CASE OF KONSTANTIN MARKIN v. RUSSIA
Violation of Art. 14+8;Remainder inadmissible;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed;Respondent State to take measures of a general character
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1976 and lives in Novgorod. He is a serviceman in military unit no. 41480. 6. On 30 September 2005 his wife Ms M. gave birth to their third child. On the same day a court granted their application for divorce. 7. On 6 October 2005 the applicant and Ms M. entered into an agreement under which their three children would live with the applicant and Ms M. would pay maintenance for them. Several days later Ms M. left for St Petersburg where she has been living ever since. 8. On 11 October 2005 the applicant asked the head of his military unit for three years’ parental leave. On 12 October 2005 the head of the military unit rejected his request because three years’ parental leave could be granted only to female military personnel. The applicant was allowed to take three months’ leave. However, on 23 November 2005 he was recalled to duty. 9. On 30 November 2005 the applicant brought proceedings against his military unit claiming three years’ parental leave. He also challenged the decision of 23 November 2005. 10. On 28 February 2006 the applicant was disciplined for systematic absences from his place of work. 11. On 9 March 2006 the Military Court of the Pushkin Garrison annulled the decision of 23 November 2005 and upheld the applicant’s right to the remaining 39 working days of his three months’ leave. On 17 April 2006 the Military Court of the Leningradskiy Command quashed the judgment and rejected the applicant’s claims. 12. On 14 March 2006 the Military Court of the Pushkin Garrison dismissed his claim for three years’ parental leave as having no basis in domestic law. The court held that only female military personnel were entitled to three years’ parental leave and that the applicant was entitled to three months’ leave, of which he had made use. Moreover, the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care. 13. In his statement of appeal the applicant complained, in particular, that the refusal to grant him three years’ parental leave violated the principle of equality between men and women guaranteed by the Constitution. 14. On 27 April 2006 the Military Court of the Leningradskiy Command upheld the judgment. It endorsed the reasoning of the first-instance court and added that the applicant’s “reflections on equality between men and women ... cannot serve as a basis for quashing the first-instance judgment, which is correct in substance”. 15. On 18 July 2006 the applicant was for a second time disciplined for being absent from his place of work. 16. By order of 24 October 2006 the head of military unit no. 41480 granted parental leave to the applicant until 30 September 2008, the third birthday of his youngest son. On 25 October 2006 the applicant received financial aid in the amount of 200,000 Russian roubles (RUB), equivalent to approximately 5,900 euros (EUR). By letter of 9 November 2006 the head of military unit no. 41480 informed the applicant that the financial aid was granted to him “in view of [his] difficult family situation, the necessity of taking care of three minor children and the absence of other sources of income”. 17. On 8 December 2006 the Military Court of the Pushkin Garrison issued a decision (“частное определение”) in which it criticised the head of military unit no. 41480 for granting the applicant three years’ parental leave, and thereby disregarding the judgment of 27 April 2006 in which it had been found that the applicant was not entitled to such leave. The court drew the attention of the head of the military unit to the unlawfulness of his order. 18. On 11 August 2008 the applicant applied to the Constitutional Court, claiming that the provisions of the Military Service Act concerning the three-year parental leave were incompatible with the equality clause in the Constitution. 19. On 15 January 2009 the Constitutional Court rejected his application. It held as follows: “2.1 ... military service is a special type of public service which ensures the defence of the country and the security of the State, it is therefore performed in the public interest. Persons engaged in military service exercise constitutionally important functions and therefore possess a special legal status which is based on the necessity for a citizen of the Russian Federation to perform his duty and obligation in order to protect the Fatherland. When establishing a special legal status for military personnel, the federal legislature is entitled, within its discretionary powers, to set up limitations on their civil rights and freedoms and to assign special duties... ... by signing a military service contract a citizen ... voluntarily chooses a professional activity which entails, firstly, limitations on his civil rights and freedoms inherent in this type of public service, and, secondly, performance of duties to ensure the defence of the country and the security of the State. Accordingly, military personnel undertake to abide by the statutory requirements limiting their rights and freedoms and imposing on them special public obligations. ... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status. Therefore, the imposition by the federal legislature of limitations on the rights and freedoms of such citizens is not in itself incompatible with [the Constitution] and is in accordance with ILO Discrimination (Employment and Occupation) Convention no. 111 of 25 June 1958 which provides that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (Article 1 § 2). 2.2 Under section 11 § 13 of [the Military Service Act] parental leave is granted to female military personnel in accordance with the procedure specified in federal laws and regulations of the Russian Federation. A similar provision is contained in section 32 § 2 of the Regulations on military service, which also provides that during parental leave a servicewoman retains her position and military rank. A serviceman under contract is entitled to leave of up to three months if his wife dies in delivery or if he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care). The purpose of such leave is to give the serviceman a reasonable opportunity to arrange for the care of his child and, depending on the outcome, to decide whether he wishes to continue the military service. If the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons... The law in force does not give a serviceman the right to three years’ parental leave. Accordingly, servicemen under contract are prohibited from combining the performance of their military duties with parental leave. This prohibition is based, firstly, on the special legal status of the military, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of servicemen who are fulfilling their duty to defend the Fatherland. Owing to the specific demands of military service, non-performance of military duties by military personnel en masse must be excluded as it might cause detriment to the public interests protected by law. Therefore, the fact that servicemen under contract are not entitled to parental leave cannot be regarded as a breach of their constitutional rights or freedoms, including their right to take care of, and bring up, children guaranteed by Article 38 § 2 of the Constitution of the Russian Federation. Moreover, this limitation is justified by the voluntary nature of the military service contract. By granting, on an exceptional basis, the right to parental leave to servicewomen only, the legislature took into account, firstly, the limited participation of women in military service and, secondly, the special social role of women associated with motherhood. [Those considerations] are compatible with Article 38 § 1 of the Constitution of the Russian Federation. Therefore, the legislature’s decision cannot be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women, as guaranteed by Article 19 §§ 2 and 3 of the Constitution of the Russian Federation. It follows from the above that section 11 § 13 of [the Military Service Act], granting the right to parental leave to female military personnel only, does not breach the applicant’s constitutional rights ... 2.4 As servicemen having minor children are not entitled to parental leave, they are also not entitled to receive monthly child-care allowances payable to those who take care of children under the age of a year and a half...” The Constitutional Court concluded that the provisions challenged by the applicant were compatible with the Constitution. 20. The Russian Constitution guarantees the equality of rights and freedoms of everyone regardless of, in particular, sex, social status or employment position. Men and women shall have equal rights and freedoms and equal opportunities (Article 19 §§ 2 and 3). 21. The Constitution also guarantees protection of motherhood and the family by the State. The care and upbringing of children is an equal right and obligation of both parents (Article 38 §§ 1 and 2). 22. The Labour Code of 30 December 2001 provides that women are entitled to a so-called “pregnancy and delivery leave” (maternity leave) of 70 days before the childbirth and 70 days after it (Article 255). Further, women are entitled to a three-year “child-care leave” (parental leave). Parental leave may be also taken in full or in part by the father of the child, his/her grandmother, grandfather, a guardian or any relative who is actually taking care of the child. The person on parental leave retains his/her employment position. The period of parental leave is counted for seniority purposes (Article 256). 23. The Federal Law on Obligatory Social Insurance of Sick Leave or Maternity Leave (no. 255-FZ of 29 December 2006) provides that during maternity leave the woman receives a maternity allowance, payable by the State Social Insurance Fund, amounting to 100% of the salary (section 11). During the first year and a half of the parental leave the person who is taking care of the child receives monthly child-care allowances, payable by the State Social Insurance Fund, amounting to 40% of the salary, but no less than RUB 1,500 for the first child and RUB 3,000 for each of the subsequent children (section 11.2). During the second year and a half of the parental leave no social-insurance payments or allowances are available. 24. The Federal Law on the Status of Military Personnel (no. 76-FZ of 27 May 1998, “the Military Service Act”) provides that female military personnel are entitled to maternity leave and to parental leave in accordance with the Labour Code (section 11 § 13). There is no similar provision in respect of male personnel. 25. Under the Regulations on military service, enacted by Presidential Decree No. 1237 on 16 September 1999, a servicewoman is entitled to maternity leave, to three years’ parental leave, and to all related social benefits and allowances. A serviceman under contract is entitled to three months’ leave in one of the following cases: (a) his wife has died in childbirth, or (b) he is bringing up a child or children under 14 years old (handicapped children under 16 years old) left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care) (section 32). 26. The relevant parts of the International Labour Organisation (ILO) Report “Maternity at work: A review of national legislation” (2005) read as follows: “While maternity leave aims to protect working women during their pregnancy and recovery from childbirth, parental leave refers to a relatively long-term leave available to either parent, allowing them to take care of an infant or young child over a period of time usually following the maternity or paternity leave period. ... The Workers with Family Responsibilities Recommendation, 1965 (No. 123) and the Maternity Protection Recommendation, 1952 (No. 95) ... only included provisions on maternity leave and only women’s need to reconcile work with family responsibilities were considered. One important change in the policy of the ILO with the adoption of the current Recommendations [and the Convention on Workers with Family Responsibilities, 1981 (No. 156)] was the recognition of fathers’ involvement in family responsibilities in general and in this case especially with regard to parental leave. This was an important step towards the creation of effective equality of opportunity and treatment for men and women workers... Contrary to the other regions, all the countries analysed in Europe provide a period of parental leave to take care of a newborn or young child, even if the length of the leave differs from country to country... A major difference between maternity and parental leave is the scope of the provisions. While maternity leave is available only for women, parental leave provisions normally are also available for men. In some countries, it is a shared entitlement, where either the mother or the father has the right to take parental leave [for example in Estonia]. In other countries, each parent has an individual right to parental leave, which cannot be transferred to the other parent [for example in Belgium and Iceland]. As mentioned above, according to the EU Directive on parental leave [Council Directive 96/34/EC of 3 June 1996], it should be available to both parents as an individual entitlement. To promote equal opportunities and equal treatment between men and women, parental leave should, in principle, be granted on a non-transferable basis (EC, 1996)... The introduction of parental leave provisions available to both fathers and mothers can be an effective tool for promoting gender equality. It recognizes the fact that fathers also have caring responsibilities. But even if parental leave by definition is available to both mothers and fathers, women are most often the ones who take parental leave, once maternity leave is finished. Generally, men’s take-up rates are very low (ILO, 1997). For this reason, some countries have introduced a paternity quota that can only be taken by the father and is lost if he does not use it...” 27. With respect to maternity leave the Report states, in particular, as follows: “In many countries, various categories of workers are explicitly excluded in the scope of labour legislation and/or social security legislation or of the corresponding law regulating cash maternity benefits... In the European Union ... the EU Directive applies to workers in all fields and occupations, with no exceptions. Nevertheless, ... in Greece, the armed forces, the police and domestic servants are not covered. In 1999, the Commission of the European Communities noted that the exclusion of these groups is contradictory to Community law, leading to infringement proceedings against [Greece] (Commission of the European Communities, 1999).” 28. A report entitled “International Review of Leave Policies and Related Research” published in July 2007 by the United Kingdom Department for Business, Enterprise and Regulatory Reform describes leave entitlements for workers with dependent children in twenty-four countries (twenty-one European countries, Australia, Canada and the United States of America). According to that report the United States of America is the only country where there is no statutory right to parental leave. In contrast to maternity and paternity leave, which are by definition gender-related, parental leave can be taken by either parent in all countries under examination except one (in Hungary only the mother is entitled to take parental leave during the child’s first year; during the child’s second and third years, however, parental leave may be taken by either parent). 29. Parental leave is a family entitlement in ten countries, to be divided between parents as they choose (Australia, Austria, Canada, Denmark, Estonia, France, Germany, Hungary, Poland and Spain); an individual entitlement in another ten countries, with each parent entitled to a certain portion of parental leave (Belgium, the Czech Republic, Greece, Iceland, Ireland, Italy, Portugal, Slovenia, the Netherlands and the United Kingdom); and mixed (part family, part individual entitlement) in three countries (Iceland, Norway and Sweden). Various measures have been introduced to encourage fathers to take parental leave. Mostly these take the form of wholly or partly individualised entitlements, whereby fathers not using their ‘quota’ will lose it, since unused leave cannot be transferred to a partner. Another approach is to offer bonus leave days to fathers who take some parental leave (as, for example, in Italy, Finland and Germany). 30. Parental leave may be unpaid (as, for example, in Greece, Ireland, Italy, the Netherlands, Spain and the United Kingdom). A majority of countries (16), however, provide some element of payment to the parent on leave. In seven cases (Austria, Belgium, the Czech Republic, Estonia, France, Italy and Poland) the payment is rather low, whether a flat rate or means-tested, or is paid for only part of the leave period, or a combination of these. Only nine countries pay an earnings-related benefit set at more than half of normal earnings. In some cases – notably the Czech Republic, France and Poland – parents on leave receive a general ‘child-rearing’ benefit that is paid to all parents with young children, not just those taking leave.