CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 22 mars 2012

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margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s7ED160F0 { text-decoration:none } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s7940ED5C { font-family:Arial; font-style:italic; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }     GRAND CHAMBER               CASE OF KONSTANTIN MARKIN v. RUSSIA   (Application no. 30078/06)               JUDGMENT         STRASBOURG   22 March 2012       This judgment is final but may be subject to editorial revision. In the case of Konstantin Markin v. Russia, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Nicolas Bratza, President,   Jean-Paul Costa,   Françoise Tulkens,   Josep Casadevall,   Ján Šikuta,   Dragoljub Popović,   Päivi Hirvelä,   Nona Tsotsoria,   Ann Power-Forde,   Zdravka Kalaydjieva,   Işıl Karakaş,   Mihai Poalelungi,   Kristina Pardalos,   Guido Raimondi,   Angelika Nußberger,   Paulo Pinto de Albuquerque, judges,   Olga Fedorova, ad hoc judge, and Johan Callewaert, Deputy Grand Chamber Registrar, Having deliberated in private on 8 June 2011 and on 1 February 2012, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 30078/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Konstantin Aleksandrovich Markin (“the applicant”), on 21 May 2006. 2.     The applicant, who had been granted legal aid, was represented by Ms   K. Moskalenko and Ms I. Gerasimova, lawyers practising in Moscow, and Ms N. Lisman, lawyer practising in Boston (the United States of America). The Russian Government (“the Government”) were represented by Mr G. Matyushkin,   Representative of the Russian Federation at the European Court of Human Rights, and Ms O. Sirotkina, counsel. 3.     The applicant complained of the domestic authorities’ refusal to grant him parental leave because he belonged to the male sex. 4.     The application was allocated to the First Section of the Court (Rule   52 §   1 of the Rules of Court). On 7 October 2010 a Chamber of that Section composed of the following judges: Christos Rozakis, Nina Vajić, Anatoly Kovler, Elisabeth Steiner, Khanlar Hajiyev, Dean Spielmann, Sverre Erik Jebens, and also of Søren Nielsen, Section Registrar, examined the admissibility and merits of the case (former Article 29 § 3 of the Convention, now Article 29 § 1). It declared the application partly admissible and found, by six votes to one, that there had been a violation of Article 14 of the Convention in conjunction with Article 8. 5.     On 21 February 2011 the panel of five judges of the Grand Chamber decided to accept the Government’s request that the case be referred to the Grand Chamber (Article   43 of the Convention and Rule 73). 6.     The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. 7.     The applicant and the Government each filed written observations (Rule 59 § 1) on the merits. In addition, third-party comments were received from the Human Rights Centre of the University of Ghent (Article 36 § 1 of the Convention and Rule 44 § 1 (b)). 8.     A hearing took place in public in the Human Rights Building, Strasbourg, on 8 June 2011 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Mr   G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights, Agent , Ms   O. Sirotkina,       Counsel , Ms   I. Korieva, Mr   A. Shemet,       Advisers ; (b)     for the applicant Ms   K. Moskalenko, Ms   N. Lisman, Ms   I. Gerasimova,   Counsel . The Court heard addresses by Ms Sirotkina, Ms Moskalenko, Ms   Gerasimova and Ms Lisman. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 9.     The applicant was born in 1976 and lives in Velikiy Novgorod. 10.   On 27 March 2004 he signed a military service contract. The contract signed by the applicant was a standard two-page form stating, in particular, that he “undertook to serve under the conditions provided for by law”. 11 .     At the material time the applicant was serving as a radio intelligence operator ( оперативный дежурный группы боевого управления в составе оперативной группы радиоэлектронной разведки ) in military unit no.   41480. Equivalent posts in his unit were held by servicewomen and he was often replaced in his duties by female personnel. A.     Parental leave proceedings 12.     On 30 September 2005 the applicant’s wife, Ms Z., gave birth to their third child. On the same day a court granted her petition for divorce. 13.     On 6 October 2005 the applicant and Ms Z. entered into an agreement under which their three children would live with the applicant and Ms Z. would pay maintenance for them. The agreement was certified by a notary. 14.     According to the applicant, several days later Ms Z. left for St   Petersburg. 15.     On 11 October 2005 the applicant asked the head of his military unit for three years’ parental leave. On 12 October 2005 the head of the military unit rejected his request because three years’ parental leave could be granted only to female military personnel. The applicant was allowed to take three months’ leave. However, on 23   November 2005 he was recalled to duty. 16.     The applicant challenged the decision of 23   November 2005 before a court. On 9 March 2006 the Military Court of the Pushkin Garrison annulled the decision and upheld the applicant’s right to the remaining 39 working days of his three months’ leave. On 17 April 2006 the Military Court of the Leningradskiy Command quashed the judgment and rejected the applicant’s claims. 17 .     Meanwhile, on 30 November 2005, the applicant brought proceedings against his military unit claiming three years’ parental leave. He submitted that he was the sole carer for his three children. He referred, in particular, to section 10(9) of the Military Service Act (see paragraph 47 below). 18.     During the hearing before the Military Court of the Pushkin Garrison the representatives of the military unit submitted that the applicant had not proved that he was the sole carer for his children. It was impossible for the applicant, who was serving in the army, studying at a University and participating in several sets of judicial proceedings, to take care of his children alone. There was evidence that Ms Z. and other people were helping him. The children were therefore not left without maternal care. The military unit’s representatives also drew the court’s attention to some inconsistencies in the applicant’s submissions and the documents produced by him. For example, the children’s address indicated in the notarial agreement was incorrect, Ms Z.’s employment contract was not registered as required by law, there was no divorce stamp in Ms Z.’s passport, and the applicant had not applied for child allowances or sued Ms Z. for her failure to pay child maintenance. In their opinion, the applicant’s divorce was a sham with the aim of evading military service and receiving additional benefits from his military unit. 19.     The court examined Ms   Z.’s petition for divorce in which she stated that she had been living separately from the applicant since September 2005 and that she considered any further marital relationship impossible. It also examined the judicial decision confirming the divorce, the notarial agreement according to which the children were to live with the applicant and Ms Z.’s employment contract signed in St   Petersburg. It also studied the record of a hearing held on 27 February 2006 in an unrelated civil case, from which it appeared that Ms Z. had represented the applicant. 20.     The applicant stated that he and his children lived in Novgorod together with Ms   Z.’s parents. Although Ms Z. helped him occasionally with the children (for example she had done babysitting for the youngest child on 31   January 2006 while he attended a hearing), it was he who took everyday care of them. Ms Z. did not pay child maintenance because her income was too low. Ms Z. had indeed represented him at the hearing of 27   February 2006, which concerned a claim lodged jointly by the couple before the divorce. Ms Z. had agreed to continue her assistance until the end of the proceedings. 21.     Ms Z. testified that she lived in St Petersburg, while the children lived with the applicant in Novgorod. She did not participate in the care of the children. She did not pay child maintenance because her salary was minimal. 22.     Ms Z.’s father stated that after the divorce his daughter had left for St Petersburg, while the applicant and the children continued to live together with him and his wife in the flat belonging to them. Although his daughter occasionally talked to the children over the phone, she did not participate in their care. The applicant was the sole carer for the children. He took them to school and to the doctor’s, cooked for them, took them for walks and supervised their education. 23.     Ms Z.’s employer testified that Ms Z. worked for her in St   Petersburg. She knew that employment contracts had to be registered. She had attempted to register Ms Z.’s employment contract with the Tax Authority. The Tax Authority had refused to register the contract, informing her that she had to register it with the Town Administration. However, at the Town Administration she had been told that it was the Tax Authority which was responsible for registering employment contracts. As she had found herself in a vicious circle, she had stopped her fruitless attempts to register the contract. Ms   Z. had returned to work two weeks after the childbirth. She knew that Ms Z.’s children lived with their father in Novgorod, but she did not know further details about Ms Z.’s relations with her ex-husband or her children. A couple of times she had heard Ms Z. talking to her eldest child over the phone. 24.     The teacher of the applicant’s second child stated that in September 2005 both the applicant and Ms Z. would take the child to school. However, after the birth of the third child and the divorce it was always the applicant who had brought the child to school in the morning and picked him up in the evening. It was the applicant who had come to the school parties. In reply to her questions about his mother, the child had said that his mother had left for St Petersburg where she was working. She thought that the applicant was a good father; the child evidently loved him. At the same time, he never spoke about his mother. 25.     The children’s doctor testified that on 6 October 2005 Ms Z. had brought the youngest child for an examination. From 1 November 2005 onwards it was always the applicant who had taken the children to the doctor’s. The children were healthy and good care was taken of them. 26 .     On 14 March 2006 the Military Court of the Pushkin Garrison dismissed the applicant’s claim for three years’ parental leave as having no basis in domestic law. The court held that only female military personnel were entitled to three years’ parental leave, while male military personnel had no such entitlement even in those cases where their children were left without maternal care. In such cases a serviceman was entitled either to an early termination of his service for family reasons, or to three months’ leave. The applicant had made use of the second opportunity. 27.     The court further held that, in any event, the applicant had failed to prove that he was the sole carer for his children and that they lacked maternal care. It followed from the evidence examined at the hearing that even after the divorce the applicant and Ms Z. had continued their marital relationship. They lived together, both took care of their children and defended the interests of their family. The applicant’s allegations to the contrary were therefore false and aimed at misleading the court. It was essential that Ms Z. had not been deprived of parental authority. She was not in any other way prevented from taking care of her children and it was irrelevant whether they lived with her or not. 28.     The applicant appealed, alleging that the refusal to grant him three years’ parental leave had violated the principle of equality between men and women guaranteed by the Constitution. He further submitted that the factual findings made by the first-instance court were irreconcilable with the evidence examined at the hearing. 29 .     On 27 April 2006 the Military Court of the Leningradskiy Command upheld the judgment on appeal. It did not examine the applicant’s allegation that the factual findings made by the first-instance court had been incorrect. Instead it held that under domestic law “male military personnel were not in any circumstances entitled to parental leave”. It further added that the applicant’s “reflections on equality between men and women ... [could] not serve as a basis for quashing the first-instance judgment, which [was] correct in substance”. 30.     While the court proceedings were pending the applicant was disciplined several times for systematic absences from his place of work. 31.     By order of 24 October 2006 the head of military unit no. 41480 granted parental leave to the applicant until 30 September 2008, the third birthday of his youngest son. On 25 October 2006 the applicant received financial aid in the amount of 200,000 Russian roubles (RUB), equivalent to approximately 5,900 euros (EUR). In a letter of 9 November 2006 the head of military unit no. 41480 informed the applicant that the financial aid was granted to him “in view of [his] difficult family situation, the necessity of taking care of three minor children and the absence of other sources of income”. 32 .     On 8 December 2006 the Military Court of the Pushkin Garrison issued a decision in which it criticised the head of military unit no.   41480 for granting the applicant three years’ parental leave and thereby disregarding the judgment of 27 April 2006 in which it had been found that the applicant was not entitled to such leave. The court drew the attention of the head of the military unit to the unlawfulness of his order. B.     The Constitutional Court’s judgment 33.     On 11 August 2008 the applicant applied to the Constitutional Court, claiming that the provisions of the Military Service Act concerning the three-year parental leave were incompatible with the equality clause in the Constitution. 34 .     On 15 January 2009 the Constitutional Court rejected his application. The relevant parts of its judgment read as follows: “2.1     ... military service is a special type of public service which ensures the defence of the country and the security of the State, it is therefore performed in the public interest. Persons engaged in military service exercise constitutionally important functions and therefore possess a special legal status which is based on the necessity for a citizen of the Russian Federation to perform his duty and obligation in order to protect the Fatherland. When establishing a special legal status for military personnel, the federal legislature is entitled, within its discretionary powers, to set up limitations on their civil rights and freedoms and to assign special duties... ... by signing a military service contract a citizen ... voluntarily chooses a professional activity which entails, firstly, limitations on his civil rights and freedoms inherent in this type of public service, and, secondly, performance of duties to ensure the defence of the country and the security of the State. Accordingly, military personnel undertake to abide by the statutory requirements limiting their rights and freedoms and imposing on them special public obligations. ... by voluntarily choosing this type of service citizens agree to the conditions and limitations related to the acquired legal status. Therefore, the imposition by the federal legislature of limitations on the rights and freedoms of such citizens is not in itself incompatible with [the Constitution] and is in accordance with ILO Discrimination (Employment and Occupation) Convention no. 111 of 25 June 1958, which provides that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (Article 1 § 2). 2.2     Under section 11(13) of [the Military Service Act] parental leave is granted to female military personnel in accordance with the procedure specified in federal laws and regulations of the Russian Federation. A similar provision is contained in Article   32 §   5 of the Regulations on military service, which also provides that during parental leave a servicewoman retains her position and military rank. A serviceman under contract is entitled to leave of up to three months if his wife dies in delivery or if he is bringing up a child or children under 14 years old (handicapped children under 16 years old) 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). The purpose of such leave is to give the serviceman a reasonable opportunity to arrange for the care of his child and, depending on the outcome, to decide whether he wishes to continue the military service. If the serviceman decides to take care of his child himself, he is entitled to early termination of his service for family reasons... The law in force does not give a serviceman the right to three years’ parental leave. Accordingly, servicemen under contract are prohibited from combining the performance of their military duties with parental leave. This prohibition is based, firstly, on the special legal status of the military, 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 servicemen who are fulfilling their duty to defend the Fatherland. Owing to the specific demands of military service, non-performance of military duties by military personnel en masse must be excluded as it might cause detriment to the public interests protected by law. Therefore, the fact that servicemen under contract are not entitled to parental leave 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. Moreover, this limitation is justified by the voluntary nature of the military service contract. By granting, on an exceptional basis, the right to parental leave to servicewomen only, the legislature took into account, firstly, the limited participation of women in military service and, secondly, the special social role of women associated with motherhood. [Those considerations] are compatible with Article 38 § 1 of the Constitution of the Russian Federation. Therefore, the legislature’s decision cannot be regarded as breaching the principles of equality of human rights and freedoms or equality of rights of men and women, as guaranteed by Article 19 §§ 2 and 3 of the Constitution of the Russian Federation. It follows from the above that section 11(13) of [the Military Service Act], granting the right to parental leave to female military personnel only, does not breach the applicant’s constitutional rights ... 2.4     As servicemen having minor children are not entitled to parental leave, they are also not entitled to receive monthly child-care allowances payable to those who take care of children under the age of a year and a half...” The Constitutional Court concluded that the provisions challenged by the applicant were compatible with the Constitution. C.     Prosecutor’s visit on 31 March 2011 35.     On an unspecified date in March 2011 the Representative of Russia at the European Court of Human Rights asked the local military prosecutor’s office to conduct an inquiry into the applicant’s family situation. In particular, he asked the prosecutor to find out where the applicant, Ms Z. and their children were currently living and whether Ms Z. paid child maintenance. 36.     According to the Government, the applicant was summoned to the prosecutor’s office for 30 or 31 March 2011. The applicant stated that he had not received any summons. 37.     As the applicant had failed to be present at the appointed time, the prosecutor decided to visit him at home. According to the applicant, the prosecutor arrived at his flat at 10   p.m. on 31 March 2011, waking up and frightening his children. The Government submitted that the prosecutor had visited the applicant at 9 p.m. and had remained for an hour. 38.     The prosecutor informed the applicant that he was conducting an inquiry at the request of the Representative of Russia at the European Court of Human Rights. He noted the residents of the flat. He then requested the applicant to produce a court judgment concerning child maintenance in respect of his youngest son. After the applicant had explained that the child maintenance had been fixed by a notarial agreement, the prosecutor requested a copy of that agreement. He warned the applicant that if he refused to produce the requested documents, his neighbours would be questioned. 39.     The applicant called his representative before the Court and, following her advice, refused to comply with the prosecutor’s orders or answer his further questions. He signed a written statement to that effect. The prosecutor immediately left. 40.     The prosecutor also questioned the applicant’s neighbours, who testified that the applicant and Ms Z. were living together. 41 .     According to the Government, the inquiry established that the applicant and Ms Z. had remarried on 1 April 2008 and had had a fourth child on 5 August 2010. In December 2008 the applicant had terminated his military service for health reasons. The applicant and Ms Z. were currently living together with their four children and Ms Z.’s parents. II.     RELEVANT DOMESTIC LAW 42.     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). 43.     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). 44.     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). 45.     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. 46.     The Federal Law on the Status of Military Personnel (no. 76-FZ of 27   May 1998, “the Military Service Act”) provides that female military personnel are entitled to maternity leave and to parental leave in accordance with the Labour Code (section   11(13)). There is no similar provision in respect of male personnel. 47 .     The Act also provides that female military personnel, as well as military personnel bringing up children left without maternal/paternal care, are entitled to social benefits in accordance with federal laws and other legal acts concerning protection of family, motherhood and childhood (section 10(9)). 48 .     Under the Regulations on military service, enacted by Presidential Decree no.   1237 of 16 September 1999, a servicewoman is entitled to maternity leave, to three years’ parental leave, and to all related social benefits and allowances. A serviceman under contract is entitled to three months’ leave in one of the following cases: (a) his wife has died in childbirth, or (b) he is bringing up a child or children under 14 years old (handicapped children under 16 years old) 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) (Article 32). III.     RELEVANT INTERNATIONAL AND COMPARATIVE MATERIAL A.     United Nations documents 1.     The Convention on the Elimination of All Forms of Discrimination against Women 49 .     Article 5 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted in 1979 by the UN General Assembly and ratified by Russia in 1981, provides as follows: “States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women; (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” 50.     Its Article 16 § 1 provides, as far as relevant, as follows: “States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: ...   (d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;...” 51 .     In its Concluding Observations on the periodic reports submitted by the Russian Federation, adopted on 30 July 2010, the CEDAW Committee stated, in particular, as follows: “20.     The Committee reiterates its concern at the persistence of practices, traditions, patriarchal attitudes and deep-rooted stereotypes regarding the roles, responsibilities and identities of women and men in all spheres of life. In this respect, the Committee is concerned at the State party’s repeated emphasis on the role of women as mothers and caregivers. The Committee is concerned ... that, thus far, the State party has not taken effective and systematic action to modify or eliminate stereotypes and negative traditional values and practices. 21.     The Committee urges the State party to put in place without delay a comprehensive strategy, including the review and formulation of legislation and the establishment of goals and timetables, to modify or eliminate traditional practices and stereotypes that discriminate against women... The Committee notes that a shift from a focus on women primarily as wives and mothers to individuals and actors equal to men in society is required for the full implementation of the Convention and the achievement of equality of women and men...” 2.     International Labour Organisation documents 52 .     Article 1 of International Labour Organisation (ILO) Convention No. C111 concerning Discrimination in Respect of Employment and Occupation, adopted in 1958 and ratified by the Russian Federation in 1961, reads as follows: “1.     For the purpose of this Convention the term discrimination includes-- (a)     any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; (b)     such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers’ and workers’ organisations, where such exist, and with other appropriate bodies. 2.     Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination...” 53.     Article 3 § 1 of ILO Convention No. 156 concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, adopted in 1981 and ratified by the Russian Federation in 1998, reads as follows: “With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.” 54.     Article 22 of Recommendation No. 165 supplementing that Convention provides as follows: “(1)     Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded. (2)     The length of the period following maternity leave and the duration and conditions of the leave of absence referred to in subparagraph (1) of this Paragraph should be determined in each country by one of the means referred to in Paragraph 3 of this Recommendation. (3)     The leave of absence referred to in subparagraph (1) of this Paragraph may be introduced gradually.” B.     Council of Europe documents 1.     The Social Charter 55.     The revised European Social Charter was ratified by the Russian Federation in 2009. The Russian Federation declared that it considered itself bound, among others, by Article   27 which reads as follows: “With a view to ensuring the exercise of the right to equality of opportunity and treatment for men and women workers with family responsibilities and between such workers and other workers, the Parties undertake: ... 2.     to provide a possibility for either parent to obtain, during a period after maternity leave, parental leave to take care of a child, the duration and conditions of which should be determined by national legislation, collective agreements or practice.” 2.     Resolutions and recommendations by the Parliamentary Assembly 56.     In its Resolution 1274(2002) on Parental leave, the Parliamentary Assembly stated as follows: “1.     Parental leave was first introduced in Europe more than a century ago as a key element of social and employment policies for women in work at the time of childbirth. Its purpose was to protect the health of mothers and to enable them to look after their children. 2.     Parental leave has since been adapted to meet the needs not only of women but also of men who wish to balance work and family life and ensure their children’s well-being. 3.     The issue of parental leave is closely linked to that of the role of men in family life, since it permits a genuine partnership in the sharing of responsibilities between women and men in both the private and public sphere...” 57.     The Parliamentary Assembly further noted that parental leave was not applied equally in all member States. It therefore urged the Member States, in particular: “i.     to take the necessary steps to ensure that their legislation recognises different types of family structures, if they have not already done so, and, accordingly, to introduce the principle of paid parental leave including adoption leave; ii.     to set up suitable structures for the implementation of parental leave, including adoption leave...” 58.     In its Recommendation 1769(2006) on the need to reconcile work and family life the Parliamentary Assembly noted that the aim of reconciling work and family life was far from being achieved in many Council of Europe member States and that this situation primarily penalised women, since they still carried most of the responsibility for running the home, bringing up young children and very often looking after their dependent parents or other elderly dependants. It therefore invited the Committee of Ministers to address a recommendation to the member States asking them, in particular: “8.3.     to take measures making it easier to reconcile work and family life which target women and men, including: ... 8.3.5.     providing adequate remuneration/compensation during maternity leave; 8.3.6.     introducing, if they have not yet done so, paid paternity leave and encouraging men to take it; ... 8.3.8.     introducing paid, socially-covered parental leave, which may be used flexibly by the father and mother, taking special care to ensure that men are actually able to use it”. 3.     Recommendations by the Committee of Ministers 59.     In its Recommendation No. R (96) 5 on reconciling work and family life, the Committee of Ministers, acknowledging the need for innovative measures to reconcile working life and family life, recommended that member States “I.     Take action, within the framework of a general policy promoting equal opportunities and equal treatment, to enable women and men, without discrimination, to better reconcile their working and family lives; II.     Adopt and implement the measures and general principles described in the appendix to this recommendation in the manner they consider the most appropriate to achieve this goal in the light of national circumstances and preferences.” 60.     In respect of maternity, paternity and parental leave the appendix to the aforementioned Recommendation explains as follows: “12.     Women should be entitled to legal protection in the event of pregnancy, and, in particular, an adequate period of maternity leave, adequate pay or allowance during this period and job protection. 13.     The fathers of newly born children should also be allowed a short period of leave to be with their families. In addition, both the father and the mother should have the right to take parental leave during a period to be determined by the national authorities without losing either their employment or any related rights provided for in social protection or employment regulations. The possibility should exist for such parental leave to be taken part-time and to be shared between parents. 14.     The measures described in paragraph 13 should apply equally for the benefit of persons adopting a child. 15.     The return to work at the end of a period of parental leave should be facilitated by, for example, vocational guidance and training facilities”. 61.     Recommendation Rec(2007)17 of the Committee of Ministers to member States on gender equality standards and mechanisms recommended, in particular, that “...the governments of member states take or reinforce necessary measures to implement gender equality in practice, taking fully into account the following principles and standards: ... B.     Standards in specific areas: ... 5.     Reconciliation of private/family life and professional/public life 34.     Gender stereotypes and a strong division of gender roles influence social models that tend to see women as mainly responsible for family and private life (in the area of unpaid work) and men in the public sphere and professional work (in the area of paid work). Such division leads to the persistence of unequally shared domestic and family responsibilities, being one of the major reasons for discrimination against women in the labour market and for their limited social and political participation. 35.     The balanced participation of women and men in professional/public life and in private/family life is, therefore, a key area for gender equality and is essential for the development of society. On the other hand, reconciliation of work and public life with family and private life, promoting self-fulfilment in public, professional, social and family life, is a precondition for a meaningful quality of life for all, women and men, girls and boys, and for the full enjoyment of human rights in the political, economic, cultural and social spheres. 36.     Elements indicating states’ political will and commitment to gender equality in this regard include the following: ... iii.     Adoption/existence and enforcement of legislation on maternity and paternity protection, including provisions on paid maternity leave, paid parental leave equally accessible to both parents, and paid non-transferable paternity leave, as well as specific measures addressed equally to women and men workers, to allow the fulfilment of family responsibilities, including care and assistance to sick or disabled children or dependants”. 62.     Finally, in Recommendation Rec(2010)4 on the human rights of members of the armed forces, the Committee of Ministers recommended that the Governments of the member States should ensure, in particular, that “the principles set out in the appendix to this recommendation [were] complied with in national legislation and practice relating to members of the armed forces”. Principle   39 of the appendix to that Recommendation provides that “members of the armed forces who are parents of young children should enjoy maternity or paternity leave, appropriate childcare benefits, access to nursery schools and to adequate children’s health and education systems”. C.     European Union documents 1.     The Council Directives 63.     Council Directive 96/34/EC of 3 June 1996 on the Framework Agreement on parental leave concluded by U