The ECHR judgment of 03 October 2017 on the case "Alexandru Enache (against Alexandru Enache) v. Romania" (аpplication No. 16986/12).
In 2012, the applicant was assisted in preparing the аpplication. Subsequently, the аpplication was communicated to Romania.
In the case, the applicant successfully complained that the legislation of Romania, which allows the suspension of the execution of a sentence of imprisonment, applies to mothers of young children, but not to fathers. The case did not violate the requirements of Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms. There has been a violation of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant, who was sentenced to seven years in prison, filed two motions to suspend the execution of the sentence. He, in particular, claimed that he wanted to take care of his child, who was only a few months old. However, his applications were rejected by the courts on the grounds that the suspension of performance provided for in subparagraph (b) of paragraph 1 of article 453 of the former Code of Criminal Procedure for convicted mothers should be interpreted literally until the first birthday of the child and that the applicant can not claim its application for analogy.
ISSUES OF LAW
Concerning compliance with Article 14 of the Convention in conjunction with Article 8 of the Convention. (a) Was the situation of the applicant comparable to the situation of a prisoner having a child under the age of one year. According to Romanian law, there was a difference in treatment between two categories of prisoners who had children under the age of one year: on the one hand, by women who could be suspended, and, on the other hand, by men who were not entitled to such suspension . The introduction of the suspension of the execution of sentences in the form of deprivation of liberty was originally aimed at ensuring the best interests of these children in order to receive adequate attention and care in the first year of their life. However, such attention and care could be provided by the mother or father, despite the possible differences in their relationship with children. In addition, the right to suspend the execution was valid until the first birthday of the child and, thus, extended to the period after the mother's pregnancy and the birth itself. So, the applicant could argue that he was in a similar situation with respect to female prisoners.
(b) Whether the difference in treatment was objectively justified. Female prisoners did not receive the right to suspend the execution of punishment automatically. The domestic courts conducted a detailed examination of the applications and dismissed them when the applicant's personal situation did not justify the suspension of the execution of the sentence.
The Romanian criminal law in force during the period relevant to the circumstances of the case provided that all prisoners, irrespective of sex, had other possibilities for demanding suspension of the execution of punishment. For example, the courts of the country could consider whether there were special circumstances accompanying the execution of the punishment, which could have serious consequences for the prisoner himself, as well as for his family or employer. The applicant availed himself of this remedy, but the difficulties mentioned by him did not belong to the category of special circumstances set forth in the law.
Indeed, the modern movement towards gender equality is the main goal in the member states of the Council of Europe, and only very indisputable considerations may force such a differentiated treatment to be compatible with the Convention. The purpose of these legal provisions is to take into account specific personal situations, including pregnancy and the first year of life of the child, taking into account, in particular, the special links between mother and child in this period. In a specific area relevant to the present case, these considerations may provide a sufficient basis for differentiated treatment of the applicant. Maternity has specific features that should be taken into account, often through the adoption of protective equipment. International law provides that the adoption by States of special measures to protect mothers and mothers should not be considered as discrimination. A similar situation applies when a woman is sentenced to imprisonment.
In the light of the above considerations and given the wide margin of appreciation available to the respondent State authorities in this area, there is a reasonable proportional relationship between the funds used and the legitimate aim pursued. The impugned exception, therefore, does not constitute a distinction in treatment prohibited under article 14 in conjunction with article 8 of the Convention.
On the case, the requirements of Article 14 of the Convention were not violated (taken by five votes "for" with two - "against").
The Court also found a violation of the requirements of Article 3 of the Convention in connection with the conditions of the applicant's detention.
In the application of Article 41 of the Convention. The Court awarded EUR 4,500 in respect of non-pecuniary damage to the applicant, the claim for pecuniary damage was rejected.