Vicious circles of Roma statelessness in Serbia – A road map

Ivanka Kostic – Advocacy Consultant on Statelessness, Praxis, Serbia
/ 6 mins read

The Roma community in Serbia continues to endure challenges when it comes to birth registration and citizenship acquisition. The risk of statelessness in the Roma community easily spans generations, hampering their access to basic benefits and rights and exacerbating their social exclusion and marginalization. This blog highlights the legal mechanisms in Serbia that perpetuate vicious circles of Roma statelessness and presents recommendations for the work ahead.  

(c) Greg Constantine Legally Invisible in Serbia
Informal settlement in Belgrade. Photo: (c) Greg Constantine

Significant Barrier to Universal Access to Immediate Birth Registration

Undocumented members of the Roma community continue to face unique challenges in late birth registration, acquiring citizenship and registering their residence (see Statelessness Index data on Serbia and the Statelessness Index country briefing on Serbia for an overview). Only after successfully navigating these procedures, are they able to obtain ID cards and gain access to rights and services; an ID card is proof of a person’s identity, Serbian citizenship and residence in Serbia.

The bylaws on birth registration require the parents (or at least the mother) to present their birth certificates and identity documents in order to be able to register the birth of their child. Therefore, undocumented parents first need to conduct procedures to obtain their own documents, and only then can they finally register the birth of their child. These procedures will significantly delay the birth registration of their child, increasing the risk that the birth remains unregistered.

Over several years and as recently as June 2021, Praxis has repeatedly petitioned the responsible ministries to amend the bylaws on birth registration to facilitate timely birth registration that satisfies the “immediate standard’ defined by UNICEF as within several days after a child’s birth. See Praxis’ June 2021 advocacy brief All Children have the Right to Register in the Birth Registry Immediately after Birth.

Rather than addressing the documented evidence of delayed registration of births, the Ministry of Public Administration and Local Self-Government, in its correspondence with Praxis, merely restates that there is no need to amend the bylaws since the legal framework enables every person, every child, to be registered in the birth registry, once again disregarding the fact that children of undocumented parents cannot be registered immediately after birth. The Ministry also cites that all citizens over 16 have a legal obligation to have an ID card and claims that unregistered births are now a rare occurrence, while emphasizing that it is in the child’s best interests for the Ministry to ensure that the birth registry contains accurate information in order to prevent possible child abuse, such as trafficking of children and human beings.

How can it be in the best interests of a child not to be registered immediately after birth, but rather several months or even years after? How can a child that is not registered in the birth registry have adequate protection from exploitation, abuse or human trafficking? If the unregistered births are now “a rare occurrence”, how does this justify refusing to amend the bylaws and enable universal immediate birth registration?

The Ministry does not take into consideration that Serbia is actually legally obliged to respect the right of all children to be registered immediately after birth and have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents.

The responsible ministries should take all necessary measures to amend the bylaws to ensure that all children are registered immediately after birth, without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s rase, colour, language, religion, national, ethnic or social origin or other status, through a well‑managed registration system that is accessible to all.

Where there is a (political) will, there is a way

In 2018 Praxis submitted an initiative to the Constitutional Court of Serbia to assess the provisions of the bylaws that prevent registration of children in the birth registry immediately after birth, in cases when the children’s parents do not possess personal documents. The Constitutional Court rejected the initiative in Sep 2019, on the grounds that possession of an ID card is legally binding on all citizens who are over 16 years of age and have permanent residence in Serbia. Read more about the facts and legal arguments in the case in the ENS Statelessness Case Law Database.

The UN Human Rights Committee, the European Commission and the European Parliament have each highlighted Serbia’s failure to meet its obligations to guarantee all children the right to registration immediately after birth. Similar recommendations were previously issued to Serbia by the UN Human Rights Council, the UN Committee on the Rights of the Child, the UN Committee on Economic, Social and Cultural Rights and the UN Committee on the Elimination of Discrimination.

For more details see Praxis’ December 2021 website post Serbia Continues to Ignore Recommendations of International Bodies and Undertaken Obligations.

The European Commission’s 2021 Progress Report on Serbia adopted Praxis’ recommendation that Serbia should ensure that all children born in Serbia have access to birth registration, immediately after birth, regardless of the status of the parents. See Praxis’ Contribution to the 2021 European Commission’s Progress Report on Serbia.

Late birth registration – challenges that jeopardise achieved progress

Ten years ago, Serbia made an important step to prevent and reduce statelessness by amending the Law on Non-Contentious Procedure. The Amendments introduced a simplified and accelerated court procedure to enable late birth registration of people whose birth could not be registered in an administrative procedure. The administrative procedure of late birth registration has been impossible to complete if the applicant’s mother is undocumented, unknown, or unable to participate in the procedure, or where there were no witnesses of birth, or evidence of the date and place of birth.

Due to this legislative reform, many people who had been unsuccessful in navigating the administrative procedure of late birth registration for years, have finally been registered in a court procedure. They were able to acquire Serbian citizenship, register their residence in Serbia and obtain an ID card for the first time in their lives, and then register the birth of their children and exercise basic rights and services. This legislative reform was a big and very important advocacy breakthrough achieved by concentrated joint advocacy efforts of Praxis, Roma associations and many other civil society organizations.

Despite the progress, there have been a number of challenges in the implementation of the non-contentious procedure for late birth registration. Furthermore, the 2020 Supreme Court of Cassation ruling on the jurisdiction of the non-contentious court in the procedures for the determination of date and place of birth, could jeopardize the achieved progress. In its 2020 ruling, the Supreme Court of Cassation took the position that non-contentious court procedures for late birth registration could be conducted only if the administrative procedure for late birth registration has been previously conducted and the request had been rejected.

The application of this ruling by first instance courts will significantly prolong and complicate late birth registration, especially in cases where it is obvious that there is no prospect of success in administrative procedures (e.g., if parents are deceased or not available to participate in the procedure or there are no witnesses of the birth). It will most certainly increase the risk that births remain unregistered and therefore the numbers of people who are not registered in the birth registry will start increasing. See Praxis’ November 2021 advocacy brief Challenges in the Implementation of procedures for determination of date and place of birth.

For more details about the different challenges in the implementation of the non-contentious procedure, immediate birth registration, acquiring citizenship and registering residence see Praxis’ 2020 Overview.

Looking Ahead – The Road Map Needed

Roma and other civil society organizations need to continue spearheading advocacy and litigation activities at national and international levels with the aim of achieving the key goals towards ending statelessness among the Roma, including universal immediate birth registration, adequate implementation of the non-contentious court procedures for late birth registration and adequate implementation of statelessness safeguards for otherwise stateless children born in Serbia.

It is absolutely crucial for Serbia to have a Road map towards ending statelessness among the Roma, and for it to be incorporated in the revised Strategy for Roma integration. See Conclusions of the Second Ministerial Meeting on Roma Integration (June 2021).

Ivanka Kostic was engaged by Praxis on the project Ending Roma statelessness in the Western Balkans, funded by Open Society Foundations, Roma Initiatives Office, through the European Network on Statelessness

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