Monday, 3 October 2011

The stubborn cloak of legal invisibility

In the context of the gripping tales of Harry Potter, the invisibility cloak is a magical object. It offers Harry the opportunity to enjoy some innocent adolescent mischief, while it also provides a snug layer of protection when his life is in danger. This is undeniably the invisibility of childhood fantasy and part of its charm and security lies in Harry’s ability to cloak himself in it, or reveal himself, at will. As such, it is difficult to think of a starker contrast with the phenomenon of legal invisibility, which imposes itself uninvited on its victims, is stubbornly resistent to efforts to lift its cloak, creates vulnerability rather than protection and can destroy the innocence of childhood.  

I have just returned from a conference in Belgrade, organised by Praxis – an NGO which is to be praised for both the high quality of its work and its incredible dedication to the human rights issues it seeks to address. For many years now, Praxis has been pushing for a solution to the situation of people in Serbia who lack legal personhood, for whom it has coined the evocative and fitting phrase “legally invisible”. They are people who lack any official recognition from any state authorities of their existence and of their identity. No birth certificate. No ID card. No citizenship document. Nothing. When trying to exercise any right under the law, they are confronted with the problem that legally, they don’t exist – they are invisible to the law. As such, they cannot exercise rights to health care, social welfare, housing, education, they cannot vote in elections, get married legally, register their children or appear as parties before courts or other state bodies, etc. Without recognition of the facts of their birth, or indeed, existence, these “legally invisible” people will often also find themselves at risk of statelessness, because their position under the applicable nationality laws cannot be formally established.

Praxis’ reports and a short documentary film which they have just put together (and we hope will be shared online), use a range of individual case studies to illustrate the ways in which people become legally invisible and why it proves to be such a difficult problem to shake. Here are two examples from recent reports:

Djulijan and Senad Case – Djulijan was born in 1999 in Kosovo Polje and had never been registered into birth registry book. He was admitted to hospital in Belgrade in 2006 using a “borrowed” health card. As a “legally invisible” person, Djulijan could not obtain health insurance, so his parents were forced to “borrow” a health card from their cousin Senad, born in Kragujevac in 2001 and registered into birth registry book […] In August 2006, Djulijan died in hospital, but the fact of death registered into the birth and death registry books was that of Senad, not Djulijan. […] Today, Senad is seven years old and lives as a “legally deceased” person, so he will not be able to enrol in school, receive medical treatment if necessary, or exercise other rights. Djulijan, on the other hand, lived and died as a “legally invisible” person.

Sabaheta Case – Sabaheta was born approximately 24 years ago, at home, as a child from a common-law [unregistered, informal] marriage. Her mother Nurija abandoned her soon after and went to Germany. Sabaheta grew up with her grandfather Miftarem. Today, she lives as a “legally invisible” person with her common-law husband and three children in a Roma settlement in Novi Sad. Sabaheta is not sure whether she was born in Montenegro or in Kosovo. Apart from her mother’s name, she is not acquainted with any other data about her parents. She neither has relatives from whom she could perhaps get these data and obtain mother’s documents. The only recorded evidence on Sabaheta’s existence is a letter of the Social Welfare Centre Niksic, Montenegro, sent to the Social Welfare Centre Zrenjanin in 2006 in which it was stated, inter alia, that Sabaheta is approximately 17 years old and not registered in birth registry book. Besides, she also possesses a certificate confirming that she is not registered in birth registry book in Niksic.

In its reports, Praxis goes on to explain the steps that it has helped people to take in order to establish their legal identity and lift the cloak of invisibility. More often than not, the legal proceedings they initiate are to no avail as the administrative authorities demand a whole host of substantiating documents that the applicant simply cannot produce. The procedures can also drag on for years and there are plenty of examples of legally invisible people submitting a request for so-called “subsequent registration” (i.e. late registration into the birth registry as the key step that formalises their legal existence), which is refused, appealed, sent back to the first instance body for review, refused again, appealed, etc etc. It can be heartbreaking work for the legal assistance team at Praxis and it is mystifying to hear how difficult it is to obtain official recognition from the authorities that a person is indeed living and breathing in front of them.

Unfortunately, it is not only in the small state of Serbia where people are cast into legal invisibility. In my own first encounter with Praxis, at an event on statelessness in the spring of 2010, I slipped into an easy conversation with their inspirational Executive Director Ivanka Kostic. We quickly discovered that the issues she was confronted with bore an uncanny similarity to the situation I had discovered in Lebanon, where I was working at the time. In Lebanon, there is also a significant problem of legal invisibility, affecting a group described in Arabic as Maktoum al kayd, or “unregistered”. In a 2007 newspaper article written by Fatima Rida, the description of one such case is telling:

Malik has vanished from under the bridge where he used to sleep. His disappearance was accompanied with uncertain details that eventually turned into negative signals, especially as it became certain that he has not gone to jail for the “eight” time. “We let him down…so he left and never came back”, bitterly spoke the social worker as she spoke of Malik who frequented her office at a social service center in the southern suburb of Beirut two years ago. The young man had promised her to stop mutilating himself every time the police confronted him “while he waited for an identity card that would shield him from the torture of detention and jail for the eighth time on the charge of homelessness.” He was “accustomed” to pulling a razor he constantly kept on him to cut his hands and legs to keep the police officers away from him because “no one wants me to die in his arms, so they let me go” as he used to say. On the last occasion, the social worker had to inform him that his legal motion to obtain him an identity card was rejected despite all efforts. She adds, “he looked at us as if he knew the answer. Then he left…and vanished after a another clash with the security forces.” [translation from Arabic text published in Al Hayat]

It is unusual for the media to report on this phenomenon and the situation in Lebanon has not received much press since this piece was printed. However, by strange coincidence, on the day that I was in Belgrade, discussing Serbia’s invisible people with Praxis and colleagues from across Europe, a new article appeared in a Lebanese newspaper about the legally invisible there and their exposure to statelessness. There is still much that needs to be understood about the situation in Lebanon and  in Serbia, in order to get to the bottom of why these cases are proving to be so difficult to resolve and why the cloak of legal invisibility is such a stubborn one. And of course there is also a wider and pressing question: who else will Ivanka or I find outselves sitting next to in meetings in years to come, only to discover new stories of legal invisibility in other countries around the world?

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

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