Blog by Ivanka Kostic, Praxis Executive Director, published on ENS website

After years of advocacy efforts in drawing the attention of the state to the extremely difficult position of persons who failed to subsequently register in the birth registry on the grounds of the existing laws, as well as requests for the adoption of an adequate, accelerated and facilitated procedure as a systemic solution to the problem of the legally invisible, some progress has been made. 

On the 31st of August the Serbian Parliament finally adopted Amendments to the Law on Non-Contentious Procedure prescribing a court procedure for the determination of the date and place of birth of persons who are not registered in the birth registry. The amendments were adopted only 3 months after the constitution of the new Serbian parliament.

While this is an extremely important initiative, it is only the first step towards solving the problem of several thousands of legally invisible persons in Serbia, children and adults, who are at the same time at risk of statelessness. The vast majority belong to the Roma ethnic minority and many have been living in the same place for generations.

It still remains to be seen whether the new non-contentious procedure will be efficiently implemented and if the legally invisible will benefit from this new court procedure. It is also of crucial importance to see the way the regulations relating to acquisition and determination of citizenship will be implemented in these cases.

According to the adopted amendments, a person who has not been registered in the birth registry and cannot prove the date and the place of his/her birth in an administrative procedure for late birth registration can initiate a court procedure for determination of the date and the place of his/her birth (procedure for “proving the fact of birth”).

In this procedure, a legally invisible person shall provide the court with the following personal details: his/her name and gender, as well as the date and the place of his/her birth, if known, and evidence proving those facts or making them probable. Also other facts which can facilitate the determination of the fact of birth should be provided to the court if available,   such as personal data of his/her parents, cousins, spouse, etc.

If the date and hour of birth of a person not registered into the birth registry cannot be established, the person shall be considered to have been born on 1 January at 00:01 hours of the year that is the probable year of his/her birth. Also, if his/her place of birth cannot be established, he/she shall be considered born in the municipality or the town in the territory of which the person is likely to have been born.

The court shall examine at least two witnesses of age who have identity documents with a photo (ID card, passport). The final court decision shall state the name and the surname of the person whose birth is being proved, his/her gender, and the day, month, year, hour and place of birth, including data about his/her parents, if known.

The court shall deliver its final decision on the date and the place of birth to the competent registrar in order for this body to register the fact of birth in the birth registry.

However, according to these amendments the Ministry of Interior, which is in charge of conducting the procedure for acquisition/determination of Serbian citizenship, is not bound by the final court decision on the date and place of birth! In practical terms, this means that despite being finally registered in the birth registry, one can still be at risk of statelessness and remain undocumented, with no access to basic rights. This is due to the fact that, in order to obtain an ID card, which is a precondition for accessing rights, one should also have Serbian citizenship (as well as a registered residence).

Some persons might have significant problems in proving their right to Serbian citizenship in the event that they have no proof related to their parents’ citizenship. This time they will not be struggling to access the right to be recognized as a person before the law, but to the right to a nationality instead. They will have to initiate another cumbersome and lengthy administrative procedure for the determination of citizenship with an uncertain outcome, unless the state decides to give amnesty to several thousand persons at risk of statelessness and grant them Serbian citizenship. Only this can be the final solution to the problem of the legally invisible. Otherwise, they will be recognized neither as stateless persons, nor citizens of Serbia - they will remain in legal limbo, unable to access their basic rights.

See the blog on ENS website