09 July 2015, no. 021-02- 211 /

ASSEMBLY OF THE CITY OF NIS

Mile Ilić, President

18000 NIŠ

7. jula 2

Dear Mr. Ilić,

Commissioner for the Protection of Equality received a complaint in which a citizen of Nis pointed to the unequal position in which her family was brought in relation to the other families in Niš, because of the conditions prescribed by the Decision on financial support to families with children in the city of Nis. The applicant complaints that she is not eligible for immediate assistance to unemployed new mothers, because she did not have permanent residence in the city of Nis, at least a year before the child’s birth, a condition prescribed by the Decision on financial support for families with children in the city of Nis. However, the husband of the complainant lives in Nis more than one year, as well as the complainant herself, while their common child is registered as resident in Nis.

Allow me to point out that the Commissioner for the Protection of Equality is an autonomous and independent state body that has the authority to act in all cases where the principle of equality has been infringed, or when the general prohibition of discrimination has been violated. The jurisdiction of the Commissioner for the Protection of Equality is widely determined, in accordance with international standards, in order to enable them to effectively and efficiently exercise their role. One of the core competencies of the Commissioner is to receive and consider complaints of discrimination, give opinions and recommendations in specific cases of discrimination and impose statutory measures. In addition, the Commissioner is authorized to propose mediation proceedings, as well as to initiate legal proceedings for protection against discrimination and file misdemeanor charges for acts of discrimination prescribed by the anti-discrimination legislation. Commissioner is also authorized to warn the public of the most frequent, typical and severe cases of discrimination and to recommend measures to achieve equality to public authorities.

The European Convention for the Protection of Human Rights and Fundamental Freedoms of 1950, in Art. 14 prohibits discrimination and prescribes that the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, belonging to a national minority, property, birth or other status.

Also, the Constitution of the Republic of Serbia prohibits any discrimination, direct or indirect, on any grounds, particularly race, sex, national origin, social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability. The constitutional prohibition of discrimination is further elaborated in the Law on the Prohibition of Discrimination, which defines discrimination as any unjustified differentiation or unequal treatment, or omission (exclusion, restriction or preference), as compared to individuals or groups as well as members of their families, or people close to them, in an overt or a covert way that is based on race, color, ancestry, citizenship, nationality or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, financial status, birth, genetic characteristics, health, disability, marital and family status, previous convictions, age, appearance, membership in political, trade union and other organizations, and other real or presumed personal characteristics. Article 8 of the Law on the Prohibition of Discrimination prescribes that a violation of the principle of equal rights and obligations exists if a person or group of persons is, due to their personal characteristics, unjustly denied rights and freedoms or imposed with obligations that in the same or similar situation are not denied or imposed on another person or group of persons, if the purpose or the result of the measures taken is unjustified, and if there is no proportionality between the measures taken and goals achieved by these measures.

The Law on financial support to families with children, in the provisions of Art. 9. of the Law prescribes that the financial support for families with children is: 1) wage compensation during maternity leave, leave from work for childcare and leave for special childcare; 2) parental allowance; 3) child allowance; 4) reimbursement for pre-school for children without parental care; 5) reimbursement for pre-school for children with disabilities and 6) reimbursement for pre-school for children from disadvantaged families. The provisions of paragraph 4 of this article prescribe that a municipality or a city can, if they provide the means, establish a greater scope of rights than those stipulated by this law and as well as more favorable conditions for their exercise.

The Decision on financial support for families with children in the city of Nis prescribes that the right to immediate assistance for an unemployed mother given birth in the amount of 50,000 dinars can be exercised by any unemployed mother who during childbirth had given birth to her first, second, third or fourth child, provided that birth occurred after the Decision entered into force. The provision of Art. 8a para. 2 prescribes that this right can be exercised by any unemployed mother who has permanent or temporary residence in the case she is a refugee or a displaced person from Kosovo and Metohija, in the city of Nis, at least a year before the birth. Paragraph 3 of the same article prescribes that if the mother died or if she abandoned the child, the right to one-time financial assistance to unemployed mother given birth can be exercised by the child’s father or guardian, while the right to financial assistance can be exercised at the request of the mother given birth and documentation regarding the fulfilment of conditions for the exercise of the right.

An analysis of the conditions prescribed for the exercise of the right to one-time assistance for an unemployed mother, in the light of the Law on the Prohibition of Discrimination and other relevant regulations, has shown that the families in which the unemployed mother given birth has no registered permanent residence on the territory of the city of Niš a year before child’s birth have obviously been placed in an unequal position in relation to families in which the unemployed mother given birth has a permanent residence on the territory of the city of Niš a year before the child’s birth. The Commissioner for the Protection of Equality analyzed whether the setting of condition for the exercise of the right to one-time assistance for an unemployed mother given birth that she was a resident on the territory of the city of Nis one year prior to delivery, is contrary to the imperative regulations prohibiting discrimination which are binding for all. Therefore, it was necessary to consider whether there is an objective and reasonable justification to deny the unemployed mother given birth, and without permanent residence in the territory of the city of Niš one year prior to delivery, the right to one-time assistance for an unemployed mother given birth. This involves examining: a) whether the objective pursued by this condition is permissible and justified; and b) whether the goal/or goals could be achieved only by the prescribed measure, i.ee whether there is a proportion between the measures taken and the objectives pursued by the measure.

It is undeniable that it is within the competence of cities and municipalities to establish other rights in the area of ​​financial support to the families with children, that is, to make decisions that will financially provide assistance to families and children living in the territory of the city or municipality. In that sense, the city of Niš has the right to allocate funds from various sources for various forms of assistance to families, to determine the rules for the distribution of these funds and to distribute them in accordance with the regulations. This right is in no way prejudiced. Moreover, the readiness of the city of Niš to direct a part of the available funds to material support and to help to unemployed mothers given birth is a positive example of such support.

Regarding the conditions prescribed by the Decision on financial support to a family with children on the territory of the city of Niš, that the right to one-time assistance to an unemployed mother given birth can be exercised by a mother who resides in the territory of the city of Niš at least one year before the birth of the child, the Commissioner for the Protection of Equality determined from the statement of the Directorate for children, social and primary health care of the city of Niš, which was submitted in case no. 07-00-188/2015-02, that in the previous decision there was no such condition and that it was set because the city wanted to “stop the abuse of this right”, that is, the cases where the mothers formally apply in the territory of the city of Niš and at the same time submit request for financial assistance in other cities. Bearing in mind the limited resources of the city to provide assistance and support, the Commissioner notes that the city has the right to prevent possible abuse of the exercise of that right, and to ensure that only the families residing on the territory of the city of Niš will be eligible for this type of support. Considering the above stated facts, it can be concluded that the goal of adopting the Decision on financial support for a family with children on the territory of the city of Niš is allowed and justified.

After that, it was necessary to examine whether setting the conditions regarding the permanent residence of the child’s mother on the territory of the city of Niš was the only way for the city of Nis to ensure that it was not possible to abuse the right to one-time assistance to an unemployed mother given birth. This involves examining whether the consequences of the measures taken are justified, and whether there is a proportion between the measures taken and the objectives pursued by that measure.

In addition, the Commissioner indicates that in the specific case, the specific situation of this family should be taken into account. Namely, it is a family that at the moment of submitting the request for exercising the right to one-time assistance to an unemployed mother given birth, is in the following living situation:

The mother of the child has lived in an extramarital union with the citizen of Niš since 2013, and moved to the territory of the city of Niš with the intention of living in Nis, but did not register a place of permanent residence on the territory of this city a year before the birth of the child. The father of the child lives on the territory of the city of Niš for a longer period of time, that is, more than one year before the birth of the child. The child’s place of permanent residence was registered on the territory of the city of Nis.

Since the mother of the child did not have a permanent residence in the city of Nis, a year before the birth of the child, even though she moved to the territory of the city in 2013 with the intention of living in this city, and that the child’s father lived in Nis more than one year before the birth of the child, the family, still, is not eligible for immediate assistance to the unemployed mother given birth. Therefore, the result of measures taken by the city of Niš in order to prevent that the right to this type of compensation is exercised by mothers given birth who do not have the permanent residence in Nis, led to the fact that the families who undoubtedly live in the city of Nis, where the child’s mother doesn’t have permanent residence in the territory of the city for more than a year before the birth of a child, are not able to exercise their right to this form of financial support.

Although the Decision emphasized that the right to immediate assistance for the unemployed mothers given birth is exercised by the child’s mother, I believe, based on the analysis of other provisions of the Decision, and the objective it aimed to achieve, that it can be established that the support of the city is intended for the whole family with a child, because of the birth of the child and the increased costs, and bearing in mind that one of the parents is unemployed, regardless of the fact that the holder of the right is the child’s mother. This conclusion can be drawn from the specific possibility, prescribed by Art. 8a para. 3 that the child’s father or guardian, under exceptional circumstances, may exercise this right, which makes it clear that monetary compensation is not designed exclusively for the unemployed mother given birth, but that the goal is to financially support the newborn, as well as the whole family raising it. So, bearing in mind that the purpose of the one-time assistance for unemployed mothers given birth is to financially support the family, whose members are citizens of the city of Nis, it is not clear for what reason only the mother’s permanent residence is taken into account, and not permanent residence of father of the child, that is, the time he lived in this city, ​​as well as the permanent residence of the child in question.

Therefore, by setting up the condition that the right to immediate assistance for unemployed mothers given birth may be exercised by a mother who resided in the city of Nis, at least a year before the birth, placed at a disadvantage families living in the city of Nis, in which the mother of the child does not meet this requirement, compared to families in which the mother of the child resides at least a year before the birth. In fact, in both cases it is obvious that families whose members are residents of the city of Nis are in question, between which an unjustified distinction was made on the basis of length of permanent residence of the child’s mother. Bearing in mind the consequences that setting such a condition for exercising the right to financial compensation produces, it can be concluded that based on the permanent residence of the child’s mother alone it cannot be determined whether the members of the family in question are citizens of Nis, but that whole family should also be taken into account, i.e., permanent residence of the child and the child’s father. Therefore, the analysis showed that the condition for exercising the right to immediate assistance to unemployed mothers given birth, which relates only to the mother’s permanent residence, has no objective and reasonable justification, because prescribing this condition, without taking into account the permanent residence of the child’s father and the child is not justified from the aspect of the purpose, nor from the aspect of the result it produces.

Given the above stated analysis, I recommend that you change the Art. 8a para. 2 of the Decisions on financial support to families with children in the city of Nis, in a manner that will provide that, among other conditions, the right to immediate assistance to unemployed mothers given birth can be exercised by the child’s mother if she or the child’s father are residents in the city of Nis, at least a year before the birth of a child, provided that the child has a permanent residence in the city. In this way, you will take the whole family into account, prevent abuse of the right to financial compensation, and enable all citizens of your city to enjoy the right to freedom from discrimination.

I expect that you will make use of your legal authority and at the next meeting of the City assembly amend the Decision on financial support for families with children.

Please notify me of the measures and activities that you have undertaken in order to implement these recommendations within 30 days.

Yours sincerely,

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković