Sunday, August 26, 2012

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.  

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