Konstantin Markin: One more applause to the Court. This time from a perspective of religious minority rights

The case Konstantin Markin v. Russia was already discussed in a previous post written by my colleague Alexandra who, from a gender perspective, found it a very interesting case, worth applauding on several points.

I want to add an additional point from the perspective of religious minority rights. When reading the case I was surprised by the irony of the following statement made by the Court in paragraph 58:

“… 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.”

I would like you to compare this paragraph with a statement made by the Commission  in the –old –admissibility decision Konttinen v. Finland (1994). The case Konttinen concerned an employee who according to his religion (the Seventh-day Adventist Church) could not work during the Sabbath. The Sabbath started from sunset Friday afternoon. Consequently, he asked permission to end his work at sunset on these days, which would result in a maximum of 5 Fridays a year where he would have to stop earlier with work. He proposed to stay longer on other days to recuperate these hours. He absented several times from work on these moments and was subsequently dismissed. The Commission found the claim manifestly ill founded and made itself the following statement:

“In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1 Art. 9-1). Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief.

The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum, there is no indication that the applicant’s dismissal interfered with the exercise of his rights under Article 9 para. 1 (Art. 9-1) (cf. the above- mentioned No. 8160/78, loc.cit.)”

I think you can understand why I was struck by the Court’s being “particularly struck” by the national jurisprudence.  I am glad though that the Court finds it not obvious anymore that the possibility to relinquish your post is an ‘ultimate guarantee’ to enjoy your rights and freedoms provided by the European Convention on Human Rights when you are confronted with violations of your human rights in the workplace. If the Court would ever state this explicitly in an article 9 case, I would not only applaud, but I would give the Court a standing ovation!

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