Communicated on 7 February 2017
SECOND SECTION
Application no. 54711/15
Kristina JURČIĆ
against Croatia
lodged on 28 October 2015
STATEMENT OF FACTS
The applicant, Ms Kristina Jurčić, is a Croatian national, who was born in 1975 and lives in Rijeka. She is represented before the Court by Ms K. Jajaš, a lawyer practising in Rijeka.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was diagnosed with fertility problems.
On 17 November 2009 she underwent in vitro fertilisation. She was recommended rest.
On 27 November 2009 the applicant, who was unemployed at the time, took up employment with company N., which had its headquarters in Klis.
According to an expert report by a specialist in gynaecology and obstetrics, E.Š.R., of 3 March 2010, on the day on which the applicant took her employment with company N. she was healthy and awaiting the results of her in vitro fertilisation. The expert also stressed that neither the applicant nor her gynaecologist could have known in advance whether the in vitro fertilisation would be successful and how the pregnancy would develop.
On 14 December 2009 the applicant felt unwell and went to see a doctor, who found that the in vitro fertilisation had been successful and that the applicant was pregnant but needed to stay at home and rest. A sick leave was thus indicated. On 17 December 2009 the applicant’s pregnancy was confirmed.
On 16 February 2010 the relevant Rijeka office of the Croatian Health Insurance Fund (Hrvatski zavod za zdravstveno osiguranje) refused the applicant’s request for special sick leave allowance. It based its decision on an in-house expert report according to which, at the moment when the applicant took up her employment with company N., she was medically unfit for employment. It was therefore considered that her employment was fictitious and aimed solely at obtaining the allowance.
The applicant challenged this decision before the Central Office of the Croatian Health Insurance Fund. She argued that she had felt well after having undergone the in vitro fertilisation and had not known whether she was pregnant or not. There was therefore no reason for her not to take up the employment on 27 November 2009.
On 30 March 2010 the Central Office of the Croatian Health Insurance Fund dismissed the applicant’s appeal and upheld the first-instance decision. It carried out further a assessment of the circumstances of the applicant’s employment and her medical condition. According to the information obtained by the employer, the applicant’s position in company N. required travelling inside and outside Croatia, teleworking and working at the headquarters of the company, which was not situated in the same city as the one in which the applicant had her residence. According to the Fund’s in-house expert report, the applicant, who might not have known that she was pregnant, was required to rest following the in vitro fertilisation, as this had also been indicated by her physician. On the basis of the evidence adduced, the Fund held that, although pregnancy in itself could not be a reason for not taking up an employment, the particular circumstances of the applicant’s case suggested that her employment could be considered fictitious and aimed solely at obtaining the allowance.
The applicant challenged this decision before the High Administrative Court (Visoki upravni sud Republike Hrvatske) arguing, in particular, that she had been discriminated against as a woman who had undergone in vitro fertilisation in comparison to other pregnant women who were seeking and taking up their employment and who would be granted the sick leave allowance.
On 5 December 2012 the High Administrative Court dismissed the applicant’s action, upholding the reasoning of the administrative bodies. It stressed that the applicant had not been medically fit to take up the employment following her in vitro fertilisation and in particular not an employment which required travelling. The High Administrative Court therefore considered that there was no discrimination against the applicant.
The applicant then lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating her previous arguments and alleging that she had been discriminated against.
Meanwhile, the applicant complained to the Gender Equality Ombudsperson (Pravobraniteljica za ravnopravnost spolova) alleging discrimination.
On 18 December 2010 the Ombudsperson found that the applicant had been discriminated against as a woman who had undergone in vitro fertilisation. The Ombudsperson stressed that the relevant authorities’ interpretation of the applicant’s situation would imply that every woman who underwent in vitro fertilisation should be considered to be physically unfit to take up an employment, which would consequently discourage employers from employing such candidates.
On 22 April 2015 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, upholding the findings of the administrative authorities and the High Administrative Court.
This decision was served on the applicant’s representative on 29 April 2015.
COMPLAINT
The applicant complains that she was discriminated against as a pregnant woman who had undergone in vitro fertilisation, in obtaining the relevant sick leave allowance, contrary to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, and Article 1 of Protocol No. 12.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1?
2. Has she suffered discrimination in obtaining the relevant social insurance, contrary to Article 1 of Protocol No. 12?
The Government are invited to submit copies of all the relevant documents concerning the applicant’s case.
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