Denial of parental leave to a male police officer despite being the sole parent caring for a newborn. Conviction for prohibited discrimination and violation of family life
JUDGMENT
Β.Τ. v. Russia 19.03.2024 ( app. no. 15284/2019)
SUMMARY
The applicant, a police officer, applied for parental leave after the birth of his daughter. The child’s mother, who was hospitalized, refused to care for the infant and the applicant was left as the only parent responsible for the care of the child. The domestic authorities rejected the request for parental leave without a proportionality test between the legitimate aim of maintaining the operational efficiency of the police and the different treatment of men and women and without taking into account the best interests of the newborn child.
According to the ECtHR, with regard to the role of childcare during the period corresponding to parental leave, men and women are “similarly situated”, and gender stereotypes, such as the perception of women as the primary carers of children and men as the primary breadwinners, are not accepted. The Court stressed that these cannot be considered to constitute sufficient justification for different treatment between men and women with regard to the right to parental leave.
In this respect, it found that the authorities, in refusing to grant parental leave to the applicant, did not refer to circumstances showing that a temporary leave on parental leave would undermine the operational efficiency of the police. Therefore, the authorities failed to balance the legitimate interest in ensuring the operational efficiency of the police with the applicant’s right not to be discriminated against on grounds of sex in access to parental leave.
The ECtHR found a violation of Article 14 in conjunction with Article 8 of the ECHR.
PROVISIONS
Article 8
Article 14
PRINCIPAL FACTS
Between 1 August 2008 and 11 July 2017 the applicant was employed in the internal affairs agencies of the Russian Federation. From 25 December 2013 he held the position of head of the road police at the Department of Internal Affairs for the Digorskiy District of the Republic of North Ossetia‑Alania. His duties included supervising and managing the work of the traffic police in ensuring road safety, maintaining public order and policing crimes relating to road traffic. On 14 April 2017 the applicant married Ms T.S. On 26 May 2017 their daughter, A.T., was born. On 27 May 2017 T.S. refused to care for the child.
From 2 June to 15 June 2017 T.S. underwent medical treatment in the gynaecology department of the North Ossetia-Alania Republican Clinical Hospital. On 9 June 2017 the applicant removed the child from the maternity hospital. On 10 June 2017 a document confirming T.S.’s refusal to bring up the child was certified by a notary.
On 14 June 2017 the applicant asked his superior for parental leave until his daughter reached the age of three years. He submitted that his wife T.S. was refusing to bring up the child, that she was undergoing medical treatment in the North Ossetia-Alania Republican Clinical Hospital, and that it was he who was taking care of the child. He enclosed his marriage certificate, the child’s birth certificate and a copy of a notarised certificate of the mother’s refusal to bring up the child and asked for his request to be treated with utmost urgency.
On 15 June 2017 the applicant’s request was rejected by reference to section 56(8) of the Law on Service in Internal Affairs Agencies in the absence of evidence that the child lacked maternal care for objective reasons.
From 15 June 2017 the applicant stopped coming to his place of work.
On the same day, T.S. commenced divorce proceedings in the Leninskiy District Court of Vladikavkaz. Relying on her poor health and lack of income, she asked the court to determine the place of the child’s residence as being with the applicant and to grant her contact with the child for six hours every Sunday.
On 7 July and 11 July 2017 respectively the applicant was disciplined and dismissed from his post for being absent from work without good reason.
The applicant challenged the lawfulness of the above-mentioned decisions and of the refusal of his request for parental leave in the Digorskiy District Court of the Republic of North Ossetia-Alania (“the District Court”).
Meanwhile, on 2 October 2017 the Leninskiy District Court of Vladikavkaz dissolved the marriage between the applicant and T.S. The child’s place of residence was determined as being with the applicant. T.S. was granted visiting rights every Sunday from 11 a.m. to 5 p.m.
On 9 November 2017 the District Court dismissed the applicant’s claims.
The District Court examined the record of inspection of the applicant’s living conditions of 7 June 2017, from which it followed that the child’s mother had refused to bring up the child for health reasons and that the applicant intended to take parental leave to bring his daughter up himself. It examined documents confirming that it was the applicant who had picked the child up from the maternity hospital on 9 June 2017 because the mother had been transferred from the maternity hospital to the Republican Clinical Hospital for further medical treatment; that on 14 June and 15 June 2017 the child had been examined by a paediatrician from the children’s hospital at the applicant’s home address and in his presence; and that since the child’s birth it had been the applicant who had been taking care of her and taking her for medical check-ups at the children’s hospital (the document recording the last point was dated 4 August 2017).
The District Court questioned T.S., who testified that she had lived with the applicant from 2015, that their marriage had been registered on 14 April 2017, and that their daughter was born on 26 May 2017. She had not wanted to have a child for health reasons, and it had been the applicant who had insisted that her pregnancy was taken to term. On 27 May 2017 she had formally refused to bring up the child. T.S. further submitted that she had stayed at the gynaecology department of the North Ossetia-Alania Republican Clinical Hospital until 19 June 2017, following which she had undergone treatment at the Arkhonskaya Central District Hospital. The District Court noted in that connection that the medical documents in the case file confirmed T.S.’s stay in the Republican Clinical Hospital only until 15 June 2017. The entries in the Central District Hospital’s register confirming that she had undergone treatment there from 20 June to 8 July 2017 were found to be unreliable because they contained inconsistent information about T.S.’s year of birth, her place of residence, her diagnosis and the dates of her stay in the hospital.
The District Court further considered that the notarised document of 10 June 2017, whereby the child’s mother T.S. had formally refused to bring up the child born on 26 May 2017, did not imply a lack of maternal care. She had not been deprived of her parental authority and she had not been undergoing medical treatment at the point when the applicant had stopped coming to work. No other facts indicating the absence of maternal care for objective reasons as from 15 June 2017 were established during the proceedings. The District Court further relied on the decision of the Leninskiy District Court of Vladikavkaz, which had dissolved the marriage between the applicant and T.S., determined the child’s residence as being with the applicant and determined that the child would have contact with T.S., from which it concluded that T.S. was participating in bringing up and supporting the child, who was therefore not deprived of maternal care. The applicant’s dismissal for absence from his place of work was therefore found to have been a lawful disciplinary measure.
On 28 February 2018 the Supreme Court of the Republic of North Ossetia-Alania upheld the judgment on appeal, finding it lawful, well‑reasoned and justified.
On 29 May and 17 September 2018 the Supreme Court of the Republic of North Ossetia-Alania and the Supreme Court of the Russian Federation, respectively, rejected cassation appeals by the applicant.
THE DECISION OF THE COURT…
For the relevant general principles, see Konstantin Markin.
In Konstantin Markin, the applicant raised the issue of the exclusion of servicemen, by contrast with servicewomen, from entitlement to parental leave. The Court found that Article 14, taken together with Article 8, was applicable to parental leave. Accordingly, if a State decided to create a parental leave scheme, it had to do so in a manner which was compatible with Article 14 of the Convention.
The Court also found that, as regards parental leave and parental leave allowances, men were in a comparable situation to women. Indeed, in contrast to maternity leave, which was intended to enable the woman to recover from childbirth and to breastfeed her baby if she so wished, parental leave and parental leave allowances related to the subsequent period and were intended to enable the parent concerned to stay at home to look after an infant personally. Whilst being aware of the differences which might exist between the mother and the father in their relationship with the child, the Court concluded that, as regards the role of taking care of the child during the period corresponding to parental leave, men and women were “similarly placed”.
It follows from the above that for the purposes of parental leave the applicant, a policeman, was in an analogous situation to that of a policewoman.
The Court notes that, unlike the complete exclusion of male military personnel from entitlement to parental leave, Russian law provides that male police personnel are entitled to apply for parental leave if their children are left without maternal care for objective reasons. The entitlement of male police officers to parental leave is therefore conditional upon a lack of maternal care for their children for objective reasons, while policewomen are unconditionally entitled to such leave.
The Court has previously examined this difference in treatment between male and female police personnel and came to the conclusion that it was not objectively and reasonably justified under Article 14 of the Convention (see Gruba and Others v. Russia, nos. 66180/09 and 3 others, 6 July 2021).
The above findings concerning, in particular, unacceptability of reliance on gender stereotypes and the special status of the police to justify the difference in treatment between male and female police personnel as regards entitlement to parental leave, are fully applicable in the present case. In Gruba and Others (cited above) the Court further noted the difficulties a policeman could encounter even in cases where his particular family situation required him to assume the role of the primary caregiver for his child. The present case is no exception. Due to the strict and discriminatory interpretation of the conditional entitlement of male police personnel to parental leave – subject to lack of maternal care for objective reasons – the applicant’s request for parental leave was rejected despite the particular circumstances of his family situation clearly showing the absence of maternal care for his newborn child on a daily basis. No regard whatsoever was had to the best interests of the child.
Most importantly, in refusing to grant parental leave to the applicant, the domestic authorities did not refer to any circumstances showing that a temporary departure on parental leave of police officers holding positions similar to the applicant’s (head of the road police) would undermine the operational effectiveness of the police. The authorities therefore failed to perform any balancing exercise between the legitimate interest in ensuring the operational effectiveness of the police on the one hand, and, on the other hand, the applicant’s right not to be discriminated against on grounds of sex as regards access to parental leave.
In view of the foregoing, the Court considers that the difference in treatment between policemen and policewomen as regards entitlement to parental leave cannot be said to be reasonably and objectively justified. There was no reasonable relationship of proportionality between the legitimate aim of maintaining the operational effectiveness of the police and the contested difference in treatment. The Court therefore concludes that this difference in treatment, of which the applicant was the victim, amounted to discrimination on grounds of sex.
There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 8.
