No. 07-00-708/2019-02 date: 3.3.2020.
The opinion was adopted in the procedure regarding the complaint filed by the attorney AA, on behalf of BB, against the City Administration of the City of VV. The complaint states that BB submitted a request for exercising the right to parental allowance, but that this right was not granted to her by the decision of the City Administration of the City of VV, because at the time the request was submitted the child’s father did not have registered domicile-residence in the Republic of Serbia. It was also pointed out that the applicant is a citizen of the Republic of Serbia, that she lives in the territory of the Republic of Serbia, together with the child for whom she applied, and that the stated interpretation of regulations governing the right to parental allowance, which “insists that both parents have registered domicile in the territory of the Republic of Serbia”, discriminates “only families in which one of the parents (father) is a foreign citizen”. The statement of the Secretariat for Social Protection of the City Administration of the City of VV (hereinafter: the Secretariat), among other things, specifies that on September 11, 2019, BB submitted a request for exercising the right to parental allowance for her second child GG, and that in a note on the application form, she stated that her extramarital husband was a Spanish citizen and that the majority of their life activities took place in the territory of RS, “with the proviso that they often reside abroad”. Furthermore, the statement asserted that due to the increasingly frequent situations in which the father is a foreign citizen, the Secretariat asked the Ministry of Labor, Employment, Veteran and Social Affairs for instructions on interpreting whether the fact that one of the parents (father) lives abroad is an obstacle to exercising the right to parental allowance, and since an answer was not received, the complainant was requested to submit, in accordance with Article 23 of the Rulebook on Detailed Conditions and Manner of Exercising the Right to Financial Support to Families with Children, (hereinafter: the Rulebook), the registration of domicile/residence of the child’s father in the territory of the Republic of Serbia. Considering that, as further specified in the statement, the complainant submitted the application for residence of the father of the children with the date of application after the submission of the request, a decision was made that did not recognize her right to parental allowance. During the proceedings, it was established that the complainant, along with the request for exercising the right to parental allowance, submitted a statement specifying that her children live in the territory of the Republic of Serbia, that she is directly taking care for the newborn child, as well as the child from the previous birth order; that her children are not placed in a social protection institution, foster, or guardian family, and that they are not given for adoption; that she has not been deprived of parental rights and that no proceedings have been initiated against her for deprivation of parental rights in relation to her child from the previous birth order; that her child from the previous birth order was vaccinated in accordance with the regulations in the field of health care of the Republic of Serbia and that she and her extramarital partner do not live abroad. It was also determined that in the note of the application, she stated that her extramarital partner is a Spanish citizen, and that the majority of their life activities take place in the territory of the Republic of Serbia, “with the proviso that they often reside abroad”. Starting from the regulations governing the right to parental allowance, the Commissioner first notes that the analysis of the provisions of Article 22 of the Law on Financial Support to Families with Children and Article 19 of the Rulebook on Detailed Conditions and Manner of Exercising the Right to Financial Support to Families with Children (hereinafter: Rulebook), shows that the formal holder of this right is the mother of the child, while the father can exercise this right only in exceptional cases, prescribed by law, i.e. that the formal holder of the right is the parent who is directly taking care of the child. Furthermore, having in mind the purpose of prescribing this right, it is important to point out that parental allowance is not assistance intended for the parent/parents, but it is support that is directly aimed at the child, who should be the end user of this type of financial support. In this regard, the Commissioner recalls that the Republic of Serbia has ratified the Convention on the Rights of the Child and points to General Comment no. 7 of the Committee on the Rights of the Child, stating that the principle of the best interests of the child is primary in all proceedings concerning children, and that the best interests of the child must be taken into account in drafting any law, public policy and provision of services concerning children, which includes actions that directly affect children, as well as actions that have an indirect impact on young children. When taking a stand in this case, in addition to the fact that the provision of Article 19, paragraph 1 of the Rulebook does not condition the exercise of parental allowance with proof that the child’s father has registered domicile/residency in the Republic of Serbia, the Commissioner also had in mind that from submitted evidence it follows that in a “same” situation, the Ministry of Labor, Employment, Veterans and Social Affairs annulled the decision and returned the case to the Secretariat, as the first instance body, for reconsideration, with the explanation that “the fact that the child’s father has no registration of domicile, that is, residence in the Republic To Serbia, is of no consequence for exercising the right, because he is not the applicant, but rather the mother, who fulfills the condition for exercising the right.” Bearing in mind all of the above, and, in the first place, the reason for which BB was denied the right to parental allowance, the Commissioner gave the opinion that. in this case, the Secretariat for Social Protection of the City Administration of the City of VV discriminated against the complainant based on personal characteristics of her family member – citizenship of the extramarital partner. The Secretariat for Social Protection of the City Administration of the City of VV was recommended to make a decision on determining the right to parental allowance in accordance with the Law and the Rulebook, and in full compliance with the regulations on prohibition of discrimination, in order to eliminate the consequences of discriminatory treatment, as well as to adhere to anti-discrimination regulations when making decisions and performing activities within its competence in the future.
COMMISSIONER FOR THE PROTECTION OF EQUALITY