Jasmina Mikovic, Praxis Deputy Executive Director, said for Pravi odgovor that Praxis had presented the report “Domestic Violence Prevention and Protection” published with the UNHCR support at the press conference held on 2 February 2009 in Medija Centre in Belgrade. The report gave an insight into Praxis experience acquired during a three-year period of the implementation of the project “Sexual and Gender Based Violence against Refugees and Internally Displaced Persons in Serbia – Prevention and Response”.

Jasmina said that systemic solution of the problem of domestic violence required not only the modern and comprehensive legal text but working on awareness raising, prejudice breaking and gender equality achievement.

Read the whole text (Serbian only): News from March 2009 published in Pravi odgovor, page 28

On 5 February 2013, Republic Fund of Health Insurance (RFHI) issued the Instruction for acting of competent branches in cases of persons of Roma nationality applying for health insurance. The Instruction was issued in accordance with the latest changes of the Regulation on the content, form and manner of submitting a unique application for mandatory social insurance, unique methodological principles and unique codex of codes for entry of data in the unique basis of the Central Register of mandatory social insurance (adopted in January 2013) in relation to conditions for applying for social insurance for persons of Roma nationality, who cannot be insured on some other grounds from the provisions of the Law on Health Insurance.

At first sight, the goal of the issuance of the stated act is compliance of the current regulations in the area of health insurance with the new solutions of the Law on Permanent and Temporary Residence of Citizens and accompanying bylaws (Rulebook on Form for Registration at the Address of the Social Welfare Center (SWC) and Instruction for acting upon registration of permanent residence at the address of SWC), which envisage the possibility of registration of permanent residence at the address of SWC for persons without the legal basis of housing in the Republic of Serbia (the ownership right over the apartment, contract on the apartment lease or other legal basis). RFHI Instruction has envisaged that persons of Roma nationality can obtain the status of RFHI insurer based on the statement that they are persons of Roma nationality and registration of their permanent residence at the address of the institution or SWC.

Praxis points out that in the period from July 2010 to March 2012, persons of Roma nationality were able to obtain health insurance based on the statement on the address of residence, without the request for fulfillment of conditions for formal registration of permanent residence. Specifically, the obligation to enclose the registration of permanent residence has been previously prescribed by the Rulebook of the Method and Procedure of Exercise of Rights from the Mandatory Health Insurance. After Praxis initiated the procedure for the assessment of constitutionality of the Rulebook before the Constitutional Court of the Republic of Serbia, the Rulebook was amended and the respective obligation abolished for the persons of Roma nationality without permanent or temporary residence. However, in March 2012, some RFHI branches started acting upon the Regulation on the content, form and manner of submitting an application for mandatory social insurance, requesting thereby from the Roma applicants to enclose the registration of temporary residence when applying for health insurance. However, in some RFHI branches, Roma applied in accordance with the rules of the amended Rulebook (without the registration of temporary residence). The application of the provisions of the Regulation has again imposed a hardly surmountable obstacle to the exercise of rights to health insurance and health care.

The adoption of RFHI Instruction directs the acting of the competent branches: adopted rules indicate that the acting bodies will require evidence on registered permanent residence in addition to the statement on belonging to Roma nationality.

Newly adopted solutions of the Law on Permanent and Temporary Residence of Citizens and accompanying bylaws were used as a basis for the adoption of new rules for acting of RFHI branches. However, it is worth pointing out that the registration of permanent residence at the address of SWC remains disputable. Polemics between the representatives of the competent ministries and services are still active, new solutions of the Law on Permanent and Temporary Residence of Citizens have not been consistently applied and social welfare centres receive requests for the registration of permanent residence at their address sporadically and rather reluctantly, mainly due to the lack of detailed information on the manner of acting. By observing the recent regulations in the concerned area, it can be concluded that the representatives of the competent ministries are still unable to provide complied and precise answers to some questions important for conducting of procedures needed to resolve the issue of registration of permanent residence. On the other hand, owing to the application of RFHI instruction, the branches  will require from persons of Roma nationality to enclose evidence on permanent residence, which is a condition many will not be able to fulfill unless the conditions for registration of permanent residence at the address of SWC are created.

The above stated supports the fact that the situation in the concerned area is confusing and additionally complicated by adoption of regulations that are not aligned with each other, that are insufficiently precise or contrary to the goals of protection of rights and interests of vulnerable population groups. In order to eliminate ambiguities, harmonize the procedures and solve socially sufficient problems of Roma population in the most adequate way, it is necessary to synchronize normative activities of responsible bodies, to approach the problem systematically and, certainly, to invest some effort to reach the solution as soon as possible, in order to enable the members of the vulnerable Roma population to access the right in a simplified manner.

On 1 March 2013, the seminar for judges acting in the first and the second instance procedures and judicial associates from the Region of Sumadija and Pomoravlje was held in the Basic Court in Kragujevac on the amendments to the Law on Non-Contentious Procedure, which stipulate a new procedure for determination of time and place of birth. This was the second councelling for judges and judicial associates organized with an aim to ensure more detailed introduction into the concerned legal regulations and their effects in practice. The intention of the organizers was, among others, to bring the goals of Technical group formed on the basis of the Memorandum of Understanding and concluded between the Ministry of Justice and Public Administration, Ombudsperson and UNHCR, closer to the judicial bodies. The participants were addressed by the Assistant to the Minister of Justice and Public Administration Jasmina Benmansur, who talked about the registration in the birth registry book and the significance of newly adopted solutions for the stated procedure, then by the Assistant Secretary of the Ombudsperson, Mr Robert Sepi, the Associate Protection Officer at UNHCR Davor Rako, Praxis Legal Advisor Jelena Milonjic, and a professor of the Faculty of Law at the University of Belgrade, PhD Nikola Bodiroga.

The representatives of institutions and organizations working on the protection of rights of individuals and vulnerable groups – Ombudsperson, UNHCR and Praxis, pointed at the importance and effect of standardization of the procedure for determination of the fact of birth for the eradication of the phenomenon of legally invisible persons in Serbia. Upon the presentation of the Deputy General Secretary of the Ombudsperson on the regulation of civil status and expected effects of new regulations on certain problematic situations occurring in practice, Praxis representative presented the specific examples from the practice of this organization.

PhD Nikola Bodiroga talked about the legal aspects, interpretation and analysis from the viewpoint of practical implementation of newly adopted solutions. The guidelines for acting upon some provisions of the new law were given. In addition to considering the issues of the court competence, ex-officio procedure, the contents of the motion for the initiation of the procedure, process issues and issues related to the solution and procedure for putting it out of force, PhD Bodiroga also gave some useful suggestions in terms of more extensive interpretation of the term “legal interest for initiation of procedure”, in order to enable the initiation of this procedure by legal persons, collectivity, associations, bodies and organizations dealing with the protection of human and minority rights, rights of vulnerable groups, etc.  Also, the interpretations referring to the mutual relation of the concerned non-contentious and administrative procedures of subsequent birth registration were also presented. Since the existing provisions of the Law do not provide judges with sufficiently precise instruction for proceeding. The presenter was of the opinion that it was not necessary to wait for the completion of the concerned administrative procedure and that the court should not be bound by decisions or activities taken in the previously (or simultaneously) conducted procedure of subsequent birth registration before the administrative bodies. An issue that was also raised was that of the possibility of conducting the procedure of determination of time and place of birth for the use of the concerned court decision for the registration in birth registry book of persons from the territory of Kosovo in case of destroyed or missing registry books where it is not possible to conduct the reregistration in registry books in the administrative procedure for the lack of suitable evidence. The Assistant to the Minister of Justice and Public Administration suggested  that with the appropriate corrections of the existing bylaws, the procedure for determination of time and place could also be conducted with an aim of birth registration for persons from Kosovo that find themselves in the above stated situation.  However, nothing concrete could be stated apart from the critique of the adopted solution and hope that legislative bodies would soon tackle the correction of the valid provision, about the essentially most disputable solution of the new Law on Amendments to the Law on Non-Contentious Procedure, Article 71k, Item 2, envisaging that the body of the internal affairs is not bound by the court decision on determination of time and place of birth when reaching the decision on citizenship. The proposal for the deletion of the Article 71k, Item 2, of the Law on Non-Contentious Procedure was submitted to the National Assembly on 4 February 2013 by the Ombudsperson.

Through the discussion in the final part of the seminar, the present judges expressed their opinions about the newly adopted regulations and exchanged their experience in conducting a few initiated procedures for determination of the time and place of birth in Sumadija and Pomoravlje regions. It was pointed at the delicacy of adopted solutions regarding the length of deadline for conducting the procedure, dilemmas in reference to certain evidence and problems encountered in practice. The conclusions that were drawn refer to the need for specifying some provisions of the new law, which could be achieved through the issuance of precise guidelines for interpretation and possible corrective intervention of the legislator. Furthermore, joint expectancy was expressed that the existing dilemmas would be removed through the establishment of practice by deciding upon a more significant number of requests for determination of time and place of birth.

The adoption of the Law on Permanent and Temporary Residence of Citizens as of November 2011 was announced as paving of the way to the solution of the problem of registration of permanent/temporary residence for persons without a legal basis of housing in the Republic of Serbia (property right over the apartment, apartment lease contract or other legal basis). Specifically, the possibility offered by the new law related to the registration of permanent residence at the address of the institution in which a person is permanently accommodated or at the address of the competent social welfare centre would largely simplify the administrative procedure necessary for the exercise of basic human rights of the vulnerable population group, primarily the homeless and persons living in informal settlements, but also others who due to the lack of a legal basis for registration of permanent/temporary residence suffer negative consequences in terms of the accessibility of guaranteed socioeconomic and other rights.

The adoption of the new law has set up the framework and deadlines for the adoption of appropriate bylaws, which would regulate the manner of the implementation of the law more thoroughly. Consequently, ambiguities in practice would be avoided and there would be no need for “ad hoc” steps in solving the problem of registration of permanent/temporary residence.

However, the responsible institutions  have failed in their work: not only were the legal deadlines for passing the suitable bylaws unobserved, but the significant segments of the concerned problem remained unsolved even after the adoption of the Rulebook on Form of Registration of Permanent Residence at the Address of Institution or Social Welfare Centre (adopted on 30 November 2012, thus greatly exceeding the legally stipulated deadline of 3 months for adoption).

Since the adoption of the Law on Permanent and Temporary Residence of Citizens, Praxis has been monitoring the application of norms, including the results of the long expected bylaws. The conclusion that can be drawn based on the experience from practice is that not much has changed. Praxis will continue monitoring the implementation of positive regulations in this field, by making efforts as to ensure that the implementation of the adopted norms is conducted at a practical level too, as adequately and appropriately as possible.
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See: Rulebook on Form of Registration for Permanent Residence at the Address of Institution or Social Welfare Centre

The outcome of the procedures conducted for the collection of child support in Serbia usually does not provide adequate protection of interest of child support beneficiaries, both for the inappropriate length and frequent impossibility of collection of support or alimony determined by court decisions. In EU countries, the situation in the concerned area is far more advanced, which is evidenced by the procedure for collection of child support from the father residing in Finland that is currently conducted in line with rules of the international law.

By submitting the request to the Ministry of Finance and Economy of the Republic of Serbia on 14 January 2013, the executive procedure was initiated for the collection of child support from the person residing in Finland, based on the decision of the court of the Republic of Serbia. The procedure is conducted in line with the provisions of the UN Convention on the Recovery Abroad of Maintenance from 1956.  Pursuant to the rules and procedures of the Convention, the request was sent to the Ministry of Justice of the Republic of Finland. The documentation needed to be enclosed in the request was extensive and its collection lasted for several months, but the significance of this circumstance is substantially diminished by the promptness of further acting of competitive institutions. Specifically, the competent Finnish Ministry, as a mediator in the collection of child support, sent the response to the submitter of request as early as on 16 January 2013. The concerned notice provided a detailed procedure that would follow the submitted request. The conducting of the procedure until the final collection of all due amounts of child support, along with the current amounts, will be in charge of Finnish state bodies and institutions.  According to the Finnish legislation, the submitter of request is also guaranteed free legal aid and exemption from costs of alimony procedure that will be conducted in Finland. Such protection of interest of child support beneficiaries is surely the solution that should be regulated in Serbia as well. However, the Serbian legislation cannot boast of similar regulations. In addition to the stated, the Finish regulations offer the possibility of increase of amounts of child support in case case of the change of facts and circumstances, upon the request of the beneficiary.  That possibility has been used in the concerned procedure by the legal representatives of our citizen – the request for the change (increase) of determined amount of child support has been submitted and the competent Finish bodies are expected to provide their opinion in the course of the procedure.

According to the information received from the Ministry of Finance and Economy of the Republic of Serbia, the described procedure is the first case of the collection of support from the person residing in Finland, and thus it represents the first steps towards the establishment of practice in this field between Serbia and Finland. Based on the recent course of the procedure, we conclude that efficient realization of the collection of child support can be expected, and the application of the rules of the international law, in the concrete case of the UN Convention from 1956 points to the fact that it is possible to conduct alimony procedures quickly, efficiently and by respecting the integrity and interest of persons in need of support.

Soon after the enforcement of the Rulebook of procedure for registration of permanent residence at the address of social welfare centre (CSR), which closely regulates the stated possibility of the registration of permanent residence, twenty-one year old M.Z., an internally displaced person from Kosovo in 1999, was registered at the address of SWC Kraljevo in accordance with the provisions of the new Law on Permanent and Temporary Residence of Citizens.

Newly adopted regulations express the intention of the legislator to remove the obstacles arising from the factual impossibility of the registration of permanent residence, which mainly affects the most endangered population categories. The procedure conducted before CSR Kraljevo is surely an example of good practice and a sign of good will of competent services to find an efficient and applicable solution for the persons from the stated category. Even though the cases of the registration of permanent residence at the address of SWC are not numerous, we do hope that this practice will be established.

Once she regulated the issue of permanent residence, M.Z. obtained ID card with validity date of 10 years, what enabled her to access socioeconomic and other rights. Procedures before CSR Kraljevo and Police Department Kraljevo were conducted without difficulties, which should serve as an example of good practice.

In December 2012, non-governmental organization Praxis published the report “No Residence, No Rights”, as part of the project financed by the United Nations High Commissioner for Refugees (UNHCR) based on data collected during the period from September 2009 to November 2012, along with the provision of legal assistance to members of marginalised groups in the procedures of registration or change of permanent or temporary residence in Serbia. Since in November 2011 the Republic of Serbia adopted a new Law on Permanent and Temporary Residence, one of the objectives of this report was also the analysis of the implementation of this new Law, with special emphasis on the provisions that should allow the registration of permanent residence to members of marginalised groups.

Permanent residence implies the closest territorial connection between an individual and a legal system - a place where a person has willingly created the closest ties, which is the centre of his or her life relations, in which he or she has started a family, got employed, set up a home... Recognising the importance of the individual's connection with the place of his or her life activities and assuming that every citizen has a permanent residence in some place, i.e. only one place in the country, the legislator tied a number of important aspects of its citizens' lives to that place.  

The concept of permanent residence in the legislation of the Republic of Serbia is based on two elements: objective (settlement and residence or factual presence in one place) and subjective (intention of residing permanently in that place). However, in order for these constituent elements to lead to the situation that, in the place where a person lives, he or she can apply to health insurance, exercise the right to social protection if he or she is in the state of need or access any rights whose exercise is related to the place of permanent residence, the factual presence in one place and the intention of residing permanently in that place are not enough. The existence of these required constituent elements of domicile must be accompanied by the registration in the records of the competent authorities, and the condition for this is the previous approval of request for registration of permanent residence. The difficulties that arise when certain categories of the population of Serbia submit a request for registration of permanent residence have been leading for decades to a phenomenon that may be called domicilelessness. These difficulties mainly arise from the fact that some people, mainly Roma from informal settlements, cannot document ownership or housing on other basis. The registration of permanent residence is the obligation of every citizen and the requirement to be met in order to obtain an identity card. The possession of ID card is a prerequisite for access to almost every right and a legal obligation of every person over 16 years of age. Without an identity card and registered permanent residence, the basic rights remain inaccessible even to those individuals who are nationals of Serbia.

Through the examples from practice, the report provided a clear insight into what impact may permanent residence have on the lives of individuals and why it is difficult for many people to access the rights that should belong to them in the country of which they are nationals. Apart from denied or hindered access to economic and social rights, the described obstacles in the procedures of registering or changing permanent residence inevitably entail the denial of the right to freedom of movement and choice of residence.

Download the report: No Residence, No Rights

Download: HERE

The Law on Permanent and Temporary Residence of Citizens adopted in November 2011 was announced as paving the road towards the solution of the problem of registration of permanent/temporary residence of person who have no legal basis of housing in the Republic of Serbia (ownership right over the apartment, contract on lease of the apartment or any other legal basis). The  Law envisages the possibility of the registration of permanent residence at the address of the institution in which a person permanently resides or at the address of the competent social welfare centre, with the notification that the procedure, conditions and the manner of its conducting will be regulated additionally by bylaws.

The Rulebook of procedure for registration of permanent residence at the address of the social welfare center came into force at the beginning of December 2012, but the Ministry of Labour, Employment and Social Policy of the Republic of Serbia issued the Instruction for proceeding to be followed when registering the permanent residence at the address of social welfare center (SWC). The act of the Ministry prescribes the guidelines for coordination of the activities of the competent bodies in the concerned procedure, but the interpretation of the provision of the Instruction that envisages the conditions for the registration of the permanent residence at the address of SWC turned out to be disputable. Specifically, in addition to the evidence on identity of a person whose request is being decided on, the disputable provision requires enclosing “evidence by the competent body of internal affairs that permanent residence cannot be registered pursuant to the Article 11, Paragraph 2, Items 1, 2 and 3 of the Law on Permanent and Temporary Residence of Citizens” (on the basis of the ownership right over the apartment, lease contract over the apartment or any other legal basis).

It is unclear whether the fulfillment of the conditions in terms of the stated provision of the Instruction will require that concerned person shall initiate the administrative procedure (for the registration of permanent residence) before the competent bodies of the Ministry of Internal Affairs, and that rejecting decision be treated as evidence in terms of instruction, or the competent services of the Ministry of Internal Affairs will issue special confirmations/certificates on the fact that a person does not have permanent residence registered. Particularly negative aspect of the given approach to the problem reflects in prolongation of the procedure for registration at the address of SWC. Several months can elapse from the submission of the requests for receiving the decision proving the impossibility of the registration of permanent residence, not including the period needed for the effectiveness, which does not contribute to the intentions to solve the problems of the lack of registration of permanent residence, with all accompanying consequences such as the impossibility to access other rights.

On 23 January 2013, Praxis’ representatives attended the meeting held in the premises of the Social Welfare Centre Bujanovac where the possibilities of the simplification and more efficient conducting of the initiated procedures of registration of permanent residence at the address of this SWC were considered. Due to uncertainty related to the interpretation of this disputable provision, Praxis addressed the Police Station in Bujanovac, which interprets the envisaged evidence as the final decision rejecting the request for determination of permanent residence. The Administrative Affairs Directorate of the Ministry of Interior of the Republic of Serbia has the same opinion of which Praxis was informed in a phone conversation.

Conducting the administrative procedure before the competent body of the Ministry of Interior for receiving the final decision rejecting the request for determination of permanent residence, which would serve as the evidence as requested by  the Instruction, is a time-consuming process. The previous experience points out that the same administrative procedures most often last about three months (without the period necessary for the onset of effectiveness), though there are procedures lasting more than even two years in practice. It is clear that acting in the envisaged manner will cause delays in procedures to an unacceptable extent. Such situation does not contribute to the intentions to solve the problem of persons without the permanent residence as efficiently as possible.

Conducting of a significant number of procedures of registration of permanent residence at the address of SWC is the precondition for the valuation of the effect of the concerned regulation. However, it is necessary to point out to the lacks of adopted acts at the very beginning of their implementation. Urgent removal of doubts and ambiguities is a must. In addition, the basic goals of all responsible bodies should include the simplification of administrative procedures and taking steps to make them more efficient, particularly because the problem of impossibility of the registration of permanent residence affects mainly the most vulnerable categories of citizens.

Praxis and International Organization for Migration have established the cooperation within the project “Sustainable Waste Management Initiative for a Healthier Tomorrow” (SWIFT). The project is funded by the Sweden International Development Cooperation Agency (SIDA) and European Union, and is implemented by the International Organization for Migration, United Nations Office for Project Services and World Health Organization. The main goal of SWIFT project is to set up the system of formal recycling that ensures legitimate employment to informal waste collectors and provides the base for improvement of the access to health, education and social services.

Within the cooperation, Praxis will organize and hold 10 workshops for residents of informal settlements on the importance of possession of personal documents, mechanisms of protection from discrimination and access to rights to employment, health care, social welfare and education. In addition, Praxis’ lawyers will provide free legal assistance to persons who address them in relation to obtaining personal documents and exercising the above stated rights.

The cooperation will last from 3 December 2012 to 31 December 2013.