Supported by
This is a translation. No guarantees!
Full text
DECIDES:
1. The word "woman" shall be declared unconstitutional from the compound word "woman-military" in Article 32 para. (4) lit. d) and letter j) of Law no. 162-XVI of July 22, 2005 on the status of the military.
2. The word "woman" is declared unconstitutional from the compound word "woman-military" in points 67 letter. j), 88 para. 5 lit. b), 108 lit. i), 116 lit. e) and 131 of the Regulation on the manner of performing military service in the Armed Forces, approved by Government Decision no. 941 of August 17, 2006.
3. The process for checking the constitutionality of the phrase "but not included in the calendar seniority of the military service" in Article 32 paragraph (4) letter j) of Law No. 162-XVI of July 22, 2005 on the status of the military shall be suspended.
4. This decision is final, may not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.
JUDGEMENT
FOR THE CONTROL OF CONSTITUTIONALITY
of some provisions of article 32 par. (4) letter j) of the Law no. 162-XVI of July 22, 2005 on the status of the military
(Notification no. 12a / 2012)
Chisinau
November 1, 2012
On behalf of the Republic of Moldova,
The Constitutional Court, ruling on:
Mr Alexandru TĂNASE, President, Judge-Rapporteur,
Mr Dumitru PULBERE,
Mr. Victor PUŞCAŞ,
Mr Petru RAILEAN,
Mrs. Elena SAFALERU,
Ms Valeria ŞTERBEŢ, Judges,
with the participation of Mrs. Ludmila Chihai, Clerk,
Having regard to the complaint lodged on 6 June 2012, registered on the same date,
Having considered the above referral in plenary,
Having regard to the documents and works of the file,
Deliberating in closed plenary session,
Make the following decision:
PROCEDURE
1. At the origin of the case is the notification submitted to the Constitutional Court on June 6, 2012 pursuant to articles 135 par. (1) lit. a) of the Constitution, 25 para. (1) lit. i) of the Law on the Constitutional Court and 38 para. (1) lit. i) of the Code of Constitutional Jurisdiction, by the parliamentary lawyer Mr. Tudor Lazăr, regarding the control of the constitutionality of article 32 par. (4) letter j) of Law no. 162-XVI of July 22, 2005 on the status of the military.
2. The complainant claimed, in particular, that by specifying the category of 'military woman' the contested rule established discrimination against the military, based on sex, in obtaining childcare leave, and by not including childcare leave in the calendar service military service violates the person's right to free choice of employment, contrary to Articles 16, 18, 43, 48 and 49 of the Constitution.
3. By the decision of the Constitutional Court of July 10, 2012, the notification was declared admissible, without prejudice to the merits of the case.
4. In the public plenary session, the author extended the object of the notification, requesting that the corresponding provisions of the Regulation on the manner of performing military service in the Armed Forces, approved by Government Decision no. 941 of August 17, 2006, which reproduce the contested legal norms.
5. In the process of examining the referral, the Constitutional Court requested the opinion of the Parliament, the President of the Republic of Moldova, the Government, the Ministry of Justice, the Ministry of Labor, Social Protection and Family and the Ministry of Defense.
6. The author of the referral personally participated in the public plenary session of the Court. The Parliament was represented by Mr Sergiu Chirică, Senior Consultant in the Legal Department of the Parliament Secretariat. The Government was represented by Mr Vladimir Grosu, Deputy Minister of Justice, assisted by Mr Viorel Remișovschi, Deputy Head of the Legal Department of the Ministry of Defense.
RELEVANT LEGISLATION
1. National legislation
7. The relevant provisions of the Constitution of the Republic of Moldova (Official Gazette, 1994, no. 1, art. 1) are the following:
Article 4
Human rights and freedoms
"(1) The constitutional provisions on human rights and freedoms shall be interpreted and applied in accordance with the Universal Declaration of Human Rights, the Covenants and other treaties to which the Republic of Moldova is a party."
Article 16
Equal
"(1) Respect and protection of the person is a primary duty of the state.
(2) All citizens of the Republic of Moldova are equal before the law and public authorities, regardless of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin. "
Article 48
The family
„(1) The family constitutes the natural and fundamental element of the society and has the right to protection from the society and the state.
(2) The family is based on the freely consented marriage between a man and a woman, on their equality in rights and on the right and duty of parents to ensure the upbringing, education and training of children. [...] "
Article 49
Protection of the family and orphaned children
„(1) The state facilitates, through economic and other measures, the formation of the family and the fulfillment of its obligations.
(2) The state protects maternity, children and young people, stimulating the development of the necessary institutions. [...] "
Article 54
Restriction of the exercise of certain rights or of some freedoms
"(1) Laws that would suppress or diminish the fundamental rights and freedoms of man and citizen cannot be adopted in the Republic of Moldova.
(2) The exercise of rights and freedoms may not be subject to restrictions other than those provided by law, which correspond to the unanimously recognized norms of international law and are necessary in the interests of national security, territorial integrity, economic welfare, public order, in order to prevent disturbances. and crimes, the protection of the rights, freedoms and dignity of others, the prevention of the disclosure of confidential information or the guarantee of the authority and impartiality of justice. [...]
(4) The restriction must be proportionate to the situation which gave rise to it and may not affect the existence of a right or freedom. "
8. The relevant provisions of the Labor Code no. 154-XV of March 28, 2003 (Official Gazette of the Republic of Moldova, 2003, no. 159-162, art. 648) are the following:
Article 124
Maternity leave and partial leave paid for child care
"(1) Employees and apprentices, as well as dependent wives, shall be granted maternity leave which includes prenatal leave with a duration of 70 calendar days and postnatal leave with a duration of 56 calendar days (in the case of complicated births or the birth of two or more children - 70 calendar days), paying for this period allowances in the manner provided in art.123 paragraph (2).
(2) Based on a written request, the persons indicated in paragraph (1), after the expiration of the maternity leave, shall be granted a partially paid leave for childcare until the age of 3, with the payment of the allowance from the state social insurance budget .
(3) The partly paid leave for the care of the child may be used in full or in parts at any time, until the child reaches the age of 3 years. This leave is included in seniority, including special seniority, and in the contribution period.
(4) Partial paid childcare leave may optionally be used, on the basis of a written request, by the child's father, grandmother, grandmother or other relative who is directly involved in the childcare as well as the guardian. "
Article 126
Extra unpaid care leave the child aged 3 to 6 years
"(1) In addition to the maternity leave and the partially paid leave for the care of the child up to the age of 3, the woman, as well as the persons referred to in art. 124 paragraph (4), shall be granted, based on a written request, an unpaid additional leave for the care of the child aged 3 to 6, with the maintenance of the job (of the position).
(2) Based on a written request, during the additional unpaid leave for the care of the child, the woman or the persons mentioned in art. 124 paragraph (4) may work under the conditions of part-time work or at home.
(3) The period of the unpaid additional leave is included in the seniority, including in the special seniority, if the individual employment contract has not been suspended according to art. 78 paragraph (1) letter a).
(4) The period of unpaid additional leave shall not be included in the length of service that entitles the next paid annual leave, as well as in the contribution period according to the law. "
9. The relevant provisions of Law no. 162-XVI of July 22, 2005 on the status of the military (Official Gazette of the Republic of Moldova, 2005 no. 129-131, art. 618) are the following:
Article 7
Ensuring the legal and social protection of the military
"[...] (2) Women employed in military service by contract, hereinafter referred to as women soldiers, are equal in rights and obligations with men under the conditions of this law and other normative acts.
(3) Women soldiers may also benefit from other rights and facilities related to child maintenance, maternity or other circumstances provided by the legislation in force, with the restrictions provided by this law. [...] "
Article 32
Detachment and disposal of the military
"4. The transfer of the military by contract may be effected in the following cases and within the following time limits:
[...]
j) the presence of the woman-soldier in the childcare leave - for the entire period of the leave. The period of childcare leave is included in the general seniority, in the contribution period, in accordance with the legislation in force, but is not included in the calendar seniority of the military service. Until the expiration of this term, the military woman has the right to continue military service; [...] "
10. The relevant provisions of Law no. 5-XVI of February 9, 2006 on ensuring equal opportunities between women and men(Official Gazette of the Republic of Moldova, 2006, no. 47-50, art. 200) are the following:
Article 1
The purpose of the law
"The purpose of this law is to ensure the exercise of their equal rights by women and men in the political, economic, social, cultural and other spheres of life, rights guaranteed by the Constitution of the Republic of Moldova, in order to prevent and eliminate all forms of discrimination of sex. "
Article 2
Main notions
"For the purposes of this law, the following main notions mean:
[...]
discrimination based on sex - any difference, exception, limitation or preference having as its purpose or consequence the limitation or intimidation of the recognition, exercise and implementation on the basis of equality between women and men of fundamental human rights and freedoms; [...] "
Article 5
Prohibition of discrimination according to the criterion of sex
"(1) In the Republic of Moldova, women and men enjoy equal rights and freedoms, being guaranteed equal opportunities for their exercise.
(2) The promotion of a policy or the performance of actions that do not ensure equal opportunities between women and men is considered discrimination and must be removed by the competent public authorities, according to the legislation.
(3) Discrimination may be direct or indirect.
(4) Actions which limit or exclude in any respect the equal treatment of women and men shall be considered discriminatory and shall be prohibited.
11. The relevant provisions of Law no. 121 of May 25, 2012 on ensuring equality (Official Gazette of the Republic of Moldova, 2012, no. 129-131, art. 618) are the following:
Article 1
Purpose of the law and scope
"(1) The purpose of this law is to prevent and combat discrimination, as well as to ensure equality of all persons on the territory of the Republic of Moldova in the political, economic, social, cultural and other spheres of life, regardless of race, color, nationality, ethnicity. , language, religion or belief, sex, age, disability, opinion, political affiliation or any other similar criterion. [...] "
2. Relevant international texts and elements of comparative law:
A. United Nations documents
12. The 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 Parliament Decision no. 87-XIII of 28 April 1994, Official Gazette, 1994, no. 005), are next:
Article 5
"States Parties shall take all appropriate measures to:
a) to modify the patterns and methods of social and cultural behavior of men and women, in order to eliminate customary or other prejudices and practices that are based on the idea of inferiority or superiority of one sex, or on the template image of the role man or woman;
b) to ensure that family education contributes to a clear understanding of the fact that motherhood is a social function and the recognition of the common responsibility of men and women in raising and educating children and ensuring their development, taking into account that the best interests of the child are paramount. all cases."
B. Documents of the International Labor Organization
13. The relevant provisions of the O.I.M. (No. 111) on discrimination in the field of employment and occupation (adopted in Geneva on June 25, 1958, ratified by Parliament Decision No. 593-XIII of September 26, 1995, Official Gazette of the Republic of Moldova, 1995, No. 59- 60, Article 671) are the following:
"1. For the purposes of this Convention, the term "discrimination" includes:
a) any distinction, exclusion or preference based on race, color, sex, religion, political opinion, national origin or social origin, which is intended to destroy or to alter equal opportunities or treatment in employment or occupation;
b) any other difference, exclusion or preference which has the consequence of destroying or altering equal opportunities or treatment in employment or occupation, which may be specified by the member concerned after consultation with the representative bodies of the employers and workers, if any, and other appropriate bodies.
2. Differences, exclusions or preferences based on the qualifications required for a post shall not be considered as discrimination. "
C. Acts of the Council of Europe
14. The relevant provisions of the revised European Social Charter (adopted in Strasbourg on 3 May 1996 and partially ratified by Law no. 484-XV of 28 September 2001, Official Gazette of the Republic of Moldova, 2001, no. 130, art. 959), are next:
Article 27
The right of workers with family responsibilities equal opportunities and treatment
"In order to ensure the effective exercise of the right to equal opportunities and treatment between workers of both sexes with family responsibilities and between these workers and other workers, the Parties undertake:
1. take appropriate measures:
a) to enable workers with family responsibilities to enter and remain in working life or to return to it after an absence due to such responsibilities, including measures in the field of vocational guidance and training;
b) to take into account their needs in terms of employment conditions and social security; c) for the development or promotion of public or private services, especially day-to-day pre-school services and other means of care;
2. provide for the possibility for each parent, during a period after maternity leave, to obtain parental leave for the care of the child, the duration and conditions of which shall be fixed by national law, collective agreements or practice;
3. ensure that family responsibilities cannot, as such, constitute a valid reason for dismissal. "
15. The relevant provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms (concluded in Rome on 4 November 1950 and ratified by the Republic of Moldova by Parliament Decision no. 1298-XIII of 24 July 1997, Official Gazette of the Republic of Moldova, 1997, no. .54-55, Article 502, 1997), hereinafter referred to as "the European Convention", are the following:
Article 8
The 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. The interference of a public authority in the exercise of this right shall be admissible only in so far as such interference is provided for by law and if it constitutes a measure which, in a democratic society, is necessary for the national security, public security, economic welfare of the country. , the defense of order and the prevention of criminal acts, the protection of health or morals, or the protection of the rights and freedoms of others. "
Article 14
Prohibition of discrimination
"The exercise of the rights and freedoms recognized by this Convention shall be ensured without any distinction based, in particular, on sex, race, color, language, religion, political opinion or any other opinion, national or social origin, membership of a national minority. , wealth, birth or any other situation. "
IN LAW
16. The Constitution guarantees equal rights and freedoms to all, without prejudice race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin (Article 16).
17. The constitution also provides for the protection of maternity and the family by the state. Caring for and educating children is a right and a duty of equal responsibility for parents (Articles 48-49).
18. The Labor Code recognizes the right of women to "maternity leave", which includes 70 calendar days of prenatal leave and 56 calendar days of postnatal leave (in the case of complicated births or the birth of two or more more children - 70 calendar days) (Article 124) In addition, women are entitled to "childcare leave" (parental leave), partly paid for childcare up to the age of 3.
Partially paid childcare leave may optionally be used, upon written request, by the child's father, grandmother, grandparent or other relative who is directly involved in the childcare as well as the guardian. The parental leave holder is retained in the job (position). The duration of parental leave is included in the length of service, including special length of service, and in the contribution period.
In addition to maternity leave and part-time paid childcare leave up to the age of 3, the woman, as well as the above-mentioned persons, shall be granted, on the basis of a written request, additional unpaid childcare leave from 3 to 6 years, with the maintenance of the job (of the position).
19. The Law on the Status of the Military (No. 162-XVI of 22 July 2005) provides for the making available to female military personnel on childcare leave for the entire period of the leave (Article 32 para. (4) lit.j)). There is no equivalent provision for male soldiers.
20. This law also provides that women military personnel may also enjoy other rights and facilities related to child support, maternity or other circumstances provided for by the legislation in force, with the restrictions provided by law (Article 7).
21. On the other hand, the law specifies that the period of childcare leave is included in the general length of service, in the contribution period, in accordance with the legislation in force, but is not included in the calendar seniority of military service (Article 32 paragraph (4) letter j)).
22. The Regulation on the manner of performing military service in the Armed Forces, approved by Government Decision no. 941 of 17 August 2007, recognizes the military woman's right to maternity leave, partly paid childcare leave and additional unpaid childcare leave, with all the inherent benefits and allowances (p.108, letter h) and i), 130 and 131). There is no equivalent provision for male soldiers.
23. According to the Law on Ensuring Equal Opportunities for Women and Men, women and men have equal rights in the political, economic, social, cultural, other spheres of life, rights guaranteed by the Constitution of the Republic of Moldova, any form of discrimination the criterion of sex being prohibited. The Law on Ensuring Equality is in the same vein.
24. The complainant considers that the highlighting of the term "military woman" in the contested rule establishes discrimination based on sex, and the non-inclusion of childcare leave in the calendar seniority of military service infringes the person's right to free choice of work.
25. The Court notes that the referral concerns essentially two distinct issues: (1) discrimination of the male military against female military personnel with regard to the right to childcare leave; (2) the non-inclusion of the childcare leave in the calendar seniority of the military service.
26. In this context, the Court notes that the referral concerns a set of interconnected elements and principles of constitutional value, such as equality of rights, protection of the family, maternity and children.
27. The Court notes that the prerogative with which it was vested in Article 135 para. (1) lit. b) of the Constitution presupposes the establishment of the authentic and full meaning of the constitutional norms, which can be achieved by textual or functional interpretation, insofar as it can be deduced from the text of the Constitution, taking into account the generic character of the norm, the concrete situations that the legislator did not have how to provide them at the time of elaboration of the norm, the subsequent regulations (related or even contradictory), the complex situations in which the norm must be applied, etc.
28. As the Court has always held, Article 16 complements the other substantive provisions of the Constitution. It does not exist independently, as it applies only to the exercise of rights and freedoms guaranteed by constitutional provisions. While it may operate without infringement of other constitutional provisions and, to this extent, have an autonomous meaning, Article 16 of the Constitution is applicable only if the situation falls within the scope of at least one of the constitutional provisions concerning the exercise fundamental rights and freedoms.
This principle is deeply rooted in the case law of the Court (see, inter alia, Judgment No. 15 of 13 September 2011 on review of the constitutionality of Article 18 (3) of Law No 152-XVI of 8 June 2006 on the National Institute of Justice, Judgment No. 21 of October 20, 2011 on the interpretation of Article 46 paragraph (3) of the Constitution).
29. The Court notes that, although the complainant alleged that the contested rule was incompatible with the right to work, in so far as it did not include childcare leave in the calendar seniority of military service, neither in the content of the identified no category of persons, in identical or similar legal situations, in relation to whom women-soldiers would have been, from this perspective, discriminated.
30. Thus, the Court notes that the author of the complaint did not argue his position on the violation of the right to free choice of employment, guaranteed by Article 43 of the Constitution, neither separately nor in combination with Article 16 of the Constitution. The Court therefore adjourns the proceedings in this part of the referral.
31. In this context, the Court will examine the complaint concerning the discrimination of the male military against female military personnel with regard to the right to childcare leave from the perspective of Article 16 of the Constitution (equality) combined with Articles 48 and 49 (family and family, maternity and child protection).
32. In order to elucidate the authentic content of constitutional rules, the Court will operate, in particular, with its previous case law, as well as with the principles enshrined in international law and the case law of the European Court of Human Rights (hereinafter "the European Court"), using all methods of legal interpretation.
33. At the same time, the Court notes that the provisions of Article 32 para. (4) lit. d) of the same law also refer to the right of women soldiers to childcare leave, as follows:
„D) dismissal in connection with the organization measures - for a period not exceeding 4 months, and in the case of women soldiers who are on maternity or childcare leave - for the entire duration of this leave. [ ...] "
34. In this context, pursuant to Article 6 para. (3) of the Code of Constitutional Jurisdiction, the Court will also rule on the rule contained in Article 32 para. (4) lit. d) of the Law on the status of the military.
ALLEGED VIOLATION OF ARTICLE 16 IN COMBINATION WITH ARTICLES 48 AND 49 OF THE CONSTITUTION
35. In the opinion of the author of the notification, the provision subject to the constitutionality control violates article 16 par. (2) of the Constitution, according to which:
"(2) All citizens of the Republic of Moldova are equal before the law and public authorities, regardless of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, wealth or social origin."
36. The complainant considers that the contested rule infringes Article 48 of the Constitution, according to which:
„(1) The family constitutes the natural and fundamental element of the society and has the right to protection from the society and the state.
(2) The family is based on the freely consented marriage between a man and a woman, on their equality in rights and on the right and duty of parents to ensure the upbringing, education and training of children. [...] "
37. According to the author of the complaint, the rule subject to review of constitutionality also infringes Article 49 of the Constitution:
„(1) The state facilitates, through economic and other measures, the formation of the family and the fulfillment of its obligations.
(2) The state protects maternity, children and young people, stimulating the development of the necessary institutions. [...] "
A. Arguments of the author of the notification
38. According to the author of the complaint, the Constitution provides in Article 48 equal rights and obligations in family relations, regardless of sex.
39. In the view of the complainant, by specifying in the text of the Law on the status of the military the phrase "military woman", a discrimination based on sex was instituted, which infringes Article 16 of the Constitution of the Republic of Moldova.
40. In support of his position, the complainant relies on Articles 14, which prohibit any discrimination, and 8, which guarantees the right to privacy, of the European Convention.
B. Arguments of the authorities
41. In their written opinions submitted to the Parliament, the President of the Republic of Moldova and the Ministry of Defense pleaded for recognition of the constitutionality of the contested rule.
42. According to the Parliament, by regulating the special legal status of military personnel, the legislator may set limits for the military in the exercise of civil rights and freedoms.
43. In that regard, in Parliament's view, the exclusion of the right to parental leave for male soldiers cannot be regarded as a breach of constitutional rights, since that limitation is based on the voluntary nature of the conclusion of the contract for military service.
44. In Parliament's view, the purpose of this rule is to exclude mass non-compliance by military personnel with their duties.
45. According to the Parliament, in granting the right to childcare leave as an exception only for women soldiers, the legislature took into account the limited number of women soldiers in the armed forces and the major social role of women in raising children.
46. At the public hearing of the Court, the representative of the Parliament changed his position, stating that he did not insist that the contested rule be recognized as constitutional.
47. In the view of the Office of the President of the Republic of Moldova, the restriction of the rights of all military personnel to 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, the impugned norm committed an act of "positive discrimination", the state instituting compensation for a numerically insignificant group of women soldiers (23% of the armed forces), and granting them facilities does not constitute a discrimination of military men.
49. At the same time, the representative of the President of the Republic of Moldova stated that the adoption of the norm took into account the functions held by women soldiers, who profess their own occupation to men, their role in ensuring the defense capacity, the specificity of thought and local traditions. I suppose that it is the woman who has first of all the obligation to educate and raise children.
50. According to the Ministry of Defense, most of the functions related to combat training are performed by military men, and being on childcare leave would undermine the combat capability of military units and, implicitly, the interests of national security.
51. The Government, the Ministry of Justice and the Ministry of Labor, Social Protection and Family have acknowledged that, in the context of the recent case law of the European Court of Human Rights in the case of Konstantin Markin v. Russia (application no. 30078/06, judgment of the Grand Chamber of 22 March 2012 ), of the international texts and recommendations, the contested norm, insofar as it concerns the granting of the right to childcare leave only to military women, risks being qualified as a legal norm that contravenes Article 16 of the Constitution and Article 14 of the European Convention.
C. Findings of the Court
1. General principles
52. In its previous case-law, the Court has consistently held that any difference in treatment does not automatically imply a violation of Article 16 of the Constitution. In order to establish the violation of Article 16 of the Constitution, it must be stated that persons in similar or comparable situations receive preferential treatment and that this distinction is discriminatory (see, inter alia, Decision no. 27 of 20 December 2011 on review of constitutionality laws amending the conditions of insurance with pensions and other social payments for some categories of employees).
53. At the same time, the Court considers it appropriate that these derogations should fall within the limits of Article 54 of the Constitution, according to which the exercise of rights and freedoms may not be subject to restrictions other than those provided by law, which correspond to in the interests of national security, territorial integrity, the economic well-being of the country, public order, in order to prevent mass disturbances and crimes, protect the rights, freedoms and dignity of others, prevent the disclosure of confidential information or guarantee the authority and impartiality of justice (paragraph 2).
The restriction must also be proportionate to the situation which gave rise to it and cannot affect the existence of a right or freedom.
54. Thus, a distinction is discriminatory if it is not based on an objective and reasonable justification, that is to say, if it does not pursue a legitimate aim 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 discretion to justify different treatment in similar situations. The scope of the margin of appreciation varies according to circumstances and context, but it is up to the Constitutional Court to ultimately assess compliance with the requirements of the Constitution. As this is primarily a mechanism for the protection of human rights, the Court must take into account the evolution of international standards in the field of human rights (mutatis mutandis, Judgment no. 15 of 13 September 2011, cited above).
56. The Court recalls, inter alia, that progress towards gender equality has become a major goal in the member states of the Council of Europe and that, in the light of the relevant texts of the Council of Europe and the case law of the European Court, only very strong considerations could differences in treatment as compatible with the European Convention (see ECHR Burghartz v. Switzerland of 22 February 1994, § 27 and Schuler-Zgraggen v. Switzerland of 24 June 1993, etc.).
57. In this context, the Court cannot agree with the argument of the President's representative that the contested rule is justified by the specificity of local thought and traditions, which presupposes that it is the woman who has the primary obligation to educate and raise children. Following the reasoning of the European Court, references to traditions, general prejudices or majority social attitudes prevailing in a given country are not sufficient to justify a difference in treatment based on sex.
For example, states cannot impose traditions in which the idea that the man plays a key role is deeply rooted and the woman - a secondary role in the family (see ECHR Ünal Tekeli v. Turkey, § 63).
58. In the specific context of the armed forces, the Court notes that the European Court itself specified that, when drafting and then signing the Convention, the vast majority of Contracting States had defense forces and therefore a system of military discipline involving inherently the possibility of imposing certain limitations on the rights and freedoms of members of the armed forces, which could not be imposed on civilians.
The European Court has ruled that the existence of such systems, which they have maintained since then, does not conflict with the obligations of States under the Convention (ECHR Engel and Others v. The Netherlands, 8 June 1976, § 57). It follows that each state has the competence to organize its own system of military discipline and has a certain margin of appreciation in this respect.
At the same time, the European Court has ruled that, although the proper functioning of an army is difficult to conceive without legal rules designed to prevent it from being harmed by military personnel, national authorities cannot rely on such rules to prevent the exercise of to members of the armed forces of their right to privacy, which applies to the military as well as to other persons under state jurisdiction (ECHR Smith and Grady v. the United Kingdom, § 89, and Lustig-Prean and Beckett v. the United Kingdom , § 82, of September 27, 1999).
2. Elements of comparative law
59. The analysis of the legislation of the member states of the Council of Europe reveals that, in the civil sector, only two states (Armenia and Switzerland) reserve only the right to parental leave for women, in one state (Turkey) men working in the private sector are not entitled to parental leave, while those working in the public sector have this right, in another state (Bosnia and Herzegovina) men can take parental leave only under certain conditions (for example, when the child is deprived of maternal care), and in one state (Albania) the law does not provide for parental leave. In other states, men and women working in the civilian sector are entitled to equal childcare leave.
60. In some countries, parental leave is a right granted to the family, which parents can share with each other as they wish (Azerbaijan, Georgia and Romania, for example). In other states, this is an individual right, with each parent entitled to a certain share of parental leave (Belgium, Croatia, Italy, Luxembourg and the Czech Republic, for example).
In Sweden, this right is partly family and partly individual, 60 days being reserved for each parent, and the rest being divided between them, according to their free choice. In some countries, parental leave is unpaid (Austria, Belgium, Cyprus, Malta, the Netherlands and the United Kingdom, for example). In others, parental leave is paid, in part or in full (for example, Azerbaijan, Luxembourg, Portugal, the Czech Republic and Serbia). The duration of childcare leave is also different, ranging from three months (Belgium) to three years (Spain).
61. With regard to the military sector, one state (Albania) does not expressly grant the military the right to parental leave. In six states (Armenia, Azerbaijan, Georgia, the Republic of Moldova, Switzerland and Turkey) this right is recognized for female soldiers.
In three countries (Bosnia and Herzegovina, Bulgaria and Serbia) female soldiers are entitled to childcare leave, regardless of their situation, while male soldiers have this right in exceptional circumstances, for example, if the mother has died or abandoned the child, is seriously ill or is unable to care for the child for any other good reason. In other states, the military, male or female, is entitled to parental leave.
62. In some countries (Austria, Croatia, Cyprus, Estonia, Finland, Italy, Luxembourg, Malta, Poland, Portugal and Sweden, for example) parental leave for the military is governed by the same general provisions as those applicable to civilians. In other countries (France, Greece, Latvia, Lithuania, the Czech Republic and Romania, for example) parental leave is defined by specific provisions which do not differ significantly from the rules applicable to civilians.
In five countries (Germany, Belgium, Spain, the Netherlands and the United Kingdom) the provisions governing parental leave for the military are different from those applicable to civilians or more restrictive than the latter. For example, Dutch law provides for the possibility of postponing parental leave when "the interests of the service" dictate. In Germany, the law gives the military the same rights to parental leave as civilians.
However, the German defense minister may oppose it. granting parental leave to a member of the military, male or female, or may recall a member of the military staff from parental leave if the requirements of national defense so require. who, in principle, have the same rights to parental leave as civilians, may not be allowed to leave whenever they wish, if their absence is considered to be detrimental to the effectiveness of the armed forces in battle.
3. Application of the general principles in the present case
i. On the applicability of Article 16 in conjunction with Articles 48 and 49 of the Constitution
63. The Court must first determine whether the situation governed by the contested rule falls within the scope of Articles 48 and 49 and, consequently, Article 16 of the Constitution.
64. The Court reiterates that Article 16 of the Constitution comes into play when the situation to which the disadvantage relates implies one of the conditions for the exercise of a guaranteed right, or if the measures complained of concern the exercise of a guaranteed right. For Article 16 to be operable, it is sufficient for the situation governed by the contested rules to fall within the scope of one or more provisions of the Constitution, which guarantee fundamental rights.
65. Articles 48 and 49 of the Constitution nou expressly provide for the right to childcare leave and do not impose on the state a positive obligation to provide for parental leave allowance. However, in accordance with Article 49 of the Constitution, the state facilitates, through economic and other measures, the formation of the family and the fulfillment of its obligations, protects motherhood, children and young people, stimulating the development of the necessary institutions.
66. In this context, by allowing a parent to stay home and take care of children, parental leave and related allowance promote family life and certainly have an impact on its organization. Childcare leave and the corresponding 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, when the State decides to set up a childcare leave system, it must do so in a manner compatible with Article 16 of the Constitution.
ii. If there has been a violation of Article 16 combined with Articles 48 and 49 of the Constitution
67. The Court notes that, compared to female soldiers, male soldiers are not legally entitled to childcare leave until the age of three. Therefore, the Court is first to examine whether the male military is in a situation comparable to that of a woman working in the army.
68. Unlike maternity leave, which aims to enable the mother to recover after birth and to breastfeed the baby, if she so wishes, childcare leave and parental leave allowance are for the later period and are designed to allow the beneficiary to stay at home to personally care for the child.
69. In this context, the Court cannot accept the argument of the Parliament, the President of the Republic of Moldova and the Ministry of Defense regarding the role of women in the upbringing and education of the child (see §§ 45 and 49 above). Without ignoring the differences that may exist between father and mother in their relationship with the child, the Court notes that, as regards the upbringing of the child during childcare leave, men and women are in "similar situations".
70. Thus, from the perspective of the purpose of the childcare leave, the male military are in a similar situation to that of the female military. The Court is therefore to determine whether the difference in treatment between soldiers of both sexes is based on an objective and reasonable justification, in accordance with Article 16 of the Constitution.
71. The Court takes into account the fact that the present case is situated in a particular context, that of the armed forces. It is an area that is closely related to state security and therefore essential to the vital interests of the state.
72. States enjoy a wide margin of appreciation in the field of national security in general and of the armed forces in particular (see ECHR judgments in Smith and Grady v. The United Kingdom, § 89, and Lustig-Prean and Beckett v. United Kingdom, supra).
73. The Court notes that, on several occasions, the European Court has recognized that the rights of the military guaranteed by Articles 5, 9, 10 and 11 of the European Convention may, in some cases, be subject to greater restrictions than those authorized for civilians.
Thus, with regard to Article 14 in conjunction with Article 5, the European Court held that the fact that the military could be subject to a disciplinary sanction of deprivation of liberty, while civilians do not, does not constitute discrimination incompatible with the European Convention. the requirements of military life differ, by their nature, from those of civilian life (see ECHR Engel and Others v. the Netherlands, cited above, § 73).
Also, with regard to Article 9 of the European Convention, the European Court has found that, although it cannot be imposed on civilians, restrictions on religious behavior and attitudes are acceptable in the military. The Court noted that, in pursuing a military career, members of the armed forces voluntarily submit to a system of military discipline and to the limitations of the rights and freedoms involved in that system (ECHR judgments in Kalac v. Turkey of 1 July 1997, § 28 , and Larissis and others v. Greece of 24 February 1998, §§ 50-51, on proselytizing in the army).
Similarly, when examining situations under Article 10 of the European Convention, the European Court emphasized the need to take into account the particularities of military life and the "rights" and "responsibilities" specific to the military, as members of the armed forces are subject to an obligation. on the exercise of their functions (judgments of the ECHR Hadjianastassiou v. Greece of 16 December 1992, §§ 39 and 46, Pasko v. Russia of 22 October 2009, § 86, involving the disclosure of military secrets by a member of the armed forces ).
The European Court also considered that the differences between the military and civilians in the field of freedom of expression are justified under Article 14 of the Convention by the differences between the conditions of military and civilian life, namely by "rights" and "responsibilities". specific to members of the armed forces (Engel and others, supra, § 103).
Finally, it should be noted that Article 11 § 2 of the European Convention expressly provides that legal restrictions on the exercise of freedom of assembly and association of members of the armed forces may be imposed (ECHR Demir and Baykara v. Turkey [ MC], § 119).
74. In the same vein, the European Court has emphasized that the European Convention does not stop at barracks gates and that the military, like all other persons under the jurisdiction of a Contracting State, has the right to enjoy the protection of the European Convention. National authorities cannot invoke the special status of the armed forces to justify depriving the military of their rights.
In order to be justified, a restriction on the rights guaranteed by the Convention must be necessary in a democratic society (see Grigoriades v. Greece of 25 November 1997, §§ 45-48, and Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria of 19 December 1994, §§ 36-40).
75. With regard to restrictions on the private and family life of the military, especially when the restrictions affect "a more intimate aspect of privacy", there must also be "particularly serious grounds" for such interference to occur. meets 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 if there is a real threat to the operational effectiveness of the armed forces, and claims about the existence of this risk must be "supported by examples" (Smith and Grady, § 89, and Lustig-Prean and Beckett , § 82, supra).
76. Returning to the circumstances of the present case, the Court notes that the Parliament, the President of the Republic of Moldova and the Ministry of Defense have put forward several arguments to justify the difference in treatment between male and female soldiers in granting childcare leave. The Court will examine each of these arguments.
77. First, with regard to the argument concerning the social role of women in the education of children, the Court notes that in the case of Petrovic v. Austria of 27 March 1998 the European Court noted the progressive evolution of society towards a more equality between men and women of the responsibilities of raising the child. In Weller v. Hungary of 31 March 2009, the Court found discrimination on the basis of parental status in the fact that natural fathers were not entitled to parental allowances, while mothers, adoptive parents and guardians could benefit from this allowance (§§ 30 -35).
78. Relevant international texts and elements of comparative law (see §§ 12-15, 59-62 above) show that the evolution of society - which, as the European Court noted in the Petrovic case, began in the 1980s. much progress has been made since then.
79. The Court notes that in most European countries, including the Republic of Moldova, the law provides in the civil sector that both women and men can benefit from childcare leave. In a significant number of Council of Europe member states, both female and male soldiers are entitled to childcare leave (see §§ 61-62 above). This shows that modern European society has evolved towards a more equal distribution of responsibility for raising children between men and women and that the role of fathers in raising young children is increasingly recognized.
80. The Court cannot ignore the ideas which continue to spread or the developments in the case-law of the European Court.
81. The Court also considers that the representative of the President of the Republic of Moldova erred in invoking the notion of positive discrimination. In fact, the difference in treatment between male and female soldiers in terms of childcare leave is in no way intended to correct the disadvantage suffered by women in society or the "de facto inequalities" between men and women. considers that, on the contrary, this difference has the effect of perpetuating gender-based stereotypes and is a disadvantage for both women's careers and men's family life.
82. Similarly, the Court does not consider that the existing traditions in the Republic of Moldova could justify the difference in treatment. The European Court has stated that states cannot impose a traditional gender-based division of roles or gender-based stereotypes (see § 57 above).
In addition, given that the legislation of the Republic of Moldova provides that both women and men working in the civil sector are entitled to childcare leave and that parents are the ones who choose who to take childcare leave, the Court cannot accept the statement that it is primarily the woman's duty to educate and raise children, that the military woman professes a profession of her own for men, and that Moldovan society is not ready to accept equality between men and women in the service of the armed forces.
83. The Court concludes that the traditional gender division of roles in society cannot be used to justify the exclusion of men, including those working in the army, from exercising their right to childcare leave. The Grand Chamber of the European Court has held that gender stereotypes - such as the fact that women are the ones to take care of children the most and that men are the ones who work hardest to earn money - cannot in themselves be considered sufficient justification for differentiated treatment of childcare leave, no more than similar stereotypes based on race, origin, color or sexual orientation.
84. The Court is not convinced by the second argument of the Parliament, the President of the Republic of Moldova and the Ministry of Defense, according to which the extension of childcare leave for male soldiers would harm the fighting power and operational efficiency of the armed forces. granting this right to the female military does not pose such a risk, because there are fewer women than men in the army.
There is no indication that the authorities have carried out statistical or expert studies to assess the number of male soldiers who may be on childcare leave up to the age of three, at some point and willing to do so, and to analyze the consequences that such leave could have on the operational efficiency of the army. For the Court, the mere fact that most combat training functions are performed by military men, as noted by the Ministry of Defense, is not sufficient to justify the difference in treatment between men and women in the army.
In this respect, the information provided by the Ministry of Defense at the request of the Court cannot lead to any conclusion in this respect. It does not indicate the total number of personnel or the number of male soldiers with children under three years of age. Therefore, this information does not allow to establish, even an estimated, the percentage of male soldiers who could benefit from parental leave at a given time.
In the absence of studies on the willingness of military men to take childcare leave, it is also impossible to estimate the number of male soldiers who would actually be willing to take childcare leave. The statement of the Ministry of Defense that they are numerous is contradicted by statistical information, which does not reveal a systemic problem. In these circumstances, the Court cannot accept the statement of the Parliament, the President of the Republic of Moldova and the Ministry of Defense regarding the risk to the operational efficiency of the army, because this statement is not "supported by examples" (see ECHR case law cited in § 75 above) .
85. However, the Court acknowledges that, in view of the importance of the army in protecting national security, restrictions on the right to parental leave could be justified, provided that they are not discriminatory. For the Court, it is possible to achieve the legitimate aim of protecting national security in a way other than by limiting the right to childcare leave for female soldiers and excluding male soldiers from exercising the same right.
86. The Court notes that in a significant number of Council of Europe member states, soldiers of both sexes are entitled to parental leave (see § 59 above). The Court notes with interest the legal provisions on parental leave, which are in force in countries such as the Netherlands, Germany and the United Kingdom (see § 59 above). These examples show that there are ways to address legitimate concerns about the operational efficiency of the military, while ensuring equal treatment for both sexes in exercising their right to childcare leave.
87. The Court notes that Article 1 of ILO Convention No. 111 on Discrimination in Respect of Employment and Occupation provides that distinctions, exclusions or preferences, based on the qualifications required for a particular job, are not considered discrimination (see see § 12 above). In that context, the Court does not consider that the exclusion of the right to parental leave in the present case is based on a qualification required to serve in the army. In fact, female soldiers are entitled to childcare leave, the exclusion of which affects only male soldiers.
88. At the same time, the Court considers that, in view of the special requirements of the military, the exclusion of the right to parental leave may be justified in respect of a soldier, male or female, who, due to factors such as his hierarchical position, lack of technical qualifications or his participation in military operations on the ground, cannot be easily replaced in his tasks.
Or, in the Republic of Moldova, the right to parental leave is based exclusively on the sex of the military. By excluding male soldiers from exercising the right to parental leave, the provision in question imposes a restriction which automatically applies to all male soldiers, regardless of their position in the army, the availability of a replacement or their personal situation.
89. The Court considers that such a general and automatic restriction, imposed on a group of persons, being based on sex, goes beyond the scope of an acceptable margin of appreciation of the State, however wide, and is incompatible with Article 16. of the Constitution, combined with Articles 48 and 49 of the Constitution.
90. Finally, with regard to the argument of the Parliament, the President of the Republic of Moldova and the Ministry of Defense that, by enlisting in the army, the military waives his right not to be discriminated against, the Court considers that, given the fundamental importance of prohibition of discrimination based on sex, the possibility of waiving the right not to be discriminated against cannot be accepted, as it would be contrary to an important public interest (see, for a similar approach to racial discrimination, DH and others v. Czech Republic [MC], § 204).
91. In the same context, the Court notes that in Konstantin Markin v. Russia, the Grand Chamber found that Article 14 in conjunction with Article 8 of the Convention had been violated by the Russian authorities' refusal to recognize the applicant as a male soldier, the right to childcare leave, related to female soldiers, to whom this right was recognized (see, in the same sense, the decision of the ECHR Hulea v. Romania of October 2, 2012).
92. In view of the above, the Court considers that the exclusion of the male military from exercising the right to parental leave, while the female military has this right, cannot be considered to be based on an objective or reasonable justification. . The Court therefore concludes that this difference in treatment constitutes discrimination on grounds of sex.
93. Consequently, the contested rule infringes Article 16 in conjunction with Articles 48 and 49 of the Constitution.
94. For the same reasons, the Court notes that Article 32 para. (4) lit. d) of the Law on the Status of the Military (see § 34 above) violates Article 16 combined with Articles 48 and 49 of the Constitution.
95. In view of the fact that paragraphs 67 (a) j), 88 para. 5 lit. b), 108 lit. i), 116 lit. e), 131 of the Regulation on the performance of military service in the Armed Forces, approved by Government Decision no. 941 of August 17, 2006, reproduce the legal norm contrary to the Constitution, the Court holds the validity of the same arguments regarding their unconstitutionality.
For these reasons and under Articles 140 of the Constitution, 26 of the Law on the Constitutional Court, 6, 61, 62 let. a) and 68 of the Code of Constitutional Jurisdiction, Constitutional Court
DECIDES:
1. The word "woman" shall be declared unconstitutional from the compound word "woman-military" in Article 32 para. (4) lit. d) and letter j) of Law no. 162-XVI of July 22, 2005 on the status of the military.
2. The word "woman" is declared unconstitutional from the compound word "woman-military" in points 67 letter. j), 88 para. 5 lit. b), 108 lit. i), 116 lit. e) and 131 of the Regulation on the manner of performing military service in the Armed Forces, approved by Government Decision no. 941 of August 17, 2006.
3. The process for checking the constitutionality of the phrase "but not included in the calendar seniority of the military service" in Article 32 paragraph (4) letter j) of Law No. 162-XVI of July 22, 2005 on the status of the military shall be suspended.
4. This decision is final, may not be subject to any appeal, shall enter into force on the date of its adoption and shall be published in the Official Gazette of the Republic of Moldova.
President Alexandru TĂNASE
Chisinau, November 1, 2012
HCC nr.12
File no. 12a / 2012