Rexha and Faslliu v. Albania

Parties (including notable third parties)

Daniel Faslliu, Marjeldo Rexha, Hajrije Rexha (The Authors); The Albanian Government (The State Party)

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Summary of Facts

The Authors are three members of the Roma community who had been refused birth registration by Albanian Authorities. The Authors were born in Greece to Albanian parents who were living there without legal residence status. In their presentation of the facts before the Committee, the Authors outlined that although Albanian law provides that any child born to one or both Albanian parents automatically acquires Albanian nationality, this right depends on the registration of the child’s birth.

Under Albanian law, birth registration is primarily the responsibility of parents and requires a birth certificate issued by the institution where the birth occurred. If the birth took place outside a hospital, a medical report can be used. Where documentation is missing or incomplete, parents must initiate court proceedings to establish the fact of birth. Until January 2017, births of children born abroad could be registered either through Albanian consular Authorities in the country of birth or directly in Albania using a legalised and translated foreign birth certificate. Amendments adopted in December 2016 removed consular Authority to register births, requiring all registrations to occur in Albania.

The Authors further outlined that in Greece, children born to parents without legal residence status are typically not provided with a maternity certificate but rather an incomplete document that does not include the child’s name and refers to the child ‘nameless’. Prior to 2017, Albanian consular Authorities refused to register births based on these incomplete certificates and required legalisation by Greek Authorities, which the Greek Authorities generally refused to provide.

The first Author was born in February 2014 in Greece to parents without legal residence status. His birth was registered with the Greek Civil Office, but the certificate lacked his name and proper legalisation or apostille stamps, preventing his birth registration in Albania. After returning to Albania in 2014, the Author was unable to attend kindergarten or school or access health services given that his birth was not registered. The second and third Authors are twins born in Athens in 2002 to parents without legal residence status. Their parents left the hospital without obtaining a medical certificate because they could not pay hospital fees. Later, the Greek Civil Office issued certificates labelling them ‘first twin’ and ‘second twin,’ refusing to register their names due to their lack of legal residence status. These documents subsequently did not meet Albanian legal requirements for birth registration, and at the time of the complaint, the twins were 15 years old and lived in Albania but were unable to attend school or access social and health services.

The Authors also described the limited options available under Albanian law to subsequently register their births, as well as the barriers to the few existing mechanisms. This included the possibility to initiate civil court proceedings to complete birth certificate data; however Albanian courts had held that they lack jurisdiction to correct birth certificates issued by foreign Authorities. In addition, the Authors outlined that litigation to challenge the refusal by Albanian Authorities would likely be lengthy by comparison with similar cases, and that legal aid is generally unavailable to undocumented persons. Moreover, the Authors described that constitutional complaints must be filed within four months of the infringement and cannot result in an order to register a birth.

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Legal Arguments

Legal arguments by the Authors

The Authors claimed that the failure of Albanian Authorities to register their births resulted in violation of Articles 16, 17, 24 (1–3), 25, and 26 of the International Covenant on Civil and Political Rights (‘the Covenant’).

Concerning Article 24(2), the Authors submitted that the Authorities’ insistence on  legalised, translated, and notarised Greek birth certificates, despite knowing that such documents cannot be obtained because the Greek certificates issued to them are incomplete and nameless, has led to arbitrary delays in registration and has placed the Authors at risk of statelessness, as well as depriving them of the right to education and health. The Authors submitted that the term ‘immediately’ in Article 24(2) places a particular requirement on Authorities, however that standard that has not been met, as the Authors remained unregistered for years throughout their childhood.

The Authors further argued that the failure to register their births violated their right to acquire a nationality under Article 24(3) given that, in practice, Albanian nationality is only recognised upon birth registration. Accordingly, the Authors submitted they are at risk of statelessness and may remain legally invisible for an indefinite period.

Concerning Article 24(1), the Authors submitted that although ‘the failure to register their births immediately is a facially neutral measure, […] it has a disproportionate impact on Roma’ (paragraph 3.4). The Authors additionally submitted that their lack of registration denies children access to essential rights, including health care, education, family law protections, and social benefits, which particularly affects Roma families due to higher poverty rates. The Authors also cited a UNHCR mapping study which indicating that 97% of those recorded at risk of statelessness were children, with most cases linked to births outside Albania, and that Roma and Egyptian minorities account for half of these cases.

Finally, the Authors argued that their lack of registration violated Articles 16, 17, 25, and 26 of the Covenant, as being legally invisible denies them recognition as persons before the law, participation in public life, and equal treatment under the law. The Authors’ claim under Article 26 is based on the same grounds as their argument under Article 24(1).

In response to the observations of the Albanian Government, the Authors acknowledged progress in Albanian legislation on birth registration but noted ongoing challenges with implementation. Moreover, the Authors submitted that although new laws were introduced to facilitate registration for children born abroad, in most cases the process still requires court proceedings, causing delays particularly where documentation is missing.

Legal arguments by the State Party

The Albanian Government submitted to the Committee that amendments to the Law on Civil Status entered into force in December 2018. The Government stressed that such amendments now ensure that civil status offices are obliged to ensure that assistance in registering births is provided to citizens who are in possession of incomplete birth certificates. In addition, consular authorities are allowed under the amendments to register births abroad when local registration is not possible, and provisional registries were established for incomplete cases so children can access services while data is finalised.

The Government’s submission contained only this legislative update and did not address the merits of the Authors’ specific claims or refute their allegations.

Outcome

The Committee considered the Authors’ claims under Articles 17 and 25 insufficiently substantiated and declared them inadmissible. The remaining claims under Articles 16, 24(1–3), and 26 were declared admissible.

In its examination of the merits, the Committee began by recalling that every child has the right to special protection according to Article 24, as well as to have their best interests considered. The Committee further emphasised that the right to immediate birth registration and to have a name under Article 24(2) is not a mere administrative formality but ‘establishes the existence of a person under law, and lays the foundation for safeguarding civil, political, economic, social and cultural rights’ (paragraph 7.3).

The Committee also highlighted the need to pay special attention to the right to a nationality under Article 24(3), whereby States must adopt without discrimination ‘every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when they are born’ (paragraph 7.4). In addition, the Committee noted the essential role of birth registration in providing evidence of legal identity and ensuring the right to a nationality.

Based on the arguments put forward by the parties, the Committee welcomed the legislative reforms introduced in 2018 to facilitate registration and assist families with incomplete documents. However, it noted that these changes had no substantive impact on the Authors’ situation at the time of the complaint, when they were still unregistered at ages four and fifteen. The Committee also noted that the Government had not refuted any of the Authors’ claims nor provided evidence that it had exercised positive due diligence obligations to assist them in registering their births, leading the Committee to conclude that Albania violated the Author’s rights under Articles 24(2) and 24(3).

Turning to non-discrimination under Articles 24(1) and 26, the Committee recalled that discrimination can include any measure that ‘has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise […] of all rights and freedoms,’ (paragraph 7.8) even if the measure appears neutral or lacks discriminatory intent, insofar as it is not based on reasonable and objective criteria and a legitimate aim. The Committee gave significant weight to the statistical evidence presented by the Authors showing the disproportionate impact on Roma children. In this present case, the Committee again noted that the Albanian Government did not contest these assertions nor justify its legislation as reasonable and objective. Accordingly, the Committee found a violation of Articles 24(1) and 26.

Lastly, the Committee addressed Article 16, noting that the right to recognition before the law ‘implies the capacity to be the holder of rights and obligations and thus is fundamental to all rights’ (paragraph 7.10). Moreover, the Committee recognised that ‘[t]he 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 of the enjoyment and the realization of many other rights’ (paragraph 7.10).  Accordingly, and given that the Government did not provide persuasive argumentation to the contrary, the Committee recognised that the failure to register the Authors’ births and therefore recognise their legal personality violated Article 16 of the Covenant.

In finding violations of Articles 16, 24(1–3), and 26, the Committee directed Albania to immediately register the Authors’ births, provide adequate compensation, and take steps to prevent similar violations, including ensuring that legislation and its implementation comply with the Covenant.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	International Covenant on Civil and Political Rights	Articles 16, 17, 24(1), (2) and (3), 25, and 26
Domestic	Law on Citizenship (No. 8389)	Article 7
Domestic	Law on Civil Status (No. 10129)	Article 38(1)
Domestic	Law on Legal Aid (No. 10039)
Domestic	Law on the Organisation and Functioning of the Court (No. 8577)	Article 71/a (b)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

No commentary available.