On 23 May 2014, the National Assembly adopted a set of judicial laws, which were introduced into the Parliament through an emergency procedure, without public discussion and consultations with expert public. Many non-governmental organizations expressed their concern by sending the open letter on the occasion of amendments to the legislative laws, demanding that they shall be withdrawn from the Parliament, pointing that some of the proposed measures may lead to legal uncertainty and inequality before the law, which will threaten the fundamental right to legal protection and will deepen the already great distrust into the legal system, legal state and rule of law in Serbia. However, the reaction of the civil sector did not affect the process of adoption of the law. 

Soon after, the first initiative for the assessment of constitutionality of the Article 85, Paragraph 2 of the Law on Civil Procedure was submitted to the Constitutional Court by Praxis for the denial of the right to a fair trial to some population groups by prescribing illegitimate and disproportionate limitations and for threatening the constitutional principle of equality of legal protection before the courts and other state bodies.

Specifically, the Article 4 of the Law on Amendments to the Law on Civil Procedure, which came into force on 31 May 2014, amended the Article 85 with the new paragraph 2 based on which “the representative of an individual must be an attorney-at-law, a close relative, brother, sister or a spouse, or the representative of the legal aid service in the local self-governance who is a graduate lawyer with the bar exam”.

This imposes limitations to a number of population groups, such as legally invisible persons, who are most often members of the vulnerable population groups, who do not have legal education to the extent needed to represent their own interests before the court, nor can they hire a proxy based on the Article 85, Paragraph 2 of the Law on Civil Procedure, which is also applied in a non-contentious procedure. Given that they do not have money to hire a bar-admitted lawyer, there is no possibility for them to hire the representative of free legal aid service of the local self-governance as there is yet no efficient free legal aid system. In addition to the legally invisible, the persons without alive close relatives from the Article 85, Paragraph 2 of the Law on Civil Procedure, who are not married and of poor financial standing are also deprived of the access to court. This also refers to the persons who live in common-law communities and have no alive close relative from the Article 85, Paragraph 2 of the Law on Civil Procedure and are of poor financial standing. Based on the Article 62, Paragraph 5 of the Constitution, a common-law community is equal with marriage in accordance with the law. It is not clear why spouses may represent each other in the civil procedure and common-law partners may not.

To remind, the Article 85 of the Law of Civil Procedure has already been the subject of the assessment of constitutionality when it was established that its provisions in the paragraph 1 reading “must be a lawyer” and in the paragraph 2 reading that “a party must be represented by an attorney-at-law in the procedure upon extraordinary remedies unless he/she is a lawyer himself/herself” were unconstitutional. By the decision as of 23 May 2013, the Constitutional Court established that representation by the bar-admitted lawyer, i.e. a person whose profession is provision of free legal aid, and not by anybody else, is naturally a financial burden imposed on the represented party, and it gives the state an active role in providing an available legal procedure for determining the right and obligations stipulated by regulations. Concretely, the exercise of the right to free legal aid is questioned for a wide range of vulnerable persons, including legally invisible persons, the old, people with disabilities and the helpless, who have been represented by the their friends and who cannot conduct litigation activities themselves nor can they pay the lawyers’ fees, and Serbia does not have the Law on Free Legal Aid yet.

The opinion of the Constitutional Court was that “there is no constitutional ground for stipulating the limitations in regard to who may be the proxy of the party in the civil procedure”. Therefore, only the provision of the Law on Civil Procedure reading: “The proxy in the civil procedure may be any fully capable individual” would be in accordance with the Constitution. However, the legislator did not take into account the explanation of the decision of the Constitutional Court but in the Article 85, Paragraph 2 of the Law on Civil Procedure, contrary to the opinion of the Constitutional Court, again stipulated the limitations related to who may be the proxy of the individual in the civil procedure.

The question is why the legislator failed to consistently implement the opinion of the Constitutional Court but did it just partly, by prescribing that the proxy of an individual may be a person with full working capacity provided that he/she is a spouse or a close relative to the represented party, and thus got around the decision of the Constitutional Court and deprived some population groups from the right to access the court by imposing disproportionate and illegitimate limitations and threatening the constitutional principle of equality of legal protection before the courts and other state bodies.

Download: Initiative for the Assessment of the Article 85, Paragraph 2 of the Law on Civil Procedure
See the announcement: Constitutional Court Established that the Provisions of the Article 85, Paragraph 1 Stating “who must be the lawyer”, Article 85, Paragraph 2 and Articles 494 through 505 of the Civil Procedure Law are not in Accordance with the Constitution and Ratified International Treaties

European Network on Statelessness calls on all European leaders to sign the petition to demand protection for stateless persons in Europe.

The fact that there remain an estimated 600,000 stateless persons living in Europe today shows that action is long overdue. The time for action is now.

Recent research reveals that the absence of a route by which stateless persons can regularise their status leaves these individuals at risk of a range of human rights abuses. Many stateless persons find themselves destitute or forced to sleep rough on the streets. Others are subjected to long term immigration detention despite there being no prospect of return. Often stateless persons must endure years separated from their families abroad. Few are in a position to break this cycle, and as a consequence are left in legal limbo for years.

Timed to coincide with the 60th anniversary of the 1954 Statelessness Convention, this campaign will bring together a broad spectrum of actors and to put a human face on the statelessness issue. The campaign will culminate in a concerted day of action against statelessness across Europe on 14 October 2014 when this petition will be handed to European leaders.

Isa was born in Kosovo. He fled to Belgrade following the 1999 conflict, but because he didn’t have any papers proving his identity, was never registered as an internally displaced person.
His very first document, his birth certificate, was issued in 2013 when he was 29. This was only possible due to a new procedure  introduced in 2012. Up till then Isa lived a life of an invisible. He did not attend school, he did not have health insurance and the only pieces of evidence about his residence are the statements of his common-law spouse and his neighbours.

However, despite managing to register his birth into birth registry, Isa remains stateless without a nationality. He cannot “inherit” his father’s nationality since his father doesn’t have any (his father was born in Macedonia and lived in Kosovo since the 1980s, but has never had his nationality officially registered) or his mother’s (she left Isa when he was only two weeks old and Isa doesn’t know if she held any nationality at the moment of his birth). Without nationality, Isa remains deprived of rights and services.

Serbia currently lacks a procedure to recognise Isa’s statelessness and regularise his status. Meanwhile, the only option open to Isa now is to try to acquire Serbian nationality through the naturalization procedure. Unfortunately, the outcome of the procedure remains uncertain because Isa cannot provide any written proof of his residence, which is one of the legal requirements. So he remains stuck in a vicious circle and facing a life in limbo.

After initiating a procedure upon the complaint filed by Praxis and Women’s Space from Nis to the Commissioner for Protection of Equality, it was established that the owner of the Pizza Shop “Marconi - Rim” from Nis discriminated against a Roma woman in establishing employment relationship.

Specifically, after publishing an advertisement offering employment in the Pizza Shop  “Marconi - Rim” from Nis, Praxis and the organization Women’s Space carried out situational testing in which two persons, one Roma woman and one non-Roma woman, of similar age, work experience and other characteristics, tried to establish employment relationship with this employer. Despite of it, the employer had the intention to employ only the person who did not belong to Roma ethnic minority.

In this procedure, the Commissioner pointed at the fact that the owner of the pizza shop had complete freedom to choose the person he wished to employ, evaluating the professional knowledge and capacities. However, in the process of employment, it is prohibited to exclude or give priority to any person based on their personal characteristics, which are not real and decisive condition for doing the job, having in mind the nature and specific characteristics of the job and the related working conditions.

For this and for the implementation of the rule on burden of proof, the Commissioner established that, in establishing employment relationship, the employer denied the possibility of employment to the Roma woman, who was a tester, exclusively because she is of Roma ethnicity, thus committing the act of direct discrimination on the basis of her personal characteristic which is prohibited by the articles 2, 6 and 16 of the Law on the Prohibition of Discrimination.

The employer was thus recommended to respect imperative rules on prohibition of discrimination in establishing employment relationship in the future, to publish and keep the opinion and recommendation of the Commissioner on the bulletin board or other visible place in the premises of the shop for at least 8 days and to inform the Commissioner about it within 30 days from submitting the opinion and recommendation.

For more information, see the announcement: Employeer Discriminated against a Roma Woman in Establishing Employment Relationship

In the period 25-27 June 2014, Roma Women’s Centre “Bibija” organized a seminar “I know my rights” in Belgrade, as a part of the UNICEF Project “Breaking the Chain of Exclusion of Roma Children through Early Development and Education.” In addition to representatives of the Ombudsperson, the Commissioner for the Protection of Equality and Praxis as the moderator, a total of 18 female representatives of 10 Roma non-governmental organizations from Serbia also took part in the seminar.

On the first day of the seminar, Praxis gave an introduction into the theme of human rights. Praxis also created a workshop “My rights in practice” that was held on the third day of the seminar when the participants had the opportunity to recognize, through simulation, the cases of discrimination or violation of rights which are the result of impermissible different treatment and to file a complaint to the relevant independent body accordingly.

Representatives of the Ombudsperson and the Commissioner for the Protection of Equality gave lectures about the registration in registry books, determination of time and place of birth, registration of permanent residence at the address of the social welfare centre, health protection and health insurance, violence against children, safety and education of children, anti-discrimination, situation testing method, protection mechanisms and filing of complaints.
The aim of the seminar was to put emphasis on the exercise and protection of rights of children aimed at improvement of the early childhood development through empowering the representatives of non-governmental organizations to identify problems in their local communities and to motivate the vulnerable to seek protection of their rights.

Preuzmite: Priručnik za pristup pravima

Download the report: Collection of Selected Opinions and Recommendations of the Commissioner for Protection of Equality: Acting upon the Complaints for Discrimination against Children

On 28 February 2014, a press conference was held on the occasion of the end of the project “Equal Chances for Better Prospects – Strengthening Roma in Combating Discrimination”, implemented by the Commissioner for Protection of Equality in cooperation with non-governmental organizations Praxis and Regional Center for Minorities, with the support of the Embassy of the Netherlands in Serbia.

Download: Press Conference “Equal Chances for Better Prospects – Strengthening Roma in Combating Discrimination"

I. D. was born in Germany to the father, who is the citizen of Macedonia, and the mother, who is the citizen of Serbia. After 2000, his family moved to Serbia and in 2005 his father submitted the request for determining I.D.'s citizenship.

The decision of I. D.'s request was not reached not even until May 2014 – nine years after submitting the request. I. D. asked kept asking around in the police station in which the request was submitted, but with no success. Last time, they said to him that he is a foreigner, an adult and that he resides in the country illegally and that therefore he would have to go to Macedonia and register his stay so as to be admitted in the citizenship of the Republic of Serbia.

I. D. then addressed Praxis for assistance. Based on delivered documents, it was concluded that his citizenship had not been determined to him because his parents used the option for I. D. to acquire the citizenship of one parent (i.e. Macedonian citizenship) when registering I.D. in the Embassy of Macedonia whose citizen his father is. At the moment of I. D.’s birth, the rule according to which the parents of different citizenship (of different republics of former SFRY) agreeably decide which citizenship their child will acquire, was then still in force. Therefore, it was not possible to determine the Serbian citizenship for I. D. but he could be just admitted in the citizenship.

Until a few years ago, I. D. as a member of one of the nations from the territory of former SFRY, could have been admitted into the citizenship of the Republic of Serbia just with the statement that the considers Serbia his own country. However, the provisions envisaging such facilitated naturalization were time-limited and stopped being in force. Also, as a minor child of the local citizen (he was only 12 at the moment of submitting the request, and his mother was a Serbian citizen), I. D. could have more easily regulated his stay in Serbia. However, waiting for the decision upon the request, I. D. missed both opportunities.

I. D. and his family are the members of Roma national minority, one of the most vulnerable groups in Serbia. Without possessing enough resources for supporting himself, I. D. cannot obtain the permanent resident status in Serbia and consequently he could not fulfill the conditions for the ordinary naturalization of foreigners. Currently, he can only continue living in Serbia without the solved status and at risk of deportation or to leave his family and go to the state whose citizenship he possesses but with no effective bond to it.

After initiating a procedure upon the complaint filed by Praxis and Women’s Space from Nis to the Commissioner for Protection of Equality, it was established that the owner of the Pizza Shop “Marconi - Rim” from Nis discriminated against a Roma woman in establishing employment relationship.

Specifically, after publishing an advertisement offering employment in the Pizza Shop  “Marconi - Rim” from Nis, Praxis and the organization Women’s Space carried out situational testing in which two persons, one Roma woman and one non-Roma woman, of similar age, work experience and other characteristics, tried to establish employment relationship with this employer. Despite of it, the employer had the intention to employ only the person who did not belong to Roma ethnic minority.

Since the act of discrimination was made probable by delivering the report on conducted situational testing, statements of the testers and the witnesses of conducted testing, the burden of proof was placed on the employer to prove that the principle of equality had not been violated in this case. For this reason, the employer was obliged to prove that there were objective reasons for which the tester who was of Roma ethnicity was not offered employment in the pizza shop, the reasons which were in no way related to her ethnicity and which provided objective and reasonable justification of such acting. However, in this case, the owner of the Pizza Shop “Marconi - Rim” from Nis did not do what was required, nor had he declared against the claims in the complaint at all.

In this procedure, the Commissioner pointed at the fact that the owner of the pizza shop had complete freedom to choose the person he wished to employ, evaluating the professional knowledge and capacities. However, in the process of employment, it is prohibited to exclude or give priority to any person based on their personal characteristics, which are not real and decisive condition for doing the job, having in mind the nature and specific characteristics of the job and the related working conditions.

For this and for the implementation of the rule on burden of proof, the Commissioner established that, in establishing employment relationship, the employer denied the possibility of employment to the Roma woman, who was a tester, exclusively because she is of Roma ethnicity, thus committing the act of direct discrimination on the basis of her personal characteristic which is prohibited by the articles 2, 6 and 16 of the Law on the Prohibition of Discrimination.

The employer was thus recommended to respect imperative rules on prohibition of discrimination in establishing employment relationship in the future, to publish and keep the opinion and recommendation of the Commissioner on the bulletin board or other visible place in the premises of the shop for at least 8 days and to inform the Commissioner about it within 30 days from submitting the opinion and recommendation.

Download: Opinion of the Commissioner for the Protection of Equality with the recommendation