Live from Strasbourg: the hearing of Konstantin Markin v. Russia

Together with Lourdes and Stijn, I’ve just attended the Grand Chamber hearing in the case of Konstantin Markin v. Russia. We’ve blogged about this case here and here. Just to refresh your memory: the case concerns a military serviceman, Konstantin Markin, who was divorced from his wife and who had custody of their three young children. He applied for three years parental leave, but his request was denied because only female military personnel are allowed parental leave of such duration. The issue in Strasbourg is whether this difference in treatment is allowed because sufficient justifications exist for it, or whether it violates article 14 of the Convention in conjunction with article 8 (the non-discrimination provision in combination with the right to private/family life).

Our research team has taken a keen interest in this case. We – in the form of the Human Rights Centre of Ghent University – have submitted a third party intervention to the Court in this case. Our submission focused on the issue of gender stereotyping and how that is addressed by other instruments of international law. We were expressly asked by the President of the Court not to address the facts or the merits of the case, so our comments had to be of a quite general nature.

Now some first impressions of the hearing. Continue reading

A Rose By Any Other Name?

Shakespeare suggested that the names of things do not matter, but only their substance. The applicants in Losonci Rose and Rose v. Switzerland disagree. So does the Court, and so do I.

The applicants in this case are a couple who wanted to retain their own names after marriage, rather than adopt a double-barreled surname for one of them. Complicating factor was that the man was Hungarian by birth. Their reasons for not wanting to change their names were the difficulties in changing names in Hungarian law and the fact that the second applicant, who held an important post in the federal administration, was well known under her maiden name. Continue reading

“The special social role of women”: the Strasbourg Court does not buy it (Konstantin Markin v. Russia)

Last week, the Court delivered what might well turn out to be a landmark judgment on the issue of sex discrimination; Konstantin Markin v. Russia. The facts seem simple enough: a military serviceman was not entitled to the same parental leave as a military servicewoman would have had in his case. A classic discrimination case. Yet, on reading the case, it is apparent that a lot is going on that is worth discussing and worth applauding. Here are my first thoughts. Continue reading

Delegitimizing tradition as a “legitimate aim”: inspiration for Strasbourg from California

Perry v. Schwarzenegger, the recent judgment overturning Prop 8, got me thinking about legitimate aims. I believe the European Court of Human Rights could gain valuable insights from that case.

Newspaper readers will be aware that, last week, a federal judge in California rejected the amendment to the California constitution (Proposition 8 ) which banned same sex marriage. What is most interesting from a European perspective is the Californian judge’s masterly and compelling reasoning.

The point I want to highlight today is the way the Californian judge meticulously sets out why certain aims (or in U.S. jargon ‘state interests’) cannot be accepted as legitimate. Specifially, why preserving tradition cannot, in itself, be a legitimate interest. Continue reading