CEDH · CASELAW;CLIN;ENG — 2 octobre 2012

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Romania - 33411/05 Judgment 2.10.2012 [Section III] Article 14 Discrimination Refusal to award compensation to serviceman for discrimination with respect to his right to parental leave: violation   Facts – The applicant had been in the army since 1991. In December 2001 his second child was born. For the first ten months the applicant’s wife, a teacher, took parental leave, which could be extended to the child’s second birthday. In September 2002 the applicant applied to his hierarchical superior for parental leave. This request was repeated on several occasions. However, the Ministry of Defence refused on the grounds that the legislation defining the status of army personnel provided for parental leave only for women. In September 2003 the applicant, who considered this refusal discriminatory, brought an action against the Ministry of Defence before the county court. His action was dismissed. In his appeal to the court of appeal against that decision the applicant raised an objection alleging the unconstitutionality of the legal provision governing the status of military personnel. By a decision of February 2005 the Constitutional Court agreed to examine the question of constitutionality, and held that the legislative provision in question infringed the principles of equality before the law and of non-discrimination on grounds of sex, both enshrined in the Constitution. The court of appeal then dismissed the applicant’s appeal in a final judgment of 13   April 2005, holding that the statutory provision in question was not applicable, since the applicant had not submitted documentary evidence that he had paid the contributions necessary to benefit from parental leave. It also refused to grant compensation in respect of non-pecuniary damage, finding that his claim was unsubstantiated. Law – Article 14 in conjunction with Article   8: For the purposes of parental leave, the applicant, a serviceman, was in a position similar to that of servicewomen. That situation led the Constitutional Court to find, at the applicant’s request, that the ineligibility of servicemen for parental leave under the Military Personnel (Status) Act amounted to discrimination on grounds of sex. Furthermore, although since 2006 the legislation in Romania – as in a significant number of member States – had provided that servicemen were entitled to the same parental leave as servicewomen, the applicant had not been permitted to take such leave. In addition, his action for damages in respect of the discrimination experienced through the refusal to grant parental leave was dismissed by the court of appeal on the grounds that he had not provided evidence of having paid his social-insurance contributions or of his alleged non-pecuniary damage. With regard to non-pecuniary damage, the Court considered that the court of appeal’s approach had been too formalistic; the Court had already noted that such an approach, which placed on the applicant an obligation to establish the existence of non-pecuniary damage through evidence capable of demonstrating external signs of his mental or psychological suffering, had had the result of depriving him of the compensation to which he was entitled. As to the payment of social-security contributions, the issue of parental leave, the entitlement to which was governed by the Military Personnel (Status) Act in a discriminatory manner with regard to servicemen, was distinct from that of potential benefits. Even supposing that the applicant had not paid his social contributions, the court of appeal had completely failed to examine his right to parental leave, possibly without pay. In addition, it had not given the applicant an opportunity to demonstrate payment of such contributions to social and medical insurance schemes, especially since, as a serviceman, he belonged to a social-security scheme that was separate from the public-law scheme. Moreover, no complaints had been brought against the applicant alleging any failure to pay compulsory social contributions since joining the army in 1991. Thus, the court of appeal’s refusal to award the applicant compensation for the violation of his right not to be discriminated against in the exercise of his rights concerning his family life did not appear to have been based on sufficient grounds. In this respect, it was irrelevant that the court of appeal had not advanced discriminatory grounds in its decision, since it had refused, without sufficient reasons, to compensate the non-pecuniary damage caused by the discrimination experienced by the applicant on account of the refusal to grant him parental leave. Conclusion : violation (unanimously). Article 41: EUR 8,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed. (See Konstantin Markin v. Russia [GC], no.   30078/06, 22   March 2012, Information Note no.   150 )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes