Judgment No.12 of 01.11.2012

JUDGMENT ON CONSTITUTIONALITY REVIEW of certain provisions of Article 32, paragraph (4) letter j) from the Law No. 162-XVI from 22 July 2005 on military status (Complaint №. 12a/2012)


The subject of complaint: ombudsman

Type of judgment: constitutionality review of laws, regulations and decisions of Parliament

Provision: Provisions recognized as unconstitutional


Complaints:

1.  ( 06.06.2012)


Communication:

1.  ( 01.11.2012)


Keywords:   Article 4 Human Rights and Freedoms  | Article 16 Equality  | Article 48 Family  | Article 49 Protection of Family and Orphaned Children  | Article 54 Restricting the Exercise of Certain Rights or Freedoms  | law  |

1. The case originated in the complaint lodged at the Constitutional Court on 6 June 2012 grounded on the articles 135 para. (1) letter a) from the Constitution, 25 para. (1) letter i) from the Law on the Constitutional Court and 38 para. (1) letter i) from the Constitutional Jurisdiction Code by the Ombudsman Mr. Tudor Lazăr, on the constitutionality review of the Article 32 para. (4) letter j) from the law No. 162-XVI from 22 July 2005 on military status. 2. The author of the complaint claimed, particularly, that by specifying the category of “military woman” the contested norm institutes a sex based discrimination of militaries concerning the obtaining of parental leave; and that by non-inclusion of parental leave from the overall length of service of the military the persons right to the freedom of choice is infringed, contrary to the articles 16, 18, 43, 48 and 49 from the Constitution. 3. The complaint was declared admissible with no prejudice for the substance of the case by the Constitutional Court decision of 10 July 2012. 4. Within the public plenary session, the author of the complaint had extended the matter of the complaint, requiring there to be also declared unconstitutional the corresponding provisions from the Government Decision No. 941 from 17 August 2006 on the approval of the Regulation on the manner of performing the military service in the Armed Forces, which reproduce the contested legal norms. 5. When examining the complaint, the Constitutional Court had required the opinion of the Parliament, the President of the Republic of Moldova, of the Government, Ministry of Justice, Ministry of Labour, Social Protection and Family, and the Ministry of Defence. 6. Within the first plenary session of the Court, the author of the complaint had personally attended. The Parliament had been represented by Mr. Sergiu Chirică, Senior Consultant of the Legal Division of the Parliaments Secretariat. The Government had been represented by Mr. Vladimir Grosu, Vice-Minister of Justice, assisted by Mr. Viorel Remişovschi, Deputy Head of Legal Division from the Ministry of Defence.

 

1. National legislation

 

7. The relevant provisions from the Constitution of the Republic of Moldova (Official Gazette, 1994, No. 1, art.1) are as follows:


Article 4

Human rights and freedoms

 

„(1) Constitutional provisions on human rights and freedoms shall be interpreted and enforced in accordance with the Universal Declaration of Human Rights, other conventions and treaties to which the Republic of Moldova is a party. "

 

Article 16

Equality  

„(1) The foremost duty of the State shall be the respect and protection of human person.

(2) All citizens of the Republic of Moldova shall be equal before the law and public authorities, regardless of the race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property or social origin."

Article 48

Family

„(1) The family shall represent the natural and fundamental factor of the society, and shall enjoy the State and society protection.

(2) The family is founded on the freely consented marriage of a man and a woman, on their equality of rights and on the right and duty of parents to ensure their childrens upbringing and education. [...]"


Article 49

Protection of family and orphaned children  

„(1) The State shall facilitate, by economic and other such actions, the formation of the families, and the fulfilment of their duties.

(2) The State shall protect the motherhood, children and young people, by fostering the development of the required institutions. [...]"


Article 54

Restriction on the exercise of certain rights or freedoms

„(1) In the Republic of Moldova no law may be adopted which might curtail or restrict the fundamental rights and liberties of the person and citizen.

(2) The pursuit of the rights and freedoms may not be subdued to other restrictions unless for those provided for by the law, which are in compliance with the unanimously recognized norms of the international law and are requested in such cases as: the defence of national security, territorial integrity, economic welfare of the State, public order, with the view to prevent the mass revolt and felonies, protect other persons rights, liberties and dignity, impede the disclosure of confidential information or guarantee the power and impartiality of justice. [...]

(4) The restriction enforced must be proportional to the situation that caused it and may not affect the existence of that right or liberty."

 

8. Relevant provisions of the Labour Code No. 154-XV from 28 March 2003 (Official Gazette of the Republic of Moldova, 2003, No.159-162, art. 648) are as follows:

Article 124

Maternity leave and partially paid leave on child nursing

„(1) Women employees and women apprentices, and also the wives in the care of the employees, are granted maternity leave, including prenatal leave with a length of 70 calendar days and postnatal leave with a length of 56 calendar days (in cases of the complicated births or births of two or more children - 70 calendar days), with payment of allowance as stipulated in para. (2) Art. 123.

(2) Persons specified in para. (1), after the maternity leave, under their written request, are granted a partially paid leave on child care, until the child reaches the age of three. The allowance is paid for this period from the budget of the state social insurance.

(3) The partial paid leave on childcare can be used in full size or partially at any time, until the child reaches the age of three years. This leave is included in the length of service, including the special length of service, as well as in the retirement contributions.

 

(4) Partially paid leave on childcare can optionally be used, upon a written request by the father of the child, grandmother, grandfather or other relative who is directly involved in taking care of the child, as well as by the tutor."

Article 126

Additional unpaid leave on child nursing aged 3 to 6 years

 

„(1) Along with the maternity leave and partially paid leave on child nursing under the age of 3, women as well as the persons specified in para. (4) Art. 124, are granted upon their written request an additional unpaid leave on child nursing aged 3 to 6 years with preserving the workplace (position).

 

(2) During the additional unpaid leave on child nursing, the woman or the persons specified in para. (4) art. 124, upon their written request can perform a part-time or home based job.

(3) Duration of the additional unpaid leave is included in the length of service, as well as in the special length of service, if the individual labour contract has not been suspended in line with the art.78 para. (1) letter a).

(4) Duration of the additional unpaid leave is not included in the length of service granting the right to the next annual paid leave, nor in the retirement contributions, in line with the law."

 

9. Relevant provisions of the Law No. 162-XVI from 22 July 2005 on the Statute of military (Official Gazette, 2005 No. 129-131, art. 618) are as follows:

Article 7 

Ensuring juridical and social protection of military

 

     "[...]  (2) Females enrolled in military service on the basis of the contract, hereinafter referred to as military women are equal with males in rights and duties under the conditions of this law and other normative acts.

   (3) Military women can also benefit by other rights and facilitations related to childcare, maternity and other circumstances provided for by the legislation in force, with the restrictions provided for by this law. [...]"

 

Article 32

Detachment and enlistment transfer of military 

„(4) The contract based enlistment transfer of military can be undertaken in following cases and under following terms: 

[...] j)     given the situation when a military woman is in a childcare leave - for the whole length of the leave. The duration of the childcare leave is included in the overall length of service and in the retirement contributions, in line with the legislation in force, but is not included in the overall length of military service. Prior to the expiration of this term, the women military is granted the right to the continuation of the military service. [...]"

10. Relevant provisions from the Law No. 5-XVI from 9 February 2006 on the ensuring of equality of chances between women and men (Official Gazette of the Republic of Moldova, 2006, No. 47-50, art. 200) are as follows:

Article 1

Scope of the law

„The scope of this Law pertains to ensuring the exercise by women and men of their equal rights in the political, economic, social, cultural, and other spheres of life, rights guaranteed by the Constitution of the Republic of Moldova, with a view to prevent and eliminate all forms of discrimination based on the criterion of sex."

 

Article 2

 Basic terms

„In the meaning of this Law, the following basic terms shall mean:

[...]

discrimination on the criterion of sex - any distinction, exception, limitation, or preference that is aimed at or followed by a limitation or impediment of recognition, exercise, and/or implementation of fundamental human rights and freedoms, based on equality between men and women; [...]"

Article 5

Prohibition of discrimination on the criterion of sex

 

„(1) In the Republic of Moldova, women and men enjoy equal rights and freedoms and are guaranteed equal opportunities to exercise these rights and freedoms.

    (2) The promotion of a policy or the performance of actions that do not ensure equal opportunities between women and men shall be deemed discriminatory and shall be removed by the competent public authorities, in accordance with the legislation.

(3) Discrimination may be direct or indirect.

(4) Actions that restrict or exclude in any aspect the equal treatment of women and men shall be deemed discriminatory and are prohibited. [...]"

 

11. Relevant provisions of the Law No. 121 from 25 May 2012 on ensuring equality (Official Gazette of the Republic of Moldova, 2012, No. 129-131, art. 618) are as follows:

Article 1

Scope and field of application of the law

 „(1) The scope of this law is to prevent and counter discrimination, as well as to ensure the equality of all the persons from the territory of the Republic of Moldova in political, economic, social, cultural and other fields of life, with no distinction based on race, colour, nationality, ethnic origin, language, religion or convictions, sex, age, disability, opinion, political appurtenance or any other similar criterion.[...]"

 

2. International texts and elements of pertinent compared states:

 

A. United Nations Documents

 

12. Relevant provisions of the Convention on the elimination of all forms of discrimination against women (adopted on 18 December 1979 in New York and ratified by Parliaments Decision No. 87-XIII from 28 April 1994, Official Gazette, 1994, No. 005), are as follows:


Article 5

 

„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."

B.     Documents of the International Labour Organisation

 

13.  Relevant provision of ILO (No. 111) on discrimination in respect of employment and occupation (adopted in Geneva on 25 June 1958, ratified by Parliaments Decision  No. 593-XIII  from  26 September 1995, Official Gazette  of the Republic of Moldova, 1995, No. 59-60, art. 671) are 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 other appropriate bodies.

1. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination."

 

C. Acts of the Council of Europe

 

14. Relevant provision of the Revised European Social Charter   (adopted in Strasbourg on 3 May 1996 and partially ratified by the Law No. 484-XV from 28 September 2001, Official Gazette  of the Republic of Moldova, 2001, No. 130, art. 959), are as follows:

Article 27

The right of workers with family responsibilities to equal opportunities and equal treatment  

„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:

1.  to take appropriate measures:

     a.  to enable workers with family responsibilities to enter and remain in employment, as well as to re-enter employment after an absence due to those responsibilities, including measures in the field of vocational guidance and training;

     b.  to take account of their needs in terms of conditions of employment and social security;

     c.   to develop or promote services, public or private, in particular child day care services and other childcare arrangements;

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; to ensure that family responsibilities shall not, as such, constitute a valid reason for termination of employment."

 

15. Relevant provisions of the European Convention of Human Rights and Fundamental Freedoms (concluded in Rome on 4 November 1950 and ratified by the Republic of Moldova through Parliamentary Decision No. 1298-XIII from 24 July 1997, Official Gazette  of the Republic of Moldova, 1997, nr.54-55, art. 502, 1997), hereinafter - "European Convention", are as follows:

Article 8

Right to respect for private and family life

    „1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Article 14

Prohibition of discrimination

„The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

 

 

 

For these reasons and under Articles 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 letter a) and 68 of the Constitutional Jurisdiction Code, the Constitutional Court

 

DECIDES:

 

1.       To declare unconstitutional the word "woman" from the compound word "military woman" from Article 32 para. (4) letters d) and j) of the Law on military status no. 162-XVI of July 22, 2005.

 

2.      To declare unconstitutional the word "woman" from the compound word "military woman" in items 67 para. (5) letter j), 88. para. (5) letter b), 108 letter i), 116 letter e) and 131 of the Government Decision no. 941 of August 17, 2006 on approval of the Regulation on fulfilment of military service in the Armed Forces.

 

3.      To cease the process of constitutionality review of the phrase "but it is not included in the calendar length of military service" from Article 32 para. (4) letter j) of the Law on military status no. 162-XVI of July 22, 2005.

 

4.      The judgment of the Constitutional Court is final, cannot  be subjected to any remedies, shall enter into force upon adoption and be published in the Official Gazette (Monitorul Oficial) of the Republic of Moldova.

 

President                                             Alexandru TĂNASE

 

 


IN FACT

16. The Constitution guarantees equal rights and freedoms to all the people, with no distinction based on race, nationality, ethnic origin, language, religion, sex, age, disability, opinion, political appurtenance, property or social origin (Article 16).

17. The Constitution also provides for the state protection of maternity and family. Childcare and their education is both a right and a duty of the parents of equal extent (Articles 48-49).

18. The Labour Code recognises women right in benefitting from "maternity leave", which includes prenatal leave with a 70 calendar days and postnatal leave with a 56 calendar days leave (in cases of complicated birth or the birth of two or more children - 70 calendar days) (Article 124). Additionally, women have the right to a "childcare leave" (for the upbringing of the child), partially paid for the care of the child till the age of 3. The partial childcare leave can optionally be used, upon a written request by childs father, grandmother, grandfather, as well as by the tutor. The beneficiary of parental leave has the workplace (position) preserved for him/her. The length of the childcare leave is included in the length of service, including in the special length of service and in the retirement contributions. Along with the maternity leave and partially paid leave for the child care till the age of 3, the woman, as well as the above mentioned persons, are granted upon their written request an additional unpaid leave for the upbringing of the child aged 3 to 6, the workplace (position) being kept.

  19. The Law on the Statute of Military (Nor. 162-XVI from 22 July 2005) provides for enlistment transfer of female military who are on a childcare leave, for the whole period of leave (Article 32 para. (4) letter j)). There is no equivalent provison for male military.

 20. This law also provides that the military women can benefit by other rights related to childcare, parental leave and other circumstances provided for by the law (Article 7).

21. On the other hand, the law specifies the fact that the period of the childcare leave is included in the overall length of service, in retirement contributions, in line with the legislation in force. However, it is not included in the labour length of service of the military service itself.  (Article 32 para. (4) letter j)).

22. The regulation on the military service in the military forces, approved by the Governments Decision No. 941 from 17 August 2007, recognizes the right of the military women to a maternal leave, partially paid leave for the childcare and additional unpaid childcare leave, with all the inherent benefits and indemnities (para.108, letter h) and i), 130 and 131). There is no equivalent provision for male military.

23. In line with the Law on ensuring equality of chances between women and men, women and men are granted equal rights in political, economic, social, cultural and other fields of life, rights granted by the Constitution of the Republic of Moldova, any form of discrimination based on the criterion of sex shall be prohibited. In the same vein is the wording of the Law on ensuring equality. 

24. The author of the complaint considers that by pinpointing the term "military woman" in the contested norm institutes a discrimination based on sex and avoiding to include the childcare leave in the labour length of the military service affects the persons right to the free choice of his/her work.   

25. The Court takes note of the fact that the complaint treats two distinct issues: (1) discrimination of male militaries in relation to female militaries with regard to the right to childcare leave; (2) non-inclusion of the childcare leave in the labour length of the military service.

26. In this context, the Court remarks that the complaint mentions a set of interconnected elements and principles with constitutional value, such as equality of rights, protection of family, of maternity and of children.

27. The Court recalls that the prerogative it has been granted with by the Article 135 para. (1) letter b) from the Constitution implies the determination of the authentic and full meaning of the constitutional norms, which can be undertaken by the textual or functional interpretation, to the extent it can be deducted from the text of the Constitution, considering the generic nature of the norm, concrete situations which the legislator could have not foreseen when drafting the norm, subsequent norms (connected or even contradictory), and complex situations where the norm shall be applied.

28. As the Court has always stated, the Article 16 supplements the rest of substantial stipulations of the Constitution. It has no independent existence, as it only applies for the exercise of rights and freedoms granted by constitutional stipulations. While it can also operate with no infringement of other constitutional stipulations and, to this extent, can have an autonomous meaning, the Article 16 from the Constitution is only applicable in cases when the situation enters the field of applicability of the constitutional stipulations as regards the exercise of fundamental rights and freedoms. This principle is deeply rooted in the Courts jurisprudence (among others, the Decision No. 15 from 13 September 2011 concerning the constitutional review of the article 18 para.(3) from the Law No. 152-XVI from 8 June 2006 on the National Institute of Justice, the Decision No. 21 from 20 October 2011 on the interpretation of the Article 46 para. (3) from the Constitution.

29. The Court recalls that though the author of the complaint called upon the incompatibility of the contested norm with the right to work, in the part concerning the non-inclusion of the childcare leave in the labour length of the military length of service, nor within the plenary public session, he had not identified any category of persons under identical or similar juridical situations with regards to whom the military women would have been discriminated from this perspective. 

30. Thus, the Cout recalls that the author of the complaint has not defended his position with regard to the free choice of work, guaranteed by the article 43 from the Constitution, neither separately, nor jointly with the Article 16 from the Constitution. Subsequently, the Court suspends the process for this part of the complaint.  

31. In this context, the Court will examine the complaint in the part related to the discrimination of male military in regard to female military concerning the right to the childcare leave, from the perspective of the article 16 from the Constitution (equality), jointly with the Articles 48 and 49 (family and protection of the family, maternity and of the child).

32. Aiming at elucidating on the authentic content of constitutional norms, the Court will particularly operate with its previous jurisprudence, as well as with principles established by the international law and by the case-law of the European Court of Human Rights (hereinafter - "European Court"), making use of all the methods of legal interpretation.

33. At the same time, the Court recalls that the provision of the Article 32 para. (4) letter d) from the same law also makes reference to the right of the military women to childcare leave, as follows:

„d) the position becomes open referring to the undertaking of organisational measures for a period no longer than 4 months and in the case of military women who are on maternity or childcare leave - for the whole length of this leave [...]"

34. In this context, on the ground of the 6 para. (3) from the Constitutional Jurisdiction Code, the Court will pronounce itself including with regard to the provision of the article 32 para. (4) letter d) from the Law on military status.

 

ALLEGED INFFRINGEMENT OF THE ARTICLE 16 IN CONJUNCTION WITH THE ARTICLES 48 AND 49 FROM THE CONSTITUTION

 

35. In the opinion of the author of the complaint, the provision subjected to constitutional review infringes the Article 16 para. (2) of the Constitution, which states that:

„ (2) All citizens of the Republic of Moldova shall be equal before the law and public authorities, regardless of the race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property or social origin."

36. The author of the complaint considers that the contested norm affects the Article 48 of the Constitution, which states that:

„(1) The family is the natural and fundamental constituent of society, and as such has the right to be protected by the State and by society.

(2) The family is founded on the freely consented marriage of a man and a woman, on their equality of rights and on the right and duty of parents to ensure their childrens upbringing and education. [...]"

37. According to the author of the complaint, the norm subjected to constitutional review also infringes the Article 49 of the Constitution:

„(1) The State shall facilitate, by economic and other such actions, the formation of the families and the fulfilment of their duties.

    (2) The State shall protect the motherhood, children and young people, by fostering the development of the required institutions. [...]"

 

A. Arguments of complaints author

 

38. According to the author of the complaint, Article 48 of the Constitution provides for equal rights and obligations in family relationships, regardless of gender.

39. In the view of complaints author, by specifying the phrase „military woman" in the text of the Law on military status, there was instituted a discrimination based on sex that violates Article 16 of the Constitution of the Republic of Moldova.

40. In support of his position, the author of complaint invokes articles 14 which prohibits any discrimination and 8 which guarantees the right to private life of the European Convention.

 

B. Arguments of authorities

 

41. In their submitted written opinions, the Parliament, the President of the Republic of Moldova and the Ministry of Defence pleaded for the recognition of the contested constitutionality norm.

42. According to the Parliament, by regulating the special legal status of military personnel, the legislature may set limits for the military in the part related to exercise of civil rights and liberties.

43. In this respect, in the opinion of Parliament, exclusion of the right to parental leave for male military cannot be regarded as a violation of constitutional rights as this limitation is based on the voluntary nature of the conclusion of the contract for military service.  

44. In Parliaments view, this rule aims at excluding mass failure by military personnel to comply with their service duties.

45. According to Parliament, by granting the right to childcare as an exception only for military women, the legislature took into account the limited number of military women in the armed forces and womans major social role in child rearing.

46. In the Courts public session, the representative of the Parliament changed his position declaring that he was not insisting on constitutional recognition of the challenged norm.

47. In the opinion of the Apparatus of the President of the Republic of Moldova, restriction of rights of all the military to a parental leave is proportionate and justified by the need to protect national security.

48. According to the representative of the President of the Republic of Moldova, an act of "positive discrimination" was committed by the contested norm, the state establishing a compensation for a group of military women - numerically insignificant (23% of the armed forces) and the granting of such facilities to them shall not constitute discrimination of military men.

49. At the same rime, the representative of the President of the Republic of Moldova affirms that upon adoption of the norm there were taken into account the functions held by the military women practicing an occupation characteristic to men, their role in ensuring defence capacity, the specific thinking and local traditions which imply that namely, woman has primarily the obligation to bring up and raise children.

50. According to the Ministry of Defence, most functions related to combat training are exercised by military men and their stay on childcare leave would undermine the combat capability of military units and, implicitly, national security interests.

51. The Government, Ministry of Justice and Ministry of Labour, Social Protection and Family recognized that in the context of recent case-law of the European Court of Human Rights in the case Konstantin Markin v. Russia (application no. 30078/06, Grand Chamber judgment of 22 March 2012), international texts and recommendations, the challenged norm in the part related to entitlement of only military women to parental leave risks of being qualified as a legal norm contrary to Article 16 of the Constitution and Article 14 of the European Convention.

 

C. The Court assessment

 

1. General principles

 

52. In its previous case-law, the Court has constantly held that any difference in treatment does not automatically imply a violation of Article 16 of the Constitution. In order to establish a violation of Article 16 of the Constitution it should be ascertained that people in similar or comparable situation receive preferential treatment and that this distinction is discriminatory (see, inter alia, Judgment No. 27 of 20 December 2011 on the constitutionality review of some laws on amending the pension insurance and other social payments for certain categories of employees.

53. However, the Court considers reasonable that these derogations must be within the limits of Article 54 of the Constitution, according to which the exercise of rights and freedoms may not be subject only to such limitations than those provided by law that correspond to the unanimously recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic welfare of the country, public order aimed at prevention of mass riots or offences, protection of rights, freedoms and dignity of other persons, hindrance of disclosure of confidential information or guaranteeing the authority and impartiality of the judiciary (paragraph 2). The restriction must be proportionate with the situation that caused it and cannot affect the existence of the right or freedom, as well.

 54. Thus, a distinction is discriminatory if it is not based on objective and reasonable justification, that is, if it does not pursue a legitimate purpose or if there is no reasonable relationship of proportionality between the means employed and the aim pursued.

55. The state has a certain margin of appreciation to justify a different treatment in similar situations. The scope of the margin of appreciation vary depending on the circumstances and context but the Constitutional Court has the mission to ultimately assess compliance with the requirements of the Constitution. That being primarily a mechanism for protection of human rights, the Court must take into consideration the evolution of international standards on human rights (mutatis mutandis, Judgment No. 15 of 13 September 2011, cited above).

56. The Court recalls, among other things, that progress towards gender equality has become a major goal in the Member States of the Council of Europe and that through the pertinent texts of the Council of Europe and the European Court case-law, just very powerful reasons could determine appreciation of differences in treatment as being compatible with the European Convention (see ECtHR judgments Burghartz v. Switzerland of 22 February 1994, § 27 and Schuler-Zgraggen v. Switzerland from 24 June 1993 and so on).

57. In this context, the Court cannot agree with the argument of the President representative that the challenged norm is justified by specific thinking and local traditions, meaning that namely, the woman has primarily the obligation to educate and raise children. Following the reasoning of the European Court, references to traditions, general prejudices or majority predominant social attitudes in a given country are not sufficient to justify a difference in treatment based on sex. For example, states cannot impose traditions that are deeply rooted in the idea that man plays a key role and the woman - a secondary role in the family (see ECtHR judgment Ünal Tekeli v. Turkey, § 63).  

58. In the specific context of the armed forces, the Court notes that the European Court specified that when they drafted and then signed the Convention, the overwhelming part of the Contracting States had defence forces and, consequently, a system of military discipline which involved inherently the ability to impose to certain rights and freedoms of the members of the armed forces some that could not be imposed on civilians. The European Court held that the existence of such systems, which have remained ever since, was not in conflict with the obligations of States under the Convention (ECtHR judgment Engel and Others v. the Netherlands of 8 June 1976, § 57). It follows that each state has the power to organize its system of military discipline and disposes in this respect of a certain margin of appreciation. At the same time, the European Court held that, although the proper functioning of an army is hardly conceivable without legal rules designed to prevent its damage from the military, nevertheless, the national authorities may not rely on such rules in order to prevent exercise of their right to privacy by the armed forces, that apply to the military as well as to other persons under its jurisdiction (ECtHR judgments Smith and Grady v. United Kingdom, § 89, and Lustig-Prean and Beckett v. United Kingdom, § 82, 27 September 1999).

 

2. Elements of comparative law

 

59. The comparative study of the Member States of the Council of Europe suggests that as far as civilians are concerned, merely in two States (Armenia and Switzerland) entitlement to parental leave is limited to women. In one State (Turkey) men working in the private sector are not entitled to parental leave, while male civil servants are entitled to such leave. In another State (Bosnia and Herzegovina) men may take parental leave under certain conditions only (for example, absence of maternal care of the child). In one State (Albania) no parental leave entitlement is provided by law. In other States both men and women are equally entitled to parental leave in civilian life.

60. In some countries parental leave is a family entitlement to be divided between parents as they choose (for example in Azerbaijan, Georgia and Romania). In other countries it is an individual entitlement, with each parent entitled to a certain portion of parental leave (for example in Belgium, Croatia, Italy, Luxembourg and the Czech Republic). In Sweden the entitlement is partly family, partly individual, with 60 days reserved for each parent and the rest divided between them as they choose. In some countries parental leave is unpaid (for example Austria, Belgium, Cyprus, Malta, the Netherlands and the United Kingdom). In others parental leave is paid either in part or in full (for example Azerbaijan, Luxembourg, Portugal, the Czech Republic and Serbia). There are also varied approaches to the length of parental leave, ranging from three months (Belgium) to three years (Spain).

61. As regards military sector, it appears that in one State (Albania) military personnel are not expressly entitled to parental leave. In six States (Armenia, Azerbaijan, Georgia, Moldova, Switzerland and Turkey) only servicewomen are entitled to such leave. In three States (Bosnia, and Herzegovina, Bulgaria and Serbia) servicewomen are entitled to parental leave, irrespective of their situation, while servicemen are entitled to such leave only in exceptional cases, for example if the mother has died, has abandoned the child, is seriously ill or is unable to take care of the child for any other justified reason. In other states both servicemen and servicewomen are equally entitled to parental leave.

62.In some countries (for example Austria, Croatia, Cyprus, Estonia, Finland, Italy, Luxembourg, Malta, Poland, Portugal, Serbia and Sweden) parental leave for military personnel seems to be governed by the same general provisions as those applicable to civilians. In other countries (for example, France, Greece, Latvia, Lithuania, the Czech Republic and Romania) parental leave is regulated by specific provisions which do not contain any significant differences as compared to the rules applicable to civilians. In five countries (Germany, Belgium, Spain, the Netherlands and the United Kingdom) the specific provisions governing parental leave for military personnel contain certain differences or restrictions not applicable to civilians. For example, legislation in the Netherlands provides that parental leave may be postponed where "important interests of the service" so require. In Germany military personnel benefit from the same statutory entitlements as civilians in terms of parental leave. However, the German Minister of Defence may oppose the attribution of parental leave to a male or female serviceperson or recall a serviceperson on parental leave to duty on grounds of needs of national defence. Similarly, in the United Kingdom, military service personnel, who in principle have the same entitlement to parental leave as civilians, may not be able to take parental leave at their convenience if it is considered to affect the combat effectiveness of the armed forces.

 

3. Applicability of general principles to the given case

 

i. On applicability of Article 16 in conjunction with articles 48 and 49 of the Constitution

 

63. The Court must first determine whether the situation regulated by the challenged rule falls under Articles 48 and 49 and, consequently, Article 16 of the Constitution.

64. The Court reiterates that Article 16 of the Constitution comes into action when the situation referred to disadvantage involves one of the conditions for the exercise of a guaranteed right or if criticized measures aim at exercising of a guaranteed right. For Article 16 to be operable, it is sufficient that the situation regulated by the challenged norms comes within the scope of one or more provisions of the Constitution which guarantees fundamental rights.

65. Articles 48 and 49 of the Constitution do not expressly provide a right to parental leave and do not impose a positive obligation on the State to provide parental leave allowance. However, in accordance with Article 49 of the Constitution, the state facilitates economic measures and by other measures, family formation and fulfilment of its obligations, protects motherhood, children and young people, stimulating the development of necessary institutions. 

66. In this context, allowing a parent to stay at home and take care of children, parental leave and related allowance favour family life and definitely have an impact on its Organisation. Parental leave and proper allowance, therefore, fall within the scope of Articles 48 and 49 of the Constitution. Therefore, Article 16 combined with Articles 48 and 49 of the Constitution is applicable. Consequently, the State, when deciding to set up a system of parental leave, must do so in a manner consistent with Article 16 of the Constitution.

 

ii. If an infringement occurred of Article 16 in conjunction with Articles 48 and 49 of the Constitution

 

67. The Court notes that in comparison with female military, male military are not legally entitled to a parental leave until the child is three years old. Therefore, the Court will first verify whether male military are in a situation comparable to that of a woman working in the army.

68. Unlike maternity leave which aims at allowing the mother to recover from childbirth and to breastfeed her baby, if she wishes, parental leave and parental leave allowance refer to posterior period and are conceived to enable the beneficiary to stay at home and care for the child personally. 

69. In this context, the Court disagrees with the argument of the Parliament, the President of the Republic of Moldova and the Ministry of Defence on woman role in child rearing and education (see §§ 45 and 49 supra). Without ignoring the differences that may exist between father and mother in their relationship with the child, the Court notes with regard to child rearing during parental leave, men and women are in "similar situations". 

70. Thus, from the perspective of parental leave scope, male military are in a situation similar to that of female military. Accordingly, the Court will determine whether the difference in treatment between the military of both sexes is based on objective and reasonable justification in accordance with Article 16 of the Constitution.

71. The Court takes note of the fact that this case is within a particular context, that of the armed forces. It is a field that is closely related to national security and, therefore, essential for the vital interests of the State.

72. The states enjoy a wide margin of appreciation in the field of national security in general and in the armed forces, in particular. (see ECtHR judgments Smith and Grady v. the United Kingdom, § 89, and Lustig-Prean and Beckett v. the United Kingdom, cited above). 

73. The Court has accepted on several occasions that the rights of military personnel under Articles 5, 9, 10 and 11 of the Convention may in certain circumstances be restricted to a greater degree than would be permissible in the case of civilians. Thus, as far as Article 14 taken together with Article 5 is concerned, the Court has found that the use of deprivation of liberty as a disciplinary sanction that might be imposed on military personnel, but not on civilians, did not result in any discrimination incompatible with the European Convention, because the conditions and demands of military life were by nature different from those of civil life (see ECtHR Engel and Others v. the Netherlands, cited above, § 73).  Further, with respect to Article 9 of the European Convention, the Court has remarked that certain restrictions on conduct and attitudes motivated by religion, although they could not be imposed on civilians, were acceptable in the army. In choosing to pursue a military career, members of the armed forces have accepted of their own accord a system of military discipline and the limitations of rights and freedoms implied by it (see ECtHR judgments Kalaç v. Turkey of 1 July 1997, § 28, and also Larissis and Others v. Greece of 24 February 1998, §§ 50-51, concerning proselytising in the army). Similarly, when examining cases under Article 10 of the European Convention, the European Court has underlined that it is necessary to take into account the particularities of the military life and the specific "rights" and "responsibilities" incumbent on military personnel, as members of the armed forces are bound by an obligation of discretion in relation to anything concerning the performance of their duties (see Hadjianastassiou v. Greece, 16 December 1992, §§ 39 and 46, Series A no. 252, and Pasko v. Russia, 22 October 2009, both concerning disclosure by a serviceman of confidential information entrusted to him). The Court has also found that distinctions between military personnel and civilians in the field of freedom of expression are justified under Article 14 by the differences between the conditions of military and civil life and, more specifically, by the "rights" and "responsibilities" peculiar to members of the armed forces (see Engel and Others, cited above, § 103). Finally, it must be noted that Article 11 § 2 of the European Conmvention states explicitly that it is permissible to impose lawful restrictions on the exercise by members of the armed forces of the right to freedom of assembly and association (see Demir and Baykara v. Turkey [GC], [MC], § 119).   

74. In the same vein, the European Court has also stressed that the European Convention does not stop at the gates of army barracks and that military personnel, like all other persons within the jurisdiction of one Contracting State, are entitled to European Convention protection. It is therefore not open to the national authorities to rely on the special status of the armed forces in order to justify military personnel deprivation of their rights. Any restrictions on their Convention rights, to be justified, must satisfy the test of necessity in a democratic society (see judgments Grigoriades v. Greece, 25 November 1997, §§ 45-48 and Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19 December 1994, §§ 36-40).

75. Further, in respect of restrictions on the family and private life of military personnel, especially when the relevant restrictions concern "a most intimate aspect of private life", there must also exist "particularly serious reasons" before such interferences can satisfy the requirements of Article 8 § 2 of the European Convention. In particular, there must be a reasonable relationship of proportionality between the restrictions imposed and the legitimate aim of protecting national security. These restrictions are acceptable only where there is a real threat to the armed forces operational effectiveness and assertions as to a risk to operational effectiveness must be "substantiated by specific examples" (see Smith and Grady, § 89, and Lustig-Prean and Beckett, cited above, § 82).

76. Turning to the circumstances of this case, the Court notes that the Parliament, the President of the Republic of Moldova and the Ministry of Defence advanced several arguments to justify the difference in treatment between male and female military as regards entitlement to parental leave. The Court will examine each of these arguments. 

77. Firstly, as regards the argument relating to the social role of women in the education of children, the Court observes that already in the Petrovic v. Austria case of 27 March 1998, the European Court noted the gradual evolution of society towards a more equal sharing between men and women of responsibilities for their child-raising. In the case of Weller v. Hungary of 31 March 2009, the Court ascertained a discrimination on grounds of parental status in the fact that natural fathers were not having entitlement to receive parental allowances, when mothers, adoptive parents and guardians were entitled to them. (§§ 30-35).

78. International texts and elements of relevant comparative law (see §§ 12-15, 59-62 supra) indicate that the evolution of society - which, as mentioned by the European Court in case of Petrovic, started in the 80s - has seen much progress since then.

79. The Court notes that in most European countries, including Moldova, the law foresees in the civil sector that both women and men can benefit from parental leave. In a significant number of Member States of the Council of Europe, the military both female and male are entitled to parental leave (see §§ 61-62 supra). This shows that modern European society has evolved towards a more egalitarian distribution of responsibility among men and women for raising of children and that the role of fathers in small children rearing is increasingly recognized.

80. The Court cannot ignore the ideas that continue to be spread and the evolutions in the European Court case-law, either.

81. Likewise, the Court considers that the President representative reference to positive discrimination is misconceived. In fact, the different treatment of male and female military as regards entitlement to parental leave is clearly not intended to correct the disadvantaged position of women in society or "factual inequalities" between men and women. On the contrary, the Court considers that such difference has the effect of perpetuating stereotypes based on sex and constitutes a disadvantage both to women careers and to men family life.  

82. Similarly, the Court considers that the difference in treatment might be justified by making reference to traditions existing in the Republic of Moldova. The European Court has declared that States may not impose traditional distribution of gender roles based on sex and gender stereotypes (see § 57 supra). Moreover, due to the fact that under the legislation of the Republic of Moldova, civilian women and men are both entitled to parental leave and is the parent choice to decide which parent should take parental leave to take care of the child, the Court cannot accept the assertion that namely the woman has primarily the education to educate and raise children, that the military woman practices an occupation typical to men and that the Moldovan society is not ready to accept similar equality between men and women serving in the armed forces. 

83. The Court concludes that the traditional distribution of gender roles in society cannot be used for justification of men exclusion, including those working in the army, from the entitlement to parental leave. The Grand Chamber of the European Court found that gender stereotypes - such as the perception of women as primary child-carers and men as primary breadwinners - cannot, by themselves, be considered to amount to sufficient justification for a difference in treatment concerning childcare leave, any more than similar stereotypes based on race, origin, colour or sexual orientation.  

84. Nor is the Court persuaded by the second argument of the Parliament, the President of the Republic of Moldova and the Ministry of Defence, according to which the extension of the parental leave entitlement to male military would have a negative effect on the fighting power and operational effectiveness of the armed forces, while the granting of parental leave to female military does not entail such risk because in the armed forces women are less numerous than men. There is no indication that any expert study or statistical research was ever made by the authorities to evaluate the number of male militaries who would be in a position to take three years parental leave at any given time and would be willing to do so, and to analyse the consequences how these would affect the operational effectiveness of the army. In the Court view, the mere fact that most of the functions related to combat training are being exercised by military men, as asserted by the Ministry of Defence, it is insufficient to justify the difference in treatment between men and women in the army. In the aspect tackled, the statistical information furnished by the Ministry of Defence at the request of the Court cannot induce any conclusion in this regard. It does not indicate either the total number of male military personnel or the number of servicemen having children under the age of three. Therefore, this information does not allow to establish, even approximately, the percentage of servicemen that would be eligible to take parental leave at any given time. In the absence of studies referring to military men desire to benefit from parental leave is also impossible to estimate the number of male militaries who were actually willing to take parental leave. The allegation of the Ministry of Defence that such servicemen would be numerous is contradicted by the statistical data which does not reveal a systemic problem. In such circumstances, the Court cannot accept the assertions of the Parliament, the President of the Republic of Moldova and the Ministry of Defence regarding the risk for operational effectiveness of the army because this statement has not been "substantiated by specific examples" (see the ECtHR case-law cited in § 75 supra). 

85. Nevertheless, the Court admits that, given the importance of the army for the protection of national security, certain restrictions on the entitlement to parental leave may be justifiable, provided that they are not discriminatory.  In the Court opinion, there are possible means to attain the legitimate aim of protecting national security other than by limiting the parental leave entitlement to female military and exclusion of male military from exercise of the same right.

86. The Court retains that in a significant number of the Member States of the Council of Europe militaries of both sexes are entitled to parental leave (see § 59 supra). The Court notes with interest the legal provisions on parental leave existing in such countries as the Netherlands, Germany and the United Kingdom (see § 59 supra). These examples show that there are ways which can be employed to accommodate legitimate concerns about the operational effectiveness of the army, while ensuring equal treatment to militaries of both sexes regarding exercise of the right to parental leave. 

87. The Court takes note of Article 1 of ILO Convention No. C111 concerning Discrimination in Respect of Employment and Occupation according to which any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination (see § 12 supra). In this context, the Court does not consider that exclusion from the entitlement to parental leave in this case is based on a necessary qualification for military service. Besides that, female military personnel are entitled to parental leave and the exclusion concerns only servicemen.

88. At the same time, the Court considers that, having regard to the specific demands imposed by military service, it may be justifiable to exclude from the entitlement to parental leave any military man or woman, who may not easily be replaced in their duties owing to such factors as, for example, their hierarchical position, rare technical qualifications or involvement in active military actions. However, in the Republic of Moldova the entitlement to parental leave depends exclusively on the sex of the military personnel. By excluding servicemen from the entitlement to parental leave, the provision imposes a restriction which applies automatically to all male military, irrespective of their position in the army, the availability of a replacement or their individual situation.

89. The Court considers that such a general and automatic restriction imposed to a group of people on the basis of sex exceeds the scope of an acceptable state margin of appreciation, however wide that margin might be, and as being incompatible with Article 16 of the Constitution in conjunction with Articles 48 and 49 of the Constitution.

90. Finally, as regards the argument of the Parliament, the President of the Republic of Moldova and the Ministry of Defence, according to which that, by engaging in army, the military waives his right to non-discrimination, the Court considers that given the fundamental importance of the prohibition of discrimination based on sex, it cannot be accepted the possibility to give up the right not to be subjected to such discrimination, as this would be contrary to an important public interest (see for a similar approach on racial discrimination, DH and Others v. the Czech Republic [MC], § 204).

91. In the same context, the Court notes that in the judgment Konstantin Markin v. Russia, cited above, the Grand Chamber found that Article 14 in conjunction with Article 8 of the Convention was violated through the Russian authorities refusal to recognize to the applicant, male military, the right to parental leave, compared to female militaries to whom that right was recognized (see in the same sense ECtHR judgment Hulea v. Romania of 2 October 2012).

92. Given the above, the Court considers that the exclusion of male militaries from exercising the right to parental leave, while female militaries have this right, it cannot be regarded as being based on objective and reasonable justification. Hence, the Court concludes that this difference in treatment constitutes discrimination based on sex.

93. Consequently, the contested regulation infringes Article 16 in conjunction with Articles 48 and 49 of the Constitution.

94. For the same reasons, the Court holds that Article 32 para. (4) letter d) of the Law on military status (see § 34 supra) infringes Article 16 in conjunction with Articles 48 and 49 of the Constitution.

95. Given the fact that items 67 letter j), 88 para. (4) letter b), 108 letter i), 116 letter e), 131 of Regulation on the fulfilment of military service in the Armed Forces approved by Government Decision no. 941 of 17 August 2007, reproduce the legal norm contrary to the Constitution, the Court holds unconstitutional the validity of the same arguments. 

 

 

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