Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, ALBANIA; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.25-02922 (E) 010425 010425
Human Rights Committee
Views adopted by the Committee under article 5 (4) of the
Optional Protocol, concerning communication
No. 3602/2019*, **
Communication submitted by:
Daniel Faslliu, Marjeldo Rexha and Hajrije
Rexha (represented by the European Roma
Rights Centre and the Tirana Legal Aid Society)
Alleged victims:
The authors
State Party:
Albania
Date of communication:
2 May 2018 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State Party on 13 May 2019 (not issued in
document form)
Date of adoption of Views:
29 October 2024
Subject matter:
Registration of birth
Procedural issues:
Competence ratione temporis; level of
substantiation of claims
Substantive issues:
Registration at birth; right to acquire nationality;
discrimination based on ethnicity; recognition as
a person before the law; right to family life; right
to take part in the conduct of public affairs
Articles of the Covenant:
16, 17, 24 (1)–(3), 25 and 26
Articles of the Optional Protocol:
2 and 3
1.
The authors of the communication are Daniel Faslliu, born in Lamia, Greece, in
February 2014; Marjeldo Rexha, born in Athens in August 2002; and Hajrije Rexha, born in
Athens in August 2002. The authors note that their nationality is Albanian but that they are
at risk of statelessness. The authors claim that the failure by the State Party’s authorities to
register their births amounts to a violation of their rights under articles 16, 17, 24 (1)–(3), 25
and 26 of the Covenant. The Optional Protocol entered into force for the State Party on
4 January 2008. The authors are represented by counsel.
* Adopted by the Committee at its 142nd session (14 October–7 November 2024).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Mahjoub El Haiba,
Carlos Gómez Martínez, Laurence R. Helfer, Marcia V.J. Kran, Bacre Waly Ndiaye, Hernán Quezada
Cabrera, José Manuel Santos Pais, Tijana Šurlan, Kobauyah Tchamdja Kpatcha, Teraya Koji, Hélène
Tigroudja and Imeru Tamerat Yigezu.
United Nations
CCPR/C/142/D/3602/2019
International Covenant on
Civil and Political Rights
Distr.: General
2 April 2025
Original: English
CCPR/C/142/D/3602/2019
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GE.25-02922
Facts as submitted by the authors
2.1
The authors note that they belong to the Roma community. At the time of their births,
their Albanian parents were living in Greece without legal residence status. They note that
article 7 of the Albanian Law No. 8389 on Citizenship states that any individual born to at
least one parent of Albanian nationality automatically acquires Albanian nationality. They
claim, however, that, in practice, the acquisition of citizenship is possible only if the child’s
birth has been registered. The registration of births in the State Party is regulated by Law
No. 10129 of 2009 on Civil Status. Under the relevant provisions, parents bear the primary
responsibility for the registration of the births of their children. If the parents fail to register
a birth, it falls to the State institutions to carry it out. According to article 38 (1) of the Law
on Civil Status, the registration of the birth of a child in the State Party requires the
submission of a birth certificate issued by the institution where the birth took place. The
certificate must be sent to the appropriate civil register office, that is, the office where the
mother of the child is registered, or the closest office to the mother’s place of residence. If
the mother gives birth outside a hospital, the fact of the birth can be proved through a medical
report. In other cases, when the parents cannot prove the fact of the birth through such a
document, or when the document is not in the required format, they must initiate court
proceedings to establish the fact of the birth. The law does not establish any time limit for
the registration of a birth, but early registration is encouraged. The birth registration process
can be complex and difficult to access, particularly for those who lack the required paperwork
or are particularly vulnerable.
2.2
The authors note that, for children born outside the State Party’s territory to parents
who are Albanian citizens, there were, until January 2017, two ways of registering the birth
of a child. The first was to register the birth with the Albanian consular authorities in the
country where the child was born by submitting a birth certificate, issued by the hospital at
which the child was born, containing information on the child’s date of birth, place of birth
and gender and the mother’s name. The second, for cases in which the child was born outside
the State Party and had been registered at a civil register office in the foreign country, was
for the parents to register the birth of the child directly at the appropriate civil register office
in the State Party, once they were on Albanian territory. In such a case, the birth certificate
had to be in the form prescribed by law, that is, a legalized certificate translated into Albanian
and notarized. In December 2016, a new law amending the Law on Civil Status was adopted.1
According to the amendments, from 2017, all children’s births must be registered in Albania,
and the Albanian consular services thus no longer have the power to register births.
2.3
The authors note that children who are born in Greece to parents who are non-
nationals generally have their births registered in Greece on the basis of a “maternity
certificate” issued by a hospital. However, those who are living in Greece without residence
permits, as was the case for the authors’ parents, are provided only with a document attesting
the birth as a matter of fact. This document is incomplete, as it does not indicate the name of
the child, referring to the child as “nameless”. Parents without legal residence status are not
allowed to give their child a name on the certificate, as they have no legal right to reside in
Greece. Before January 2017, some Albanian parents would try to register the births of their
children with the Albanian consular services in Greece, despite the incomplete Greek
certificate. The Albanian consular services would refuse to proceed with registration on the
basis of an incomplete birth certificate and would request the parents to submit the incomplete
document to the Ministries of the Interior, Foreign Affairs and Health of Greece to secure the
necessary stamps to legalize the document. The Greek authorities would in turn refuse to
legalize a birth certificate indicating that the child was nameless, as it was incomplete.
Although the authors are aware of instances where the Greek authorities would, exceptionally,
legalize an incomplete birth certificate, the Albanian authorities would still refuse to register
the birth because the document still did not indicate the name of the child. Parents who are
in the same situation as the authors’ parents – that is, parents whose children were born in
Greece while they themselves lacked legal residence status in that country and who tried to
register their children at a civil register office in Albania – encountered the same hurdles,
with the added difficulty that they were not in a position even to try to have the Greek
1 Law No. 134/2016 on Some Additions and Amendments to Law No. 10129 of 2009 on Civil Status.
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documents legalized by the Greek authorities, after having left the country. Roma are
disproportionately affected by the problem of having foreign births registered in the State
Party because Roma may be more likely than non-Roma to move to Greece irregularly
because of the exceptional poverty in which they live in Albania; Roma appear to be more
regularly targeted for expulsion from Greece than non-Roma; Roma are generally poorer than
non-Roma and, without health insurance, cannot pay for hospital expenses in Greece and face
obstacles preventing them from securing the documentation that they need;2 and, given that
Roma are generally poorer, once they return to Albania, it is extremely difficult for them to
travel back to Greece to try to fulfil the formalities required to secure the legalization of birth
documents issued in Greece.
2.4
Daniel Faslliu was born in February 2014 in Greece, where his Albanian parents were
living without legal residence status. His birth was registered at a Greek civil register office,
but the authorities refused to indicate his name on the certificate, as his parents did not have
legal residence status in Greece. In addition, the registration certificate did not have the
proper legalization stamp, nor did it have an apostille. These facts prevented his parents from
registering the birth at an Albanian civil register office. He moved back to Albania in 2014,
but, because his birth was not registered at an Albanian civil register office, he has not been
able to attend kindergarten or school or to be accepted by healthcare institutions.
2.5
Marjeldo Rexha and Hajrije Rexha, who are twins, were born in 2002 in Athens,
where their Albanian parents were living without legal residence status. Because they did not
have the money to pay the hospital fees of €1,000, their parents left the hospital before
obtaining medical certificates of birth. On an undetermined date, the parents of Marjeldo
Rexha and Hajrije Rexha went to a Greek civil register office in Athens and requested birth
certificates for their children. The births were then registered, and the office issued
certificates without indicating the names of the children, registering them only as “first twin”
and “second twin”. The parents were told that, since they did not have legal residence status
in Greece, they could not register the names of their children and could be provided only with
incomplete certificates, which did not allow them to register the births of the children in the
State Party, as the documents did not conform to the requirements under the State Party’s
domestic law. At the time of the initial submission, Marjeldo Rexha and Hajrije Rexha were
15 years of age and lived in Shkodër, Albania, but they could not attend school or access
social and health services, as they had not been and could not be registered with the Albanian
authorities.
2.6
The authors note that, in the absence of a birth certificate conforming to the form
required under domestic legislation, an alternative is to initiate civil court proceedings under
article 45 of the Law on Civil Status, through a motion for the completion of birth certificate
data. However, they cannot avail themselves of this process, since they were born abroad,
and the State Party’s courts have consistently maintained, in cases such as theirs, that the
domestic courts lack jurisdiction to complete or correct certificates issued by foreign
authorities.
2.7
The authors note that it is also possible to challenge a refusal by the consular
authorities or a civil register office to register the birth of a child born in Greece to
undocumented Albanian parents through court proceedings. The Tirana Legal Aid Society
has succeeded in one such case. However, the proceedings lasted over two and a half years,
and the authors note that they do not have the financial means to pursue such proceedings
and allege that there is no legal aid available to them. Under Law No. 10039 on Legal Aid,
persons must show that they are receiving social assistance in order to secure legal aid,
making those without documentation ineligible. In addition, the excessive length of the
proceedings is not compatible with the right of every child, under article 24 of the Covenant,
to be registered “immediately” after birth. In 2017, the State Party adopted Law No. 111/2017
on Guaranteed State Legal Aid. However, the new legislation has not yet been implemented,
as various sublegal acts required for its implementation have not been approved.
2.8
The authors did not submit a constitutional complaint to the Constitutional Court of
Albania, as, for a constitutional complaint to be admissible, they argue, it must, under article
2 The authors refer to CERD/C/GRC/CO/20-22 and E/C.12/GRC/CO/2.
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71/a (1) (b) of Law No. 8577 on the Organization and Functioning of the Constitutional Court
of Albania, be submitted within four months of the finding of an infringement. In the case of
the authors, this time limit has passed, and they argue that there is no exception provided for
to the time limit. In addition, a constitutional complaint is not an effective remedy in their
case, as the Constitutional Court does not have any competence to restore the rights of victims.
The Court has competence only to invalidate judicial decisions and, as such, could not
provide them with an effective remedy, that is, it does not have competence to order the civil
registration service to register their births.
2.9
The authors claim that, for the reasons outlined above, there are no effective remedies
available to them in the State Party, as no procedure exists under the State Party’s legislation
that could provide them with birth registration “immediately”, as required by article 24 (2),
read in conjunction with article 2 (2) and (3), of the Covenant. Requiring them to undertake
lengthy and speculative litigation would only further undermine their right to immediate birth
registration. In addition, they note that the violation of their rights results in part from the
failure by the State Party’s authorities to cooperate effectively with their counterparts in
Greece.
Complaint
3.1
The authors claim that, by failing to register their births, the State Party has violated
their rights under articles 16, 17, 24 (1)–(3), 25 and 26 of the Covenant.
3.2
The authors claim a violation of their rights under article 24 (2) of the Covenant, as
the State Party’s authorities have failed to proceed with the registration of their births on the
basis that they were unable to provide Greek birth certificates in the form required under the
State Party’s legislation, that is, legalized certificates translated into Albanian and notarized.
They cannot submit such a document, as the certificates issued by the Greek authorities
concerning their births are incomplete and do not include their names. This is due to their
parents’ undocumented status in Greece at the time of the births. The word “immediately” in
article 24 (2) places a particular requirement on the authorities, which the State Party is failing
to fulfil in their case. The State Party’s authorities are aware that the authors cannot provide
a Greek birth certificate conforming to the requirements under the State Party’s legislation.
Insisting on such a document in a case such as that of the authors leads to arbitrary delays in
registration, and puts the authors at risk of statelessness, while depriving them of fundamental
basic rights, such as the rights to education and healthcare. The requirement under domestic
legislation for children of Albanian parents born abroad to provide a legalized birth certificate,
and the lack of exceptions to that requirement for those, such as the authors, who are not in
position to obtain such a document, renders registration inaccessible for an indefinite period,
which is manifestly contrary to the requirement of immediacy under article 24 (2) of the
Covenant. At the time of the initial submission, Daniel Faslliu was 4 years of age and
Marjeldo Rexha and Hajrije Rexha were both 15 years of age, yet they were all still
unregistered, which is clearly incompatible with the provisions of the Covenant.
3.3
The authors claim that, by failing to register their births, the State Party has also
violated their right to acquire a nationality under article 24 (3) of the Covenant. They note
that, under article 7 of the Law on Citizenship, any individual born to at least one parent of
Albanian nationality automatically acquires Albanian nationality. However, in practice,
Albanian nationality is recognized only on the basis of a child’s birth registration. Because
of the State Party’s legislation, the authors are not able to register their births and are therefore
at risk of statelessness. They claim that they are legally invisible, and that the situation could
last for an indefinite period of time.
3.4
The authors further claim a violation of their rights under article 24 (1) of the
Covenant. They note that the failure to register their births immediately is a facially neutral
measure, but that it has a disproportionate impact on Roma.3 The Tirana Legal Aid Society
offers free legal services in relation to birth registration, regardless of race or ethnicity; it is
3 The authors refer to CERD/C/ALB/CO/5-8, para. 7; and Office of the United Nations High
Commissioner for Refugees (UNHCR) and Tirana Legal Aid Society, Mapping of the Population at
Risk of Statelessness in Albania (May 2018).
CCPR/C/142/D/3602/2019
GE.25-02922
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not an organization set up specifically to provide services to Roma. However, despite the
small proportion of Roma in the State Party, estimated at 0.29 to 3.50 per cent of the
population, Roma make up more than half of the families who require assistance from the
Tirana Legal Aid Society. Children whose births cannot be registered with the State Party’s
authorities are deprived of a host of basic rights, of which the authors provide some examples.
One such right is the right to healthcare, as children whose births have not been registered
cannot register for health insurance and, as a result, do not enjoy access to free or reduced-
cost health services in the State Party. Another is the right to education, as schools in the
State Party generally expect parents to produce registration documents, including a birth
certificate upon enrolment. While the Ministry of Education has issued an order requiring
schools to enrol children who do not have a birth certificate, many parents are not aware of
the order, and in some cases the schools do not comply with the order, and the children thus
remain unable to attend school. The right of access to justice and the right to protection of
family life are two other basic rights of which children whose births are not registered are
deprived. When children are unregistered, family courts will not recognize their existence
under family law. This can have various impacts, such as in cases of divorce, domestic
violence, the death of one or both parents, or similar situations where the national courts will
simply not take any decision or make any orders as to the rights or future of these children.
Another example is the right to social protection, as families of unregistered children are
unable to secure access to child benefits, which has a particularly strong impact on Roma
families, who tend to be poorer than non-Roma families because of historical exclusion.
3.5
The authors further note that, according to a report by the Office of the United Nations
High Commissioner for Refugees (UNHCR) and Tirana Legal Aid Society, 1,031 persons
were at risk of statelessness in the State Party in 2018, mostly due to difficulties in having
their nationality confirmed. The true number is likely to be higher, as persons at risk of
statelessness often remain invisible and are hard to identify. In addition, 97 per cent of those
recorded as being at risk of statelessness in Albania are children. The primary causes reported
are: being born outside Albania (53 per cent), being born to parents who are not married
(12 per cent), being born at home (10 per cent) and being born in a hospital or maternity unit
that holds incorrect personal data about the mother (9 per cent). Among those at risk of
statelessness who were born outside Albania, the majority were born in Greece. Despite the
fact that the Roma and Egyptian communities represent only 0.4 to 3.3 per cent of the total
Albanian population, they make up half of recorded cases of children at risk of statelessness
and are thus disproportionally affected by the phenomenon.4
3.6
The authors also claim that their rights under articles 16, 17, 25 and 26 of the Covenant
have been violated. They argue that, owing to their status as legally invisible persons in the
State Party, they are unable to enjoy the right to recognition as a person before the law, their
right as citizens to take part in public life, and their right to be treated equally under the law.
Regarding their claim under article 26 of the Covenant, they argue that the right enshrined
therein has been violated for the same reasons as set out regarding their claims under article
24 (1).
State Party’s observations on the merits
4.
On 18 July 2021, the State Party submitted its observations on the communication by
providing information on newly enacted legislation at the domestic level. The State Party
notes that, in December 2018, amendments to the Law on Civil Status entered into force. It
describes some of the changes brought about by the amendments. First, the registration of
birth of children born outside the territory of the State Party to Albanian parents is to be
completed by the civil registration service of the country of birth. However, where this is not
possible, the State Party’s diplomatic or consular representatives in the country of birth are
to register the birth of the child. Second, all medical institutions, public or private, entitled to
certify a birth are obliged to send documentation on every child delivered in their institutions
to the civil register offices. Third, where data are incomplete, the civil register office is
obliged to record the births in temporary or provisional registry books, which will ensure that
4 UNHCR and Tirana Legal Aid Society, Mapping of the Population at Risk of Statelessness in
Albania, p. 8.
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GE.25-02922
children have access to social care, education and health services while the data are being
completed. The office is also to assist the parents in obtaining the necessary documentation
for completing the data. Fourth, if the birth of a child is not registered within 60 days of the
date of birth, the civil register office is to inform the relevant social service child protection
unit, which is to take concrete measures for the assessment of the situation and the registration
of the birth by the civil register office. The State Party notes that, following the amendments
to domestic legislation, civil register offices are under an obligation to ensure that assistance
in registering births is provided to citizens who are in possession of incomplete birth
certificates.
Authors’ comments on the State Party’s observations on the merits
5.
On 22 April 2022, the authors provided their comments on the State Party’s
observations. The authors note that there has been significant progress in legislation
concerning the registration of births in the State Party, but they argue that that there is still a
need for the improvement of technical equipment and legal knowledge at health centres in
the State Party, to ensure that children’s births are registered within a short period of time.
The authors note that new legislation has been enacted to facilitate access to registration of
births for children born outside the territory of the State Party. However, according to reports,
in most cases, registration still requires court proceedings, which causes delays in the
registration of births. Difficulties arise in particular when a request for birth registration is
not accompanied by what the authorities expect to be submitted, such as medical reports or
the identity documents of one or both parents, or when the parents fail to present themselves
at the civil register office within the specified deadline.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
6.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
6.3
The Committee notes that Marjeldo Rexha and Hajrije Rexha were born in 2002, that
is, before the entry into force of the Optional Protocol for the State Party. The Committee
recalls its jurisprudence to the effect that violations of the Covenant alleged to have occurred
before the entry into force of the Optional Protocol for a given State Party may be examined
by the Committee if those violations continue after that date or continue to have effects which
in themselves constitute a violation of the Covenant, or if the State Party affirms such a
violation by act or by clear implication.5 In the present case, the Committee observes the
authors’ claims that the violations of their rights have had continued effect after the entry into
force of the Optional Protocol for the State Party, as they are at risk of statelessness due to
the failure by the State Party to register their births, thereby also depriving them of access to
basic rights such as the rights to education and healthcare. The Committee further notes that
the State Party has not objected to the admissibility of the communication. The Committee
therefore concludes that it is not precluded ratione temporis, under article 3 of the Optional
Protocol, from examining the complaint.
6.4
The Committee notes the authors’ submission that no effective remedy was available
to them in the State Party in respect of the claims raised in the communication. The
Committee notes that the State Party has neither identified any domestic remedy that was
available to the authors nor objected to the admissibility of the communication. The
Committee therefore concludes that it is not precluded by article 5 (2) (b) of the Optional
Protocol from examining the complaint.
5 See, for example, Kouidis v. Greece (CCPR/C/86/D/1070/2002), para. 6.3; and Quliyev v. Azerbaijan
(CCPR/C/112/D/1972/2010 and CCPR/C/112/D/1972/2010/Corr.1), para. 8.3.
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6.5
The Committee notes the authors’ claims that their rights under articles 17 and 25 of
the Covenant have been violated, as, owing to their status as legally invisible persons in the
State Party, their rights to family life and to take part in public life have been violated.
However, the Committee notes that the authors have not submitted any specific information
or argumentation on how they have personally been adversely affected as concerns their
claims in that regard. The Committee thus finds the authors’ claims under articles 17 and 25
of the Covenant to be insufficiently substantiated and therefore inadmissible under article 2
of the Optional Protocol.
6.6
The Committee considers that the authors have sufficiently substantiated the
remainder of their claims. Accordingly, the Committee declares the communication
admissible as concerns the authors’ claims under articles 16, 24 (1)–(3) and 26 of the
Covenant and proceeds with its examination on the merits.
Consideration of the merits
7.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
7.2
The Committee notes the authors’ claims that, by failing to register their births, the
State Party has violated their rights under articles 16, 24 (1)–(3) and 26 of the Covenant.
7.3
The Committee recalls that, under article 24 of the Covenant, all children have the
right to special measures of protection because of their status as minors.6 It also recalls that
the principle that the child’s best interests should be a primary consideration in all decisions
affecting the child forms an integral part of every child’s right to measures of protection, as
required under article 24 (1).7 The Committee further recalls that, under article 24 (2), every
child has the right to be registered immediately after birth and to have a name. In this
connection, the Committee observes that birth registration is the continuous, permanent and
universal recording within the civil registry of the occurrence and characteristics of birth, in
accordance with the national legal requirements, which establishes the existence of a person
under law, and lays the foundation for safeguarding civil, political, economic, social and
cultural rights. As such, it is a fundamental means of protecting the human rights of the
individual.8
7.4
The Committee further recalls that special attention should also be paid, in the context
of the protection to be granted to children, to the right of every child to acquire a nationality,
as provided for in article 24 (3) of the Covenant, the purpose of which is to prevent a child
from being afforded less protection by society. States Parties are thus required to adopt every
appropriate measure, both internally and in cooperation with other States, to ensure that all
children have a nationality when they are born. In this connection, no discrimination with
regard to the acquisition of nationality should be admissible under internal law as between
legitimate children and children born out of wedlock or of stateless parents or based on the
nationality status of one or both of the parents.9 The Committee also recalls that, because of
the difficulties that often arise when determining whether an individual has acquired a
nationality, the burden of proof must be shared between the individual and the State Party’s
authorities to obtain evidence and to establish the facts as to whether an individual would
otherwise be stateless.10 The Committee further observes that, while birth registration does
not in itself confer citizenship on a child, it is essential to ensure the right of every child to
acquire a nationality, as it constitutes an important form of proof of the link between an
individual and the State. It documents where a child was born and who the child’s parents
are, thus providing important evidence of whether a child can acquire citizenship on the basis
of place of birth or of descent.11
6 General comment No. 17 (1989) on the rights of the child, para. 4; and Mónaco de Gallicchio v.
Argentina (CCPR/C/53/D/400/1990), para. 10.5.
7 Bakhtiyari and Bakhtiyari v. Australia (CCPR/C/79/D/1069/2002), para. 9.7.
8 A/HRC/27/22, para. 4.
9 General comment No. 17 (1989), para. 8.
10 D.Z. v. Netherlands (CCPR/C/130/D/2918/2016), para. 8.3.
11 A/HRC/27/22, para. 24.
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7.5
In the present case, the Committee notes the authors’ claims that their rights under
article 24 (2) and (3) of the Covenant have been violated by the failure by the State Party’s
authorities to register their births. It notes their argument that their parents were unable to
register their births with the State Party’s authorities, as they were unable to submit Greek
birth certificates in the form required under the State Party’s legislation, due to the parents’
undocumented status in Greece at the time of the births. The Committee further notes the
authors’ argument that the State Party’s authorities were aware of the fact that their parents
were unable to submit birth certificates conforming to the requirements under the State
Party’s legislation, yet insisted on the submission of such documents, without providing for
any exceptions for persons in situations of particular vulnerability, such as the authors,
thereby arbitrarily delaying the registration of their births, putting them at risk of statelessness
and depriving them of basic rights, such as the rights to education and healthcare. The
Committee notes the State Party’s information that domestic legislation on the registration of
births was amended in December 2018, when amendments to the Law on Civil Status entered
into force. It notes the State Party’s information that the legislative amendments were aimed
at facilitating the registration of births in the State Party, including for persons who were born
outside the territory of the State Party and may lack the formal birth certificates required
under the previous legislation. The Committee also notes the State Party’s information that,
under the amended legislation, civil register offices are under an obligation to ensure that
assistance in registering births is provided to citizens who are in possession of incomplete
birth certificates.
7.6
The Committee notes and welcomes the improvements to the State Party’s legislation
regarding registration of births. It notes, however, that no information has been provided as
to the situation of the authors or whether, following the legislative amendments to the Law
on Civil Status, their births have been registered in the civil registry. Regardless of whether
the authors have subsequently been able to have their births registered, the Committee recalls
that, at the time of the submission of the complaint, Daniel Faslliu was 4 years of age and
Marjeldo Rexha and Hajrije Rexha were both 15 years of age, with their births still
unregistered in the civil registry in the State Party, thereby denying them access to basic
rights such as those regarding health insurance, school enrolment and child social benefits,
and putting them at risk of statelessness.
7.7
The Committee recalls that it is implicit in article 4 (2) of the Optional Protocol that
the State Party has the duty to investigate in good faith all allegations of violations of the
Covenant made against it and its representatives and to provide the Committee with the
information available to it. In cases where the allegations are corroborated by credible
evidence submitted by the author and where further clarification depends on information that
is solely in the hands of the State Party, the Committee may consider an author’s allegations
as substantiated in the absence of satisfactory evidence or explanations to the contrary by the
State Party.12 In the present case, the Committee notes that the State Party has not refuted any
of the authors’ claims as presented under article 24 (2) and (3) of the Covenant. In the absence
of a response from the State Party in that regard, the Committee gives due weight to the
authors’ claims and finds that the State Party did not exercise due diligence in discharging its
positive obligation to assist the authors in registering their births in the civil registry and thus
establishing their nationality, in violation of the authors’ rights under article 24 (2) and (3) of
the Covenant.
7.8
The Committee further notes the authors’ claim that the failure to register their births
amounted to discrimination based on ethnicity, in violation of their rights under articles 24
(1) and 26 of the Covenant. The Committee recalls that the Covenant requires that children
should be protected against discrimination on any grounds, such as race, colour, sex,
language, religion, national or social origin, property or birth. In this connection, the
Committee notes that, whereas non-discrimination in the enjoyment of the rights provided
for in the Covenant also stems, in the case of children, from article 2 and their equality before
the law from article 26, the non-discrimination clause contained in article 24 relates
12 See, for example, Purna v. Nepal (CCPR/C/119/D/2245/2013), para. 12.2; and V.M. v. Sri Lanka
(CCPR/C/137/D/2406/2014), para. 8.3.
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GE.25-02922
9
specifically to the measures of protection referred to in that provision.13 The Committee
further recalls that, in its general comment No. 18 (1989) on non-discrimination,
discrimination is defined as “any distinction, exclusion, restriction or preference which is
based on any ground such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status, and which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal
footing, of all rights and freedoms”.14 The Committee also recalls that the prohibition of
discrimination applies to both the public and the private spheres and that a violation of the
right to non-discrimination may result from a rule or measure that is apparently neutral or
lacking any intention to discriminate but has a discriminatory effect.15 However, not every
distinction, exclusion or restriction based on the grounds listed in the Covenant amounts to
discrimination, as long as it is based on reasonable and objective criteria, in pursuit of an aim
that is legitimate under the Covenant.16
7.9
In the present case, the Committee notes the authors’ claim that the State Party’s
legislation on registration of births was a facially neutral measure, but that it had a
disproportionate impact on Roma, since Roma, as in the case of their parents, are more likely
than non-Roma to move to Greece irregularly because of the exceptional poverty in which
they live in Albania, owing to historical exclusion; Roma appear to be more regularly targeted
for expulsion from Greece than non-Roma; and, due to poverty, Roma face obstacles
preventing them from securing the documentation needed for the registration of a birth. The
Committee notes in this connection that, according to the information provided by the authors,
in which they refer to a 2018 report by UNHCR and the Tirana Legal Aid Society, children
from Roma and Egyptian communities were disproportionately recorded as being at risk of
statelessness in the State Party; despite representing only 0.4 to 3.3 per cent of the total
Albanian population, they made up half of recorded cases of children at risk of statelessness
in the country. The Committee notes that the State Party has neither submitted any
information refuting this claim nor presented any argumentation to the effect that the State
Party’s legislation was based on reasonable and objective criteria and in pursuit of an aim
that is legitimate under the Covenant. In the absence of an explanation from the State Party
in that regard, the Committee gives due weight to the authors’ claims and finds that the facts
described amount to a violation of the authors’ rights under articles 24 (1) and 26 of the
Covenant.
7.10
The Committee further notes the authors’ claim that, owing to their status as legally
invisible persons in the State Party, they are unable to enjoy the right to recognition as a
person before the law, in violation of their rights under article 16 of the Covenant. The
Committee notes that the right to recognition before the law implies the capacity to be the
holder of rights and obligations17 and thus is fundamental to all rights, insofar as recognition
of legal personality is a necessary prerequisite to all other rights of the individual. The
Committee recalls its general comment No. 17 (1989) on the rights of the child, in which it
noted that article 24 (2) should be interpreted as being closely linked to the provision
concerning the right to special measures of protection and that it is designed to promote
recognition of the child’s legal personality. The purpose of the obligation to register children
after birth is, furthermore, to reduce, for instance, the danger of abduction or sale of or traffic
in children, or of other types of treatment that are incompatible with the enjoyment of the
rights provided for in the Covenant.18 The fulfilment of the right to be registered at birth and
recognized as a person before the law is thus closely linked to and a prerequisite for the
enjoyment and the realization of many other rights, with socioeconomic rights, such as the
right to healthcare and the right to education, at particular risk where birth registration is not
13 General comment No. 17 (1989), para. 5.
14 General comment No. 18 (1989) on non-discrimination, para. 7.
15 Althammer et al. v. Austria (CCPR/C/78/D/998/2001), para. 10.2.
16 O’Neill and Quinn v. Ireland (CCPR/C/87/D/1314/2004), para. 8.3; Yaker v. France
(CCPR/C/123/D/2747/2016), para. 8.14; Hebbadj v. France (CCPR/C/123/D/2807/2016), para. 7.14;
and Genero v. Italy (CCPR/C/128/D/2979/2017), para. 7.3.
17 Inter-American Court of Human Rights, Case of the Girls Yean and Bosico v. Dominican Republic,
Judgment, 8 September 2005, paras. 176–178.
18 General comment No. 17 (1989), para. 7.
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GE.25-02922
systematically carried out, and the protection of children thus jeopardized.19 The failure to
register a birth has profound consequences for children’s enjoyment of their rights with
regard to protection, nationality, access to social and health services, and education.20
7.11
In the present case, the Committee notes the authors’ claims that, owing to their status
as legally invisible persons, they found themselves in a legal limbo and were thus unable to
attend school or access social and health services (see para. 3.4 above). The Committee notes
that the State Party’s observations regarding the 2018 amendments to the Law on Civil Status
(see para. 4 above) do not provide any persuasive argumentation refuting the authors’ claims
in this regard. The Committee considers that, by failing to register the births of the authors
and thus recognize their legal personality, the State Party also violated their rights under
article 16 of the Covenant.
8.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the facts before it disclose a violation by the State Party of the authors’ rights under articles
16, 24 (1)–(3) and 26 of the Covenant.
9.
Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to
provide the authors with an effective remedy. This requires it to make full reparation to
individuals whose Covenant rights have been violated. Accordingly, the State Party is
obligated to ensure that the authors’ births are immediately registered in the civil registry,
should this not already have been done, taking into account the Committee’s findings in the
present Views, and to provide them with adequate compensation. The State Party is also
under an obligation to take all steps necessary to prevent similar violations from occurring in
the future, including by ensuring that its legislation on the registration of births and the
implementation thereof comply with the State Party’s obligations under articles 16, 24
(1)–(3) and 26 of the Covenant.
10.
Bearing in mind that, by becoming a party to the Optional Protocol, the State Party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has
undertaken to ensure to all individuals within its territory or subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy when
it has been determined that a violation has occurred, the Committee wishes to receive from
the State Party, within 180 days, information about the measures taken to give effect to the
Committee’s Views. The State Party is also requested to publish the present Views and to
have them widely disseminated in the official language of the State Party.
19 A/HRC/27/22, para. 3. See also Committee on the Rights of the Child, general comment No. 7 (2020)
on implementing children’s rights in early childhood, para. 24.
20 A/HRC/27/22, para. 18.