DISSENTING OPINION OF JUDGE VEHABOVIĆ JOINED BY JUDGE PACZOLAY

I regret that I am unable to subscribe to the view of the majority that there has been no violation of Article 1 of Protocol No. 1 in conjunction with Article 14 of the Convention.

I disagree with the outcome in this case mainly for two reasons:

1. I cannot accept the position that the Chamber took in paragraph 75 of the judgment, accepting the justification for the difference in treatment on the sole basis of the way in which the two groups had sustained their injuries.

2. I cannot agree with the argument that the difference in treatment was a reasonable consequence of their “distinct positions and the corresponding undertakings”. The judgment does not reflect this difference. It appears from both laws regulating the rights and benefits of the two groups that the war veterans enjoy far more benefits than the other group (including a driver to take war veterans from point A to point B as well as spa treatments, and so on).

It would be acceptable if the difference in treatment were reflected only in financial benefits but not if it is reflected in the level of medical care. My opinion is that “moral debt” has nothing to do with such a difference in the level of medical care provided to the two groups. As an example, a person in the other group could be a police officer who sustained injuries on duty. I disagree that there is no moral debt, for instance, towards a police officer who sustained injuries while on duty. Consequently, I disagree with the fair balance test and its outcome.

[1] Case “relating to certain aspects of the laws on the use of languages in education in Belgium ” (merits), 23 July 1968, § 10, Series A no. 6.

[2] Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV.

[3] Khamtokhu and Aksenchik v. Russia [GC], nos. 60367/08 and 961/11 , § 64, 24 January 2017; Fábián v. Hungary [GC], no. 78117/13, § 113, 5 September 2017; X and Others v. Austria [GC], no. 19010/07 , § 98, ECHR 2013; and Konstantin Markin v. Russia [GC], no. 30078/06 , § 125, ECHR 2012 (extracts).

[4] Cited above.

[5] H. Kelsen, Théorie pure du droit , trad. Ch. Eisenmann, 1962.

[6] C. Perelman, « Egalité et valeurs », L’Egalité , vol. 1, Travaux du centre de philosophie du droit de l’ULB, 1971.

[7] The approach may be compared to the idea developed in Stubbings and Others v. the United Kingdom , 22 October 1996, Reports of Judgments and Decisions 1996-IV, according to which it is possible for the State to make a distinction according to the intentional or unintentional nature of the damage suffered by crime victims and to apply differential treatment to them accordingly.

[8] Burden v. the United Kingdom [GC], no. 13378/05, ECHR 2008.

[9] Ibid., §§ 62-65.

[10] In ruling out any specific reference to the different legal frameworks, the author of the concurring opinion seems to go a bit far. However, he very pertinently emphasises that one should not lose sight of the main element that made the situations comparable.

[11] This criticism seems to have been shared: Judge Borrego Borrego, in his dissenting opinion, considered that the Grand Chamber “restricted itself to a description of the facts, saying for example that two sisters are linked by consanguinity or that a civil partnership has legal consequences ” and did not give an answer to the applicants. The question was “whether or not granting inheritance-tax exemption to same-sex couples in a civil partnership but not to the applicant sisters, who are also a same-sex couple, is a measure proportionate to the legitimate aim pursued.” Some commentators have criticised the Court’s “ art consommé de l’esquive ”, see C. Picheral, “ L'incertaine détermination des différences de traitement ”, in F. Sudre and H. Surrel (eds.), Le droit à la non-discrimination au sens de la CEDH , Bruylant, 2008.