Communicated on 21 September 2015
FIRST SECTION
Application no. 66180/09
Aleksandr Valeryevich GRUBA against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
I. APPLICATION NO. 66180/09
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant worked as a road police officer in the Syktyvkar Town Internal Affairs Department.
On 13 July 2008 the applicant’s wife gave birth to a son.
For financial reasons, given that the applicant’s wife had a higher salary than him, they decided that it was for the applicant to take parental leave as from April 2009.
On 22 April 2009 the applicant asked his superior for a parental leave until 13 January 2010. His request was refused because parental leave could be granted only to male personnel whose children were left without maternal care.
The applicant challenged the refusal before the Syktyvkar Town Court, claiming that he was entitled to parental leave.
On 6 July 2009 the Syktyvkar Town Court dismissed the applicant’s claim. It held that service in the police was a special type of public service which ensured the protection of the public safety and public order, it was therefore performed in the public interest. Persons engaged in such service exercised constitutionally important functions and therefore possessed a special legal status. Therefore, the imposition by the federal legislature, within its discretionary powers, of limitations on the rights and freedoms of persons serving in the police was not in itself incompatible with the Constitution. By signing a police service contract the applicant voluntarily chose a professional activity which entailed, firstly, limitations on his civil rights and freedoms inherent in that type of public service, and, secondly, performance of duties to ensure the protection of the public safety and order. Accordingly, the applicant undertook to abide by the statutory requirements limiting his rights and freedoms and imposing on him special public obligations.
Relying on section 54 of Regulation no. 4202-1 (see below), the District Court found that, by contrast to female personnel of the police, male personnel were entitled to parental leave only in case of bringing up children left without maternal care, namely in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where the children had no maternal care. That restriction was based, firstly, on the special legal status of the police, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of the police who were fulfilling their duty to protect public safety and order. Owing to the specific demands of the police service, non-performance of duties by personnel had to be excluded as it might cause detriment to the public interests protected by law. The restrictions on the right of the male personnel to take parental leave could not be therefore regarded as a breach of their constitutional rights or freedoms, including their right to take care of, and bring up, children. By granting, on an exceptional basis, the right to parental leave to female personnel, the legislature took into account the special social role of women associated with motherhood. Therefore, the refusal to grant parental leave to the applicant did not breach the principles of equality of human rights and freedoms or equality of rights of men and women.
On 10 August 2009 the Supreme Court of the Komi Republic upheld the judgment on appeal, finding it lawful, well-reasoned and justified.
In the meantime, on 2 July 2009 the applicant stopped coming to his place of work. On 24 August 2009 he was dismissed from his post.
The applicant challenged his dismissal before the Syktyvkar Town Court, claiming, in particular, that he had stopped coming to work because he considered that he was entitled to parental leave.
On 26 February 2010 the Syktyvkar Town Court dismissed his claim. Relying on the judgment of 6 July 2009, as upheld on appeal on 10 August 2009, the court reiterated that the applicant was not entitled to parental leave. His dismissal for systematic absences from his place of work had been therefore a lawful disciplinary measure.
On 8 April 2010 the Supreme Court of the Komi Republic upheld the judgment on appeal, finding it lawful, well-reasoned and justified.
B. Complaints
The applicant complains under Articles 8 and 14 of the Convention that the refusal to grant him parental leave and the subsequent dismissal from his post amounted to discrimination on grounds of sex.
II. APPLICATION NO. 30771/11
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant worked as a tax police officer in the Sverdlovsk Region Internal Affairs Department.
On 25 March 2009 the applicant’s wife gave birth to a son.
On 29 June 2009 the applicant asked his superior for a parental leave of a year and a half. On 7 August 2009 his request was rejected.
Meanwhile, on 9 July 2009 the applicant was dismissed from his post for reasons related to his health.
The applicant challenged the refusal of parental leave and his dismissal before the Verkh-Istetskiy District Court.
On 8 September 2010 the Verkh-Istetskiy District Court rejected his claims. Relying on section 54 of Regulation no. 4202-1, it found that, by contrast to female personnel of the police, male personnel were entitled to parental leave only in case of bringing up children left without maternal care. The applicant’s son was not left without maternal care as his mother had resumed work for financial reasons. The District Court also found that the applicant’s dismissal from his post had been lawful because his state of health was incompatible with the police service.
On 18 November 2010 the Sverdlovsk Regional Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified.
B. Complaints
The applicant complains under Articles 8 and 14 of the Convention that the refusal to grant him parental leave amounted to discrimination on grounds of sex and professional status.
III. APPLICATION NO. 50089/11
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant worked as an auditor in the audit unit of the St Petersburg Internal Affairs Department. He had the rank of a lieutenant colonel.
On 22 November 2009 the applicant’s wife gave birth to a son.
On 11 June 2010 the applicant’s wife was diagnosed with acute postnatal arthritis. She was prescribed a lengthy treatment and restrictions on physical activity.
On 29 June 2010 the applicant asked his superior for a parental leave until the third birthday of his son because his wife could not take care of him for medical reasons. His request was rejected by reference to section 54 of Regulation no. 4202-1 and a lack of medical documents confirming that it was “totally impossible” for the child’s mother to take care of him.
On 10 August 2010 a doctor recommended that the applicant’s wife should not lift any objects exceeding 5 kg.
On 14 September 2010 the applicant again asked his superior for a parental leave, referring to his wife’s health problems.
By letters of 24 and 28 September 2010 the Human Resources Department of the St Petersburg Internal Affairs Department rejected his request, noting that it was “recommended” to the applicant’s wife not to lift objects exceeding 5 kg rather than “formally prohibited” to do it. There was therefore no evidence that it was “totally impossible” for her to take care of the child and that the child was left without maternal care.
The applicant challenged the refusals before the Smolnenskiy District Court. He complained, in particular, of discrimination on grounds of sex.
On 14 December 2010 the Smolnenskiy District Court rejected the applicant’s claims. Relying on section 54 of Regulation no. 4202-1, it found that, by contrast to female personnel of the police, male personnel were entitled to parental leave only in case of bringing up children left without maternal care, namely in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where the children had no maternal care. Relying on the Constitutional Court’s Ruling
No. 566-O-O (see below), the District Court held that that provision was compatible with the Constitution. It was therefore incumbent on the applicant to prove that his child was left without maternal care. The medical documents submitted by the applicant did not prove that his wife was incapable of taking care of their son. She was not in hospital. Nor was she disabled. There was therefore no evidence that the child was left without maternal care. Accordingly, the refusal of parental leave had been lawful and justified.
On 21 February 2011 the St Petersburg City Court upheld the judgment on appeal.
Meanwhile, on 17 November 2010 the applicant was dismissed from his post for systematic absences from work. He challenged his dismissal before the Smolninskiy District Court, claiming, in particular, that he had stopped coming to work because he considered that he was entitled to parental leave.
On 16 May 2011 the Smolnenskiy District Court rejected his claims. Relying on the judgment of 14 December 2010, as upheld on appeal on 21 February 2011, the court reiterated that the applicant was not entitled to parental leave. His dismissal for systematic absences from his place of work had been therefore a lawful disciplinary measure.
On 18 July 2011 the St Petersburg City Court upheld the judgment on appeal, finding that it had been lawful, well-reasoned and justified.
B. Complaints
The applicant complains under Articles 8 and 14 of the Convention that the refusal to grant him parental leave and the subsequent dismissal from his post amounted to discrimination on grounds of sex.
IV. APPLICATION NO. 22165/12
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
At the material time the applicant worked as a tax police officer in the Novgorod Region Internal Affairs Department.
On 27 May 2010 the applicant’s wife gave birth to a son.
On 23 December 2010 the applicant’s wife was diagnosed with postnatal varicose veins of lower limbs. Her doctor recommended that she should not lift any objects exceeding 5 kg.
On 31 December 2010 the applicant asked his superior for a parental leave until 27 November 2011. His request was rejected by reference to section 54 of Regulation no. 4202-1.
On 1 February 2011 the applicant stopped coming to his place work because he considered that he was entitled to parental leave.
In reply to the applicant’s complaint, the Novgorod Region prosecutor’s office found, on 19 May 2011, that the refusal of parental leave had been lawful because there was no evidence that the applicant’s wife could not take care of the child.
On 31 May 2011 the applicant was dismissed from his post for systematic absences from work.
The applicant challenged the refusal to grant parental leave before the Novgorodskiy District Court, claiming that his wife could not take care of their child for health reasons. He also challenged the dismissal from his post and asked for monthly child-care allowances arrears.
On 23 August 2011 the applicant objected to the participation in the proceedings of the representative of the Novgorod Region prosecutor’s office. He submitted that the Novgorod Region prosecutor’s office had already stated its position on the issue in the letter of 19 May 2011 and was therefore biased. Relying on the Court’s judgment in the case of Menchinskaya v. Russia (no. 42454/02, 15 January 2009), he also complained that the prosecutor’s participation in the proceedings violated the principle of equality of arms guaranteed by Article 6 § 1 of the Convention. The applicant’s objection was dismissed. The prosecutor attended the hearing and expressed her position that the applicant’s claims were to be rejected.
On 14 October 2011 the Novgorodskiy District Court rejected the applicant’s claims. Relying on section 54 of Regulation no. 4202-1 and on the Constitutional Court’s Ruling No. 566-O-O, the District Court held that the refusal to grant parental leave to the applicant had been lawful and had not amounted to discrimination on grounds of sex. His dismissal for systematic absences from his place of work had been a lawful disciplinary measure.
The applicant appealed. He complained about discrimination on grounds of sex. He submitted, in particular, that equivalent posts in his unit were held by policewomen who were entitled to parental leave. He also complained that the public prosecutor’s intervention in support of the respondent’s position had violated his rights under Article 6 § 1 of the Convention. Lastly, the applicant objected to the participation of a prosecutor in the appeal hearing.
On 7 December 2011 the Novgorod Regional Court upheld the judgment of 14 October 2011 on appeal, finding that it had been lawful, well-reasoned and justified. It found that the applicant had not submitted evidence showing that his wife was unable to take care of the child. The applicant and his wife, who had resumed her work, lived and brought up their child together. It followed that the applicant’s child was not left without maternal care. The Regional Court further held that the prosecutor had lawfully participated in the proceedings in accordance with Article 45 § 3 of the Code of Civil Procedure. A prosecutor attended the appeal hearing.
On 9 July 2012 a judge of the Supreme Court of the Russian Federation refused to refer the applicant’s cassation appeal to the Civil Chamber of that Court for an examination, finding no significant violations of substantive or procedural law which influenced the outcome of the proceedings.
B. Complaints
The applicant complains under Articles 8 and 14 of the Convention that the refusal to grant him parental leave and the subsequent dismissal from his post amounted to discrimination on grounds of sex. He also complains under Article 6 § 1 of the Convention that the public prosecutor’s intervention in support of the respondent’s position had violated the principle of the equality of arms.
RELEVANT DOMESTIC LAW
A. Parental leave
The Russian Constitution guarantees equality of rights and freedoms of everyone regardless of, in particular, sex, social status or employment position. Men and women have equal rights and freedoms and equal opportunities (Article 19 §§ 2-3).
The Constitution also guarantees protection of motherhood and the family by the State. The care and upbringing of children is an equal right and obligation of both parents (Article 38 §§ 1-2).
The Labour Code of 30 December 2001 provides that women are entitled to a so-called “pregnancy and delivery leave” (maternity leave) of 70 days before the childbirth and 70 days after it (Article 255). Further, women are entitled to a three-year “child-care leave” (parental leave). Parental leave may also be taken in full or in part by the father of the child, his/her grandmother, grandfather, a guardian or any relative who is actually taking care of the child. The person on parental leave retains his/her employment position. The period of parental leave is counted for seniority purposes (Article 256).
The Federal Law on Obligatory Social Insurance of Sick Leave or Maternity Leave (no. 255-FZ of 29 December 2006) provides that during maternity leave the woman receives a maternity allowance, payable by the State Social Insurance Fund, amounting to 100% of her salary (section 11). During the first year and a half of the parental leave the person who is taking care of the child receives monthly child-care allowances, payable by the State Social Insurance Fund, amounting to 40% of the salary, but no less than RUB 1,500 for the first child and RUB 3,000 for each of the subsequent children (section 11(2)). During the second year and a half of the parental leave no social-insurance payments or allowances are available.
Regulation no. 4202-1 of 23 December 1992 On the service in Internal Affairs agencies of the Russian Federation (in force until 1 January 2012) provided that personnel of Internal Affairs agencies were entitled to maternity and parental leave in accordance with the laws in force (section 45). Female personnel of Internal Affairs agencies who were pregnant or were bringing up children, as well as male personnel bringing up children 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), were entitled to social benefits guaranteed by laws and other legal acts to such categories of population of the Russian Federation (section 54).
In its decision no. 566-O-O of 16 April 2009 the Constitutional Court found that section 54 of Regulation no. 4202-1 was compatible with the Constitution. It held as follows:
“2.1 Service in Internal Affairs agencies is a special type of public service which ensures the protection of the public safety and public order, it is therefore performed in the public interest. Persons engaged in such service exercise constitutionally important functions and therefore possess a special legal status. When establishing a special legal status for the personnel of Internal Affairs agencies, the federal legislature is entitled, within its discretionary powers, to set up limitations on their civil rights and freedoms and to assign special duties...
The imposition by the federal legislature of limitations on the rights and freedoms of persons serving in Internal Affairs agencies is not in itself incompatible with the Constitution.
... by signing a contract for service in an Internal Affairs agency a citizen ... voluntarily chooses a professional activity which entails limitations on his civil rights and freedoms inherent in that type of public service.
... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status.
2.2. ... personnel of Internal Affairs agencies, who are fathers, are prohibited from combining the performance of their service duties with taking care, by means of taking parental leave, of children who are not left without maternal care. This prohibition is based, firstly, on the special legal status of the personnel of the Internal Affairs agencies, and, secondly, on the constitutionally important aims justifying limitations on human rights and freedoms in connection with the necessity to create appropriate conditions for efficient professional activity of [such] personnel who are fulfilling their duty to protect public safety and order. It cannot be regarded as a breach of their constitutional rights or freedoms, including their right to take care of, and bring up, children guaranteed by Article 38 § 2 of the Constitution of the Russian Federation ...”
Regulation no. 4202-1 was replaced on 30 November 2011 by Federal Law no. 342-FZ On the service in Internal Affairs agencies of the Russian Federation, in force from 1 January 2012. Its Article 56 § 8 provides that female personnel of Internal Affairs agencies who are pregnant or are bringing up children, as well as male personnel bringing up children left without maternal care (in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where his children have no maternal care for objective reasons), are entitled to parental leave in accordance with Labour laws. Such personnel are also entitled to related social benefits in accordance with Labour laws and other legal acts, provided that they do not contradict the present Act.
B. Participation of a public prosecutor in the proceedings
The Code of Civil Procedure provides that a prosecutor participates in the proceedings and expresses his/her position on the case in cases concerning evictions, dismissals, compensation for health damage and other cases provided for by this Code or other federal laws (Article 45 § 3).
Common QUESTION
Did the refusal of parental leave on account of the applicants’ sex amount to discrimination against them, contrary to Article 14 of the Convention read in conjunction with Article 8 (see Konstantin Markin v. Russia ([GC], no. 30078/06, ECHR 2012 (extracts))? As regards each case, what was the applicant’s post in the police at the material time? May equivalent posts be held by policewomen?
Case-specific QUESTION
As regards application no. 22165/12, did the applicant have a fair hearing in the determination of his civil rights and obligations, as required by Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected as regards the participation of a State prosecutor in the proceedings (see Menchinskaya v. Russia, no. 42454/02, 15 January 2009; Batsanina v. Russia, no. 3932/02, 26 May 2009; and Korolev v. Russia (no. 2), no. 5447/03, 1 April 2010)?
APPENDIX
List of Applications
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
66180/09
24/11/2009
Aleksandr Valeryevich GRUBA
07/10/1979
Syktyvkar
Konstantin Aleksandrovich MARKIN
30771/11
21/04/2011
Oleg Vladimirovich MARINTSEV
08/11/1969
Revda
50089/11
03/08/2011
Aleksandr Valeryevich MIKHAYLOV
30/01/1967
St-Petersburg
22165/12
14/03/2012
Aleksey Vladimirovich MOROZOV
05/12/1970
Velikiy Novgorod
Full & Egal Universal Law Academy