Praxis
Personal Status
Law on Citizenship of the Republic of Serbia
New Instruction for Acting of Social Welfare Centres in Relation to Registration of Residence at SWC Address
On 19 June 2013, the Ministry of Labour, Employment and Social Policy issued a new instruction for acting of social welfare centres in relation to registration of permanent residence at SWC address for persons who do not fulfil other legal bases of housing, since the previous instruction had not offered the solution that citizens could benefit from.
The new instruction offers a more efficient and more rational solution for the citizens. However, the Law on Permanent and Temporary Residence (adopted in November 2011) cannot be still implemented consistently because the Ministry of Interior has not yet issued the instruction for acting of police departments and stations in procedures for determination of permanent residence at the address of social welfare centres.
See:Instruction of the Ministry of Labour, Employment and Social Policy for Acting of Social Welfare Centres in Relation to Registration of Residence at SWC Address
Praxis at Roma Social Inclusion Seminar Held in Belgrade
On 18 June, the Government of the Republic of Serbia and the European Commission organized in Belgrade the seminar on inclusion of Roma in the Republic of Serbia. The seminar was held as the continuation of the active application of the operative conclusions from 2011 with an aim to present taken activities and achieved progress as well as remaining problems, and also plans for further improvement of the position of Roma.
The discussed subjects referred to registration in birth registry books and access to personal documents, measures related to education, employment, social protection and health care, exercise of the right to adequate housing, freedom of movement and readmission.
Within the first session that referred to registration in birth registry books and access to personal documents, the Executive Director of Praxis talked about the estimates of needs for subsequent birth registration, application of the legal framework and examples from practice. Also, in the course of discussion about the exercise of the right to adequate housing and health protection, by pointing at the most significant problems from practice, Praxis representatives gave its contributions to better understanding of the position of Roma and obstacles they daily face when accessing their rights.
The seminar was also attended by the representatives of the National Assembly, Government of the Republic of Serbia, Roma National Minority Council, Ombudsperson, Commissioner for Protection of Equality, cities and local self-governments, and also by the representatives of the international and civil society organizations. For the needs of the seminar, Praxis elaborated two documents on the situation in the area of exercise of the right to registration in birth registry books, the right to citizenship and the right to adequate housing.
Download the documents:
Situation in the area of exercise of the right to registration in birth registry books and the right to citizenship
Situation in the area of exercise of the right to adequate housing
Presentations of the participants:
Ministry of Justice, Science and Technological Development
Ministry of Construction and Urbanism
Ministry of Labour, Employment and Social Policy
Commissariat for Refugees and Migrations of the Republic of Serbia – Readmission
Commissariat for Refugees and Migrations of the Republic of Serbia – Housing
UNICEF
Roma Issues Coordinator in the City Administration of the City of Sombor
Bibija
Romanipen
Group 484 - Challenges of Forced Migrations in Serbia: a Second Look at the Issue of Asylum and Readmission
Registration of Permanent Residence at the Address of SWC in Vranje – good practice
Registration of permanent residence for S.F. was performed at the address of the Social Welfare Centre in Vranje, following which the Police Department in Vranje issued ID card for the client. Despite the obstacles stemming from imprecision and non-compliance of certain provisions of the by-laws, in deciding, the competent officers primarily had in mind the interest of the party and did not let the strict formal conditions lead to deprivation of access to rights of citizens.
This is one of good practice examples and an example of proceeding of competent services and state bodies that is in accordance with the law and that primarily takes into consideration the interests of citizens. Unfortunately, such practice has not been established everywhere yet, not only because of shortcomings of the by-laws related to the possibility of registration of residence at the address of social welfare centres, but also because of unwillingness of the employees in competent state services to find solutions in their work, based on the existing laws and other regulations, that would protect the rights and interests of individuals, especially members of minorities and marginalized groups
Solution in Prescribing Special Legal Regulations for Elimination of the Problem of Legally Invisible Persons
On 11 March 2013, the Constitutional Court reached the decision on rejecting the initiative for the initiation of procedure for assessment of constitutionality and legality of the provisions of Articles 6, 23, 25, 26, 45, 50, and 89 of the Law on Registry Books and incompliance with generally accepted rules of the international law and ratified international treaties, previously submitted by the Centre for Advanced Legal Studies and Praxis. The initiative was submitted for the purpose of assessment of constitutionality of the Law on Registry Books – the provisions relating to subsequent birth registration in birth registry books, as we believed that the disputable provisions put legally invisible persons into unequal position and that conditions for subsequent registration of birth were such that many members of Roma population could not fulfill. Therefore, it was pointed that the provisions of the Law on Registry Books regulating the procedure of subsequent birth registration represented direct discrimination and it was required to determine that stated provisions were not in accordance with the Article 21 of the Constitution which prohibits any discrimination and guarantees equal protection before the law to all.
Among others, the Constitutional Court stated that “(elimination (…) of the problem of so-called “legally invisible persons” is legally (…) possible only by prescribing special legal rules for these categories of persons which would thus eliminate every legal and lawful possibility of their indirect discrimination in the legal system of the Republic of Serbia”. The explanation of the decision further states that the legislator has done the above in the meantime and, having considered the problems of legally invisible persons, adopted the Law on the Amendments to the Law on Non-Contentious Procedure (as of 31 August 2012), and prescribed special rules for determination of time and place of birth of persons who cannot register in birth registry books on the basis of the law regulating the administering of registry books. As the mentioned law had already been adopted at the time of adoption of decision of the Constitutional Court on the occasion of the initiative, the Court did not further go into assessment of regime of subsequent registration in birth registry books that was in force before the adoption of the Law on Amendments to the Law on Non-Contentious Procedure or the assessment of compliance of that regime with the Article 21 of the Constitution.
For more information see: Constitutional Court Sees the Solution in Prescribing Special Legal Regulations for Elimination of the Problem of Legally Invisible Persons
Primary School Djura Jaksic from Kikinda Discriminated against Roma pupils
In the procedure initiated upon Praxis complaint, the Commissioner for Protection of Equality established that the Primary School “Djura Jaksic” from Kikinda discriminated against pupils of Roma nationality by removing the Romany language with elements of national culture from the school curriculum for the 2012/2013 school year.
In its opinion, the Commissioner for Protection of Equality established that, according to evidence that nineteen Roma children were interested in learning Romany language with elements of national culture, the school had omitted to conduct a poll, especially bearing in mind that this subject had been taught as an optional subject in this school in previous years. Furthermore, the Commissioner stated that the education of Roma children was a particularly important question which should be given the greatest attention, and that the school should have been particularly careful when deciding to remove this subject from the school curriculum.
The failure of the school to undertake all necessary measures in order to enable pupils to learn Romany language with elements of national culture as an optional subject in the 2012/2013 school year, represents indirect discrimination prohibited by the Article 7 and in relation to the Articles 19 and 24 of the Law on the Prohibition of Discrimination.
For more information see: Primary School “Djura Jaksic” from Kikinda Discriminated against Roma Pupils in Access to Right to Education
Unconstitutional Provisions of the Article 85, Paragraph 1 in the part stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494-505 of the Civil Procedure Law
By the decision that came into force on 5 June 2013, the Constitutional Court established that the provisions of the Article 85, Paragraph 1 in the part stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law were unconstitutional.
In the explanation of the decision establishing unconstitutionality of the provision of the Article 85 Paragraph 1 in the part stating “who must be the lawyer”, the Constitutional Court has stated that the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe do not explicitly mention the right to access to court, but that this right is inseparable from the guarantees provided in the Article 6, Paragraph 1 of the European Convention on Human Rights. Besides, in the explanation, the Constitutional Court has also stated that prescribing the obligation that a party must be represented exclusively by a Bar-admitted lawyer poses the obligation on the State, on the other hand, to secure a system in which one can effectively enjoy the right to legal aid. Contrary to that, and since the Law on Free Legal Aid from the Article 67 of the Constitution has not been adopted, the Court has established that the obligation of representation by a Bar-admitted lawyer in civil proceedings represents a form of indirect discrimination of citizens on the grounds of their financial position. The Constitutional Court has further established that limitations from the Article 85, Paragraph 1 of the Civil Procedure Law in the part stating “who must be a lawyer” is not legitimate, proportional or necessary. Thus, it is not in accordance with the Article 20 of the Constitution or the right to a fair trial from the Article 32 of the Constitution. It further does not comply with the Article 36 Paragraph 1 of the Constitution which envisages equal protection of rights before courts, and represents a form of indirect discrimination on the grounds of financial position which is prohibited by the Article 21 of the Constitution. Due to interrelatedness of Paragraphs 1 and 2 of the Article 85, the Constitutional Court has established that the Paragraph 2 of the same Article of the Civil Procedure Law is unconstitutional.
In the part of the decision referring to the chapter of the Civil Procedure Law that regulated the proceedings for protection of collective rights and interests, the Constitutional Court has found that the provisions of the Articles 494 through 505 of the Law do not prescribe the situations in which a civil proceeding has a character of a dispute on collective rights that would be conducted according to the rules of a separate procedure prescribed in this chapter of the Law. Furthermore, the Court has explained its decision by the fact that, through the provisions of the Articles 494 through 505, the Law did neither establish the content of the phenomenon of collective rights and interests nor referred to the laws that regulate these rights; that it had not removed vagueness and imprecision of proceeding so that it could be established with certainty what collective rights and interests are protected through a separate proceeding prescribed. What’s more, the Constitutional Court has established that these provisions do not provide for the possibility to determine their true meaning and content with certainty. Bearing this in mind, the Constitutional Court is of the opinion that these provisions are constitutionally disputable in terms of their clarity, availability and acceptability, and, thus, not in compliance with the Constitution and ratified international treaty.
For more information, see: Constitutional Court Established that the Provisions of the Article 85, Paragraph 1 Stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law are not in Accordance with the Constitution
Constitutional Court Established that the Provisions of the Article 85, Paragraph 1 Stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law are not in Accordance with the Constitution
At the session held on 23 May 2013, the Constitutional Court established that the provisions of the Article 85, Paragraph 1 in the part stating “who must be the lawyer”, Article 85 Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law were unconstitutional.
The decision of the Constitutional Court came into force on 5 June 2013 and from that day, the parties in a civil procedure may choose any person to represent them, not exclusively attorneys-at-law as it had been prescribed before the decision of the Constitutional Court. Besides, the decision of the Constitutional Court also found the Article 85, Paragraph 2 of the same Law to be unconstitutional, as well as the whole chapter of the Law that regulated the proceedings for protection of collective rights and interests.
As a reminder, at the beginning of 2012, the Coalition for Access to Justice submitted an initiative for assessing the constitutionality of certain provisions of the Law on Civil Procedure. In January 2013 the Constitutional Court brought a decision on initiating a procedure for establishing unconstitutionality of the provisions of Article 85, Paragraphs 1 and 2 and Articles 494 through 505 of the Civil Procedure Law and their non-compliance with the ratified international treaty. On the other hand, the same decision of the Constitutional Court has rejected the initiative in the part relating to Article 170 and 193 of the Law.
In the explanation of the decision establishing unconstitutionality of the provision of the Article 85 Paragraph 1 in the part stating “who must be the lawyer”, the Constitutional Court has stated that the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe do not explicitly mention the right to access to court, but that this right is inseparable from the guarantees provided in the Article 6, Paragraph 1 of the European Convention on Human Rights.
Besides, in the explanation, the Constitutional Court also stated that prescribing the obligation that a party must be represented exclusively by a Bar-admitted lawyer poses the obligation on the State, on the other hand, to secure a system in which one can effectively enjoy the right to legal aid. Contrary to that, and since the Law on Free Legal Aid from the Article 67 of the Constitution has not been adopted, the Court has established that the obligation of representation by a Bar-admitted lawyer in civil proceedings represents a form of indirect discrimination of citizens on the grounds of their financial position.
Since the deprivation of the possibility of a free choice of a proxy, that is, legal conditioning of a party, who does not wish or for whatever reason cannot undertake actions on his/her own in the procedure until the final decision has been brought, to have a proxy who is a Bar-admitted lawyer, calls into question the equality of parties and limits the right to access to court and the right to legal aid, the Constitutional Court has established that limitations from the Article 85, Paragraph 1 of the Civil Procedure Law in the part stating “who must be a lawyer” is not legitimate, proportional or necessary. Thus, it is not in accordance with the Article 20 of the Constitution or the right to a fair trial from the Article 32 of the Constitution. It further does not comply with the Article 36 Paragraph 1 of the Constitution which envisages equal protection of rights before courts, and represents a form of indirect discrimination on the grounds of financial position which is prohibited by the Article 21 of the Constitution. Due to interrelatedness of Paragraphs 1 and 2 of the Article 85, the Constitutional Court has established that the Paragraph 2 of the same Article of the Civil Procedure Law is unconstitutional.
In the part of the decision referring to the chapter of the Civil Procedure Law that regulated the proceedings for protection of collective rights and interests, the Constitutional Court has found that the provisions of the Articles 494 through 505 of the Law do not prescribe the situations in which a civil proceeding has a character of a dispute on collective rights that would be conducted according to the rules of a separate procedure prescribed in this chapter of the Law. Furthermore, the Court has explained its decision by the fact that, through the provisions of the Articles 494 through 505, the Law did neither establish the content of the phenomenon of collective rights and interests nor referred to the laws that regulate these rights, nor removed vagueness and imprecision of proceeding so that it could certainly be established what collective rights and interests are protected through a separate proceeding prescribed. What’s more, the Constitutional Court has established that these provisions do not provide for the possibility to determine their true meaning and content with certainty. Bearing this in mind, the Constitutional Court is of the opinion that these provisions are constitutionally disputable in terms of their clarity, availability and acceptability, and, thus, not in compliance with the Constitution and ratified international treaty.
In order to consider a general act a law, not only formally but also in terms of its content, the Constitutional Court has once again stated that it is necessary that the law and its norms are sufficiently precise, clear and predictable so that those to whom the law refers may comply their behaviour to the law, so that they are not deprived of exercise of their guaranteed rights and legal interests because of unclear, imprecise or even missing norms. Taking all this into consideration, the Constitutional Court has established that provisions of the Articles 494 through 505 of the Civil Procedure Law are not in compliance with the Constitutions and ratified international treaty.
Coalition for Access to Justice:
Centre for Advanced Legal Studies
Civil Rights Defenders
CHRIS – the Network of Committees for Human Rights in Serbia (Human Rights Committee Nis, Human Rights Committee Valjevo, Human Rights Committee Negotin, Vojvodina Centre for Human Rights Novi Sad, Citizens' Forum Novi Pazar)
Humanitarian Law Centre
Youth Initiative for Human Rights
Independent Journalists' Association of Vojvodina
Sandzak Committee for Protection of Human Rights and Freedoms
Praxis
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