By Liesbet Debecker
A little over a year ago, the European Court of Human Rights (ECtHR) rendered its judgement in the case of Alexandru Enache v Romania. Despite this, it is hard to find analyses of the decision in legal literature. This is remarkable, because the court seems to be, to some extent, deviating from previous case law. But is this deviation justified?

In the case at hand, Mr. Enache, a lawyer convicted of embezzlement and forgery, requested a stay of execution of his prison sentence. Romanian law provided this possibility for convicted mothers until their child’s first birthday, if they met certain conditions. On this basis, he applied for the stay of execution by analogy. The Romanian authorities refused to grant him the possibility, and Mr. Enache went to the ECtHR, claiming violation of the articles 8 (right to family life) and 14 (prohibition of discrimination) of the European Convention on Human Rights.

The Court, however, did not follow his viewpoint. The Court’s reasoning first acknowledges that there is a clear difference in treatment for men and women. The stay of execution was not only meant to let the mother physically recover from pregnancy and birth; it was also meant to strengthen the bond between mother and child. This is not denied by the Romanian government. However, the Court stated that the difference in treatment was objectively and reasonably justified, following arguments by the Romanian state that motherhood in prison comes with certain extra challenges.

“According to the ECtHR difference in treatment based on sex can only be justified based on very weighty reasons.”

According to the Court’s established case law, difference in treatment based on sex can only be justified based on very weighty reasons. But what are those reasons exactly? In the case at hand, the Court’s arguments don’t seem to be very convincing. For example, the Court mentions that the stay of execution was not an absolute right and that it was subject to certain requirements. Therefore, according to the Court, even if Mr. Enache would have been able to request the stay of execution, there was no certainty that he would have received it. This is an odd reasoning, because it doesn’t change the fact that men simply cannot apply for the stay of execution.

The Court also relies on certain international treaties in support of its arguments. It mentions article 4 § 2 of the Convention on the Elimination of Discrimination against Women (CEDAW), which imposes on states the obligation of protecting maternity. Maternity should, however, not be confused with motherhood. Maternity focusses on biological aspects: being pregnant, giving birth, breastfeeding, postnatal recovery, etc. Motherhood is the state of being a mother. Given its long duration of one year, the stay of execution in the case at hand is meant to protect maternity as well as motherhood. The Committee on the Elimination of Discrimination against Women, which monitors CEDAW, even warns states about the negative effects of stereotyping women as the main caretakers of children.[1] For this reason, invoking this article is hardly a convincing argument.

Besides that, the Court mentions that there are several international and European instruments for protection against gender-based violence, abuse and sexual harassment in the prison environment, including the Bangkok Rules referred to by the Romanian government. For the Court, these seem to justify the possibility of requesting a stay of execution for women, but not for men. It is, however, hard to see how these instruments prevent the Court from also protecting fathers and fatherhood in detention. It seems like the Court missed out on a chance to play a pivotal role in this area.

“Why does the ECtHR not allow imprisoned fathers the chance to be part of their children’s lives?”

In its judgement, the Court speaks of the need to protect the child’s best interest above all. Then why does it not allow imprisoned fathers the chance to be part of their children’s lives? There are studies that indicate that having both parents involved is better for the development and wellbeing of a child.

It seems like another court bites the dust and falls into the trap of identifying maternity with motherhood. The established case law of the European Court of Justice (ECJ) suffers the same defect. The ECJ only admits that there is discrimination against fathers when a particular measure doesn’t explicitly target pregnancy.[2] This even though the necessary recovery time after giving birth is medically only seven weeks. The extra time women receive during maternity leave is only meant to strengthen the bond between mother and child, which the ECJ openly admits.

The ECtHR had taken a more progressive approach than the ECJ since the Konstantin Markin v. Russia case, and has admitted violation of the non-discrimination principle when no family leave was provided for fathers. This case law was later confirmed by the Hulea v Romania case. These judgements brought long-needed change in the ruling ideas of gender and parenthood. With this latest judgement, however, it seems that the Court is not ready to break gender stereotypes at all levels of society.

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[1] General Recommendation No. 25, adopted by the Committee on the Elimination of Discrimination against Women at its 20^th session (1999); Frances Raday, ‘Article 4’ in Marsha A. Freeman, Christine Chinkin and Beate Rudolf, The UN Convention on the Elimination of All Forms of Discrimination against Women (OUP 2012).

[2] See Case C184/83 Hofmann v Barmer Ersatzkasse [1984] ECR3047; Case C104/09 Roca Alvarez v Sesa Start España ETT SA [2010] ECR I-8661;Case C5/12 Marc Betriu Montull v Instituto Nacional de Seguridad Social [2013]OJ C344/19.

Liesbet did a bilingual bachelor in law at the Brussels campus of the Catholic University of Leuven. After that, she obtained her masters in law at the Catholic University of Leuven, spending one year of her master’s on exchange at the University of Vienna. Her specialisations were criminal law, international and European law, but she wrote her thesis in human rights law. Her main interest is gender issues in law.