Information Note on the Court’s case-law 211

October 2017

Alexandru Enache v. Romania - 16986/12

Judgment 3.10.2017 [Section IV]

Article 14

Legislation permitting deferral of prison sentence for mothers, but not fathers, of young children: no violation

Facts – The applicant, who had been sentenced to seven years’ imprisonment, filed two applications for a stay of execution of sentence. He argue d, in particular, that he wanted to look after his child, who was only a few months old. However, his applications were dismissed by the domestic courts on the grounds that the stay of execution laid down in Article 453 § 1 (b) of the former Code of Crimin al Procedure for convicted mothers up to their child’s first birthday had to be interpreted strictly and that the applicant could not request its application by analogy.

Law – Article 14 read in conjunction with Article 8

(a) Whether the applicant’s situa tion was comparable to that of a female prisoner with a child under the age of one year – Under Romanian law there was a difference in treatment between two categories of prisoners with children under the age of one: women, on the one hand, who could be gr anted a stay of execution of sentence, and men on the other, who were not eligible for a stay.

The introduction of stays of execution of prison sentences was primarily geared to safeguarding the best interests of the children in question, ensuring that the y received adequate attention and care during their first year of life; however, such attention and care could be provided either by the mother or by the father, despite the possible differences in their relationship with their children. Furthermore, entit lement to a stay of execution continued until the child’s first birthday, and therefore extended beyond the period following the mother’s pregnancy and the birth itself.

Thus the applicant could claim to be in a similar situation to that of the female pris oners in question.

(b) Whether the difference in treatment was objectively justified – Female prisoners were not automatically entitled to a stay of execution of sentence. The domestic courts conducted a detailed assessment of applications and dismissed t hem where the applicant’s personal situation did not justify a stay.

Romanian criminal law in force at the material time provided all prisoners, regardless of sex, with other channels for requesting a stay of execution of sentence. For instance, the domest ic courts could consider whether there were any special circumstances surrounding the execution of the sentence which might have serious consequences for the prisoner personally, but also for his or her family or employer. The applicant had availed himself of this remedy, but the difficulties which he mentioned did not enter into the category of special circumstances set out in the law.

It is true that nowadays progress towards gender equality is a major aim in the member States of the Council of Europe and that only very cogent considerations could induce one to deem such differential treatment compatible with the Convention.

The aim of the legal provisions in question was to take account of specific personal situations, including pregnancies in female prisoners and the period prior to the baby’s first birthday, having regard, in particular, to the special bonds between mother and child during that period. In the specific sphere relevant to the present case, those considerations could provide a sufficient basis to justify the differential treatment of the applicant.

Motherhood has specific features which need to be taken into co nsideration, often by means of protective measures. International law provides that the adoption by States Parties of special measures to protect mothers and motherhood should not be considered as discriminatory. The same applies where the woman in questio n has been sentenced to imprisonment.

In the light of the foregoing considerations and having regard to the broad margin of appreciation available to the respondent State in this sphere, there was a reasonable relation of proportionality between the means used and the legitimate aim pursued. The impugned exclusion therefore did not amount to a difference in treatment prohibited under Article 14 read in conjunction with Article 8 of the Convention.

Conclusion : no violation (five votes to two).

The Court also found a violation of Article 3 concerning the applicant’s conditions of detention.

Article 41: EUR 4,500 in respect of non-pecuniary damage; claim for pecuniary damage rejected.

(See also Petrovic v. Austria , 20458/92 , 27 March 1998; Konstantin Markin , v. Russia [GC], 30078/06, 22 mars 2012, Information Note 150 ; and Khamtokhu and Aksenchik v. Russia [GC], 60367/08 and 961/11, 24 J anuary 2017, Information Note 203 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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