“Everyone has the right to a nationality”

Difficulties in Establishing Nationality as a Consequence of Lost Evidence

2 September 2013 | MILIJANA TRIFKOVIC, LEGAL ANALYST, PRAXIS

Difficulties in proving nationality in Serbia arise even for those persons who have acquired citizenship at birth and had unimpeded access to rights deriving from the citizenship status, but have been left with no evidence on their citizenship. Specifically, after 1999 Kosovo conflict, a significant number of registries recording the facts of birth, citizenship, marriages and deaths of citizens for the municipalities in Kosovo were relocated to central and south Serbia. A number of registries for the territory of Kosovo were destroyed during the conflict. Registries were preserved for some places and are located in Kosovo but are considered unavailable from the perspective of the state bodies in Serbia.

The persons registered in the registries that were destroyed in 1999 or became unavailable to the state bodies of the Republic of Serbia are forced to go through the procedure of registration in the reconstructed registries. Until they manage to re–register and obtain valid birth and citizenship certificates, these persons are, in terms of access to rights, in the same position as the persons who have never acquired citizenship. For the lack of evidence required in these procedures, many have not yet managed to prove the previous registration of the fact of birth, marriage or citizenship, even though 14 years have elapsed since the registries were destroyed/became unavailable. Some registries were preserved (but they remained in Kosovo) and therefore the citizens could obtain the certificates issued by Kosovo authorities. However, such documents have no impact on the outcome of the procedure of registration in reconstructed registries in Serbia because the deciding bodies do not acknowledge the power of evidence to documents issued in Kosovo.

The most onerous proof requirements are set for proving the previous registration of citizenship. The Ministry of Interior gave the instructions to the competent first-instance bodies in regard to eligible evidence in the procedures of reconstruction of citizenship registry books. According to the instructions, the registration in the reconstructed citizenship registry books can be conducted based on the citizenship certificate issued before 1999 or data on citizenship and residence of citizens obtained from the MoI electronic database. If this data is not available, the previous registration could be proved based on the previously issued birth certificate that contains the registration of the fact of citizenship of Republic of Serbia. That’s where the list of “eligible” evidence ends. The persons who lacked the above mentioned documents at the time of leaving Kosovo or failed to take the documents with them, find themselves in a situation of not being able to prove their citizenship and previous registration in the registries. Their requests for re-registration are rejected and they are referred to the lengthy procedure of determination of citizenship whose initiation requires the collection of even more evidence than in the case of re-registration procedure, as it requires enclosing the documents for parents in addition to those for the submitter of the request.

In order to submit a request for registration in reconstructed citizenship registry book, Praxis’ client Hanumsa enclosed her birth certificate containing the fact on registration of SFRY citizenship (but with no evidence on the Republic citizenship), the copy of her ID card, passport, marriage certificate, Serbian citizenship certificate for her brother, evidence on having been employed in the place of her birth and conclusion of marriage. Negative first-instance decision was reached two years after the submission of the requests and soon after her complaint against that decision was rejected. The explanation of the second-instance decision points out that the fact that Hanumsa had SFRY citizenship does not mean that she was registered in the citizenship registry books of the Republic of Serbia, but that she could have the citizenship of any of the six republics of SFRY. Other SFRY republics preserved their registries and the competent body could easily make sure that she was not registered in the registries of any of the former SFRY republics. However, her complaint was rejected based on the mere assumption made by the competent body. In addition to the birth certificate with the registered fact on SFRY citizenship, Hanumsa enclosed evidence confirming that besides SFRY citizenship she could only have the Serbian citizenship (regarding republic citizenship). However, the second-instance body concluded that such evidence was irrelevant in the procedure of registration in reconstructed citizenship registry books as this procedure does not establish that a person had the right to citizenship of the Republic of Serbia, but that it was necessary to prove the time, basis and place of registration in the citizenship registry book. Hanumsa has no prospects to succeed in the procedure of determination of citizenship either, referred to by the competent body. This procedure (for persons who acquired the citizenship at birth but the fact of their citizenship was not registered) requires enclosing the documents for parents and Hanumsa lacks this evidence because her parents were born in the same place as she was and therefore their respective registries were also destroyed. To obtain the documents of her parents, she would have to conduct the procedures of registration in reconstructed registries, which is not possible for the lack of evidence.

These are just some of the difficulties in the procedures of registration in reconstructed registry books faced by persons who live without documents and the possibility to access any right for not being able to fulfil unreasonable conditions imposed on them while trying to prove the previous registration of birth and citizenship.

Civil registries were one of the issues for discussion during technical dialogues between Belgrade and Pristina. This issue became again the subject of attention in the first half of August when EULEX representatives handed over 1,550 certified copies of registry books from Serbia to the Kosovo Civil Registration Agency, based on the agreement reached two years before (more information about the problems caused by taking registries from Kosovo for those who continued to live in Kosovo can be found in the Kosovo Citizenship Report). The successful handover of certified copies of registries should enable the establishment of reliable records on the citizens of Kosovo.

However, there is still no sign of the solution for persons registered in destroyed or unavailable registries, who are now living in Serbia and trying to exercise their rights. Based on the Law on Registry Books, in case of destroyed or missing registries, the competent bodies are obliged to reconstruct the civil registries without any delay and require the citizens to provide only the data known to them. However, the reconstruction of registries has lasted for 14 years already and citizens, who on the basis of the law should provide only the available data, are in practice required to prove the precise place, time and basis of registration in registries. This additionally extends the highly irregular situation resulting in many-year deprivation of rights of a large number of persons, primarily the displaced. Even though more than a decade has elapsed from the date of their displacement and contrary to Guiding Principles on Internal Displacement, these persons are deprived of obtaining the documents they need for normal life, freedom of movement and access to other human rights.

For more information on the issue of destroyed civil registries, see Praxis` reports from 2010 and 2011.

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