Friday, 15 October 2010

Non-Discrimination, the Military, and Parental Leave

Equal rights for fathers and mothers, should they exist even in the army? That was at issue in the recently decided case of Konstantin Markin v. Russia. It is a case on gender roles in childcare and on non-discrimination in issues of parental leave. The applicant was a father responsible for raising three young children, including a new-born baby, after a divorce. Since he was a military serviceman, he had to ask for permission to take time to care for them for. His request for a period of leave of three years was rejected, since only women were allowed such long periods of parental leave from the military. When he appealed against this in court, the national judges emphasized the special role of women associated with motherhood in order to justify the difference made on the base of sex. They also pointed at the very limited participation of women in military service - to entail that parental leave for them did not endanger any public interest.

The facts of the case gave the Court a chance to issue a judgment on parental leave and the military. It approached the case from the perspective of the right to family life (Article 8 ECHR) in conjunction with the prohibition of discrimination (Article 14). The Court held that Article 8 does not impose any positive obligations on state parties to create parental leave possibilities or related allowances, but that if they did, they should do so in line with the probihition of discrimination. The denial of parental leave to the applicant was based on a combination of sex and military status. especially on the first grounds states always have to put forward very weight reasons to justify differneces in treatment. Most conspicuously, the Court went into the reasoning of russia's Constitutional Court on the roles of parents. The European Court held (para. 48):

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 pointed to a growing consensus in Europe on equal rights relating to parental leave, to the effect that Russia could no longer rely on a lack of common European standard. Then the Court noted (para. 49): " 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." Old prejudices can thus no longer sustain current practices in this matter. In Russia, the difference at stake relates only to military service personnel (for civilians equal rights exist). Even if in general human rights of the military can be restricted to a larger extent than in other situations, when they relate to Article 8 the margin for states becomes narrower. In this case, Russia had failed to show that allowing parental leave for men would truly endanger the effectiveness of the military (no statistics or other proof) and thus the reasoning of Russia, according to the Court, was based on "a pure assumption" (para. 57). In conclusion, the Court found a violation of Article 14 taken together with Article 8.

It is notable that although this was the first time such a case (parental leave in the military) was decided by the Court, it did emphasize that it concerned a wider problem than the individual case at hand. After all, the discrimination flowed from legislation. Thus the Court recommended under Article 46 ECHR (states have to abide by final judgments of the Court) that Russia amend the relevant law in line with the principles developed in the judgment.

The judgment was arrived at with a vote of six against one: only the Russian judge dissented. Judge Kovler was of the opinion that the reasoning of Russia's national judiciary, which placed more emphasis on the effectivenss of the military (which necessitated placing restrictions on servicemen), was more convincing than the Court's own argumentation. In addition, he concluded that this was an isolated case and that Russia would not need to take general measures. It is always a pity if only the national judge dissents as that might negatively affect the authority of the Court's judgment in the country concerned.

Pride and prejudice - Jane Austen could write another novel on it!

1 comment:

Joe said...

Please aknowledge the nationality of the person and/or uniform in the photo. Then it might be worth a brief look at that nation's military's parent relations policy.