11 August 2014, 021-02-196/2014-02

ASSEMBLY OF THE CITY OF POZAREVAC

Chairman Bane Spasović

12000 POŽAREVAC
Drinska 2

Dear Mr. Spasović,

Commissioner for the Protection of Equality received a complaint in which a citizen, a resident of your city, pointed to the unequal position in which her family was brought in relation to other Pozarevac families, because of the conditions prescribed by the Decision on financial support to families with children of Pozarevac.

Specifically, the complainant is not eligible for a one-time monetary compensation for the firstborn child because she did not have permanent residence on the territory of Pozarevac more than six months before the child’s birth, that is, she failed to meet the conditions prescribed by the Decision on financial support for families with children. However, the husband of the complaint was born and lives in Pozarevac, and their child’s permanent residence was registered in this city. The complainant moved to Pozarevac two months before child’s birth, registered permanent residence at her husband’s address and intends to live with her family and work in your city.

As you probably know, 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 he violated a general prohibition of discrimination. 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 anti-discrimination legislation. The Commissioner is also authorized to warn the public of the most frequent, typical and severe cases of discrimination and recommended to the public authorities measures to achieve equality.

Commissioner firstly notes that 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 gender, race, color, language, religion, political or other opinion, national or social origin, association with 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 on race, gender, 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 exist 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 provides that the right to compensation for the firstborn child is exercised by a mother who has registered a permanent residence on the territory of Pozarevac more than six months before the birth of a child and who is eligible for parental allowance. The provision of Art. 3, para. 1, prescribes that this right can be exercised by  the father of the child, provided that the child’s mother is not alive, is serving a prison sentence or is deprived of parental rights in favor of the father, while the provision of Art. 5 prescribes that the evidence submitted with the request for the right to financial compensation, is as follows: a decision on the right to parental allowance for mothers of a firstborn child, a photocopy of a valid identity card and permanent residence registration for the mother, as well as a signed declaration of permanent residence which is an integral part of the request.

Analysis of the conditions prescribed for the eligibility for financial compensation for the firstborn child, in terms of Law on Prohibition of Discrimination and other relevant regulations, has shown that it apparently placed in an unequal position the families whose members all have permanent residence in the city of Pozarevac and intend to settle permanently in this city, but the mother of the child was not registered at a permanent residence on the territory of Pozarevac six months before the birth of the child, in relation to families where the mother resided on the territory of Pozarevac six months before the child’s birth. Commissioner for the Protection of Equality has analyzed whether setting up the condition that the right to financial compensation is exercised by a mother with the permanent residence on the territory of the town of Pozarevac, six months prior to the birth of a child is in conflict with the imperative legislation which prohibits discrimination and which is binding for all. Therefore, it was necessary to consider whether there is an objective and reasonable justification to deny the right to financial compensation for the firstborn child to mothers who didn’t have permanent residence on the territory of the town of Pozarevac for six months prior to the birth of a child. 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.e. 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 on the territory of the city or municipality. In that sense, the city of Pozarevac has the right to allocate funds from its budget 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 Pozarevac to direct a part of the available funds to material support and to help for families with children represents a positive example of such support. Regarding the condition prescribed by the Decision on financial support for families with children that the right to financial compensation for the firstborn child is exercised by the mother, who has residency on the territory of Pozarevac at least six months before the child’s birth, Commissioner for the Protection of Equality, based on the statement of the City of Pozarevac, determined that this condition was set because the city wanted to prevent abuse of this right, i.e., the possibility for women to register their permanent residence on the territory of Pozarevac just to earn the right to financial compensation for the firstborn child and to deregister the permanent residence immediately after. Bearing in mind the limited resources of the city to provide assistance and support to families, the Commissioner notes that the city has the right to prevent any misuse of exercising that right, and to ensure that the right to this type of support is achieved only by families that actually live in the city of Pozarevac. Considering the facts presented, it can be stated that the objective of the Decision on financial support for families with children is allowed and justified.

After that, it was necessary to examine whether setting the condition regarding the child’s mother’s permanent residence on the territory of Pozarevac was the only way for the city of Pozarevac to be ensured from possible abuse of the right to a financial compensation for a first-born child, that is, to ensure that this type of assistance is really used by the citizens of Pozarevac. 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 doing so, one should bear in mind the specific situation of the family in question. Namely, it is a family that at the moment of submitting a request for exercising the right to a monetary compensation for a firstborn child, was in the following living situation:

– the mother of the child concluded a marriage with a citizen of Požarevac, moved to the territory of the city of Pozarevac with the intention of living in it, but did not register a place of permanent residence on the territory of this city six months before the birth of the child,

– the father of the child lives on the territory of the city of Pozarevac for a longer period of time, that is, more than six months before the child’s birth,

– the child’s permanent residence is registered on the territory of the city of  Pozarevac.

Since the mother of the child did not have a place of permanent residence on the territory of the city of Pozarevac six months before the birth of the child, although she moved to the territory of this city after concluding the marriage and with the intention of living in this city, and that the father of the child lives in Pozarevac for many years, the family, still, isn’t entitled to financial allowance for the first-born child. Therefore, the consequence of the measures taken by the city of Požarevac to prevent the right to receive this type of benefits from being exercised by mothers who do not have a place of permanent residence in Pozarevac, has prevented families who undoubtedly live on the territory of the city of Pozarevac, but in which the child’s mother does not have a registered place of permanent residence on the territory of this city for more than six months before the child’s birth, from exercising the right to this type of financial support for families with children.

Although the decision emphasizes that the right to financial compensation for the firstborn child is exercised by the child’s mother, I believe that based on the analysis of other provisions of the Decision, and based on the objective it aims to achieve, it can be determined that it is a support that the city wants to provide for the whole family with the firstborn child, due the child’s birth and the increased costs, regardless of the fact that the holder of the right is the child’s mother. This conclusion is suggested by the specific possibility, prescribed by Art. 3. of the Decision that the child’s father, in exceptional circumstances, may exercise this right, which makes it clear that the monetary compensation is not only intended for the mother, but that the goal is to financially support the newborn, as well as the whole family raising it. Therefore, bearing in mind that the objective of the monetary compensation for the firstborn child is to financially support the family, whose members are citizens of Pozarevac, it is unclear for what reason only the mother’s permanent residence is taken into account, and not the permanent residence of the father of the child, i.e., the time he spend living in this city, as well as the permanent residence of the child. It should be borne in mind that in our society, which is still traditional and patriarchal, women, after getting married or entering into the community, often move to the place of permanent residence of their husband or partner, in order to devise a common household.

Therefore, by requiring that the right to financial compensation for the firstborn child can be exercised by a mother who resides on the territory of Pozarevac more than six months before the birth of a child, places families living in the city of Pozarevac, where the mother of the child does not meet this condition, in an unequal position compared to families in which the mother of the child has residence six months before the child’s birth. In fact, in both cases, there is no doubt that the members of families are residents of the town of Pozarevac and that an unjustified distinction was made between them 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 for the firstborn child produces, it can be concluded that based on the permanent residence of the child’s mother alone it cannot be determined whether members of the family in question are citizens of Pozarevac, but that the 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 financial compensation for the firstborn child, which applies 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. 2. of Decision on financial support for families with children, in a way that will provide that, among other conditions, the right to financial compensation for the firstborn child is exercised by the child’s mother, if she or the child’s father reside in the territory of Pozarevac more than six months before the birth of the child, provided 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 for the firstborn child and allow 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 on 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

dr Nevena Petrušić