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25.11.2015

OMBUDSPERSON PUBLISHED THE REPORT REGARDING THE RIGHT TO CITIZENSHIP, THE RIGHT ON USE OF LANGUAGE AND THE RIGHT ON FAIR TRIAL

The Ombudsperson of the Republic of Kosovo today has published the Report on the case No. 290/2015, regarding the Right on Citizenship, the Right on Use of Language and the Right on Fair Trial.


On June of this year, the complainant has lodged a complaint with the Ombudsperson Institution (OI) against the Ministry of Internal Affairs (MIA) with allegations on breach of human rights regarding the use of official languages in procedures in front of the competent body, the Department for Citizenship, Asylum and Migration (DCAM) , regarding the Right on citizenship as well as bypassing of working rules of the Commission for Appeals for Citizenship (CAC), on occasion of exercising legal authorizations on deciding according to complainant’s case for obtaining Kosovo Republic citizenship.


Based on the facts, proves and information on OI disposal as well as relevant instruments regarding with the complaint: the Constitution of Republic of Kosovo, the Law on Protection from Discrimination no. 05 / L-021, Law on Use of Languages no. 02 / L-37, Law on Citizenship no. 04 / L-215, Law on Administrative Procedure, no. 02 / L-28, Administrative Instruction (AI) no. 05/2014 of the Ministry of Internal Affairs, AI. No. 06/2014, the Universal Declaration of Human Rights (10 December 1948), the Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950), the Ombudsperson finds:


·         concise provision of Article 15 of Universal Declaration of Human Rights of 1948  states that each person, regardless the place of residence, has the right to be legally connected with the state, based on citizenship, as one of fundamental human rights;


·         since citizenship status is an important condition for acquisition of many rights (political, civil, economic, social, cultural and others), urgent solution of this matter is demanded and the competent national authorities are bound to respect legal acts and remove administrative obstacles, which might lead to some form of discrimination against any citizen in the process of citizenship obtaining;



  • Constitution of the Republic of Kosovo, in Article 24, guarantees equal legal protection without discrimination on any ground, as well as equal protection of rights before state bodies and holders of public powers, which is specifically regulated by the Law on Protection from Discrimination No. 05 / L-021.


·        the issue of equal status of Albanian and Serbian as official languages in Kosovo, as well as their equal use in all institutions of Kosovo, is regulated by the Constitution (Article 5) and the Law on Use of Languages no. 02 / L-37, and as such, without exception and must be respected and fully implemented;


·         the principle of legal treatment, in terms of Article 3, paragraph 1 of the LAP gives specific guarantees to submitters of requests;


·        in terms of Article 10 of AI No. 06/2014, the working rules have been bypassed and the complainant was not notified within the legally required deadline of his complaint review by CAC, which comprised the breach of his right to participate  or be represented by his attorney –at-law in the case review and provide additional explanations regarding his request.


·         DCAM-CAC in terms of Article 55, paragraph 1, of the LAP, due to the importance of the right on which is to be decided, should use other methods of verification as well, which for a competent authority are easily accessible to verify the evidence, to inspect the existing evidence of citizens' personal documents from period prior to 1 January 1998, which are in possession of the Ministry.



  • as per review and evaluation of the evidence presented in this case and based on verified facts presented in this Report, interpretation of the law and the procedure itself, the Ombudsperson observes that MIA/ DCAM-CAC has not carefully reviewed all the evidence in case file and due to this, while deciding material and formal mistakes have occurred.


·         the Ombudsperson, in terms of assessing proves presented in the current case, commencing from state facts disclosed within point 12 of this Report, notes that the complainant meets the requirements in compliance with Article 32 of the Law on Kosovo Citizenship, Article 3, paragraph 1.3 and 4 and Article 4, paragraph 1.2 of AI 05/2014 for registering in KR register of citizens


·         as the result of analyses and case investigation, the Ombudsperson finds that during administrative procedure the MIA/DCAM-CAC, as a competent body in the current case has breached complainant’s right for citizenship, complainant’s right for use his mother tongue and the right to an impartial trial, rights which are guaranteed with legal provisions at force.


On this occassion the Ombudsperson recommends the Ministy of Internal Affairs :




  • To ensure that during administrative activities DCAM-CAC gives due consideration and attentiveness to all factors which interlink with specific administrative act. DCAM should establish a fair balance between public and private interests in order to avoid unnecessary intrusions on rights and interests of natural and legal persons. Bringing the case before the Court does not comprise effective legal remedy having in mind adjournment of judicial procedures beyond reasonable time limits, which signifies violation of rights set by Article 31 and 32 of Constitution.


·        To ensure that in all cases when deciding about citizenship, DCAM-CAC fully respects the Law on Use of Languages during decision taking procedures


This Report of Ombudsperson regarding the complaint No. 290/2015, has been sent to the Ministry of Internal Affairs, as a responsible body as well as to Language Commissioner and waits for the response on concerns raised  regarding the case, but no later than 25 December 2015.


Full Report regarding the case, as has been forwarded to the responsible authorities, is published on OI official webpage (click here for the full Report) and is disseminated to media as well.


 


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