The Right to an Identity

29 October 2003

Lindsey Cameron¹

the Universal Declaration of Human Rights guarantees that "Everyone shall have the right to recognition everywhere as a person before the law." Without proper identification documents, individuals are essentially not people before the law. Without a properly functioning government administration, individuals cannot easily access such documents.

In Serbia and Montenegro, the authorities are busy working to reform the behemoth administration that the new government inherited from its predecessors. Their efforts reflect an acknowledgement on the part of the government that the administration is in dire need of reform.

Administrative problems affect all citizens, but some more negatively than others. Persons who are displaced from Kosovo tend to have more difficulty accessing the administration than other citizens; local Roma and Roma displaced from Kosovo face the most serious difficulty of all. At the end of 2001, over 39% of Roma in Serbia, including both local Roma and those displaced from Kosovo, were not in possession of the basic Serbian identification document - licna karta.² In addition, more than half of all Roma in Serbia had no document proving their citizenship and were not in possession of a birth certificate, and close to one-third did not possess a health card.³

The statistics do not mean that half of all Roma in Serbia are not citizens or are stateless. It is not known how many Roma are registered as citizens yet lack documents to prove it, or, on the other hand, how many Roma have never been registered in the Birth Registry or the Citizenship Registry, meaning that they lack citizenship altogether.⁴ Nevertheless, the high percentage of Roma without identification is cause for concern. Without personal identification, individuals cannot access essential government services such as education, health and social welfare. For Roma displaced from Kosovo, it means they have difficulty accessing humanitarian assistance from the government and the international community since they are unable to register as internally displaced persons (IDPs). Individuals can also be apprehended by police and fined or imprisoned for not being in possession of, or failing to show, identification documents.⁵

The causes of lack of documents are numerous and varied. One report indicates that Roma do not see the advantages of documentation or comply with the system only when an immediate need arises.⁶ Lack of compliance in the first place often makes it difficult to acquire documentation later. Other research indicates that many Roma do not trust the system in general,⁷ which may lead them to avoid procuring documents intentionally. These issues can only be addressed by the Romani community itself. But, in the meantime, there are a number of procedural obstacles that hamper many Roma in registering and obtaining documents and that may discourage regular compliance. After outlining the normal registration process, this article will explore the obstacles that pose serious problems for Roma, and particularly Roma displaced from Kosovo.

Normal Documentation Procedures

The first step in the documentation process is registration at birth. Registering a birth should, by law, trigger a number of processes. When a child is born in hospital, the hospital informs the local Birth Registry Office of the fact of the birth. Within 30 days of the birth of a child, parents must go to the municipal Birth Registry Office with the release paper from the hospital (a form indicating the details of the birth, including location of birth and identity of parents) and their own personal identification documents (licna karta) to register the child.⁸ The child's birth is recorded in the Register of Births and a birth certificate is issued.

The Registry Office for new births must inform the Citizens' Registry Office in the municipality of the newly registered birth. The Citizens' Registry Office immediately issues a "Unique Personal Identification Number" - JMBG - in respect of the child. It is generally considered a good idea for parents to take the new birth certificate to the Citizens' Registry Office to ensure that the child is registered and that the appropriate information has been transferred between the offices.

Finally, the Citizens' Registry Office is obliged by law to inform the municipal police within 15 days of the issuance of the JMBG number, which will remain the person's identity number for life.⁹ The police keep the JMBG number on file and issue it when the child is old enough to obtain her own licna karta.

A child is eligible to obtain a licna karta at the age of 16. At the age of 18, a person is obliged to obtain a licna karta and carry it with her at all times.¹⁰ In order to obtain a licna karta, a person must go to the police station in the municipality in which she is registered with some proof of her identity. Often, she will have to be accompanied by parents in order to prove she is whom she says she is.

Challenges for Roma

The process seems simple enough. However, the problems Roma face in availing themselves of it are numerous. The biggest problem for Roma is that many Romani children are not born in hospital, either because the parents do not have a health card or because they cannot afford to pay the minimal hospital fees required.¹¹ This means that no state institution receives notice automatically of the child's birth. A relatively high percentage of Romani parents are very young and are unaware of the necessary procedures or of the importance of registering the birth of their children, hence many children born at home are not registered. These children represent the greatest concern for the Serbian government since it is under an international obligation to make sure that children are registered.¹²

Even for children born to Roma in hospital, however, problems arise in obtaining documentation. First, information may be incorrectly recorded on the release paper. According to the law, when completing this form, hospital staff are required to establish the true identity of the parents using their identification cards (licna karta) or army identification. The health booklet is not a valid document for this purpose.¹³ However, hospital staff have reportedly recorded the parents' names directly from the health booklets in some cases.¹⁴ This practice has a detrimental impact on the children of Romani mothers who lack their own documents and may be using a health booklet borrowed from a relative or friend, reportedly a common practice among Roma.

Second, parents may lack identification documents, making the registration process even more cumbersome. As noted above, 39% of Roma reportedly lack identification documents. In order to register the birth properly, many would first have to acquire a valid licna karta or some other form of identification.¹⁵

It is especially difficult and time-consuming for Roma who are displaced from Kosovo to obtain a licna karta. Many people had little time to gather their belongings before fleeing Kosovo in the spring of 1999. Understandably, in the midst of panic and chaos, finding identification documents before leaving was not always a priority, exacerbating the problem of general lack of documentation described above. Thus, many Roma found themselves in displacement with no record of their identity. Almost four years later, many remain displaced in Serbia without documents.

Following the conflict in Kosovo, Municipal Registry Offices representing Kosovo municipalities were established throughout central Serbia. Most Romani internally displaced persons (IDPs) live far away from where these offices are located. Consequently, IDPs must find out where the dislocated registry or police office for their Kosovo municipality is located in Serbia and travel to that office in person in order to apply for the necessary documents. Many IDPs are insolvent and the cost of travelling to obtain the documents and the stay overnight is prohibitive.

Legal aid clinics operating in Serbia do provide assistance obtaining documentation, especially for IDPs. However, Registry Offices demand that these legal aid clinics have a power of attorney from the IDP before they will issue the document. Powers of attorney are expensive to obtain and some registry offices insist upon a power of attorney issued by a court, which is more expensive than a municipally issued power of attorney and more difficult to obtain. These demands add complexity to an already bureaucracy-laden procedure. Moreover, this practice of demanding a power of attorney is actually against the law.¹⁶

An additional complicating factor is that many Romani women give birth very young - some as early as four years before an individual is legally able to obtain a licna karta. Drafters of the laws clearly failed to consider the occurrence of births to young teenagers. In practice, this lacuna does not necessarily pose a problem; other citizenship documents are accepted and exceptions to the laws on issuing licna karta can be made for young parents. Nonetheless, the specific needs of Roma continue to be addressed outside the normal legal framework and procedure instead of being integrated within it.

Other documents, such as health cards and documents proving a person is unemployed (providing access to social welfare), can be obtained fairly easily once a person has a licna karta. However, many documents - such as birth certificates - are valid only for six months. This means that every time individuals have to show a birth certificate (for example, in order to register for school at each new level of education) they must go through the kind of bureaucratic processes outlined here. Health certificates must be constantly renewed in order to ensure that there are no gaps in health care coverage.

Registering as Internally Displaced Persons

In addition to the problems outlined above, Roma displaced from Kosovo have difficulty acquiring identification from the Serbian Commissioner for Refugees that proves their status as IDPs. In spring 2000, the Commissioner for Refugees of the Republic of Serbia, jointly with UNHCR, organised a registration of IDPs, at which 19,000 Roma from Kosovo were registered. However, humanitarian organizations estimate that the actual number of displaced Roma is more than double that - 40,000 to 50,000. It is hard to offer a clear explanation for this discrepancy. Reasons for it may be similar to those mentioned above regarding registration in general, including registrations such as the population census and registration for elections. As many as 56% of Romani IDPs do not have IDP cards, meaning that more than half are precluded from receiving humanitarian aid and help finding a durable solution to their displacement.

Previously, the Serbian Commissioner for Refugees - the government body that registers displaced persons and addresses their needs - allowed IDPs, and especially Roma, to register for an IDP card using two witnesses swearing to the identity and place of permanent residence of the individual. (This, in addition to producing any available identification documents, is the usual procedure for "subsequent registration" for a person who has never been registered in citizenship books.) However, now that the Commissioner is able to direct IDPs to the precise location of the dislocated registry office in Serbia (from which they are able to obtain an identification document), they no longer accept this method of proving identity and status. The obstacles for Roma to obtain documents from those offices have been described above.

Some government officials have expressed concern that Roma could abuse any leniency in the documentation process, which hinders the search for any real solution to the problem. In part, this fear has led the administration to halt the special procedures designed to help Roma register as IDPs. Although some cases of abuse have occurred, when determining administrative procedures to obtain documents, the government's priority should clearly lie with rendering procedures as straightforward as possible, facilitating documentation. A solid procedure will in itself contribute to discouraging possible abuses.

The Way Ahead: Solutions

There are methods of resolving many of these issues. A proposal has been tabled to allow IDPs to lodge an application at the municipality of current residence, which can then be verified at the relevant Registry Office. Modernisation and computerisation of Registry Offices, with shared databases nationwide, would dramatically decrease the inaccessibility of the bureaucracy for Roma, as it would remove the need to travel long distances to obtain documents. In the meantime, Registry Offices should also be required by the government to adhere to administrative laws and stop requesting the powers of attorney that are unnecessary and cost-prohibitive. This would allow Roma to use legal aid services available.

Modernisation of the system would also enable authorities, and especially the Serbian Commissioner for Refugees, to register Roma (and others) in full confidence that the individuals are not abusing the system, because such abuse could easily be checked.

Ensuring that births of Romani children outside medical institutions are registered properly and in a timely fashion is a more challenging problem. Education programmes targeting young Roma (especially prospective parents), highlighting the benefits and importance of obtaining documentation, are essential. Facilitating access to health care services and encouraging the use of medical institutions when giving birth would also help.

Finally, making documents valid for a longer period would discourage the practice of obtaining documents only as they are needed.

* * *

In January 2003, a Constitutional Charter was adopted by the governments of the republics of Serbia and Montenegro and the Federal Parliament of Yugoslavia, creating a new state. A new constitution will be drafted in the course of 2003. Under the Charter, responsibility for citizenship was transferred from the federal level of government to the republican level, so that from now on, each republic will have jurisdiction to grant citizenship. These changes provide an opportunity to reform and streamline the administrative process. On the other hand, the inevitable confusion that follows in the wake of sweeping change may leave Roma who do attempt to procure documents confused, frustrated, and marginalized.

The governments of Serbia and Montenegro have begun to take encouraging steps to redress the problems of the Roma. In 2002, a Law on National Minorities was adopted, granting Roma status as a national minority. In addition, the new government Strategy for the Integration and Empowerment of the Roma, although still only a draft discussion paper, lays the groundwork for reform and is an excellent model for progress. In addition, the international community is in the process of finding ways to co-operate with the government to address the specific documentation needs of Romani IDPs. In this vein, the UNHCR has established an expert Documentation Working Group, consisting of representatives of legal aid clinics with experience of assisting individuals obtaining documentation. The Group has drafted a brief study on the key issues concerning documentation and has invited relevant government officials to work together on addressing the main hurdles. Officials will include those on republican level as well on the level of the Union of Serbia and Montenegro.

From a rights perspective, citizenship documents seem to be a ticket to the protection the state can offer. Inasmuch as they are proof of citizenship, documents are a symbol of citizenship - of participation in the state. Citizenship itself entails rights and obligations. The fact that Roma do not possess documents is symptomatic of a broader problem that can only be resolved when the government encourages and facilitates the engagement of Roma, which is more likely to lead to Roma in turn engaging with the authorities to claim their rights.

Endnotes:

1. Lindsey Cameron is a lawyer working as an intern at the office of the United Nations High Commissioner for Refugees (UNHCR), Belgrade. The views expressed by the author do not necessarily reflect the views of the UNHCR. She would like to thank UNHCR staff members Mathijs le Rutte, Dusan Aralica, Milena Petrović-Brauten and Ivana Zujović-Simić for their invaluable assistance with research for this article. A debt of gratitude is also owed to Suzannah Pogue (UNHCR intern) for her initial study.
2. Oxfam. The Roma Livelihood in Belgrade Settlements. Belgrade, December 2001.
3. The high percentages of Roma without citizenship and birth certificates are somewhat misleading in terms of reflecting the gravity of the problem. In Serbia, when an individual requires either certificate (to obtain other documents such as a basic ID (lična karta) or health card, to register for school, or to obtain a marriage licence or passport), that person goes to the appropriate registry office and obtains a birth certificate that is valid for six months. Since the birth certificate indicates a person's civil status, it is not valid indefinitely. Thus, not only Roma, but many citizens of Serbia are not constantly in possession of all documents.
4. Neither the Birth Registry nor the Citizenship Registry is computerized; thus, the only way to verify status is for each individual to go to the Registry Office in the municipality in which they were born and enquire. Some individuals may be uncertain as to where they were born and will need to check a number of municipalities.
5. Article 17 of the Law on Personal ID. Official Gazette of the Republic of Serbia, No. 15/74.
6. UNHCR Belgrade. A Survey of the Issues Affecting Roma Documentation and a Call to Action. Belgrade, July 1, 2002.
7. Savezno ministarstvo nacionalnih i etničkih zajednica i Centar za istrazivane etniciteta. Romska naselja, uslovi zivota i mogucnosti integracije Roma u Srbiji: Rezultati socijalnog istrazivanja. Belgrade, December 30, 2002.
8. Hospitals also inform the municipality directly of the fact of the birth.
9. Article 7 of the Law on Unique Personal Identification Number. Official Gazette of the Republic of Serbia. No. 53/78.
10. Articles 3 and 18 of the Law on Personal ID.
11. A Romani organisation, Roma International Humanitarian Association of IDPs from Kosovo and Metohija, based in Zemun Polje, Serbia, estimates that as many as 60% of Romani children are born outside hospitals. This estimate is based on their experience in the field and their work in assisting Roma in obtaining documents.
12. Article 7(1) of the UN Convention on the Rights of the Child states, "The child shall be registered immediately after birth and shall 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 his or her parents." Ratified by the Socialist Federal Republic of Yugoslavia in 1991; as a successor state, the Union of Serbia and Montenegro is a party to the Convention.
13. Instructions on keeping birth registry books and forms, paragraph 26. Official Gazette of the Republic of Serbia, No. 48/90.
14. UNHCR Belgrade. A Survey of the Issues Affecting Roma Documentation and a Call to Action. Belgrade, July 1, 2002.
15. According to The Yugoslav Citizenship Law (1996) citizenship is acquired either by birth on the territory of Yugoslavia (jus soli) or by birth to one or both Yugoslav parents (jus sanguinis). Article 11(1) of the law states, "A child born or found on the territory of Yugoslavia (orphan) acquires Yugoslav citizenship by birth although both parents might be unknown or of an unknown citizenship or are stateless." Thus, in principle, a child born to parents whose citizenship cannot be proved can acquire Yugoslav citizenship; however, in practice, at least one parent would have to be able to prove citizenship in order to register his or her newborn child.
16. Article 35 of the Law on Registry Books. Strategy for the Integration and Empowerment of the Roma - Discussion Paper (Draft). Belgrade, December 2002.
17. Strategy for the Integration and Empowerment of the Roma - Discussion Paper (Draft). Belgrad, December 2002.