There is no doubt that the procedure for determining the time and place of birth established by the Law on Amendments to the Law on Non-Contentious Procedure, constitutes great progress towards solving the problem of legally invisible persons in Serbia. In addition to its positive impact on birth registration in registry books, the envisaged non-contentious procedure very often allows individuals access to citizenship. However, only those individuals who possess evidence of their origin and proof of citizenship of their parents are able to benefit from these amendments. The procedure for determining the time and place of birth has left persons who cannot prove these facts in an uncertain situation and at a high risk of statelessness.
The situation described above clearly illustrates the position of Praxis’ client, Zoja. Zoja is a 34-year-old Roma woman originally from Kosovo. Before the adoption of the new law, which provides for a non-contentious court procedure of determining the time and place of birth, her birth could not be entered in registry books through an administrative procedure because Zoja did not have the personal documents of her parents.
According to Zoja, sometime in 1996 she left Kosovo and moved to Serbia, where she entered into a common-law marriage and later gave birth to nine children. After leaving Kosovo, she lost almost all contact with her parents. After 1999, her parents and siblings went to Bosnia and Herzegovina, and then to Canada. Except for their names, Zoja has no information about her parents, which makes it impossible to find records of their identity documents.
As a legally invisible person, Zoja did not have a health card. Wanting to secure a safe delivery for her children, Zoja used someone else’s health card each time she gave birth. Unfortunately, this meant that her children were registered as the children of the women whose health cards she had borrowed. Resolving this situation involves lengthy, exhausting and uncertain court procedures for determining motherhood.
Thanks to the non-contentious procedure, Zoja is allowed in these circumstances to be registered in birth registry books and to finally obtain a birth certificate, but the issue of her citizenship remains unresolved. Because she is unable to provide proof of her parents’ citizenship, Zoja cannot acquire citizenship on the basis of her origin and birth in the Republic of Serbia since she is required to establish that one or both of her parents were Serbian nationals at the time of her birth.
Zoja’s last option for exercising the right to citizenship is naturalisation. According to Serbian legislation, the requirement for acquiring citizenship in this way is that the person concerned was born in the territory of Serbia and that he or she had two years of uninterrupted residence in Serbia before applying for naturalisation. Zoja has been residing in Serbia de facto since the time of her birth, but she cannot obtain a certificate of residence because she could not register her residence in Serbia due to the lack of documents. She would have to prove her residence in Serbia for at least two years by indirect evidence such as witness statements, the fact she gave birth to her children in Serbia and so on. If we take into account that the authority responsible for citizenship has significant discretion in decision-making, it is clear that Zoja's chances of becoming a citizen are very small. Moreover, naturalisation procedures last several months or even several years and require the payment of a fee that Zoja, without documents and thus without the possibility of obtaining an income, cannot afford.
Being stateless, Zoja does not enjoy even the minimum protection of fundamental rights in the country where she lives. If we start with the understanding that citizenship includes entitlement to rights, then it is quite logical that Zoja is confused about which rights she can exercise in her present situation. Without citizenship, Zoja cannot obtain an identity card, a document that is required in Serbia for exercising almost every socio-economic right. Her financial situation, living without any income, cannot be improved without external financial support. However, until she obtains an ID card, which she can only get if she solves the issue of citizenship, Zoja and her children cannot be included in the welfare and health care system.
Zoja’s case proves once again the need to streamline and simplify the procedure for birth registration. Her case clearly illustrates the scope of the problem caused by the multigenerational lack of documentation. Additionally, this case demonstrates the inadequacy of efficient prevention of statelessness among children and the violation of the child’s right to acquire a nationality. Efficient protection would involve a simple procedure of registration of children at birth, regardless of whether the parents have identity documents. In this case, it would mean that today Zoja's children are Serbian citizens and have access to all rights. However, because this is not the case, Zoja will have to prove that she is the mother of her children and then undergo the procedure of acquiring citizenship for them and for herself.
Register now for the European Network on Statelessness conference “None of Europe’s Children Should be Stateless” which will take place in Budapest on the 2nd and 3rd June 2015. More information is available here