European Court Holds France's Payment of a Supplementary Allowance to Algerian War Soldiers of Arab or Berber Origin Was Justified

London, 5 February 2014

On 23 January 2014, the European Court of Human Rights (ECtHR), in the case of Montoya v France, found that the provision of a supplementary monetary award to Arab and Berber former auxiliary fighters during the Algerian war, but not those of European origin, was not a violation of the right to non-discrimination under Article 14 of the European Convention on Human Rights and Fundamental Freedoms (the Convention) as the differential treatment of the particular group could be justified. The case was brought by Mr Montoya, a member of the auxiliary corps of the French army on the ground during the Algerian war. After Algeria’s independence in 1962, Mr Montoya, an Algeria-born French national of European origin, was repatriated to France. During the repatriation proceedings, he was provided with a financial relocation package and was awarded the status of war veteran. However, unlike former auxiliaries of Arab or Berber origin, Mr Montoya was not entitled to a “supplementary allowance” from the French government. Mr Montoya challenged this before the French courts without success and so took his case to the ECtHR in October 2010.

Mr Montoya claimed that the refusal to provide him with the supplementary allowance violated his rights to property (Article 1 Protocol 1 of the Convention) and non-discrimination (Article 14). He argued that, as a former auxiliary member in the same faction, and as a French national born in Algeria to parents born and settled in Algeria, he had suffered similar prejudices and difficulties upon repatriation to those suffered by Arab or Berber auxiliaries. He claimed these difficulties included suffering the effects of being uprooted and finding integration into French society difficult because of the ingrained prejudices of the local community. The government argued that its differentiation between Arab and Berber auxiliaries and others was justified because the allowance awarded to the Arab and Berber auxiliaries aimed to recognise the additional difficulties suffered by this group on account of their ethnicity, as well as to recognise the loyalty they showed by choosing to fight alongside the French military, despite the risk of being viewed as traitors by their communities.

Noting that the right to property under Article 1 Protocol 1 encompassed social security payments and holding the case was admissible, the Court held that:

 

  • France had a wide margin of appreciation in determining whether differential treatment on matters relating to social and economic provisions was appropriate.
  • It was reasonable for France to find an objective difference between the two groups of auxiliaries based on ethnicity, given the complex historical context of the conflict and given the impact ethnicity had on the group’s ability to relocate to France easily after the war. 
  • Noting the government’s reasons for reserving this supplementary award to the particular category of persons, and the margin of appreciation enjoyed by states, the differential treatment in the case was justified as a proportionate means of achieving a legitimate aim.

The Equal Rights Trust (ERT) read this judgment of the Court with interest. ERT welcomes the Court’s acknowledgement that Article 14 permits special treatment for particularly disadvantaged groups in certain situations. ERT is encouraged by the apparent trend towards the Court applying a more substantive equality analysis to its interpretation of Article 14. However, ERT notes that the case also highlights the difficulty faced by the Court in striking the right balance when considering the question of justification of differential treatment. The Court chose not to address this question head on and thus did not create new jurisprudence on testing the justification of treating differently groups of different ethnic origin, but deferred to the margin of appreciation, in particular when socio-economic benefits are at issue.

To read ERT's case summary click here

To read the Court's judgment (in French) click here

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