Abstract

The first critical case that created serious tensions between the European Court of Human Rights (ECtHR) and the Russian Constitutional Court was Konstantin Markin v Russia, which by its nature was “non-political”. In Markin, the ECtHR openly criticized the Constitutional Court’s reasoning for the first time during this country’s interactions with the ECtHR. The main issue at stake in Markin was whether the Russian laws providing parental leave rights to mothers serving in the military were discriminatory in regard to male military fathers who did not enjoy identical rights. Both courts were required to evaluate whether the different treatment and limitations of a human right were allowed on the basis of the argument that the defence and security of the country as a public interest was at stake. The ECtHR found this practice to be discriminatory. By contrast, the Constitutional Court, in its earlier decision of 2009, had declared the application of Markin inadmissible. Accordingly, the Constitutional Court deemed the Russian legislation that was at issue to be non-discriminatory. The ECtHR selected the proportionality test for its evaluation of the limitations imposed on Markin. The Constitutional Court, in its turn, did not use any of the tests that are considered to be possible alternatives to the proportionality test. It started to apply the proportionality test, which is widely used in constitutional adjudication, but the test was not fully applied. No balancing between the private interests of a minority representative and a public interest to be protected by the imposition of such a limitation was performed. The overall objective of this article is to attempt to answer the two following research questions: were the starting grounds used for legal analysis applied with respect to the Markin case by the two courts comparable, and were the judicial reasoning techniques used by the Constitutional Court in line with the minimal standards applicable to the interpretation of human rights law?