{"id":23360,"date":"2023-08-26T18:50:04","date_gmt":"2023-08-26T18:50:04","guid":{"rendered":"https:\/\/legalblog.ie\/?p=23360"},"modified":"2023-08-27T15:53:51","modified_gmt":"2023-08-27T15:53:51","slug":"gender-equality","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/gender-equality\/","title":{"rendered":"Gender Equality [ECHR]"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Overview\" title=\"Overview\">Overview<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Examples\" title=\"Examples\">Examples<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Pregnancy\" title=\"Pregnancy\">Pregnancy<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Right_to_liberty_and_security\" title=\"Right to liberty and security\">Right to liberty and security<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Amount_of_compensation_awarded_for_a_medical_error\" title=\"Amount of compensation awarded for a medical error\">Amount of compensation awarded for a medical error<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Choice_of_family_name_and_transmission_surnames\" title=\"Choice of family name and transmission surnames\">Choice of family name and transmission surnames<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Calculation_of_a_disability_allowance\" title=\"Calculation of a disability allowance\">Calculation of a disability allowance<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Determination_of_a_childs_residence\" title=\"Determination of a child\u2019s residence\">Determination of a child\u2019s residence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Dismissal_on_grounds_of_gender\" title=\"Dismissal on grounds of gender\">Dismissal on grounds of gender<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Family-allowance_payments\" title=\"Family-allowance payments\">Family-allowance payments<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Ineligibility_for_a_stay_of_execution_of_ones_prison_sentence\" title=\"Ineligibility for a stay of execution of one\u2019s prison sentence\">Ineligibility for a stay of execution of one\u2019s prison sentence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Parental_leave_and_parental_leave_allowances\" title=\"Parental leave and parental leave allowances\">Parental leave and parental leave allowances<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Termination_of_widowers_pension\" title=\"Termination of widower\u2019s pension\">Termination of widower\u2019s pension<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-14\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Wearing_of_religious_clothing\" title=\"Wearing of religious clothing\">Wearing of religious clothing<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-15\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Entitlement_to_a_refugee_card_and_housing_assistance\" title=\"Entitlement to a refugee card (and\u00a0 housing assistance)\">Entitlement to a refugee card (and\u00a0 housing assistance)<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-16\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Employment_health-insurance_coverage\" title=\"Employment health-insurance coverage\">Employment health-insurance coverage<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-17\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Exclusion_from_entitlement_to_an_income\" title=\"Exclusion from entitlement to an income\">Exclusion from entitlement to an income<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-18\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Housing_benefit\" title=\"Housing benefit\">Housing benefit<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-19\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Right_to_free_elections\" title=\"Right to free elections\">Right to free elections<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-20\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Retirement_Benefits\" title=\"Retirement Benefits\">Retirement Benefits<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-21\" href=\"https:\/\/legalblog.ie\/gender-equality\/#Domestic_Violence\" title=\"Domestic Violence\">Domestic Violence<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Overview\"><\/span>Overview<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>When it comes to discrimination on grounds of sex, the Court has repeatedly stated that the advancement of gender equality is today a major goal in the member States of the Council of Europe (Konstantin Markin v. Russia [GC], 2012, \u00a7 127) and that, in principle, \u201cvery weighty reasons\u201d had to be put forward before such a difference in treatment could be regarded compatible with the Convention (Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985, \u00a7 78; Burghartz<br \/>\nv. Switzerland, 1994, \u00a7 27; Schuler-Zgraggen v. Switzerland, 1993, \u00a7 67; Konstantin Markin v. Russia [GC], 2012, \u00a7 127; J.D. and A. v. the United Kingdom, 2019, \u00a7 89; Beeler v. Switzerland [GC], 2022, \u00a7 95).<\/p>\n<p>The Court has held that references to traditions, general assumptions or prevailing social attitudes in a particular country were insufficient justification for a difference in treatment on grounds of sex (Konstantin Markin v. Russia [GC], 2012, \u00a7 127). For example, States were prevented from imposing traditions that derive from the man\u2019s primordial role and the woman\u2019s secondary role in the family (\u00dcnal Tekeli v. Turkey, 2004, \u00a7 63; Konstantin Markin v. Russia [GC], 2012, \u00a7 127; Beeler v. Switzerland [GC], 2022, \u00a7 110). The reference to the traditional distribution of gender roles in society could not justify, for example, the exclusion of men from the entitlement to parental leave.<\/p>\n<p>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, any more than similar stereotypes based on race, ethnic origin, colour or sexual orientation (Konstantin Markin v. Russia [GC], 2012, \u00a7 143). In Beeler v. Switzerland [GC], 2022, \u00a7 113, the Court considered that domestic legislation introducing a difference between women and men in terms of access to a survivor\u2019s pension was perpetuating prejudices and stereotypes regarding the nature or role of women in society and was disadvantageous both to the careers of women and to the family life of men.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Examples\"><\/span>Examples<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Court has found that differential treatment on the grounds of sex violated Article 14 in different areas, such as<\/p>\n<ul>\n<li>equality in marriage (\u00dcnal Tekeli v. Turkey, 2004; Burghartz v. Switzerland, 1994);<\/li>\n<li>access to employment (Emel Boyraz v. Turkey, 2014);<\/li>\n<li>retirement age (Moraru and Marin v. Romania, 2022);<\/li>\n<li>parental leave and allowances (Konstantin Markin v. Russia [GC], 2012; Gruba and Others v. Russia, 2021);<\/li>\n<li>survivor\u2019s pensions (Willis v. the United Kingdom, 2002; Beeler v. Switzerland [GC], 2022);<\/li>\n<li>civic obligations (Zarb Adami v. Malta, 2006; Karlheinz Schmidt v. Germany, 1994);<\/li>\n<li>family reunification (Abdulaziz, Cabales and Balkandali v. the United Kingdom, 1985);<\/li>\n<li>children\u2019s surnames (Cusan and Fazzo v. Italy, 2014; Le\u00f3n Madrid v. Spain, 2021); or<\/li>\n<li>domestic violence (Opuz v. Turkey, 2009; Volodina v. Russia, 2019; Tkhelidze v. Georgia, 2021).<\/li>\n<\/ul>\n<p>In Carvalho Pinto de Sousa Morais v. Portugal, 2017, the Court held that the question at issue was the assumption, made by the domestic courts in medical negligence proceedings, that sexuality was not as important for a fifty-year-old woman and mother of two children as for someone younger. That assumption reflected a traditional idea of female sexuality being essentially linked to child- bearing purposes and thus ignored its physical and psychological relevance for the self-fulfilment of women.<\/p>\n<p>Generally speaking, in the context of Article 14 in conjunction with Article 1 of Protocol No. 1, the Court applied the \u201cmanifestly without reasonable foundation\u201d test only to circumstances where an alleged difference in treatment resulted from a transitional measure designed to correct a historic inequality (Stec and Others v. the United Kingdom [GC], 2006, \u00a7\u00a7 61-66; Runkee and White v. the United Kingdom, 2007, \u00a7\u00a7 40-41; British Gurkha Welfare Society and Others v. the United Kingdom, 2016, \u00a7 81).<\/p>\n<p>The Court has, for instance, recognised that a difference in treatment between men and women in the State pension scheme was acceptable as it was a form of positive measures aimed at correcting factual inequalities between the two genders (Stec and Others v. the United Kingdom [GC], 2006, \u00a7 61; Andrle v. the Czech Republic, 2011, \u00a7 60). Along the same lines, in Khamtokhu and Aksenchik v. Russia [GC], 2017, concerning the exemption of female offenders from life imprisonment, the Court took note of protecting women against gender-based violence, abuse and sexual harassment in the prison environment, as well as the needs for protection of pregnancy and motherhood (\u00a7 82). The Court also found in Alexandru Enache v. Romania, 2017, that the national legislation permitting deferral of a prison sentence for mothers, but not fathers, of young children was justified in order to take account of the particular bond between a mother and her child during the first year of the child\u2019s life (\u00a7 76).<\/p>\n<p>Outside the property context concerning transitional measures, and where the alleged discrimination was based on sex, \u201cvery weighty reasons\u201d would be required to justify the impugned measure in respect of the applicants. In J.D. and A. v. the United Kingdom, 2019, where the applicant had been housed under a \u201csanctuary scheme\u201d intended to protect victims of serious domestic violence, the Court found that the reduction of her housing benefit had been in conflict with the aim of that scheme (to enable her to remain in her home for her own safety) and that no weighty reasons had been given to justify the prioritisation of one legitimate aim over the other.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Pregnancy\"><\/span>Pregnancy<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Jur\u010di\u0107 v. Croatia, 2021, the Court held for the first time that a woman had been discriminated against on the basis of her pregnancy. The applicant, whoseemployment had begun ten days after she had undergone in vitro fertilisation IVF), subsequently went on sick leave on account of pregnancy- related complications. Her insurance application was reexamined and rejected, the relevant authorities concluding that her employment had been fictitious. Since only women could be treated differently on grounds of pregnancy, the Court held that such a difference in treatment amounted to direct discrimination on grounds of sex if it was not justified.<\/p>\n<p>The Court further identified a domestic practice of targeting pregnant women, who were frequently subjected to a review of the authenticity of their employment when entered into during pregnancy, even though under domestic law an employer was not allowed to refuse to employ a pregnant woman because of her condition. In\u00a0deciding the applicant\u2019s case, the domestic authorities had limited themselves to concluding that, due to IVF, the applicant had been medically unfit to take up employment thereby implying that she should have refrained from doing so until her pregnancy was confirmed. This was in direct contravention of both domestic and international law and was tantamount to discouraging the applicant from seeking any employment due to her possible prospective pregnancy.<\/p>\n<p>Finally, the Court also expressed concern about the overtones of the domestic authorities\u2019 conclusion &#8211; which implied that women should not work or seek employment during pregnancy or the mere possibility thereof &#8211; which amounted to gender stereotyping. In contrast, in Napotnik v. Romania, 2020, the Court found that the early termination of the applicant\u2019s diplomatic posting abroad due to her pregnancy had been necessary for ensuring and maintaining the functional capacity of the diplomatic mission, and ultimately the protection of the rights of others. The domestic authorities had provided relevant and sufficient reasons to justify that difference in treatment so that the applicant had thus not been discriminated against.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Right_to_liberty_and_security\"><\/span>Right to liberty and security<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Alleged discrimination in provisions governing liability to life imprisonment<br \/>\nKhamtokhu and Aksenchik v. Russia The applicants in this case alleged that, as adult males serving life sentences for a number of serious criminal offences, they had been discriminated against as compared to other categories of convicts \u2013 women, persons under 18 when their offence had been committed or over 65 when the verdict had been delivered \u2013 who were exempt from life imprisonment by operation of the law.<br \/>\nThe Grand Chamber held that there had been no violation of Article 14 (prohibition of discrimination), taken in conjunction with Article 5 (right to liberty and security) of the Convention, as regards the difference in treatment in life sentencing in Russia on account of age, and\u2026 as regards the difference in treatment on account of sex. It found that the justification for the difference in treatment between the applicants and certain other categories of offenders, namely to promote principles of justice and humanity, had been legitimate. The Grand Chamber was also satisfied that exempting certain categories of offenders from life imprisonment had been a proportionate means to achieving those principles. In coming to that conclusion, it bore in mind the practical operation of life<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Amount_of_compensation_awarded_for_a_medical_error\"><\/span>Amount of compensation awarded for a medical error<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Carvalho Pinto de Sousa Morais v. Portugal concerned a decision of the Portuguese Supreme Administrative Court to reduce the amount of compensation awarded to the applicant, a 50-year-old woman suffering from gynaecological complications, as a result of a medical error. The Court held that there had been a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private and family life) of the Convention. It found in particular that the applicant\u2019s age and sex had apparently been decisive factors in the Portuguese courts\u2019 final decision not only to lower the compensation awarded for physical and mental suffering but also for the services of a maid. The decision had moreover been based on the general assumption that sexuality was not as important for a 50-year-old woman and mother of two children as for someone of a younger age. Very good reasons would have to be put forward before a difference of treatment on grounds of sex could be accepted as compatible with the Convention. In particular, references to traditions, general assumptions or prevailing social attitudes in a country were insufficient for a difference in treatment on grounds of sex.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Choice_of_family_name_and_transmission_surnames\"><\/span>Choice of family name and transmission surnames<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Cusan and Fazzo v. Italy concerned a challenge to transmission of the father\u2019s surname to his children. A married couple, the applicants complained in particular about the Italian authorities\u2019 refusal to grant their request to give their daughter her mother\u2019s surname, and about the fact that Italian legislation at the relevant time made it mandatory to give the father\u2019s surname to legitimate children. The Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right to respect for private and family life) of the Convention, on account of the fact that it had been impossible for the applicants, when their daughter was born, to have her entered in the register of births, marriages and deaths under her mother\u2019s surname.<\/p>\n<p>Le\u00f3n Madrid v. Spain concerned the applicant\u2019s request to reverse the order of the surnames under which her minor daughter (born in 2005) was registered. At the relevant time Spanish law provided that in the event of disagreement between the parents, the child would bear the father\u2019s surname followed by that of the mother. The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private life) of the Convention, finding that the reasons given by the Spanish Government had not been sufficiently objective and reasonable in order to justify the difference in treatment imposed on the applicant.<\/p>\n<p>While the rule that the paternal surname should come first, in cases where the parents disagreed, could prove necessary in practice and was not necessarily incompatible with the Convention, the inability to obtain a derogation had been excessively stringent and discriminatory against women..<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Calculation_of_a_disability_allowance\"><\/span>Calculation of a disability allowance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>di Trizio v. Switzerland The applicant originally worked full time but had to give up work in June 2002 because of back problems. She was granted a 50% disability allowance for the period from June 2002 until the birth of her twins. The allowance was later stopped owing to the application of the \u201ccombined method\u201d, which presupposed that even if she had not had a disability the applicant would not have worked full time after the birth of her children.<br \/>\nThe Court was not convinced that the difference in treatment to which the applicant had been subjected had any reasonable justification and held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 (right to respect for private and family life) of the Convention. It was \u2026. clear that the decision refusing her entitlement to the allowance had been based on her assertion that she wished to reduce her working hours in order to take care of her children and her home.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Determination_of_a_childs_residence\"><\/span>Determination of a child\u2019s residence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Tapayeva and Others v. Russia4 concerned the first applicant\u2019s attempts to have the State ensure that she be reunited with her daughters. Following the children\u2019s father\u2019s death while on military duty, they had allegedly been kidnapped by their paternal grandfather. The first applicant asserted that she had been prevented from seeing them since. The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, in respect of all the applicants, on account of thefailure of the domestic authorities to take reasonable and timely measures to reunite the mother and her children after their kidnapping by their paternal grandfather. It also held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 8 of the Convention, in respect of the first applicant, finding that the manner in which the relevant legislation had been applied in practice in the present case had amounted to her discrimination on grounds of sex, and that no objective and reasonable justification had been provided by the respondent Government. In this case, the Court noted, in particular, the failure to assist the first applicant, a widow, in being reunited with her children who had been kidnapped by their paternal grandfather against the background of regional gender stereotypes and patrilineal practices.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Dismissal_on_grounds_of_gender\"><\/span>Dismissal on grounds of gender<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Emel Boyraz v. Turkey concerned a dismissal from public sector employment \u2013 a State-run electricity company \u2013 on grounds of gender. The applicant had worked as a security officer for almost three years before being dismissed in March 2004 because she was not a man and had not completed military service. The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right for respect to private and family life) of the Convention. In the Court\u2019s opinion, the mere fact that security officers had to work on night shifts and in rural areas and had to use firearms and physical force under certain conditions had not in itself justified any difference in treatment between men and women.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Family-allowance_payments\"><\/span>Family-allowance payments<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Yocheva and Ganeva v. Bulgaria The first applicant, a single mother whose minor children had not been recognised by their father, was refused a monthly allowance provided to families in which children had one living parent only.<br \/>\nThe Court held that there had been a violation of Article 14 (prohibition of discrimination) taken together with Article 8 (right for respect to private and family life) of the Convention in respect of the first applicant, finding that she had suffered discrimination on the grounds of both her family status and her sex. It noted in particular that, as maternity was determined by the act of birth, in the vast majority of cases it was only children\u2019s paternity that could be unknown; as a mother of children with an unknown father, the applicant could not provide the required documents under the law, while a single father whose children\u2019s mother had died would normally be able to do so. In the absence of convincing arguments by the Bulgarian authorities, the Court\u00a0held that they had not provided a reasonable or objective justification for excluding the first applicant\u2019s family from receiving the benefit.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Ineligibility_for_a_stay_of_execution_of_ones_prison_sentence\"><\/span>Ineligibility for a stay of execution of one\u2019s prison sentence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Alexandru Enache v. Romania concerned in particular a prisoner\u2019s complaint about discrimination on grounds of sex stemming from the fact that, under Romanian legislation, only convicted mothers of children under the age of one can obtain a stay of execution of their prison sentences until their child\u2019s first birthdayThe Court held, by five votes to two, that there had been no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention as regards the applicant\u2019s complaint about discrimination on grounds of sex. It found in particular that the impugned exclusion did not amount to a difference in treatment and that there was a reasonable relation of proportionality between the means used and the legitimate aim pursued (the best interests of the child and the special bonds between a mother and her child during the first year of the latter\u2019s life).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Parental_leave_and_parental_leave_allowances\"><\/span>Parental leave and parental leave allowances<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Gruba and Others v. Russia case concerned the difference in entitlement to parental leave for male and female police officers. The four applicants had had their requests for parental leave rejected, essentially because such leave could only be granted to a male police officer if his child had been left without the care of a mother.The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the Convention in respect of all four applicants, finding that they had been subjected to discrimination on grounds of sex. In the present case, the Court also reiterated that sexist stereotypes, such as the perception of women as primary child carers and men as primary breadwinners, could not provide sufficient justification for a difference in treatment between men and women as regards entitlement to parental leave.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Termination_of_widowers_pension\"><\/span>Termination of widower\u2019s pension<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Beeler v. Switzerland concerned the termination of the applicant\u2019s widower\u2019s pension after his younger child reached the age of majority, the Federal Law on old-age and survivors\u2019 insurance providing that entitlement to a widower\u2019s pension ended when the youngest child reached the age of 18, whereas this was not the case for a widow.<br \/>\nThe Court held that there had been a violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the Convention, finding that the unequal treatment to which the applicant had been subjected could not be said to have been reasonably and objectively justified. It found that the legislation in question contributed rather to perpetuating prejudices and stereotypes regarding the nature or role of women in society and was disadvantageous both to women\u2019s careers and to men\u2019s family life.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Wearing_of_religious_clothing\"><\/span>Wearing of religious clothing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>S.A.S. v. France (no. 43835\/11) case concerned the complaint of a French national, who is a practising Muslim, that she was no longer allowed to wear the full-face veil in public following the entry into force, on 11 April 2011, of a law prohibiting the concealment of one\u2019s face in public places.<br \/>\nThe Court held that there had been no violation of Article 8 (right to respect for private and family life), no violation of Article 9 (right to respect for freedom of thought, conscience and religion) and no violation of Article 14 (prohibition of discrimination) combined with Articles 8 or 9 of the Convention. In this judgment, the Court noted in particular that a State Party could not invoke gender equality in order to ban a practice that was defended by women \u2013 such as the applicant \u2013 in the context of the exercise of the rights enshrined in those Articles, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Entitlement_to_a_refugee_card_and_housing_assistance\"><\/span>Entitlement to a refugee card (and\u00a0 housing assistance)<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Vrountou v. Cyprus 13 October 2015 The applicant complained about the refusal of the authorities to grant her a refugee card, alleging that this had meant that she had been denied a range of benefits, including housing assistance. She also alleged that denying her a refugee card on the basis that she had been the child of a displaced woman rather than a displaced man had been discriminatory on the grounds of sex and that no authority in Cyprus, including the courts, had examined the merits of her complaint. The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention\u2026..The Court recalled that this kind of reference to \u201ctraditions, general assumptions or prevailing social attitudes\u201d provided insufficient justification for a difference in treatment on grounds of sex.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Employment_health-insurance_coverage\"><\/span>Employment health-insurance coverage<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Jur\u010di\u0107 v. Croatia concerned the denial to the applicant of employment health-insurance coverage during pregnancy. The authorities had claimed that her employment contract, which had been signed shortly before she had learned about her pregnancy, had been fictitious, and that she should not have started work while undergoing in vitro fertilisation. The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 1 of Protocol No. 1. It found in particular that the Croatian authorities had failed to demonstrate any fraud, and had implied that pregnant women should not seek work, thus discriminating against the applicant.. Stressing that a refusal to employ or recognise an employment-related benefit to a pregnant woman based on her pregnancy, amounts to direct discrimination on grounds of sex, the Court concluded that the difference in treatment of the applicant had not been objectively justified, leading to a violation of her Convention rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Exclusion_from_entitlement_to_an_income\"><\/span>Exclusion from entitlement to an income<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Dimici v. T\u00fcrkiye concerned the conditions regulating the allocation of surplus income by the \u00d6rfio\u011flu Foundation (created in Diyarbak\u0131r in 1536, during the Ottoman period), which introduced a difference in treatment based on the sex of the entitled persons. Pursuant to the Foundation\u2019s constituent document, dating from the 16th century, only male descendants could be paid sums from the Foundation\u2019s surplus income<br \/>\nThe Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 1 (protection of property) of Protocol No. 1 to the Convention, finding that the Turkish authorities had not duly discharged their obligation to protect the deceased \u2013 whose heirs the applicants were \u2013 against sex-based discrimination. The Court observed in particular that the deceased had been denied entitlement to the \u00d6rfio\u011flu Foundation\u2019s surplus income in spite of the fact that she would have been entitled to it had she been a man.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Housing_benefit\"><\/span>Housing benefit<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>J.D. and A v. the United Kingdom The second applicant in this case, being at risk of extreme domestic violence, was included in a \u201cSanctuary Scheme\u201d, which also meant that there were some adaptions to her property (including the installation of a \u201cpanic room\u201d in the attic for herself and her son with whom she lived in a three bedroom house). She submitted that new rules on housing benefit in the social housing sector (informally known as \u201cthe bedroom tax\u201d) discriminated against her because of her particular situation as a victim of gender based violence. The Court held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 1 (protection of property) of Protocol No. 1 in respect of the second applicant. It noted in particular that the regulation\u2019s aim to encourage people to move was in conflict with the Sanctuary Scheme\u2019s goal of allowing victims of gender based violence to stay in their homes. The impact of treating the second applicant in the same way as others subject to the new housing benefit rules was therefore disproportionate as it did not correspond to the legitimate aim of the measure.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Right_to_free_elections\"><\/span>Right to free elections<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Staatkundig Gereformeerde Partij v. the Netherlands<br \/>\n10 July 2012 (decision on the admissibility)<br \/>\nAfter a ruling of the regional court in the civil proceedings brought against it by several associations and organisations requiring the State to take steps to oblige it to open its lists of candidates for election to representative bodies to women, the applicant \u2013 a highly traditional protestant political party \u2013 amended its Principles to admit women members, though still without allowing them to stand for election to public office.<br \/>\nThe Court declared the application inadmissible as being manifestly ill-founded. It reiterated in particular that democracy was the only political model contemplated in the Convention and the only one compatible with it. Moreover, the advancement of the equality of the sexes in the member States prevented the State from lending its support to views of the man\u2019s role as primordial and the woman\u2019s as secondary. \u2026The applicant party\u2019s position was unacceptable regardless of the deeply-held religious conviction on which it was based.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Retirement_Benefits\"><\/span>Retirement Benefits<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Moraru and Marin v. Romania<\/p>\n<p>This case concerned the compulsory retirement age for female civil servants in Romania, previously set lower than that set for men, and an allegation of discrimination.<br \/>\nThe Court held that there had been a violation of Article 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention, finding that not giving the applicants the option to continue to work past the retirement age for women and until they reached the retirement age set for men had constituted discrimination based on sex which had not been objectively justified or necessary.<\/p>\n<p>In the case of Moraru and Marin v. Romania, 2022, which concerned the situation of female civil servants whose conditions for retirement differed from those set for men, the Court found that not giving women the option to continue working past their retirement age (and until they reached the retirement age set for men) constituted discrimination based on sex which was not objectively justified or necessary in the circumstances (\u00a7 123).<\/p>\n<p>In this type of cases it is sufficient for the applicant to provide the Court with adequate and sufficient elements to make a prima facie allegation of discrimination, which will then shift the burden of proof to the respondent State to show what remedial measures it has taken to redress the disadvantage associated with sex. Adequate evidence may come from statistical data from the authorities or academic institutions, or from reports by non-governmental organisations or international observers. It must show that: (i) domestic violence affects mainly women; and (ii) the general attitude of the authorities has created a climate conducive to such violence.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Domestic_Violence\"><\/span>Domestic Violence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Court has also dealt with a number of cases concerning domestic violence under Articles 2 and\/or 3 taken in conjunction with Article 14. The Court explicitly considered domestic violence to be a form of gender-based violence, which was in turn a form of discrimination against women (Opuz v. Turkey, 2009, \u00a7\u00a7 184-191; Halime K\u0131l\u0131\u00e7 v. Turkey, 2016, \u00a7 113; M.G. v. Turkey, 2016, \u00a7 115; Tkhelidze v. Georgia, 2021). In this regard the State\u2019s failure to protect women against domestic violence may breach their right to equal protection of the law and this failure does not need to be intentional (Talpis v. Italy, 2017, \u00a7 141; Opuz v. Turkey, 2009, \u00a7 191; Eremia v. the Republic of Moldova, 2013, \u00a7 85; T.M. and C.M. v. the Republic of Moldova, 2014, \u00a7 57).<\/p>\n<p>In Eremia v. the Republic of Moldova, 2013, a case which concerned the failure of domestic authorities to take adequate measures to protect the applicant and her daughters from domestic violence, the Court found that the authorities\u2019 (in)action was not a simple failure or delay in dealing with violence against the first applicant committed by her husband, but amounted to repeatedly condoning such violence and reflected a discriminatory attitude towards the first applicant as a woman (\u00a7 89; see also Mudric v. the Republic of Moldova, 2013, \u00a7 63).<\/p>\n<p>In Volodina v. Russia, 2019, the Court found that the Russian legal framework \u2013 which did not define domestic violence, whether as a separate offence or an aggravating element of other offences, and established a minimum threshold of gravity of injuries required for launching public prosecution \u2013 fell short of the requirements inherent in the State\u2019s positive obligation to establish and apply effectively a system punishing all forms of domestic violence and providing sufficient safeguards for victims. Such an absence of legislation defining domestic violence and dealing with it at a systemic level indicated the authorities\u2019 reluctance to acknowledge the seriousness and extent of the problem of domestic violence in Russia and its discriminatory effect on women.<\/p>\n<p>By tolerating for many years a climate which was conducive to domestic violence, the Russian authorities had failed to create conditions for substantive gender equality that would enable women to live free from fear of ill-\u00a0treatment or attacks on their physical integrity and to benefit from the equal protection of the law. In Tunikova and Others v. Russia, 2021, the Court reiterated those findings and indicated that the respondent Government should take detailed general measures in order to swiftly comply with its obligations under the Convention.<\/p>\n<p>In Talpis v. Italy, 2017, where the applicant had been exposed to a series of domestic violence incidents culminating in her husband murdering their son, the Court considered that the applicant had demonstrated the existence of prima facie evidence through the conclusions of several bodies, which showed, firstly, that domestic violence primarily affected women and that a large number of women were murdered by their partners or former partners and, secondly, that the socio-cultural attitudes of tolerance of domestic violence in Italy persisted. She also showed that in her particular case the authorities had been inactive for prolonged periods of time.<\/p>\n<p>More recently, in Landi v. Italy, 2022, the Court noted that since the adoption of Talpis in 2017 , the Italian State has taken numerous actions with a view to implementing the Istanbul Convention, thus demonstrating a genuine political will to prevent and combat violence against women. In such an amended legal setting, the applicant did not succeed in gathering any prima facie evidence of continued widespread inertia in the justice system impeding the provision of effective protection to female victims of domestic violence, or of the discriminatory nature of the measures or practices implemented in her case.<\/p>\n<p>In Tkhelidze v. Georgia, 2021, the applicant\u2019s daughter was abused and ultimately killed by her partner. Against the backdrop of systemic failures and gender-based discrimination, and on the basis of relevant statistical data showing that domestic violence mainly affected women (who accounted for roughly 87% of victims), several authoritative international monitoring bodies, as well as the Office of the Public Defender of Georgia, reporting that the causes of violence against women were linked to discriminatory gender stereotypes and patriarchal attitudes, the Court found that the domestic authoritites had failed to take preventive action to protect and to investigate the police inaction in her case (see also A and B v. Georgia, 2022).<\/p>\n<p>Rumor v. Italy The applicant complained that the authorities had failed to support her following the serious incident of domestic violence against her or to protect her from further violence. The Court held that there had been no violation of Article 3 (prohibition of inhuman and degrading treatment) of the Convention, alone and in conjunction with Article 14 (prohibition of discrimination). It found that the Italian authorities had put in place a legislative framework allowing them to take measures against persons accused of domestic violence and that that framework had been effective in punishing the perpetrator of the crime of which the applicant was victim and preventing the recurrence of violent attacks against her physical integrity.<\/p>\n<p>M.G. v. Turkey concerned the domestic violence experienced by the applicant during her marriage, the threats made against her following her divorce and the subsequent proceedings. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the manner in which the Turkish authorities had conducted the criminal proceedings could not be considered as satisfying the requirements of Article 3. It also held that there had been a violation of Article 14 (prohibition of discrimination) of the Convention read in conjunction with Article 3, finding that the legislative framework in place did not guarantee that the applicant, a divorc\u00e9e, could benefit from protection measures, and noted that for many years after applying to the national courts, she had been forced to live in fear of her ex-husband\u2019s conduct.<\/p>\n<p>Halime K\u0131l\u0131\u00e7 v. Turkey concerned the death of the applicant\u2019s daughter, who was killed by her husband despite having lodged four complaints and obtained three protection orders and injunctions.<\/p>\n<p>The Court held there had been a violation of Article 2 (right to life) and a violation of Article 14 (prohibition of discrimination) taken together with Article 2 of the Convention. It found in particular that the domestic proceedings had failed to meet the requirements of Article 2 of the Convention by providing protection for the applicant\u2019s daughter. The Court also found it unacceptable that the applicant\u2019s daughter had been left without resources or protection when faced with her husband\u2019s violent behaviour and that in turning a blind eye to the repeated acts of violence and death threats against the victim, the authorities had created a climate that was conducive to domestic violence.<\/p>\n<p>Talpis v. Italy case concerned the conjugal violence suffered by the applicant, which resulted in the murder of her son and her own attempted murder.<br \/>\nThe Court held that there had been a violation of Article 2 (right to life) of the Convention on account of the murder of the applicant\u2019s son and her own attempted murder. It also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of the failure of the authorities in their obligation to protect the applicant against acts of domestic violence. Lastly, the Court held that there had been a violation of Article 14 (prohibition of discrimination) ..The Court noted in particular that the applicant had been the victim of discrimination as a woman on account of the inaction of the authorities, which had underestimated the violence in question and thus essentially endorsed it.<\/p>\n<p>Volodina v. Russia case concerned the applicant\u2019s complaint that the Russian authorities had failed to protect her from repeated domestic violence, including assaults, kidnapping, stalking and threats. The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the applicant had been both physically and psychologically ill-treated by her former partner and that the Russian authorities had failed to comply with their obligations under the Convention to protect her from his abuse. It also held that there had been a violation of Article 14 (prohibition of discrimination). In Russian law and that there was no such thing as restraining or protection orders. Those failings clearly demonstrated that the authorities were reluctant to acknowledge the gravity of the problem of domestic violence in Russia and its discriminatory effect on women.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-23360\" data-postid=\"23360\" class=\"themify_builder_content themify_builder_content-23360 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Overview When it comes to discrimination on grounds of sex, the Court has repeatedly stated that the advancement of gender equality is today a major goal in the member States of the Council of Europe (Konstantin Markin v. Russia [GC], 2012, \u00a7 127) and that, in principle, \u201cvery weighty reasons\u201d had to be put forward [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[348],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23360"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=23360"}],"version-history":[{"count":17,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23360\/revisions"}],"predecessor-version":[{"id":23519,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23360\/revisions\/23519"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23360"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23360"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23360"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}