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FIRST
SECTION
CASE OF KONSTANTIN MARKIN v. RUSSIA
(Application
no. 30078/06)
JUDGMENT
STRASBOURG
7 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Konstantin
Markin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 16 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30078/06) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Konstantin
Aleksandrovich Markin (“the applicant”), on 21 May 2006.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk,
former Representative of the Russian Federation at the European Court
of Human Rights.
- The
applicant complained, in particular, of the domestic authorities’
refusal to grant him parental leave because he belonged to the male
sex.
- On
30 August 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Novgorod. He is a serviceman
in military unit no. 41480.
- 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.
- 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.
- 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.
- 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.
- On
28 February 2006 the applicant was disciplined for systematic
absences from his place of work.
- 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.
- 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.
- 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.
- 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”.
- On
18 July 2006 the applicant was for a second time disciplined for
being absent from his place of work.
- 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”.
- 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.
- 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.
- 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.
II. RELEVANT DOMESTIC LAW
- 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).
- 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).
- 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).
- 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.
- 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.
- 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).
III. RELEVANT INTERNATIONAL MATERIALS
A. International Labour Organisation materials
- 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...”
- 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).”
B. Comparative law materials
- 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).
- 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).
- 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN
IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the refusal to grant him parental leave
amounted to discrimination on account of sex. He relied on Article 14
of the Convention taken in conjunction with Article 8 of the
Convention. The relevant provisions read as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. Submissions by the parties
- The
Government submitted that in October 2006 the applicant had been
granted parental leave and had received financial aid. They argued
that the matter had been resolved at the domestic level and asked the
Court to strike the case out of its list under Article 37 § 1
(b) of the Convention.
- The
applicant argued that his case could not be struck out for the
following reasons. Firstly, the parental leave had been granted more
than a year after the birth of his son and following communication of
the case to the Government. Secondly, the Government had never
acknowledged a violation of the applicant’s rights. The
parental leave and financial aid had been granted in connection with
a difficult family situation rather than to remedy a violation of his
rights under the Convention. The judgment of 14 March 2006, by
which his entitlement to parental leave had been denied by reference
to his sex, remained in force and on 8 December 2006 the domestic
courts had denounced the order granting him parental leave as
unlawful. The disciplinary sanctions imposed on him for his frequent
absences from work before the parental leave had been granted also
remained in force. Finally, the Constitutional Court had found that
the domestic legal provisions excluding male military personnel from
the entitlement to parental leave did not breach the
non-discrimination clause of the Constitution.
B. The Court’s assessment
1. Admissibility
- In
view of the domestic authorities’ decision to grant parental
leave to the applicant and to give him financial aid, the Court has
to consider, firstly, whether the applicant can still claim to be a
victim, within the meaning of Article 34, of the alleged violation of
the Convention and, secondly, whether the matter has been resolved
within the meaning of Article 37 § 1 (b) of the Convention.
(a) Victim status
- The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive him of his status
as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see, for example, Amuur
v. France, 25 June 1996, § 36, Reports of Judgments and
Decisions 1996-III, and Dalban v. Romania [GC],
no. 28114/95, § 44, ECHR 1999-VI).
- In
the present case no express acknowledgment of a breach of Article 14
taken in conjunction with Article 8 has been made by the national
authorities in the domestic proceedings or in the Strasbourg
proceedings. Nor could the decision to grant parental leave and to
pay financial aid to the applicant be interpreted as acknowledging,
in substance, that his right not to be discriminated against on
account of sex had been breached. Indeed, both the parental leave and
the financial aid were granted by reference to the applicant’s
difficult family and financial situations (see paragraph 16 above).
Moreover, even after the applicant was allowed, exceptionally, to
take parental leave, the domestic courts continued to hold that he,
being a serviceman, had no statutory entitlement to parental leave
and that his ineligibility for such leave did not breach his right to
equal treatment (see paragraphs 17 and 19 above).
- In
the absence of an acknowledgment by the national authorities of a
breach of the applicant’s rights under the Convention, the
Court holds that he may claim to be the victim of the alleged
discriminatory treatment for the purposes of Article 34 of the
Convention.
(b) Application of Article 37 § 1 of
the Convention
-
The Court will further examine the Government’s argument that,
in view of the measures taken by the domestic authorities to redress
the applicant’s situation, the matter had been effectively
resolved and the application should be struck out of the Court’s
list of cases in accordance with Article 37 § 1 (b) of the
Convention. Article 37 § 1 reads:
“The Court may at any stage of the proceedings
decide to strike an application out of its list of cases where the
circumstances lead to the conclusion that
(a) the applicant does not intend to pursue
his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the
Court, it is no longer justified to continue the examination of the
application.
However, the Court shall continue the examination of the
application if respect for human rights as defined in the Convention
and the Protocols thereto so requires.”
- Since
the applicant gave a clear indication that he intended to pursue his
application, sub-paragraph (a) of Article 37 § 1 is not
applicable. That does not, however, rule out the possibility of
applying sub-paragraphs (b) and (c), the applicant’s consent
not being a prerequisite for their application (see Akman v.
Turkey (striking out), no. 37453/97, ECHR 2001-VI, and Pisano
v. Italy [GC] (striking out), no. 36732/97, § 41, 24 October
2002). However, before taking a decision to strike out a particular
case, the Court must verify whether respect for human rights as
defined in the Convention requires it to continue the examination of
the case. The Court reiterates in this respect that its judgments
serve not only to decide those cases brought before it but, more
generally, to elucidate, safeguard and develop the rules instituted
by the Convention, thereby contributing to the observance by the
States of the engagements undertaken by them as Contracting Parties
(see Ireland v. the United Kingdom, 18 January 1978, §
154, Series A no. 25; Guzzardi v. Italy, 6 November 1980, §
86, Series A no. 39; and Karner v. Austria, no.
40016/98, § 26, ECHR 2003-IX). Although the primary purpose of
the Convention system is to provide individual relief, its mission is
also to determine issues on public-policy grounds in the common
interest, thereby raising the general standards of protection of
human rights and extending human rights jurisprudence throughout the
community of the Convention States (see Rantsev v. Cyprus and
Russia, no. 25965/04, § 197, 7 January 2010; Karner,
cited above, § 26; and Capital Bank AD v. Bulgaria,
no. 49429/99, §§ 78 to 79, ECHR 2005-XII (extracts)).
- The
Court takes note of the measures taken by the national authorities to
redress the applicant’s individual situation, in particular by
issuing an order allowing him, on an exceptional basis, to make use
of parental leave (see paragraph 16 above). At the same time, it
observes that the Military Service Act and the Regulations on
military service, which served as the legal basis for the repeated
refusals to grant the applicant parental leave, remain in force. By
virtue of that legislation a large group of people (male military
personnel) continue to be denied an entitlement to parental leave.
The Court considers that the subject matter of the present
application – the alleged discrimination under Russian law
against male military personnel as regards entitlement to parental
leave – involves an important question of general interest
which has not yet been examined by the Court. Further examination of
the present application would therefore contribute to elucidating,
safeguarding and developing the standards of protection under the
Convention. Accordingly, the Court does not find it appropriate to
strike the application out of its list of cases. It considers that
there are special circumstances regarding respect for human rights as
defined in the Convention and its Protocols which require the further
examination of the application on its merits. Accordingly, it rejects
the Government’s request for the application to be struck out
under Article 37 § 1 of the Convention.
(c) Conclusion
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) General principles
- As
the Court has consistently held, Article 14 complements the other
substantive provisions of the Convention and its Protocols. It has no
independent existence since it has effect solely in relation to “the
enjoyment of the rights and freedoms” safeguarded thereby.
Although the application of Article 14 does not presuppose a breach
of those provisions – and to this extent it is autonomous –
there can be no room for its application unless the facts at issue
fall within the ambit of one or more of them (see, among many other
authorities, Van Raalte v. the Netherlands, 21 February 1997,
§ 33, Reports 1997 I, and Petrovic v.
Austria, 27 March 1998, § 22, Reports 1998 II).
43. The
Court has also held that not every difference in treatment will
amount to a violation of Article 14. It must be established that
other persons in an analogous or relevantly similar situation enjoy
preferential treatment and that this distinction is discriminatory
(see Ünal Tekeli v. Turkey, no. 29865/96,
§ 49, ECHR 2004 X (extracts)).
A difference of treatment is discriminatory if it has no objective
and reasonable justification; in other words, if it does not pursue a
legitimate aim or if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised (see Stec and Others v. the United Kingdom [GC],
no. 65731/01, § 51, ECHR 2006 VI).
- The
Contracting States enjoy a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar
situations justify a difference in treatment (see Gaygusuz v.
Austria, 16 September 1996, § 42, Reports 1996 IV).
The scope of the margin of appreciation will vary according to the
circumstances, the subject matter and its background (see Rasmussen
v. Denmark, 28 November 1984, § 40, Series A no. 87, and
Inze v. Austria, 28 October 1987, § 41, Series A
no. 126), but the final decision as to observance of the
Convention’s requirements rests with the Court. Since the
Convention is first and foremost a system for the protection of human
rights, the Court must however have regard to the changing conditions
in Contracting States and respond, for example, to any emerging
consensus as to the standards to be achieved (see Weller v.
Hungary, no. 44399/05, § 28, 31 March 2009; Stec and
Others, cited above, §§ 63 and 64; Ünal
Tekeli, cited above, § 54; and, mutatis mutandis,
Stafford v. the United Kingdom [GC], no. 46295/99, §
68, ECHR 2002-IV).
(b) Application of these principles to the
present case
- It
was not disputed between the parties that the applicant could rely on
Article 14 of the Convention. The Court reiterates in this connection
that, by enabling one of the parents to stay at home to look after
the children, parental leave and related allowances promote family
life and necessarily affect the way in which it is organised.
Parental leave and parental allowances therefore come within the
scope of Article 8 of the Convention. It follows that Article 14,
taken together with Article 8, is applicable. Accordingly, although
Article 8 does not include a right to parental leave or impose any
positive obligation on States to provide parental leave allowances,
if a State does decide to create a parental leave scheme, it must do
so in a manner which is compatible with Article 14 of the Convention
(see, mutatis mutandis, Petrovic, cited above, §§
26 to 29).
- The
Court observes that the applicant, being a serviceman, had no
statutory right to parental leave. It is undisputed that civilians,
both men and women, as well as servicewomen, are entitled to parental
leave. The denial of parental leave to the applicant was accordingly
based on a combination of two grounds: military status plus sex. The
Court has to examine whether, in relation to parental leave, the
difference in treatment between parents depending on their military
or civilian status and on their sex is acceptable under Article 14.
- The
Court will first examine whether there is an objective and reasonable
justification for the difference in treatment between men and women
as regards entitlement to parental leave. It reiterates that the
advancement of the equality of the sexes is today a major goal in the
member States of the Council of Europe and very weighty reasons would
have to be put forward before such a difference of treatment could be
regarded as compatible with the Convention (see Burghartz v.
Switzerland, 22 February 1994, § 27, Series A no. 280 B,
and Schuler-Zgraggen v. Switzerland, 24 June 1993, §
67, Series A no. 263).
- The Court is not convinced by the Constitutional
Court’s argument that, as far as parental leave is concerned,
the different treatment of male and female military personnel is
justified by the special social role of mothers in the upbringing of
children (see paragraph 19 above). It observes that in contrast to
maternity leave and associated allowances, which are primarily
intended to enable the mother to recover from the fatigue of
childbirth and to breastfeed her baby if she so wishes, parental
leave and the parental leave allowances relate to the subsequent
period and are intended to enable the parent to stay at home to look
after the infant personally. Whilst being aware of the differences
which may exist between mother and father in their relationship with
the child, the Court considers that, as far as the role of taking
care of the child during this period is concerned, both parents are
“similarly placed” (see Petrovic, cited
above, § 36).
- The Court notes that, in the Petrovic v. Austria
case, a distinction on the basis of sex with respect to parental
leave allowances was found not to be in violation of Article 14. In
that case a broad margin of appreciation was granted to the
respondent State because of the great disparity in the 1980s between
the legal systems of the Contracting States in the sphere of parental
benefits. The Court held that at the material time there was no
European consensus in this field, as the majority of Contracting
States did not provide for parental leave or related allowances for
fathers (see Petrovic, cited above, §§
38 to 42). However, in the more recent case of Weller v. Hungary
the Court took a step away from the approach adopted in the
Petrovic case and found that the exclusion of natural fathers
from the entitlement to receive parental allowances, when mothers,
adoptive parents and guardians were entitled to them, amounted to
discrimination on the ground of parental status (see Weller, cited
above, §§ 30 to 35). It is also significant that since the
adoption of the judgment in the Petrovic case the legal
situation as regards parental leave entitlements in the Contracting
States has evolved. In an absolute majority of European countries the
legislation now provides that parental leave may be taken by both
mothers and fathers (see paragraphs 26 to 30 above). In the Court’s
opinion, this shows that society has moved towards a more equal
sharing between men and women of responsibility for the upbringing of
their children and that men’s caring role has gained
recognition. The Court considers that it cannot overlook the
widespread and consistently developing views and associated legal
changes to the domestic laws of Contracting States on this issue
(see, mutatis mutandis, Smith and Grady v. the United
Kingdom, nos. 33985/96 and 33986/96, § 104, ECHR 1999 VI).
It follows that the respondent State can no longer rely on the
absence of a common standard among the Contracting States to justify
the difference in treatment between men and women as regards parental
leave. Nor can the reference to the traditional perception of women
as primary child-carers provide sufficient justification for the
exclusion of the father from the entitlement to take parental leave
if he so wishes. Accordingly, the Court concludes that no convincing
or weighty reasons have been offered by the Government to justify the
difference in treatment between men and women as regards entitlement
to parental leave.
- The
Court also notes that under Russian law civilian men and women are
both entitled to parental leave. The difference in treatment on
account of sex concerns military personnel only. It must therefore be
ascertained whether there was an objective and reasonable
justification for special treatment of military personnel in that
sphere.
- The
Court reiterates that a system of military discipline, by its very
nature, implies the possibility of placing limitations on certain of
the rights and freedoms of the members of the armed forces which
could not be imposed on civilians. Those limitations do not in
themselves run counter to the States’ obligations under the
Convention (see Engel and Others v. the Netherlands,
8 June 1976, § 57, Series A no. 22). It follows that each State
enjoys a certain margin of appreciation in this respect, the scope of
which varies according to the nature of the activities restricted and
of the aims pursued by the restriction (see Smith and Grady,
cited above, § 89). At the same time it must be stressed that
military personnel are entitled to Convention protection and it
cannot be said that they waive their rights under the Convention when
they join the armed forces.
- The
Court has, however, accepted on several occasions that the rights of
military personnel under Articles 5, 9, 10 and 11 of the Convention
may, in certain circumstances, be restricted to a greater degree than
would be permissible in the case of civilians (see Engel and
Others, cited above, §§ 73 and 103; Kalaç
v. Turkey, 1 July 1997, § 28, Reports 1997 IV;
Larissis and Others v. Greece, 24 February 1998, §§
50 and 51, Reports 1998 I; Hadjianastassiou v. Greece,
16 December 1992, §§ 39 and 46, Series A no. 252; and
Pasko v. Russia, no. 69519/01, § 86, 22 October 2009). It
follows from the case-law cited above that a wide margin of
appreciation is open to States wishing to impose restrictions on the
rights of military personnel under Articles 5, 9, 10 and 11, taking
into account the special conditions attaching to military life and
the specific “duties” and “responsibilities”
incumbent on members of the armed forces.
- The
situation is however different with respect to restrictions on family
and private life protected by Article 8, in the sense that the States
have a narrower margin of appreciation in that sphere. Indeed, the
Court has found that the State may impose certain restrictions on the
rights of military personnel where there is a real threat to the
armed forces’ operational effectiveness, as the proper
functioning of an army is hardly imaginable without legal rules
designed to prevent service personnel from undermining it. It has,
however, added that the national authorities cannot rely on such
rules to frustrate the exercise by individual members of the armed
forces of their right to respect for their family or private life,
which right applies as much to service personnel as it does to others
within the jurisdiction of the State. Moreover, assertions as to a
risk for operational effectiveness must be “substantiated by
specific examples” (see Smith and Grady, cited above,
§ 89).
- The
gist of the present case is the difference in treatment between
servicemen and servicewomen as regards entitlement to parental leave.
By enabling the parent to stay at home, parental leave provides an
opportunity for that parent to take care of the child in the earliest
period of its life and to spend adequate time with it. The Court
considers that, in their relations with their children, servicemen
and servicewomen are in an analogous situation (see also paragraph 48
above). The Court considers that very weighty reasons are required to
justify a difference in treatment between servicemen and servicewomen
in this particularly important sphere of family life, which concerns
parents’ relations with their new-born children.
- The
Court observes that the Government have not provided any
justification in that connection. It transpires, however, from the
ruling by the Constitutional Court (see paragraph 19 above) that the
limitation of rights, such as the right to parental leave, imposed on
male military personnel has the aim of ensuring the operational
effectiveness of the army and, consequently, of protecting national
security. Whilst that aim is without doubt legitimate, this does not
in itself establish the legitimacy of the special treatment of the
male military personnel as regards the parental leave
entitlement. It has to be ascertained whether there is a reasonable
relationship of proportionality between the means employed and the
aim pursued.
- In
assessing the proportionality of the limitation of rights imposed on
servicemen the Court has to examine whether the alleged damage
to the operational effectiveness of the army is “substantiated
by specific examples”. Thus, although in the case of Smith
and Grady v. the United Kingdom, which concerned the
dismissal of homosexuals from the armed forces, the Court
allowed a certain margin of appreciation to the States as far
as the organisation of their own system of military discipline was
concerned, it nevertheless found that the applicants’ dismissal
from the armed forces on the ground of their sexual orientation
violated their rights under Article 8 of the Convention. It did not
accept the Government’s argument that the presence of
homosexuals in the army undermined its operational effectiveness,
because that argument was not supported by any concrete evidence and
the Court was not satisfied that operational-effectiveness problems
of the nature and level alleged could be caused by the admission of
homosexuals into the armed forces (see Smith and Grady, cited
above, §§ 89 to 112).
- In
the present case, the core argument of the Constitutional Court in
support of the limitation of the rights of servicemen was that
military service imposed specific demands in so far as it required
uninterrupted performance of duties by them and that, consequently,
the taking of parental leave by servicemen on a large scale would
have a negative effect on the fighting power and operational
effectiveness of the armed forces. The Court finds that argument
unconvincing. It notes the lack of concrete evidence to substantiate
the alleged damage to national security. There is no indication that
any expert study or statistical research was made to assess the
number of servicemen who would be in a position to take three years’
parental leave at any given time and would be willing to do so. There
is accordingly no evidentiary basis for the assertion that the number
of servicemen simultaneously taking parental leave would be so
significant as to undermine the fighting capacity of the army. It
follows that the Constitutional Court based its decision on a pure
assumption, without attempting to probe its validity by checking it
against statistical data or by weighing the conflicting interests of
maintaining the operational effectiveness of the army, on the one
hand, and of protecting servicemen against discrimination in the
sphere of family life and promoting the best interests of their
children, on the other. Accordingly, it has not been demonstrated to
the Court’s satisfaction that operational-effectiveness
problems of the nature and level alleged would be caused by extending
the parental leave entitlement to servicemen.
- Further,
the Court has already found that there was no objective or reasonable
justification for the different treatment of men and women in this
sphere (see paragraph 49 above). To the extent that the difference
was founded on the traditional gender roles, that is on the
perception of women as primary child-carers and men as primary
breadwinners, these gender prejudices cannot, by themselves, be
considered by the Court to amount to sufficient justification for the
difference in treatment, any more than similar prejudices based on
race, origin, colour or sexual orientation. Nor can the fact that in
the armed forces women are less numerous than men justify the
disadvantaged treatment of the latter as regards entitlement to
parental leave. The Court is particularly struck by the
Constitutional Court’s intimation that a serviceman wishing to
take personal care of his children was free to resign from the armed
forces. Servicemen are thereby forced to make a difficult choice
between nursing their new-born children and pursuing their military
career, no such choice being faced by servicewomen. The Court
reiterates in this respect the unique nature of the armed forces and,
consequently, the difficulty in directly transferring essentially
military qualifications and experience to civilian life. It is
therefore clear that, if they choose to resign from military service
to be able to take care of their new-born children, servicemen would
encounter difficulties in obtaining civilian posts in their areas of
specialisation which would reflect the seniority and status that they
had achieved in the armed forces (see, mutatis mutandis, Smith
and Grady, cited above, § 92). In view of the above
consideration, the Court finds that the reasons adduced by the
Constitutional Court provide insufficient justification for imposing
much stronger restrictions on the family life of servicemen than on
that of servicewomen. Accordingly, convincing and weighty reasons
have not been offered by the Government to justify the difference in
treatment between male and female military personnel as regards
entitlement to parental leave.
- In
view of the foregoing, the Court considers that the exclusion of
servicemen from the entitlement to parental leave, while
servicewomen are entitled to such leave, cannot be said to be
reasonably and objectively justified. The Court concludes that this
difference in treatment amounted to discrimination on the ground of
sex. There has therefore been a violation of Article 14 taken in
conjunction with Article 8.
II. ALLEGED VIOLATION OF ARTICLE 5 OF PROTOCOL NO. 7
- The
applicant complained that the domestic law provisions specifying that
three years’ parental leave can be taken by servicewomen only
violated his right to equality between spouses. He relied on Article
5 of Protocol No. 7 which reads as follows:
“Spouses shall enjoy equality of rights and
responsibilities of a private law character between them, and in
their relations with their children, as to marriage, during marriage
and in the event of its dissolution. This Article shall not prevent
States from taking such measures as are necessary in the interests of
the children.”
- The
Court observes that in accordance with the Explanatory Report to
Protocol No. 7, under the terms of Article 5 equality must be ensured
solely in the relations between the spouses themselves, in regard to
their person or their property and in their relations with their
children. The rights and responsibilities are thus of a private-law
character. The Article does not apply to other fields of law, such as
administrative, fiscal, criminal, social, ecclesiastical or labour
law (see Klöpper v. Switzerland, no. 25053/94, Commission
decision of 18 January 1996). The right to parental leave undoubtedly
belongs to the sphere of labour law and forms part of employment
relations, that is relations between the employee and his or her
employer, rather than relations between spouses. Moreover, the
Russian legislation on parental leave favours servicewomen
irrespective of their marital status. Therefore, the case concerns
inequality between the sexes rather than inequality between spouses.
- This complaint is accordingly incompatible ratione
materiae with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION
- Before examining the claims for just satisfaction
submitted by the applicant under Article 41 of the Convention, and
having regard to the circumstances of the case, the Court considers
it necessary to determine what consequences may be drawn from Article
46 of the Convention for the respondent State. Article 46 of the
Convention reads as follows:
“1. The High Contracting Parties
undertake to abide by the final judgment of the Court in any case to
which they are parties.
2. The final judgment of the Court shall be
transmitted to the Committee of Ministers, which shall supervise its
execution.”
- The Court reiterates that Article 46 of the
Convention, as interpreted in the light of Article 1, imposes on the
respondent State a legal obligation to implement, under the
supervision of the Committee of Ministers, appropriate general and/or
individual measures to secure the right of the applicant which the
Court found to be violated. Such measures must also be taken in
respect of other persons in the applicant’s position, notably
by solving the problems that have led to the Court’s findings
(see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and
41963/98, § 249, ECHR 2000-VIII; Christine Goodwin v. the
United Kingdom [GC], no. 28957/95, § 120, ECHR 2002-VI;
Lukenda v. Slovenia, no. 23032/02, § 94, ECHR
2005-X; and S. and Marper v. the United Kingdom [GC], nos.
30562/04 and 30566/04, § 134, ECHR 2008-...). This
obligation has been consistently emphasised by the Committee of
Ministers in the supervision of the execution of the Court’s
judgments (see, for example, ResDH(97)336, IntResDH(99)434,
IntResDH(2001)65 and ResDH(2006)1). In theory it is not for the Court
to determine what measures of redress may be appropriate for a
respondent State to take in accordance with its obligations under
Article 46 of the Convention. However, the Court’s concern is
to facilitate the rapid and effective suppression of a shortcoming
found in the national system of human-rights protection (see Driza
v. Albania, no. 33771/02, § 125, ECHR 2007 XII
(extracts)).
- In
the present case the Court found a violation under Article 14 in
conjunction with Article 8. The violation of the applicant’s
rights originated in shortcomings in the Russian legislation, namely
section 11 § 3 of the Military Service Act and the Regulations
on military service, enacted by Presidential Decree No. 1237 on 16
September 1999, by virtue of which the entitlement to parental leave
was limited to servicewomen as opposed to servicemen. As a
consequence, an entire category of individuals – male military
personnel – are discriminated against in the enjoyment of their
right to respect for family and private life. The Court’s
finding that the legislation in question is not compatible with the
Convention discloses a widespread problem in the legal framework
concerning a substantial number of people.
- It
has been the Court’s practice, when discovering a shortcoming
in the national legal system, to identify its source in order to
assist the Contracting States in finding the appropriate solution and
the Committee of Ministers in supervising the execution of judgments
(see, for example, Maria Violeta Lăzărescu v. Romania,
no. 10636/06, § 27, 23 February 2010; Driza,
cited above, §§ 122-126, and Ürper
and Others v. Turkey, nos. 14526/07,
14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07
and 54637/07, §§ 51 and 52, 20 October 2009). Having
regard to the problem disclosed in the present case, the Court is of
the opinion that general measures at national level would be
desirable to ensure effective protection against discrimination in
accordance with the guarantees of Article 14 of the Convention in
conjunction with Article 8. In this connection, the Court would
recommend that the respondent Government take measures, under the
supervision of the Committee of Ministers, with a view to amending
section 11 § 3 of the Military Service Act and the Regulations
on military service, enacted by Presidential Decree No. 1237 on 16
September 1999, to take account of the principles enunciated in the
present judgment with a view to putting an end to the discrimination
against male military personnel as far as their entitlement to
parental leave is concerned.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 400,000 euros (EUR) in respect of non pecuniary
damage. In respect of pecuniary damage, he claimed 59,855.12 Russian
roubles (RUB) representing the bonuses he would have received if he
had not been subjected to disciplinary sanctions for his absence
during his parental leave.
- The
Government submitted that the claims were excessive. Given that the
applicant had ultimately been granted parental leave and received
financial aid, the finding of a violation would constitute sufficient
just satisfaction. They further argued that there was no causal link
between the violation found and the pecuniary damage alleged.
- The
Court observes that the applicant did not submit any documents to
substantiate his claim for pecuniary damage. It therefore rejects
that claim.
- As regards non-pecuniary damage, the Court notes that
the applicant was allowed, on an exceptional basis, to take parental
leave and received financial aid from the domestic authorities. In
these circumstances, the Court considers that the finding of a
violation constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant.
B. Costs and expenses
- The
applicant also claimed RUB 46,169.93 for the costs and expenses
incurred before the domestic courts and the Court, including postal
expenses, translation costs, stationery and travel expenses. He
submitted vouchers and receipts to confirm his claim.
- The
Government agreed to pay stationery, postal and translation expenses.
They submitted that the remaining costs had not been directly
connected with the present application.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 200, plus any tax
that may be chargeable to the applicant on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaint concerning
the alleged discrimination in the exercise of the right to respect
for family life admissible and the remainder of the application
inadmissible;
- Holds by six votes to one that there has been a
violation of Article 14 of the Convention in conjunction with Article
8 of the Convention;
- Holds by six votes to one that the finding of a
violation constitutes in itself sufficient just satisfaction for any
non-pecuniary damage sustained by the applicant;
- Holds by six votes to one
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 200 (two hundred
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the dissenting opinion of Judge
Kovler is annexed to this judgment.
C.L.R.
S.N.
DISSENTING OPINION OF JUDGE KOVLER
I
regret that I am unable to join the majority in finding a violation
of Article 14 of the Convention in conjunction with Article 8 on
account of the alleged discrimination in the exercise of the right to
respect for family life of the applicant, an active serviceman.
First
of all, I had serious doubts as to the applicant’s victim
status, taking into account the specific circumstances of the case
(especially the fact that he was eventually granted parental leave
until the third birthday of his youngest son and even received
financial aid – see paragraph 16 of the judgment). Moreover,
the Military Court held that the applicant had failed to prove that
he was the sole carer for his children and that they lacked maternal
care (see paragraph 12). Accepting the applicant’s arguments
that the matter was not effectively resolved at the domestic level
within the meaning of Article 37 § 1 (b) of the Convention,
the Court, in its conclusions on the admissibility of the case, gives
the impression that the “issues on public-policy grounds in the
common interest” are more important than the specific and
delicate nature of the case (see paragraphs 39-40). I agreed
with this approach by voting for the admissibility of the case on the
basis that it would facilitate the expression of different views on
the merits.
My
second difficulty is with the application of the general principles
of the Court’s case-law concerning discrimination. I
share the view of some scholars that the concept of
non-discrimination is itself rather ambiguous (see, for example, X.
Bioy, “L’ambiguité du concept de
non discrimination”, in F. Sudre and H. Surrel (eds.), Le
droit à la non discrimination au sens de la Convention
européenne des droits de l’homme,
Brussels, 2008, pp. 51-84). The Court has held on many
occasions that not every difference in treatment will amount to a
violation of Article 14: “It must be established that other
persons in an analogous or relevantly similar situation enjoy
preferential treatment and that this distinction is discriminatory”
(see paragraph 43, with relevant references). The question is: does
“preferential treatment” of servicewomen in the army as
regards entitlement to parental leave amount to discrimination of
male military personnel? What about the famous “positive
discrimination” in the context of this case? I did not find a
clear answer to my question in the present judgment.
“A
difference of treatment is discriminatory if it has no objective and
reasonable justification; in other words, if it does not pursue a
legitimate aim or if there is no reasonable relationship of
proportionality between the means employed and the aim sought to be
realised” states the judgment, citing the case of Stec
and Others (see paragraph 43 for the reference). In my opinion
the arguments advanced by the Russian Constitutional Court are more
convincing and realistic than those of the Court.
The
core argument of the Constitutional Court in support of the
limitation of the rights of military personnel was that military
service imposed specific demands in so far as it required
uninterrupted performance of duties and that, consequently, the
taking of parental leave by servicemen on a large scale would have a
negative effect on the fighting power and operational effectiveness
of the armed forces. Given the special (armed forces) context of the
case and the wide margin of appreciation left to States in matters of
national security, I am prepared to accept the Constitutional Court’s
argument as providing objective and reasonable justification for the
difference in treatment between military personnel and civilians as
regards entitlement to parental leave.
Further,
as regards the fact that the exclusion from entitlement to parental
leave concerns only servicemen, while servicewomen are entitled to
take such leave, I agree that in principle there is no objective or
reasonable justification for different treatment of men and women in
this sphere in civilian life. However, the conditions and demands of
military life are by their very nature different from those of
civilian life and certain restrictions on rights which could not be
imposed on civilians are acceptable in the army (see the case-law
cited in paragraphs 51-52). The Constitutional Court held that women
were few in number in the armed forces and that for that reason the
taking of parental leave by them would have no impact on the fighting
capacity of the army. It was therefore a policy choice, motivated by
women’s special social role as mothers, to grant them
entitlement to parental leave on an exceptional basis. The
authorities’ direct knowledge of their society and its needs
means that they are in principle better placed than the international
judge to appreciate what is in the public interest. This is a common
meaning of the principle of subsidiarity. In such a case the Court
would generally respect the legislature’s policy choice unless
it is “manifestly without reasonable foundation” (see,
mutatis mutandis, Dickson v. the United Kingdom [GC],
no. 44362/04, § 78, ECHR 2007 XIII). In my opinion it cannot be
said that the decision to grant parental leave to servicewomen, while
at the same time denying that entitlement to servicemen, is
“manifestly without reasonable foundation”. I would
respect the legislature’s decision, which has moreover been
approved by the Constitutional Court.
Finally,
it is also relevant that it was the applicant’s free choice to
pursue a military career and that, by signing a military service
contract, he accepted a system of military discipline that by its
very nature implied the possibility of placing on the rights and
freedoms of members of the armed forces limitations incapable of
being imposed on civilians (see, for similar reasoning, Kalaç
v. Turkey, 1 July 1997, § 28, Reports 1997 IV).
In
view of the foregoing, I consider that the difference in treatment
between servicemen and all other parents – namely, servicewomen
and civilian men and women – as regards entitlement to parental
leave was reasonably and objectively justified.
My
last observation concerns the application of Article 46 of the
Convention. I would suggest that, unlike other structural problems
concerning Russia such as the non-enforcement of judgments of
national courts, supervisory review or conditions of pre-trial
detention, this isolated case does not impose on the respondent State
a legal obligation to implement appropriate general measures –
even taking into account the fact that the Court merely recommends
such measures, as it states in paragraph 67.
