European Court of Human Rights

Information Note on the Court’s case-law No. 170

January 2014

Montoya v. France - 62170/10

Judgment 23.1.2014 [Section V] See: [2014] ECHR 76 (French text)

Article 14

Discrimination

Refusal to award “recognition allowance” to repatriated veteran of the Algerian war on the grounds of his European, as opposed to local, origin: no violation

Facts - The applicant, who was born in Algeria in 1942, had ordinary civil status applicable to persons of European origin, as opposed to local-law civil status applicable to the local Arab and Berber population. During the Algerian war he had joined one of the units of the French army. He left for France when Algeria gained independence and subsequently applied to the administrative authorities (préfet) for a “recognition allowance” (allocation de reconnaissance) payable to repatriated former members of civilian irregular units and comparable groups. His claim was rejected in November 2004 on the ground that he was “a repatriated person of European origin”. His appeals were unsuccessful.

Law - Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1: As a former member of an irregular civilian unit who had served in Algeria, was over 60 years old, was domiciled in France and was of French nationality, the applicant would had an “enforceable” right to receive the allowance if, prior to being repatriated, he had had local-law civil status rather than ordinary civil status. The French courts had held in an earlier case that the allowance qualified as a possession within the meaning of Article 1 of Protocol No. 1. The applicant’s interests fell within the scope of that provision and the respect for peaceful enjoyment of possessions guaranteed by it, which was sufficient to render Article 14 of the Convention applicable.

The difference in treatment complained of by the applicant between former auxiliaries, who had had local-law civil status, and those of European origin, who had had ordinary civil status, disclosed a distinction between former auxiliaries of Arab or Berber origin and those of European origin. That distinction was applied in respect of persons who had in common the fact that they were all former members of irregular units to whom the French authorities had had recourse during the Algerian war, and had been repatriated to France at the end of the war. Whether they had been of European or Arab or Berger origin, they were in a comparable situation regarding demands for recognition by France of their self-sacrifice for the country - a similarity which France had, moreover, acknowledged in awarding them all, without distinction, the status of war veteran - and the suffering they had endured.

The legislature had considered it necessary to make additional provision for special assistance for former auxiliaries of Arab or Berber origin, having regard to the particular difficulties and suffering they had endured. France had been justified in considering it legitimate to specifically recognise the self-sacrifice and suffering of former auxiliaries of Arab or Berber origin. Noting also that the recognition allowance was only one of the means by which France had recognised the self-sacrifice of former auxiliaries and the suffering they had endured, and having regard to the margin of appreciation available to the French authorities in that connection, it was not disproportionate to provide for an allowance reserved for former auxiliaries of Arab or Berber origin for the purposes of achieving that aim. The difference of treatment in question could not therefore be considered to lack objective and reasonable justification.

In February 2011 the Constitutional Council had declared part of the legislation in question contrary to the Constitution. Accordingly, as the Conseil d’État had observed in its decisions of March 2013, the restriction on the benefit of the allowance to former auxiliaries who had had local-law civil status had been repealed, with effect from the date of publication of the decision of the Constitutional Council, that is, in February 2011. However, the Constitutional Council’s decision and the consequences of it for the future did not in any way alter the Court’s conclusion, which concerned a situation that had been assessed prior to that decision.

Conclusion: no violation (unanimously).

 

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