JOINT DISSENTING OPINION OF JUDGES KJØLBRO AND KOSKELO

1. We have, regrettably, been unable to agree with the conclusion reached by the majority of the Chamber, to the effect that there has been a violation of Article 1 of Protocol No. 12 in the present case. In our view, the approach taken by the majority reveals a series of flaws in the analysis. This is a matter of concern which extends beyond the instant case, since weaknesses in the methodology followed risk creating a wider problem in cases raising issues of alleged discrimination.

2. The applicants claim that they are victims of discrimination on the grounds of disability in that, as Serbian winners of medals in the “Blind Chess Olympiad”, they have not been awarded the same financial benefits as those awarded by the respondent State to Serbian winners of medals in certain other international sports competitions.

3. We agree that Article 1 of Protocol No. 12 can be considered applicable in this case. Indeed, this is the only provision of the Convention under which the present complaints could possibly be admissible, as the circumstances do not give rise to any “possession” capable of bringing the case within the ambit of Article 14 in conjunction of Article 1 of Protocol No. 1.

4. Under Article 1 of Protocol No. 12, which provides for a wider scope of protection, any right set forth by law shall be secured without discrimination on any of the enumerated grounds (paragraph 1 of that provision). Furthermore, paragraph 2 prohibits discrimination by any public authority on any of the grounds set out in paragraph 1. The applicants consider that their exclusion from the financial awards provided for under the relevant decrees (see paragraphs 24-34 of the judgment) amounted to prohibited discrimination on the grounds of their disability. The question therefore arises whether indeed the treatment of the applicants in the present context gives rise to discrimination as prohibited under Article 1 of Protocol No. 12.

5. We recall that the Explanatory Report on this provision (cited in paragraph 52 of the judgment) sets out four categories of situations where prohibited discrimination may arise, namely:

“i. in the enjoyment of any right specifically granted to an individual under national law;

ii. in the enjoyment of a right which may be inferred from a clear obligation of a public authority under national law, that is, where a public authority is under an obligation under national law to behave in a particular manner;

iii. by a public authority in the exercise of discretionary power (for example, granting certain subsidies);

iv. by any other act or omission by a public authority (for example, the behaviour of law enforcement officers when controlling a riot).”

6. The majority consider that the present case falls within the third category, namely the exercise of discretionary power. We note that the impugned discretionary power was exercised in the present case in the context, and at the level, of the Government’s statutory regulation of sporting awards, to be granted from public funds. Thus, the present case does not concern the exercise of discretion delegated to the administrative authorities but the exercise of discretion at the statutory level. While this point would not render Article 1 of Protocol No. 12 inapplicable, it must in our view be taken into account in the further assessment of whether the treatment of the applicants, which was in accordance with the impugned statutory framework, amounts to discrimination prohibited under this Convention provision.

7. According to the Court’s established scheme of analysis, the first issue for consideration is whether the applicants were in a relevantly similar situation to the categories of persons entitled to the financial awards in question.

8. As the Court has previously held, a difference in treatment may raise an issue from the point of view of the prohibition of discrimination only if the persons subjected to such different treatment are in a relevantly similar situation, taking into account the elements that characterise their circumstances in the particular context. The elements which characterise different situations, and determine their comparability, in turn, must be assessed in the light of the subject matter and purpose of the measure which makes the distinction in question (see Fábián v. Hungary [GC], no. 78117/13, § 121, 5 September 2017).

9. In the present case, the subject matter of the measure concerns the recognition by the Government, through specific financial awards, of sporting achievements attained by Serbian nationals in certain competitions at the highest global levels. A measure of this nature is, from the outset, inherently selective and discretionary in terms of the competitions that might be selected for inclusion in such a scheme. Presumably, factors such as the extent of global and national participation in the relevant disciplines, the competitive level entailed, the public attention attracted by these competitions and the associated contribution of medal winners to the country’s profile and glory all play a role. It may be observed that in the impugned Serbian scheme, both Olympic and Paralympic sports are included without restriction, whereas, for instance, disciplines such as cricket, polo, bowling, darts, or ballroom dancing are not included. This state of affairs indicates that the selection criteria in terms of the disciplines for inclusion in the scheme, or exclusion from it, were not linked to the characteristics of the persons engaged in the various sports but rather to other factors, related to the disciplines and the status of the competitions themselves. In any event, it is clear that the participants’ disability has not as such served as a criterion for the distinctions made in the selection of eligible competitions, as all Paralympic sports disciplines have been included.

10. Thus, it seems clear that the scope of the impugned scheme of awards for sporting achievements has not been defined by reference to the participants and their specific characteristics but by reference to the status of the disciplines and the competitions themselves. Therefore, we consider that in the light of the nature, subject matter and purpose of the measure, the applicants cannot be held to be in a relevantly similar situation to those in the comparator group who may qualify for the financial awards in question.

11. Similarly, regarding the ground for the impugned difference in treatment, given that the scheme has been defined with reference to a selection of sports disciplines and competitions and not in terms of distinctions between those participating in them, it cannot in our view be said that the usual test has been met. We would recall that, according to the Court’s established case-law, the relevant test is whether, but for the condition of entitlement about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question (see Fábián , cited above, § 117). In the present case, the crucial reason why the applicants were not awarded the benefits in question was not that they were blind, but rather that the competitions in which they won their medals were not among those listed for the awards in question, a situation which affected not only them but also any medal winners in any competition that was not included in the scheme.

12. As regards the further analysis to which the majority have proceeded, we note that they have not specifically addressed the question of whether the difference in treatment pursued a legitimate aim, although this is a standard element of the assessment in a case where, as held by the majority, the requirement of a difference in treatment between persons in relevantly similar situations, based on a prohibited ground, has been met. We note that the Government have argued that the chosen policy of awarding recognition only for the highest sporting achievements in the most important competitions pursued a legitimate aim. In our view, in a context such as the present one, which concerns a domestic policy in an inherently selective and discretionary field, it would be difficult for the Court to condemn the aim as illegitimate. In this regard, we underline again that the selection or exclusion of the eligible competitions was not made on the basis of distinctions relating to the participants’ characteristics, but by reference to the disciplines and the status of the competitions in question.

13. We also note with concern that, in their assessment of whether there was an objective and reasonable justification for the difference in treatment, the majority do not engage in any discussion of the scope of the margin of appreciation to be afforded to the States in a context such as the present one. In our view, the questions of whether and how nations should recognise and reward world-class achievements in the field of sport and how they should define the categories of disciplines or competitions in which the winners may be eligible for particular awards or benefits in this respect do not belong among those matters where it is appropriate for the Court to exercise any strict supervision and dictate outcomes. A wide margin should therefore be left to the States in such policies.

14. Even if, contrary to our analysis above, it were held that the requirement of comparability of situations was satisfied and that the ground for the difference in treatment lay in the applicants’ disability, we note that the eligible competitions were essentially defined by reference to medals won or world records held in Olympic or Paralympic sports disciplines (see paragraph 24 of the present judgment). In our view, given the wide margin of appreciation that should apply in this context, the scope of the impugned measure in terms of the competitions that were included, and those which were consequently left out, was based on a sufficiently objective and reasonable justification.

15. In sum, the approach taken by the majority in the present case is not only methodologically flawed but also difficult to defend from the perspective of the Court’s role as an international judicial body. The expansive thrust adopted by the majority is particularly anomalous in the light of the fact that a Chamber of the same Section has very recently found itself compelled, due to the prevailing lack of necessary resources, to abstain from examining large volumes of very serious complaints concerning the core rights protected under Article 5 of the Convention (see Turan and Others v. Turkey , nos. 75805/16 and 426 others, 23 November 2021).

16. As a final remark, we would like to stress that our opinion in this case has nothing to do with our personal views concerning the applicants’ achievements and merits as blind chess players. We fully acknowledge the special challenges they have had to overcome in attaining their outstanding success in this field and we sincerely respect their achievements, which we hold in high regard. For the purposes of our legal and judicial assessment, however, such personal opinions and sympathies cannot, and should not, be decisive.

17. For the reasons set out above, we consider that Article 1 of Protocol No. 12 has not been violated in this case.

APPENDIX

List of cases

No.

Application no.

Case name

Lodged on

Applicant

Year of Birth

Place of Residence Nationality

Represented by

1.

29907/16

Negovanović v. Serbia

19/05/2016

Branko NEGOVANOVIĆ

1937

Novi Sad

Serbian

Milina DORIĆ

2.

30022/16

Avram v. Serbia

19/05/2016

Sretko AVRAM

1947

Novi Sad

Serbian

Milina DORIĆ

3.

30322/16

Markov v. Serbia

19/05/2016

Živa MARKOV

1955 Novi Sad

Serbian

Milina DORIĆ

4.

31142/16

Baretić v. Serbia

19/05/2016

Dragoljub BARETIĆ

1936

Novi Sad

Serbian

Milina DORIĆ