Communicated on 2 November 2017
FIRST SECTION
Application no. 2500/16
Mihaela MUHEDINOVA
against the former Yugoslav Republic of Macedonia
lodged on 31 December 2015
STATEMENT OF FACTS
The applicant, Ms Mihaela Muhedinova, is a Macedonian national who was born in 2014 and lives in Bitola. She is represented before the Court by her father, Mr M.M., her mother, Ms Z.M., and Ms M. Sotiroska, a lawyer practising in Bitola.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
The applicant is the third child of M.M. (her father) and Z.M. (her mother). Z.M. is a Bulgarian national who has been legally residing in the respondent State since 1998. In 2014 Z.M. married M.M. (a Macedonian national). They have three children together, all of whom are Macedonian nationals.
2. Administrative proceedings in respect of child benefit
On 4 June 2014 the Centre for Social Work in Bitola rejected an application for a child benefit (родителски додаток за дете) submitted by Z.M. It pointed out that under section 38(2) of the Children Protection Act (Закон за заштита на децата – Official Gazette no. 23/13, 12/14, and 44/14), only mothers who are Macedonian nationals were entitled to the benefit in question.
On 20 August 2014 the Ministry for Labour and Social Policy dismissed an appeal lodged by Z.M. against the decision. Z.M. challenged this decision before the administrative courts. The proceedings are pending.
3. Complaint before the Commission for Protection from Discrimination
Z.M. and M.M. lodged a complaint with the Commission for Protection from Discrimination (Комисија за заштита од дискриминација). Z.M. complained that she had suffered discrimination on the grounds of nationality, in contrast to other mothers who received child benefit. M.M. complained of discrimination on the grounds of gender, as he was not entitled to child benefit, even though he also exercised parental duties and responsibilities in bringing up his child.
On 28 November 2014 the Commission issued an opinion, holding that Z.M. and M.M. had not suffered discrimination in relation to entitlement to child benefit. The Commission considered that the child benefit represented an affirmative policy measure and was aimed at supporting mothers, who were responsible for the care and upbringing of children.
4. Civil proceedings for discrimination
The applicant, through her legal representatives, Z.M. and M.M., lodged a civil claim with the Bitola Court of First Instance (Основен суд Битола), complaining that she had been subjected to discrimination in the light of her exclusion from receiving child benefit on the grounds of her mother’s nationality, unlike children whose mothers were Macedonian nationals.
On 18 May 2015 the Bitola Court of First Instance dismissed the applicant’s claim. It held that the applicant had not suffered discrimination in the light of the fact that her mother failed to meet the statutory requirements (relating to nationality) for the child benefit. The court further held that the applicant lacked standing to lodge a claim (нема активна легитимација) because the impugned administrative decisions had concerned the applicant’s mother, Z.M., who would normally have been entitled to claim the child benefit at issue.
The applicant appealed. On 17 September 2015 the Bitola Court of Appeal (Апелационен суд Битола) dismissed the applicant’s appeal and upheld the first-instance judgment.
B. Relevant domestic law
Section 38(1) of the Children Protection Act (Закон за заштита на децата, Official Gazette no. 23/13, 12/14 and 44/14) (“the Act”) provides that persons who are entitled to a child benefit are mothers who have at least three children.
Under section 38(2) of the Act, only mothers who are Macedonian nationals and who have had permanent residence in the respondent State in the three years before the application for the benefit has been submitted are entitled to the benefit.
COMPLAINTS
The applicant complains under Article 14, taken in conjunction with Article 8 of the Convention, about her exclusion from receiving a child benefit. She alleges that she was discriminated against – unlike other children in the respondent State – on the grounds of the nationality of her mother. The applicant submits the same complaint under Article 1 of Protocol No.12 to the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention, taken in conjunction with Article 8?
In particular, has the applicant been subjected to a difference in treatment – due to her mother’s nationality – with regard to the eligibility for a child benefit (родителски додаток за дете)?
If so, did that difference in treatment pursue a legitimate aim, and did it have a reasonable justification (see Weller v. Hungary, no. 44399/05, §§ 36-39, 31 March 2009)?
2. In view of the applicant’s exclusion from receiving child benefit due to her mother’s nationality, has she suffered discrimination, contrary to Article 1 of Protocol No.12?
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