Published on 8 January 2024
FOURTH SECTION
Application no. 32903/22
Mirveta RAMADANI
against Serbia
lodged on 28 June 2022
communicated on 7 December 2023
SUBJECT MATTER OF THE CASE
The application concerns the refusal of the Serbian authorities to enter the applicant’s name into the Birth Register (Matična knjiga rođenih) because her mother had no identity document to provide in support of this request and given that such a document was an explicit legal requirement for the entry in question.
The applicant is of Romani origin and was born on 3 March 2022. She is now bringing her application before the Court through her mother who has retained legal counsel on her behalf.
The applicant complains under Article 8 of the Convention that she suffered a violation of her private and/or family life as a consequence of the refusal to enter her name into the Birth Register. This refusal created identity problems in her relations with her family members and wider society and deprived her of any legal capacity. The latter also made it impossible for the applicant to enjoy health or social insurance, have any property rights, or be recognised as a Serbian national. The applicant lastly complains under Article 8 of the Convention that the respondent State has a positive obligation to provide for a legal and practical framework which would allow for children to be “registered immediately after birth”.
The applicant furthermore complains under Article 14 read in conjunction with Article 8 of the Convention that she has been discriminated against in the enjoyment of her private and/or family life as a consequence of the refusal of the Serbian authorities to have her name entered into the Birth Register when compared to other children whose parent or parents, unlike her mother, had identity documents. Moreover, the applicant maintains that she suffered discrimination due to the fact that she was of Romani origin and as such a member of an ethnic minority group which was “almost exclusively” affected by the impugned situation.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, could administrative and judicial review remedies be deemed effective in the specific circumstance of the present case (see, for example, Grudić v. Serbia, no. 31925/08, § 48, 17 April 2012)? Also, having regard to the Constitutional Court’s decisions Už-5369/2015 and IYo-190/2018 of 9 May 2017 and 10 September 2019, respectively, would a constitutional appeal (ustavna žalba), exceptionally, not have been an effective remedy which the applicant should have pursued (see, for example, Negovanović and Others v. Serbia, nos. 29907/16 and 3 others, §§ 58-64, 25 January 2022, with further references; see also, mutatis mutandis, Association of Citizens “Radko” and Paunkovski v. the former Yugoslav Republic of Macedonia (dec.), no. 74651/01, 8 July 2008)? The Government are invited to provide any and all relevant domestic case-law in this respect.
2. Has there been a violation of the applicant’s right to respect for her private and/or family life, within the meaning of Article 8 § 1 of the Convention? In particular, did (a) the refusal of the Serbian authorities to have her name entered into the Birth Register (Matična knjiga rođenih), or (b) as alleged by the applicant, their refusal to provide for a legal and practical framework which would allow for all children in a situation such as hers to be officially “registered immediately after birth”, amount to a breach of Article 8 (see, for example and mutatis mutandis, Stjerna v. Finland, 25 November 1994, § 37, Series A no. 299-B; Ünal Tekeli v. Turkey, no. 29865/96, § 42, ECHR 2004-X (extracts); Kroon and Others v. the Netherlands, 27 October 1994, §§ 31 and 40, Series A no. 297-C; Hoti v. Croatia, no. 63311/14, § 122, 26 April 2018; and Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, § 282, 8 April 2021; see also, in this connection, the Concluding observations on the third periodic report of Serbia, 2017, adopted by the United Nations Human Rights Committee at its 119th session, paragraph 15; the Concluding observations on the combined second and third periodic reports of Serbia, 2017, adopted by the United Nations Committee on the Rights of the Child at its seventy-fourth session, paragraphs 30 and 31; the Concluding observations on the fourth periodic report of Serbia, 2019, adopted by the United Nations Committee on the Elimination of Discrimination against Women at its seventy-second session, paragraph 32; the Concluding observations on the third periodic report of Serbia, 2022, adopted by the United Nations Committee on Economic, Social and Cultural Rights at its seventy-first session, paragraph 31; and the European Commission’s annual progress reports for 2019, 2020 and 2021 in respect of Serbia)?
3. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 8 thereof? In particular and in view of the specifics of her complaints under Article 8 of the Convention, has the applicant been discriminated against in the enjoyment of her private and/or family life (a) compared to other children whose parents had identity documents, and/or (b) due to the fact that the applicant was of Romani origin and as such a member of an ethnic minority group which, as maintained by the applicant, was almost exclusively affected by the impugned situation (see, for example, Savickis and Others v. Latvia [GC], no. 49270/11, § 181, 9 June 2022, and Oršuš and Others v. Croatia [GC], no. 15766/03, § 150, ECHR 2010)?
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