Social & Economic rights

Monday, 18 October 2021

A journey to free legal aid with interchanges

Working in the field in 2019, Praxis got acquainted with the case of Emina Beriša [1], who was a legally invisible person with four children who were not registered in birth registry book either.

Initially, Praxis lawyers were able to obtain only incomplete and scarce information about her birth and life. Emina is illiterate and an additional challenge was the fact that all numbers, dates or years had no special significance for Emina. Emina originates from Kosovo, but was not able even to specify whether she had married before or after the 1999 war in Kosovo. Emina cannot read and write; she has always lived on the margins of society and has never addressed public authorities and institutions, while the lack of documents has only worsened her social exclusion.

Praxis contacted her family, friends and relatives living in Kostolac, Subotica, Kosovo and Germany, in order to gather information about Emina and find out as many facts as possible to shed more light on the circumstances of Emina's case. Emina was 34 years old, but she was still not registered in birth registry books. Since both of her parents passed away, the date and place of her birth could be determined only in a court procedure.

Emina did not know how many years had passed since the death of her parents. She has four brothers and two sisters. She was born in her parents' house in Kosovo, and for reasons unknown to her, they did not submit proof of her birth to the registrar at that time, due to which the fact of her birth was not entered in registry books. “My dad worked privately for food; out of four brothers and three sisters, only I didn't have documents; he was angry with me because I had left with my husband, he didn't want to obtain documents for me, and when I was a child, he didn't have time.”

She did not have a birth certificate or any identification document to prove her identity. Therefore, Emina did not have an ID card, health card or any other document that would enable her to access rights. “I haven't been to the doctor’s for three years, before that I visited a private doctor only once, I had to pay 1000 dinars when I was sick. I have a headache now, I need to lie down, I haven't been to the doctor’s. What can I do, I take a pill.”

Emina's common-law spouse is deaf and cannot use the official sign language, but communicates in home sign. He is unemployed and being deaf makes it more difficult for him to find a job. Emina works to make a livelihood for the family. “I work a lot because my husband can't, and I can't do everything alone. My husband is unable to work because he can’t hear, can’t listen, can’t speak, he does whatever others tell him to do.”

However, the only mobile phone owned by this family is held by her deaf husband. She does not have her own phone. After checking who was calling, he handed the phone to Emina. She was called to be offered another seasonal job: “Picking blueberries. And then harvesting tomatoes. I can't work in the winter. To apply for a job in the cold storage plant, I need to have an ID card, so far I have worked with someone else's ID card. The boss says: “No problem for you, I know how you work, I’ll guarantee.” And when I have a two-day break during the weekend, I go to work with apples. I work every day, everything hurts me, I get up at 4 o’clock, I work, I return in the afternoon, I get some rest and then I do something else again. My brother sends some money when he has, but when he doesn't have, he can’t. People call me to work, we pluck the grass, I can't strike the hoe too hard, it hurts me here. My friend wanted me to clean in a company, they ask if I have an ID card, I say I don't have it, I can't work without an ID card, they give me food with delayed payment without an ID card but they can’t give me a job without it.”

They have been in a common law marriage for twenty years, since 2001. That year she was younger than her minor daughter today. She was only 15 years old. However, Emina does not know what her age was when she entered into a child marriage: “I was very young when I got engaged, I don't know exactly how old I was."

They have lived in Subotica for the past two years. Previously they lived in Lipljan, Kosovo. There is no information about the date and place of Emina's birth - it is simply not recorded.

They have four minor children; three of them were born in a hospital in Gračanica, while the older son was born at home. “When I was giving birth, I took the documents for hospital from my sister-in-law.” Emina’s two daughters attend the primary school in Bajmok, while the older son does not attend school because he is also deaf and has the rods inserted in his hips in a surgery performed in a hospital in Pristina, Kosovo. He has learned to speak, lip read and communicate with signs, but it is not an official sign language, but home sign. There are children’s vaccination cards, but they are registered under a different surname, which is also the surname of Emina's sister-in-law, since her health card was used for their vaccination. Emina does not have access to health care. “It seems that I can’t get vaccinated now, my boss asked me, Emina, have you been vaccinated, I said no, how do you work without papers, they asked me in our vaccine centre, they asked me do you have an ID card, I said no, we can give you only a Chinese vaccine, and not the one you want. I'm afraid of the Chinese vaccine.”

It was an unfortunate circumstance for Emina that the Law on Free Legal Aid came into force in the year in which Praxis found out about her case and that its application as of 1 October 2019 prevented non-governmental organisations from providing free legal aid in court proceedings. After the beginning of the application of the Law, according to the data of Praxis, dozens of citizens who were not registered in civil registry books, faced difficulties in obtaining free legal aid. Persons at risk of statelessness who tried to obtain free legal aid were usually orally rejected or, faced with a complicated procedure, would simply give up. In the period when the free legal aid system did not become sufficiently functional, when more than two thirds of local self-governments failed to fulfil their legal obligation to establish free legal aid services, Praxis submitted a request for free legal aid in Subotica on behalf of Emina. At that time, Emina Beriša was not able to sign her name or even to write her initials. To begin with, the registry office clerks were not aware of how they should act, so Praxis staff referred them to the Head of Subotica City Administration, with whom they had previously been in contact and agreed to submit a request. The procedure of granting free legal aid was soon successfully completed. According to the decision on approving the provision of free legal aid, an attorney-at-law was appointed as free legal aid provider. And while the procedure of approving free legal aid went without major difficulties, it cannot be said for the provision of legal aid.

Immediately after receiving the decision, Emina Beriša went to the attorney-at-law. The attorney-at-law first postponed the initial meeting with the client due to his vacation. As time went on and nothing happened, Praxis obtained documents for Emina's parents and sent them to Emina to submit them to her attorney-at-law. Since the attorney-at-law still did not call Emina, she went to see him again at her own initiative in February 2020. The attorney-at-law told her that he did not need any copies and then asked Emina to provide the originals of death certificates for her parents, as well as the statements of three witnesses. “Where are the documents for your father and mother, he says... and where am I supposed to find them, in the grave?”

While it might be examined whether it was justified for the attorney-at-law to ask Emina to obtain these documents or whether he should have obtained them (as well as whether all this evidence was necessary at all), there is no doubt that the attorney-at-law did not act correctly when he instructed Emina, who brought him the copies of birth certificates for her parents, to go to Niš, several hundred kilometres away, to obtain the originals, and by taxi, as stated by Emina. Emina did not have financial resources or possibility to obtain these documents, and the attorney-at-law did not contact her again. Praxis tried to contact the attorney-at-law, but without success, as no one answered the phone numbers of the law office. Praxis informed the client that it was the attorney-at-law’s job to obtain the originals, and also referred her to the City Hall in Subotica, to the registrar, in order to request the originals based on the existing copies. Her attorney-at-la did not even advise her to do that.

Seeing that the attorney-at-law did not provide Emina Beriša with approved free legal aid or take any action, in late August 2020 the Praxis lawyer contacted the Social Welfare Centre, which was legally authorised to initiate a procedure for determining the date and place of birth. The employees of the Social Welfare Centre showed understanding for Emina's problem and readiness to provide assistance. After Praxis staff shared their experiences regarding the procedures for determining the date and place of birth, the Social Welfare Centre in Subotica submitted a request for the mother, and after her registration, initiated procedures for her children as well.

Emina Beriša is one of those persons who would never be able to address the competent services alone. Although free legal aid was granted to Emina back in December 2019 and an attorney-at-law was appointed, the request was submitted by the Social Welfare Centre a year later. In November 2020, as a result of provided free legal aid and encouragement by Praxis, as well as good cooperation with the Social Welfare Centre in Subotica, the Centre submitted a request to the court to determine Emina's date and place of birth. The attorney-at-law did not contact Emina during all that time.

In June 2021, the procedure of determining the date and place of birth for Emina Beriša was finally successfully completed. Shortly afterwards, procedures were conducted also for her children.

Two years after the first encounter, Praxis brought to Emina birth and citizenship certificates. “I won't use my fingerprint, my older daughter taught me to write.” She first practiced signing her name five times, slowly on a piece of paper. “I didn't attend any classes, I didn't know what school was. It's hard without school, that’s why I like to see this kid go. I will send them all to school not to be like me and know nothing. Well, really, as you say, now I would go to that school for adults, but who would work, now I have a new bill for sewage, where can I get that kind of money?”

“I'm afraid to write my name.”

She signs the documents: EMINA.

She shines with pride and happiness. “Most of all, I wanted to have them for my children, I swear to God, I wanted also for myself earlier, but mostly for my children. Because of my son, for him to have a health card. I plan to submit a request for social assistance now, but I don't know where to go, where to enter. Now I can also work, see a doctor, get social assistance. And I got nothing from the state before, they only gave me Red Cross parcels twice, they asked for an ID card, but gave me anyway, one of them wrote it there. But I didn't get 30 euros, because I didn't have an ID card. Now I have my documents. My children have them!”

Emina Beriša will be able to exercise all her rights only when the registration of permanent residence is approved and when she receives an ID card.

 

[1]This is not her real name.

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