26. September 2013, ref. no. 021-02-54/2013-02
CITY ADMINISTRATION OF THE CITY OF BELGRADE
SECRETARIAT FOR ADMINISTRATION
Milan Brkljač, Secretary
Kraljice Marije 1/V
Dear Mr Brkljač,
The organization for lesbian human rights L. from Belgrade conducted a situational testing of discrimination in Belgrade city municipalities in the period from March to December 2012. The aim of this testing, carried out by representatives of this organization, was to directly check the implementation of the rules on the prohibition of discrimination, in order to determine whether the competent municipal authorities are issuing certificates of free marital status to same-sex oriented persons who want to marry/enter a partnership outside Serbia, in countries where this possibility exists.
Based on the report of the organization L, submitted in accordance with Art. 46, para. 4, of the Law on the Prohibition of Discrimination, it was established that certain competent municipal services, that is, departments for personal status of citizens, management of registries and electoral rights, which are part of the Secretariat for Administration of the City Administration of the City of Belgrade, do not treat same-sex oriented persons and heterosexual persons equally when it comes to exercising the right to obtain a certificate of free marital status, as registrars in certain municipalities refuse to issue certificates of free marriage to same-sex oriented persons who want to marry abroad. As a reason for the refusal to issue this certificate they state the unconstitutionality of such a certificate, that is, the absence of the possibility of concluding a same-sex marriage in Serbia. Officials advise persons requesting the issuance of this certificate that, according to the law of the Republic of Serbia, marriage concluded with a person of the same sex before a foreign authority would not produce any legal effect in the Republic of Serbia, nor could it be registered in the marital registry.
From this behavior of the registrars their standpoint can be determined, namely that the issuance of a certificate of free marital status requires that conditions for concluding a valid marriage prescribed by domestic regulations are fulfilled. This standpoint is further confirmed by the fact that on the internet presentations of some Belgrade city municipalities, which contain information on the documentation required for the issuance of certificates, there is a special remark that the certificate is issued “with a certified statement that there are no obstacles to the conclusion of the marriage”.
Bearing this in mind, I am taking the liberty of pointing out that it is obvious that this is a misinterpretation of legal regulations, which results in discriminatory treatment.
Namely, the certificate of free marital status is a public document, which serves as evidence that a specific person, in accordance with national regulations, is of free marital status, and this information is determined on the basis of data contained in the registries, in accordance with Art. 80, para. 1, of the Law on Registries. A person who wishes to marry abroad, in accordance with foreign regulations, may request a certificate of free marital status, without specifying whether he/she intends to conclude a heterosexual or same-sex marriage, and the authority in charge of keeping the registry is obliged to issue this certificate if they establish that a person is of free marital status.
Although the claims of the registrars that same-sex marriage would not be recognized in the Republic of Serbia are correct, given that the Constitution of the Republic of Serbia and the Family Law stipulate that the marriage is concluded on the basis of the freely given consent of a man and a woman, that is, that the marriage of persons of the same sex is null and void, this fact is irrelevant when it comes to issuing certificates of free marital status. The reason for this lies in the fact that the party addresses the competent service with the aim of obtaining a certificate of free marital status, rather than information on the possibility of recognizing a same-sex marriage concluded abroad.
On the other hand, the circumstance that same-sex marriage, which would eventually be concluded abroad, would not be recognized in the Republic of Serbia according to domestic regulations, cannot be a justification for denying national citizens the issuance of certificates of free marital status. Namely, although the regulations of the Republic of Serbia prohibit the conclusion of same-sex marriages before competent domestic authorities, these regulations do not prohibit domestic citizens from entering same-sex marriages abroad. Accordingly, there is no objective justification to support the competent public authority in denying in any way the issuance of a certificate of free marital status to a person wishing to enter a same-sex marriage, or some other form of a registered same-sex community abroad, in accordance with the regulations in force in a particular foreign country, despite the fact that, according to current domestic legislation (so far), conditions for the recognition of same-sex marriage, that is, registered same-sex community, do not exist in the Republic of Serbia.
In addition to that, Art. 80 of the Law on Registries stipulates that, on the basis of registries, certificates shall be issued that contain individual data entered in the registries, or specific facts about the personal status of citizens arising from such data, while according to Art. 81, excerpts from the registries are issued on the basis of data contained in the original registry. According to point 115 of the Instructions on keeping the registries and registry forms, the certificate issued must contain only data entered in the registry, or facts about the personal status of citizens arising from data entered in the registry until the moment the certificate is issued. In Form No. 9, which is printed along with these Instructions, the only additional data, besides the data relating to the applicant and the data entered in the registry, pertain to the purpose of issuing the certificate, which is logical, since this is a typical form for all certificates issued on the basis of data from the registers. Bearing in mind these regulations, it is completely unclear how the practice has developed that the registrars require from applicants information about their future spouse for issuing a certificate of free marital status.
I would also like to point out to the fact that on the websites of certain municipalities, within information on the documentation necessary for the issuance of a certificate of free marital status, it is stated that, among other things, a photocopy of a passport or a birth certificate, issued on an international form, must be provided for a future spouse. The reason for which these data are being required is unclear, since they cannot be entered into the certificate of free marital status, bearing in mind the previously cited regulations. It should be borne in mind that anyone who is registered in the birth register has the right to obtain a certificate of free marital status, if he/she is of such status, with the payment of the prescribed fee, regardless of the reason for which the certificate is needed.
The question can also be raised whether it is at all allowed to request from the applicant for a certificate to supply data on the person he/she intends to marry (or enter into some other registered partnership in countries that recognize this form of community, and for which valid free marital status is a condition), having in mind the basic human right to privacy. However, this analysis could not be carried out, since violations of other rights that may have occurred in the specific case, do not fall within the competence of the Commissioner for the Protection of Equality.
I would like to point out that this attitude of the registrars is caused by the sexual orientation of the persons who are requiring the certificate, because they would certainly not behave in the manner described, if the certificate of free marital status was required by a person who wishes to engage in heterosexual marriage abroad. Such treatment discriminates against persons who wish to establish same-sex marriages or registered partnerships in countries that recognize this form of community, as compared to persons wishing to conclude heterosexual marriage abroad, the discrimination being based on their personal characteristics – sexual orientation.
Let me remind that the Constitution of the Republic of Serbia prohibits any discrimination, direct or indirect, on any grounds, and in particular based on race, gender, nationality, social origin, birth, religion, political or other belief, wealth, culture, language, age, psychological or physical disability. The constitutional prohibition of discrimination is elaborated in more detail by the Law on the Prohibition of Discrimination, where discrimination is defined as any unjustified making of a difference or unequal treatment, i.e. omission (exclusion, restriction or giving priority) in relation to persons or groups, as well as members of their families, or persons close to them, in an open or covert manner, based on race, color, ancestry, nationality or ethnic origin, language, religious or political beliefs, gender, gender identity, sexual orientation, wealth, birth, genetic features, health status, disability, marital and family status, previous sentencing, age, appearance and membership in political, trade union and other organizations and other real or supposed personal qualities. Article 6 of the Law on the Prohibition of Discrimination stipulates that direct discrimination exists if a person or a group of persons are being placed, or have been placed, or could be placed, due to their personal status, in a more unfavorable position in the same or similar situation, by any act, deed or omission thereof. Provisions of Art. 15-27 of the Law on the Prohibition of Discrimination defined special cases of discrimination. According to Art. 17 discrimination in the provision of public services exists if a legal or natural person, within the scope of their activity or occupation, and on the basis of the personal characteristics of a person or a group of persons, refuses to provide a service, or requires the fulfilment of conditions for the provision of service that are not required from other persons or groups, or if they improperly give priority to another person or group of persons in the provision of service. In addition, Art. 21 stipulates that everyone has the right to declare their sexual orientation, and discriminatory treatment for such a declaration is prohibited.
According to the Law on the Prohibition of Discrimination, a tester (voluntary examiner of discrimination) is a person who consciously exposes him/herself to discriminatory treatment, with the intention of directly checking the application of the rules on the prohibition of discrimination in a concrete case (Article 46, para. 3). Since the process of proving discrimination with standard evidence often does not yield satisfactory results in the judicial and other proceedings, the law established a special method of voluntary testing of discrimination (situational testing), which facilitates this process. Situational testing is used to establish “on-site” discrimination, in order to demonstrate unequal (unfavorable) treatment of persons or groups of persons based on some personal characteristic, or in order to make discriminatory practices visible. This method/mechanism allows the detection of discrimination that is often “concealed” and is justified by different excuses (for example when the Roma appear in front of a discotheque, they are banned from entering with the explanation that there is no place, or they are asked for a membership card or a reservation that is not being sought from others). Situational testing is a special mechanism that involves the creation of a particular situation in which a person (potential discriminator) is brought into a position to behave/act discriminatively without the fear that someone is watching, and testers are those who expose themselves to the behavior of a potential discriminator, and check whether he/she behaves discriminatively in a given situation. Situational testing has a great potential in strengthening evidence of discriminatory treatment in individual cases, and is also used for raising public awareness and developing public policies. According to Art. 46, para. 4, of the Law on the Prohibition of Discrimination, the person intending to conduct situational testing is obliged to inform the Commissioner for the Protection of Equality of the intended action, unless the circumstances do not allow it, and to inform the Commissioner on the undertaken action in writing.
Finally, I would also like to point out the well-established fact that people of homosexual orientation are one of the marginalized and stigmatized social groups, and that they face numerous threats, harassment and other problems daily. Bearing this in mind, I believe that all social actors must provide support and take all measures, within their respective competencies, in order for these persons to enjoy all rights guaranteed to citizens of Serbia, on an equal basis, without discrimination, and that they must also take adequate measures against all those who, by their actions, violate anti-discrimination regulations.
For all of the above reasons, I expect that you will use your legal authority and ensure that the competent services of Belgrade’s city municipalities (departments for personal status of citizens, management of registries and electoral rights) issue certificates of free marital status to all persons requiring a certificate and meeting the conditions for issuing of the certificate, regardless of the reason why the certificate was requested, as well as act in accordance with the anti-discrimination regulations in the course of performing tasks within their competence.
With sincere appreciation,
COMMISSIONER FOR THE PROTECTION OF EQUALITY
dr Nevena Petrušić