CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juin 2020

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font-size:9pt } .sD6DE1560 { font-family:Arial; font-size:9pt; font-style:italic } .sC36A6361 { font-family:Arial; color:#000000 } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .sB217F55E { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:9pt } .s391E78BA { font-family:Arial; background-color:#ffffff }     FOURTH SECTION CASE OF POPOVIĆ AND OTHERS v. SERBIA (Applications nos. 26944/13 and 3 others – see appended list)     JUDGMENT   Art 14 + Art 1 P 1 • Discrimination • Alleged discrimination in provision of disability benefits to civilian as opposed to military beneficiaries • Impugned difference in treatment having an objective and reasonable justification • Legislator’s choice based on relevant and sufficient grounds     STRASBOURG 30 June 2020     FINAL   16/11/2020       This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Popović and Others v. Serbia, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Jon Fridrik Kjølbro, President,   Faris Vehabović,   Branko Lubarda,   Stéphanie Mourou-Vikström,   Georges Ravarani,   Jolien Schukking,   Péter Paczolay, judges, and Andrea Tamietti, Section Registrar, Having regard to: the applications (nos.   26944/13, 14616/16, 14619/16 and 22233/16) against Serbia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by 4 Serbian nationals, Mr Dejan Popović (“the first applicant”), Mr Josip Vlček (“the second applicant”), Mr Miroslav Homa (“the third applicant”) and Mr Zvonko Nikolić (“the fourth applicant”), on the various dates indicated in the appended table; the decision to give notice of the applications to the Serbian Government (“the Government”); the parties’ observations; Having deliberated in private on 14   January, 11 February, 12 May and 26   May 2020, Delivers the following judgment, which was adopted on that last-mentioned date: INTRODUCTION 1.     The applications concern alleged discrimination by the respondent State, based on the relevant domestic legislation, in the provision of benefits to disabled civilians ( civilni invalidi ) compared to disabled war veterans ( vojni invalidi ) in situations involving the same paraplegic disability. THE FACTS 2.     A list of the applicants is set out in the appendix, as are the applicants’ personal details, the dates of introduction of their applications before the Court and the information regarding their legal counsel, respectively. 3.     The Government were initially represented by their acting Agent and State Attorney, Ms Olivera Stanimirović. The Government were subsequently represented by their current Agent, Ms Zorana Jadrijević Mladar. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant (Mr Dejan Popović, application no.   26944/13) 5.     On 10 July 2005 the applicant fell from a height of approximately five metres and sustained a paraplegic disability which left him unable to use his legs and reliant on a wheelchair. 6 .     In 2006 the applicant was diagnosed by the relevant authorities as being 100% disabled, and was then granted an assisted living allowance followed by an increased assisted living allowance, that is, an allowance for necessary assistance from another person because of the seriousness of his injury ( dodatak za pomoć i negu drugog lica ). 7.     On 18 December 2008 the applicant brought a civil discrimination claim against the competent branch of the respondent State – the Ministry of Labour, Employment and Social Policy ( Ministarstvo rada, zapošljavanja i socijalne politike ) – seeking damages for mental anguish. The applicant maintained that in accordance with the relevant legislation, as a disabled civilian, he had been awarded fewer types of benefits and a much smaller amount in total than those classified as disabled war veterans, despite having exactly the same disability. In particular, the applicant submitted that unlike disabled war veterans, he had not been entitled to a personal disability allowance ( lična invalidnina ) or an orthopaedic allowance ( ortopedski dodatak ), and that even the increased assisted living allowance which he had been granted had been significantly lower than that granted to such individuals (see paragraphs 32 and 34-37 below). 8.     On 23 October 2009 the Novi Sad Municipal Court ( Opštinski sud u Novom Sadu ) ruled against the applicant. In so doing, it noted that disabled civilians had indeed been placed in a less favourable position ( stavljeni u nepovoljniji položaj ) than disabled war veterans, but this had been based on the applicable provisions of domestic law, and the relevant administrative authorities therefore had no choice but to apply them in the applicant’s case. 9 .     Following an appeal lodged by the applicant, on 17 March 2011 the Novi Sad Court of Appeal ( Apelacioni sud u Novom Sadu ) upheld the judgment rendered at first instance. In its reasoning, the court expressed the opinion that the mere fact that different categories of disabled persons were entitled to different benefits “did not amount to discrimination”, particularly in view of the State’s margin of appreciation in matters involving social policy. Furthermore, affirmative action or positive discrimination was aimed at achieving substantive equality for a particular group of persons who were in a fundamentally different situation to others, including disabled war veterans in the context of the present case. Lastly, the court considered that “discrimination could only occur in the application of the ... [relevant] ... legislation if the persons in question were treated differently from other persons in an identical or similar situation”. 10.     On 27 April 2011 the applicant lodged an appeal on points of law ( revizija ). 11.     On 25 August 2011 the Supreme Court of Cassation ( Vrhovni kasacioni sud ) dismissed that appeal and endorsed the reasoning of the lower courts. Furthermore, it held that the assessment of the “constitutionality” ( ustavnost ) of any piece of legislation was a matter within the competence of the Constitutional Court itself. 12.     On 8 December 2011 the applicant lodged a constitutional appeal ( ustavna žalba ) in which he: (i) restated the facts of his case; (ii)   complained in the same manner as before of being discriminated against; (iii) referred to various domestic provisions prohibiting discrimination; (iv) cited related international legal instruments, including Article 14 of the Convention and Protocol No. 12 thereto; and (v)   relied on the constitutional principles of equality and the direct applicability of human rights as guaranteed in ratified international treaties. 13 .     On 11 September 2012 the Constitutional Court ( Ustavni sud ) rejected that appeal, noting that the applicant had complained of a breach of two constitutional principles, not of a violation of specific constitutional rights, and that such principles were of an “accessory character”. Hence, in the absence of a finding of a violation of a specific constitutional right, no breach of a constitutional principle could be established. According to the information contained in the case-file, the applicant’s lawyer was served with that decision on 2 October 2012. The second, third and fourth applicants (Mr Josip Vlček, Mr   Miroslav Homa and Mr Zvonko Nikolić, applications nos. 14616/16, 14619/16 and 22233/16 respectively) 14.     On 9 May 1970 and 15 June 1986 the second and third applicants respectively were injured in traffic accidents, and on 30 August 1994 the fourth applicant was injured in a shooting incident. They all sustained paraplegic disabilities which left them unable to use their legs and reliant on wheelchairs. 15 .     Between 1987 and 2007 the applicants were all diagnosed by the relevant authorities as being 100% disabled, and they were then granted an assisted living allowance followed by an increased assisted living allowance. All the applicants also became active in promoting disability rights, as founders, leaders and/or members of a number of organisations dedicated to this cause. 16.     On 27 November 2007 the applicants brought a joint civil discrimination claim against the competent branch of the respondent State – the Ministry of Labour and Social Policy ( Ministarstvo rada i socijalne politike ) – seeking damages for mental anguish. The applicants maintained that in accordance with the relevant legislation, disabled civilians like them had been awarded fewer types of benefits and much smaller amounts in total than those classified as disabled war veterans, despite having exactly the same disability. In particular, unlike disabled war veterans, disabled civilians had not been entitled to a personal disability allowance or an orthopaedic allowance, while the assisted living allowance had also been significantly reduced (see paragraphs 32 and 34-37 below). 17.     On 1 October 2008 the Novi Sad Municipal Court ruled in favour of the applicants and ordered that they should each be paid 500,000 Serbian dinars (RSD), approximately 6,440 euros (EUR) at that time, on account of the mental anguish suffered as a consequence of the discrimination to which they had been subjected. Furthermore, the applicants were awarded costs in the total amount of RSD 186,000, approximately EUR 2,400 at that time. In its reasoning, the court focused on and accepted the fact that disabled civilians had indeed been placed in a less favourable position than disabled war veterans with regard to the assisted living allowance. Notably, despite having the same disability and the same needs in terms of their situation, disabled civilians were granted significantly lower amounts. 18.     Following an appeal by the respondent State, on 9 September 2010 the Novi Sad Court of Appeal overturned that judgment and ruled against the applicants. It held, as in the first applicant’s case (see paragraph 9 above), that the mere fact that different categories of disabled persons were entitled to different benefits “did not amount to discrimination”, particularly in view of the State’s margin of appreciation in matters involving social policy. Furthermore, positive discrimination was aimed at achieving substantive equality for a particular group which was in a fundamentally different situation to others – disabled war veterans in the context of the present case. The court noted, again just like in the first applicant’s case, that “discrimination could only occur in the application of the ... [relevant] ... legislation if the persons in question were treated differently from other persons in an identical or similar situation”, but on this occasion the court also referred to the case-law of the European Court of Human Rights. Lastly, the Court of Appeal expressed the opinion that groups of persons who were not covered by measures or acts of positive discrimination might not be deemed as having suffered a breach of their rights guaranteed by law solely because they were not covered by such measures or acts. 19.     Following an appeal on points of law lodged by the applicants, on 16   November 2011 the Supreme Court of Cassation upheld the ruling and the reasoning of the Court of Appeal. Furthermore, it held that the assessment of the constitutionality of any piece of legislation was a matter within the competence of the Constitutional Court itself. 20.     On 19 March 2012 the applicants lodged a constitutional appeal. In the appeal, they restated the facts of their case, complained of the alleged discrimination in question in the same manner in which they had previously complained before the other courts, and disagreed with the views expressed by the Court of Appeal and the Supreme Court of Cassation. 21 .     In its decision dispatched on 10 September 2015 the Constitutional Court concluded that the applicants had effectively relied on Articles 21, 23 and 32 of the Constitution, which contained the prohibition on discrimination, the right to respect for one’s human dignity and the right to a fair trial respectively. The court, however, then went on to reject their appeal in its entirety. In particular, the Constitutional Court held that: (i) it could not act as a court of fourth instance, in the absence of “manifest arbitrariness” in the lower courts’ reasoning; (ii)   the applicants’ arguments had at times been confusing and/or contradictory; and (iii) the applicants’ claims to the effect that different pieces of legislation were inconsistent with each other and/or unconstitutional should have been raised in separate constitutional proceedings focused on these issues alone ( u postupku za ocenu ustavnosti zakona ). According to the information contained in the case-files, the applicants’ lawyer was served with that decision on 11   September 2015. RELEVANT LEGAL FRAMEWORK Relevant domestic law The Constitution of the Republic of Serbia ( Ustav Republike Srbije ; published in the Official Gazette of the Republic of Serbia – OG RS – no. 98/06) 22 .     Article 21 provides that “everyone shall be equal before the Constitution and the law” and “shall have the right to equal legal protection, without discrimination”. All “direct or indirect discrimination based on any ground, particularly on grounds of race, sex, national or social origin, birth, religion, political or other opinion, property status, culture, language, age, mental or physical disability shall be prohibited”. Special measures which may be introduced in order to achieve full equality of individuals or group of individuals who are otherwise in a substantively unequal position compared to other citizens shall not be deemed as discrimination. 23.     Article 69 § 1 provides, inter alia , that persons and families in need are entitled to assistance based on the principles of social justice, humanism, and respect for human dignity. 24.     Article 69 § 4 provides, inter alia , that disabled persons, war veterans and victims of war are afforded special protection, in accordance with the law. 25 .     Article 168 § 2 provides, inter alia , that every natural person has the right to lodge an application ( inicijativa ) for the institution of proceedings regarding the assessment of the “constitutionality” ( ustavnost ) and/or “legality” ( zakonitost ) of a specific piece of legislation. 26 .     Article 170 provides that “a constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers that violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies [for the protection of those rights or freedoms] have already been exhausted or have not been prescribed”. The Constitutional Court Act ( Zakon o Ustavnom sudu ; published in OG RS no. 109/07) 27 .     Article 50, Article 53 § 1, Article 58 § 1, Article 61 and Article 62 of this Act provided, inter alia , that the Constitutional Court could institute proceedings for the assessment of the constitutionality and/or legality of a piece of legislation of its own motion, providing that two thirds of its judges decided to do so. When, however, an application for the assessment of the constitutionality and/or legality of a piece of legislation was lodged by a natural person, it would be up to the Constitutional Court itself to rule as to whether formal proceedings would be brought. If it decided to do so, a formal decision to this effect would be rendered. If proceedings were brought and a breach of the Constitution or a ratified international treaty was established, the impugned legislation, or certain provisions thereof, would cease to be in force as of the date of publication of the Constitutional Court’s decision in the Official Gazette of the Republic of Serbia. Anyone whose rights had been violated by an individual decision based on the application of that legislation was entitled, within six months of the Constitutional Court’s decision being published, to ask the relevant authorities to amend any such decision. In the alternative, the Constitutional Court could decide to order other measures or award compensation to the aggrieved parties if it considered that effective redress could not otherwise be secured. The Amendments to the Constitutional Court Act adopted in 2011 ( Zakon o izmenama i dopunama Zakona o Ustavnom sudu ; published in OG RS no. 99/11) 28 .     Article 50, Article 53 § 1, Article 58 § 1, Article 61 and Article 62 of the Constitutional Court Act, as summarised above, remained, in so far as relevant, substantively unaffected by the adoption of the amendments to this Act in 2011. 29 .     The Constitutional Court Act was subsequently again amended in 2013 and 2015. The 1991 Social Welfare Act ( Zakon o socijalnoj zaštiti i obezbeđivanju socijalne sigurnosti građana , published in OG RS nos. 36/91, 79/91, 33/93, 53/93, 67/93, 46/94, 48/94, 52/96, 29/01, 84/04, 101/05 and 115/05) 30 .     Article 9 provided, inter alia , that persons who lacked the means to support themselves were, depending on the circumstances, entitled to one or more of the following benefits: (i) a basic monthly social security allowance; (ii) a monthly assisted living allowance; (iii) work-related training services; (iv)   home assistance, family placement and institutional care services; (v)   general social care services; and (vi) a benefit consisting of a one-off payment, in situations of particular urgency. 31.     Articles 10 and 11 provided, inter alia , that individuals who required social assistance were entitled, under the further conditions set out in the Act itself, to a basic monthly social security allowance ( pravo na materijalno obezbeđenje ) equating to 16% of the average salary, adjusted according to the cost-of-living index on a monthly basis. 32 .     Articles 23, 25 and 25 (a) provided, inter alia , that an assisted living allowance could be granted to an individual in need of another person’s help because of the seriousness of his or her injury. An increased assisted living allowance, for persons classified as being 100% disabled, amounted to 70% of the average net salary, which sum was subject to a cost-of-living adjustment twice a year. 33 .     This Act was repealed by the 2011 Social Welfare Act ( Zakon o socijalnoj zaštiti , published in OG RS no. 24/11) in April 2011. The Veterans’ Entitlements Act ( Zakon o osnovnim pravima boraca, vojnih invalida i porodica palih boraca , published in the Official Gazette of the Federal Republic of Yugoslavia nos. 24/98, 29/98, 25/00 and in OG RS no. 101/05) 34 .     Article 21 provided, inter alia , that disabled war veterans were entitled to the following monthly allowances: (i) a personal disability allowance; (ii) an assisted living allowance; (iii) an orthopaedic allowance; and (iv) an unemployment allowance. The same provisions then went on to list a number of other entitlements related to veterans’ healthcare and nutritional and mobility needs, and the provision of orthopaedic products. 35.     With respect to veterans who were 100% disabled, Articles 28 and 29 provided that their personal disability allowance was equal to the average net salary, increased by 80%. 36.     Articles 39 and 40 provided that veterans who were 100% disabled were also entitled to an assisted living allowance in the same amount. 37 .     Articles 43 and 44 provided, inter alia , that veterans who were 100% disabled and who had suffered a serious injury to their limbs were entitled to an orthopaedic allowance amounting to 29% of the average net salary increased by 80%. 38 .     This Act was subsequently amended in 2009 and 2018 and was ultimately repealed by the Veterans’ and War-related Entitlements Act ( Zakon o pravima boraca, vojnih invalida, civilnih invalida rata i članova njihovih porodica , published in OG RS no. 18/20) in March 2020. Article 2 of the 2020 Act proclaims, inter alia , that the benefits granted to veterans in this legislation are based also on “the principle of national recognition”. Relevant international AND EUROPEAN materials United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Serbia, CRPD/C/SRB/CO/1, 23 May 2016 39 .     The relevant sections of this document read as follows: Equality and non-discrimination (art.   5) “9. The Committee is concerned that anti-discrimination legislation is not systematically applied, that legislation lacks a clear definition of disability-based discrimination and does not address all forms of discrimination. It is further concerned that neither the concept of reasonable accommodation nor recognition that the denial of such accommodation is a form of discrimination are explicitly included in anti-discrimination laws. The Committee also expresses its concern that little information has been provided on sanctions available for contravening the rights of persons with disabilities. 10. The Committee recommends that the State party review its legislative framework to incorporate a definition of disability-based discrimination that explicitly deals with all forms of discrimination and the concept of reasonable accommodation and ensure that the relevant laws and regulations define the denial of reasonable accommodation as a form of discrimination on grounds of disability. The Committee also recommends that the State party introduce effective and proportional remedies, including dissuasive penalties. ” United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Croatia, CRPD/C/HRV/CO/1, 15 May 2015 40 .     The relevant sections of this document read as follows: Equality and non-discrimination (art. 5) “7. The Committee is concerned that, for the purposes of entitlement to social services and benefits, a distinction is made between different causes of impairments, such as war or accidents ... 8. The Committee recommends that disability-based services and benefits be made available to all persons with disabilities, irrespective of the cause of their impairment ... ” United Nations Committee on the Rights of Persons with Disabilities, Concluding observations on the initial report of Bosnia and Herzegovina, CRPD/C/BIH/CO/1, 2 May 2017 41 .     The relevant sections of this document read as follows: Equality and non-discrimination (art. 5) “10. The Committee is concerned at: ... (b) Different legal entitlements for persons with disabilities whose impairment is not a consequence of the war, in comparison with those for civilian victims of war and for war veterans with disabilities; ... 11. The Committee recommends that the State party: ... (b) Develop and apply harmonized criteria, assessment procedures and entitlements for assessing the degree of impairment for all persons with disabilities regardless of the cause of the impairment ...” The Explanatory Report to the European Convention on Social and Medical Assistance and Protocol thereto 42 .     Paragraph 7 of this report provides, inter alia , that the term “assistance” within the meaning of that Convention “does not cover ... benefits paid in respect of war injuries” and that such benefits “are generally governed by different laws to those governing social security and social assistance benefits”. THE LAW JOINDER OF THE APPLICATIONS 43.     Given the similar factual and legal background of the present applications, the Court decides to order their joinder pursuant to Rule 42 §   1 of the Rules of Court. ALLEGED VIOLATIONs OF ARTICLE 14 of the convention, read in conjunction with article 1 of protocol no.   1, and OF article 1 of protocol no. 12 44.     The applicants complained under Article 14 of the Convention and/or Article 1 of Protocol No. 12 to the Convention of being discriminated against by the respondent State in the provision of disability benefits in accordance with the relevant domestic legislation. Specifically, they complained that, having been classified as disabled civilians, they had, compared to disabled war veterans with the same disability, been granted a much smaller assisted living allowance and had also not been entitled to a personal disability allowance or an orthopaedic allowance. 45.     These provisions read as follows: Article 14 “The enjoyment of the rights and freedoms set forth in [the] 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.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 1 of Protocol No. 12 “1.     The enjoyment of any right set forth by law 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. 2.     No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” Admissibility The Court’s jurisdiction ratione materiae 46.     As the question of applicability is an issue of the Court’s jurisdiction ratione materiae , the general rule of dealing with applications should be respected and the relevant analysis should be carried out at the admissibility stage unless there is a particular reason to join this question to the merits. No such particular reason exists in the present case and the issue of the applicability of Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, falls therefore to be examined at the admissibility stage (see, mutatis mutandis , Denisov v. Ukraine [GC], no.   76639/11, § 93, 25 September 2018). 47.     The Government, in the present case, argued that the applicants had failed to prove that they had indeed been entitled to the benefits provided for in the Social Welfare Act, notably the increased assisted living allowance which required that they be classified as persons who were 100% disabled. Neither Article   1 of Protocol No. 1 nor Article 14 of the Convention was therefore applicable. 48.     The applicants contended that social security allowances were pecuniary rights for the purposes of Article 1 of Protocol No. 1, which meant that this provision, and by implication Article 14 of the Convention, were both applicable in the present case. 49.     The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols thereto. Article 14 has no independent existence, since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded thereby. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them. The prohibition of discrimination enshrined in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and the Protocols thereto require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Convention Article, for which the State has voluntarily decided to provide (see, among many other authorities, Molla Sali v. Greece [GC], no. 20452/14, §   123, 19 December 2018). 50.     The Court notes that the complaints in question concerned the applicants’ own formally recognised disability entitlements and the entitlements granted to disabled war veterans (see paragraphs 6, 15, 30-38 above). Also, the applicants were in fact all officially classified as being 100% disabled, which is why they were entitled to the increased assisted living allowance (see paragraphs 6, 15 and 32 above). Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, is therefore clearly applicable to the present case (see, mutatis mutandis , Willis v. United Kingdom , no. 36042/97, § 36, ECHR 2002 ‑ IV, and Koua Poirrez v. France , no. 40892/98, §§ 36-42, ECHR 2003 ‑ X). The Government’s objection in this regard must therefore be rejected. 51.     Lastly, the Court would note in this connection that the notion of discrimination has been interpreted consistently in the Court’s case-law with regard to Article 14 of the Convention. The same term, discrimination, is also used in Article 1 of Protocol No. 12. Notwithstanding the difference in scope between those provisions – specifically, Article 1 of Protocol No. 12 extending the scope of protection to “any right set forth by law” – the meaning of discrimination in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, §   55, ECHR 2009, and Baralija v. Bosnia and Herzegovina , no. 30100/18, § 45, 29 October 2019). 52.     In view of the above, having already held that Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1, is applicable to the present case, and it being the master of characterisation to be given in law to the facts of the cases before it (see, among many other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114 and 126, 20 March 2018), the Court shall proceed to examine the applicants’ discrimination complaints under the said provisions only, there being no need for an additional assessment thereof under Article   1 of Protocol No.   12. The Government’s objections regarding non-exhaustion of domestic remedies and failure to respect the six-month time-limit (a)    The Government’s objections 53 .     The Government submitted that the alleged violations concerned legislation which the applicants deemed to be contrary to the Convention. The applicants should therefore have lodged an application for the assessment of the constitutionality of the legislation in question under Article 168 § 2 of the Constitution, rather than a constitutional appeal under Article 170 thereof, the latter having been specifically designed to deal with complaints addressed against “individual decisions or actions” amounting to a violation of the Constitution (see paragraphs 25-28 above). Indeed, in the Government’s view, the applicants could also, if needed, have made use of the redress envisaged in Article 61 and Article 62 of the Constitutional Court Act (see paragraphs 27 and 28 above). In support of their contentions the Government provided domestic case-law and relied, mutatis mutandis , on the Court’s decisions adopted in two cases brought against Latvia ( Grišankova and Grišankovs v. Latvia (dec.), no. 36117/02, ECHR 2003 ‑ II (extracts), and Liepājnieks v. Latvia (dec.), no. 37586/06, 2   November 2010) and on its judgment in Mirković and Others v. Serbia (nos. 27471/15 and 12 others, §§ 91, 92,   98-101 and 108-128, 26   June 2018). Finally, in addition or in the alternative, the Government argued that in the very specific circumstances of the present case, and for the above reasons, the constitutional appeal under Article 170 of the Constitution could not be deemed an effective domestic remedy, meaning that the applicants should have lodged their applications with the Court several years earlier.   In view of the foregoing, the Government maintained that the applicants’ complaints should be rejected, either on the basis of non-exhaustion or for having been lodged with the Court after the six-month time-limit had already expired. (b)    The applicants’ reply 54.     The applicants argued that an application for the assessment of the constitutionality of the legislation in question, referred to by the Government, would clearly have been an ineffective remedy; this was best evidenced by the fact that anyone could have lodged such an application, not only the persons directly concerned, and that ultimately it was always up to the Constitutional Court whether to act upon it (see paragraphs 25, 27 and 28 above). In contrast, the constitutional appeal (see paragraph 26 above), which the applicants had in fact lodged, had long been recognised by the Court as an effective domestic remedy in respect of all complaints alleging human rights abuse. The applicants therefore maintained that having made use of this avenue of redress, and having also lodged their applications with the Court within six months of receiving the Constitutional Court’s decisions rendered in their respective cases, they had complied with both the exhaustion requirement and the six-month time-limit within the meaning of Article 35 § 1 of the Convention. (c)    The Court’s assessment 55.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring a case against a State before the Court to firstly use the remedies provided by the national legal system. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right domestically (see Vučković and Others v.   Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25   March 2014). 56.     As regards legal systems which provide constitutional protection for fundamental human rights and freedoms, such as the one in Serbia, it is incumbent on the aggrieved individual to test the extent of that protection (see, inter alia , Vinčić and Others v. Serbia , nos. 44698/06 and 30 others, §   51, 1 December 2009). 57.     An applicant’s failure to make use of an available domestic remedy or to make proper use of it (that is to say by bringing a complaint at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law) will result in an application being declared inadmissible before this Court (see, for example, Vučković , cited above, §   72). 58 .     The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria , 16 July 1971, § 89, Series A no. 13, and Akdivar and Others v. Turkey , 16 September 1996, § 69, Reports of Judgments and Decisions 1996 ‑ IV). For example, where more than one potentially effective remedy is available, the applicant is only required to use one remedy of his or her own choosing (see, among many other authorities, Micallef v. Malta [GC], no.   17056/06, § 58, ECHR 2009; Nada v. Switzerland [GC], no.   10593/08, §   142, ECHR 2012; Göthlin v. Sweden , no. 8307/11, § 45, 16   October 2014; and O’Keeffe v. Ireland [GC], no.   35810/09, §§ 109-111, ECHR 2014 (extracts)). 59.     Concerning the timeliness issue, the Court reiterates that the object of the six-month time-limit under Article   35 § 1 is to promote legal certainty, by ensuring that cases raising issues under the Convention are dealt with in a reasonable time and that past decisions are not continually open to challenge. It marks out the temporal limits of supervision carried out by the Court and signals to both individuals and State authorities the period beyond which such supervision is no longer possible (see, amongst other authorities, Walker v. the United Kingdom (dec.), no. 34979/97, ECHR 2000 ‑ I).     As a rule, an application must be introduced within six months of the date of the “final decision” in the chain of domestic remedies which have to be exhausted (see, mutatis mutandis , Nelson v. the United Kingdom , no. 74961/01, § 12, 1   April 2008). 60.     Turning to the present case and in view of the above, the Court recalls that it has repeatedly held that a constitutional appeal under Article   170 of the Constitution (see paragraph 26 above) should, in principle, be considered an effective domestic remedy within the meaning of Article   35 §   1 of the Convention in respect of all applications introduced against Serbia after 7   August   2008 (see Vučković , cited above, §   84, and Vinčić , cited above, §   51). It sees no reason to depart from this practice in the present case, particularly since having already made use of the relevant civil remedies and of the constitutional appeal procedure, the latter in accordance with Article 170 of the Constitution, the applicants could not have been required to pursue yet another avenue of potential redress before the very same court (see paragraph 58 above). In any event, the Constitutional Court in the present case could itself have instituted proceedings for the assessment of the constitutionality and/or legality of the legislation in question of its own motion, once it had learnt of the issue and had two thirds of its judges decided to do so (see paragraphs 27 and 28 above). 61.     The present case, in the Court’s view, is also very different to the case-law referred to by the Government in their observations (see paragraph   53 above). In particular, in the above-cited Grišankova and Grišankovs case and the above-cited Liepājnieks case (see §§ 12-24 and 71-76), inter alia , the applicants never brought their complaints to the Constitutional Court and, moreover, this court itself, unlike in Serbia, only had jurisdiction to review the constitutionality of legal provisions and their compatibility with provisions of superior legal force. Also, in the Mirković and Others judgment, cited above (see §§ 91, 92, 98-101 and 108-128), the situation was different altogether, involving, inter alia , a possible reopening of civil proceedings based on a Constitutional Court decision adopted in respect of a third person and, additionally, the applicants’ separate obligation to properly raise the substance of their claims in their constitutional appeals and to adequately substantiate them. 62.     In those circumstances, the Court considers that the Government’s objection to the effect that the applicants failed to exhaust domestic remedies, within the meaning of Article 35 § 1 of the Convention, must be rejected. The Court would further note that the first applicant’s lawyer and the lawyer of the remaining three applicants were served with the decisions of the Constitutional Court in their cases on 2 October 2012 and 11   September 2015 respectively (see paragraphs 13 and 21, in fine , above) and that the applicants then went on to lodge their applications with the Court on 1 April 2013 and 9   March 2016 respectively (see the table appended to the present judgment). It follows that the applicants complied with the six-month requirement and that the Government’s objection in this respect must therefore likewise be rejected. As regards other grounds of inadmissibility 63.     The Court notes that the applicants’ complaints are also not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. Merits Submissions by the parties (a)    The applicants 64 .     The applicants maintained that the total amount of their benefits, given their civilian status, was up to five times lower than the amount granted to disabled war veterans who suffered from the same disability and had exactly the same need of social assistance. 65.     Furthermore, social security cover with respect to both groups of disabled persons was rooted in the principle of solidarity, not tort-related liability. In fact, the latter entailed the notion of full payment for damage sustained, which was something quite different to the idea of providing social assistance to persons in need. The applicants also submitted that under Serbian law, both disabled civilians and disabled war veterans could sue in tort or in contract in exactly the same way. 66.     In any event, according to the applicants, the Government had conceded that disabled civilians such as themselves had indeed been treated differently from disabled war veterans, but had effectively relied on the idea of positive discrimination to justify this situation. However, the concept of affirmative action or positive discrimination always rested on the idea of achieving substantive equality between a particular disadvantaged group and the rest of society, not unjustifiably favouring one disadvantaged group over another. 67.     The applicants lastly pleaded that the scarcity of financial resources, referred to by the Government, was not a valid argument for the differential treatment in question. Where resources were limited, Serbia not being an exception in this regard, it was through the principles of fairness and proportionality that the rights of interested groups had to be secured. (b)    The Government 68 .     The Government maintained that there had been no violation of Article 14 of the Convention, taken together with Article 1 of Protocol No.   1, since disabled civilians and disabled war veterans were two groups of persons in different situations. In particular, the way in which they sustained their injuries was very different, and so was the underlying reason for the respondent State’s obligation to provide them with benefits varying in scope and/or amount. 69 .     Furthermore, the Government argued that disabled civilians were entitled to a plethora of benefits provided for in the respondent State’s legislation – in the Social Welfare Act itself (see paragraphs 30-32 above) or elsewhere. They also had the right to compensation, by means of litigation or otherwise, from a liable third party, an employer and/or an insurance company, for any physical or mental injuries sustained as a result of wrongful acts. In these circumstances, the Government maintained that the extent of the difference in treatment between disabled civilians and disabled war veterans was in fact not as great as the applicants had alleged. 70.     The Government lastly considered that it was vital to point out that, according to the