Exercise of Fundamental Rights by the Roma of Bosnia and Herzegovina: Access to Personal Documents and the Right to Housing
29 October 2003
Paul Prettitore1
Introduction
Roma in post-war Bosnia and Herzegovina (BiH)2 face numerous difficulties in exercising the full range of fundamental human rights guaranteed under the BiH Constitution. These difficulties have been exacerbated by the displacement of about 2 million people, among them large numbers of Roma, during the conflict in BiH in 1992-1995.3 Of particular concern are issues regarding property rights and access to personal documents. The issues affecting the Romani community have not been adequately addressed by the international community so far, as focus had been primarily on the concerns regarding displaced Serbs, Croats and Bosniaks. Part of this problem is due to the Romani community's inability to organise itself in such a way as to effectively lobby the international community for resolution of their problems.
The obstacles to exercising fundamental rights facing Roma stem from a number of causes. Roma displaced from their property during the war have had difficulty repossessing their property because of discrimination and lack of adequate information on the necessary procedures. Most of the Romani individuals who were allocated social housing before the war are currently left without housing. In contrast, most field evidence points to the fact that other ethnicities living in such housing prior to the war have, in fact, been able to reclaim it. Roma living in informal settlements4 are left in a precarious situation as the land on which they reside can be re-allocated by local authorities. In addition, many Roma are further impaired in exercising their rights because of the lack of personal documents. Lack of ownership documents also hampers repossession of property and the provision of reconstruction assistance in cases where housing was destroyed during the war.
Exercise of Property Ownership Rights
The problems regarding Roma and property basically fall into three categories: the inability to repossess private property or socially-owned apartments5 lost during the conflict; the loss of pre-war social welfare housing;6 and the lack of security of tenure in informal settlements. The first two categories stem directly from the conflict. Individuals who lost private property can submit claims for repossession of such property pursuant to the property laws in both the Federation of BiH and the Republika Srpska (RS).7 Individuals residing in social welfare housing who became displaced during the war have no right to repossess their property, as the current legislation governing repossession does not include such property. The primary concern regarding housing of Roma, however, remains informal settlements.
Pre-war, the majority of the Romani community in BiH, estimated at between 50 to 70 percent, lived in settlements built on state-owned or private land, which were often not recognised by local authorities. Such settlements were not recognised because the inhabitants had not secured any legal rights to use the property. Unfortunately, there are few records in either land books or municipal cadastres establishing the Romani settlements. Nor is there concrete information on the total number and location of such settlements. A survey conducted by the Organisation for Security and Cooperation in Europe (OSCE) in 2002 identified roughly one hundred such settlements with a population of over 22,000 persons in over thirty municipalities.8 This list, however, is not exhaustive. Most residents of informal settlements do not have any legal right to reside on the land, despite in some cases having resided on the property for decades or longer. Nor can they receive assistance from donors for reconstruction of homes, since most donors require proof of ownership. Under these circumstances, hundreds of Roma, whose houses in informal settlements were destroyed during the war, have been left without access to their pre-war housing and with little chance of securing alternative housing.
Romani residents of informal settlements are also vulnerable to local government decisions to reallocate the land for more lucrative purposes. This can be illustrated by the case of the pre-war Romani settlement in Gorica, in the Sarajevo Canton. Roma had been using the site as a settlement for decades (or longer according to the Romani community) prior to the war. However, post-war municipal authorities decided to allocate the land for other purposes. Fortunately, the mayor of the municipality was persuaded through constant pressure by members of the international community to allocate the land to the resident Roma. Construction permits were then negotiated and a donor was identified to fund reconstruction of the destroyed housing for roughly fifteen families. The Roma were also permitted to register in the land books, thus attaining legal title to the property. A similar situation also occurred in Doboj in the Republika Srpska, where only after considerable intervention from the international community, particularly the Office of the High Representative (OHR)9 and the OSCE, did the reconstruction programme take place, benefiting roughly twenty-eight Romani families.
Lack of Personal Documents
The lack of personal documents has led to the exclusion of many Roma from fundamental political and social rights such as the right to vote, to have access to health care, etc. The lack of personal documents has also created additional obstruction in the exercise of property rights. The inability to secure documents is related to poverty and low social status in the Romani community and leads to even further exclusion from public life. Both illiteracy and discrimination by public officials add to the problem. Because of illiteracy, many Roma are unaware of the steps necessary to obtain documents, nor can they fill out the necessary forms. Discrimination by public officials is another serious factor preventing Roma from enjoying fundamental rights. For example, anecdotal evidence indicates that many municipal officials are reluctant to allow Roma to register residence within their municipality. Without a registered residence, one cannot vote nor have access to social benefits.
In some cases, the lack of one document, for instance a birth certificate, can lead to a situation where other documents cannot be secured. When a child is born in BiH it must be registered. This registration allows for the issuance of a birth certificate. Both the parents and hospital authorities where the child is born are obliged to inform the local Birth Registry Office of the fact of the birth. Parents must then go to the Birth Registry Office with their personal ID documents to register the child. There is no fee for registration of the birth - fees are charged only for copies of the birth certificate. If the birth is not registered at the time of birth, it is possible to register the birth at a later date. However, such administrative procedures remain unclear. Many Romani children in BiH are not born in hospital due to the fact that their parents cannot afford to pay the hospital fees. If a birth is not registered, the child cannot receive a birth certificate nor a personal identification number (JMBG). In order to obtain an identification document, an individual must provide a birth certificate with a personal identification number imprinted on it. And an individual must present an identification document in order to register residence. Without a registered residence one cannot vote nor have access to utilities. It may also prevent the registration of children in schools. Lack of residence documents poses particular problems for Roma residing in informal settlements.
Addressing the Obstacles
To help build the capacity of the Romani community in addressing the obstacles facing it, the Assembly Meeting of Romani Non-Governmental Organisations in Bosnia and Herzegovina was held in November 2001, involving twenty-two Romani non-governmental organisations from throughout BiH. At this meeting, nine individuals were elected to the Roma Council to facilitate co-operation with local authorities. The Romani representatives also adopted the Platform for Roma in Bosnia and Herzegovina. This platform addresses action on the part of the Romani community in several areas: Political participation and advocacy; education; employment; housing/property; health; and Romani refugees, displaced persons and returnees. The action proposed under the Housing/Property section includes ensuring reconstruction assistance for destroyed Romani property with an emphasis on integrating Roma into society rather than creating segregated settlements. This section also addresses the issue of lack of clear ownership of property and proposes inclusion of the informal settlements in the urban plans and the development of a social welfare housing programme for Romani families. These proposals have been adopted in part by the National Advisory Board on Roma. The latter was created to co-ordinate more closely the activities of Roma representatives and BiH officials. It consists of representatives from relevant BiH ministries, the nine members of the Roma Council and representatives of the international community. The Board was established under the auspices of the BiH Council of Ministers and acts as an advisory body to the BiH Ministry for Human Rights and Refugees. The Chairman of the Board is a member of the Roma Council and meetings are held on a regular basis. The Board has since adopted a Work Plan for 2002-2006. This Plan includes as a priority, action on the issues of lack of birth records and housing issues and the Board plans to define concretely the tasks for 2003 in the immediate future. Additionally, under the auspices of the Advisory Board, the Romani representatives on the Board transformed the Platform for Roma in Bosnia and Herzegovina into a National Action Plan for Roma, which involves a more comprehensive assessment of the obstacles currently facing the Romani community. The Board's primary function is development and implementation of a strategy based on this Plan.
Concrete Measures
The legal situation in BiH provides a unique environment to address the problems facing the Romani community. The Constitution of BiH provides that both entities must ensure the highest level of internationally recognised human rights and fundamental freedoms. Through the Constitution, both the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), in addition to a number of other international human rights treaties, are directly applicable in BiH and take precedence over contradictory domestic law. The ECHR provides protection for an individual's home (Article 8). The ICESCR guarantees the right to an adequate standard of living, including adequate housing (Article 11) and obliges States Parties to provide a degree of security of tenure, including legal protection against forced evictions, harassment and other threats.10
Although responsibility for property and housing issues remains with BiH authorities, there are a number of measures that can be undertaken jointly by Romani representatives and the international community to address the current obstacles facing the Romani community. Given the lack of resources in BiH and the general reluctance of BiH officials to devote attention to issues facing the Romani community, the Roma Council and National Advisory Board on Roma must play a strong advocacy role. Increased efforts could be made to allow for registration for personal documents. Without greater access to such documents, the Romani community will continue to be isolated from the rest of society. For example, there are measures for registering births once the statutory timeframe for doing so has elapsed. Yet such procedures remain unclear and many Roma are not aware of the necessary action on their part. And again, discrimination creates further difficulties.
Another important need to address is the many informal settlements scattered throughout BiH. To do so, two approaches should be utilised. The first approach would involve the establishment of a mechanism to "formalise" such settlements. This mechanism would need to be developed and implemented through the coordinated efforts of BiH authorities, Roma representatives and the international community. The Roma Advisory Board should make this an issue of priority. To this effect, BiH authorities should be reminded of their obligations under international human rights treaties that have the status of domestic law in BiH. Where settlements exist on socially-owned property, municipal officials can be pressured to formalise ownership rights through the municipal mechanism for allocating socially-owned or state-owned property. The property can then be registered in the land and cadastre books. Formalising ownership will also allow for international donors to provide funding for reconstruction of houses where necessary.
If BiH authorities prove unwilling or incapable of addressing the issue of informal settlements, another approach could be adopted to enforce rights through decisions by the Ombudsman institutions, the Human Rights Chamber or domestic courts.11 In submitting claims, cases could be made pursuant to the right to home under Article 8 of the ECHR12 and the right to housing under Article 11 of the ICESCR. Cases could also be made under domestic laws regarding adverse possession. It should also be pointed out that, in many cases, unregistered housing belonging to Serbs, Croats, and Bosniaks has been formalised, while so far, only a small number of informal Romani settlements have been formalised, including those in Sarajevo and Doboj. However, in recent months BiH officials have offered to provide some alternative housing to residents of informal settlements. Currently two such projects are under development in Sarajevo and Mostar, but such action by local authorities remains the exception rather than the norm. These projects should provide land plots and construction assistance, and the National Advisory Board on Roma and the international community continue to insist the beneficiaries of such projects receive permanent legal rights to the land.
To ensure that all settlements are formalised, a comprehensive list of settlements is needed. Such a list does not exist at this point, and its creation, through a "registration" process, should be a priority. Establishment of this list would enable the issue to be addressed on a national basis, rather than through the ad hoc actions initiated thus far, which, although successful in several cases, prove extremely time-consuming and personnel intensive. In cases where current informal settlements cannot be "formalised," BiH authorities would be under an obligation to provide some type of housing assistance to affected Romani communities. In the recent past, BiH officials in both entities have undertaken extensive programmes to provide land and building materials for displaced persons. However, Roma have yet to adequately benefit from such projects.
A Case Study: Straževac, Modriča Municipality, Bosnia and HerzegovinaThe settlement of Straževac, located upon a hill above the town of Modriča, in northeastern Bosnia, is home to around 40 Romani families. This settlement existed before the 1992-1995 war, yet during the armed conflicts most Roma - being Muslims on the territory of the Republika Srpska - fled Straževac and sought refuge on the territory of the Federation of Bosnia and Herzegovina, where the population is predominantly Bosniak Muslim. As many Roma returned to Straževac after the end of the war, they found the majority of their houses destroyed. Twenty-four houses were reconstructed from donations in the recent years. Out of some 200 Romani children in the Straževac Romani neighbourhood, none attend school; most of the children and the adults are illiterate. In addition, most of the Romani adults in the Straževac settlement do not have personal documents and similarly encounter numerous obstacles when obtaining birth certificates for their young children. Such is the case of Ms Nedžmija Aljić, a 31-year-old Romani woman from the Stra?evac settlement, who spoke to the Helsinki Committee for Human Rights in Republika Srpska (HCHRRS), the Bijeljina-based local partner of the European Roma Rights Center (ERRC) in monitoring Roma rights in Bosnia and Herzegovina, on March 20, 2003. Ms Aljić and her husband Mr Salko Halilović, a 33-year-old Romani man, had been internally displaced before they returned to Modriča in 2001, where they live in an improvised home built on a piece of land that belonged to the late parents of Mr Halilović. Five months prior to the ERRC/HCHRRS interview, Ms Aljić had given birth to a son whom she had not been able to register and, as such, cannot get a birth certificate for. When she applied for her son's birth certificate at the Modriča Registrar's Office in September 2001, she was told that she would need to have her own ID first. However, the ID procedure requires Ms Aljić to have permanent residence in Modriča. Ms Aljić was born and raised in Modriča yet she has no administrative proof of this, and her current residence is on the land that is formally owned by the parents of her husband, whom she never formally married. The Registrar's Office also requested from Ms Aljić proof that her request for the return of property had been approved by the relevant authorities. Ms Aljić, however, never had reasons to file such a request, as the property on which she lives is not registered in her name. The land has also not been occupied by anyone else, and thus needed not be returned from anyone. The two elder sons of Ms Aljić and Mr Halilović have also never been registered with the authorities. When the couple attempted to register the children, the officials told them that this would have to be done in Tuzla, in another canton, where the children had been born during the period of the internal displacement of the family. Mr Halilović himself has an ID but that is of no help for the other members of his family. As a consequence of their and their mother's lack of legal status, the children have no right to apply for state-provided health care. Some Romani parents from Straževac are blocked from obtaining their own personal documents because they were born outside of Bosnia and Herzegovina. Mr Ismet Alimanović could not register the births of his four children at the local Registrar's Office because neither he nor his wife had IDs. Mr Alimanović needs to get a birth certificate for himself in order to apply for an ID, but he was born in Osijek, in today's Croatia, where he cannot travel because he has no personal documents. This 41-year-old Romani man lives with his family in a tent on land owned by his father beside their home that was destroyed in the war. Similarly, Ms Adisa Zahirović, a 24-year-old Romani woman living in Straževac with her husband and six children, was born in Sombor, in what is now Serbia and Montenegro, and moved to Modriča with her parents long before the war. When she applied for an ID at the local office of the Ministry of Interior two years earlier, Ms Zahirović was told that she needed a proof of permanent residence and a birth certificate. Ms Zahirović is illiterate and not familiar with the Serbian administrative procedures necessary to obtain a birth certificate for herself in Sombor. Most importantly, she has no personal documents to enable her to cross the border into Serbia in the first place. Because of her lack of ID, Ms Zahirović could not formally marry her husband and could not register the births of her six children. For some of the Straževac Roma, the main problem in applying for an ID is related to the lack of evidence that they formally own their property. Mr Hilmo Ferhatović, a 39-year-old Romani man, had personal documents before the Bosnian war and, in October 2001, he applied for new documents. Officials of the local branch of the Ministry of Interior requested that he prove his permanent residence by submitting evidence that the land he lives on is his own. This land, however, was owned by Mr Ferhatović's late grandmother, who died in 1982. At that time, her family did not request a judicial procedure that would formally regulate the inheritance, and if Mr Ferhatović now wanted to initiate this procedure he would be required to pay court taxes of 1,000 Euro or more, which he cannot afford being unemployed and supporting his wife and seven children through selling scrap iron. Because Mr Ferhatović does not formally own the land on which his house is built, the local power supply company refuses to connect his new house, built from humanitarian donations, to the electricity network. At the Ministry of Interior, Mr Ferhatović was also asked to file proof that his request for property return had been approved, though he needed not file such a request as the property had never been occupied by anyone else, in addition to the fact that the land in question is not formally owned by him. The same request was also made to Mr Behader Aljić and Mr Sead Alimanović, who both live on the land owned by their fathers respectively, when they applied for IDs. Some of the Roma interviewed during the ERRC/HCHRRS field mission in Straževac believed that the numerous insurmountable requirements posed by the local authorities disguised their discriminatory attitude towards Roma. There have been claims that displaced Serbs, who live in the houses that are not their own but actually owned by Bosniaks who had fled during the Bosnian war, are nevertheless issued permanent residence documents by the Modriča authorities, and are consequently able to get new IDs. The Roma interviewed also feared that the final desired effect of the complicated bureaucratic procedures would be to have the Straževac Roma move again out of Republika Srpska to the Federation of Bosnia and Herzegovina, where the displaced Roma felt equally unwelcome. (European Roma Rights Center, Helsinki Committee for Human Rights in Republika Srpska) |
Endnotes:
- Paul Prettitore is Legal Advisor in the Human Rights Department of the OSCE Mission to Bosnia and Herzegovina.
- The exact number of Roma currently living in BiH remains unknown, but is estimated to be between 40,000 and 60,000. This amounts to between 1 and 1.5% of the population of BiH.
- There is no reliable estimate as to the number of displaced Roma. According to the United Nations High Commissioner for Refugees (UNHCR), to date over 875,000 refugees and displaced persons have returned to their prewar homes. However, while there are statistics measuring the return of Bosniaks, Croats and Serbs, there is no clear information on the return of refugee or displaced Roma. Most Roma are likely counted as 'others', of which only 6,700 have returned since the end of the conflict.
- In this case the term informal settlements applies to any settlement where housing has been constructed without the requisite permits or legal title for use of the land.
- Socially-owned property is a form of property entitlement which is stronger than a rental contract but is not equal to private property. Socially-owned property was allocated to employees of state-owned enterprises or state bodies. Individuals allocated socially-owned property were considered "occupancy right holders". Occupancy right holders exercised broad rights over the property, including passing it to family members resident in the apartment after the death of the occupancy right holder. However, they were not entitled to sell the property.
- Prior to the war, most employed Roma worked for companies responsible for communal services, with the work being manual in nature. Because these companies did not generate considerable revenue they were unable to build housing for their employees, as was common practice under the prewar Yugoslav system. Thus, many Roma had to be allocated housing by municipal officials under social welfare programs. Many Roma lived in such housing for years or even decades.
- In the Federation of BiH, the relevant laws are the Law on Cessation of the Application of the Law on Abandoned Property Owned by Citizens and the Law on the Cessation of the Application of the law on Abandoned Apatments. In the RS, the relevant law is the Law on Cessation of the Application of the Law on Abandoned Property.
- This survey was conducted by OSCE field staff at the end of 2002 in an effort to quantify the extent of informal settlements in BiH. The full report has yet to be published pending further research as to the number and location of settlements, as well as the legal status of the land on which the property is situated.
- The position of High Representative was created under Annex 10 of the Dayton Peace Agreement of December 14, 1995 to oversee implementation of the civilian aspects of the Peace Agreement on behalf of the international community.
- General Comment No. 4 to the ICESCR provides that all persons should be guaranteed a degree of security of tenure that provides protection against forced eviction, harassment and other threats. This protection extends to individuals residing in informal settlements. See Committee on Economic, Social and Cultural Rights. General Comment 4: The right to adequate housing (Article 11(1)). Adopted December 13, 1991, para. 8(a). General Comment No. 7 provides further protections against forced eviction, obliging signatories to establish adequate procedures for conducting evictions and ensuring that evictions do not result in homelessness. See Committee on Economic, Social and Cultural Rights. General Comment 4: The right to adequate housing (Art.11.1): forced evictions. Adopted May 20, 1997, para. 9.
- Under Annex 6, Article II (1) of the Dayton Peace Agreement, the Commission on Human Rights, consisting of the Human Rights Chamber and the Office of the Ombudsmen, was established to assist the Parties in guaranteeing fundamental rights. Any individual can submit applications to either body in regards to alleged violations of the rights protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms and subsequent protocols, as well as alleged discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status regarding the rights provided for in the other human rights agreements annexed to the Dayton Peace Agreement. The Ombudsman issues reports and recommendations to government bodies, and can forward such reports to the Human Rights Chamber for further action. The Human Rights Chamber issues decisions on whether the parties have breached their obligations under the Dayton Peace Agreement and what steps must be taken by the party to remedy such a breach, including orders to cease and desist, monetary relief and provisional measures. Both bodies have issued a number of decisions reinforcing property rights. While decisions issued by the offices of the Ombudsman institution are advisory in nature, decisions of the Human Rights Chamber are final and binding.
- States are allowed a certain margin of appreciation in determining interferences with the rights guaranteed under Article 8. See European Court of Human Rights. Handyside v. the United Kingdom. Judgment of December 7, 1976. Though the Handyside case does not include a complaint under Article 8, the Court does discuss the margin of appreciation with regard to the protection of certain rights under the Convention, including Article 8. The European Court of Human Rights has found that national authorities are in a better position than an international court to assess local needs and conditions. The Court, however, reserves a supervisory role over such a margin, taking into account both the aim and necessity of any challenged measure. See paras. 47-49.
