Reconciliation of private/family life and professional/public life

34. Gender stereotypes and a strong division of gender roles influence social models that tend to see women as mainly responsible for family and private life (in the area of unpaid work) and men in the public sphere and professional work (in the area of paid work). Such division leads to the persistence of unequally shared domestic and family responsibilities, being one of the major reasons for discrimination against women in the labour market and for their limited social and political participation.

35. The balanced participation of women and men in professional/public life and in private/family life is, therefore, a key area for gender equality and is essential for the development of society. On the other hand, reconciliation of work and public life with family and private life, promoting self-fulfilment in public, professional, social and family life, is a precondition for a meaningful quality of life for all, women and men, girls and boys, and for the full enjoyment of human rights in the political, economic, cultural and social spheres.

36. Elements indicating states’ political will and commitment to gender equality in this regard include the following:

...

iii. Adoption/existence and enforcement of legislation on maternity and paternity protection, including provisions on paid maternity leave, paid parental leave equally accessible to both parents, and paid non-transferable paternity leave, as well as specific measures addressed equally to women and men workers, to allow the fulfilment of family responsibilities, including care and assistance to sick or disabled children or dependants”.

62. Finally, in Recommendation Rec(2010)4 on the human rights of members of the armed forces, the Committee of Ministers recommended that the Governments of the member States should ensure, in particular, that “the principles set out in the appendix to this recommendation [were] complied with in national legislation and practice relating to members of the armed forces”. Principle 39 of the appendix to that Recommendation provides that “members of the armed forces who are parents of young children should enjoy maternity or paternity leave, appropriate childcare benefits, access to nursery schools and to adequate children’s health and education systems”.

C. European Union documents

1. The Council Directives

63. Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by UNICE [Union of Industrial and Employers’ Confederations of Europe], CEEP [European Centre of Enterprises with Public Participation and of Enterprises of General Economic Interest] and the ETUC [European Trade Union Confederation] gave effect to that agreement, which had been entered into on 14 December 1995 between those cross-industry representative organisations and which provided, in particular, as follows:

“Clause 2: Parental leave

1. This agreement grants, subject to clause 2.2, men and women workers an individual right to parental leave on the grounds of the birth or adoption of a child to enable them to take care of that child, for at least three months, until a given age up to 8 years to be defined by Member States and/or management and labour.

2. To promote equal opportunities and equal treatment between men and women, the parties to this agreement consider that the right to parental leave provided for under clause 2.1 should, in principle, be granted on a non-transferable basis...”

64. Council Directive 2010/18/EU of 8 March 2010 on the application of the revised Framework Agreement on parental leave between BUSINESSEUROPE, UEAPME, CEEP and the ETUC replaced Directive 96/34/EC. The revised Framework Agreement provides as follows:

“Clause 2: Parental leave

1. This agreement entitles men and women workers to an individual right to parental leave on the grounds of the birth or adoption of a child to take care of that child until a given age up to eight years to be defined by Member States and/or social partners.

2. The leave shall be granted for at least a period of four months and, to promote equal opportunities and equal treatment between men and women, should, in principle, be provided on a non-transferable basis. To encourage a more equal take-up of leave by both parents, at least one of the four months shall be provided on a non-transferable basis. The modalities of application of the non-transferable period shall be set down at national level through legislation and/or collective agreements taking into account existing leave arrangements in the Member States.”

2. Case-law of the European Court of Justice

65. The case of Joseph Griesmar v. Ministre de l’Economie, des Finances et de l’Industrie, Ministre de la Fonction publique, de la Réforme de l’Etat et de la Démocratisation, deals with the issue of service credit for children being awarded only to female civil servants in accordance with the French civil and military retirement pension scheme. In its judgment of 29 November 2001 the European Court of Justice (ECJ) observed that the grant of that credit was not linked to maternity leave or to the disadvantages which a female civil servant incurred in her career as a result of being absent from work during the period following the birth of a child. This credit was linked to a separate period, namely that devoted to bringing up the children. In this connection, the ECJ found that the situations of a male civil servant and a female civil servant were comparable as regard the bringing-up of children. In particular, the fact that female civil servants were more affected by the occupational disadvantages entailed in bringing up children, because this was a task generally carried out by women, did not prevent their situation from being comparable to that of a male civil servant who had assumed the task of bringing up his children and had thereby been exposed to the same career-related disadvantages.

66. Further, the ECJ noted that French legislation introduced a difference in treatment on grounds of sex in regard to male civil servants who had in fact assumed the task of bringing up their children. That measure was not justified because it was not of a nature such as to offset the disadvantages to which the careers of female civil servants were exposed by helping those women conduct their professional life on an equal footing with men. On the contrary, that measure was limited to granting female civil servants who were mothers a service credit at the date of their retirement, without providing a remedy for the problems which they might encounter in the course of their professional career. The French legislation therefore infringed the principle of equal pay inasmuch as it excluded male civil servants who were able to prove that they had assumed the task of bringing up their children from entitlement to the credit.

67. The judgment adopted by the ECJ on 30 September 2010 in the case of Roca Álvarez v. Sesa Start España ETT deals with the question whether the denial of “breast-feeding leave” (a half-hour reduction in the working day for the purpose of feeding a baby) to employed fathers, while employed mothers were entitled to such leave, amounted to discrimination on grounds of sex. The ECJ found that the positions of a male and a female worker, father and mother of a young child, were comparable with regard to their possible need to reduce their daily working time in order to look after their child. The Spanish legislation established a difference on grounds of sex, as between mothers whose status was that of an employed person and fathers with the same status.

68. As concerns justification for such a difference in treatment, the ECJ considered, firstly, that the leave at issue had been detached from the biological fact of breastfeeding, entitlement to it being granted even in cases of bottle feeding. It could be therefore considered as time purely devoted to the child and as a measure which reconciled family life and work following maternity leave. Feeding and devoting time to the child could be carried out just as well by the father as by the mother. Therefore that leave seemed to be accorded to workers in their capacity as parents of the child. It could not therefore be regarded as ensuring the protection of the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child.

69. Secondly, the measure at issue did not constitute a permissible advantage given to women with a view to improving their ability to compete on the labour market and to pursue a career on an equal footing with men. On the contrary, the fact that only a woman whose status was that of an employed person could take that leave, whereas a man with the same status could not, was liable to perpetuate a traditional distribution of the roles of men and women by keeping men in a role subsidiary to that of women in relation to the exercise of their parental duties. To refuse entitlement to the leave at issue to fathers whose status was that of an employed person, on the sole ground that the child’s mother did not have that status, could have as its effect that the mother would have to limit her self-employed activity and bear the burden resulting from the birth of her child alone, without the child’s father being able to ease that burden. Consequently, a measure at issue could not be considered to be a measure eliminating or reducing existing inequalities in society, nor as a measure seeking to achieve substantive as opposed to formal equality by reducing the real inequalities that could arise in society and thus to prevent or compensate for disadvantages in the professional careers of the relevant persons.

70. The ECJ concluded that the relevant provisions of Spanish law were incompatible with EU law.

D. Comparative law material

71. The Court conducted a comparative study of the legislation of thirty-three member States of the Council of Europe (Albania, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, the Czech Republic, Estonia, Finland, the “Former Yugoslav Republic of Macedonia”, France, Georgia, Germany, Greece, Italy, Latvia, Lithuania, Luxembourg, Malta, Moldova, the Netherlands, Poland, Portugal, Romania, Serbia, Spain, Sweden, Switzerland, Turkey and the United Kingdom).

72. The comparative study suggests that as far as civilians are concerned, in two States (Armenia and Switzerland) entitlement to parental leave is limited to women. In one State (Turkey) men working in the private sector are not entitled to parental leave, while male civil servants are entitled to such leave. In one State (Bosnia and Herzegovina) men may take parental leave under certain conditions only (for example, absence of maternal care of the child). In one State (Albania) no parental leave entitlement is provided by law. In the remaining twenty-eight States both men and women are equally entitled to parental leave in civilian life.

73. In some countries parental leave is a family entitlement to be divided between parents as they choose (for example in Azerbaijan, Georgia and Romania). In other countries it is an individual entitlement, with each parent entitled to a certain portion of parental leave (for example in Belgium, Croatia, the Czech Republic, Luxembourg and Italy). In Sweden the entitlement is partly family, partly individual, with 60 days reserved for each parent and the rest divided between them as they choose. In some countries parental leave is unpaid (for exampleAustria, Belgium, Cyprus, Malta, the Netherlands, Spain and the United Kingdom).In others parental leave is paid either in part or in full (for example Azerbaijan, the Czech Republic, Luxembourg, Serbia and Portugal). There are also varied approaches to the length of parental leave, ranging from three months (Belgium) to three years (Spain).

74. As regards military personnel, it appears that in one State (Albania) military personnel are not expressly entitled to parental leave. In six States (Armenia, Azerbaijan, Georgia, Moldova, Switzerland and Turkey) only servicewomen are entitled to such leave. In three States (Bosnia, Herzegovina, Bulgaria and Serbia) all servicewomen are entitled to parental leave, while servicemen are entitled to such leave only in exceptional cases, for example if the mother has died, has abandoned the child, is seriously ill or is unable to take care of the child for any other justified reason. In the remaining twenty-three States both servicemen and servicewomen are equally entitled to parental leave.

75. Insome countries (for example Austria, Croatia, Cyprus, Estonia, Finland, Italy, Luxembourg, Malta, Poland, Portugal, Serbia and Sweden) parental leave for military personnel seems to be governed by the same general provisions as those applicable to civilians. In other countries (for example the Czech Republic, Latvia, Greece, Lithuania, Romania and France) parental leave is regulated by specific provisions which do not, however, contain any significant differences as compared to the rules applicable to civilians. In five countries (Spain, Germany, the Netherlands, Belgium and the United Kingdom) the specific provisions governing parental leave for military personnel contain certain differences or restrictions not applicable to civilians. For example, legislation in the Netherlands provides that parental leave may be postponed where “important interests of the service” so require. In Germany military personnel benefit from the same statutory entitlements as civilians in terms of parental leave. However, the Ministry of Defence may oppose the attribution of parental leave to a serviceperson or recall a serviceperson on parental leave to duty on grounds of imperative needs of national defence. Similarly, in the United Kingdom, service personnel, who in principle have the same entitlement to parental leave as civilians, may not be able to take parental leave at their convenience if it is considered to affect the combat effectiveness of the armed forces.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8

76. The applicant complained that the refusal to grant him parental leave amounted to discrimination on grounds 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. The Government’s preliminary objections

77. The Government raised three preliminary objections. They submitted that the applicant could not claim to be a victim of a breach of Article 14 in conjunction with Article 8, that the application should be struck out of the Court’s list of cases because the matter had been effectively resolved and that the application constituted an abuse of the right of individual petition. They relied on Articles 34, 35 § 3 and 37 § 1 of the Convention, the relevant parts of which read as follows:

Article 34

“The Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto...”

Article 35

“... 3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

(a) the application is incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of individual application...”

Article 37

“1. 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...”

78. The Court will examine each of the Government’s objections in turn.

1. Victim status

(a) The Chamber judgment

79. The Chamber, which raised the matter of its own motion, noted that in the absence of an acknowledgment by the national authorities of a breach of the applicant’s rights under the Convention, he could still claim to be the victim of the alleged discriminatory treatment for the purposes of Article 34 of the Convention. The Chamber noted that the parental leave and the financial aid had been granted by reference to the applicant’s difficult family and financial situations. Those measures could not therefore be interpreted as acknowledging, in substance, that his right not to be discriminated against on account of sex had been breached. Moreover, even after the applicant had been allowed, exceptionally, to take parental leave, the domestic courts had continued to hold that, being a serviceman, he had no statutory entitlement to parental leave and that his ineligibility for such leave did not breach his right to equal treatment.

(b) The Government’s submissions

80. Before the Grand Chamber the Government argued that the applicant had been granted parental leave and received financial aid. He had therefore been afforded redress for the alleged violation. Moreover, the above measures could be seen as an acknowledgment in substance of a violation of his rights under the Convention. The applicant could not therefore claim to be a victim of a breach of Article 14 in conjunction with Article 8.

(c) The applicant’s submissions

81. The applicant submitted that the domestic authorities had not acknowledged a violation of the Convention and had not provided adequate redress. The parental leave of two years instead of three had been granted with a one-year delay after the application had been communicated to the Government. The applicant had been disciplined for his frequent absences from work during the year in which he had had to combine his military service with the care for his new-born child. Moreover, the domestic courts had declared that the parental leave had been granted unlawfully. As to the financial aid, it had been paid by reference to the applicant’s difficult family and financial situations and could not therefore be regarded as compensation for a violation of his right not to be discriminated against.

(d) The Court’s assessment

82. 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; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Sakhnovskiy v. Russia [GC], no. 21272/03, § 67, 2 November 2010).

83. The Grand Chamber notes that the parties have not put forward any new arguments on the issue of victim status in their written or oral submissions in the proceedings before it which were not examined by the Chamber. It therefore sees no reason to depart from the Chamber’s finding as to the applicant’s victim status. It finds that in the absence of an acknowledgment, either expressly or in substance, by the national authorities of a breach of the applicant’s rights under the Convention, he may claim to be the victim of the alleged discriminatory treatment for the purposes of Article 34 of the Convention. Accordingly, it rejects the Government’s first preliminary objection.

2. Application of Article 37 § 1 (b) of the Convention

(a) The Chamber judgment

84. The Chamber did not find it necessary to decide whether the granting of parental leave and of financial aid to the applicant had sufficiently redressed his situation such as to warrant the striking-out of his application. It observed that in any event the alleged discrimination under Russian law against male military personnel as regards entitlement to parental leave involved an important question of general interest, which the Court had not yet examined. It considered that there were special circumstances regarding respect for human rights as defined in the Convention and its Protocols which required the further examination of the application on the merits.

(b) The Government’s submissions

85. As they did before the Chamber, the Government submitted that the matter had been effectively resolved because the applicant had been granted parental leave and had received financial aid. They referred to the case of Pisano v. Italy ([GC] (striking out), no. 36732/97, §§ 41-50, 24 October 2002) and asked the Court to strike the application out of its list of cases in accordance with Article 37. It was not justified, in their opinion, to continue the examination of the case on the ground that it involved an important question of general interest. The Court’s task was not to examine in abstracto whether the Russian legal system complied with the Convention, but to examine whether there had been a violation in the particular case before it. By assessing Russia’s legislation, the Court would encroach upon the sovereign powers of the Parliament and the Constitutional Court.

(c) The applicant’s submissions

86. The applicant submitted that in order to conclude that “the matter [had] been resolved” within the meaning of Article 37 § 1 (b) of the Convention, the Court had to answer two questions in turn: firstly, it had to ask whether the circumstances complained of by the applicant still obtained and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances had also been redressed (he referred to Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 45, 7 December 2007). Neither of those two criteria was met in his case. Firstly, the legal provisions which had served as a basis for refusing him parental leave and the domestic decisions rejecting his application for parental leave remained in force. Secondly, the violation of his rights had not been sufficiently redressed. He had been granted two years of leave instead of three and there had been a delay of one year. He had not received any compensation for the delay or the reduction in length. The financial assistance received by him had been a welfare benefit paid in connection with his difficult financial circumstances. Moreover, in the applicant’s view, the Government could not take advantage of the decision by the head of the military unit to grant him parental leave and pay financial assistance on an exceptional basis, because that decision had been declared unlawful by the domestic courts. Finally, the applicant supported the Chamber’s finding that the case could not be struck out under Article 37 § 1 (b) because it “involved an important question of general interest which [had] not yet been examined by the Court”.

(d) The Court’s assessment

87. The Court reiterates that, under Article 37 § 1 (b) of the Convention, it 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 ...the matter has been resolved...”. To be able to conclude that this provision applies to the instant case, the Court must answer two questions in turn: firstly, it must ask whether the circumstances complained of by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (see Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 48, 7 December 2007).

88. In this respect it is significant that parental leave was granted to the applicant with a one-year delay and for only two years instead of three. The applicant was therefore unable to take care of his child during the first year of the child’s life when it most needed care. He had not received any compensation for the delay in granting parental leave or for the reduction of its length, the financial assistance having been granted, as noted above, by reason of his difficult financial situation. Accordingly, the Court considers that the effects of a possible violation of the Convention have not been sufficiently redressed for it to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b).

89. There is, however, a further ground for rejecting the Government’s request to strike the application out under Article 37 § 1 (b) of the Convention. 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 Karner, cited above, § 26; Capital Bank AD v. Bulgaria, no. 49429/99, §§ 78 to 79, ECHR 2005-XII (extracts); and Rantsev v. Cyprus and Russia, no. 25965/04, § 197, 7 January 2010).

90. The Court considers that the subject matter of the present application – the difference in treatment under Russian law between servicemen and servicewomen as regards entitlement to parental leave – involves an important question of general interest not only for Russia but also for other States Parties to the Convention. It refers in this connection to the comparative law material showing that a similar difference in treatment exists in at least five of the States Parties (see paragraph 74 above) and to the submissions of the third party stressing the importance of the issues raised by the present case (see paragraphs 119 to 123 below). Thus, further examination of the present application would contribute to elucidating, safeguarding and developing the standards of protection under the Convention.

91. Accordingly, 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.

92. The Court therefore rejects the Government’s request for the application to be struck out under Article 37 § 1 (b) of the Convention.

3. Alleged abuse of the right of individual petition

(a) The Government’s submissions

93. Before the Grand Chamber the Government argued for the first time that the application constituted an abuse of the right of individual petition. They submitted that the applicant had deliberately distorted the relevant facts in an attempt to mislead the Court. In particular, they argued that the applicant’s divorce from his wife had been a sham. After the divorce the applicant and his children had continued to live with his former wife’s parents and she had never paid any maintenance to them. There was evidence that she had regularly talked to her children over the phone and had occasionally picked them up from school or taken them to the doctor’s. She had also acted as the applicant’s representative in an unrelated set of court proceedings. In the Government’s opinion, it followed from the above that the applicant and his wife had continued their marital relationship even after the divorce and that the applicant’s wife had continued to take care of the children. Accordingly, the applicant’s statement that he was a single father of three children was false. It was also relevant that in 2008 the applicant had remarried his former wife and they had had a fourth child together. Finally, to show the applicant’s general dishonesty, the Government referred to a conflict between him and one of his colleagues and to a quarrel he had had with a presiding judge in an unrelated civil case.

(b) The applicant’s submissions

94. The applicant submitted, firstly, that the Government had raised this objection for the first time before the Grand Chamber. The objection had therefore been raised too late. Secondly, the scurrilous false allegations made by the Government against him were irrelevant for the case before the Court. Thirdly, the applicant had indeed divorced his wife and had obtained custody of their three children. The fact that he had later been reconciled with his ex-wife could not alter the fact that at the time when he had asked for parental leave he had been the sole carer for his three children. He had never concealed his remarriage from the authorities. His superiors had been immediately notified of this marriage and the birth of a fourth child.

(c) The Court’s assessment

95. The Court reiterates that, according to Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see K. and T. v. Finland [GC], no. 25702/94, § 145, ECHR 2001-VII; N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; and Mooren v. Germany [GC], no. 11364/03, §§ 57-59, ECHR 2009‑...).

96. The issue of the abuse of the right of individual petition was raised by the Government for the first time in their written submissions before the Grand Chamber. Their submissions relate to the events which had occurred in 2005 and 2006, that is before the present application was lodged. The Court sees no exceptional circumstances which could have dispensed the Government from the obligation to raise their preliminary objection before the adoption of the Chamber’s decision on admissibility. The Government are therefore estopped from raising it at this stage (see, for similar reasoning, Aydın v. Turkey, 25 September 1997, § 60, Reports 1997‑VI).

97. Accordingly, the Government’s third preliminary objection must be also dismissed.

B. Compliance with Article 14 taken in conjunction with Article 8

1. The Chamber judgment

98. Referring to the case of Petrovic v. Austria (27 March 1998, §§ 26-29, Reports 1998‑II), the Chamber found that the applicant could rely on Article 14 of the Convention. It further found that, being a serviceman, the applicant had been treated differently from civilians, both men and women, as well as servicewomen, who were all entitled to parental leave. The denial of parental leave to the applicant had accordingly been based on a combination of two grounds: military status plus sex. It further found that in their relations with their children during the period of parental leave men and women were in an analogous situation.

99. The Chamber noted that, in the Petrovic v. Austria case (cited above), a distinction on the basis of sex with respect to parental leave allowances had been found not to be in violation of Article 14 because 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. The Chamber further noted that since the adoption of the judgment in the Petrovic case the legal situation as regards parental leave entitlements in the Contracting States had evolved. In an absolute majority of European countries the legislation now provided that parental leave might be taken by both mothers and fathers. In the Chamber’s opinion, this showed that society had moved towards a more equal sharing between men and women of responsibility for the upbringing of their children and that men’s caring role had gained recognition. It was therefore time to overrule the Petrovic case and to hold that there was no objective or reasonable justification for the difference in treatment between men and women as regards entitlement to parental leave. The Chamber further condemned gender stereotypes in the sphere of child-raising.

100. Turning then to the special military context of the case, the Chamber reiterated that a system of military discipline, by its very nature, implied 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. Thus, a wide margin of appreciation was afforded to States wishing to impose restrictions on the rights of military personnel under Articles 5, 9, 10 and 11 of the Convention. The States, however, had a narrower margin of appreciation in the sphere of family and private life. Indeed, although States were allowed to impose certain restrictions on the Article 8 rights of military personnel where there was a real threat to the armed forces’ operational effectiveness, assertions as to the existence of such a threat had to be “substantiated by specific examples”.

101. The Chamber was not convinced by the Government’s argument that the extension of the parental leave entitlement to servicemen, where servicewomen already had such entitlement, would have a negative effect on the fighting power and operational effectiveness of the armed forces. Indeed, there was no expert study or statistical research on the number of servicemen who would be in a position to take three years’ parental leave at any given time and who would be willing to do so. Further, the fact that in the armed forces women were less numerous than men could not, in the Chamber’s opinion, justify the disadvantaged treatment of the latter as regards entitlement to parental leave. Finally, the argument that a serviceman was free to resign from the army if he wished to take personal care of his children was particularly questionable, given the difficulty in directly transferring essentially military qualifications and experience to civilian life. The Chamber noted with concern that servicemen were forced to make a difficult choice between caring for their new-born children and pursuing their military career, while no such choice was faced by servicewomen. Accordingly, it found that the reasons adduced by the Government had not provided objective or reasonable justification for imposing much stronger restrictions on the family life of servicemen than on that of servicewomen.

2. The applicant’s submissions

102. The applicant submitted that the Government’s position that he could not rely on Article 14 taken together with Article 8 was inconsistent with the Court’s long-established case-law. The Court had held on many occasions that parental leave, as well as parental and child benefits, came within the scope of Article 8 and that Article 14, taken together with Article 8, was applicable (see Weller v. Hungary, no. 44399/05, § 29, 31 March 2009; Okpisz v. Germany, no. 59140/00, § 32, 25 October 2005; Niedzwiecki v. Germany, no. 58453/00, § 31, 25 October 2005; and Petrovic, cited above, § 29). He further argued that parental leave had been necessary to promote his family life and the interests of his children. As his ex-wife had been unwilling to take care of them, it had been necessary for the applicant to stay at home and look after them, which would have been impossible without parental leave.

103. The applicant further argued that, as regards the need to take parental leave in order to be able to take care of his child, he was in a situation analogous to that of other parents, namely servicewomen and civilian men and women. As a serviceman, he had been treated differently from the above classes of parents as he had not been entitled to parental leave. Servicewomen, as well as civilian men and women, all had an unconditional entitlement to three years’ parental leave, while a serviceman could at most claim three months’ leave if his wife was dead or otherwise incapable of taking care of the child. Although the applicant had been ultimately granted parental leave, it could not alter the fact that he had been treated differently from other parents. In fact, his parental leave had been of a shorter duration and, according to the domestic courts, had been granted unlawfully. The applicant had therefore felt anxiety during the entire duration of the parental leave, as he had known that the leave could be cancelled and he could be recalled to duty at any time. Finally, the applicant had also been treated differently from servicewomen in that he had had to make a difficult choice between his military career and family life, while servicewomen were not faced with such a choice.

104. The applicant submitted that the argument that women had a special social role in the upbringing of children was based on gender stereotypes. As to the “positive discrimination” doctrine, it could not be used to justify a difference in treatment between men and women as regards entitlement to parental leave. Positive discrimination measures had to be proportionately tailored to the aim of correcting, compensating for, or mitigating the continuing effects of a hardship suffered by a historically disadvantaged group, such as women (see Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, §§ 37 and 40-43, 10 May 2007, and Stec and Others v. the United Kingdom [GC], no. 65731/01, §§ 61 and 66, ECHR 2006‑VI). Far from mitigating any historic disadvantage suffered by women, a policy whereby only women were entitled to take parental leave perpetuated gender stereotypes, inequality and hardship arising out of women’s traditional role of caring for the family in the home rather than earning money in the workplace. As a result, that policy discriminated both against men (in family life) and against women (in the workplace). The applicant concluded that there was no reasonable or objective justification for the difference in treatment between men and women as regards entitlement to parental leave.

105. As to the arguments relating to the fighting capacity of the army, the applicant submitted that under the Court’s case-law assertions as to the existence of a threat to the operational effectiveness of the army had to be substantiated by evidence whose validity and adequacy was subject to careful scrutiny by the Court (he referred to Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, §§ 89-112, ECHR 1999‑VI, and Lustig-Prean and Beckett v. the United Kingdom, nos. 31417/96 and 32377/96, §§ 82 and 88-98, 27 September 1999). In his opinion, the Government had not provided evidence showing that an extension of the parental leave entitlement to servicemen would create a threat to the fighting capacity of the army. In particular, the statistics provided by the Government were not conclusive and were not moreover supported by any document. The number of children under the age of three indicated by the Government apparently also included the children of servicewomen and those of administrative army personnel. It was therefore impossible to establish the number of servicemen who would be in a position to take parental leave at any given time. Most importantly, the Government’s admission that there was no relevant statistical information in their possession showed that the legal provisions limiting the parental leave entitlement to servicewomen had no factual foundation at the time of their adoption and had never been subjected to any factually-based review or update. According to the applicant’s estimation the number of servicemen who would be in a position to take parental leave at any given time would not exceed 3.47% of servicemen under contract; moreover, not all of them would be willing to take parental leave. The applicant submitted that under Russian law up to 30% of the personnel of a military unit were allowed to take leave at the same time and such military unit was considered to be fully operational.

106. The applicant further submitted that although it was true that women were few in number in the armed forces, they often performed the same duties as servicemen. In particular, the applicant’s superior in 1999 had been a woman. As shown by the lists of personnel on duty, on certain days the number of servicewomen on duty in his unit had reached 60%. These servicewomen were entitled to take parental leave and this had never created any concerns for the operational effectiveness of the army. In his opinion, instead of a purely quantitative approach, the Government should have adopted a qualitative one taking account of the nature of each person’s duties. The applicant concluded that the Government had not provided a reasonable or objective justification for the difference in treatment between servicemen and servicewomen as regards entitlement to parental leave.

107. Further, in reply to the Government’s argument that by signing a military contract he had agreed to a limitation of his rights, the applicant submitted that the Convention applied to members of the armed forces and not only to civilians (he referred to Engel and Others v. the Netherlands, 8 June 1976, § 54, Series A no. 22, and Lustig-Prean and Beckett, cited above, § 82). He further argued that although it was possible to waive Convention rights, such a waiver, to be valid, had to satisfy certain conditions. Firstly, a waiver “must not run counter to any important public interest” (he referred to Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006‑XII). Secondly, it “must be established in an unequivocal manner, and be given in full knowledge of the facts, that is to say on the basis of informed consent” (he referred to D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 202, ECHR 2007‑...). In the applicant’s opinion, the waiver alleged by the Government in the present case did not satisfy the above requirements. The Court had already held, in the context of discrimination based on race, that “in view of the fundamental importance of the prohibition of racial discrimination ... no waiver of the right not to be subjected to racial discrimination [could] be accepted, as it would be counter to an important public interest” (he referred to D.H. and Others, cited above, § 204). He argued that as the prohibition of sex discrimination was of the same fundamental importance (he referred to Andrle v. the Czech Republic, no. 6268/08, § 49, 17 February 2011; Van Raalte v. the Netherlands, 21 February 1997, § 39, Reports 1997‑I; and Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94), the right not to be discriminated against on account of sex could not be waived either. Further, the alleged waiver could not be considered unequivocal. The contract signed by the applicant was a standard one-page form which did not expressly inform the signatory that he undertook to renounce his right to parental leave.

108. Finally, the applicant submitted that Russian law did not leave any room for an individualised approach to parental leave in the army. The circumstances of the present case illustrated this amply. Indeed, after the applicant had been granted parental leave in view of his difficult family situation, the domestic courts had declared that measure unlawful. The applicant argued that an acceptable individualised approach would be to grant parental leave depending on the person’s position in the army rather than on sex. In particular, account should be taken of whether his or her unit was involved in active military actions or was being prepared for such actions and of his or her position in the unit. In the applicant’s view, it was illogical that a servicewoman who held an important military position in the unit had an automatic entitlement to parental leave, while a serviceman in a relatively insignificant military position had no such entitlement.

3. The Government’s submissions

109. In their request for referral the Government argued that the applicant could not rely on Article 14 taken together with Article 8. Article 8 did not guarantee a right to parental leave or parental leave allowances. These were by their very nature social and economic rights covered by the European Social Charter. They were not protected by the Convention. Accordingly, Article 14, which had no independent existence, was inapplicable.

110. The Government conceded that the applicant was in an analogous situation to all other parents – namely servicewomen and civilian men and women. As he had been granted parental leave, he had not been treated differently from them.

111. Further, the Government submitted that military personnel had a special status because their task was to ensure the defence of the country and the security of the State. The State was therefore entitled to set up limitations on their civil rights and freedoms and to assign special duties. The choice of military career was voluntary and, by signing a military service contract and by taking the oath of allegiance, servicemen accepted a system of military discipline that by its very nature implied the possibility of being subjected to limitations which could not be imposed on civilians (they referred to Kalaç v. Turkey, 1 July 1997, § 28, Reports 1997-IV). They also referred in this connection to the case of W., X., Y. and Z. v. the United Kingdom (nos. 3435/67, 3436/67, 3437/67 and 3438/67, Commission decision of 19 July 1968, Yearbook of the European Convention on Human Rights, Vol. 11 (1968), p. 598) in which the Commission found that “the term ‘respect for family life’ [could not] reasonably be given such a wide interpretation as to allow an individual - even a minor - to free him from the obligations under a long-term service engagement freely entered into but involving a separation from his family except for periods of leave”.

112. The Government further argued that States had a wide margin of appreciation in matters of national security, as well as in matters relating to general measures of economic and social strategy (they referred to James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98, and National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, 23 October 1997, § 80, Reports 1997‑VII). Because of their direct knowledge of the society and its needs, the national authorities were better placed than the international judge to appreciate what was “in the public interest”. The Court should respect the legislature’s policy choice unless it was “manifestly without reasonable foundation”.

113. They referred to the judgment of the Constitutional Court, which had found that military service imposed specific demands in so far as it required uninterrupted performance of duties by servicemen 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. That finding had had an objective and reasonable justification for the following reasons. Firstly, as argued by the British Government in the case of W., X., Y. and Z. (cited above), “the authorities responsible for the administration of the armed forces (upon which the security of the State depends) [had to] ensure the continuous and efficient manning of such forces if they [were] to meet their commitments”. Secondly, as of 1 January 2011 the total number of military personnel under contract was 216,600 persons. On the same date, there were 50,519 children under the age of three in the care of military and administrative army personnel. The Government submitted that they were unable to provide any further statistics. In particular, there were no statistics on the number of servicemen having children under the age of three. However, as all servicemen were of a “childbearing” age, that number might be significant.

114. The Government admitted that they were also unable to provide any document relating to the parliamentary debate on parental leave for military personnel. Given that the Military Service Act had been adopted 13 years earlier, that is before the ratification of the Convention by Russia, the Russian Parliament had no obligation under the Convention to address the question of justification for the difference in treatment and the Court had no jurisdiction ratione temporis to examine the issues relating to the parliamentary debate preceding the enactment of the law in question.

115. Further, the Government submitted that in a number of member States of the Council of Europe parental leave was not available to servicemen. Such countries included Switzerland, Turkey, Bulgaria, Poland and the Czech Republic. Moreover, in many countries parental leave was much shorter than in Russia. Given that in Russia parental leave was three years, such a long absence from service would have a negative impact on servicemen’s military skills, often involving the use of complicated high technology military equipment, and costly refresher training would be needed on their return. In such circumstances, it was reasonable that parental leave should be taken by servicemen’s wives, whose absence from work would have less negative consequences for society. In particular, the applicant served as a radio intelligence operator in a unit which was required to be in a state of permanent combat readiness. At the same time, they admitted that the applicant’s position could be held by a woman, who would be entitled to parental leave.

116. In this connection, the Government submitted that servicewomen were exceptionally granted an entitlement to parental leave in view of the following considerations. Firstly, according to modern scientific research, there existed a special biological and psychological connection between the mother and the newborn child. The mother’s presence and care during the first year of the child’s life was particularly important. It was therefore in the child’s interest that the mother took parental leave. Secondly, given that there were few women in the army, their absence from service would have no impact on fighting capacity. Indeed, on 1 January 2011 there had been only 1,948 servicewomen in the Russian army. Accordingly, in 2011 women represented only 0.8 % of military personnel (10% in 2008). Moreover, a majority of them served in positions not directly involving military duties, such as positions in the medical, financial or communications departments. In view of the above, the present case concerned a justified positive discrimination of women.

117. The Government also argued that Russian law provided for exceptions to the rule that servicemen were not entitled to parental leave. In particular, in accordance with Article 32 § 7 of the Regulations on military service (see paragraph 48 above), a serviceman under contract was entitled to such leave in one of the following cases: (a) his wife had died in childbirth, or (b) he was 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 had no maternal care). The list of exceptions was not an exhaustive one. The Government also referred to section 10(9) of the Military Service Act (see paragraph 47 above) according to which military personnel bringing up children left without maternal/paternal care were entitled to social benefits in accordance with federal laws and other legal instruments concerning the protection of family, motherhood and childhood. They produced documents showing the statistics for parental leave granted to servicemen and to policemen. It can be seen from the statistical information that there had been only one case, in 2007, where a serviceman had been granted parental leave of one year and a half in connection with his wife’s serious illness. In 2010 another serviceman had been granted three months’ special leave because his son had been left without maternal care. The Government also referred to twenty-one cases in which three years’ parental leave had been granted to male police officers. The main criterion for granting leave was therefore the fact that a serviceman’s children were left without maternal care. This fact, however, had to be proven. As the applicant had failed to prove that his children lacked maternal care, his application for leave had been refused. At the same time, he had ultimately been granted parental leave in view of his difficult family situation.

118. Finally, the Government submitted that the Chamber had acted outside its competence when it had ordered, under Article 46 of the Convention, that the Russian authorities should amend the relevant legislation. In their opinion, this was an isolated case which did not disclose any systemic problem under the Convention. It was not the Court’s task to assess an abstract problem of compatibility of domestic legislation with the Convention, let alone abolish, or give directions to abolish, the legal provisions contested by the applicant.

4. The third party’s submissions

119. The Human Rights Centre of the University of Ghent denounced the danger of gender stereotypes. Such stereotypes limited individuals’ life-choices and served to perpetuate gender inequality and subordination. They were at the same time the cause and manifestation of discriminatory treatment. Stereotyping men and women and confining them to certain traditional gender roles resulted, in particular, in a lack of support for those people, both men and women, who did not fulfil traditional roles. Such lack of support could be manifested, for example, through denial of social benefits to them. Gender stereotypes were also often referred to as a justification for the difference in treatment between men and women. The Court had, however, held on several occasions that prejudices and stereotypes were not sufficient justification for discriminatory treatment (they referred to Zarb Adami v. Malta, no. 17209/02, §§ 81 and 82, ECHR 2006‑VIII; L. and V. v. Austria, nos. 39392/98 and 39829/98, § 52, ECHR 2003‑I; Lustig-Prean and Beckett, cited above, § 90; and Inze v. Austria, 28 October 1987, § 44, Series A no. 126). The two stereotypes underlying the present case were, firstly, the traditional idea that women were responsible for the household and children, with men earning money outside the home and, secondly, the idea that fighting and military service were for men rather than for women.

120. The third party also referred to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in particular to its Article 5 (see paragraph 49 above), which imposed an obligation on States Parties to address gender stereotypes by modifying the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which were based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. The third party argued that although the present case concerned discrimination against a man, the CEDAW was relevant because the CEDAW Committee had interpreted it as applying to “all human beings regardless of sex” and because stereotypes of men were harmful not only to men but also to women. Gender role stereotypes locked women into the home and men out of it, thereby disadvantaging both sexes. The CEDAW Committee had stressed the importance of more than purely formal equality and had sought to combat the structural causes of discrimination. Gender stereotyping, and in particular the deeply rooted female-caregiver/male breadwinner stereotype, was one of them.

121. The third party also referred to the Concluding Observations on the periodic reports submitted by the Russian Federation, adopted on 30 July 2010 by the CEDAW Committee (see paragraph 51 above). The CEDAW Committee had stated, in particular, that it was concerned by “the persistence of practices, traditions, patriarchal attitudes and deep-rooted stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life ... [and by] the State party’s repeated emphasis on the role of women as mothers and caregivers”. The Committee was of the opinion “that a shift from a focus on women primarily as wives and mothers to individuals and actors equal to men in society [was] required for the full implementation of the Convention and the achievement of equality of women and men.”

122. Finally, the third party submitted that the present case involved so-called intersectional discrimination, that is discrimination based on several grounds which interacted with each other and produced specific types of discrimination. In their opinion, the difference in treatment of which the applicant complained could not be reduced to either military status or sex, but was rather the result of a combination of those two grounds. If discrimination on the basis of sex and discrimination on the basis of military status were analysed separately, the stereotypes concerning military servicewomen would recede to the background. If one set of comparisons concerned men and women in general, and the other set of comparisons concerned soldiers and civilians, then nowhere in that equation could the concerns of military servicemen, and even less so of servicewomen, be recognised directly.

123. In conclusion, the third party submitted that it was important to identify gender stereotypes and recognise their harm. States should be held accountable when they discriminated on grounds of sex and perpetuated gender inequality on the basis of gender stereotypes.

5. The Court’s assessment

(a) General principles

124. 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. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide. This principle is well entrenched in the Court’s case-law (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).

125. 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, cited above, § 51).

126. 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, cited above, § 41), but the final decision as to the 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).

127. The Court further reiterates that the advancement of gender equality 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). In particular, references to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, States are prevented from imposing traditions that derive from the man’s primordial role and the woman’s secondary role in the family (see Ünal Tekeli, cited above, § 63).

128. Regarding the specific context of the armed forces, the Court notes that during the preparation and subsequent conclusion of the Convention, the vast majority of the Contracting States possessed defence forces and, in consequence, a system of military discipline that by its very nature implied the possibility of placing on some of the rights and freedoms of the members of those forces limitations incapable of being imposed on civilians. The existence of such a system, which those States have retained since then, does not in itself run counter to their obligations under the Convention (see Engel and Others, cited above, § 57). It follows that each State is competent to organise its own system of military discipline and enjoys a margin of appreciation in this respect. The proper functioning of an army is hardly imaginable without legal rules designed to prevent service personnel from undermining it. However, 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 t

Date: 2015-12-11; view: 800