PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

The Markin case is about the role of parents in the early stages of a child’s life and the justification for a special parental status of servicemen. I concur with the decision of the Court regarding the finding of a violation of Article 8 taken in conjunction with Article 14, although for reasons significantly different from those adduced in the judgment. These reasons relate to the nature of the right to parental leave, which can only be properly assessed in the light of the evolving protection of social rights by the European Convention on Human Rights (“the Convention”). In addition, I find it important, for both practical and theoretical reasons, to analyse separately the double nature of the discrimination suffered by the applicant as a serviceman: in relation to servicewomen (the sexual-discrimination issue) and in relation to civilian men (the professional-discrimination issue). Finally, I dissent on the finding that there has been no violation of Article 34.

The dissenting opinion

The peaceful enjoyment of the applicant’s home

I dissent as far as the complaint based on Article 34 is concerned. I find the interference with the applicant’s right to the peaceful enjoyment of his home during the night unacceptable. Regardless of the precise hour the visit to the applicant’s home began, it is not disputed that it went on through the night. The Court has repeatedly repudiated any related contact by the national authorities with the applicant and his family while the complaint is pending before the Court. In the present case, two elements compound the gravity of the interference. Firstly, the interference took place during the night in the applicant’s home, in other words, in a space of particular intimacy and at a time of significant vulnerability for the applicant and his family. Secondly, the information which was required by the enquiring official could have been obtained elsewhere and in another manner. The authorities chose the wrong method to gather the information they were looking for. If they did not intend to intimidate, the fact remains that their behaviour was objectively intimidating and was felt as such by the applicant and his family, thus resulting in a breach of Article 34.

The concurring opinion

The nature of the right to parental leave

Parental leave is a period of time, immediately subsequent to maternity leave, of authorised absence from work, during which the employment contract or relationship and the rights resulting from it are safeguarded. The right to parental leave is a Convention right . Parental leave does not only come within the scope of Article 8 of the Convention, by promoting family life and affecting the way in which it is organised. It derives directly from Article 8. Parental leave is protected by Article 8 of the Convention in as much as it is an essential guarantee of the bond between a parent and his or her child at a time of particular vulnerability and special need for the child. The family ties which are thus protected may be based on a biological relationship of motherhood or fatherhood, or a legal relationship of adoption, or any other legally equivalent relationship. The right to parental leave is a fundamental Convention right which belongs to the core of the human rights of the family.

The right to parental leave thus has two complementary facets: firstly, it is a social right, which safeguards the position of a worker with regard to his or her employment; and, secondly, it is also a Convention right, which protects the bond between parent and child . In other words, the right to parental leave is not an ex novo Convention right, but an additional facet of the right to respect for family life which the Convention as a living instrument certainly encompasses. Some major practical consequences flow from this reasoning. Firstly, States have a positive obligation to create a legal system of parental leave. Secondly, parental leave is protected by Article 8 of the Convention independently of any discriminatory infringement of Article 14.

The Court has been increasingly open to admitting the protection of social rights under the Convention through its Article 14. According to established jurisprudence, Article 14 covers not only the enjoyment of the rights foreseen by the Convention but also those rights that “fall within the ambit” of a Convention provision and that a State has chosen to guarantee, even if in so doing it goes beyond the requirements of the Convention itself [1] . Based on this method of interpretation, the Court has reproached the discriminatory application of social rights which come within the ambit of Convention provisions [2] . But social rights have also been derived directly from Convention provisions without any reference to discriminatory treatment of the applicant , such as the right to medical treatment for people under the State’s authority [3] , the right to medical treatment for every citizen [4] , the right to a healthy environment [5] , the right to housing [6] , the right to an old-age pension [7] , the right to collective negotiations and the right to strike [8] . An additional right to a fair procedure in the determination of one’s social rights has been established [9] .

The acknowledgment of social rights under the Convention by the Court faces two principled critiques. It has been pointed out that, by doing so, the Court oversteps its remit and imposes international obligations which the Contracting Parties to the Convention did not agree upon, since the founding fathers intended to recognise in the Convention only civil and political rights [10] . This argument is flawed for two reasons. Firstly, it ignores the purpose of the Convention as a treaty which envisages the “development” of human rights in the light of the Universal Declaration on Human Rights, where economic and social rights are foreseen. This clear intention is expressed in the Preamble to the Convention and is confirmed by the Convention provisions on the right to join a trade union and the prohibition of forced labour, and the subsequent adoption of Protocols on the right to property and the right to education [11] . In addition, there is no unequivocal dividing line between civil rights and social rights, and most of the civil rights have social and economic derivations [12] .

Secondly, the disputed argument neglects the nature of the Convention as a “living instrument”, which evolves and adapts to the actual circumstances of Europeans. Whilst the preparatory work in respect of the Convention shows a special concern of the founding fathers for the protection of civil and political rights on a continent recently devastated by war and the concomitant grave human rights breaches [13] , that concern does not correspond to the circumstances of Europeans today. The petrification of the Convention would not only depart from the common rules of treaty interpretation, which leave a supplementary role to the preparatory work and give preference to the letter, purpose and object of the provision (see Article 31 § 1 of the Vienna Convention on the Law of Treaties): it would also ultimately disregard the true intention of the founding fathers, namely to create an instrument for the guarantee of rights that are practical and effective, not theoretical and illusory.

It is also argued that the inherently vague and technical nature of social rights makes them judicially unenforceable. Social rights are said to be mere aspirational policy goals or action programmes directed at the political and administrative branches of the State and do not lend themselves to any judicial review. This argument overlooks the notion of a minimum core of fundamental rights [14] . Social rights, as any other fundamental rights, have a minimum core which can and should be determined and enforced by courts, according this task the greatest relevance especially in times of financial hardship, when social rights are the first to be neglected [15] . If wide latitude is given to the State to take the appropriate social-policy measures, the Court’s role is to determine whether they fall within the bounds of “reasonableness” [16] . The reasonableness of State social policy is assessed in terms of its proportionality in the sense that it must not only cater even-handedly for all social groups , but must also counterbalance factual inequalities and pay special attention to the most vulnerable social groups [17] . For instance, a social-policy measure will be “unreasonable”, that is disproportionate, if it makes no provision for those most in need. A point of confluence is then found between the implementation of a “reasonable” social policy and the obligatory guarantee of the minimum core of the social right [18] . As Justice William Brennan so eloquently put it, “public assistance, then, is not mere charity, but a means to ‘promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity’” [19] .

The preceding considerations lead inevitably to the following conclusion: a social right can legitimately be derived from a Convention provision, even when such right is foreseen in the European Social Charter and the Contracting Party is not bound by the relevant provision of that Charter [20] . Thus, the fact alone that Article 27 § 2 of the European Social Charter guarantees the right to parental leave does not impede the acknowledgment of parental leave as a Convention right under Article 8 of the Convention, even if the Contracting Party has not accepted the former. In the instant case, it is noteworthy that the respondent State has accepted Article 27 § 2 of the European Social Charter, like almost all other States Parties to the Convention, and this enhances the undisputed nature of the right in the face of international law. Scientific and legal arguments can be presented to evidence this evolving right in the light of the Convention.

Evidence of the paramount importance of the physical and psychological relationship between parent and child at the very early stage of the child’s life has been put forward in scientific studies. These studies have shown clear benefits of parental leave, including reduced infant-mortality rates and long-term effects on children’s cognitive and socio-emotional outcomes. In other words, there is a trade-off between parental leave and the child’s health and academic performance [21] . Were such a right to parental leave not protected and effected, the general well-being of the child would be significantly prejudiced and the bond between parent and child would be considerably weakened. Parental leave has thus proved to be an essential instrument of social policy to guarantee the general well-being of the child and the healthy development of family ties.

Besides the mounting scientific evidence as to the utmost importance of parental leave, there is also an established international consensus on the recognition of a right to parental leave. Out of thirty-three member States of the Council of Europe, only one does not provide for parental leave at all, two States provide for parental leave only in the case of women and all the remaining States grant parental leave to both men and women. Servicemen and servicewomen benefit from a legal regime that is the same as, or similar to, that of civilians, except in five countries where only servicewomen are entitled to such leave. The political institutions of the Council of Europe have enshrined this consensus in a number of resolutions and recommendations [22] . Within the European Union, the Directive on parental leave (Council Directive 96/34/EC of 3 June 1996, revised by Council Directive 2010/18/EU of 8 March 2010) represents the binding standard for member States of the Union, according to which parental leave is, in principle, available to both parents as a non-transferable, individual entitlement [23] . This consensus in European human rights law is reflected in international labour law, which has repeatedly acknowledged the right to parental leave since the 1980s, as evidenced by a number of recommendations of the International Labour Organisation (ILO): the Workers with Family Responsibilities Recommendation (R165), 1981, § 22 (1) to (3), the Part-Time Work Recommendation (R182), 1994, § 13, and the Maternity Protection Recommendation (R191), 2000, § 10 (3) to (5). Lastly, universal human rights law has joined the above-mentioned consensus. The United Nations Committee on Economic, Social and Cultural Rights (CESCR) has noted that the implementation of Article 3 of the International Covenant on Economic, Social and Cultural Rights, in relation to Article 9, requires, inter alia , guaranteeing adequate maternity leave for women, paternity leave for men, and parental leave for both men and women [24] .

As a result of this wide international consensus in European and universal human rights law and international labour law, the approach taken by the Court in Petrovic v. Austria is manifestly outdated . The basic argument presented at that time, according to which the majority of member States of the Council of Europe did not provide for parental leave for fathers, does not correspond anymore to reality today. But coherence demands that conclusions must be drawn from this new consensus. If it is correct to conclude that no reason remains for a distinction on the basis of sex with respect to parental leave, it is all the more to be concluded that the right to parental leave itself is now understood by almost all member States of the Council of Europe and the international community in general to be an integral part and a constitutive element of the legal protection of the family and the parent-child relationship . Therefore, it can be inferred that the cost of parental leave is not likely to place an unnecessary and impractical burden on the State’s resources. In other words, the argument can no longer be made that the cost of human rights protection in this particular area does not derive from the choices of the legitimate representatives of the people. The common ground between laws of member States of the Council of Europe and international legal standards reveals a new facet of the right to respect for family life – a facet which has gained broad democratic legitimacy.

Consequently, there is a positive obligation for the Contracting Parties to the Convention to provide for a legal system of parental leave [25] . States are free to create a system of shared entitlement for men and women to parental leave or an individual right to parental leave, which cannot be transferred to the other parent. In order to promote gender equality, States may approve a paternity quota of leave that can only be taken by the father and is lost if he does not use it. Although the rules set by the Directive on parental leave are binding for countries in the European Union, the Convention does not impose the same legal standard in view of the lack of a European consensus as to the exact form, duration and conditions of parental leave among all member States of the Council of Europe. Yet the regime governing the right to parental leave, as those that govern any other social rights, is not entirely subject to the discretion of political majorities. Some fundamental features of this right can be ascertained in the light of the Convention and such a regime is therefore subject to the supervision of the Court. The classic Achilles heel of social rights being their effectiveness and judicial enforceability, a clear definition of the scope of competences of the legislature and the judiciary in the implementation of social rights is of the utmost importance.

Firstly, the right to parental leave benefits all citizens without any distinction based on sex or professional status . The armed forces, the police and domestic servants are not excluded from the beneficiaries of this fundamental right [26] . The same applies to part-time workers, fixed-term contract workers or persons with a contract of employment or employment relationship with a temporary agency. The implementation of the right to parental leave within the private sector of the economy is the result of the horizontal effect of the human rights protection system [27] .

Secondly, the right to parental leave has a minimum content . The ultimate objective of reconciliation of work, private and family life for working parents, and equality between men and women with regard to labour-market opportunities and treatment at work, must be borne in mind when establishing the form, duration and conditions of parental leave. At the end of a period of parental leave, workers have the right to return to the same job or, if that is not possible, to an equivalent job consistent with their employment contract or relationship. Rights acquired or in the process of being acquired by the worker on the date on which parental leave starts must be maintained as they stand until the end of parental leave. Workers must be protected against less favorable treatment or dismissal on the grounds of an application for, or the taking of, parental leave. States are free to decide whether parental leave is granted on a full-time or part-time basis, in a piecemeal manner or in the form of a time-credit system, as well as to make entitlement to parental leave subject to a period of work qualification and/or a length of service qualification, but States may not, for instance, require an excessive qualifying period. States are also free to define the circumstances in which an employer is allowed to postpone the granting of parental leave as long as postponement is exclusively justified by extraordinary reasons related to the operation of the employer’s organisation.

Thirdly, to guarantee the right to parental leave is an obligation of result , which the State is bound to achieve within a reasonable period of time through adequate legislative instruments [28] . This right may be restricted or even annulled in exceptional circumstances [29] , since the State is not constrained by a rigid principle of non-retrogression of social rights as long as retrogressive measures pursue general welfare aims and are implemented progressively and proportionately [30] .

Discrimination against servicemen

In view of the minimum core of the Convention right to parental leave, as described above, a discriminatory legal regime of parental leave or the discriminatory application of a regime of parental leave will breach Article 8 taken separately and in conjunction with Article 14. This is true in the present case. I find that the denial of parental leave to the applicant was based on a combination of two different discriminatory grounds: military status and sex. The impugned discrimination has a twofold legal nature: there is not only sex discrimination between servicemen and servicewomen, since servicewomen are treated better than servicemen, but also discrimination based on professional status, since civilian men are treated better than servicemen. I will deal separately with these two kinds of discriminatory treatment, with the purpose of showing that the less favourable treatment of servicemen lacks justification in any event. In addition to the theoretical importance of separating the different grounds of discrimination, a major practical consequence will be relevant for the purposes of Article 46.

Discrimination based on sex

Russian servicemen do not have a statutory right to parental leave, while servicewomen do have such a right. The discrepancy is established by the law between men and women, independently of their actual ranks and duties within the armed forces. The blanket and general nature of the legal provision in question, which does not allow for balanced solutions according to the functions of different service personnel, shows that a category of citizens (servicemen) was singled out by the legislature only on account of their gender. Neither the preponderance of servicemen in the armed forces nor the “special role of mothers in the upbringing of children” can be invoked to justify such a radical difference in treatment. In fact, only a minimal percentage of civilian men take parental leave in Russia, according to the statistics. If such a percentage is replicated in the armed forces, no major changes are to be expected in the normal life of the military services. Furthermore, tradition alone does not suffice to justify any discrimination [31] . The discriminatory character of this regime stands out when one takes into account the fact that civilians, both men and women, are all entitled to the same legal benefits. If the Russian legislature is prepared to accept equality between civilian men and women who benefit from the same period of parental leave, it is difficult to understand why such equality is not guaranteed between servicemen and servicewomen.

Discrimination based on professional status

The discriminatory nature of the legal regime of parental leave in Russia can also be viewed from another perspective. A comparison between servicemen and civilian men shows that the first are treated with less generosity by the national law. The defensive nature of the functions of the men engaged by the Russian armed forces is not a decisive argument. Firstly, no factual evidence was presented of any concrete danger to the operational effectiveness of the armed forces due to the possible parental leave taken by servicemen. Secondly, there are alternative solutions for the organisation of military personnel to allow for servicemen who take their parental leave to be replaced without prejudice to the normal functioning of the services and to suspend parental leave in case of exceptional circumstances, such as the imminence of war.

In order to comply with international obligations under the Convention, a legal solution must be found that avoids discrimination based both on sex and professional status. Lowering the parental status of servicewomen to the current status of their fellow servicemen would not only unreasonably diminish the degree of social protection afforded to servicewomen, but it would also put all military personnel in an unjustified lesser legal standing in relation to civilians. Such a solution would not solve the problem of discrimination based on professional status.

In view of the nature of the right to parental leave as a constituent element of a dignified life standard, one should recall the lesson of Montesquieu on the State’s obligation to provide to every citizen “a way of life which does not counter health” [32] . By properly guaranteeing the general enjoyment of the right to parental leave, the respondent State will simultaneously ensure the right of children to healthy development and comply with a fundamental family right and a basic assurance for all workers.