OPINION

The opinion was adopted in the proceedings following the complaint of the AA Association against the Provincial Institute for Gender Equality regarding the conditions of the Contest for the awarding of grants to married couples in the territory of AP Vojvodina for the purchase of rural houses with a garden. Namely, in the complaint, it was stated that the conditions of the said Contest, among other things, require that one of the spouses/extra-marital partners is not older than 40 years of age at the time of submitting the application to the contest, that is, that the participants of the contest have not been legally sentenced to a prison sentence of at least six months. Also, in the complaint, it was stated that the objectives of the Contest in question are aimed at encouraging the development of rural areas and increasing the number of women who own a real estate, as well as that it is “evident” that the same can be achieved in cases where both spouses/extra-marital partners are over 40 years old, that is, when one of them, or both, were sentenced “to a sentence longer than six months”. In the statement of the Provincial Institute for Gender Equality, among other things, it was specified that when prescribing the upper age limit of 40 years for one spouse/extra-marital partner, the Institute had in mind the “predictions and forecasts” presented in the Development Program of Vojvodina 2014-2020, and according to which, if the current fertility rate continues, many rural areas in Vojvodina will be left without young people, while on the other hand, there will be an increase in the number of residents over 65 years of age. Furthermore, the statement asserts that there are fewer and fewer young people in the rural areas of Vojvodina, as well as that the Institute conducted a detailed research before announcing the Contest in question, on the basis of which it acquired “alarming” data about the abandoning of Vojvodina villages and the decrease in the number of children in rural schools, which is why it was assessed that it is necessary to introduce special measures that will bring young people in the rural areas of AP Vojvodina to a “state of essential equality”. In the statement, it was specified that the Institute tried to allocate the designated grants for the purchase of rural houses with a garden to young couples who want to continue living together in a village. Further, regarding the condition of the Contest that requires that the participants of the Contest  were not legally sentenced to a prison sentence of at least six months, the statement asserts, among other things, that funds for the purchase of rural houses with a garden are limited, that they are provided by the budget and that the Institute is obliged to “take special care of their disposal”, that is, to “additionally ensure that the objectives of the Competition will not be embezzled, that is, that the real estate will not be burdened with a mortgage, sold at a public sale due to outstanding obligations to creditors or used for illegal purposes”. Also, it was pointed out that all the conditions of the Contest are prescribed by the “Rulebook” as a general act, which is why they could not be prescribed differently, and that the complainants did not prove that any person suffered a consequence due to the conditions they consider disputable. During the procedure, it was established that the conditions of the Contest for the awarding of grants to married couples in the territory of the AP Vojvodina for the purchase of rural houses with a garden were taken from the Rulebook on the conditions for the awarding of grants to married couples in the territory of the AP of Vojvodina for the purchase of rural houses with a garden, which was adopted on January 31, 2019 by the Management Board of the Provincial Institute for Gender Equality. Bearing in mind the above, as well as the principle of respecting the hierarchy of legal acts, the Commissioner points out that it is indisputable that the conditions stipulated in the Competition could not be prescribed differently from those prescribed by the Rulebook adopted by the Management Board of the Provincial Institute. In this regard, the Commissioner initiated an analysis of the disputed contest conditions prescribed by the Rulebook from the aspect of anti-discrimination regulations. When evaluating the justification of setting the condition regarding the upper age limit of 40 years for one spouse/extra-marital partner, the Commissioner had in mind the relevant strategic documents of the Republic of Serbia, primarily the Agriculture and Rural Development Strategy of the Republic of Serbia 2014-2024, the Birth Stimulation Strategy, the National Rural Development Program from 2018 to 2020, as well as the Vojvodina Development Program 2014-2020, from which it follows that there are fewer and fewer young people in the villages and that in order to create a policy of a more balanced regional development of the Republic of Serbia, it is necessary to create favorable conditions for the life and work of young people in rural areas and to motivate them to stay in the villages and form families there. Also, the Commissioner had in mind that the age limit for one of the spouses/extra-marital partners does not represent an obstacle to the achievement of the second goal of the Contest – increasing the number of women who own a real estate, since both women up to 40 years of age and women over 40 years of age will be registered in the real estate cadaster under equal conditions if they meet the remaining conditions of the Contest. Assessing the reasons for prescribing the condition requiring that the participants have not been legally sentenced to a prison sentence of at least 6 months, the Commissioner points out that there are no guarantees that spouses/extra-marital partners who meet the stated condition will not “burden the subject real estate with a mortgage, sell it at a public sale due to outstanding obligations towards creditors or use the funds allocated by the Competition for illegal purposes”. The specified condition prescribed by the Rulebook represents a tightening of the conditions for achieving full equality, protection, and progress of persons or groups of persons who are in a fundamentally unequal position and puts or could put a person/group of persons in an unjustifiably disadvantageous position because of their personal characteristics – conviction. Taking into account all of the above and bearing in mind the purpose of affirmative measures and the rule on redistributing the burden of proof from Article 45 of the Law on Prohibition of Discrimination, as well as the relevant legal regulations and strategic documents adopted by the Republic of Serbia, the Commissioner for the Protection of Equality issued the opinion that:

– by prescribing the condition from Article 3, paragraph 2, point 1 of the Rulebook on the conditions for awarding grants to married couples on the territory of AP Vojvodina for the purchase of rural houses with a garden, that one of the spouses/extra-marital partners is not older than 40 years of age at the time of submitting the application to the Contest, the provisions of the Law on Prohibition of Discrimination have not been violated.

– by prescribing the conditions from Article 3, Paragraph 2, Item 8 of the Rulebook on the conditions for awarding grants to married couples in the territory of the AP Vojvodina for the purchase of rural houses with a garden, that the Contest participants were not legally sentenced to a prison sentence of at least six months, the provisions of Article 6 of the Law on Prohibition of Discrimination were violated. Therefore, it was recommended to the Provincial Institute for Gender Equality that the provisions of Article 3, Paragraph 2, Item 8 of the Rulebook on the conditions for awarding grants to married couples in the territory of the AP Vojvodina for the purchase of rural houses with a garden, comply with anti-discrimination regulations.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković