JOINT CONCURRING OPINION OF JUDGE S SPIELMANN, JEBENS AND MALINVERNI

1. We are unable to agree with the reasoning concerning the alleged violation of Article 14 of the Convention in conjunction with the procedural aspect of Article 2 of the Convention.

2. To begin with, we would like to emphasise that the applicants complained that M.S. had been arrested purely because of his Serbian ethnic origin and that the national authorities had failed to investigate that factor, contrary to Article 14 of the Convention (see paragraphs 113 and 115 of the judgment). This complaint has thus been phrased mainly in connection with the arrest and the failure to investigate the discriminatory factor as to that arrest . To frame the complaint, as identified in the judgment, in terms of an alleged violation of Article 14 in conjunction with Article 2 (see paragraph 118) is thus, in our respectful submission, at best artificial and, at worst, entirely misconceived.

3. Moreover, we are unable to agree with the general principle set out in paragraph 116 and going back to Dudgeon v. the United Kingdom ( 22 October 1981 , Series A no. 45 ):

“Where a substantive Article of the Convention or its Protocols has been relied on both on its own and in conjunction with Article 14 and a separate breach has been found of the substantive Article, the Court may not always consider it necessary to examine the case under Article 14 as well, though the position is otherwise if a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case (see Dudgeon v. the United Kingdom , 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III; and Timishev v. Russia , nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII).”

As Judge Matscher eloquently put it in his dissenting opinion annexed to the Dudgeon judgment:

“I regret that I do not feel able to agree with this line of reasoning. In my view, when the Court is called on to rule on a breach of the Convention which has been alleged by the applicant and contested by the respondent Government, it is the Court ' s duty, provided that the application is admissible, to decide the point by giving an answer on the merits of the issue that has been raised. The Court cannot escape this responsibility by employing formulas that are liable to limit excessively the scope of Article 14 (art. 14) to the point of depriving it of all practical value.

Admittedly, there are extreme situations where an existing difference of treatment is so minimal that it entails no real prejudice, physical or moral, for the persons concerned. In that event, no discrimination within the meaning of Article 14 (art. 14) could be discerned, even if on occasions it might be difficult to produce an objective and rational explanation for the difference of treatment. It is only in such conditions that, in my opinion, the maxim " de minimis non curat praetor " would be admissible (see, mutatis mutandis, my separate opinion appended to the Marckx judgment, p. 58). I do not, however, find these conditions satisfied in the present case, with the result that a definite position must be taken regarding the alleged violation of Article 14 (art. 14) in relation to the complaints made by the applicant.”

4. We would like to add that it was unnecessary to make such a broad and problematical obiter dictum in the above-mentioned judgments ( Dudgeon, Chassagnou and Timishev ) and to repeat it in the present case. Indeed, in the case of Dudgeon , and in connection with one aspect of his complaint under Article 14 taken in conjunction with Article 8 (namely, different laws concerning male homosexual acts in various parts of the United Kingdom), the applicant himself had conceded that, if the Court were to find a breach of Article 8, then this particular question would cease to have the same importance (see Dudgeon v. the United Kingdom , 22 October 1981, § 68 , Series A no. 45 ). In Chassagnou the Court found a violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 95 , ECHR 1999 ‑ III ) and in Timi s hev the Court found a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 4 to the Convention (see Timishev v. Russia , nos. 55762/00 and 55974/00, § 59 , ECHR 2005 ‑ XII ).

5. The importance of Article 14 is, furthermore, apparent in the Court ' s Grand Chamber judgment in the case of D.H. (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, ECHR 2007 ‑ ... ), in which it found Article 14 to be applicable in conjunction with Article 2 of Protocol No. 1 and found a violation of the two provisions taken together. In our view, the repetition in paragraph 116 of the judgment of the aforementioned obiter dictum therefore runs counter to the robust case-law that the Court has recently developed under Article 14 of the Convention. It should be abandoned or at least qualified.