “La protection des Droits Sociaux par la Cour Européenne des Droits de l’Homme: Un Exercise de « Jurisprudence Fiction »?”, in Revue Trimestrelle des Droits de l’Homme , 55, 2003, p. 770, and Lucas-Albertini, Le Revirement de Jurisprudence de la Cour Européenne des Droits de l’Homme , Brussels, 2008, p. 326).

[11] . See on the social content of the Convention, among others, Pellonpää, “Economic, social and cultural rights”, in MacDonald/Matscher/Petzold (eds.), The European system for the protection of human rights , Dordrecht, 1993, pp. 859-66, Costa, “La Cour Européenne des Droits de l’Homme et la Protection des Droits Sociaux”, in Revue Trimestrelle des Droits de l’Homme , 21, 2010, pp. 212-16, and Eichenhofer, “Der sozialrechtliche Gehalt der EMRK-Menschenrechte”, in Hohmann-Dennhardt/Masuch/ Villiger, Festschrift für Renate Jaeger, Grundrechte und Solidarität, Durchsetzung und Verfahren , 2011, pp. 628-35.

[12] . See Airey v. Ireland , 9 October 1979, § 26, Series A no. 32. Cases involving financial implications for the State are not necessarily off limits for the Court, since the implementation of basic civil rights does imply public costs. The provision of State-paid legal and interpretative assistance is a good example. In fact, civil and social rights are interdependent and interrelated. There is no watertight division into two separate sets of human rights. In this sense, see, for instance, the preamble to the European Social Charter, the preamble to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Vienna Declaration and Programme of Action, proclaimed by the World Conference on Human Rights (A/CONF.157/23, 12 July 1993, § 5), and Recommendation 1415 of 23 June 1999 of the Parliamentary Assembly of the Council of Europe.

[13] . See Travaux préparatoires 1, p. 194.

[14] . The notion of minimum core obligations as developed by the United Nations Committee on Economic, Social and Cultural Rights must be taken in account. In its General Comment No. 3, the Committee was “of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights [was] incumbent upon every State party.” (see General Comment No. 3, UN doc. E/1991/23, § 10, confirmed by General Comment No. 12, UN doc. E/2000/22, § 17, General Comment No. 13, E/C.12/1999/10, § 57, General Comment No. 14, UN doc. E/C.12/2000/4, §§ 43 ‑ 47, and General Comment No. 15, UN doc. E/C.12/2002/11, §§ 37-40, General Comment No. 17, E/C.12/GC/17, § 39, General Comment No. 18, E/C.12/GC/18, § 31, General Comment No. 19, E/C.12/GC/19, § 59, and General Comment No. 21, E/C.12/GC/21, § 55). The Limburg Principles on the Implementation of the ICESCR (UN Doc. E/CN.4/1987/19) and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (UN Doc. E/C.12/2000/13) have further clarified States’ obligations in the field of economic and social rights. In its Resolution 1993/14, the Commission on Human Rights urged States to “consider identifying specific national benchmarks designed to give effect to the minimum core obligation to ensure the satisfaction of minimum essential levels of each of the [economic, social and cultural] rights”. In its Annual Report of 1994, the Inter-American Commission on Human Rights declared that “ the obligation of member States to observe and defend the human rights of individuals within their jurisdictions, as set forth in both the American Declaration and the American Convention, obligates them, regardless of the level of economic development, to guarantee a minimum threshold of these rights ”. The Committee of Ministers of the Council of Europe (Recommendation R (2000) 3 of 19 January 2000), as well as the European Committee of Social Rights, also defended the need for legal protection of a minimum level of certain social rights (for the position of the Committee, see Mikkola, Social Human Rights in Europe , Porvoo, 2010, pp. 316-17). Finally, renowned international law scholars have supported this approach, such as Alston, “ Out of the abyss: the challenges confronting the new U.N. Committee on Economic, Social and Cultural Rights ”, in Human Rights Quarterly , 9, 1987, pp. 352-53, Craven, The International Covenant on Economic, Social and Cultural Rights: A perspective on its development , Oxford, 1995, pp. 141-43, Liebenberg, “Adjudicating social rights under a transformative Constitution”, in Langford (ed.), Social rights jurisprudence, Emerging trends in international and comparative law , Cambridge, 2008, pp. 89-91, Fredman, Human Rights Transformed, Positive rights and positive duties , Oxford, 2008, pp. 84-87, Tushnet, Weak Courts, Strong Rights , Princeton, 2009, pp. 242-47, and Kerdoun, “La Place des Droits Économiques, Sociaux et Culturels dans le Droit International des Droits de l’Homme”, in Revue Trimestrelle des Droits de l’Homme , 22, 2011, p. 511.

[15] . Stressing this point, Alexy, in A Theory of Constitutional Rights , Oxford, 2002, p. 344, writes: “it is precisely in times of crisis that even a minimal constitutional protection of social rights seems indispensable”. The exact same thought may be found in Alston/Quinn, “The nature and scope of States Parties’ obligations under the International Covenant on Economic, Social and Cultural Rights”, in Human Rights Quarterly , 9, 1987, p. 164: “Endeavours to ensure respect for human rights must be pursued in bad times as well as the good times. Indeed, it is in periods of extreme hardship, whether of an economic or political nature, that human rights guarantees assume their greatest relevance”, and Dankwa/Flinterman/Leckie, “Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights”, in Human Rights Quarterly , 20, 1998, p. 717: “Every State that has accepted legal obligations … agrees that under all circumstances, including periods characterized by resource scarcity, basic minimum obligations and corresponding essential rights remain in place”.

[16] . For the assessment of the “reasonableness” of policy choices on social rights, see the recent cases of Valkov and Others v. Bulgaria , nos. 2033/04, 19125/04, 19475/04, 19490/04, 19495/04, 19497/04, 24729/04, 171/05 and 2041/05, §§ 91-97, 25 October 2011 (not final); Bah v. the United Kingdom , no. 56328/07, §§ 37 and 50, ECHR 2011; and Schuitemaker v. the Netherlands (dec.), no. 15906/08, 4 May 2010; and those mentioned above on the right to housing. The principle of the judiciability of social rights in European human rights law is shared by universal human rights law (see CESCR General Comment No. 3, cited above, §§ 4-5, General Comment No. 9, E/C.12/1998/24, § 10, the Limburg Principles, cited above, § 19, and the Maastricht Guidelines, cited above, § 22) and Inter-American human rights law (Inter-American Court of Human Rights, Acevedo Buendia et al . v. Peru , 1 July 2009, §§ 102-03, and Inter-American Commission on Human Rights, Report on Admissibility and Merits No. 38/09, 27 March 2009, §§ 140 ‑ 47) and African human rights law (African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center for Economic and Social Rights (SERAC) v. Nigeria , Communication No. 155/96, 27 May 2002, §§ 61, 62, 64, 68, and Purohit and Moore v. Gambia , Communication No. 241/2001, 29 May 2003, §§ 81-83).

[17] . See Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 23 July 1968, p. 34, § 10, Series A no. 6 (“certain legal inequalities tend only to correct factual inequalities”), Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, §§ 51 and 66, ECHR 2006-VI, D.H. and Others v. the Czech Republic [GC], no. 57325/00, §§ 175, 181-82, ECHR 2007-IV, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 147-48, 182, ECHR 2010, Andrle v. the Czech Republic , no. 6268/08, § 48, 17 February 2011, and Oyal v. Turkey , no. 4864/05, 23 March 2010. The same approach has been adopted by the European Committee of Social Rights ( International Association Autism-Europe (IAAE) v. France , Complaint no. 13/2002, decision of 4 November 2003, § 53), following in the footsteps of some national courts, such as the German Constitutional Court (see the ground-breaking decision of 18 June 1975, BVerfGE 40, 133, on a constitutional right to a “ menschenwürdigen Existenzminimums ”), the Swiss Federal Court (see the leading case of V. v. Einwohnergemeinde X. und Regierungsrat des Kantons Bern , decision of 9 June 2006, on an implied constitutional right to “ conditions minimales d’existence ”) and, as part of a transformative Constitution, the Portuguese Constitutional Court (see decisions 39/1984, 330/1989, 148/1994, 62/2002 and 509/2002 on the constitutional guarantee of a minimum “social income“ and of a “social minimum adequate for a decent life” in the public sector with regard to health and education). This European standard corresponds to the universal human rights standard (see CESCR, General Comment No. 3, cited above, § 12, “Statement by the Committee: An evaluation of the obligation to take steps to the ‘maximum of available resources’ under an optional protocol to the Covenant”, E/C.12/2007/1, 10 May 2007, § 4, the Limburg Principles, cited above, § 39, and the Maastricht Guidelines, cited above, § 20) and the Inter-American human rights criterion ( Pueblo Bello Massacre v. Colombia , judgment of 31 January 2006, §§ 111, 123, Comunidad Indígena Yakye Axa v. Paraguay , judgment of 17 June 2005, §§ 68, 167-68, and Villagrán-Morales et al. v. Guatemala , 19 November 1999, §§ 144, 191).

[18] . This confluence of criteria has been admitted by the CESCR, in its “Statement by the Committee”, cited above, § 8 (f), and the Constitutional Court of South Africa in Government of the Republic of South Africa and Others v. Grootboom and Others , Case CCT 11/00, 4 October 2000, §§ 33, 36, 44, Minister of Health and Others v. Treatment Action Campaign and Others , Case CCT 8/02, 5 July 2002, §§ 34, 79, and in Mazibuko and Others v. City of Johannesburg and Others , CCT 39/09, 8 October 2009, § 67, and the Joint Committee on Human Rights of the House of Lords, Twenty-Ninth Report: Economic and social rights, 10 August 2008, §§ 172, 181. It should be noted that this confluence does not produce perfectly overlapping criteria, since the “reasonableness” (or proportionality) test does not cover exclusively minimum obligations. There may be cases where minimum obligations are met, but States are still failing to provide “reasonable” (proportionate) social policy measures.

[19] . Goldberg v. Kelly , 397 U.S. 254, 1970.

[20] . Renowned legal scholars have pointed precisely in the direction of the protection of social rights foreseen by the European Social Charter under the European Convention on Human Rights (Sudre, cited above, pp. 761-66, and Arandji-Kombé, “Quelques perspectives pour les 10 prochaines années?”, in Olivier De Schutter (coord.), The European Social Charter: A Social Constitution for Europe , Brussels, 2010, p. 159).

[21] . See, among others, Cools/Fiva/Kirkebøen, Causal effects of paternity leave on children and parents , Discussion Papers No. 657, Statistics Norway, 2011; Rege/Solli, The Impact of Paternity Leave on Long-term Father Involvement , Cesifo Working Paper no. 3130, 2010; Lamb, The Role of the Father in Child Development , Hoboken, 2010; Liu/Skans, “The duration of paid parental leave and children’s scholastic performance”, in The B.E. Journal of Economic Analysis and Policy , 2010, vol. 10; Han/Ruhm/Waldfogel, “Parental leave policies and parents’ employment and leave taking”, in Journal of Policy Analysis and Management , 2009, Vol. 28, No. 1; Gupta/Smith/Verner, Child Care and Parental Leave in the Nordic Countries: A Model to Aspire to? , IZA Discussion Paper No. 2014, 2006; Tanaka/Waldfogel, “Effects of Parental Leave and Work Hours on Fathers’ Involvement with their Babies”, in Community, Work and Family , 10, 2007, No. 4; Tanaka, “Parental Leave and Child Health Across OECD Countries”, in The Economic Journal , 2005, 115, pp. 7-28; Ruhm, “Parental Employment and Child Cognitive Development”, in Journal of Human Resources , 2004, vol. 39, pp. 155-92; Jaumotte, Labour force participation of women: empirical evidence on the role of policy and other determinants in OECD countries , OECD Economic Studies, 2004; Tamis-Lemonda/Cabrera, Handbook of Father Involvement: Multidisciplinary Perspectives , Mahwah, NJ, 2002; Ermisch/Francesconi, “Family Structure and Mothers’ Behaviour and Children’s Achievements”, in Journal of Population Economics , 2001, pp. 249-70. Parental leave also facilitates upward social mobility for children coming from low-income families (Esping-Andersen, “Untying the Gordian Knot of Social Inheritance”, Research in Social Stratification and Mobility , 21, 2004, pp. 115-39, and Waldfogel, Social Mobility, Life Chances and the Early Years , CASE paper 88, 2004).

[22] . Resolution 1274 (2002) of the Parliamentary Assembly of the Council of Europe on Parental leave urged member States to guarantee the principle of paid parental leave including adoption leave. The same message was sent in Recommendation 1769 (2006) on the need to reconcile work and family life, where the Assembly stressed that parental leave should be made available to both fathers and mothers, “taking special care to ensure that men are actually able to use it”. Committee of Ministers Recommendation No. R (96) on reconciling work and family life and Recommendation Rec(2007)17 on gender-equality standards reiterated the same right, with the possibility of taking the leave on a part-time basis and of sharing it between parents. Finally, Recommendation Rec(2010)4 on the human rights of members of the armed forces stated clearly the right of servicemen and servicewomen to enjoy maternity and paternity leave.

[23] . The Court of Justice of the European Union has already decided that clauses of the framework agreement on parental leave annexed to the Council Directive can be relied on by individuals before a national court (case C-537/07, judgment of 16 July 2009, Gomez Limon , and, on the nature of this right, Henion/Le Barbier-Le Bris/Del Sol, Droit Social Européen et International , Paris, 2010, pp. 326-27).

[24] . General comment No. 16 (2005), E/C.12/2005/4, 11 August 2005, § 26.

[25] . It is standing case-law of the Court to acknowledge the existence of positive obligations for the States to promote and guarantee the effective enjoyment of family life, going back to the Marckx case ( Marckx v. Belgium , 13 June 1979, § 31, Series A no. 31). This obligation may consist in providing for an adequate legislative framework which promotes in practical and effective terms the right to respect for family life, as was firstly affirmed in the case of X and Y v. the Netherlands (26 March 1985, §§ 23, 28-30, Series A no. 91). In regard to the bond between the child and his or her parents, the Court has even admitted that “the State must act in a manner calculated to enable that tie to be developed and legal safeguards must be established that render possible as from the moment of birth or as soon as practicable thereafter, the child’s integration in his family” ( Iglesias Gil and A.U.I. v. Spain , no. 56673/00, § 49, ECHR 2003 ‑ V). More specifically, the Inter-American Court of Human Rights has affirmed the State’s obligation to adopt the “the measures required for children’s existence to develop under decent conditions” (Advisory Opinion OC-17/2002 of 28 August 2002, § 80, and point 7 of the Opinion).

[26] . This has also been the firm position of the European Committee of Social Rights, as shown by the respective reports on the situation in the contracting States with regard to Article 27 § 2 of the Charter.

[27] . International liability may be engaged for State omission with regard to private actors’ conduct contrary to economic and social rights (for example, African Commission on Human and Peoples’ Rights, SERAC v. Nigeria , cited above, Inter-American Commission on Human Rights, Maya Indigenous Communities of the Toledo District v. Belize , report No. 40/04, Case 12.053, and Committee on the Elimination of Discrimination against Women, A.T. v. Hungary , 2/2003, and Human Rights Committee, Länsmann v. Finland no. 2 , Communication No. 671/1995).

[28] . Social rights are usually viewed as corresponding to obligations of conduct, the State being bound to take all reasonable legislative and administrative measures in order to achieve the progressive realisation of the right within available resources and without any time constraint. But the existence of social rights corresponding to obligations of result is also accepted. In its very first decision, the European Committee of Social Rights decided that the respect for the minimum labour age of 15 years required the de facto suppression and the effective punishment of all the practices contrary to this standard ( International Commission of Jurists v. Portugal , Complaint No. 1/1998, § 32). Later, the Committee considered that the mere act of approval of legislative measures to provide handicapped people with education and professional orientation was not enough, since States should ensure that these legislative measures do have a concrete and practical effect. When the implementation of a social right was “exceptionally complex and particularly expensive”, some flexibility was admitted, but the social right should be implemented in “reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources” ( International Association Autism-Europe (IAAE) v. France , cited above, § 53, and European Roma Rights Centre v. Bulgaria , Complaint No. 31/2005, § 37). In particular, a time-limit for the introduction of adequate legislative changes may be appropriate in certain cases, as the Court allowed in Šekerović and Pašalić v. Bosnia and Herzegovina , nos. 5920/04 and 67396/09, 8 March 2011. In exceptional cases, an obligation of result may be imposed on the State for an indefinite period of time ( Oyal , cited above).

[29] . A social right may be annulled if it was granted on an erroneous basis ( Iwaszkiewicz v. Poland , no. 30614/06, § 55, 26 July 2011) or a false statement of the beneficiary ( Rasmussen v. Poland , no. 38886/05, § 71, 28 April 2009) or by a totalitarian regime for the personal benefit of a member of the ruling party (see, mutatis mutantis , Tesař and Others v. the Czech Republic , no. 37400/06, § 73, 9 June 2011), but the annulment may not deprive the beneficiary of his or her basic means of subsistence ( Moskal v. Poland , no. 10373/05, §§ 73-75, 15 September 2009).

[30] . For an assessment of retrogressive legislation, see Valkov and Others , cited above, and for retrogression resulting from a collective agreement, see Aizpurua Ortiz and Others v. Spain , no. 42430/05, 2 February 2010. The European approach is substantively close to the universal human rights standard (International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion , I.C.J. Reports 2004, § 136, CESCR General Comment No. 3, cited above, § 9, General Comment No. 13, cited above, § 45, General Comment No. 14, cited above, §§ 29, 32, General Comment No. 17, cited above, § 27, General Comment No. 18, cited above, § 21, General Comment No. 21, cited above, §§ 46, 65, “Statement by the Committee”, cited above, 10 May 2007, §§ 9-10, Committee on the Elimination of Racial Discrimination, Ms .L.R. et al. v. Slovakia , Communication No. 31/2003, CERD/C/66/D/31/2003, § 10.7, and among legal scholars, Craven, quoted above, pp. 129 ‑ 34) and the Inter-American human rights standard (Inter-American Commission, report no. 27/09, case 12.249, merits, Jorge Odir Miranda Cortez et al. v. El Salvador , 20 March 2009, § 106, and Inter-American Court, Five Pensioners Case , judgment of 28 February 2003, § 147).

[31] . Of particular interest in this regard is the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights, Vienna, 25 June 1993 (cited above, Part I, chap III, § 18). In the same vein, the Maastricht Guidelines (cited above, § 8).

[32] . “Quelques aumônes que l’on fait à un homme nu dans les rues, ne remplissent point les obligations de l’État, qui doit à tous les citoyens une subsistance assurée, la nourriture, un vêtement convenable, et un genre de vie qui ne soit point contraire à la santé”, Montesquieu, De l’Esprit des lois , Livre XXIII, chap. XXIX, 1758.