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Importante la  sentenza del 14.11.2013, Topčić-Rosenberg c. Croazia (n. 19391/11), sull’interpretazione eccessivamente formalistica del diritto interno in merito al congedo di maternità pagato ad una madre adottiva.

LEGGI DI SEGUITO UNO STRALCIO DELLA SENTENZA ...

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• I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

  23. The applicant complained that, as an adoptive mother and self-employed businesswoman, she had been discriminated against in respect of her right to maternity leave, contrary to Article 14 of the Convention read in conjunction with Article 8 thereof, which provide:

  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.”

• ...

  "2. The Court’s assessment
  

• (a) General principles

  35. The Court has consistently held that Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, E.B. v. France [GC], no. 43546/02, §§ 47-48, 22 January 2008).

  36. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or status, are capable of amounting to discrimination within the meaning of Article 14 (see Eweida and Others v. the United Kingdom, no. 48420/10, § 86, 15 January 2013). Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations (see X and Others v. Austria [GC], no. 19010/07, § 105, 19 February 2013). However, not every difference in treatment will amount to a violation of Article 14. A difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see Weller v. Hungary, no. 44399/05, § 27, 31 March 2009).

  37. Although the Contracting States enjoy a certain margin of appreciation in this respect, the scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background, and the final decision as to the observance of the Convention’s requirements rests with the Court (see Konstantin Markin v. Russia [GC], cited above, § 126).

  (b) Application of these principles to the present case

  38. The Court notes at the outset that it has already held that a relationship arising from a lawful and genuine adoption may be deemed sufficient to attract such respect as may be due for family life under Article 8 of the Convention (see Pini and Others v. Romania, nos. 78028/01 and 78030/01, § 148, ECHR 2004‑V (extracts)). It has also held that parental leave and related allowances promote family life and necessarily affect the way in which it is organised. Parental leave and parental allowances therefore come within the scope of Article 8 of the Convention (see Konstantin Markin, cited above, § 130).

  39. In view of the above principles the Court considers that Article 14, taken together with Article 8, is applicable to the case at issue concerning maternity leave and related allowances of an adoptive mother. Accordingly, if a State decides to create a parental or maternity leave scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see, mutatis mutandis, Petrovic v. Austria, 27 March 1998, §§ 26-29, Reports of Judgments and Decisions 1998‑II, and Konstantin Markin, cited above, § 130).

  40. The Court notes that in the case at issue the difference of treatment of the applicant in obtaining the right to maternity leave as a self-employed businesswoman was based on her status of an adoptive mother. In particular, the applicant was denied the right to maternity leave and the related allowances after the adoption of her child, even though biological mothers had such a right from the date of the child’s birth until the its first birthday.

  41. The domestic authorities interpreted the relevant domestic law, which in principle recognised the right of self-employed adoptive mothers to maternity leave (see paragraph 17 above; section 6 of the Maternity Leave Act) in a manner that also allowed adoptive mothers to take maternity leave until the child’s first birthday, irrespective of the time of adoption. Since the applicant’s daughter was three-years old when she adopted her, the applicant’s request for maternity leave was refused (see paragraph 8 above).

  42. The Court considers that when assessing the domestic practice in the present case, in which the authorities refused to grant maternity leave to an adoptive mother, it must take into account two considerations. First, for an adoptive mother the purpose of parental or maternity leave is to enable her to stay at home to look after her child. In this respect she is in a similar situation to a biological parent (see, mutatis mutandis, Petrovic, cited above, § 36, and Konstantin Markin, cited above, § 132). Secondly, the State should refrain from taking any actions which could prevent the development of ties between the adoptive parents and their child and the integration of the child into the adoptive family (see, mutatis mutandis, Wagner and J.M.W.L. v. Luxembourg, no. 76240/01, §§ 119 and 121, 28 June 2007).

  43. The Court observes that the Labour Act, as in force at the relevant time, also recognised that adoptive mothers had the same right to maternity leave as biological mothers. It provided that all the rights granted to biological mothers after childbirth, including the right to maternity leave, would be granted to adoptive mothers from the time the adoption was completed.

  44. In this connection, section 66(2) of the Labour Act (see paragraph 16 above) provided that a woman had the right to forty-five days’ maternity leave before the expected date of childbirth, and after the birth until the child’s first birthday. Section 74 of the Act provided that adoptive parents would have the same rights to the protection of parenthood and the bringing up of children (paragraph 1); and that the adoptive parent of a child who was older than one year but under the age of twelve had the right to paid adoption leave of 270 days, starting from the date of the adoption (paragraph 2).

  45. At that time section 2(2) and section 3(1) of the Maternity Leave Act (see paragraph 17 above), as the lex specialis on which the domestic authorities relied in the case at issue, provided that biological mothers who were self-employed had a right to forty-five days’ maternity leave before the expected date of childbirth, and after the birth until the child’s first birthday. Section 6 of the Act provided that adoptive parents were entitled, under equal conditions, to all the rights guaranteed under that Act, but did not specify how they would be applied in the event that a child was adopted after its first birthday.

  46. The Court therefore considers that the domestic authorities, when interpreting the relevant provisions of the Maternity Leave Act as granting adoptive mothers the right to maternity leave only until the child’s first birthday, applied the relevant law in an excessively formal and inflexible manner. They ignored the general principles recognised under the Labour Act, which took into account the fact that the position of a biological mother at the time of birth corresponds to the adoptive mother’s position immediately after adoption.

  47. Accordingly, being unable to discern any objective and reasonable justification for the difference in treatment of the applicant as an adoptive mother, in granting her the right to maternity leave after the adoption of her child, and a biological mother, who had such a right from the time of the birth, the Court considers that such a difference in treatment amounted to discrimination.

  48. Lastly, the Court observes that all doubts as to the necessity to treat equally the position of a biological mother after childbirth and that of an adoptive mother after adoption, for the purposes of maternity leave, were removed with the enactment of the Maternity and Parental Benefits Act, which entered into force on 1 January 2009 (see paragraphs 18 and 19 above). Although that Act was not directly applicable to the applicant’s situation since she had lodged her request for maternity leave under the previous legislation (see paragraph 18 above), it nevertheless suggests that the Administrative Court, when ruling on the applicant’s administrative action in November 2009 (see paragraph 12 above), and the Constitutional Court, which examined the applicant’s complaint in February 2011 (see paragraph 14 above), ignored the relevant policies and principles of the domestic legal system.

  49. Against the above background, the Court finds that there has been a violation of Article 14 of the Convention taken in conjunction with Article 8 of the Convention.

• II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

  50. Lastly, the applicant complained, under Article 6 of the Convention, that she had not had access to a court.

  51. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court considers that this part of the application does not disclose any appearance of a violation of the Convention. It follows that it is inadmissible under Article 35 § 3 as manifestly ill-founded, and must be rejected pursuant to Article 35 § 4 of the Convention.

• III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

  52. 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.”

  A. Damage

  53. The applicant claimed 8,874 euros (EUR) in respect of pecuniary damage on account of health and social insurance benefits, maternity allowances, and the related interest, for the period of 270 days, or nine months, for which she had claimed maternity leave. She submitted the relevant decisions of the tax authorities establishing the amount of her salary and the health and social insurance contributions she had been obliged to pay based on her salary, and receipts of payment of those contributions in the period between October 2006 and June 2007.

  54. The applicant also claimed EUR 10,000 in respect of non-pecuniary damage on account of the emotional distress she had suffered while having been denied the opportunity to dedicate herself fully to her daughter after the adoption. She submitted that her daughter had been seriously neglected by her biological parents and that therefore she had needed additional care and attention for her integration into the applicant’s family.

  55. The Government made no observations in this respect.

  56. As regards pecuniary damage, the Court notes that the documents from the case file do not suggest that in the period at issue the applicant suffered any decrease in incomes after she was not granted maternity leave. Accordingly, having found no causal link between the violation found and pecuniary damage claimed by the applicant, the Court dismisses the applicant’s claim for pecuniary damage.

  57. In respect of non-pecuniary damage, having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 7,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to her.

  B. Costs and expenses

  58. The applicant also claimed EUR 5,525 for the costs and expenses incurred before the domestic courts and for those incurred before the Court.

  59. The Government made no observations in this respect.

  60. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,500 for costs and expenses in the domestic proceedings and for those in the proceedings before the Court.

  C. Default interest

  61. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

  FOR THESE REASONS, THE COURT

  1. Rejects, by four votes to three, the Government’s request to strike the case out of the Court’s list of cases;

  2. Declares, by a majority, the complaint concerning the applicant’s alleged discrimination in respect of maternity leave, under Article 14 of the Convention read in conjunction with Article 8 of the Convention, admissible;

  3. Declares, unanimously, the remainder of the application inadmissible;

  4. Holds, by four votes to three, that there has been a violation of Article 14 of the Convention read in conjunction with Article 8 of the Convention;

  5. Holds, by four votes to three,

  (a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Croatian kunas at the rate applicable at the date of settlement:

  (i) EUR 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

  (ii) EUR 3,500 (three thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

  (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  6. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction."

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