Konstantin Markin threw a military court into a dilemma: to side with the ECHR or to support the Constitutional Court of the Russian Federation

The case of Konstantin Markin v. Russia created a scandal between the ECHR and the Constitutional Court of the Russian Federation due to the fact that, for the first time, the ECHR seriously criticized the Constitutional Court’s arguments related to the same matter. As a result, Russian authorities, including the Constitutional Court, threatened to ignore the ECHR judgments when they affect Russia’s sovereignty and fundamental constitutional principles, and the Grand Chamber of the ECHR had to reconsider the case of Konstantin Markin v. Russia to alleviate the conflict.

The case of Konstantin Markin originated in 2005, when he was a divorced father of three minor children and a radio intelligence operator in the Russian armed forces. Since he was left to raise his children alone, he asked the head of his military unit for three years’ parental leave to take care of his children. His request was rejected since, according to Russian law, such leave could be granted only to female military personnel. Meanwhile, as concerns rights to parental leave, Russian law does not establish different treatment of civilian fathers and mothers that are both entitled to such leave.

Markin challenged the decision of his military unit in military courts claiming three years’ parental leave. In March and April 2006 the military courts dismissed his claims on the same grounds as having no basis in domestic law. Right after his unsuccessful court proceedings, the applicant lodged his complaint with the ECHR in May 2006. Interestingly, following submission of his application to the ECHR, in October 2006 the applicant’s military unit granted him approximately two years’ parental leave and financial aid of about 5,900 Euros contrary to the military courts decisions and domestic law.

Nevertheless, in 2008, Markin decided to apply to the Constitutional Court of the Russian Federation to challenge the provisions of the Military Service Act concerning parental leave. He claimed that inability of military fathers to take three years’ parental leave contradicts the principle of equality between men and women envisaged by the Russian Constitution. In 2009, the Constitutional Court rejected his application, stating, inter alia, that by signing a military service contract, a serviceman voluntarily accepts limitations on his civil rights and freedoms, which are necessary in order to create appropriate conditions for effective professional activity in defence of the country. The Constitutional Court also added that “if the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons.”

In October 2010, the ECHR delivered its Chamber judgment in case of Konstantin Markin v. Russia, where it found that refusal to grant the applicant three years’ parental leave violated Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention. In the same judgment the ECHR seriously criticized the arguments of the Constitutional Court presented in its judgment of 2009 and instructed Russian authorities to change Russian legislation to put an end to the discrimination against male military personnel as concerns their right to parental leave.

This was the first time ever the ECHR directly criticized the Constitutional Court of the Russian Federation, which immediately gave rise to a high-profile scandal between Russian authorities and the ECHR. The Constitutional Court regarded this judgment as interference in the internal affairs of Russia, and a Russian Senator, Alexander Torshin suggested a rather radical bill that limits the ECHR influence on Russia’s legal system. According to Torshin, if the ECHR and the Constitutional Court of the Russian Federation have different opinions regarding Russian law, the last word should always belong to the Constitutional Court. For example, if the ECHR finds that Russian law violates the Convention its judgments should be executed only in those cases when the Constitutional Court of the Russian Federation recognizes this Russian law to be unconstitutional. The Secretary General of the Council of Europe was “very concerned” with such reaction of the Russian authorities, and commented as follows:

 “I take this very seriously, but I trust that there will be a thorough debate before any decision is taken as there could be serious consequences both for the Russian Federation and the Council of Europe”.

As a result of this scandal the ECHR reconsidered Markin case at the request of the Russian Government. The second judgment, which is final, was given by the Grand Chamber of the ECHR on 22 March 2012. The ECHR’s second ruling still contradicts the position of the Constitutional Court and it reconfirmed violations of Articles 14 and 8 of the Convention. However, the ECHR retracted its criticism of the Constitutional Court and direct order to amend Russian discriminatory legislation.

Following his final victory at the ECHR, Konstantin Markin reapplied to the military court with a request to reconsider his case. On 25 July 2012 the military court accepted his case and on 21 August 2012 began its review. The military court faces a rather difficult dilemma in this case: to support the ECHR or to side with the Constitutional Court of the Russian Federation. In order not to be between two fires the military court may refer this matter back to the Constitutional Court by sending a request to check again the constitutionality of the provisions that the ECHR found discriminatory. The Constitutional Court may either refuse to consider this request, since it previously ruled on the same matter in 2009, or find a compromise in order to eliminate a conflict with the ECHR. In fact, the Chairman of the Constitutional Court is ready to compromise. Since in its second final judgment one of the decisive factors for the ECHR was that Markin served as a radio intelligence operator and could be easily replaced by other servicemen or servicewomen, the Constitutional Court Chairman suggested to grant parental leave only to those servicemen that perform their duty as a military assistance personnel.

It appears that this case is a matter of principle for Konstantin Markin. After getting almost two years’ parental leave and financial aid on an exceptional basis from his military unit, winning his case in the ECHR, retiring from the military and remarrying his ex-wife, finishing his law studies and becoming a lawyer afterwards, Markin still wants to continue his struggle against discrimination of military male personnel as concerns the rights to parental leave. Thus, in parallel with his military court proceedings, he is going to apply to the Russian Government and the Russian Parliament with a request to amend discriminatory Russian legislation in accordance with international law.  

447 Russian nationals brought a complaint to the ECHR in connection with the terrorist attack in Beslan

On 2 May, 2012 the ECHR communicated to the Russian Government seven applications brought by 447 Russian nationals related to the terrorist attack in school No.1 in Beslan, North Ossetia, on 1-3 September 2004. Some of the applicants were taken hostage or injured during this attack. Some of them are relatives of those who were held hostage, injured or killed. The applicants claim that Russia violated the following articles of the Convention: Article 2 (the right to life), Article 3 (prohibition of inhuman and cruel treatment), Article 6 (the right to a fair trial), Article 8 (the right to respect for family life), Article 10 (the right to receive and impart information) and Article 13 (the right to an effective domestic remedy). The complete text of the application can be found here (type “Emma Lazarovna TAGAYEVA and Others against Russia and 6 other applications” in the “Text” box and click “Search”).

On 1 September 2004 about 1,128 people were taken hostage by a group of terrorists in school No. 1 in Beslan. Among the hostages were about 800 children aged between several months and eighteen years. As a result of the terroristic attack 385 people died, including 334 hostages, and 186 of them children. 728 hostages were injured, 10 FSB servicemen were killed and 55 servicemen of the army and other law enforcement authorities were wounded. 31 terrorists were killed, and 1 terrorists was later sentenced to life imprisonment by a national court.

The applicants claim, inter alia, that Russian officials failed to prevent this terrorist attack and were directly responsible for deaths of several people due to disproportionate use of force by the authorities when attacking the terrorists and failure to exhaust all peaceful means to resolve the situation.

In connection with these application the Court asked the applicants and the Russian Government several question, including the following:

- if the operative information available prior to the hostage-taking of 1 September 2004 allowed the relevant authorities to consider school no. 1 in Beslan as a possible target of a terrorist attack;

- if all necessary precautions were fully implemented by the authorities in practice;

- if the authorities provided adequate medical and rescue aid to the victims;

- if the State authorities employed lethal force which was absolutely necessary and if it resulted in deaths and injury of hostages;

- if the Operative Headquarters strategy was aimed at guaranteeing the security of a maximum possible number of persons.

It should be noted, that a similar case has been already examined by the Court (Finogenov and others v. Russia). It concerned the terrorist attack that took place on 23-26 October 2002 in the Dubrovka theater, Moscow, Russia. The applicants’ claims were very similar to those of Beslan victims. In its judgment of 20 December 2011 the ECHR found, inter alia, that Russian authorities breached Article 2 (right to life) due to their failure to adequately plan and conduct the rescue operation. The Court noted that 

“… the rescue operation of 26 October 2002 was not sufficiently prepared, in particular because of the inadequate information exchange between various services, belated beginning of the evacuation, limited on-the-field coordination of various services, lack of appropriate medical treatment and equipment on the spot, and inadequate logistics. The Court concludes that the State breached its positive obligations under Article 2 of the Convention.” 

Meanwhile, the Court found that the use of lethal force by the security forces was justified and the use of gas during the storming was not in the circumstances a disproportionate measure.  

The ECHR judgment in the case of Tkachevy v. Russia

Last week on 14 February 2012 the ECHR delivered its judgment in the case of Tkachevy v. Russia. The details of the Tkachevy case are described in my previous post of 9 February 2012. The Court found a violation of Article 1 Protocol No.1 (protection of property) and ordered Russia to pay the applicants’ costs and expenses connected with the proceedings before the Court. As far as the damage is concerned, the applicants wished to have their flat in Znamenka returned (if possible at all). Otherwise, they claimed damage. However, the ECHR was not ready to decide the issue of the pecuniary and non-pecuniary damages and gave the parties 3 months to reach any possible agreement or provide their written observations on this question.

The Court did not have any doubts that actions of Russian authorities towards the applicants’ flat constituted expropriation and thus interfered with the applicants’ right to the peaceful enjoyment of their possessions. According to the Convention and the ECHR case law expropriation may be justified if it was done in the public interest, in accordance with national law and general principles of international law. If one of these requirements is not met, then the Government will be in violation of the Article 1 Protocol No.1 to the Convention. In the present case the Court was not convinced that Russian authorities expropriated the applicants’ flat in the public interest.

Thus, the Russian authorities claimed that the building was dilapidated and it was dangerous for the residents to stay there any longer; that’s why they made a decision to expropriate the building in the public interest of safety. However, a number of facts in the case prove the contrary:

1. The decision to expropriate the building was made before the issuance of the survey report that found the property unsafe and dangerous.

2. The conclusions in the report were predetermined, since the authorities admitted that the local prefect had requested to classify the building as dangerous.

3. If the expropriation had been motivated only by the safety concerns, the authorities would have let the applicants reoccupy the property after its repair, which had never happened in this case.

4. As a result of this expropriation 100% of the building went to the investor, Tverskaya Finance, which diminished the public element of the transaction, since it became in fact an alienation of property from one private party to another.

5. As a reason for ordering the expropriation, the domestic court referred to the conversion of the building into non-residential premises. However, according to the information located at http://znamenka9.ru (the Znamenka project site) the building where the applicants’ flat was located has become luxury residential premises after its repair contrary to the original goal of the project.

Based on the above facts the Court concluded that the Russian Government failed to show clearly and convincingly the public interest in the present case. Therefore, there has been a violation of Artilc1e Protocol No.1 to the Convention.

Tkachevy v. Russia: a case concerning eviction from a flat near Kremlin

Next week on 14 February 2012 the ECHR will deliver its judgment in case of Tkachevy v. Russia (Application no. 35430/05) concerning alleged violation of Article 1 Protocol No. 1 (protection of property). The applicants are Russian nationals, husband and wife, who were born in 1957 and 1966 respectively and live in Moscow. In 2005 they were evicted from the flat that they owned. This flat was located in the historical area of Moscow on Znamenka Street, close to Kremlin. Allegedly Russian authorities decided to expropriate the building where the applicants’ flat was located in the public interest, namely: first, in order to expand the Moscow State Art Gallery and, second, due to disrepair of the building which made it dangerous for its residents to stay there.

Meanwhile, the applicants disagree with such reasoning given by the authorities and claim that this decision to expropriate the building was not genuine. Thus, one of the main reasons for their eviction from and subsequent expropriation of the flat was that the authorities planned to turn the building into a non-residential one. But in fact the building has become a luxury residence after its repair and now it is owned by a private entity.

As a result of this expropriation decision the applicants’ flat was replaced by another one. However, the applicants claim that this replacement flat is worse than their previous one, since it is dilapidated and located next to a busy railway station.

The detailed analyses of the Court’s judgment in this case will follow shortly.

Russia and International Human Rights Law: Summer School in Estonia

This summer Martens Summer School on International Law organizes lectures devoted to Russia and International Human Rights Law.

Dates: 29 July – 3 August 2012

Place: University of Tartu premises in Pärnu, Estonia

The topics and lecturers will be the following:

• “Human Rights in Russian Courts – an NGO Perspective” (Dr Anton Burkov, Yekaterinburg; NGO “Sutyazhnik”);

• “ European Convention on Human Rights and Russia (Case-law of the European Court of Human Rights: A Judge’s View)” (Judge Anatoly Kovler, European Court of Human Rights);

• “The History of International Law and Human Rights in Russia – a Key to Understanding Today’s Debates” (Professor Lauri Mälksoo, University of Tartu);

• “The Place of International Law in Russia’s Legal System: Doctrine and Practice” (Professor Sergei Marochkin, Tyumen State University).

Deadline for applications is 4 June 2012.

For more information on eligibility requirements, application process and study fees please visit the link.

Most of the cases pending before the ECHR concern Russia

The official site of the ECHR reports that on 26 January 2012 the Court held its annual press conference, where the President of the Court, Sir Nicolas Bratza, presented the Court’s annual statistics for 2011. [For more information see the following documents: Annual Report 2011, Facts and Figures 2011  and Table of Violations 1959-2011]

Statistics for 1959-2011:

At the end of 2011, more than 151,600 cases were pending before the Court. And most of them are against Russia (26.6% of the total workload or 40,250 cases). The Court has delivered 14,854 judgments since it was established in 1959. 1,212 out of these judgments concern Russia. Only in 49 cases against Russia the Court found no violation of the Convention. Most often Russia violated the following provisions of the Convention:

- the right to a fair trial (Article 6) – 570;
- protection of property (Article 1, Protocol No.1) – 456;
- right to liberty and security (Article 5) – 422;
- inhuman or degrading treatment (Article 3) – 357;
- right to life (Article 2) – 202.

Statistics for 2011:

64,547 applications were allocated to a judicial formation in 2011. Russia topped the list of the countries in this category with 14,465 applications against it. However, the majority of the applications against Russia (12,223) was struck out of the list or declared inadmissible.

In 2011 the Court delivered 1,157 judgments, 133 of which concerned Russia. This is the second highest number after Turkey (174). Only in 10 cases against Russia the Court found no violation of the Convention. Most often Russia was found responsible for violation of the following Article of the Convention:

- right to liberty and security (Article 5) – 68;
- prohibition of inhuman or degrading treatment (Article 3) – 62;
- right to life (Article 2) - 53;
- right to respect for private and family life (Article 8) – 56;
- right to an effective remedy (Article 13) – 58;
- right to a fair trial (Article 6) – 40.

Based on analyses of the Court’s judgments concerning Russia delivered in 2011, most of the cases where Russia violated the right to life concerned forced disappearances in Chechnya. Violation of Article 3 of the Convention (prohibition of inhuman or degrading treatment) usually happened due to either the condition of the applicants’ detention or their ill-treatment in custody by police and other law enforcement officers.