FIFTH SECTION

DECISION

Application no. 22054/21 Radmila GOLUBOVIĆ against Montenegro

The European Court of Human Rights (Fifth Section), sitting on 16 June 2022 as a Committee composed of:

Ganna Yudkivska, President, Ivana Jelić, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to:

the application (no. 22054/21) against Montenegro lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 April 2021 by a Montenegrin national, Ms Radmila Golubović, who was born in 1954 and lives in Nikšić (“the applicant”) and who was represented by Mr B. Minić, a lawyer practising in Podgorica;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the discontinuation of the payment of a monthly allowance which had been introduced by the Social and Child Welfare Act 2015 and had been paid since January 2016 to women who had given birth to three or more children. The applicant invokes Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention.

2 . In order to benefit from this right, the women had to have worked or had to have been registered as unemployed for at least twenty-five years, if they had given birth to three children, or fifteen years if they had given birth to more than three children. Some women eligible for the allowance even terminated their employment and lived off the allowance, as in some cases it was higher than their salaries.

3 . On 9 January 2017 the allowance was reduced by 25% for budgetary reasons and then discontinued altogether, following the Constitutional Court’s decision of 19 April 2017 which declared the relevant provisions of the Social and Child Welfare Act 2015 unconstitutional. The Constitutional Court held that granting the allowance in question, based on criteria of multiple births, amounted to a difference in treatment without reasonable justification in breach of Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, in relation to other people, both men and women, who were equally engaged in bringing up children. These differences, as the Constitutional Court further stated, did not pursue a legitimate aim and were not applied in a proportionate manner, especially since the provisions were vague and, as a result, were applied retroactively to over 22,000 women, most of whom were already of an advanced age with grown-up children.

4 . On 29 June 2017, in order to fully comply with the Constitutional Court’s decision, the Montenegrin Parliament adopted the Act on the Enforcement of the Constitutional Court’s Decision no. U-I No 6/16 of 19 April 2017. The Act introduced a transition period in which monthly payments were to be paid to women who had terminated their employment (see paragraph 2 above) as follows: three years for women aged between 33 and 45 years; five years for women aged between 45 and 55 years; and up to retirement for women aged between 55 and 61 years. Additionally, in respect of those women whose right to unemployment benefits, a pension or various other social benefits had been suspended in order for them to exercise their right to the monthly allowance in question, the Act prescribed the reinstatement of the suspended rights.

5. On 11 July 2017 the Nikšić, Plužine and Šavnik Social Work Centre issued a decision on the discontinuation of the payment of the allowance to the applicant, relying on the Constitutional Court’s decision. That decision was upheld in the judicial review proceedings before the Administrative Court and the Supreme Court on 4 March 2020 and 14 May 2020, respectively. On 18 February 2021 the Constitutional Court dismissed the applicant’s constitutional appeal.

6. On 29 December 2021 the Montenegrin Parliament adopted the Act on Compensation to Former Beneficiaries of Allowances Based on the Birth of Three or More Children. The Act entered into force on 1 April 2022. The Act provides for the payment of life-long “compensation” to women who previously exercised their right to the allowance. The right to compensation is not granted to women who would have subsequently qualified for the allowance.

THE COURT’S ASSESSMENT

7. The applicant alleged that there had been a breach of her rights under Articles 6, 8 and 14 of the Convention and Article 1 of Protocol No. 1 to the Convention owing to the discontinuation of the payment of the monthly allowance as a result of the Constitutional Court’s decision.

8. Principles which apply generally in cases concerning Article 1 of Protocol No. 1 are equally relevant to social and welfare benefits and they have been summarised in Stec and Others v. the United Kingdom ([GC], nos. 65731/01 and 65900/01, §§ 50-53, ECHR 2006 ).

9. In the instant case, the Court finds that the discontinuation of the payment of the monthly allowance constituted an interference with the applicant’s property rights protected by Article 1 of Protocol No. 1 to the Convention.

10. It is not in dispute that the interference was provided for by law, namely by the Act on the Enforcement of the Constitutional Court’s Decision of 19 April 2017.

11 . In its assessment of the public interest of the impugned measure, the Court takes into account the reasoning of the Constitutional Court, which found that granting the allowance in question was in violation of Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention (see paragraph 3 above). The Court sees no reason to differ from the findings of the Constitutional Court and notes that the allowance was discontinued in order to redress the unconstitutionality of the above-mentioned differential treatment, which in itself suggests that the impugned measure pursued a legitimate aim in the public interest.

12. This consideration must carry weight in the assessment of proportionality under Article 1 of Protocol No. 1, especially for the period after the Constitutional Court’s decision until the adoption of the Act on Compensation of Former Beneficiaries of Allowances Based on the Birth of Three or More Children. In that connection, particular emphasis needs to be placed on the fact that the Act on the Enforcement of the Constitutional Court’s Decision provided, for the women concerned, a transition period and a scheme that allowed them to adjust to the new circumstances (contrast Lakićević and Others v. Montenegro and Serbia , nos. 27458/06 and 3 others, § 72, 13 December 2011) if they had terminated their employment, together with a full reinstatement of any rights that had been suspended when they opted for the allowance (see paragraph 4 above). Turning to the present case, the applicant could not legitimately expect that the allowance she had been receiving for one year and five months, despite being declared discriminatory towards other women and men who were equally engaged in bringing up children, would be irrevocable under any circumstances. Moreover, the applicant had not been required to pay back the benefits she had received (contrast Lakićević and Others, § 72, cited above).

13. Against this background and also bearing in mind the State’s wide margin of appreciation in regulating the area of social welfare (see Frimu and Others v. Romania (dec.), no. 45312/11 , 7 February 2012) and the legitimate aim of redressing discriminatory treatment (see paragraph 11 above), the Court considers that the applicant cannot be regarded as having to bear an individual and excessive burden.

14. It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention.

15. The applicant raised other complaints under various Convention provisions. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, these complaints either do not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or do not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 July 2022.

Martina Keller Ganna Yudkivska Deputy Registrar President