Communicated on 9 February 2015
FIRST SECTION
Application no. 52334/08
Yevgeniy Viktorovich PILCHUK against Russia
lodged on 2 June 2008
STATEMENT OF FACTS
The applicant, Mr Yevgeniy Viktorovich Pilchuk, is a Russian national, who was born in 1971 and lives in the Tomsk region.
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 was a deputy chief of staff of the Suspects’ and Accused’s Convoy Police Unit of the Tomsk Regional Internal Affairs Department. His wife was a police officer in the Tomsk Regional Internal Affairs Department.
On 1 April 2005 the applicant’s wife gave birth to a son. She was on parental leave until 1 June 2006 when she resumed her work as a police officer.
On 1 September 2006 the applicant asked his superior for a parental leave from 18 October 2006 until 1 April 2008, the third birthday of his son. His request was rejected.
On 18 October 2006 the applicant stopped coming to his place of work. On 10 February 2007 he was dismissed from his post.
The applicant challenged his dismissal before the Sovetskiy District Court of Tomsk, claiming that he was entitled to parental leave. He also claimed monthly child-care allowances arrears and compensation for non-pecuniary damage.
On 14 June 2007 the Sovetskiy District Court of Tomsk dismissed the applicant’s claim. Relying on section 54 of Regulation no. 4202-1
(see below), 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. The applicant had not proved that his son was left without maternal care. The child’s mother, a police officer serving in the same Tomsk Regional Internal Affairs Department as the applicant, had renounced her right to further parental leave and resumed her service in the police. There were no obstacles for her taking care of the child. The applicant was therefore not entitled to parental leave. His dismissal for systematic absences from his place of work had been therefore a lawful disciplinary measure.
On 24 August 2007 the Tomsk Regional Court quashed the judgment of 14 June 2007 on appeal and allowed the applicant’s claims in part, finding that the District Court had incorrectly applied domestic law. It held that section 54 of Regulation no. 4202-1 concerned restrictions on missions, overtime or night work or work on weekends for pregnant women or women having children under the age of one year and a half. It did not cover parental leave. The provision applicable to parental leave was section 45 of Regulation no. 4202-1, which did not make any distinction between female and male personnel as regards entitlement to parental leave. It provided that police personnel were entitled to parental leave in accordance with the laws in force, that is in accordance with Article 256 of the Labour Code. The parental leave was to be granted automatically without being conditional on the employer’s agreement. The applicant’s employer had therefore no right to reject his request for parental leave.
The Regional Court further held that owing to specific demands of police service it was permissible to restrict certain rights of the police personnel. However, both the applicant and his wife served in the same Internal Affairs Department and were therefore entitled to the same rights and were subject to the same restrictions related to their service. The District Court had not cited any arguments justifying the restriction of the right to parental leave of the male personnel of the police as compared to the female personnel. Therefore, the refusal of parental leave to the applicant on the ground that he had not proved that his child was left without maternal care amounted to discrimination on grounds of sex.
The Regional Court concluded that in such circumstances the applicant’s dismissal from his post in the police had been unlawful and ordered that the applicant be reinstated to his post. It further referred the remainder of his claims concerning child-care allowances and compensation for non-pecuniary damage before the District Court for a new examination.
On 9 January 2008 the Presidium of the Tomsk Regional Court quashed the judgment of 24 August 2007 by way of supervisory-review procedure. It found that the Regional Court had incorrectly interpreted and applied domestic law. As correctly indicated by the District Court, in accordance with section 54 of Regulation no. 4202-1 male police personnel were entitled to parental leave only in case of bringing up children left without maternal care. Given that the applicant’s child was not left without maternal care, the applicant was not entitled to parental leave. Accordingly, his dismissal from the police service had been lawful.
B. Relevant domestic law
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 (approximately EUR 37.5) for the first child and RUB 3,000 (approximately EUR 75) 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 at the material time) 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).
That regulation was replaced on 30 November 2011 by Federal Law no. 342-FZ On the service in Internal Affairs agencies of the Russian Federation. 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.
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the quashing of the judgment in his favour by way of supervisory-review procedure upset legal certainty and therefore violated his “right to a court”.
2. 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.
QUESTIONS TO THE PARTIES
1. Was there a breach of the applicant’s “right to a court” as guaranteed by Article 6 § 1 of the Convention, as a result of the quashing, by way of supervisory review, of the judgment of 24 August 2007?
2. What was the applicant’s post in the Tomsk Regional Internal Affairs Department at the material time? May equivalent posts be held by policewomen? What was the post of the applicant’s wife?
3. Did the refusal of parental leave on account of the applicant’s sex amount to discrimination against him, 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))?
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