PARTLY DISSENTING OPINION OF JUDGE SPANO

I.

1. It is clear that the applicant was wronged by her dismissal from her job as a security officer solely on the grounds of her gender. However, as Turkey has not ratified Protocol No. 12 to the Convention, she is unable to seek relief before this Court as she has not argued that the facts, in substance, fall within the ambit of Article 8 of the Convention. Therefore, and as explained in more detail below, I respectfully dissent from the majority ’ s findings of a violation of Article 14, taken in conjunction with Article 8, in the present case.

II.

2. In the recent Grand Chamber judgment in Fernández Martínez v. Spain ([GC], no. 56030/07, 12 June 2014), the Court reiterated its previous case-law to the effect that, w hereas no general right to employment or to the renewal of a fixed-term contract could be derived from Article 8, the notion of “private life” was a broad term not susceptible to exhaustive definition. It found that it would thus be too restrictive to limit this notion to an “inner circle” in which the individual could live his own personal life as he chose and to entirely exclude therefrom the outside world not encompassed within that circle (ibid., § 109). The Grand Chamber thus stated that there was no reason of principle why the notion of “private life” should be taken to exclude professional activities. On this basis, the Court held that Article 8 might be applicable where a civil servant had been dismissed if a concrete examination of the applicant ’ s situation established that (1) the dismissal had “repercussions on the manner in which he or she construct[ed] his or her social identity by developing relationships with others”, or that (2) “factors relating to private life, in the strict sense of the term, [were] regarded as qualifying criteria for a given profession” (ibid., § 110).

3. In the case of Volkov v. Ukraine (no. 21722/11, § 166, ECHR 2013), the Court had previously examined the dismissal of a civil servant on the basis of two other elements, namely whether the dismissal (3) “had an impact on his ‘ inner circle ’ as the loss of his job must have had tangible consequences for the material well-being of the applicant and his family” and whether (4) the “reason for the applicant ’ s dismissal” suggested “that his professional reputation was affected”.

4. When analysing the individual elements from the Court ’ s case-law that are necessary to establish the applicability of Article 8 in cases concerning the termination of a civil servant ’ s employment, it is clear that they are inherently fact-based and personal to each individual in question. It is thus self-evident that an applicant who has had to endure dismissal from his or her job as a civil servant must, either expressly or implicitly, make the claim, both at the domestic level and, if necessary, before this Court, that the dismissal has affected his or her private life in a way that conforms to the necessary elements laid down by the Court. It cannot be for this Court to assess the existence of such elements in a particular case of its own motion, in other words without the applicant even having argued, at the domestic level or before the Court, that the termination of her service affected her private life. However, that is exactly what the majority have done in the present case.

III.

5. Both before the domestic courts and before this Court, the applicant has relied solely on Article 14 of the Convention, claiming that she was discriminated against on grounds of sex when she was dismissed from her job as a security officer. She has made no claim to the effect that one or more of the four necessary elements under the Court ’ s case-law (see paragraphs 3 and 4 above) were present in her case or that the termination has affected her private life within the meaning of Article 8 of the Convention.

6. Despite the total lack of argument on the part of the applicant as to the applicability of Article 8 to her case, the majority have found that they are entitled, of their own motion, to assess whether her dismissal falls within the ambit of that provision. In paragraph 44 of the judgment, the majority thus conclude, firstly, that a measure “as drastic as a dismissal from a post on the sole ground of sex has adverse effects on a person ’ s identity, self-perception and self-respect, and, as a result, his or her private life”, and that “the applicant ’ s dismissal on the sole ground of her sex [therefore] constituted an interference with her right to respect for her private life”.

7. This reasoning of the majority raises the following question: if this interpretation of Article 8 is correct, what is the difference between the scope of that provision, taken in conjunction with Article 14, on the one hand, and Article 1 of Protocol No. 12, on the other, in cases of gender discrimination in employment? If dismissal on the sole ground of sex is sufficient, in and of itself, for the measure to constitute an interference with the civil servant ’ s private life, does that interpretation not, in substance, make Article 1 of Protocol No. 12 redundant in this context? I fail to see the difference.

8. In paragraph 44 of the judgment, the majority, secondly, add that the applicant ’ s dismissal “had an impact on her ‘ inner circle ’ as the loss of her job must have had tangible consequences for the material well-being of her and her family”. Lastly, they state in the same paragraph, in their findings on the applicability of Article 8, that the applicant “must have suffered distress and anxiety on account of the loss of her post. What is more, the applicant ’ s dismissal affected a wide range of her relationships with other people, including those of a professional nature and her ability to practise a profession which corresponded to her qualifications”.

9. But again, the applicant has made no such claims in the present case. These conclusions are based on an abstract hypothesis on the part of the Court as to the way in which dismissal from employment as a civil servant must invariably impact upon the private life of the person concerned, without the majority ’ s conclusions being substantiated by any evidence before them.

10. To properly delineate the boundaries between Article 8 in cases concerning the dismissal of a civil servant on discriminatory grounds under Article 14, on the one hand, and the applicabili ty of Article 1 of Protocol No. 12, on the other, the applicant must in my view demonstrate convincingly the existence of one or more of the elements described above which the Court has recognised in its case-law as supporting the conclusion that such dismissal must have affected the private life of the applicant in question (see paragraphs 2-3 above). As the applicant in the present case has relied solely on Article 14, and has not claimed that the facts of her case fall within the ambit of Article 8, I disagree that the facts and evidence before the Court justify its conclusions as set out in pa ragraphs 44-46 of the judgment.