Jurčić v. Croatia

Case
Jurčić v. Croatia (application

no. 54711/15, 04.02.2021)
Siranush Grigoryan
Introduction
• Ms.Jurcic is a lady, born in 1975 and lives in Rijeka, Croatia.
• On 17 November 2009 the she underwent in vitro fertilisation. The doctor in charge
recommended that she take rest.
• On 27 November 2009 the applicant entered into an employment contract with company N.
which had its headquarters near Split, about 360 kilometres away from the her place of
residence.
• On 11 December 2009 the her application to register with the compulsory health insurance
scheme was filed with the Croatian Health Insurance Fund and she was registered as an
insured employee.
• On 14 December 2009 the Ms.Jurcic started feeling nauseous. Her doctor established that the
in vitro fertilisation had been successful, and that the applicant needed rest owing to
pregnancy-related complications. A period of sick leave was thus prescribed.
• On 17 December 2009 an ultrasound confirmed that the she was pregnant with twins.
Administration actions
• On 28 December 2009 she filed a request for payment of salary compensation during her sick leave on account
of pregnancy-related complications.
• On 5 January 2010 the relevant office of the Croatian Health Insurance Fund of its own motion, initiated a
review of the her health insurance status.
• On 16 February 2010 the Fund reopened the case concerning the applicant’s health insurance and rejected her
application for registration as an insured employee, along with her request for salary compensation due to sick
leave on account of pregnancy-related complications. It based its decision on an in-house expert report
according to which, when the applicant had taken up her employment with the company on 27 November 2009,
she had been medically unfit for employment because she had undergone in vitro fertilisation ten days earlier. It
was therefore considered that her employment was fictitious and aimed solely at obtaining pecuniary
advantages related to the status of employed persons, including salary compensation during her absence from
work due to pregnancy-related complications.
• She appealed unsuccessfully. The Central Office of the Croatian Health Insurance Fund dismissed the applicant’s
appeal on 30 March 2010, holding that although pregnancy in itself could not be a reason for not taking up
employment, the particular circumstances of the applicant’s case suggested that her employment could be
considered fictitious and aimed solely at obtaining salary compensation granted to employed persons.
• On 5 December 2012 the High Administrative Court dismissed the
applicant’s administrative action, upholding the reasoning of the
administrative bodies. It stressed that, in view of her in vitro
fertilisation, on 27 November 2009 the applicant had not been fit to
take up employment that was at a distance from her place of residence
and also required travelling. The relevant part of that court’s judgment
reads as follows
• The Government had argued that the decision to revoke the applicant’s
insurance status had pursued the legitimate aim of protecting public
resources from fraudulent use, and the overall stability of the
healthcare system.
Application to ECHR
• She, represented by Ms K. Jajaš, a lawyer practising in Rijeka,

addressed to European Court, stating that she was discriminated
based on sex, by refusing employment-related benefit to pregnant
woman violating Article 14 in conjunction with Article 1 of Protocol
No. 1.
ECHR stressed:
• The applicant had regularly paid contributions to the compulsory health insurance scheme during her fourteen
years of prior work experience. It could not thus be argued that she had failed to contribute to the insurance fund;
• When entering into her employment, the applicant had had no way of knowing whether the IVF procedure had
been successful or whether it would result in her becoming pregnant. Moreover, she could not have known that her
future pregnancy, if any, would have resulted in complications which would have required her to be issued sick
leave for a prolonged period of time;
• When reviewing the applicant’s case, the authorities had failed to provide any explanation of how she could have
consciously concluded a fraudulent employment contract, without even knowing whether she would actually
become pregnant, particularly bearing in mind that she had not been under any legal obligation to report the fact
that she had undergone the IVF procedure or that she might be pregnant while concluding the contract.
• Finally, the Court expressed concern about the overtones of the domestic authorities’ conclusion, which had
implied that women should not work or seek employment during pregnancy or possibility thereof. Gender
stereotyping of that sort presented a serious obstacle to the achievement of real substantive gender equality, which
was one of the major goals of the member States of the Council of Europe. Such considerations had not only been
found to breach domestic law but had also been at odds with international gender equality standards.
Decision of ECHR
• A refusal to employ or recognise an employment-related benefit to a
pregnant woman based on her pregnancy amounted to direct
discrimination on grounds of sex, which could not be justified by the
financial interests of the State. The Court also noted a similar approach in
the case-law of the Court of Justice of the European Union and in other
relevant international standards. Accordingly, the difference in treatment
to which the applicant, as a woman who had become pregnant through
IVF, had been subjected, had not been objectively justified or necessary.
• Court stressed that it was a violation of Article 14 (prohibition of
discrimination) in conjunction with Article 1 of Protocol No. 1 (protection
of property).

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Case

Jurčić v. Croatia (application

• She, represented by Ms K. Jajaš, a lawyer practising in Rijeka,

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