Dana 29. oktobra 2013. godine u Bujanovcu je održana tribina za pripadnike romske zajednice u okviru projekta „Ravnopravna šansa za bolje perspektive, jačanje romskog naroda u borbi protiv diskriminacije“ koji sprovodi Poverenik za zaštitu ravnopravnosti u saradnji sa Praxisom. Cilj ove informativne i edukativne kampanje jeste podizanje svesti i osnaživanje romske nacionalne manjine u borbi protiv diskriminacije. Tribini su prisustvovali predstavnici organizacija čije su aktivnosti usmerene na zaštitu i pomoć marginalizovanim i osetljivim društvenim grupama.

Nakon predstavljanja institucije, organizacije i nadležnosti, predstavnici Poverenika za zaštitu ravnopravnosti upoznali su prisutne sa pojmom diskriminacije i njenim oblicima. Na osnovu mnogobrojnih primera iz prakse u radu institucije, nastojali su da učesnicima tribine ukažu na razlike u ponašanjima koja predstavljaju diskriminaciju od onih koja to nisu i istovremeno pozvali prisutne da na pojavu kršenja prava na jednakost reaguju podnošenjem pritužbe, čak i onda kada nisu sigurni da je reč o diskriminaciji. Ukoliko je iz sadržaja pritužbe jasno da se ne radi o diskriminaciji, već o povredi nekog drugog prava, zaposleni u kancelariji Poverenika uputiće podnosioca pritužbe na nadležni organ kome bi trebalo da se obrati radi zaštite svojih prava. Ističući značaj podnošenja pritužbe Povereniku u sveobuhvatnoj borbi protiv diskriminacije i izgradnji tolerantnog društva, predstavnici Poverenika istakli su da je postupak besplatan i oslobođen formalnosti, kao i da se pritužba može podneti putem pošte.

Predstavnica Praxisa upoznala je učesnike tribine sa pojmom i sadržinom osnovnih ljudskih prava, kao i mehanizmima za pristup i zaštitu istih. Pored toga, ukazala je na najčešće probleme i prepreke u praksi, ističući loša sistemska rešenja ili manjkavosti u radu organa u postupcima za ostvarivanje prava kada je reč o osetljivim društvenim grupama, posebno Romima.

Aktivnim učešćem tokom tribine, iznoseći sopstvena iskustva i zapažanja, prisutni su istakli otežan i veoma često onemogućen pristup osnovnim ljudskim pravima. U osnovi, smatraju da su socijalno izopšteni i obespravljeni, te da su veoma često žrtve diskriminacije na osnovu pripadnosti romskoj nacionalnoj manjini. Ipak, među samim pripadnicima romske populacije svest o njihovom pravu na jednak tretman je nizak, a često se pojava diskriminacije minimizira i predstavlja kao društveno prihvatljivo ponašanje. Razlog takve pojave je najčešće strah od odmazde za ono lice koje bi se zbog kršenja prava na jednakost pritužilo.

Dana 8. novembra 2013. godine u Surdulici je održana javna tribina za pripadnike romske zajednice u okviru projekta Poverenika za zaštitu ravnopravnosti „Ravnopravna šansa za bolje perspektive, jačanje romskog naroda u borbi protiv diskriminacije“, koji se sprovodi u saradnji sa Praxisom.

Na izuzetno posećenom skupu predstavljene su nadležnosti Poverenika za zaštitu ravnopravnosti i mehanizmi zaštite od diskriminacije u Srbiji. U interaktivnoj diskusiji predstavljeni su konkretni slučajevi diskriminatornog ponašanja prema Romima, dok su predstavnici romske manjine i nevladinih organizacija koje se bave zaštitom njihovih prava, ohrabreni da u slučajevima diskriminacije podnesu pritužbu Povereniku.

Učesnici skupa su naveli da su često žrtve diskriminatornog ponašanja, naročito kada je u pitanju ostvarivanje prava na socijalnu zaštitu, odnosno da često postoji ćutanje uprave na njihove zahteve ili nejednak tretman. Sfera rada i zapošljavanja prepoznata je kao ključna oblast u kojoj se javlja diskriminacija. Prisutnima je detaljno objašnjen postupak pred Poverenikom i način za podnošenje pritužbe. Predstavnici kancelarije Poverenika za zaštitu ravnopravnosti naglasili su postojanje izrazite socijalne distance između romske populacije i neromskog stanovništva, te činjenicu da su Romi veoma često diskriminisani zbog svoje nacionalne pripadnosti. Uprkos tome, predočeno je da je broj podnetih pritužbi za zaštitu od diskriminacije od strane pripadnika romske nacionalne manjine zabrinjavajuće mali. Stoga je naglašena važnost preuzimanja aktivne uloge u borbi protiv diskriminacije od strane pripadnika ugrožene grupe. Istaknuto je da je postupak po pritužbi besplatan, da je ekspeditivan, da su zahtevi u pogledu forme pritužbe minimalni, u skladu sa čim je prisutnima sugerisano na dostupnost i jednostavnost postupka po pritužbi, kao instrumentu zaštite od diskriminacije. Predstavnci kancelarije Poverenika za zaštitu ravnopravnosti upoznali su prisutne sa tokom pojedinih postupaka koji su, zbog diskriminacije Roma, sprovedeni pred ovom institucijom, kao i sa najznačajnijim karakteristikama postupaka koji su pokrenuti pred nadležnim sudom.

Predstavnica Praxisa je, izlaganjem o problemima i preprekama koji se u praksi javljaju kada je u pitanju pristup osnovnim ljudskim pravima, doprinela predstavljanju predmetnog pitanja i inicirala diskusiju učesnika tribine o zapažanjima i iskustvima u navedenoj oblasti. Na osnovu komentara i stavova učesnika moglo se zaključiti da među pripadnicima romske zajednice svest o zabranjenosti diskriminacije postoji, ali je uočljiva potreba za preduzimanjem aktivnih mera kojima bi se romska populacija dodatno motivisala - kako u smislu upoznavanja sa raspoloživim mehanizmima zaštite svojih prava, tako i u pogledu spremnosti na preduzimanje konkretnih koraka unapređenja uslova života čitave romske zajednice. Takođe je zaključeno da treba još puno raditi na eliminisanju stereotipa i predrasuda koji prema Romima i dalje postoje.

Po završetku tribine predstavnici Poverenika i Praxisa posetili su romsko naselje Gornja mahala, čiji su najmlađi stanovnici učestvovali u filmskom projektu „Jednaki" – omnibusu od 8 kratkih filmova koji za temu imaju dečija prava i probleme kojima su pogođena deca, a čiju je realizaciju podržao Poverenik za zaštitu ravnopravnosti.

Nаcrt Zаkоnа о bеsplаtnој prаvnој pоmоći, trеći pо rеdu, ukоlikо budе usvојеn, dоvеšćе dо tоgа dа ćе rеtkо kо ispuniti uslоvе zа bеsplаtnо аdvоkаtskо zаstupаnjе, а аkо i ispuni uslоvе, nеćе biti pružаlаcа tе pоmоći. Zbоg оdrеdbi kојimа sе rеgulišе rаd budućih pružаlаcа bеsplаtnе prаvnе pоmоći, i prеtnji nоvčаnim kаznаmа dо miliоn dinаrа, tеškо dа ćе biti zаintеrеsоvаnih аdvоkаtа, prаvnih klinikа i nеvlаdinih оrgаnizаciја sprеmnih dа pоd prеdlоžеnim uslоvimа оvu vrstu pоmоći pružајu grаđаnimа.

Nacrt Zаkоnа о bеsplаtnој prаvnој pоmоći sаdrži nеkоlikо klјučnih nеdоstаtаkа: spоrnо dеfinisаnjе kоrisnikа bеsplаtnе prаvnе pоmоći i kоmplikоvаn pоstupаk krоz kојi оni mоrајu dа prоđu dа bi оstvаrili prаvо nа bеsplаtnu prаvnu pоmоć, izbоr Cеntаrа zа sоciјаlni rаd kао оrgаnа uprаvе kојi rеšаvа pо zаhtеvimа zа bеsplаtnu prаvnu pоmоć, tе kаznеnе оdrеdbе kоје prеdstаvlјајu prеtnju zа svе оnе kојi su dо sаdа prо bоnо pružаli prаvnu pоmоć, а kојi sе ni u nоvоm zаkоnu nеćе finаnsirаti nа tеrеt budžеtа Rеpublikе Srbiје

Оčеkuје sе, dаklе, оd nајsirоmаšniјih i sоciјаlnо ugrоžеnih grаđаnа dа znајu dа li uоpštе imајu prаvо nа bеsplаtnu prаvnu pоmоć pо оvоm zаkоnu, а dа zаtim, u sklаdu sа Ustаvоm, nаvеdu kоје im је prаvо ili slоbоdа pоvrеđеnо i dа tо svе pоpunе u fоrmulаru?!

Pоpunjаvаnjе fоrmulаrа ćе biti prоblеm i zа оsоbе sа invаliditеtоm, kао i оnе kоје su prinudnо hоspitаlizоvаnе ili prоtiv kојih sе vоdi pоstupаk zа lišеnjе pоslоvnе spоsоbnоsti.

Nacrt zаkоnа, tаkоđе, prеdviđа dа kоrisnici zаhtеv zа bеsplаtnu prаvnu pоmоć pоdnоsе nаdlеžnоm Cеntru zа sоciјаlni rаd, kојi је dužаn dа u rоku оd 7 dаnа, оdnоsnо 48 sаti u hitnim slučајеvimа, dоnеsе rеšеnjе kојim оvај zаhtеv usvаја ili оdbiја.

Cеntri zа sоciјаlni rаd vеć sаdа imајu prеvеliki оbim pоslа, а svi kојimа је pоznаtо stаnjе u cеntrimа zа sоciјаlni rаd оdličnо znајu dа cеntri nеćе biti u mоgućnоsti dа оdgоvоrе nа prеdviđеnе rоkоvе i dа prоcеnjuјu ispunjеnоst uslоvа zа pružаnjе оvе pоmоći. Cеntri zа sоciјаlni rаd bi, prilikоm оdlučivаnjа о tоmе kо imа prаvо nа bеsplаtnu prаvnu pоmоć, čеstо bili i u sukоbu intеrеsа sа pоtеnciјаlnim kоrisnicimа bеsplаtnе prаvnе pоmоći.

Nacrtom zаkоnа prеdviđеnа је rеgistrаciјa svih pružаlаcа, uz оdrеđеnjе dа držаvа nеćе plаćаti pružаnjе primаrnе prаvnе pоmоći (dаvаnjе prаvnih sаvеtа, pisаnjе tužbi i pоdnеsаkа). Оvdе sе nе ubrајајu lоkаlnе sаmоuprаvе kоје su dužnе dа iz sоpstvеnih srеdstаvа оbеzbеdе оstvаrivаnjе оvоg prаvа.

Kаd је rеč о pružаоcimа sеkundаrnе bеsplаtnе prаvnе pоmоći (zаstupаnjе nа sudu i mеdiјаciја), Nacrt zаkоnа prеdviđа dа ćе držаvа finаnsirаti tu vrstu pоmоći оndа kаdа је u pоstupku оdlučеnо u kоrist kоrisnikа i kаdа је sud dоnео оdluku о nаdоknаdi trоškоvа pružеnе bеsplаtnе pоmоći nа tеrеt drugе strаnе. Dаklе, rаd аdvоkаtа ćе biti plаćеn sаmо аkо sе ispunе оvа dvа uslоvа.

Svојim kаznеnim оdrеdbаmа оvај prеdlоg zаkоnа ćе sigurnо dоvеsti dо smаnjеnjа vеć iоnаkо mаlоg brоја pružаlаcа bеsplаtnе prаvnе pоmоći u Srbiјi, јеr zаštо bi ikо rizikоvао dа pružа оvu vrstu pоmоći i prо bоnо kаdа mu sе prеti drаkоnskim nоvčаnim kаznаmа dо miliоn dinаrа.

Nеvlаdinе оrgаnizаciје kоје pružајu bеsplаtnu prаvnu pоmоć grаđаnimа Srbiје јаvnо izrаžаvајu zаbrinutоst zbоg prеdlоžеnih оdrеdbi оvоg zаkоnа kојimа ćе sе sаsvim sigurnо uticаti nа аutоnоmiјu udružеnjа grаđаnа i kоје prеdstаvlјајu оzbilјnu prеtnju zа budući sistеm pružаlаcа bеsplаtnе prаvnе pоmоći.

Zbоg svеgа iznеtоg, zаkоn sе mоrа hitnо vrаtiti nа dоrаdu. Оvаkаv kаkаv је, nаprаvićе višе štеtе nеgо kоristi!

Preuzmite saopštenje za medije: Nеvlаdinе оrgаnizаciје kоје pružајu bеsplаtnu prаvnu pоmоć оštrо kritikuјu Nаcrt Zаkоnа о bеsplаtnој prаvnој pоmоći

Two statelessness-related events took place in Belgrade this April, with an aim to greet Serbia’s recent accession to the Convention on the Reduction of Statelessness and once again remind the public of the problem of persons not recognized as citizens of any country.

First, Greg Constantine’s exhibition Nowhere People opened on 2 April – a series of captivating photos that depicted the unforgettable faces and stories of some of the world’s most vulnerable stateless groups. Each of those moving pictures was followed by an even more moving explanation about deprivation that stateless communities face because of denied nationality. Greg Constantine himself flawlessly introduced their plight with Hannah Arendt’s words equating their state of being “stripped of citizenship” with a state of “being stripped of worldliness”.

On the following day, a seminar on statelessness took place at the Belgrade Faculty of Law. The seminar was initiated by UNCHR as a part of the Refugee Legal Clinic project where the sixth generation of students of this programme had an opportunity to learn about the essence and scope of this problem in the world from experts in this field – Laura van Waas, Senior Researcher and Manager of the Statelessness Programme at the Tilburg Law School, and Mirna Adjami, Senior Statelessness Advisor at UNHCR HQ in Geneva. On the other side, Davor Rako from UNHCR Serbia Legal Protection Unit and Ivanka Kostic, Praxis Executive Director, explained how this problem affects Serbia, introduced Praxis’ and UNCHR’s activities related to persons at risk of statelessness, and, above all, clarified who persons at risk of statelessness in Serbia are.

Among those persons, we can find those who had once been registered in citizenship registry books, but these records were destroyed. Others are facing difficulties in proving the fact of their birth and origin. Even though they mostly do have a connection with a country which is sufficient for acquiring citizenship, and the “only” step separating them from acquiring the nationality is going through various procedures, many do not manage to make that step – to prove their earlier registration in citizenship registry books or their identity and origin.

The plight is even more serious among those who have a connection with more than one country. Their difficulties can be easily shown in the following Praxis case – the case of Behara, her daughter Ajsha and grandson Rahman.

Behara is from Macedonia, but has lived in Serbia since the 1980’s. After the dissolution of former Yugoslavia, she couldn`t acquire Serbian citizenship because of the impossibility of registering her residence. Later she discovered that she was not registered as a Macedonian citizen either. Behara’s daughter Ajsha grew up undocumented. Two years ago, she finally obtained a birth certificate, but remained without citizenship – because of her mother’s unresolved status. While still undocumented, Ajsha gave birth to her son Rahman. The procedure of his registration is still on-going but its outcome and Rahman’s nationality status remain unpredictable. The answer to the question of Rahman’s nationality could be given only after the citizenship of his mother Ajsa is determined, which will be possible only after the determination of her mother Behara’s citizenship. In order to determine Behara’s citizenship, it is first necessary to determine her parents’ citizenship. But they passed away and only their names are known. The final answer to the question about Rahman’s and Ajsha’s citizenship lies somewhere among the four generations of persons with no determined citizenship, connections with the two countries and endless difficulties with proving the citizenship of Rahman’s grandmother and Ajsha’s mother Behara whose undetermined citizenship triggered a whole series. As long as this uncertainty lasts, they are deprived of basic human rights.

Behara, Rahman and Ajsha are only three out of some 3,000 persons identified by Praxis who face similar risks.

Turning back again to the aforementioned seminar, both Laura van Waas and Mirna Adjami have pointed out that a significant part of the fight against statelessness is its identification, as well as the prevention of statelessness among those who are in danger of remaining without a nationality. Similar motivation lies behind Praxis’ attempts to make visible the problems of people like Ajsha, Rahman and Behara – it comes from convictions that the prevention of statelessness and full respect for the right to a nationality will be possible only if all those whose right to a nationality is being violated are made visible and if we keep on striving to find ways to improve the position of all those who are unprotected due to their disputed nationality. Behara’s case depicts how easily one unresolved nationality status may lead to new generations of persons whose basic human rights are denied because of vague nationality and warns us how important it is to react before someone is permanently “stripped of worldliness”.

See the blog on ENS website

Blog by Ivanka Kostic, Praxis Executive Director, published on ENS website

Estimates suggest that there are several thousand people living in Serbia today, predominantly Roma, both children and adults, displaced and domiciled, who are not registered in birth registry books and who are therefore not recognized as persons before the law. We call them the “legally invisible“. They have no rights, including no access to health care, social welfare, education and employment; they cannot vote in elections, appear as parties before courts or other state bodies, register their residence or register the birth of their children. Finally, the legally invisible are at a risk of statelessness.

UNHCR’s latest survey on persons at risk of statelessness in Serbia finds that  1.5 % of the Roma population are not registered in birth registry books, 5.4% have no ID cards and 2.3% are not registered in citizens’ registries. The number of Roma residing in Serbia will be known only after the 2011 Census results, announced to be gradually released from mid-2012 until the end of 2013. According to the 2002 Census, there were 108,193 citizens living in Serbia who declared themselves members of the Roma national minority. UNHCR’s survey considers the estimations quoted by non-governmental organizations, and by the Serbian Government, that the number of Roma ranges from 250,000 to 4500,000, and that approximately 30,000 Roma are facing a risk of statelessness.

As a consequence of a life lived in poverty and social exclusion, many Roma have not registered the birth of their children in due time or they have failed to do so owing to a lack of information about deadlines, procedures, ways of obtaining necessary documents, or the impossibility to cover the costs of procedures. Besides, living in informal settlements, many of them have not managed to register a permanent residence and obtain the ID cards which are necessary when registering children’s birth. Some persons have not had the financial means to obtain necessary documentation from their place of birth or place of previous residence.

The current law of Serbia is insufficient to address the situational reality of many legally invisible persons. Roma children are often born at home, thus evidence of their birth does not even exist in the records of health institutions. If parents missed the 30-day deadline to register birth, their only option is to initiate an administrative procedure of late birth registration, which is not adequately regulated by the law. It is usually an unreasonably lengthy procedure with an unpredictable outcome. Further, the law does not prescribe how to subsequently register the birth of a person who does not know anything about his/her birth or parents. Neither does the law regulate how to register an adult whose parents have deceased or abandoned him/her in childhood. It does not state who is authorized to initiate a procedure of late birth registration for a child born out of wedlock, who has been abandoned by his/her mother. These are only some of the situations where legally invisible persons cannot be registered in birth registry books due to lack of a legal framework for these situations.

Praxis has been intensively advocating for years for Serbia to remove existing legal gaps and obstacles to universal birth registration, ensure birth registration of all children born within its territory and to adopt a simple and accelerated procedure for late birth registration for legally invisible persons. The first positive step was made in late January 2012 when the Government of Serbia submitted the Draft Law on Amendments to the Law on Non-Contentious Proceedings to the Parliament for adoption. The proposed amendments are the result of joint work by the Centre for Advanced Legal Studies, Praxis and the Ombudsperson’s office.

The law would cover many of the problems with late birth registration raised above. Under the draft law, persons who have been unable to register within 3 months of their request in an administrative procedure would be allowed to initiate a court procedure requesting a late birth registration. The involvement of the parents is not requested and the fact of birth can be determined even if personal data regarding parents is unknown. Additionally, the procedure is urgent, with short deadlines and the administrative body is obliged to enforce a final court decision in the birth registry book within 3 days of its receipt. A person who initiates the procedure is exempted from fees and other costs of the proceedings.

Unfortunately, the Draft Law has not reached the parliament agenda prior to the Serbian elections in May. When it will find its place on the agenda of the new Parliament and whether it will be adopted remains to be seen. 

At the same time and with the aim of preventing generations of new legally invisible persons, an improvement of the administrative procedure of birth registration of new born children is also required. In order to register a child, parents, or at least, the mother, must possess valid ID card. Therefore, it is necessary to ensure that all children are registered in birth registry books immediately after their birth regardless of the status of their parents, whether they possess personal documents or not. Such a provision would bring Serbia into compliance with Article 7 of the Convention on the Rights of the Child.

So far there has been serious opposition within the relevant Ministry for Human and Minority Rights, Public Administration and Local Self-government responsible for the issues of civil registration to improve the administrative procedure of birth registration in compliance with the Convention on the Rights of the Child. What kind of approach to this important issue the new Government will have is yet to be seen.

See the blog on ENS website

Blog by Jelena Petrovic, Praxis Programme Assistant, published on ENS website

The true personal testimonies of the Roma unregistered at birth translated into the documentary Here I Am found their way this summer to the hearts of many.

The international film festival Supetar Super Film Festival held on the island of Brac in Croatia in mid-July, presented a diverse range of international documentary classics. The documentary Here I Am produced by Praxis in cooperation with Dokukino was presented together with twelve other documentaries originating from Sweden, Denmark, Poland, Russia, Bosnia, Great Britain, the Czech Republic and Croatia. (The Importance of) Hair by the Swedish director Christina Hoglund won the first place, the second was granted to the documentary Bye ByeC’estFini by the Swedish director Tora Martens, while Praxis’ documentary Here I Am directed by Irena Fabri won the third place.  It is extremely important to mention that it was the audience award, the award given by randomly assembled tourists who came to Supetar for their summer holidays.

The documentary Here I Am emerged as a Praxis’ desire to vividly illustrate the real torment of the legally invisible persons (persons whose birth is not registered) whose daily life is intertwined with serious existential problems. Indeed, it was an opportunity to give a face to the problems of the Roma who lack birth registration, personal documents and adequate housing and are at risk of statelessness. Praxis and Dokukino’s team visited several informal settlements while preparing for the shooting and talked to the residents. The documentary actually tried to depict the lives of legally invisible Roma living in informal settlements by letting some of them tell their own life stories. The survival of these people living on the margins of the society is often motivated by their hope and faith, as apparently the only identity they truly own. The documentary puts us, at least for 25 minutes, in their shoes, gives us the opportunity to experience the despair of not having a recognized legal personality, to feel the uncertainty of tomorrow but yet share their wishful thinking and seemingly strong desire to believe in the visible future. The documentary shows what impediments you need to overcome when you want to prove your identity, the identity of your mother or your child by purely “catching your visibility” hovering somewhere in between. Praxis actually wanted to show to the viewers of this documentary how difficult the problem of legal invisibility is and also to give a chance to these people to speak for themselves.

To remind, estimates say that about several thousand people live nowadays in Serbia without being registered in birth registry books, and who are therefore denied a fundamental human right – the right to be recognized as a person before the law. They lack personal identification documents and have no access to rights and services as citizens, even though they may have lived in the same place for generations. They suffer multiple deprivations and violations of rights as a direct result of not having a recognized identity and nationality.

Much effort has to be put in order to raise awareness about the problem and instigate the state to take responsibility and finally provide an effective systemic solution. In that regard, this documentary will serve as an excellent advocacy tool. Also, Praxis is planning to promote the documentary at other film festivals in the country and abroad.

It yet remains to hope that such a remarkably visible recognition of this documentary will somehow affect the solution of this burning issue by making the invisible become visible and legally recognized persons before the law. Hopefully, the state will have at least the same empathy for its citizens as the audience in Supetar had for the legally invisible Roma in the documentary.

See the blog on ENS website

Blog by Ivanka Kostic, Praxis Executive Director, published on ENS website

After years of advocacy efforts in drawing the attention of the state to the extremely difficult position of persons who failed to subsequently register in the birth registry on the grounds of the existing laws, as well as requests for the adoption of an adequate, accelerated and facilitated procedure as a systemic solution to the problem of the legally invisible, some progress has been made. 

On the 31st of August the Serbian Parliament finally adopted Amendments to the Law on Non-Contentious Procedure prescribing a court procedure for the determination of the date and place of birth of persons who are not registered in the birth registry. The amendments were adopted only 3 months after the constitution of the new Serbian parliament.

While this is an extremely important initiative, it is only the first step towards solving the problem of several thousands of legally invisible persons in Serbia, children and adults, who are at the same time at risk of statelessness. The vast majority belong to the Roma ethnic minority and many have been living in the same place for generations.

It still remains to be seen whether the new non-contentious procedure will be efficiently implemented and if the legally invisible will benefit from this new court procedure. It is also of crucial importance to see the way the regulations relating to acquisition and determination of citizenship will be implemented in these cases.

According to the adopted amendments, a person who has not been registered in the birth registry and cannot prove the date and the place of his/her birth in an administrative procedure for late birth registration can initiate a court procedure for determination of the date and the place of his/her birth (procedure for “proving the fact of birth”).

In this procedure, a legally invisible person shall provide the court with the following personal details: his/her name and gender, as well as the date and the place of his/her birth, if known, and evidence proving those facts or making them probable. Also other facts which can facilitate the determination of the fact of birth should be provided to the court if available,   such as personal data of his/her parents, cousins, spouse, etc.

If the date and hour of birth of a person not registered into the birth registry cannot be established, the person shall be considered to have been born on 1 January at 00:01 hours of the year that is the probable year of his/her birth. Also, if his/her place of birth cannot be established, he/she shall be considered born in the municipality or the town in the territory of which the person is likely to have been born.

The court shall examine at least two witnesses of age who have identity documents with a photo (ID card, passport). The final court decision shall state the name and the surname of the person whose birth is being proved, his/her gender, and the day, month, year, hour and place of birth, including data about his/her parents, if known.

The court shall deliver its final decision on the date and the place of birth to the competent registrar in order for this body to register the fact of birth in the birth registry.

However, according to these amendments the Ministry of Interior, which is in charge of conducting the procedure for acquisition/determination of Serbian citizenship, is not bound by the final court decision on the date and place of birth! In practical terms, this means that despite being finally registered in the birth registry, one can still be at risk of statelessness and remain undocumented, with no access to basic rights. This is due to the fact that, in order to obtain an ID card, which is a precondition for accessing rights, one should also have Serbian citizenship (as well as a registered residence).

Some persons might have significant problems in proving their right to Serbian citizenship in the event that they have no proof related to their parents’ citizenship. This time they will not be struggling to access the right to be recognized as a person before the law, but to the right to a nationality instead. They will have to initiate another cumbersome and lengthy administrative procedure for the determination of citizenship with an uncertain outcome, unless the state decides to give amnesty to several thousand persons at risk of statelessness and grant them Serbian citizenship. Only this can be the final solution to the problem of the legally invisible. Otherwise, they will be recognized neither as stateless persons, nor citizens of Serbia - they will remain in legal limbo, unable to access their basic rights.

See the blog on ENS website

Blog by Milijana Trifkovic, Praxis Legal Analyst, published on ENS website

In many countries there is a circle of rights which are reserved only for their own nationals and that is one of the main facts that gives significance to nationality. In Serbia, however, having nationality is not a sufficient condition for a person to be able to access rights that the citizenship status should imply. In order to access their rights and obtain documents such as ID card or passport, Serbian citizens also must register their permanent residence, which is a precondition that a number of members of marginalized groups cannot fulfil. According to the survey conducted for the purpose of the UNHCR report “Persons at Risk of Statelessness in Serbia”, 3 % of Roma (approximately 4,500) do not have registered residence. In December, Praxis issued the report entitled “No Residence, No Rights”, explaining all the difficulties one can encounter when registering residence in his/her own country and the way in which the absence of registered permanent residence can deprive Serbian nationals of the rights normally attached to nationality or of the possibility to transfer the nationality to their children. Such consequences almost exclusively arise in cases of Roma from informal settlements, who cannot document ownership or any other legal basis of housing, as well as in the cases of citizens of Serbia originating from Kosovo, with habitual residence in Serbia. The report gives an insight into the obstacles they face when trying to register their permanent residence and explains the manner in which unregistered residence causes violation of their rights.

The national legislation recognises permanent residence as a place where rights can be enjoyed. As a result, a person may be born in Serbia, have its citizenship and spend all his/her life in one place in its territory, but if the person concerned does not have permanent residence registered, most institutions will remain inaccessible to him/her. That person will not be able to obtain ID card or passport, leave the country or access basic human rights. Both in the case of Roma from informal settlements and citizens originating from Kosovo the issue of possession of nationality is indisputable, but unregistered residence denies them the opportunity to benefit from nationality. Unlike other citizens of Serbia, some members of the Roma ethnic community cannot submit evidence of legal basis of housing when registering permanent residence due to their particularly vulnerable position, poverty and the life in informal settlements. In case of citizens from Kosovo, however, the problems arise from the difficulties related to fulfilling additional conditions for registration of permanent residence that are imposed solely on this category of citizens. The procedure for issuance of passport and registration of permanent residence for these persons has been defined by a separate act – a regulation adopted by the Government of Serbia in 2009 with the aim to meet the criteria for visa liberalization. The requirements that citizens originating from Kosovo should meet for the registration of permanent residence are far more onerous in comparison to other citizens of Serbia. Practice shows that, in order to register permanent residence in the country where they live and the citizenship of which they possess, these persons must fulfil conditions imposed on foreigners in the procedure for approval of residence permit (secured income, family reunion, etc). Those who fail to do so are not able to exercise any rights or obtain ID card or passport.

In addition to preventing citizens from accessing the rights normally attached to nationality, the difficulties that arise when members of aforementioned groups submit a request for registration of residence may also hinder the exercise of the right to nationality and registration of children in birth registry books. The parents who want to register the fact of birth of their child are required to submit their birth certificates and ID cards. If parents cannot register permanent residence and, consequently, cannot obtain an ID card, they will not be allowed to register their child’s birth. Moreover, the failure to register the child’s birth causes uncertainty with respect to the facts that are crucial for the acquisition of nationality, such as the place of child’s birth or its descent. As a result, the system of residence registration may cause risk of statelessness among children. The aforementioned UNHCR report suggests that the most important reason for many persons not being able to obtain a birth certificate is the lack of residence registration.

Permanent residence had a significant role in the acquisition of Serbian nationality after the breakup of the former Yugoslavia. In the cases of people originating from other republics of the former Yugoslavia who happened to live in Serbia at the time of the breakup of the common state, permanent residence was the key fact in the process of deciding on whether these persons would find themselves in the status of foreigners or would be allowed to acquire the nationality of the republic in which they lived in a facilitated manner. Namely, the persons who acquired nationality of some other republic of the former Yugoslavia and who had permanent residence registered in the territory of the Republic of Serbia for at least nine years could acquire Serbian nationality by simply submitting a request for registration in citizenship registry books. Those who were living in Serbia without registered permanent residence (mostly Roma from informal settlements) were not allowed to acquire citizenship in a simplified procedure, by registering in the citizenship records. They found themselves in the status of foreigners without granted residence permit and often with undetermined nationality. Their long-term habitual residence in Serbia was irrelevant for acquiring nationality.

Some of the described obstacles could be overcome based on the new Law on Permanent and Temporary Residence of Citizens if the conditions were met for consistent application of the provisions of significance for the homeless and poor citizens without a legal basis of housing. The Law provides that the permanent residence of those citizens who do not have the opportunity to register their residence based on immovable property rights, lease or any other legal basis, may be established at the address where they permanently live, at the address of their spouse or common-law partner, their parents’ address or at the address of the social welfare centre. Owing to this change, a number of persons without residence should be significantly reduced. However, some issues remain unresolved even after the adoption of the new legal solution. They are explained in more detail in the aforementioned Praxis report. Apart from giving an insight into new legal solutions and explaining why “no residence” means “no rights” in Serbia, the report also points out to additional steps that should be taken to make the concept of permanent residence close to the notion of home, instead of the system that generates inequality among citizens and causes deprivation of rights. If one bears in mind the relation between lack of registration of permanent residence and lack of registration of the fact of birth, which is the main cause of risk of statelessness in Serbia, it is clear to what extent the changes in this field would contribute not only to higher respect for the rights attached to nationality, but also to facilitated exercise of the right to nationality among members of vulnerable groups.

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Blog by Ivanka Kostic, Praxis Executive Director, Published on ENS website

Praxis had the pleasure to organize a joint workshop of the European Network on Statelessness (ENS) and the Western Balkan Legal Aid Network (WeBLAN) on statelessness on 23 April in Belgrade. The event was organized with the support of UNHCR Representation in Serbia and the EU funded project “Best Practices for Roma Integration” (BPRI) implemented by ODIHR in the Western Balkans.

The Western Balkan Legal Aid Network was established in March 2012 in Sarajevo as an independent network of 6 civil society organizations devoted to protection, promotion and improvement of human rights and social inclusion, as well as prevention and reduction of statelessness in the Western Balkans. Members of the WeBLAN are: the Association Vasa Prava from Bosnia and Herzegovina, Civil Rights Programme from Kosovo, Legal Centre from Montenegro, Macedonian Young Lawyers Association from Macedonia, Information Legal Centre from Croatia and Praxis from Serbia. Although established a year ago, the regional cooperation dates back to 2008 when, as UNHCR implementing partners, these organizations commenced the implementation of a regional project aimed at the promotion of social inclusion of marginalized communities in the territory of the Western Balkans.

Apart from UNHCR Serbia and ODIHR/BPRI, UNHCR Bosnia and Herzegovina, Kosovo, Montenegro, Macedonia, Croatia and Italy participated in the workshop, as well as the Italian Refugee Council and the Tirana Legal Aid Society from Albania.

The aim of the workshop was to highlight issues of statelessness in the Western Balkan countries, the main problems, challenges, legal gaps, populations, as well as on-going activities and progress made so far, exchange examples of good practices, good systemic solutions and promote relevant international standards.

ENS Steering Committee members gave presentations on various issues related to prevention and reduction of statelessness, statelessness determination and protection of stateless persons, litigating statelessness before the international courts and international advocacy on statelessness.

For the purpose of the workshop, the WeBLAN members filled in a research template, previously developed jointly with ENS, containing a description and analysis of the main problems, challenges, legal gaps and on-going activities in the Western Balkans respective countries aimed at prevention and reduction of statelessness. The conducted research and related analysis done by the six WeBLAN members served as a basis for workshop presentations and discussion.

Analysis of national legislation and the situation in practice has been conducted for each country in the Western Balkans region, in order to comprehend the extent of the problem related to exercise of the right to a nationality and to establish who the persons and groups at risk of statelessness are, and what the profile of this population is. The aim was to establish whether national legislation contained protection mechanisms suitable for preventing statelessness, as well as to identify whether it contained relevant regulations or provisions that could provide adequate treatment and enable access to basic rights to stateless persons.

It has been noticed that all countries in the region share certain common problems and that often similar reasons lead to risk of statelessness in each country encompassed by the analysis.

A common characteristic for all countries is untimely registration of the fact of birth of children. Furthermore, in all countries, these are the problems almost exclusively faced by Roma ethnic minority. Even the obstacles to registration of child’s birth are similar: lack of documentation of parents, lack of information, giving birth at home, traditional way of life of persons of Roma ethnicity, etc.

The dissolution of the former Socialist Federal Republic of Yugoslavia (SFRY), wars and migrations have also caused problems in exercise of the right to a nationality in almost all above-mentioned countries. After the breakup of the SFRY, there were persons who did not acquire nationality of any state. These persons and their children face difficulties in regulating the issues of nationality and documentation even today. In Serbia, one of the reasons behind this was difficulties related to registration of permanent residence, the problem faced by the most marginalized Roma living in informal settlements.

In some countries, another problem and the cause of difficulties related to proving nationality and identity lay in the fact that some civil registries were destroyed during the conflicts (Serbia, BiH, Montenegro).

Furthermore, complicated administrative procedure was stated as one of causes of risk of statelessness in BiH and Serbia.

Common problem for all countries is the absence of precise (or, in the case of BiH, of any) data on the number of stateless persons or persons at risk of statelessness.

With regard to characteristics of stateless persons, what is common is the fact that those are mainly members of minorities, primarily Roma ethnic minority, the Roma, Ashkali and Egyptians. However, situations vary depending on the country of origin of persons at risk of statelessness. In some countries, we are dealing with persons who were born and live in the same country, while in others (e.g. BiH, Kosovo, Croatia) the persons at risk of statelessness are almost exclusively from other countries by origin or their parents are from other countries. With regard to countries these persons come from, those are mainly former Yugoslav republics. The exception in this case is only BiH where persons at risk of statelessness also come from the territory of the Czech Republic.

All countries are either state parties to the Convention Relating to the Status of Stateless Persons or contain within their respective national legislation the provisions that are in accordance with the Convention. The same applies to the international treaties which indirectly relate to the right to a nationality. The situation is somewhat different with regard to the 1961 Convention on the Reduction of Statelessness which has been ratified only by Serbia and Croatia, but it has been pointed out at the workshop that the countries which are not state parties to the Convention have been implementing activities with the aim of acceding to it.

There is no statelessness determination procedure envisaged in any of the countries encompassed by the research and analysis. In some countries – BiH and Serbia – there were cases of statelessness status being determined in ad hoc procedures, without previously prescribed guidelines or rules on the manner and burden of proving statelessness status or on the body competent for the statelessness status determination.

It has been noticed that all countries, whether the state parties to the Convention on the Reduction of Statelessness or not, contain provisions that should prevent the occurrence of statelessness since birth. National legislature prescribes that foundlings, as well as children born in the territory of the state who would otherwise remain stateless have the right to a nationality of the state they were born in. At the same time, it has, however, been emphasised that one of the difficulties for implementation of the provisions that should prevent occurrence of statelessness since birth could precisely be the fact that the statelessness determination procedure is missing (BiH, Serbia). Even though the law of all the countries in the region provides for the children of stateless persons the right to acquire nationality of the country they were born in, they may be deprived of this right because their parents do not have the possibility to prove their status of stateless persons.

Lack of the prescribed procedure also represents an obstacle to accessing legally guaranteed rights and to obtaining identification documents.

Macedonia and Montenegro are the only countries that have prescribed facilitated naturalization of stateless persons. In both countries, the more favourable conditions are reflected in omitting requests related to the knowledge of language. Besides, in Montenegro, a stateless person neither has to fulfil conditions related to provided accommodation and guaranteed source of income in the amount that provides for material and social security. In Macedonia, more favourable conditions are also reflected in the fact that the requested duration of stay in the country is shorter – 6 years, instead of 8 years required in the case of regular naturalization. However, one of the reasons for which stateless persons would not be able to benefit from facilitated naturalization is precisely absence of the statelessness determination procedure.

Bearing in mind that there is no mechanism for identification and systemic protection of stateless persons, Praxis activities in the future will precisely be directed at introduction of the statelessness determination procedure in Serbia. During 2012, together with UNHCR, Praxis and members of the European Network on Statelessness (ENS) will work on the development of a simple and accessible guidance document, which could be suitable for wider use in the region, based on the comparative analysis and experience of the countries that have already prescribed specific statelessness determination procedures, and a discussion note which should provide suggestions on how to transpose this guidance document to the Serbian context. Moreover, documents will be presented to the relevant authorities for further discussion.

See the blog on ENS website

Blog by Milijana Trifkovic, Praxis Legal Analyst, Published on ENS website

In December 2011, Serbia acceded to the Convention on the Reduction of Statelessness. The Serbian Law on Citizenship had already been in accordance with this international instrument, and contained appropriate mechanisms aimed at prevention of statelessness at birth. Specifically, Article 13 of the Law on Citizenship of the Republic of Serbia envisages the acquisition of citizenship according to the ius soli principle – by birth in the territory of Serbia for children who would otherwise be stateless. Thus, a child born or found in the territory of the Republic of Serbia shall acquire Serbian citizenship by birth if both parents are unknown or of unknown citizenship or stateless or if the child is stateless. The citizenship is acquired at birth, automatically, by operation of law. There are no additional conditions. However, the practice shows that liberal regulations on citizenship and simple conditions for acquisition of citizenship do not always imply an easy path towards exercise of the right to citizenship. Thus, in order to prevent statelessness, it does not suffice just to adopt adequate laws, but it is necessary to undertake a series of other steps, including consistent implementation and interpretation of those laws in practice.

According to the Law on Citizenship, otherwise stateless children born in Serbia acquire citizenship ex lege. Such acquisition of citizenship is not conditioned by submitting of a request nor does it require an act of a competent body. However, it does stem from practice that, in order to acquire citizenship in these cases, one should submit an appropriate request, and that the citizenship is not acquired by operation of law but on the basis of a decision of the competent body.  A case of Praxis’ clients Mejrema and Bajramsa shows that significance of such differentiation is not only theoretical and that it has a far more important effect on lives and the status of individuals.

Mejrema and Bajramsa are sisters and they belong to the Roma national minority. They were both born in Serbia, of an unknown father and a mother of unknown citizenship (their mother was not registered in birth registry and passed away without possessing a single document – see Zelfija case and Mejrema and Bajramsa case). Both Bajramsa and Mejrema were subsequently registered in birth registry in 2010, after their mother’s death, when they were 15 and 17 respectively. The fact of citizenship was not registered for either of them, so they later submitted requests for determination of citizenship (a procedure for persons who acquired the citizenship of the Republic of Serbia, but their citizenship status was not registered).

Bajramsa, the younger sister, submitted the request for determination of citizenship when she was 17 years old (father of Bajramsa’s common-law husband was appointed as her temporary guardian and he submitted the request on her behalf). It was established that it was the case of a child born in Serbia, of unknown father and the mother of unknown citizenship, and she received the citizenship certificate within a short period of time. Still, judging from the decision on the basis of which the registration of the fact of citizenship was performed (and which stated that Bajramsa acquired citizenship), it can be concluded that the competent body did not consider that the citizenship in such cases was acquired by operation of law, but only on the basis of a decision of the competent body and following submission of an appropriate request, and that the decision of the competent body was not declaratory, but constitutive. In Bajramsa’s case, such differentiation did not have a practical significance because she acquired the citizenship and is retrospectively considered a citizen since birth. However, in case of her sister Merjema, such differentiation had far-reaching consequences.

Mejrema was 18 years and two months old when she submitted the request for determination of citizenship. All the other circumstances of her case were identical to those of her sister – she was also born in Serbia, of unknown father and the mother of unknown citizenship. The decision of the competent body should have only stated that, at the moment of Mejrema’s birth, all the conditions prescribed by the law had been met and that she had acquired the citizenship on the basis of the Article 13 of the Law on Citizenship. However, in Mejrema’s case, the competent body concluded that Mejrema did not fulfil the conditions for determination of citizenship of Serbia as per the Article 13 of the Law on Citizenship of the Republic of Serbia. Since she came of age and was not considered a child any more, the competent body was of the standpoint that there was no possibility of acquiring citizenship on the basis of the provision aimed at prevention of statelessness among children. She was informed that she could acquire citizenship only by naturalization if she paid the fee and gave a statement on loyalty, and only after the expiry of two-year deadline from the day her uninterrupted stay in Serbia can be proven.

The 1961 Convention does allow for the possibility of the states to enable the acquisition of citizenship for otherwise stateless children only after submitting an appropriate request and to condition the acquisition of citizenship by fulfilment of some of the conditions explicitly stated in the Convention. One of the permitted conditions is determination of a timeframe in which this request may be submitted. However, this timeframe must start not later than 18 years of age and must not end earlier than at the age of 21 years. When it comes to Serbia, even though it does not stem from the Law, the competent body is of the opinion that it is necessary to submit an appropriate request for acquisition of citizenship, and within a certain timeframe. The deadline until which one should submit the request is not prescribed by the law – since the law prescribes the acquisition of citizenship by virtue of law – but, in practice, the competent body derives it from the legal definition of “child”, resulting in the standpoint of the competent body that after 18 years of age otherwise stateless children born in Serbia can no longer acquire citizenship on the basis of the Article 13 of the Law. Injustice of such interpretation is best visible in Mejrema’s case. She spent her childhood without documents because her mother was not registered in birth registry and therefore could not register birth of her children. Mejrema was registered in birth registry only after her mother’s death, but her fact of citizenship was not registered even though she was born in Serbia, of unknown father and the mother of unknown citizenship. In terms of law, she had never had a guardian who could submit a request for acquisition of citizenship on her behalf. While her mother was alive, Mejrema could not submit a request for determination of citizenship because she was not registered in birth registry. When she finally managed to get registered and collected the necessary evidence for acquisition of citizenship, the competent body thought that the Article 13 could no longer be applied in her case, since she was already 18. This circumstance – that she reached 18 years of age – was the only difference between her case and that of her sister who acquired citizenship on the grounds of the Article 13.

As of August 2013, Mejrema will have fulfilled the conditions for naturalization, as a person born in Serbia who can prove that prior to submitting a request for naturalization she had stayed in the country uninterruptedly for two years. Thus, she will most likely not be left stateless. However, one should bear in mind that providing for a discretionary naturalization procedure for otherwise stateless children is not permissible under the 1961 Convention (see Dakar Conclusions).

The final decision in Mejrema’s case has not been brought yet, so there is a possibility that the competent body will change its standpoint and apply the law consistently. This is important not only for Mejrema’s case, but also for preventing the risk of statelessness in cases of otherwise stateless persons who spend their childhood without registered fact of birth and without a resolved citizenship issue. At this point, if no one submits an appropriate request for acquisition of citizenship on their behalf before these persons reach 18 years of age, after coming of age they would be deprived of the possibility to do it themselves.

Finally, it is necessary to undertake some additional steps so that the persons to whom Article 13 relates may actually have some use of this provision. It primarily refers to enabling timely birth registration of every child. A year ago, Serbian Government adopted the Law on Amendments to the Law on Non-Contentious Procedure which prescribes a new non-contentious procedure for determination of time and place of birth for persons who cannot get registered in birth registry through the administrative procedure. However, no measures have been taken to ensure that every child is registered in birth registry immediately upon birth and regardless of the status of his/her parents, which undoubtedly causes difficulties in exercise of the right to citizenship. Besides, in Serbia, there is no specific procedure in which it could be determined that a person is stateless or of unknown citizenship. Thus, even though the children born in Serbia whose parents are stateless or of unknown citizenship have the right to citizenship according to the ius soli principle, there is a threat that they may be deprived of this right due to difficulties in proving that their parents are stateless or of unknown citizenship. Until the measures have been taken to remove the above-mentioned difficulties and until the consistent application and adequate interpretation of the citizenship related regulations has been provided, the text of the Law which is in compliance with the 1961 Convention is not sufficient to remove the risk of statelessness in practice. After all, this is one of the conclusions of a recently published report which analyses trends and regulations in Europe regarding statelessness prevention and which reminds us that „the analysis of nationality law provisions only provides part of the picture where protection against statelessness is concerned“.

See the blog on ENS website