More Primitive than Torture
13 October 2014
The European Roma Rights Centre recently joined the European Network on Statelessness (ENS), a civil society alliance committed to addressing statelessness in Europe. According to the ENS, there are some 600,000 people in Europe affected by statelessness. Many of them are undoubtedly Roma. In the legal team’s work, we regularly come across Roma who are unable to prove that they have any nationality and are at risk of being stateless, that is, of not being recognised by any country as its citizen. The US Supreme Court once said that statelessness is a “form of punishment more primitive than torture” ). What can the legal team at the ERRC do about it?
The words “stateless” and “statelessness” are not mentioned in the ERRC’s current programme strategy, but the idea of statelessness is present in much of what we do, and the ERRC has been enabling Roma to cope with the fallout of the breakup of the USSR and Yugoslavia ever since we were opened. “Identity documents” is one of our seven thematic priorities; so is “women’s and children’s rights”, covering the many Roma children who are stateless, and “free movement and migration”, an area that forces us to look at Roma who are stuck in the borders of one country, and separated by family members and the boundless opportunities of free movement, because of their inability to prove that they have a nationality.
Naming and combating statelessness among Roma will enable us achieve our goals in these areas. One way to start doing this is by identifying statelessness, or the risk of statelessness, as a major problem affecting Roma. For example, the ERRC is currently working with a paralegal project in Ukraine to help Roma who have never had birth certificates, passports or other identity documents to obtain them. We have succeeded in some cases, but in some we have not. Some judges are puzzled at the situation of people born on the territory of the country and who maybe have never left, but who have no ability to prove who they are or their nationality. Register offices, faced with court orders to issue birth certificates, have stalled, unsure if they can name someone as the father if they do not have the proof they feel they need. In countries where everyone has had the same bits of paper to identify themselves since birth, trying to get one when you are an adult is tricky for everyone involved.
It is important in our legal arguments taking forward the strategic cases that emerge from that project for us to point out to authorities (including judges) that their decisions amount to a finding that our clients are stateless. This is not only about rhetorical impact. It also has concrete legal consequences. There are two UN conventions: the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Many of these have been ratified by European states (including Ukraine, in March 2013) and may be directly effective in their legal orders.
We can also insist that states do better to name and address statelessness. The ENS has been working hard to promote the adoption of statelessness-identification mechanisms around Europe. A statelessness-identification mechanism is a procedure by which a person can be formally recognised as stateless. Identification is important: it can lead to getting an identity document and even a travel document, and may make it easier for a person to acquire the nationality of the country in which they are living or another country. Having such a mechanism, though, does not guarantee that the fundamental rights of stateless people will be respected. Italy has had a mechanism for identifying stateless people for many years, but the ERRC is considering taking test cases to challenge problems Roma face when trying to assert their statelessness.
The ERRC’s legal team can argue in concrete legal cases that leaving Roma in limbo, unable to secure documents that prove their citizenship, violates their human rights, including their right to respect for family life (including under article 8 of the European Convention on Human Rights). The ENS has also been promoting awareness of the ways in which Europe continues to produce statelessness, with many children born stateless here. Laws prescribing certain documents that must be produced at birth in order to register a child may be creating a generation of Roma in some countries who cannot prove their nationality and will not be recognised as a citizen by any country. It strikes at the child’s right to an identity.
The first step is naming statelessness (and the risk of statelessness) as part of the problem and working with the legal team to make sure we recognize when we have clients who may be stateless and using all of the legal tools available to support them. In the next few months, the legal team will deepen its understanding of this area of the law and use it to benefit our clients. UNHCR has recently launched a campaign to end statelessness by 2024. If Roma challenge laws and practices that leave them without a nationality, it will make that ambition much more realistic.
