THIRD SECTION
CASE OF B.T. v. RUSSIA
(Application no. 15284/19)
JUDGMENT
Art 14 (+ Art 8) • Discrimination • Sex • Entitlement to parental leave of male
police personnel conditional upon lack of maternal care for their children for
objective reasons • Findings in Gruba and Others v. Russia applied •
No reasonable relationship of proportionality between the legitimate aim of
maintaining the operational effectiveness of the police and difference in
treatment between male and female personnel • Lack of reasonable and
objective justification
Prepared by the Registry. Does not bind the Court.
STRASBOURG
19 March 2024
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
B.T. v. RUSSIA JUDGMENT
In the case of B.T. v. Russia,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Pere Pastor Vilanova, President,
Yonko Grozev,
Georgios A. Serghides,
Darian Pavli,
Peeter Roosma,
Ioannis Ktistakis,
Oddný Mjöll Arnardóttir, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 15284/19) against the Russian Federation lodged with
the Court under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a Russian national,
Mr B.T. (“the applicant”), on 7 March 2019;
the decision to give notice of the application to the Russian Government
(“the Government”);
the observations submitted by the Government and the observations in
reply submitted by the applicant;
the comments submitted by the Institute for Legal Culture “Ordo Iuris”,
which was granted leave to intervene by the President of the Section;
the decision of the President of the Section to grant the applicant
anonymity of his own motion (Rule 47 § 4 of the Rules of Court);
the decision of the President of the Section to appoint one of the sitting
judges of the Court to act as an ad hoc judge, applying by analogy Rule 29 § 2
of the Rules of Court (see Kutayev v. Russia, no. 17912/15, §§ 5-8,
24 January 2023);
Having deliberated in private on 20 February 2024,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns the difference in entitlement to parental leave
between policemen and policewomen.
THE FACTS
2. The applicant was born in 1982 and lives in Vladikavkaz. He was
represented by Mr K.S. Tsakoyev, a lawyer practising in Vladikavkaz.
3. The Government were represented initially by Mr M. Galperin,
Representative of the Russian Federation to the European Court of Human
Rights, and then by his successor in that office, Mr A. Fedorov.
4. The facts of the case may be summarised as follows.
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B.T. v. RUSSIA JUDGMENT
5. Between 1 August 2008 and 11 July 2017 the applicant was employed
in the internal affairs agencies of the Russian Federation. From 25 December
2013 he held the position of head of the road police at the Department of
Internal Affairs for the Digorskiy District of the Republic of North
Ossetia-Alania. His duties included supervising and managing the work of
the traffic police in ensuring road safety, maintaining public order and
policing crimes relating to road traffic.
6. On 14 April 2017 the applicant married Ms T.S.
7. On 26 May 2017 their daughter, A.T., was born.
8. On 27 May 2017 T.S. refused to care for the child.
9. From 2 June to 15 June 2017 T.S. underwent medical treatment in the
gynaecology department of the North Ossetia-Alania Republican Clinical
Hospital.
10. On 9 June 2017 the applicant removed the child from the maternity
hospital.
11. On 10 June 2017 a document confirming T.S.’s refusal to bring up the
child was certified by a notary.
12. On 14 June 2017 the applicant asked his superior for parental leave
until his daughter reached the age of three years. He submitted that his wife
T.S. was refusing to bring up the child, that she was undergoing medical
treatment in the North Ossetia-Alania Republican Clinical Hospital, and that
it was he who was taking care of the child. He enclosed his marriage
certificate, the child’s birth certificate and a copy of a notarised certificate of
the mother’s refusal to bring up the child (see paragraph 11 above) and asked
for his request to be treated with utmost urgency.
13. On 15 June 2017 the applicant’s request was rejected by reference to
section 56(8) of the Law on Service in Internal Affairs Agencies (see
paragraph 25 below) in the absence of evidence that the child lacked maternal
care for objective reasons.
14. From 15 June 2017 the applicant stopped coming to his place of work.
15. On the same day, T.S. commenced divorce proceedings in the
Leninskiy District Court of Vladikavkaz. Relying on her poor health and lack
of income, she asked the court to determine the place of the child’s residence
as being with the applicant and to grant her contact with the child for six hours
every Sunday.
16. On 7 July and 11 July 2017 respectively the applicant was disciplined
and dismissed from his post for being absent from work without good reason.
17. The applicant challenged the lawfulness of the above-mentioned
decisions and of the refusal of his request for parental leave in the Digorskiy
District Court of the Republic of North Ossetia-Alania (“the District Court”).
18. Meanwhile, on 2 October 2017 the Leninskiy District Court of
Vladikavkaz dissolved the marriage between the applicant and T.S. The
child’s place of residence was determined as being with the applicant. T.S.
was granted visiting rights every Sunday from 11 a.m. to 5 p.m.
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B.T. v. RUSSIA JUDGMENT
19. On 9 November 2017 the District Court dismissed the applicant’s
claims. In so far as the issue of parental leave was concerned, the District
Court reiterated the position of the Constitutional Court of the Russian
Federation:
“Service in the agencies of the Ministry of the Interior is a special type of public
service which ensures the protection of public safety and public order, and it is therefore
performed in the public interest. Persons engaged in such service exercise
constitutionally important functions and therefore hold a special legal status.
Consequently, the imposition by the federal legislature, under its discretionary powers,
of limitations on the rights and freedoms of persons serving in the police is not in itself
incompatible with the Constitution (decision no. 566-O-O of 16 April 2009).
Owing to the specific demands of service in Ministry of the Interior agencies,
non-performance of duties by their personnel must be excluded as it might cause
detriment to the public interests protected by law. The fact that fathers serving in
Ministry of the Interior agencies who raise children together with the [children’s]
mother are not entitled to parental leave respects the balance between public and private
interests ... (decision no. 377-O-O of 5 March 2009).”
It further held that section 56(8) of the Law on Service in Internal Affairs
Agencies provided that parental leave could be granted to male employees
who were fathers only if they were bringing up children without maternal care
because there were objective reasons why the mother could not care for the
child.
20. The District Court examined the record of inspection of the
applicant’s living conditions of 7 June 2017, from which it followed that the
child’s mother had refused to bring up the child for health reasons and that
the applicant intended to take parental leave to bring his daughter up himself.
It examined documents confirming that it was the applicant who had picked
the child up from the maternity hospital on 9 June 2017 because the mother
had been transferred from the maternity hospital to the Republican Clinical
Hospital for further medical treatment; that on 14 June and 15 June 2017 the
child had been examined by a paediatrician from the children’s hospital at the
applicant’s home address and in his presence; and that since the child’s birth
it had been the applicant who had been taking care of her and taking her for
medical check-ups at the children’s hospital (the document recording the last
point was dated 4 August 2017).
21. The District Court questioned T.S., who testified that she had lived
with the applicant from 2015, that their marriage had been registered on
14 April 2017, and that their daughter was born on 26 May 2017. She had not
wanted to have a child for health reasons, and it had been the applicant who
had insisted that her pregnancy was taken to term. On 27 May 2017 she had
formally refused to bring up the child. T.S. further submitted that she had
stayed at the gynaecology department of the North Ossetia-Alania
Republican Clinical Hospital until 19 June 2017, following which she had
undergone treatment at the Arkhonskaya Central District Hospital. The
District Court noted in that connection that the medical documents in the case
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B.T. v. RUSSIA JUDGMENT
file confirmed T.S.’s stay in the Republican Clinical Hospital only until
15 June 2017. The entries in the Central District Hospital’s register
confirming that she had undergone treatment there from 20 June to 8 July
2017 were found to be unreliable because they contained inconsistent
information about T.S.’s year of birth, her place of residence, her diagnosis
and the dates of her stay in the hospital.
22. The District Court further considered that the notarised document of
10 June 2017, whereby the child’s mother T.S. had formally refused to bring
up the child born on 26 May 2017, did not imply a lack of maternal care. She
had not been deprived of her parental authority and she had not been
undergoing medical treatment at the point when the applicant had stopped
coming to work. No other facts indicating the absence of maternal care for
objective reasons as from 15 June 2017 were established during the
proceedings. The District Court further relied on the decision of the Leninskiy
District Court of Vladikavkaz, which had dissolved the marriage between the
applicant and T.S., determined the child’s residence as being with the
applicant and determined that the child would have contact with T.S., from
which it concluded that T.S. was participating in bringing up and supporting
the child, who was therefore not deprived of maternal care. The applicant’s
dismissal for absence from his place of work was therefore found to have
been a lawful disciplinary measure.
23. On 28 February 2018 the Supreme Court of the Republic of North
Ossetia-Alania upheld the judgment on appeal, finding it lawful,
well-reasoned and justified.
24. On 29 May and 17 September 2018 the Supreme Court of the
Republic of North Ossetia-Alania and the Supreme Court of the Russian
Federation, respectively, rejected cassation appeals by the applicant.
RELEVANT LEGAL FRAMEWORK
25. Federal Law no. 342-FZ on Service in the Internal Affairs Agencies
of the Russian Federation, in force from 1 January 2012, provides that a
female employee of an internal affairs agency who is a mother is entitled to
parental leave until a child reaches the age of three, in accordance with labour
legislation. A male employee who is a father and who is actually bringing a
child up may be granted parental leave if the child has no maternal care for
objective reasons (the mother’s death, withdrawal of her parental authority,
or her extended stay in a medical institution, among other reasons) until the
child reaches the age of three years. Such personnel are also entitled to related
social benefits in accordance with labour legislation and other laws, provided
that they do not contradict Federal Law no. 342-FZ (section 56(8)).
26. For further relevant legal framework on parental leave, see Gruba and
Others v. Russia (nos. 66180/09 and 3 others, §§ 54-60, 6 July 2021).
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B.T. v. RUSSIA JUDGMENT
THE LAW
I. JURISDICTION
27. The Court observes that the facts giving rise to the alleged violation
of the Convention occurred prior to 16 September 2022, the date on which
the Russian Federation ceased to be a party to the Convention. The Court
therefore decides that it has jurisdiction to examine the present application
(see Fedotova and Others v. Russia [GC], nos. 40792/10 and 2 others,
§§ 68-73, 17 January 2023, and Pivkina and Others v. Russia (dec.),
nos. 2134/23 and 6 others, § 46, 6 June 2023).
II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 8
28. The applicant complained that the refusal to grant him parental leave
amounted to discrimination on grounds of sex. He relied on Article 14 of the
Convention taken in conjunction with Article 8 of the Convention. The
relevant provisions read as follows:
Article 8
“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
“The enjoyment of the rights and freedoms set forth in [the] 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.”
A. Admissibility
29. The Court notes that this complaint is neither manifestly ill-founded
nor inadmissible on any other grounds listed in Article 35 of the Convention.
It must therefore be declared admissible.
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B.T. v. RUSSIA JUDGMENT
B. Merits
1. Submissions by the parties
(a) The applicant
30. The applicant submitted that the child’s mother, T.S., had formally
refused to bring up the child and had instituted proceedings for divorce asking
the court to determine that the child should reside with the applicant, her
father, and to grant her visiting rights once a week. This clearly demonstrated
the mother’s unwillingness to participate in the child’s upbringing, except for
a few hours once a week, which objectively demonstrated that the child had
had no maternal care. The applicant had therefore had no choice but to ask
for parental leave. However, his request for parental leave had been rejected
and he had been dismissed from his post. He had therefore been subjected to
discrimination on grounds of sex, and his right to respect for his family life
had been violated.
(b) The Government
31. The Government submitted that there were no restrictions on grounds
of sex in the conditions of the post held by the applicant. The personnel of
internal affairs agencies had a special status because their task was to protect
the life, health, property and rights of citizens, as well as the interests of
society and the State, from criminal attacks. Pursuing a career in internal
affairs agencies was a voluntary choice and, in signing a service contract and
taking the oath of allegiance, the applicant had accepted the provisions
imposing special duties and limitations on him. Those special duties and
limitations were justified by their special status and by the requirements of
police service, aimed at protecting important interests of the citizens, society
and the State. They did not therefore amount to discrimination.
32. The Government further submitted that, in contrast to the provisions
governing the parental leave entitlement of military personnel as examined in
the case of Konstantin Markin v. Russia ([GC], no. 30078/06, ECHR 2012
(extracts)), Russian law granted male police officers parental leave in cases
where their children had been left without maternal care. The Government
stressed that the list of situations where parental leave could be granted was
not exhaustive and was therefore not limited to the mother’s death,
withdrawal of her parental authority or a lengthy hospital stay. They produced
examples of cases where parental leave had been granted to a male police
officer because the mother’s serious illness had prevented her from taking
care of the children; where the mother’s parental authority had been
restricted; where the mother had been recognised as legally incapable (fully
or partially); where the mother had been declared a missing person or her
place of residence was unknown; where the mother had been sentenced to
imprisonment or had been remanded in detention or was undergoing
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B.T. v. RUSSIA JUDGMENT
compulsory inpatient psychiatric treatment; and where the absence of
maternal care had been established by a court. Parental leave could therefore
be granted not only in the case of the absence of a mother but also in cases
where the mother could not take care of the child for other reasons.
33. The notarisation of the mother’s refusal to bring the child up or care
for the child in the present case did not indicate that it was impossible for her
to fulfil her duties of caring for the child for objective reasons, neither did it
have any implications for the mother’s rights and duties in respect of the
child. It could not therefore be considered to amount to a lack of maternal
care that would make the applicant eligible for parental leave.
34. The Government concluded that the denial of parental leave had been
lawful, had been proportionate to legitimate aims and had not amounted to
discrimination on grounds of sex.
(c) The third-party intervener
35. The Institute for Legal Culture “Ordo Iuris”, a Polish
non-governmental legal association acting as a third party, outlined the
development of the Court’s case-law concerning the issue of discrimination
on the ground of sex in respect of parental leave (it cited Petrovic v. Austria,
27 March 1998, Reports of Judgments and Decisions 1998-II; Weller
v. Hungary, no. 44399/05, 31 March 2009; and Konstantin Markin, cited
above). It also cited the Council of Europe’s documents relating to parental
leave, provided examples of regulation of parental leave in selected European
countries and summarised the regulations governing parental leave for
employees of the internal affairs agencies in Russia. It stressed that although
Article 8 of the Convention did not include a right to parental leave or impose
any positive obligation on States to provide parental leave allowances, if a
State did decide to create a parental leave scheme, it had to do so in a manner
which was compatible with Article 14. Member States were allowed to
impose certain restrictions on the rights of police personnel specified under
Article 8 where there was a real threat to the operational effectiveness of the
police.
2. The Court’s assessment
36. For the relevant general principles, see Konstantin Markin (cited
above, §§ 124-27).
37. In Konstantin Markin, the applicant raised the issue of the exclusion
of servicemen, by contrast with servicewomen, from entitlement to parental
leave. The Court found that Article 14, taken together with Article 8, was
applicable to parental leave. Accordingly, if a State decided to create a
parental leave scheme, it had to do so in a manner which was compatible with
Article 14 of the Convention (ibid., § 130).
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B.T. v. RUSSIA JUDGMENT
38. The Court also found that, as regards parental leave and parental leave
allowances, men were in a comparable situation to women. Indeed, in contrast
to maternity leave, which was intended to enable the woman to recover from
childbirth and to breastfeed her baby if she so wished, parental leave and
parental leave allowances related to the subsequent period and were intended
to enable the parent concerned to stay at home to look after an infant
personally. Whilst being aware of the differences which might exist between
the mother and the father in their relationship with the child, the Court
concluded that, as regards the role of taking care of the child during the period
corresponding to parental leave, men and women were “similarly placed”
(ibid., § 132).
39. It follows from the above that for the purposes of parental leave the
applicant, a policeman, was in an analogous situation to that of a
policewoman.
40. The Court notes that, unlike the complete exclusion of male military
personnel from entitlement to parental leave, Russian law provides that male
police personnel are entitled to apply for parental leave if their children are
left without maternal care for objective reasons (see paragraphs 25-26 above).
The entitlement of male police officers to parental leave is therefore
conditional upon a lack of maternal care for their children for objective
reasons, while policewomen are unconditionally entitled to such leave.
41. The Court has previously examined this difference in treatment
between male and female police personnel and came to the conclusion that it
was not objectively and reasonably justified under Article 14 of the
Convention (see Gruba and Others v. Russia, nos. 66180/09 and 3 others,
6 July 2021). It held as follows:
“80. The Court reiterates, firstly, that gender stereotypes, such as the perception of
women as primary child-carers and men as primary breadwinners, cannot be considered
to amount to sufficient justification for a difference in treatment between men and
women as regards entitlement to parental leave (see Konstantin Markin, cited
above, §§ 139-43). That finding applies just as much to police personnel as to military
personnel.
81. As regards the argument that in signing a police service contract policemen accept
the limitations on their rights provided by law ..., it amounts in substance to a waiver
claim. The Court has already found that, in view of the fundamental importance of the
prohibition of discrimination on grounds of sex, no waiver of the right not to be
subjected to discrimination on such grounds can be accepted as it would be counter to
an important public interest (ibid., § 150).
82. Moreover, the Constitutional Court relied on the special status of the police to
justify the limitation of the rights of police personnel, including their right to parental
leave ... The Government elaborated on that argument, claiming that placing policemen
on the same footing as policewomen as regards entitlement to parental leave would
result in a significant decrease in the number of police officers who were physically fit
enough to maintain public order and to arrest offenders ...
83. The Court accepts that maintaining the operational effectiveness of the police is
a legitimate aim ... that may justify certain restrictions on the rights of the police
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B.T. v. RUSSIA JUDGMENT
personnel. It cannot however justify a difference in treatment between male and female
police personnel.
84. The Court takes note in this connection of the Constitutional Court’s reliance on
Article 1 of ILO Convention No. 111 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 ... It is, however, not convinced that the exclusion
from entitlement to parental leave in the present case can be regarded as being based on
an inherent requirement of police service. Indeed, policewomen are unconditionally
entitled to parental leave and the restriction only concerns policemen.
85. It is significant that the entitlement to parental leave depends on the sex of the
police personnel rather than on their position in the police, the availability of a
replacement or any other circumstance relating to the operational effectiveness of the
police. Indeed, the Government accepted that there were no restrictions on grounds of
sex for holding the posts equivalent to the applicants’ posts: they could be held by both
policemen and policewomen ... Policewomen holding those posts had an unconditional
entitlement to three years’ parental leave. The applicants, on the other hand, could only
apply for parental leave if their children were left without maternal care, and that was
solely because they were men.”
42. The above findings concerning, in particular, unacceptability of
reliance on gender stereotypes and the special status of the police to justify
the difference in treatment between male and female police personnel as
regards entitlement to parental leave, are fully applicable in the present case.
In Gruba and Others (cited above) the Court further noted the difficulties a
policeman could encounter even in cases where his particular family situation
required him to assume the role of the primary caregiver for his child. The
present case is no exception. Due to the strict and discriminatory
interpretation of the conditional entitlement of male police personnel to
parental leave – subject to lack of maternal care for objective reasons – the
applicant’s request for parental leave was rejected despite the particular
circumstances of his family situation clearly showing the absence of maternal
care for his newborn child on a daily basis. No regard whatsoever was had to
the best interests of the child.
43. Most importantly, in refusing to grant parental leave to the applicant,
the domestic authorities did not refer to any circumstances showing that a
temporary departure on parental leave of police officers holding positions
similar to the applicant’s (head of the road police) would undermine the
operational effectiveness of the police. The authorities therefore failed to
perform any balancing exercise between the legitimate interest in ensuring
the operational effectiveness of the police on the one hand, and, on the other
hand, the applicant’s right not to be discriminated against on grounds of sex
as regards access to parental leave (see Gruba and Others, cited above, § 87).
44. In view of the foregoing, the Court considers that the difference in
treatment between policemen and policewomen as regards entitlement to
parental leave cannot be said to be reasonably and objectively justified. There
was no reasonable relationship of proportionality between the legitimate aim
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B.T. v. RUSSIA JUDGMENT
of maintaining the operational effectiveness of the police and the contested
difference in treatment. The Court therefore concludes that this difference in
treatment, of which the applicant was the victim, amounted to discrimination
on grounds of sex.
45. There has therefore been a violation of Article 14 of the Convention
taken in conjunction with Article 8.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
46. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the
injured party.”
47. The applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds that it has jurisdiction to deal with the applicant’s complaint, as it
relates to facts that took place before 16 September 2022;
2. Declares the application admissible;
3. Holds that there has been a violation of Article 14 of the Convention taken
in conjunction with Article 8 of the Convention.
Done in English, and notified in writing on 19 March 2024, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Pere Pastor Vilanova
Deputy Registrar President
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