Social & Economic rights

Wednesday, 23 March 2022

Registration In Birth Registry Books Seems to Be More And More Difficult

The following story may seem complicated to you, and you are right. It is complicated just like the procedures that some people have to go through in order to be registered in birth registry books, to obtain personal documents and be able to access their basic rights.

This is a story about Sara [1] who is not registered in birth registry books and does not possess any personal document. At the same time, this is a story about novelties in the legal system of Serbia, which additionally hinder registration in registry books for some persons.

Due to the fact that Sara is not registered in birth registry books, access to most rights has been prevented or significantly hindered since her birth. At the time when Sara was born, her mother was not registered in birth registry books and did not have personal documents, due to which she could not register her daughter at birth. The hospital in which Sara was born did not notify the registry office of the fact of her birth.

Since the exact date of Sara’s birth was not recorded in the official records, and since her parents - uneducated and socially excluded members of the Roma community - did not remember the date of her birth, today it remains unknown when exactly Sara was born. We know only that she was born in 2004 and that she will come of age this year. She hopes that this year she will finally manage to get registered in birth registry books, thus finally gaining the opportunity to access all those rights that have always been out of her reach.

Unfortunately, she spent the entire previous year unsuccessfully attempting to register in birth registry books. At the beginning of 2021, Sara's mother tried to get free legal aid in the municipal service in order to initiate a court procedure for determining the date and place of her child's birth, but she did not succeed in getting such assistance on her own. Only after Praxis (which is not allowed to provide assistance in court procedures under the Law on Free Legal Aid) submitted a written request, the Free Legal Aid Service drafted a request for determination of the date and place of Sara's birth, and in February 2021 a procedure was initiated before the court.

However, in late April, the court dismissed the request, referring to the Conclusion of the Civil Division of the Supreme Court of Cassation (SCC) on the jurisdiction of non-contentious courts in the procedure of registration in birth registry books, in which the SCC took the position that a non-contentious court could conduct a procedure for determining the date and place of birth only if an administrative procedure of subsequent registration in birth registry books had been previously conducted and if the request had been rejected by a final decision.

Therefore, the following month, a procedure of subsequent registration in birth registry books was initiated for Sara before the administrative body. However, shortly afterwards, this body informed the party that the request had been forwarded to the court (which had previously dismissed the request), stating that the court, and not that body, was in charge of conducting the procedure. Thus, both the court and the administrative body determined that they could not conduct the procedure.

However, after Praxis lodged a complaint with the Administrative Inspectorate for illegal actions of the administrative body, and sent to the administrative body a written notification of its obligation to conduct the procedure of subsequent registration, this procedure continued. However, in July 2021, the administrative body adopted a decision dismissing the request because the mother and the witnesses did not go to give a statement when asked to do so and did not provide the evidence requested by the administrative body, such as a health card, medical report or school certificate, although Sara did not or could not have such evidence because she was not registered in birth registry books.

Although the administrative body adopted a negative decision, it was still not enough to reopen a court procedure, because the Supreme Court of Cassation took the position that the request in the administrative procedure should be rejected and not dismissed, as happened in this case. Therefore, with the help of Praxis, an appeal was lodged against the decision dismissing the request. This appeal was adopted by the second instance body and the case was returned to the first instance body for a new procedure.

In the renewed procedure before the administrative body, the party and the birth witnesses gave statements, but towards the end of the year, the request for subsequent registration was rejected, with the explanation that it was not possible to determine the date of the child's birth based on these statements.

Since the condition for reopening a court procedure was met, Sara's mother again addressed the Free Legal Aid Service, which drafted a new request for determining the date and place of birth, with the support of Praxis, which shared with the Free Legal Aid Service staff its experience gained during many years of conducting such procedures and pointed out some important details of the procedure. The request was submitted to the court in late February 2022.

Therefore, Sara is again in the same situation she was in a year ago: she has initiated a court procedure that should allow her to register in birth registry books. In the meantime, she had to conduct a procedure before the administrative body, without any prospects of a positive outcome, which was clear from the very beginning. Sara originally initiated a procedure before the court (and not before the administrative body) precisely because it was certain that the administrative procedure would not be conducted successfully.

The example of Sara (and many other persons who are not registered in birth registry books) shows to what extent the aforementioned position of the Supreme Court of Cassation was not purposeful and to what extent it complicates the regulation of the status of legally invisible persons and the obtaining of their personal documents. Sara wasted an entire year on the administrative procedure, which, even with the assistance received by Praxis, was difficult to complete and get a rejecting decision. Looking at the course of the procedure, it is clear that she would not be able to do it without legal assistance and that due to the encountered obstacles she would most probably give up further attempts to register in birth registry books.

Persons who are not registered in birth registry books are among the most vulnerable population groups in Serbia. Due to the lack of personal documents, they are either unable to access almost all of their rights or such access is significantly hindered. These are people who live in extreme poverty, who are legally ignorant, usually illiterate, without any experience in addressing public authorities and unable to conduct, without assistance, procedures that would allow them to register in birth registry books. Therefore, although free legal aid is necessary for them, the Law on Free Legal Aid has made access to such aid more difficult by imposing assistance-related restrictions on non-governmental organisations that undocumented persons have relied on for years, while the system of other legal aid providers usually does not function. On the other hand, the procedures conducted with the aim of registration are often complicated, time-consuming and burdened with various irregularities.

The Conclusion of the Supreme Court of Cassation has led to the situation where in order to exercise the right to register into birth registry books and obtain personal documents, legally invisible persons need to take an even longer, more difficult and uncertain path.

 

[1] Her real name has been changed to protect her privacy

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