JOINT DISSENTING OPINION OF JUDGES POPOVI Ć , SAJ Ó AND PINTO DE ALBUQUERQUE

1. The present case concerns a claim of discrimination based on the fact that periods of child-raising abroad were not treated on an equal footing with periods of child-raising spent in Austria for the purpose of counting substitute insurance periods. The Court has already held that “place of residence” constitutes an aspect of personal status for the purposes of Article 14 (see Carson and Others v. the United Kingdom [GC], no. 42184/05, §§ 70-71, ECHR 2010). We find that the claim is founded since the applicant was subjected to discriminatory treatment based precisely on her residence abroad. Thus, our disagreement with the majority is strictly based on a question of legal principle, the factual situation of the applicant being undisputed. And the question of principle in this case is the following: should social security and family policy privilege Austrian mothers who raise their children in Austria over Austrian mothers who raise them abroad? Contrary t o the majority ’ s positive answer, our reply is an unequivocal “ no ” .

2. As a general rule, affiliation to the social security system, including the old-age pension system, is linked to employment in Austria and is based on the compulsory payment of contributions. Section 500 and subsequent sections of the General Social Security Act created a special regime for victims of National Socialist persecution, the aim being to compensate victims of such persecution through overall crediting of insurance periods for disadvantages suffered under social security law as a result of persecution or emigration. Under this special regime, victims of National Socialist persecution who either did not complete a full career of insurance contributions in Austria or who, like the applicant, did not accumulate any insurance months in Austria owing to their age at the time of their emigration may become eligible for an old-age pension by paying retroactive contributions at preferential rates on a voluntary basis. The problem lies in the fact that periods of child-raising in Austria are counted as substitute periods pursuant to section 227a of the General Social Security Act, which is not the case for periods of child-raising spent abroad.

3. The Administrative Court in its judgment of 22 December 2004 noted that section 500 and the subsequent sections of the General Social Security Act achieved the aim of eliminating disadvantages in social security status suffered by victims of National Socialist persecution by way of overall crediting of insurance periods. This was based on the assumption that insurance periods would have been accumulated if there had been no persecution. In such a system, further compensation for specific periods, such as periods of child-raising, was not required. It was within the legislature ’ s margin of appreciation to decide whether and, if so, which substitute periods would be credited in respect of facts which occurred abroad.

In their observations the Government relied on the same reasons, but added two further arguments. First, they stated that within the special regime for victims of National Socialist persecution, the crediting of periods of child-raising abroad in addition to the overall crediting of insurance periods might amount to counting the same periods twice. Second, they argued that the crediting of substitute periods for child-raising was not only a matter of social security law but also of family policy. Both the territoriality principle inherent in social security law and the legitimate interests of family policy provided objective reasons for counting periods of child-raising as substitute periods only if they had been spent in Austria .

4. We are not convinced by the Government ’ s first argument. We note in particular that the argument that accepting periods of child-raising abroad as substitute periods in addition to the overall crediting of insurance periods provided for by the special regime may lead to counting the same period twice would also apply to periods of higher education spent abroad. Indeed, the applicant herself obtained the entitlement to overall crediting of 180 insurance months in respect of the years 1951 to 1965 by paying retroactive contributions. In addition, periods of higher education in the years 1953 to 1959 were counted as substitute periods. If the argument of “double” crediting of insurance periods does not count for periods of higher education spent abroad, there is no sense in allowing it to count with regard to periods of child-raising abroad.

5. We are not convinced by the Government ’ s second argument either, which relies essentially on the principle of territoriality inherent in social security law, for the simple reason that the regime for victims of National Socialist persecution itself creates a special situation with regard to the territoriality principle. The argument of territoriality is clearly misplaced in the context of a law which aims precisely to compensate victims of persecution in their own country who had to leave the country to survive. In this connection, it should be noted that the applicant was deported, first, to the concentration camp in Bergen-Belsen at the age of seven, and subsequently to the concentration camp in Vittel, spent four years in camps for displaced persons and emigrated to Israel at the age of twelve. She never accumulated any insurance periods in Austria under the ordinary regime. In the context of the special legal regime described above, any considerations linked to the principle of territoriality, including considerations of family policy based on that principle, cannot provide a justification for distinguishing between facts that occurred in Austria and facts that occurred abroad. We find it very disturbing, to say the least, that family policy should privilege Austrian mothers who raise their children in Austria over Austrian mothers who do so abroad. The presumption of “less valuable” child-raising by Austrian mothers living abroad is totally unacceptable.

6. Finally, the Administrative Court ’ s argument does not stand either. Given the aim of the special regime of eliminating disadvantages for victims of National Socialist persecution, we cannot see any reasonable and objective grounds for excluding one particular type of period, namely time spent child-raising, on the sole ground of residence abroad, taking into account in particular the fact that the applicant ’ s residence abroad was precisely because of her status as a victim of persecution.

We attach significant weight to the fact that the applicant was persecuted in her own country and was forced to emigrate. Consequently, it cannot be said that she chose to live abroad (in contrast to the position in Carson and Others , cited above, § 86). On the contrary, the fact that she is resident abroad is linked to the persecution she suffered during the period of National Socialism. We find that the applicant was placed against her will in a different situation from persons who have paid regular contributions to the old-age pension system on the basis of their employment in Austria . In other words, she was forcibly excluded from a career of regular contributions, such exclusion being the result of a grave human rights violation. The contested legal solution perpetuates the pattern of exclusion to which the legislature wanted to put an end. By not counting periods of child-raising spent abroad as substitute periods, the respondent State has treated the applicant differently on the basis of a situation that she was forced to accept as a result of that grave human rights violation. The applicant ’ s actual situation reinforces th at pattern of exclusion: years of childcare for children born in the context of such exclusion are treated as years of childcare provided by a non - Austrian mother.

7. We accept that the Convention does not restrict the Contracting States ’ freedom to decide whether or not to have special social security regimes for victims of persecution. If, however, a State does decide to create a special scheme, as Austria did when it approved the 2002 amendment to the General Social Security Act, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the United Kingdom [GC] , nos. 65731/01 and 65900/01, § 53 , ECHR 2006 ‑ VI ). This State obligation is even more compelling in the present case, where the special regime in question aims to repair the harm done to people who suffered persecution. For the reasons set out above, we consider that the exclusion of periods of child-raising by Austrian mothers abroad not only contradicted the generous aim of the 2002 amendment but, more seriously, infringed the European standard of equality. Consequently, we consider that there has been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1.