CO NCURRING OPINION OF JUDGE DEDOV

It is always difficult for the Court to assess a case under Article 14 of the Convention. There is no consistency or clarity in its methodology. In the case of Slivenko v. Latvia ([GC], no. 48321/99, 9 October 2003), the Court found a violation of Article 8 because there were no formal obstacles to prevent the applicants from becoming permanent residents of Latvia; the applicants could not be regarded as endangering the national security of Latvia by reason of belonging to the family of a former Soviet military officer (see § 127 of the Slivenko judgment). The applicants in that case also relied on Article 14, complaining that they had been removed from Latvia as members both of the Russian ‑ speaking ethnic minority and of the family of a former Russian military officer. Those arguments, based on different treatment of an ethnic minority, were much stronger, and the Court considered that it was not necessary to rule on the applicants ’ complaints under Article 14 of the Convention taken in conjunction with Article 8, in view of its finding of a violation of Article 8 of the Convention.

At the same time, in the case of A.H. and Others v. Russia (no. 6033/13, 17 January 2017), the Court examined the complaint (concerning different treatment of US adoptive parents and those from other countries) under Article 14 of the Convention taken in conjunction with Article 8, ignoring the absolute margin of appreciation in the sphere of international adoption. The Court, without providing any explanation, preferred to examine the complaint under Article 14, which is not autonomous, chose to exploit a stronger line of argument – including discrimination on the ground of nationality – and then held that it was not necessary to examine the core complaint under Article 8. In this area the Court must be careful to avoid double standards.

It is well established that Article 14 complements the other substantive provisions of the Convention and the Protocols thereto. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. The judges should take this principle into account and establi sh where is the core complaint ‑ under the substantive provision or under Article 14. In the case of Biao v. Denmark ([GC], no. 38590/10, 24 May 2016), the core complaint concerned the Danish authorities ’ refusal to grant the applicant and his wife family reunion in Denmark on the basis of the attachment requirement under national law. The attachment requirement was thus the principal issue of the case. The applicant insisted that the authorities had taken their decision as a result of an unjustified difference in treatment between Danish nationals of Danish ethnic origin and Danish nationals of other ethnic origin. In the Biao case, it could be accepted that the discrimination issue under Article 14 was more important and it was reasonable not to examine the case solely under Article 8. The dissenting judges took different positions as to whether it was necessary to examine Article 8 if there would be no violation of Article 14 in conjunction with Article 8. Judge J ä derblom preferred not to examine the application separately under Article 8, whereas judges Villiger , Mahoney and Kj ø lbro considered it necessary to examine the application under Article 8 taken alone. However, in their view, it was clear that there had been no violation of Article 8 of the Convention, since the female applicant had no ties with Denmark and their family life in Denmark was not feasible.

Equally, the Court may not examine the complaint if it is premature, for example, if the domestic authorities have not issued the final decision. In the present case, we have both criteria in place, which enabled the Court to examine the complaint under Article 14 on the merits: the complaint was based on the provisions of national law establishing different treatment for commercial landlords and band clubs; although the relevant provisions will become effective as from 2028, they were enacted in 2008, and thus the national authorities have already expressed their views on the issue. Since the rent legislation in Malta broadly distinguished between residential and commercial premises, the difference in treatment could therefore be justified due to the wide margin of appreciation and the principle of subsidiarity. It is not for the international judge, but for the national authorities, to solve social problems, including those arising from the automatic renewal of lease agreements.

Earlier in the judgment, the Court found a violation of Article 1 of Protocol No. 1 because of a disproportionate interference with the property rights of owners renting premises to band clubs (see the conclusions in paragraphs 65 and 66 of the judgment). The Court has found that a disproportionate and excessive burden was imposed on the applicants, arising mainly from the extremely low rent of these premises. Since Article 1 of Protocol No. 1 and Article 14 refer to different problems (economic and social) and to different issues (low rent and obligatory renewal of the lease), an examination by the Court of their merits is justified in the present case.

JOINT PART LY DISSENTING OPINION OF JUDGES KELLER, SERGHIDES AND SCHUKKING

1. W e voted against point 3 of the operative part because, in particular, we cannot follow the reasoning in paragraph 83 of the judgment; we would have preferred a more cautious approach on the Court ’ s part concerning the issue whether the Maltese law in question was discriminatory.

2. Where the same set of facts or circumstances give s rise to claims under both Article 14 and Article 1 of Protoco l No. 1, the Court has repeatedly found it “unnecessary to examine ” the former claim (see, for example, Cyprus v. Turkey [GC], no. 25781/94, 10 May 2001; Herrmann v. Germany [GC], no. 9300/07, 26 June 2012; Willis v. United Kingdom , no. 36042/97, 11 June 2002; Schneider v. Luxembourg , no. 2113/04, 10 July 2007; Alexandrou v. Turkey , no. 16162/90, 20 January 2009; Andreou Papi v. Turkey , no. 16094/90, 22 September 2009; Strati v. Turkey , no. 16082/90, 22 September 2009; Vrahi mi v. Turkey , no. 16078/90, 22 September 2009; and Olymbiou v. Turkey , no. 16091/90, 27 October 2009).

3. Thus, this Court has held that “having regar d to its findings under Article 1 of Protocol No. 1, ... there is no need to give a separate ruling on the applicant ’ s complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1” ( see Herrmann v. Germany , § 105 ). In our view, the issue in this case with regard to A r ticle 14 is analogous , and must follow this line of cases.

4. While Article 14 has no independent existence apart from the other provisions of the Convention, it plays an “ important autonomous role by complementing the other normative provisions of the Convention and the Protocols: Article 14 ... safeguards individuals ... from any discrimination in the enjoyment of the rights and freedoms set forth in those other provisions” ( see Marckx v. Belgium, no. 6833/74, § 32, 13 June 1979).

5. Finding that a violation of Article 14 has not occurred is a conclusion that is entirely distinct from holding that it is unnecessary to examine the issue .