Legally Invisible Persons

Monday, 1 April 2013

Constitutional Court Sees the 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.

Specifically, in July 2011, Centre for Advanced Legal Studies and Praxis submitted the initiative for the assessment of constitutionality of the Law on Registry Books – provisions referring to subsequent birth registration in birth registry books to the Constitutional Court of Serbia, as they considered that 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 them. Therefore, it was pointed that provisions of the Law on Registry Books regulating the procedure of subsequent birth registration represented direct discrimination. In addition, 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 the same legal protection to all.

The Constitutional Court has assessed that there was no grounds for the initiation of the procedure and it rejected the initiative as unacceptable. The explanation of the decision of the Constitutional Court is based on the view that the impossibility of factual application of lawfully prescribed rules to certain categories of persons who, due to the existing living circumstances are not able to provide data necessary for birth registration, could not be eliminated by the end of the validity of disputed provisions of the Law on Registry Books based on the decision of the Constitutional Court, because the adoption of such decision would create legal vacuum. Instead, the Court said that “(elimination (…) of the problem of so-called “legally invisible persons” is, according to the court, legally (…) possible only by prescribing special legal rules for these categories of persons and 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 after considering the problems of legally invisible persons the legislator has acted in that way in the meantime and 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 the 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 regulation was already adopted at the time of adoption of decision of the Constitutional Court on the occasion of the initiative, the Court did not further consider the 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.

However, unlike the bodies which the submitters of the initiative addressed prior to the initiation of the procedure before the Constitutional Court, the Constitutional Court paid special special attention to factual inequality, that is the impossibility to factually apply the laws that are the same for all to certain categories of persons. Even though it determined that solution of the problem of legally invisible persons exceeds the limits of its jurisdiction, the Court has recognized their problems and the need to prescribe special rules in order to solve those problems. Finally, by explaining the “justifiability of the need to introduce a special a manner of exercise of primarily status rights of so-called “legally invisible persons”, the Court pointed at the case of “the deleted” and the judgment of the Grand Chamber of the European Court of Human Rights in the case Kuric against Slovenia which determined the violation of Article 8, Article 13 and Article 14 of the European Convention on Human Rights for difficulties which these persons suffered due to impossibility to regulate status issues after being deleted from the Registry of permanent residence holders of the Republic of Slovenia.

Download: Initiative for the initiation of procedure for assessment of constitutionality and Decision of the Constitutional Court

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