No 021-01-00266/2017-02   Date: 21 9 2017

Acting within the framework of their prescribed competence[1] to monitor the enforcement of laws regulating the prohibition of discrimination and recommend measures for achievement of equality to public authorities and other persons, the Commissioner for Protection of Equality addresses (the Recommendation has been addressed  to all municipal/city administrations) the following:

   RECOMMENDATION ON MEASURES FOR ACHIEVING EQUALITY

The Commissioner for Protection of Equality recommends to the municipal/city administration as follows:

1. To display on the advertising board of the municipal/city administration, or in another visible spot, a notification that the right to maternity benefit shall also be exercised by the father of a child when the mother is a foreign national, provided that the father meets other prescribed requirements.
2. 2. That the head of the municipal/city administration shall familiarise the employees with the Decision of the Constitutional Court of the Republic of Serbia no: IUz-40/2012 of 11 July 2014 and the Instruction on the conduct of municipal/city administrations in the application and implementation of the Decision of the Constitutional Court no IUz-40/2012 by the Ministry of Labour, Employment, Veteran and Social Policy no: 011-00-00554/2015-13 of 21 September 2015.

The head of the municipal/city administration shall inform the Commissioner for Protection of Equality on measures undertaken with a view to implementing this recommendation, within 30 days from the date of receipt of the recommendation on measures for achieving equality.

No appeal or any other judicial remedy is admissible against this recommendation on measures for achieving equality, as this recommendation does not decide on rights and obligations of legal entities.

Statement of the Reasons

Acting on a number of complaints by citizens, the Commissioner for Protection of Equality has noticed that certain municipal or city administrations are preventing fathers from exercising the right to maternity benefit in cases when the mother is a foreign national, even though the father meets the requirements laid down in the Law on Financial Support for Families with Children. Thus, municipal/city administrations are unreasonably putting families in which the mother is a foreign national in a less favourable position than other families with children in which the mother is a Serbian national and the father is a Serbian or foreign national, which is in contravention of the Law on the Prohibition of Discrimination. In addition, preventing the father of the child to exercise the right to maternity benefit in the case when the mother is a foreign national is also not in compliance with the Decision of the Constitutional Court of the Republic of Serbia no: IUz-40/2012 of 11 July 2014, the Instruction on the conduct of municipal/city administrations in the application and implementation of the Decision of the Constitutional Court no IUz-40/2012 by the Ministry of Labour, Employment, Veteran and Social Policy no: 011-00-00554/2015-13 of 21 September 2015, which regulates the obligations of municipal/city administrations in the process of exercise of the rights to maternity benefit in cases when the mother is a foreign national.

Namely, multiple complaints submitted to the Commissioner for Protection of Equality indicate that complainants had tried to exercise the right to maternity benefit, but civil servants in municipal/city administrations refused to accept their applications, with an oral explanation that they may not receive the maternity benefit because of the mother’s status as a foreign national. In one case, the complainant states that civil servants in the municipal administration, after the complainant had shown them the Decision of the Constitutional Court of the Republic of Serbia no IUz-40/2012 of 11 July 2014, told him that they were not familiar with that Decision, after which they allowed him to submit the application for maternity benefit, but they explained that his application would be rejected because the legal deadline for the submission of the applications had expired in the meantime. In another case, the Commissioner for Protection of Equality had inspected the decision which, after such a situation had occurred, did not recognize the right of the father to maternity benefit due to submission of the application after the expiry of the legal deadline.

First, the Commissioner for the Protection of Equality states that the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms ^[2], Article 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, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The Constitution of the Republic of Serbia^[3] prohibits any discrimination, indirect or direct, on any grounds, particularly on the grounds of race, sex, nationality, social origin, birth, religion, political or other belief, property, culture, language, age, psychological or physical disability^[4].

The constitutional prohibition of discrimination is further elaborated on in the Law on the Prohibition of Discrimination, which defines discrimination as any unwarranted differentiation or unequal treatment or omission (exclusion, limitation or prioritization) against persons or groups and/or  their family members or persons close to them, in an overt or covert manner, on the grounds of race, colour, ancestry, citizenship, nationality or ethnic origin, language, religious or political belief, sex, gender identity, sexual orientation, property, birth, genetic features, health status, disability, marital and family status, criminal record, age, appearance or membership in political organisations, trade unions and other organisations and other real or assumed personal characteristics^[5]. Direct discrimination occurs if a person or a group of persons, due to their personal characteristics, are or could be put in a less favourable position in an identical or similar situation, by an act, action or failure to act.

Article 14, paragraph 1 of the Law on Financial Support for Families with Children^[6] prescribes that the maternity benefit shall be exercised by the mother for the first, second, third and fourth child, provided that she is a citizen of the Republic of Serbia, that she has domicile in the Republic of Serbia and that she exercises the right to health care through the Health Fund of the Republic of Serbia. Paragraph 7 of the same Article prescribes that the right to maternity benefit can also be exercised by the father of the child, provided that he meets the requirements from paragraphs 1-5 of this Article, if the mother of the child is no longer alive, if she has abandoned the child, or if she is unable to look after the child due to objective reasons.

The Law on Constitutional Court^[7] prescribes that decisions of the Constitutional Court are final, enforceable and generally binding. Public and other authorities, organisations conferred with public powers, political parties, trade union organisations, associations of citizens or religious communities, are obliged to enforce decisions and decrees of the Constitutional Court, as a part of their rights and duties.

In that regard, the Commissioner for Protection of Equality states that the Decision of the Constitutional Court no IUz-40/2012 of 11 July 2014, published on 1 October 2014, prescribes that the right to maternity benefit may also be exercised by the father of the child if the mother is not a citizen of the Republic of Serbia. In the procedure of the evaluation of constitutionality of Article 14, paragraphs 1, 4 and 7 of the Law on Financial Support for Families with Children, the Constitutional Court ruled that prescribing the citizenship of the Republic of Serbia as one of the requirements for the exercise of the right to maternity benefit, either by the mother or the father, is not in contravention of the Constitution of the Republic of Serbia, provided that Article 14, paragraph 7 of the Law is interpreted and applied in such a manner that the right to maternity benefit may also be exercised by the father of the child, provided that he meets the requirements referred to in paragraphs 1-5 of this Article, if the mother is not a citizen of the Republic of Serbia. In the explanation of the decision, the Constitutional Court pointed out that the maternity benefit has been defined by this Law as a population policy measure with a view to encouraging births/increasing the birth rate. It was further stated that “financial support to families with children includes improvement of conditions for meeting the needs of children and support to families with children, which undoubtedly points to the conclusion that the final beneficiary of this financial aid is the child”. The Constitutional Court has found that a proposal for the evaluation of constitutionality reasonably indicates that the prescribed requirement that the mother, as the primary holder of the right to maternity benefit, must be a citizen of Serbia, may indirectly put children, as beneficiaries of the right, in an unequal position, if they come from mixed marriages. Namely, if all other requirements are met, the right to maternity benefit would belong to the family with children in which the mother is a Serbian national and the father is a foreign national, while this same right may not be exercised by a family with children in which the mother is a foreign national and the father is a Serbian national. For that reason, the Constitutional Court has found that “provisions of Article 14 of the Law should be viewed as a whole and interpreted in a systematic and targeted manner, in the best interest of the child”.

The Instruction on the conduct of municipal/city administrations in the application and implementation of the Decision of the Constitutional Court no IUz-40/2012 by the Ministry of Labour, Employment, Veteran and Social Policy no: 011-00-00554/2015-13 of 21 September 2015, which regulates obligations of municipal/city administrations in the process of exercise of the rights to maternity benefit in cases when the mother is a foreign national, states that, in the process of implementation of the Decision of the Constitutional Court, municipal/city administrations need to ensure the possibility of submission of the application for the exercise of the rights to maternity benefit in cases when the mother is a foreign national, with reference to the documentation which is submitted together with the application for the exercise of the rights to maternity benefit.

In addition, having regard to the non-discrimination provisions, the Commissioner for Protection of Equality points out that preventing the father of the child from exercising the right to maternity benefit in cases when the mother is a foreign national, even though the father meets the requirements laid down in the Law on Financial Support for Families with Children, has consequences for the respective families, having in mind that it puts these families in a less favourable position compared to other families with children in which the mother is a citizen of the Republic of Serbia. Particularly problematic are situations where civil servants in city/municipal administrations give inaccurate information to families that the father has no right to maternity benefit when the mother if a foreign national, thus causing them to miss the deadline for the submission of the application.

In view of this, the Commissioner for Protection of Equality points out that such actions by municipal/city administrations are unreasonably putting families in which the mother is a foreign national in a less favourable position than other families with children in which the mother is a Serbian national and the father is a Serbian or foreign national, which is in contravention of the Law on the Prohibition of Discrimination.

In view of all these circumstances, the Commissioner for the Protection of Equality, acting in accordance with the Article 33, point 9 of the Law on the Prohibition of Discrimination, addresses a recommendation on measures to municipal/city administrations to take all necessary measures to prevent the above mentioned situations and ensure compliance with the non-discrimination provisions on the exercise of the right to maternity benefit.

[1]. Law on the Prohibition of Discrimination (Official Gazette of the RS, no 22/09), Article 33, paragraph 1, point 7 and 9

[2] “Official Journal of Serbia and Montenegro – International Treaties”, no 9/03

[3] “Official Gazette of RS”, no. 98/06

[4] Constitution of the Republic of Serbia, Article 21

[5] Law on the Prohibition of Discrimination, Article 2

[6] “Official Gazette of the RS”, no. 16/02, 115 /05 and 107/09

[7] “Official Gazette of the RS”, no. 109/07, 99/11, 18/13 – CC decision, Article 7 and 104