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.
