The purist in me imagines bureaucrats running around maternity wards, struggling to catch all the details (“Name? Mother’s name? Sorry, can you repeat that…”) over the sound of new-borns screaming for the first time. That’s what Article 7 of the UN Convention on the Rights of the Child (“UNCRC”) says: “The child shall be registered immediately after birth…”. But it probably doesn’t mean that the registrar has to register the child immediately after birth in the delivery room. (And you can probably tell by now that I’ve never been in a delivery room myself.) So what does “immediately” mean?
We can probably all agree it doesn’t allow register offices in Serbia to delay the registration of (mostly Romani) children indefinitely because their parents do not produce identity documents when they come to register the birth of their children. The problem is that the officials who register the births of children are used to new parents coming to their offices and handing over their identity documents, which makes it easy to transfer the details into the birth registry and produce an excerpt from that registry (a birth certificate). When people don’t have those documents, the registrars, like bureaucrats the world over, get antsy. The administrative instruction they have from the central government is unhelpful. It says that officials should take the child’s details from the parents’ identity documents; but it doesn’t say what to do if the parents have no identity documents. So these officials do nothing.
The problem is not, at its core, a legal one. It’s really about discrimination. Combine the administrative inconvenience with the ambient anti-Gypsyism in Serbian society (like elsewhere in Europe), and what outcome do you expect for Roma, who are often missing documents because of centuries of discrimination combined with the forced movements they were subjected to during the wars of the 1990s). But the register offices have legal cover for what they are doing.
Article 23(2) of Serbia’s Law on Registries states: “The registrar is obliged to register data in the register without delay”. That includes births. It sounds perfectly compatible with Article 7 UNCRC: “immediately” and “without delay” sound enough like the same thing. The problem is the next bit, Article 23(3): “Exceptionally, registration may be deferred in order to verify or ascertain the missing data to be entered in the register”. It is not clear what makes a case exceptional and, importantly, how long they can “defer”. But Article 7 UNCRC contains no similar exception. (Nor does Article 24 of the UN ICCPR, which contains a very similar right to immediate birth registration.)
Registrars who refuse to register the births of Roma children do not cite Article 23(3) when they turn those new parents away. They might not even know about it. But it is giving them space in which to manoeuvre; if that sentence disappeared from the law, the registrars would have to register the births right away (under Article 23(2). It wouldn’t be hard for them to comply. The Law on Registries asks for some information that “comes with the child”, if I can put it that way: a name (given by the parents), names of the parents (which, at least as far as the mother is concerned, can be attested by anyone who saw her give birth), a date of birth (which can be supplied by anyone who was there). Some of the information might be harder, such as nationality, which may be difficult to determine, or a second parent’s name, which might be uncertain depending on the circumstances. But the Law on Registries (Articles 26 and 31) allow for incomplete registration if data is missing and later corrections of mistakes. So Article 23(3) is not necessary. And, more importantly, it violates the child’s right to immediate birth registration.
Praxis, the Serbia-based NGO and an ENS advisory committee member has been working with people in this situation for years. Unicef Insights survey data from 2014 reveals that almost 5% of Roma children born in Serbia are unable to secure a birth certificate, leaving them at risk of statelessness as a result of this rule. Together with Praxis and with the support of the European Network on Statelessness under their pan-European litigation strategy programme, we have now filed a constitutional “initiative” with the Constitutional Court of Serbia.
This is a procedure that allows anyone (in our case, NGOs) to complain in the abstract to the Constitutional Court that some legislative provision is incompatible with the Constitution. The remedy is excision: if our initiative is successful, the Constitutional Court will declare Article 23(3) inoperative, leaving immediate registration (Article 23(2)) as the rule. From a strategic-litigation perspective, the initiative procedure provides several advantages. We are not reliant on any individual family and their circumstances to litigate, which is good, given that there is an inherent tension between any individual family’s goals (to get their children’s birth registered straight away) and our goal (expose at a high level – so after lengthy litigation for individuals – that the system violates human rights). It also allows us to set out the arguments clearly, without getting bogged down in the details of why any particular family are not able to produce documents. (And the attempts – inevitable in litigation – for the authorities to show that individual plaintiffs are themselves at fault.)
There are disadvantages too. In reality registrars are probably unaware of the existence of Article 23(3); we have to hope that the effect of eliminating it is to usher in an instruction from the central authorities that will force registrars to register the births of all children. If we win, Parliament might reintroduce Article 23(3) in a new form designed to skirt the constitutional problem but still allow registrars to delay. From a Roma rights perspective (ERRC’s main concern), the weakness is that the case does not point to the discrimination at the heart of the problem (since we cannot say that Article 23(3) is racially discriminatory in the abstract); but it is our job to make that message clear in our other advocacy work.
And, of course, we might lose. “Immediately” can’t really mean immediately, they will say. There must be some time lapse between birth and registration. (And of course the Serbian Constitution – which is the instrument under which we are litigating, does not use the word “immediately”, but does protect a host of rights, including the rights of children to a name and a legal identity, which, we argue, should be interpreted in line with Article 7(1) UNCRC.) We did not find any authority on the interpretation of “immediately”, nor do we know of places with bureaucrats running from room to room in the maternity wards. We think the requirement for immediacy means that after birth prevents the State from delaying birth registration for any reason, once the parents of children appear in order to carry out the formalities of registration. Since Serbian law goes beyond that, it violates the rights of the children concerned.
And the link to statelessness? Ensuring birth registration for the prevention of statelessness is Action 7 in UNHCR’s action plan to end statelessness by 2024. They set out the link much better than I could. This is our contribution to that vision.