Serbia

Positively, Serbia is party to relevant human rights instruments, including the 1954 and 1961 Conventions, although it has not acceded to the two Council of Europe statelessness conventions. There is limited data on the stateless population in Serbia, and no dedicated statelessness determination procedure. However, there are ad hoc procedures for identifying statelessness and a ‘stateless’ protection status does exist in law, providing for a right to work, education, social security and a travel document, as well as protection against discrimination. There are some protections against arbitrary detention including a time limit in law, and a policy of setting a country of removal prior to detention, but there is no automatic right to residence or documentation on release.

Efforts to prevent and reduce statelessness are inhibited by gaps in the implementation of safeguards against childhood statelessness and birth registration requirements. The law prevents statelessness for most children born on the territory or to Serbian nationals abroad, foundlings, and adopted children, providing for an automatic right to acquire Serbian nationality. However, the safeguard for children born in Serbia is implemented in such a way as to apply only to minors, and a request must be submitted to the competent authority for a decision to be made on the acquisition of nationality. Bylaws on birth registration require parents to present birth certificates and identity documents, increasing the risk that births remain unregistered.

 

Last updated: 
Dec 2017
Next scheduled update: 
Dec 2018
Country expert(s): 

Milijana Trifkovic, Praxis

ASSESSMENT KEY

++POSITIVE
+ SOMEWHAT POSITIVE
+-POSITIVE and NEGATIVE
- SOMEWHAT NEGATIVE
--NEGATIVE

ADDITIONAL INFO

-NORMS & GOOD PRACTICE

 

International and Regional Instruments

Assesses whether countries are state party to the relevant international and regional instruments, including whether reservations have an impact on statelessness, and whether instruments are incorporated into domestic law. The four core statelessness treaties (1954 Convention relating to the Status of Stateless Persons; 1961 Convention on the Reduction of Statelessness; European Convention on Nationality; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession) carry more weight than other relevant human rights instruments in the assessment.

Serbia is party to the two international statelessness conventions, but not to the European Convention on Nationality nor the Convention on the Avoidance of Statelessness in Relation to State Succession. Positively, it has ratified all other relevant international and regional conventions with no reservations and these have direct effect.

  • Serbia is state party to the 1954 Convention with no reservations and it has direct effect.
  • Serbia is state party to the 1961 Convention with no reservations and it has direct effect.
  • Serbia is not state party to the European Convention on Nationality nor to the Convention on the Avoidance of Statelessness in Relation to State Succession.
  • Serbia is not a member state of the European Union (EU) so is not bound by EU Directives.
  • Serbia is party to all other relevant international and regional conventions with no reservations and these have direct effect.

Statelessness Population Data

Examines the availability and sources of disaggregated population data on statelessness. Provides recent figures and assesses reliability of measures countries have in place to count stateless persons, including in the census, population registries and migration databases. Notes whether statelessness has been mapped in the country and whether there are sufficient measures in place to count stateless persons in detention.

Data on statelessness in Serbia is not comprehensive. Some data on the risk of statelessness in specific parts of the country is available, for example, studies examining rates of birth registration or possession of identity documents among Roma in specific communities. The census has a category, ‘without citizenship’, but this likely includes those who are facing administrative hurdles to accessing citizenship. No mapping study of statelessness at country level has been carried out, and data on stateless people held in detention is not published.

  • The census contains a category, 'without citizenship', but some of those counted are likely to be facing administrative hurdles to accessing citizenship.
  • According to the last census (2011) 99% of the population are Serbian citizens; 0.62% are foreign citizens; and 0.08% are without citizenship. A total of 5,951 declared themselves without citizenship; of these 5,764 were born in other states of the Former Yugoslavia.
  • Multi-Indicator Cluster Survey (MICS) data from surveys conducted by UNICEF provide some information on birth registration in specific populations where there is a risk of statelessness, for example, Roma communities, which have the lowest birth registration rate (94%). A 2014 UNHCR survey (needs assessment of internally displaced Roma in Serbia) found that 9% of Roma IDP households and 5% of domiciled Roma households in Serbia have at least one member who cannot obtain a citizenship certificate.
  • UNHCR carried out two surveys in 2010 and 2015 on statelessness among Roma, Ashkaeli and Egyptians. According to the 2015 study, which surveyed 1,987 households with a total of 8,765 members living in informal settlements, the share of people without basic identity documents among this population has dropped from 6.8% in 2010 to 3.9% in 2015. In 2015, 700 (1%) of those living in the settlements were not registered in the birth registries and 2,700 people (5.2%) had no identity cards.
  • No comprehensive mapping of statelessness in the country has been undertaken.
  • The authorities only collect data on the countries of origin of refugees and asylum seekers in Serbia. There is no data about stateless asylum seekers or their number is unrealistically low.
  • Data on stateless people in detention is not published, although correspondence with the Ministry of Interior suggests that it is collected internally.
  • In response to a freedom of information request, the Ministry stated that no stateless people or people with unknown or undetermined nationality were detained in 2016-2017. However, they also stated that in 2016, 205 people were released from detention due to being ‘unremoveable’, including people with their nationality recorded as ‘Western Sahara’ and ‘Palestine’.

Statelessness Determination and Status

Identifies whether countries have a dedicated statelessness determination (SDP) procedure; or, if not, whether there are other procedures or mechanisms by which statelessness can be identified and status determined. Countries are subdivided in four groups to enable comparison between those with an SDP in place (Group 1), those with other administrative procedures (Group 2), those with a status but no clear mechanism (Group 3), and those without any status or mechanism (Group 4). Where a procedure exists, this is assessed against good practice, and the rights granted to recognised stateless people are examined.

Serbia falls within Group 3, as, although an ad hoc procedure was implemented in 2011 to recognise 155 people from Albania as stateless, it does not have a dedicated statelessness determination procedure (SDP) nor any other mechanism to identify and determine statelessness. A stateless status is provided for in law and rights granted to stateless people include a travel document, right to work, social security, education, and protection against discrimination. There is no simplified or accelerated route to naturalisation for stateless people.

  • There is no dedicated statelessness determination procedure (SDP) or other formal mechanism to identify statelessness in Serbia.
  • A small number of people have been recognised as stateless in the past through an ad hoc procedure implemented by the Ministry of Interior. There are no recent cases and the procedure used is unclear.
  • There is a stateless status in Serbia, but no formal procedure to identify stateless people.
  • There has been no recent determination of statelessness and the procedure for determination is unclear. 155 people from Albania were determined to be stateless in an ad hoc procedure implemented by the Ministry of Interior and reported on in 2011. Of these, 146 were granted permanent residence, and nine were granted temporary residence permits. They were also granted travel documents.
  • Stateless people are provided certain rights in law, including a two-year travel document based on permanent or temporary residence; right to work; social security; primary and secondary education; and protection against discrimination.
  • 1954 Convention rights should be applicable if these are more favourable to a stateless person than rights enshrined in national law, but without an SDP, the risk is that these rights cannot be obtained in practice.
  • There is no simplified or accelerated route to naturalisation for stateless people.

Detention

Analyses law, policy and practice relating to immigration detention generally, but focusing on protections in place to prevent the arbitrary detention of stateless people during removal and deportation procedures. Subthemes examine areas such as detention decision-making, how alternatives to detention are legislated for and implemented, procedural safeguards such as time limits, judicial oversight and effective remedies, as well as protections on release.

Powers to detain are provided for in law, but some safeguards against arbitrary detention are found only in policy, for example, that detention should be a last resort and a country of removal set before detaining. Alternatives to detention are established in law and considered in practice, but statelessness is not considered juridically relevant and there is evidence to suggest that some stateless people may be detained. There is a maximum time limit in law and free legal aid is provided by NGOs, but there is no periodic review of detention, and detainees have reported not understanding the reasons for their detention. The status of people released from detention is unclear and re-detention is possible.

  • Immigration detention powers are provided for in law and restricted to the purposes allowed under Art. 5 (1)(f) ECHR. However, in practice, cases have been reported of people being detained arbitrarily for the purposes of securing testimony in criminal proceedings related to people smuggling and human trafficking.
  • The requirement for a country of removal to be identified before a person is detained is not set in law, but the authorities state that this is in policy and required in practice. Cases have been identified of people being issued with a removal order without the country of origin specified, though they were not detained.
  • Statelessness is not considered a juridically relevant fact in decisions to detain, but if it is established that a person is unremovable, they will be released.
  • There is no clear evidence that stateless people are being detained in practice. According to the authorities, although the principle of detention as a last resort is not set in law, it is established in policy and practice. However, data released under a freedom of information request suggests that detainees released due to unremovability in 2016 may have been stateless (nationalities recorded as ‘Palestine’ or ‘Western Sahara’).
  • Individual vulnerability assessments are not carried out prior to detention but there is a requirement for authorities to consider the specific vulnerabilities of certain categories of people during all procedures. Statelessness is not identified as giving rise to vulnerability.
  • There are no specific provisions to protect stateless people convicted of criminal offences from arbitrary detention.
  • Alternatives to detention are established in law and implemented in practice according to the authorities. They are: compulsory stays in a designated place and temporary withdrawal of travel documents.
  • There is no evidence that immigration detention is used prior to alternatives being considered, and the authorities state that alternatives are systematically considered prior to any decision to detain.
  • A maximum time limit for detention is set in law (90 days extendable to 180 days exceptionally). New legislation before the Parliament may amend this provision.
  • The law states that individuals must be provided with written reasons for detention, but in practice individuals have reported not knowing the reasons for their detention during monitoring visits.
  • Factsheets with information on rights are given to all detainees, but these do not contain information about access to a statelessness determination procedure, as none exists.
  • There is no free state legal aid system in Serbia, but free legal aid is provided by NGOs.
  • Periodic reviews of detention are not provided for in law, but detainees will be released on expiry of the maximum time limit or if removal is no longer foreseeable.
  • It is possible to appeal against the decision to extend detention, but this does not prevent the extension taking place and the decision can only be appealed once. New legislation before parliament may amend this provision.
  • There is an internal procedure for redocumentation and ascertaining nationality for the purpose of removal, but this is not published nor set in law.
  • The state does not issue any identification documents or stay rights to people released from detention although citizenship status is recorded on an administrative document (cancellation of permission to stay).
  • There is a gap in the law regarding the status of people who are released from detention and it is unclear what status or rights they have. The new legislation before parliament proposes to remedy this.
  • Cumulative time spent in detention is not taken into account and people may be re-detained.

Prevention and Reduction

Assesses the adequacy of safeguards in nationality laws to prevent and reduce statelessness, including protections for otherwise stateless children born on the territory or to nationals abroad, foundlings and adopted children. Examines law, policy and practice on birth registration, including access to late birth registration, and measures taken by states to promote birth registration among groups at high risk of remaining unregistered.

Legal safeguards are in place in Serbian nationality law to prevent statelessness in the case of children born on the territory or to Serbian nationals abroad, foundlings and adopted children. However, there are implementation gaps. The authorities interpret the safeguard for stateless children born in Serbia as applying only to minors, and in practice, a request must be submitted to the competent authority for a decision to be made on the acquisition of nationality. Positively, the state is actively engaged in promoting birth registration and has amended legislation to facilitate late registration, but there is still a significant barrier in that births cannot be registered if parents are undocumented (unless they go through a lengthy procedure), on which Serbia has received Universal Periodic Review recommendations.

  • The law states that otherwise stateless children born in Serbia shall acquire Serbian nationality automatically, but in practice, a request must be submitted to the competent authority and a decision is made as to whether the child (and/or parents) is stateless.
  • There is no requirement in law for the parents to also be stateless, if the child would otherwise be stateless; and there is no residence requirement for the child or parents, but in practice, it is necessary to provide documentary evidence of the child and/or parents’ statelessness.
  • The competent authority interprets the legislation to mean that only a minor (under 18 years-old) can acquire citizenship by birth if otherwise stateless, which is a lower standard than provided for in the 1961 Convention and constitutes a gap for young people if no-one has initiated a procedure to confirm their nationality as a minor.
  • Foundlings acquire nationality automatically by law and the definition encompasses all children up to the age of 18.
  • Although not explicitly set out in the provision, the loss of Serbian citizenship is conditional upon possession or acquisition of another citizenship according to law.
  • Statelessness is explicitly prevented in the case of a child adopted by foreign parents, as loss of Serbian citizenship is conditional upon possession or acquisition of another citizenship.
  • There is provision in law for a child adopted by a Serbian citizen to acquire citizenship.
  • A child born abroad to a Serbian citizen can acquire citizenship automatically if the other parent is unknown, of unknown citizenship or stateless. If the other parent is a foreign citizen, the child can acquire Serbian citizenship if the Serbian parent registers the child with the competent authorities before the age of 18, or if the person registers with the competent authorities themselves between 18-23 years-old.
  • The Serbian Constitution guarantees every child born on the territory the right to a name and the right to be registered in the birth registries, but bylaws stipulate that parents need to possess birth certificates and ID cards or passports to register a birth.
  • If parents are undocumented they need to go through a further procedure that can take months or even years, so in practice immediate birth registration is not guaranteed for all children born in Serbia.
  • Serbia has received Universal Periodic Review recommendations on ensuring universal access to birth registration for all children regardless of the status of their parents, and without discrimination.
  • Children can be registered if parents are not legally residing in the country but not if they are undocumented (without going through the additional procedure).
  • There are credible reports suggesting that children are prevented from registering in practice because of parents' lack of documentation.
  • There are no mandatory requirements for authorities to report undocumented individuals to authorities.
  • The prescribed deadline for registration of a child’s birth is 15 days from the day of birth. Late registration is possible, but where a child’s birth has not been registered within 30 days, it can only take place following a decision of the competent administrative body so a procedure for subsequent registration of the fact of birth must be initiated.
  • There are no fees for late birth registration, but the procedure can take several months.
  • The Serbian Government is actively engaged in promoting birth registration, for example, there was a Memorandum of Understanding between the 'Protector of Citizens', Ministry of Public Administration, Local Government and UNHCR directed at implementing a campaign to raise awareness among Roma communities about the right to birth registration and provision of free legal assistance in the procedures for subsequent registration.

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