Rejection of men’s application for parental leave constitutes gender discrimination and violates family life!
JUDGMENT
Gruba and others v. Russia 06.07.2021 (app. no. 66180/09, 30771/11, 50089/11 and 22165/12)
SUMMARY
Universal right to parental leave regardless of gender. Refusal to grant parental leave to men. Gender discrimination. Family life. Involvement of a prosecutor in a civil trial. Violation of equality of arms.
The four applicants are male police officers and civil servants respectively. They all have a wife and minor children. They applied for parental leave, but the request was rejected by the domestic courts because according to domestic law, only women are entitled to parental leave. The domestic courts did not take into account that in both cases, the mothers had health problems. Finally, in the case of an applicant, he participated in the civil trial, a prosecutor who made a negative suggestion.
They filed a complaint of discrimination in conjunction with a violation of the right to family life. Also for the case that the prosecutor participated in the trial for violation of article 6§1.
The Court reiterated that gender stereotypes could not adequately justify the difference between men and women in the right to parental leave.
It pointed out that every service must provide for its effective operation even in the event that some employees will be absent on leave and found that in the police, women always receive parental leave, regardless of the needs of the service.
The ECtHR ruled that parental leave should not be excluded under any circumstances, and that the difference in treatment between women and men regarding the right to parental leave was not justified and constituted racial discrimination.
The Court found a violation of the right to family life in conjunction with the prohibition of discrimination on grounds of sex (Article 8 in conjunction with Article 14).
It also found that the prosecutor’s intervention in a civil trial was not justified by reasons of public interest and his participation in the trial violated the equality of arms as a more specific manifestation of a fair trial (Article 6§1 of the ECHR).
The ECtHR awarded each applicant EUR 1,000 to EUR 7,500 in respect of non-pecuniary damage, EUR 1,196 in respect of Mr Mikhaylov for damages and costs.
PROVISIONS
Article 6
Article 8
Article 14
PRINCIPAL FACTS
The applicants are four Russian nationals, who were born between 1967 and 1979 and live in Russia.
Aleksandr Valeryevich Gruba (application no. 66180/09) worked as a road police officer in Syktyvkar,
Aleksandr Mikhaylov (no. 50089/11) as an auditor in the St Petersburg Interior Department, and
Oleg Marintsev (no. 30771/11) and Aleksey Morozov (no. 22165/12) as police tax inspectors.
Between 2009 and 2012, all four applicants had requests for parental leave rejected, essentially
because such leave could only be granted to a policeman if his child had been left without the care
of a mother. They challenged the refusals in the domestic courts, without success. The authorities
also found that there was no evidence that Mr Mikhaylov’s and Mr Morozov’s wives, who had been
diagnosed with health problems and had been advised not to carry anything heavier than 5 kg, could
not care for their children.
Mr Gruba, Mr Mikhaylov and Mr Morozov stopped working because they considered that they were
entitled to parental leave, and subsequently lost their jobs, while Mr Marintsev was dismissed for
health reasons. The appeals against these decisions were rejected by the courts.
In the case of Mr Morozov, the public prosecutor attended the civil hearing, expressing her position
that the applicant’s claims – concerning the refusal to grant parental leave and his dismissal — should
be rejected.
Relying on Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to
respect for private and family life), the applicants complained that the refusal to grant them parental
leave had amounted to gender discrimination.
In addition, relying on Article 6 § 1 (right to a fair hearing) Mr Morozov (application no. 22165/12)
complained about the public prosecutor’s participation in his hearing.
THE DECISION OF THE COURT…
Article 14 taken in conjunction with Article 8
The Court reiterated that gender stereotypes, such as the perception of women as primary childcarers and men as primary breadwinners, could not sufficiently justify a difference in treatment between men and women as regards entitlement to parental leave. Concerning the argument that,
in becoming policemen, the applicants had accepted limitations of their rights, the Court found that
their signature on their work contract could not be equated to a waiver of the right not to be
subjected to gender discrimination.
The Court accepted that maintaining the operational effectiveness of the police was a legitimate aim
that might justify certain restrictions on the rights of police personnel. However, it was not
convinced that an inherent requirement of police service was being excluded from parental leave. It
was significant that the entitlement to parental leave depended on the sex of the police personnel
rather than on their position in the police force, the availability of a replacement or any other
circumstance relating to the operational effectiveness of the police. Indeed, policewomen were
unconditionally entitled to parental leave and the restriction only concerned policemen.
In refusing to grant parental leave to each of the four applicants, the domestic authorities had failed
to balance the legitimate interest in ensuring the operational effectiveness of the police, on one
hand, and on the other, the applicants’ right not to be discriminated against on grounds of their
gender. Moreover, Mr Mikhaylov and Mr Morozov had been refused parental leave despite the fact
that their wives were not well enough to take care of their children.
The Court considered that the difference in treatment between policemen and policewomen as
regards entitlement to parental leave had not been justified and concluded that it had amounted to
gender discrimination. There had therefore been a violation of Article 14 of the Convention taken in
conjunction with Article 8 in respect of each applicant.
Article 6 § 1
The Court noted that while the prosecutor had legal grounds under the domestic legislation to
participate in the hearing, this particular case had not presented any special circumstances relating
to the protection of vulnerable persons or State interests justifying such an intervention. The Court
saw no reason to speculate on what effect the prosecutor’s intervention may have had on the
course of the proceedings; however it found that the mere repetition of the Interior Department’s
arguments by the prosecutor was meaningless unless it had been aimed at reinforcing the Interior
Department’s position and thereby influencing the court in its favour.
The Court therefore concluded that in the Russian context the principle of the equality of arms,
requiring a fair balance between the parties, had not been respected. There had accordingly been a
violation of Article 6 § 1 of the Convention in respect of Mr Morozov (application no. 22165/12).
Just satisfaction (Article 41)
The Court held that Russia was to pay the following:
i) 1,196 euros (EUR) to Mr Mikhaylov in respect of pecuniary damage;
ii) EUR 7,500 to Mr Gruba , EUR 7,500 to Mr Mikhaylov; EUR 1,000 to Mr Marintsev, and EUR 5,500
to Mr Morozov, in respect of non-pecuniary damage;
iii) EUR 1,200 to Mr Gruba, EUR 145 to Mr Marintsev, EUR 4,150 to Mr Mikhaylov, and EUR 406 to
Mr Morozov, in respect of costs and expenses.
