Birth registration of Roma children is becoming more difficult: a case study from Serbia

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 (not her real name). Sara’s birth was never registered and she does not possess any personal documents. At the same time, this is a story about new elements in Serbia’s legal system , which create additional obstacles when it comes to birth registration.  

Because 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. This made it impossible for her to register her daughter’s birth. The hospital where Sara was born did not notify the registry office.

Since the exact date of Sara’s birth was not recorded, and since her parents - lacking access to education and socially excluded members of the Roma community - did not remember the date of her birth, 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 the 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 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 2021, 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.

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 Sara that the request had been forwarded to the court (which had previously dismissed the request), stating that the court, and not the administrative body, was in charge of conducting the procedure. Essentially, both the court and the administrative body determined that they could not conduct the procedure.

Only 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. Unfortunately n July 2021, the administrative body adopted a decision dismissing the request because the mother and the witnesses did not provide 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. This decision failed to factor in that 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. 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 conditions for reopening a court procedure were met, Sara's mother again contacted the Free Legal Aid Service, alongside the Praxis team, who 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 Free Legal Aid Service then drafted a new request for determining the date and place of birth, which was submitted to the court in late February 2022.

The current status of the case

Today, 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 has 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 fit for purpose and the extent to which 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 ended with a  rejection decision. Looking at the course of the procedure, it is clear that she would not have been able to navigate this without legal assistance, and when faced with the obstacles involved, she would most probably have given up further attempts to register in birth registry books.

People who are not registered in birth registry books are among the most vulnerable in Serbia. Due to the lack of personal documents, they are either unable to access almost all of their rights. These are people who live in extreme poverty, who are excluded from education, 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. Although free legal aid is available, the Law on Free Legal Aid has made access more difficult by imposing assistance-related restrictions on the 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 a situation where, in order to exercise the right to register their birth and obtain personal documents, legally undocumented persons need to take an even longer, more difficult and uncertain path.

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