ICCPR Case Digest

CCPR/C/128/D/2979/2017

Communication

2979/2017

Submission: 2016.03.30

View Adopted: 2020.03.13

Elena Genero v. Italy

Substantive Issues
  • Equality of arms and fair hearing
  • Gender equality
  • Non-discrimination
  • Participation in public affairs
Relevant Articles
  • Article 14.1
  • Article 25 (c)
  • Article 26

Facts

The author is a national of Italy who claims that the State party has violated her rights under article 14(1) and 25(c) of the Covenant.

The author of the communication has served as a volunteer (temporary) firefighter for 17 years in the State party. In 2007, she competed to enter the Italian National Firefighters Corps as a permanent member. However, her candidacy was refused on the basis that she did not fulfil the minimum height requirement of 165 cm. Her height was estimated at 160-161 cm. According to the domestic legislation of Italy, permanent firefighters (both men and women) need to have the minimum height requirement of 165cm, in order to perform technical and operational functions. With regard to temporary firefighter, a presidential decree No. 76 was announced in 2004, that required a minimum height of 162 cm (for both men and women). 

Due to the height requirements, the author challenged both height requirement in court stating that it was discriminatory and constituted an abuse of power. The court rejected the author’s complaints and labelled them as ill-founded. The court stated that the difference of 3cm between the two positions was due to the fact that permanent firefighters was on the basis of the duration of recruitment and the additional effort that was needed for the job as a permanent firefighter. The court stated that these were administrative decisions and the fact that the same height requirement was required from both sexes was proof that it was not a discriminatory practice. 

The author appealed this decision on several domestic levels and additionally, filed a complaint with the European Court of Human Rights – which was rejected as being inadmissible on the basis of Article 34 and 35 of the European Convention on Human Rights. 

On the above factual basis, the author alleges that she is a victim of a violation of her rights under article 25(c) of the Covenant. She maintains that the height requirement, undifferentiated between men and women, constitutes indirect discrimination against women. She notes herein that the average height of women in Italy measures 161 cm, while the average height of men is 175 cm. By establishing a minimum height requirement well above the female average, the State party excludes a priori the majority of women, including the author, from the competition based on their gender. The author also adds that while a certain physical condition is necessary to perform firefighter duties, that condition is not exclusively attributable to height but also to other physical parameters, such as corporal composition or muscular strength. She also notes that her serving as a firefighter for 17 years is direct evidence that a height lower than 165 is compatible with rescue functions. Her allegations, although not expressly invoked by the author, also raise issues under article 26 of the Covenant.

According to the violation of article 14(1), the State Council that dismissed the authors claims had previously ruled on a similar matter in Barbara Barrani. Thus, the judges that decided against her went against legal and constitutional principles. 

Admissibility

The Committee observes the fact that the author had lodged an application concerning the same events with the European Court of Human Rights, which was rejected in September 2014 for the failure to meet the admissibility requirements laid down in Article 34 and 35 in the European Convention of Human Rights. The Committee recalls through its jurisprudence in Mahabir v Austria (CCPR/C/82/D/944/2000), that the declaration of inadmissibility may not be done on purely procedural grounds, but needs to be assessed on the basis of merits too. 

According to the author, the Committee would need to assess the contradictory jurisprudence within the domestic courts of Italy, as they have two separate judgements. Yet, the Committee understands that the fact that domestic courts make different judgements is not enough to substantiate the admissibility requirements for the Article 14(1) of the Covenant. The author has not been able to substantiate her claim that there was absence of a competent, independent and impartial tribunal established by law – thus, the Committee state that under Article 14(1), this case would not be admissible. 

With regards to the claim under Article 25(c) of the Covenant, on the basis of the discriminatory nature of the national provisions regulating access to the National Firefighters Corps as compared to the provisions regulating access to the police or military forces – the Committee considers that the author has not substantiated her claim well enough for it be considered admissible. 

However, with regards to the claims under Article 25(c) and 26 of the Covenant for the alleged gender-based discrimination that she faced as a candidate for the National Firefighters Corps and the unjustified distinction between the height requirements between the permanent and temporary positions – the Committee finds this claim admissible. This is due to the fact that this has been sufficiently substantiated and that these firefighters perform the same functions. 

Merits

The Committee will need to assess whether the disqualification of the candidate from the National Firefighters Corps on the basis of her height and the height requirement constitutes a gender-based discrimination. The Committee notes that not every distinction, exclusion or restriction based on the grounds listed in the Covenant, amounts to discrimination, as long as it is based on reasonable and objective criteria and pursues a legitimate aim under the Covenant. 

The Committee noted the author’s uncontested argument that the undifferentiated minimum height requirement, well above the alleged national average height, has the effect of excluding a majority of Italian women. As such, it observed that such a height requirement constitutes a restriction to access to the National Firefighters Corps, and the Committee must therein decide whether such a height requirement meets the criteria of reasonableness, objectivity, and legitimacy of the aim.

The Committee followingly took note of the fact that the author been successfully carrying out the same functions as a permanent member for 17 years, and the fact that the State party nor national administrative courts had justified the precise role that such a height requirement would play in the effective performance of these functions that other physical attributes, such as corporal composition or active metabolic mass, could not compensate for. It also observed that the State Council of Italy recently called for the elimination of minimum height requirements. And that in recent domestic jurisprudence, the height requirements were labelled as unconstitutional. 

In light of these facts, the Committee concluded that the different height requirements for permanent and temporary firefighters are also discriminatory. The different height requirements for temporary and permanent firefighters, will result in more women being able to be temporary firefighters and excluded from being able to become permanent firefighters. The Committee concluded that the disproportionate effect this had on female candidates was a form of indirect discrimination based on gender in violation of article 26 of the Covenant.

In relation to the author’s claims under article 25(c), the Committee recalled its general comment No. 25 outlines the obligation “to ensure access on general terms of equality, the criteria and process for appointment, promotion, suspension and dismissal must be objective and reasonable”. It further notes that “it is of particular importance to ensure that persons do not suffer discrimination in the exercise of their rights under article 25(c). Having considered that the legislative height requirement was unreasonable and discriminate, the Committee concluded that the author's rights under article 25(c) were also violated.

Recommendations

Pursuant to article 2(3)(a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires that full reparations be made to the individuals whose rights have been violated. Therefore, the State party should (a) provide the author with adequate compensation and (b) evaluate the possibility of admitting the author as a permanent firefighter. 

Additionally, the State party should take all necessary steps to ensure that similar violations do not occur in the future. This should be done by amending current domestic legislation. 

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