October 01, 2021
By Alicia Hendricks
The case of Gruba and Others v. Russia concerns the difference in entitlement to parental leave between policemen and policewomen. The European Court of Human Rights (the Court) ruled in favour of the male defendants by stating that this difference in treatment amounted to sex discrimination contrary to Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR). In line with its significant precedent of Konstantin Markin v. Russia, the Court showed again willingness to address the social developments surrounding the division of childcaring tasks between men and women. It rejected the traditional male breadwinner and female housewife model by supporting a more equal sharing of care. Although the judgment further contributes to the advancement of gender equality, it also raises some questions regarding the (unintentional) use of female stereotypes and a missing child-oriented dimension within the context of child related leave.
The four applicants, Mr. Gruba, Mr. Mikhaylov, Mr. Marintsev and Mr. Morozov are Russian nationals who worked in the police service. There were no restrictions on grounds of sex for holding any of the posts. Between 2009 and 2010, the four applicants requested parental leave to take care of their sons. The Russian Constitution guarantees the protection of maternity and the family by the State and the care and upbringing of children is an equal right and obligation of both parents. Their applications were, however, rejected on the grounds that Section 54 of Regulation no. 4202-1 granted male police officers entitlement to parental leave only in cases where their children had been left without maternal care, that is to say, in the event of the mother’s death, withdrawal of parental authority, lengthy illness or other situations where the children lacked maternal care. The wives of Mr. Mikhaylov and Mr. Mozorov were diagnosed with health problems and they were recommended not to lift any objects exceeding 5kg. Nevertheless, there was a lack of evidence that they were unable to take care of their child for medical reasons. The four applicants challenged the refusals before the domestic courts, yet they were all upheld by the higher courts.
These decisions were in line with a previous judgment rendered by the Constitutional Court of Russia, which had already ruled on the compatibility of Section 54 of Regulation no. 4202-1 with the Russian Constitution. It held that persons engaged in the agencies of the Ministry of Interior exercise important functions and possess a special legal status (§59 of the current judgment). The federal legislature is, therefore, entitled to set up limitations on their civil rights and freedoms due to the particular nature of their activities. The Constitutional Court further held that by signing a contract for service in the Ministry of the Interior, the personnel voluntarily agreed to limitations on their civil rights and freedoms inherent to that type of public service.
In another decision, the Constitutional Court further held that owing to the specific nature of their activities, non-performance of duties by the police workforce must be precluded, as it might cause detriment to the public interest protected by law. Therefore, the fact that servicemen raising children together with the children’s mother are not entitled to parental leave strikes a fair balance between public and private interests. In addition, by entitling mothers or fathers raising children deprived of maternal care to parental leave, the legislature took into account the special role of women associated with motherhood and the necessity to provide care to children left without maternal care. Taking these factors into consideration, the refusal to grant parental leave to the applicants did not breach the principle of equality of rights between men and women and their constitutional right to bring up their child.
Meanwhile, Mr. Gruba, Mr. Mikhaylov and Mr. Mozorov were dismissed for their systematic absence from their place of work. They stopped showing up at work to vindicate their entitlement to parental leave. Mr. Marintsev was also dismissed but for health reasons. Each applicant challenged their dismissals before the domestic courts, which, in all cases found the dismissals lawful. In addition, relying on Article 6(1) ECHR Mr. Morozov complained that the public prosecutor’s participation in his hearing in support of the respondent’s position violated his rights. His application was dismissed.
Finally, each applicant lodged their applications to the Court between 2009 and 2012. They complained that the refusals to grant them parental leave amounted to sex discrimination contrary to Article 14 ECHR taken in conjunction with Article 8 ECHR. Having regard to the similar subject matter of the applications, the Court found it appropriate to examine them jointly in a single judgment.
To a large extent, the Court built its judgment upon its earlier case-law of Markin. The Court reiterated that Article 14 taken in combination with Article 8 ECHR was applicable to parental leave (§75). Accordingly, States that decide to put in place a parental leave scheme must do so in a manner which is compatible with Article 14 ECHR (Markin, §130; Petrovic v. Austria, §§26-29). Furthermore, the Court upheld that any differential treatment must be objectively and reasonably justified to be regarded as compatible with the ECHR (§78). The Court also added that the present case demonstrated that the exception to the rule that policemen are not entitled to parental leave appeared to be strictly interpreted.
The Court made a distinction between on the one hand, maternity leave and on the other hand, parental leave. The former is reserved for women exclusively, as it enables them to recover from childbirth and to breastfeed their baby. The latter refers to the subsequent period which makes men and women ‘similarly placed’ to take care of the child (Gruba, §76; Markin, §132). In contrast to maternity leave, the Court considered that men were in a comparable situation to women with respect to parental leave (allowances). Thus, policemen were in an analogous situation to policewomen (§77). The present case, however, differs from Markin: military servicemen were completely excluded from entitlement to parental leave whilst policemen, such as the applicants in the present case, are entitled to parental leave if their children are left without maternal care (§78). Nevertheless, the Court found that policemen were in fact treated differently from policewomen, since policewomen are unconditionally entitled to parental leave and the restriction only applies to policemen (§78).
In its defence, the government submitted that parental leave is granted unconditionally to policewomen on account of the ‘special role of women associated with motherhood’. The Court aligned with Markin by stating that gender stereotypes, such as the traditional assumptions of women as primary child-carers and men as primary breadwinners, could not constitute justification for a difference in treatment between men and women with respect to entitlement to parental leave (§80). Moreover, the Court rejected the argument that in signing the work contract the policemen voluntarily accepted limitation of their rights. It found that it could not be equated to a waiver of the right not to be subjected to discrimination (§81). In addition, the government argued that placing men on an equal footing with women with regard to parental leave would undermine the operational effectiveness of the police, since women represent a minority of the total police force. The Court admitted that securing the operational effectiveness of the police was a legitimate aim that may justify certain restrictions on their rights but this could not, however, justify a difference in treatment between male and female police officers (§83). 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, the availability of a replacement or any other circumstance relating to the operational effectiveness of the police. Indeed, the restriction on parental leave only applied to policemen (§85). Furthermore, since the domestic authorities did not provide any evidence showing that their temporary parental leave would undermine the operational effectiveness of the police, they failed to strike a fair balance between, on the one hand, the legitimate interest in ensuring operational effectiveness of the police, and on the other hand, the applicants’ right not to be discriminated against on the basis of sex as regards access to parental leave (§87).
Furthermore, the Court underscored the fact that it remains difficult for fathers to fulfil the role of primary caregiver in the event where the child lacks maternal care. Mr. Mikhaylov and Mr. Morozov were refused parental leave although their wives were not fully able to take care of their child due to health problems. The domestic authorities alleged that there was insufficient evidence pointing out to the ‘total impossibility’ for them to take care of their child. This absence of maternal care threshold makes it very difficult for policemen to assume primary responsibility for child-caring even when a particular family situation renders it necessary (§86).
In view of the foregoing, the Court concluded that the applicants suffered discrimination on the grounds of sex, since the difference in treatment between policemen and policewomen as regards entitlement to parental leave could not be reasonably and objectively justified. Therefore, there was a violation of Article 14 taken together with Article 8 ECHR (§§89-90).
Lastly, the Court decided that the intervention of the public prosecutor in Mr. Morozov’s hearing did not respect the principle of equality of arms as guaranteed by Article 6(1) ECHR. Accordingly, there was also a breach of Article 6(1) ECHR (§§99-100).
This case commentary will centre around two main aspects of the judgment, namely gender stereotypes and children’s rights within the context of parental leave. The dismissal of Mr. Marintsev due to health reasons and the claim of Mr. Morozov under Article 6(1) ECHR will not be discussed any further.
From a gender equality perspective, the Court must be applauded for continuing further upon the path previously taken in Markin, by condemning gender stereotypes surrounding care and paid work. The judgment serves as a reminder that although States are afforded with a wide margin of appreciation in matters of national security, a general and automatic restriction applying to servicemen on the basis of their sex falls outside such a margin of appreciation and is in violation of Article 14 taken in conjunction with Article 8 ECHR (Markin, §134 and §148). The Court implicitly reiterates that the advancement of gender equality is a major goal of the States Parties of the Council of Europe and that very weighty reasons are required in order to justify a difference in treatment on grounds of sex (Burghartz v. Switzerland, §27; Markin, §127). In contrast to Petrovic – where it was ruled that women and men are in a comparable position with regard to the care of their children but a preferential treatment of women could still be objectively and reasonably justified (§§36–43) – the Court no longer supports an outdated vision of gender roles in the sphere of child-raising by rejecting the perception of women as primary child carers and men as primary breadwinners.
At first sight, the Court’s anti-stereotyping reasoning seems to promote a more active role of fathers in the upbringing of their children and a more equal distribution of caring activities between men and women. Upon closer look, however, stereotypes concerning women as care-givers remain pervasive in the Court’s language. The Court provided the relevant legal framework by stating that Article 38§1 of the Russian Constitution protects ‘motherhood’ and the family (§55). The provision instead protects ‘maternity’ and the family. The concept of maternity should be strictly interpreted and cannot be equated with the more general concept of motherhood. Whilst the former refers to the biological/gestational condition inherent to women, the latter can be equated with the more gender-neutral concept of parenthood (see, for instance, Caracciolo di Torella and Foubert, ‘Surrogacy, Pregnancy and Maternity Rights’, European Law Review 2015, at 56). The Court should make such a distinction between the two concepts to avoid any confusion. Otherwise, this is liable to cement women into their traditional role as primary caregivers and keep men in a role that is subsidiary to that of women with respect to parenting. The conflation of both concepts replicates the consistent case-law of the Court of Justice of the European Union. The Hofmann formula maintains that maternity leave serves a dual aim: first, to protect of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth, and second, to protect the special relationship between a woman and her child following pregnancy and childbirth. Nevertheless, whilst maternity is worthy of special protection on grounds of health and safety reasons, this should not extend to motherhood, as it merely amounts to the female role of being a parent. Not making such a distinction and using the term motherhood might have the effect of perpetuating gender stereotypes whereby caring for children remains the women’s sole responsibility. However, both motherhood and fatherhood deserve the same legal protection, irrespective of gender stereotypes. In this respect, the Court could or should have emphasised the fact that the Russian Constitution also provides that the care and upbringing of children is an equal right and obligation of both parents. Therefore, the parental leave at issue in principle violates the fathers’ constitutional equal right and duty to take care of their children.
Another important component in the context of child related leave is the children’s rights perspective. Although the second factor – the necessity to provide care to children left without maternal care –reflects a child-oriented dimension to some extent, the Court failed to duly consider such a dimension and did not observe the impact of the parental leave on the child’s development and well-being. Parental leave arrangements can and should be analysed from a double perspective, namely parental rights and children’s rights. Such an omission from the Court is not surprising, since many cases under Article 8 ECHR are considered from a parental rights perspective (FRA Handbook on children’s rights, 30). As a human rights instrument, the ECHR does, however, protect everyone, including children. Thus, Article 8 ECHR confers upon both parents and children the right to respect for private and family life.
In order to secure effectively this right to children, the ‘best interests of the child’ principle could be of guidance. Whilst the ECHR does not expressly contain the principle, the Court has referred to it on numerous occasions, mostly in cases of custody or contact (A.I. v. Italy, §87; Schneider v. Germany, §93). The principle has also been raised in a few other cases, such as adoption (Pini and Others v. Romania), expulsion against a juvenile offender (Maslov v. Austria), establishment of paternity (A.M.M v. Romania) and compulsory childhood vaccination (Vavřička and Others v. the Czech Republic). Conversely, cases within the context of parental leave policies are lacking such a child-oriented dimension. In Markin, the best interest of the child principle was cited but the Court did not go any deeper into the matter. Nevertheless, a child’s right to be cared for by his or her parents can be inferred from Article 8 ECHR. The provision implicitly recognises the right of the child to maintain contact with both parents, since the Court has declared that ‘the mutual enjoyment by parents and child of each other’s company constitutes a fundamental element of family life’ (Buscemi v. Italy, §53; K. and T. v. Finland, §151). However, the scope of the right to maintain contact with both parents depends on the circumstances of each case (FRA Handbook on children’s rights, 78). In addition, the Court has held that ‘domestic measures hindering enjoyment of family life such as a decision granting custody over children to a parent constitutes an interference with the right to respect for family life’ (Hoffmann v. Austria, §29; Palau-Martinez v. France, §30). Such an interference can only be justified if it is in accordance with the law, pursues a legitimate aim and can be regarded as necessary in a democratic society (Diamante and Pelliccioni v. San Marino, §172). It follows from the Court’s case-law that it is in the child’s best interest to receive care from both parents. Accordingly, depriving a child from paternal care constitutes an interference with the child’s right to respect for family life. No justification would be permitted, unless it is in the child’s best interests. The respect of the child’s right to have contact with both parents is also threatened when one parent is not entitled to child care leave. Arguably, making parental leave for servicemen conditional upon lack of maternal care is contrary to the child’s best interests and might lead to discrimination between children with maternal care and those without.
Gruba and Others v. Russia further strengthens the Court’s previous jurisprudence on Article 8 ECHR in relation to parental leave and gender equality. It is now settled case-law that parents are in an analogous position to take care of their child during the period of parental leave and that gender stereotypes cannot justify a difference in treatment on the ground of sex. Hence, the present blanket restriction on parental leave applying to policemen amounts to direct discrimination based on sex. The Court showed willingness to further combat gender stereotypes. It must, however, be careful when using the maternity/motherhood terminologies, as this might lead to female stereotyping.
Finally, the Court failed to insert a child-oriented dimension in its reasoning. A focus on the children’s right to respect for family life is generally missing under Article 8 ECHR in the context of child related leave. The Court should expand its jurisprudence dealing with the child’s best interests principle beyond cases of custody or contact. The child’s best interests principle is an important component within parental leave arrangements that should not be overlooked. The present restriction on parental leave has the effect of depriving children of policemen of receiving paternal care in most instances. To conclude, it is hoped that the Court will finally start adopting a more child-friendly approach by including the child’s best interests in all matters concerning children.