Information Note on the Court’s case-law No. 150

March 2012

Konstantin Markin v. Russia [GC] - 30078/06

Judgment 22.3.2012 [GC]

Article 14

Discrimination

Difference in treatment between male and female military personnel regarding rights to parental leave: violation

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 radio intelligence operator in the armed forces, applied for th ree 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 h is 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 co mplaint, 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 leav e 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.

In a judgment of 7 October 2010 (see Information Note 134 ), a Chamber of the Court held by six votes to one that there had been a violation of Article 14 in conjunction with Article 8.

Law – Article 14 in conjunction with Article 8: Parental leave an d parental allowances came within the scope of Article 8, as they promoted family life and necessarily affected the way it was organised. Article 14 of the Convention was thus applicable (in conjunction with Article 8). Men were in an analogous situation t o women with regard to parental leave (as opposed to maternity leave) and parental-leave allowances. Accordingly, as a serviceman, the applicant had been in an analogous situation to servicewomen. The Court therefore had to determine whether the difference in treatment between servicemen and servicewomen with respect to the right to parental leave was objectively and reasonably justified.

In that connection, it noted that the advancement of gender equality was now a major goal in the member States of the Co uncil of Europe and very weighty reasons would have to be put forward before a difference of treatment on the grounds of sex could be regarded as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing soc ial attitudes in a particular country would be insufficient.

The Court did not accept that justification for the difference in treatment in the applicant’s case could lie, as the Government had alleged, in the special social role of women in the raising of children. Contemporary European societies had moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and men’s caring role had gained recognition. The majority of European countries, including Russi a, now allowed both civilian men and women to take parental leave and a significant number of countries also extended that right to both servicemen and servicewomen. The difference in treatment in the applicant’s case could not be seen as positive discrimi nation in favour of women, as it was clearly not intended to correct the disadvantaged position of women in society. Instead, it had the effect of perpetuating gender stereotypes and was disadvantageous both to women’s careers and to men’s family life. In sum, the reference to the traditional distribution of gender roles in society could not justify the exclusion of men, including servicemen, from the entitlement to parental leave.

The Court was not persuaded either by the Government’s argument that extendi ng parental leave to servicemen would have a negative effect on the fighting power and operational effectiveness of the armed forces. The Russian authorities had not carried out any expert study or research to evaluate the number of servicemen who would be able or willing to take three years’ parental leave in order to assess how that might affect operational effectiveness. Such statistical information as they had submitted was inconclusive. The mere fact that all servicemen were of “childbearing age” was i nsufficient to justify the difference in treatment between servicemen and servicewomen. The Court nevertheless accepted that, given the importance of the army for the protection of national security, certain restrictions on the entitlement to parental leav e could be justifiable provided they were not discriminatory. Thus, for instance, military personnel, whether male or female, could be excluded from parental-leave entitlement if they were not easily replaceable owing to their hierarchical position, rare t echnical qualifications, or involvement in active military actions. However, in Russia the exclusion from entitlement to parental leave applied automatically to all servicemen, irrespective of their position in the army, the availability of a replacement o r their individual situation. In the Court’s view, such a general and automatic restriction applied to a group of people on the basis of their sex fell outside any acceptable margin of appreciation of the State.

The applicant had served as a radio intellig ence operator and could therefore have been replaced by either servicemen or servicewomen. Significantly, equivalent posts in his unit were often held by servicewomen, who, unlike him, had an unconditional entitlement to three years’ parental leave. The ap plicant had therefore been subjected to discrimination on grounds of sex without reasonable or objective justification. In view of the fundamental importance of the prohibition of discrimination on grounds of sex, the fact that he had signed a military con tract could not constitute a waiver of his right not to be discriminated against.

Conclusion : violation (sixteen votes to one).

Article 34: The applicant had complained that, while his application before the European Court was pending, he had received an u nsolicited visit at his home from a prosecutor requesting information relating to the applicant’s case. The Court noted that it was, in principle, not appropriate for the authorities of a respondent State to enter into direct contact with an applicant in c onnection with his or her case before the Court. However, in the instant case, there was no evidence that the prosecutor’s visit to the applicant’s home to obtain up-to-date information about the family situation had been calculated to induce the applicant to withdraw or modify his complaint, or that it had had that effect. Accordingly, the authorities could not be held to have hindered the applicant in his exercise of his right to individual petition.

Conclusion : no failure to comply with Article 34 (fourt een votes to three).

Article 41: EUR 3,000 in respect of non-pecuniary damage

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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