Information Note on the Court’s case-law No. 134
October 2010
Konstantin Markin v. Russia - 30078/06
Judgment 7.10.2010 [Section I]
Article 14
Discrimination
Difference in treatment between male and female military personnel regarding rights to parental leave: violation
Article 46
Article 46-2
Execution of judgment
Measures of a general character
Respondent State required to introduce legislation to end discrimination between male and female military personnel regarding rights to parental leave
Article 5 of Protocol No. 7
Equality between spouses
Alleged inequality of rights of male and female military personnel to parental leave: inadmissible
[This case was referred to the Grand Chamber on 21 February 2011]
Facts – Under Russian law civilian fathers and mothers are entitled to three years’ parental leave to take care of their minor children and to a monthly allowance for part of that period. The right is expressly extended to female military personnel, but no such provision is made in respect of male personnel. The applicant, a divorced serviceman, applied for three years’ parental leave to bring up the three children of the marriage, but this was refused on the grounds that there was no basis for his claim in domestic law. He was subsequently granted approximately two years’ parental leave plus financial aid by his superiors in view of his difficult personal circumstances. He nevertheless lodged a complaint with the Constitutional Court in which he submitted that the legislation was incompatible with the constitutional guarantee of equal rights. Dismissing that complaint, the Constitutional Court held that the prohibition on servicemen taking parental leave was based on the special legal status of the military and the need to avoid large numbers of military personnel becoming unavailable to perform their duties. It noted that servicemen assumed the obligations connected with their military status voluntarily and were entitled to early termination of service should they decide to take care of their children personally. The right for servicewomen to take parental leave had been granted on an exceptional basis and took into account the limited participation of women in the military and the special social role of women associated with motherhood.
Law
(a) Admissibility – Article 34: The Court rejected the Government’s submission that the domestic authorities’ decision to grant him parental leave and financial aid meant that the applicant could no longer claim victim status. There had been no express acknowledgment of a breach of the Convention. Nor could the decision be interpreted as an acknowledgement in substance, as it had been taken by reference to the applicant’s difficult family and financial situation, not on the grounds of any statutory entitlement or of any recognition that there had been a breach of his right to equal treatment.
Article 37 – Despite the measures taken by the domestic authorities to redress the applicant’s individual situation, the Court considered that it was not appropriate to strike the application out of its list. The impugned legislation remained in force and the application concerned an important question of general interest – alleged discrimination against male military personnel regarding entitlement to parental leave – which had not yet been examined by the Court. Respect for human rights thus required the further examination of the application on the merits with a view to elucidating, safeguarding and developing the standards of protection under the Convention.
Conclusion: preliminary objections dismissed (unanimously).
(b) Merits – Article 14 in conjunction with Article 8: Parental leave and parental allowances came within the scope of Article 8 thus making Article 14 applicable. Accordingly, while the States had no obligation under Article 8 to create a parental-leave scheme, where they did decide to do so, this had to be in a manner that was compatible with Article 14.
The applicant had been denied parental leave on a combination of two grounds: his sex and his military status. As to the first of these grounds the Court was not convinced by the Constitutional Court’s argument that the different treatment of male and female military personnel was justified by the special social role of mothers in the upbringing of children. In contrast to maternity leave and associated allowances, which were primarily intended to enable the mother to recover from the fatigue of childbirth and to breastfeed, parental leave and parental-leave allowances related to the subsequent period and were intended to enable the parent to stay at home to look after the infant personally. At that point in a child’s upbringing, both parents were “similarly placed”. Further, the legal situation as regards parental-leave allowances had evolved since the Court’s judgment in Petrovic v. Austria (no. 20458/92, 27 March 1998), in which the respondent State in that case had been allowed a broad margin of appreciation in the absence of any European consensus on the subject. Society had since moved towards a more equal sharing between men and women of responsibility for the upbringing of their children as demonstrated by the fact that the legislation in an absolute majority of Contracting States now provided that parental leave could be taken by both mothers and fathers. That being so, Russia could not therefore rely on the absence of a common standard to justify the difference in treatment.
As to the second ground, the applicant’s military status, the Court considered that servicemen and servicewomen were in an analogous situation in their relations with their children and that very weighty reasons were required to justify a difference in treatment regarding their relations with their new-born children. The aim of the limitation of servicemen’s rights – protecting national security through ensuring the operational effectiveness of the army – was without doubt legitimate. As to whether it was proportionate, the Court was not convinced by the Constitutional Court’s argument that allowing servicemen to take parental leave would adversely affect the fighting power and operational effectiveness of the armed forces. There had been no evidentiary basis for that assertion. Instead, the Constitutional Court had based its decision on a pure assumption, without attempting to probe its validity by checking it against statistical data or by weighing the interest of maintaining operational effectiveness against the conflicting interest of protecting servicemen against discrimination in the sphere of family life and promoting the best interests of their children. The fact that in the armed forces women were less numerous than men could not justify disadvantaging the latter, and the argument that servicemen wishing to take personal care of their children were free to resign was particularly striking, given the difficulty they would be liable to encounter in directly transferring essentially military qualifications and experience to civilian life. Accordingly, the reasons adduced by the Constitutional Court had provided insufficient justification for the much stronger restrictions imposed on servicemen; the difference in treatment could not be said to be reasonably and objectively justified and amounted to discrimination on the ground of sex.
Conclusion: violation (six votes to one).
Article 5 of Protocol No. 7 – In response to the applicant’s complaint that the provisions of domestic law restricting parental leave to servicewomen had violated his right to equality between spouses, the Court observed that in accordance with the Explanatory Report to Protocol No. 7, the rights and responsibilities concerned by the right to equality between spouses were of a private-law character and Article 5 did not apply to other fields of law, such as administrative, fiscal, criminal, social, ecclesiastical or labour law. In the Court’s view, the right to parental leave undoubtedly belonged to the sphere of labour law and formed part of the relations between employer and employee rather than between spouses. In any event, the impugned legislation favoured servicewomen irrespective of their marital status and thus concerned inequality between the sexes rather than inequality between spouses.
Conclusion: incompatible ratione materiae (unanimously).
Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.
Article 46: Respondent Government to amend legislation with a view to putting an end to the discrimination against male military personnel as far as their entitlement to parental leave is concerned.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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