JOINT PARTLY DISSENTING OPINION OF JUDGES PINTO DE ALBUQUERQUE AND BOÅ NJAK

1 . To our regret, we cannot agree with the majority that there has been no violation of Article 14 in conjunction with Article 8 of the Convention. After finding Article 8 to be applicable in the present case, the majority correctly establish that the applicant found himself in a situation comparable to a situation of a detained woman having a child younger than twelve months and that there exists difference in treatment between the two categories. However, we cannot subscribe to the majority ’ s conclusion that there exists objective and reasonable justification for such difference in treatment.

2 . According to the well-established case law of this Court, differences based exclusively on sex require “very weighty reasons”, “particularly serious reasons” or, as it is sometimes said, “particularly weighty and convincing reasons” by way of justification (see, for example, Van Raalte v. the Netherlands, 21 February 1997, § 39 in fine, Reports of Judgments and Decisions 1997 ‑ I; Petrovic v. Austria, 27 March 1998, § 37, Reports 1998 ‑ II; Stec and Others v. the United Kingdom ( dec. ) [GC], nos. 65731/01 and 65900/01 , § 52, ECHR 2005 ‑ X; and Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09 , § 77, ECHR 2013 (extracts), and the references cited in that judgment). More particularly, the Grand Chamber has emphasised “that the advancement of the equality of the sexes is today a major goal in the member States of the Council of Europe and that very weighty reasons would have to be put forward before such a difference in treatment could be regarded as compatible with the Convention (see Burghartz v. Switzerland, 22 February 1994, § 27, Series A no. 280 ‑ B, and Schuler- Zgraggen v. Switzerland, 24 June 1993, § 67, Series A no. 263). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex” (see Konstantin Markin v. Russia [GC], no. 30078/06 , § 127, ECHR 2012 (extracts)). We find it of relevance for the present case that the Court has also observed that contemporary European societies have moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men ’ s caring role has gained recognition (ibid., § 140). Furthermore, as the Court noted in Petrovic v. Austria (cited above, para . 38), that while being aware of the differences which may exist between mother and father in their relationship with the child, it started from the premise that so far as taking care of the child is concerned, both parents are “similarly placed”.

3 . In the light of the Court ’ s jurisprudence emphasizing the equality of both parents when taking care of the child is at stake and requiring particularly serious reasons to justify any differences in treatment based on sex, we find it hard to share the majority ’ s view that the national authorities enjoy wide margin of appreciation when it comes to questions of penal policy ( para . 72 of the judgment), this in turn justifying difference in treatment in the present case. Criminal law policy choices must be rational and their rationale is under the Court ’ s supervision. Regardless to the width of this margin in general, it is framed by human rights and fundamental freedoms as protected by the Convention and the Court ’ s jurisprudence. Consequently, it may not override the mentioned well-established requirement of particularly serious reasons for any difference of treatment on the basis of sex. What is more, we are of the view that the Court is bound to make an autonomous assessment of the existence of such particularly serious reasons, whereas it falls to the Respondent State to discharge the burden of proof place upon it and justify the difference in treatment (see mutatis mutandis DH v. Czech Republic..., para . 188).

4 . We believe that in this particular case, the Romanian Government failed to put forward particularly serious reasons to justify difference in treatment between women and men in the applicant ’ s situation. According to the Government, the disparate treatment of both relevant categories is in the protection of the best interest of the child. They also make reference to the particular links between a mother and a child during the first months after the birth. Bearing this in mind, it is apparent that the pertinent piece of Romanian legislation, namely Article 453 para . 1 b) of the Code of Criminal Procedure, aims at the protection of children under the age of twelve months. In light of the Court ’ s case law, emphasizing the importance of fathers from the child ’ s earlier age, it is difficult to see how this difference in treatment can serve the best interest of children, let alone how this best interest could provide objective and reasonable justification for excluding fathers ex lege from the circle of beneficiaries of the provision.

5 . The majority emphasize additional reasons for the difference in treatment, namely protection of women against sexual violence, abuse and sexual harassment in the penitentiary environment as well as the need to protect pregnant women and mothers. Leaving aside the fact that these arguments were not advanced by the Government it is hard to accord them any relevance. We are strongly convinced that the motherhood in general and women in the vulnerable period after giving birth in particular would not be protected to any lesser extent if the law provided for a suspension of sentence for fathers of newborn children, if their particular circumstances so warrant. The risks associated with changing the law to allow men, as well as women, to petition for a stay in their sentences to care for their infant children are very low. As the government argued on a number of occasions, judges will take into account the totality of the circumstances and grant stays only when they are warranted. Changing the law to allow men the same opportunities as women would not provide an automatic suspension of their sentence to all fathers who have children younger than one (just as the current version of the law does not provide an automatic postponing to mothers). It simply gives men and women the right to make an argument as to why their sentences should be postponed. Ensuring both fathers and mothers have an opportunity to make their case before a judge poses no serious risks or threats to the judicial system or to broader goal of fairness in the Romanian society. If anything, it will do the opposite. It will ensure both men and women are seen as primary caregivers and that fathers are equally important in the lives of their children. This will indirectly contribute to promoting, rather than hindering, gender equality in Romania.

6 . Bearing this in mind, we see no particularly weighty and serious reasons to justify the difference in treatment. To the contrary, we are of the opinion that it would be precisely the leveling up of the benefits awarded to convicts of both sexes that would, in the light of the present case, serve to the fullest the proclaimed best interests of a child. Because leveling down is thus not permitted and would be ill advised, and no good reason exists for creating such a separation, a violation of Article 14 should be found and the law should be changed in such a way that it permits men and women to petition for a suspension in sentence due to child-care responsibilities.

7 . Therefore, we believe that there has been a violation of Article 14 in connection with Article 8 of the Convention.