In August 2012, a new court procedure for determination of date and place of birth was established in Serbia. It is intended for the persons who cannot get registered in the birth registry book through an administrative procedure. The first effects of this procedure have already been visible. In the first year following the enforcement of the amendments to the Law on Non-Contentious Procedure, through which the new court procedure was established, the date and place of birth were determined for approximately 150 persons who could not get registered in the birth registry book. It testifies to the impact of the improved birth registration procedure on the resolution of the problem of legally invisible persons.
Following the registration in the birth registry book on the basis of the court decision, the persons who used to be legally invisible should conduct a procedure for acquisition of citizenship. Most of Praxis’ clients who were registered in the birth registry book on the basis of the court decision are still awaiting decisions upon their citizenship claim. It is, therefore, still early to completely realize the effects of the new procedure on the prevention of statelessness. However, even the procedures for determination of date and place of birth that have been completed so far confirm to what extent the exercise of the right to a citizenship depends on the existence of an efficient birth registration procedure.
Before the adoption of the amendments to the Law on Non-Contentious Procedure, for the majority of legally invisible persons, the inadequate procedures of birth registration and subsequent birth registration were the only obstacles preventing them from acquiring citizenship. The change of regulations that facilitates subsequent birth registration could, at the same time, eliminate the risk of statelessness among these persons. This is visible through the example of three Praxis’ clients who had been trying to get registered in the birth registry book through an administrative procedure for more than five years. Owing to the new court procedure, their date and place of birth were determined in four months’ time and they have already obtained citizenship certificates. Given that they were born in the territory of Serbia and that, at the moment of their birth, they had a parent who was a Serbian citizen, they acquired Serbian citizenship at birth. Prior to the establishment of the new procedure, they had been living without documents for more than 30 years and could not prove their right to a citizenship for the impossibility to get registered in the birth registry book.
On the other hand, the procedures for determination of date and place of birth that have been completed so far reveal the consequences of the years of neglect of the population groups that were facing problems with birth registration. For a number of persons, the newly established procedure has paved the way to registration in the birth registry book, but not to the exercise of the right to a citizenship. The persons coming from families that were facing the problems with birth registration for generations do not have any data today about their parents and cannot prove that they have acquired the citizenship by origin. They have been denied the access to citizenship for the same reason for which they were denied the registration in the birth registry book until recently – the lack of parents’ documents. These persons cannot even rely on the protection mechanisms envisaged by the 1961 Convention and the Law on Citizenship both aimed at preventing statelessness among children born in the territory of the state. In practice, only the children up to 18 years of age may benefit from these provisions.
The afore-mentioned circumstances limit the effect that the more flexible subsequent birth registration procedure might have on the prevention of statelessness. This is clearly illustrated by the cases in which the courts could not even establish the last name of one of the parents or place of birth of the legally invisible persons (in such cases, the legal assumption on the place of birth is applied). Despite facilitated conditions for subsequent registration, in some cases it is not possible to establish facts that are significant for the acquisition of citizenship. In the context of prevention of statelessness, it is evident why the system which enables timely birth registration of every child is irreplaceable. One of the issues that should yet be resolved in Serbia refers precisely to the timely registration of every child. The new non-contentious procedure has proven to be a good practice example and an adequate tool for reduction of the number of persons who were not registered in the birth registry book immediately after birth. However, bearing in mind the current number of undocumented persons in Serbia, it is necessary to alleviate conditions for birth registration of children whose parents do not possess documents in order to prevent new cases of legally invisible persons and those at risk of statelessness. At the same time, the solution should be found for the persons who were denied the access to citizenship precisely due to previously inadequate birth registration procedure. In most cases, the legal basis that would lead to the solution is already contained in the provisions regulating the acquisition of citizenship for otherwise stateless persons born in the territory of the state. However, all those who fail to submit citizenship claim before the expiry of the deadline established in practice (18 years of age) remain out of reach of the stated provision. Such practice is not in line with domestic citizenship legislation and, in case of persons between 18 and 21 years of age, it is also contrary to the obligations of the state stemming from the 1961 Convention because otherwise stateless persons of this age remain unprotected.
Additional reason for concern is the provision of the Law on Non-Contentious Procedure which prescribes that the body in charge of conducting a procedure for acquisition of citizenship shall not be bound by the final and binding court decision on the date and place of birth of a legally invisible person. Consequently, a person who was registered in the birth registry book on the basis of a court decision may fulfil all the conditions for acquisition of citizenship, but, due to the disputable provision, the outcome of his/her citizenship claim will remain uncertain. Even though this provision has not been applied in practice so far, the general and broad authority which has been given to the body competent for the citizenship affairs causes legal uncertainty and renders the guarantees to the right to a citizenship meaningless.
Looking back at the first year and a half from the adoption of the Law on Amendments to the Law on Non-Contentious Procedure, it may be concluded that Serbia has made a priceless step forward to solving the problem of legally invisible persons and, often, to the exercise of the right to a citizenship for these persons. However, it emerged that not all the conditions had been created to completely eliminate the risk of statelessness among these persons. As expected, the well-known relation between the exercise of the right to a citizenship and birth registration was once again confirmed. Finally, the stated problems related to the deviations from the legal solutions in practice or related to the provision causing legal uncertainty show why the precise and unambiguous regulations on citizenship are very important for the prevention of statelessness. Without them, even the solutions that are completely harmonized with the international standards may prove to be insufficient for the prevention of statelessness.
In comparison to the changes that happened in Serbia in the past three years (amendments to the Law on Non-Contentious Procedure, accession to the 1961 Convention, new Law on Permanent and Temporary Residence of Citizens, cooperation between UNHCR and relevant state bodies), the remaining obstacles do not seem so huge. Yet, neglecting them might significantly diminish the effects of the changes adopted with the aim to solve the problems of persons without documents.
More data on the procedure for determination of date and place of birth are available in the recently published Praxis’ report.