By Beril Onder, PhD researcher at Ghent University and University of Strasbourg
On 3 October 2017 the Fourth Section of the Court delivered the judgment in Alexandru Enache v. Romania. The case concerned a discrimination complaint under Article 14 read in conjunction with Article 8 of the Convention, regarding a special measure granting women stay of execution of their prison sentences if they were pregnant or had a child under the age of one. The issue concerned the difference in treatment between men and women arising from the penal policy, like the recent Grand Chamber judgment Khamtokhu and Aksenchik v. Russia, as the applicant was refused this stay of execution based solely on his gender. The Court, in both judgments, left a wide margin of appreciation to the State Parties, and supported its conclusion by referring to the international instruments addressing the needs of women for the protection of pregnancy and motherhood. However, both judgments can be considered problematic for different reasons from a perspective of gender stereotypes. Corina Heri, in her comment, already discussed the problems related to gender stereotypes in Khamtokhu and Aksenchik. The following comments will focus on the judgment in Alexandru Enache v. Romania.
Facts of the Case
The applicant, Mr. Enache was convicted of embezzlement and sentenced to a seven-year prison sentence. He requested a stay of execution of his prison sentence on the grounds that he wanted to take care of his child who was less than one year old, and that his family had financial and social difficulties because of his detention. In that regard, the applicant relied on Article 453 § 1 b) and c) of the former Code of Criminal Procedure. Article 453 § 1 b) provided for the possibility of a stay of execution of the prison sentence of a female offender, if she was pregnant or if she had a child who was less than one-year-old. Article 453 § 1 c), on the other hand, allowed a stay of execution for special circumstances where an immediate execution of the sentence would cause grave consequences for the convicted, his/her family or his/her employer. The applicant’s requests were rejected by the Romanian courts, which held that article 453 § 1 b) had to be interpreted restrictively, thus it could be applied only to mothers until the first birthday of their children. They also held that the alleged economic and social difficulties invoked by the applicant were not of a kind which would necessitate a stay of execution under the Article 453 § 1 c) either.
Before the ECHR, the applicant complained under Article 14 in conjunction with Article 8, and Article 1 of Protocol no. 12 of the Convention that he was discriminated on the ground of sex, as it was not possible under Article 453 § 1 b) to grant a stay of execution of prison sentences for male offenders who had children under the age of one.
The Court examined the applicant’s complaint under Article 14 read in conjunction with Article 8 of the Convention. Having regard to its findings in Petrovic v. Austria (§ 36), Konstantin Markin v. Russia ( § 132), it held that the applicant was in a relevantly similar position to that of a female detainee with a child under the age of one and that there had been a difference in treatment between persons in relatively similar positions. The Court then examined whether this difference in treatment on the grounds of sex pursued a legitimate aim and whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised.
On the one hand, the Court reiterated that very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of sex as compatible with the Convention. On the other hand, it reiterated that the States enjoy a wide margin of appreciation when they are asked to make rulings on sensitive matters such as penal policy (§ 72). At the end, the Court held that the respondent State enjoyed a wide margin of appreciation in the present case.
The Government submitted that the aim of the legal provisions in question was to protect the best interests of the child and to take account of the special situation of a pregnant woman and the particular bond between the mother and the child during the first year following the birth. The Court held that the Government pursued a legitimate aim (§76) under Article 14 and considering the special nature of maternity, admitted that it might be necessary to take specific measures of protection. In that regard, the Court referred to other international human rights instruments in its reasoning, such as Article 4 § 2 of the CEDAW. Finally, the Court concluded that there was a reasonable relationship of proportionality between the means employed and the legitimate aim pursued, and that there had been no breach of Article 14 taken in conjunction with Article 8.
Concurring and Dissenting Opinions
In her concurring opinion Judge Yudkivska, argued that there existed a difference between men and women as parents of a newborn, in terms of the needs of the child, such as breastfeeding, and that mothers had different duties, calling for different legal measures. She discussed that there was a special bond between a mother and her newborn and that the presence of the mother next to her child after the birth was primordial, thus in the child’s best interests. She further argued that, the majority also recognised the difference between men and women in terms of their relationship with a newborn child, and the special bond between mother and child in paragraphs 76-77 of the judgment. She therefore argued that admitting that male and female detainees were not in a similar situation from the very beginning would be a more logical approach.
In their joint dissenting opinion, Judges Pinto de Albuquerque and Bosnjak, argued that, in light of the Court’s case law, as a difference of treatment on the ground of sex was at issue, the Court should have applied “the very weighty reason test”. They then argued that the Government did not put forward any “very weighty reason” to justify the difference in treatment in the present case. Additionally, considering that the importance of the role of the father in terms of taking care of his children of a very young age had been recognised by the Court, they argued that not giving any opportunity to men to benefit from the Article 453 § 1 b) would not be for the child’s best interest.
Analogous or relatively similar situation
In the present case, the Court, relied on the finding in Kontstantin Markin v. Russia (§132) and Petrovic v. Austria (§36) and held that the applicant was in a similar situation with that of women. The Court pointed out that the aim of the stay of execution of the sentence was to ensure that the child could get the necessary care during his/her first year of life, as the Government had also submitted. The Court admitted that, although there might be differences between mother and father in their relationship with the child, fathers could also take care of the child during that period, which extends beyond the pregnancy or childbirth. On the other hand, in her concurring opinion, Judge Yudkivska, while arguing that the applicant’s situation was not similar with that of women, used a very similar argument which had been submitted by the Russian Government in Konstantin Markin (§ 116) regarding the special biological and psychological connection between the mother and the newborn child. The Court had found that argument unconvincing in Konstantin Markin (§ 132), and Judge Yudkivska did not really discuss whether there were any elements differentiating the instant case from Konstantin Markin. It can be argued that her reasoning could reinforce gender stereotypes of women as primary child-carers, as she discussed that only the mother can provide the necessary care to her newborn during the first year of his/her life.
Whether the difference in treatment objective and reasonable justification
Having regard to the Court’s case-law on penal policy matters, the Court left a wide margin of appreciation to the State party in the instant case in assessing whether and to what extent differences in similar situations justify different treatment (see Clift v. the United Kingdom, § 73, Costel Gaciu v. Romania, § 56, Khamtokhu and Aksenchik v. Russia, § 85). Whereas in their joint dissenting opinion, Judges Pinto Albuquerque and Bošnjak argued that, having regard to the Court’s case law which considered the mother and father were “similarly placed” as far as the role of taking care of the child is concerned, the difference in treatment in the instant case could only be justified by very weighty reasons. They further argued that the Romanian Government had not put forward very weighty reasons which could justify the difference in treatment in the present case. Admittedly, if the majority had applied “a very weighty reason” test, the Court could have found a violation in the case. However, it would have meant a departure from its case-law as the Court had favored a wide margin of appreciation and had not applied a “very weighty reason” test when the difference in treatment on the ground of sex was also an issue in its Grand Chamber judgment of Khamtokhu.
According to the majority in Alexandru Enache, the arguments of the Government were not “manifestly without reasonable foundation or unreasonable” and could justify the difference in treatment. International documents were also relied on, to support that conclusion, as specific protection measures are foreseen by those for pregnancy and maternity. The Court also noted that female detainees were not automatically granted with a stay of execution of their sentences under the legal provision 453 § 1 b) (the domestic courts were examining the specific circumstances of every case), and that the law was providing for another possibility for all the detainees, both men and women, for a stay of execution of their sentence under the article 453 § 1 c). Those points should also be considered relevant with regard to the question of proportionality between the means employed and the aim sought to be realised. Especially taken into account the finding of the Court in Konstantin Markin, where it stated: “…general and automatic restriction applied to a group of people on the basis of their sex must be seen as falling outside any acceptable margin of appreciation, however wide that margin might be, and as being incompatible with Article 14”(§ 148)
In my opinion, the Court’s approach in Alexandru Enache is consistent with its case-law, as the legal provision in question which causes difference in treatment is a special measure taken by the national authorities in the context of penal policy. However, it can be also claimed that the judgment risks reinforcing implicitly a gender stereotype that the Court had already overturned in Konstantin Markin, namely the perception of women as primary child-carers. The Government’s argument concerning the “special bond between the mother and the newborn”, which was used for the justification of the difference in treatment, stays questionable in that regard. It seems like the Court contented itself with finding this argument not “manifestly without reasonable foundation” or “unreasonable” without really discussing the differences/similarities with Konstantin Markin (see §132), as it left a wide margin of appreciation to national authorities. The Court could have been more precise in that regard.
On the other hand, a number of international instruments were referred to in the judgment, such as CEDAW and the UN Rules for the Treatment of Women Prisoners and Non-custodial measures for Women Offenders (the Bangkok Rules), and those instruments points out the need for special measures for the protection of maternity and the child’s best interests. The legal provision in question is specifically in line with the Bangkok Rules, as the Government also submitted (see Rule 2§2). However, at the same time, the provision in question can be considered going against Article 5 (a) and (b) of CEDAW, which created for the State Parties an obligation to modify social and cultural patterns of conduct based on discriminatory sex roles and gender stereotyping and stress the need to retain “an awareness of maternity as “a social function” while recognising that the care of children is “a shared responsibility between women and men”. Unfortunately, the Court fell short of discussing that point either.
 There was also an Article 3 complaint in the case, regarding which the Court found a violation.. However this post will solely examine the Article 14 complaint read in conjunction with Article8 in the case.
 “Whilst being aware of the differences which may exist between mother and father in their relationship with the child, …, as far as the role of taking care of the child during the period corresponding to parental leave is concerned, men and women are ‘similarly placed’ ”.
 “Adoption by States Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.”
 Even though the Article 453 § 1 c), in theory, could apply to a case where a man had to take care of his child, it was providing for a possibility of stay of extension for a period of maximum three months.
 “Prior to or on admission, women with caretaking responsibilities for children shall be permitted to make arrangements for those children, including the possibility of a reasonable suspension of detention, taking into account the best interests of the children”.