True Story

STRATEGIC CASE

Client G.S. and L.G.

Administrative complaint – Commissioner for Protection from Discrimination

L. is a single mother, living in Tirana with her 8-year daughter G.

G’s father left them since she was a baby and never cared about her. His parental rights were removed by a court decision. He has never paid any support obligation for his daughter.

G. is diagnosed with autism and she needs special attention and care according to her special needs. L. has it very difficult to earn a leaving by working or getting a job because she has to care for G. all the time, and also her relatives live out of Tirana so she has no help from anyone.

L. has registered G. in school, but is has been not easy. Certain schools have refused to accept G. because of her disability. L. is aware of G’s special needs, but she couldn’t understand their refusal and she never stopped trying. She finally found a school that accepted G, but with a condition. The director of the school asked L. that, for G. to be able to follow the class it was necessary L. to be present with her for all the day, to help with the lessons because the teacher of the class was not able to care for all the pupils and G. as well.

At this point L. accepted because it was the only solution for G. to have an education and to learn. She goes every day in school with her and follows the classes.

At this point L. came at our office and asked for help. She complained for very poor conditions of living and also very low incomes (only from the welfare). She complained for not being able to work because of her occupation with G. in school during the day.

After the situation was examined from the legal perspective, we concluded that this situation was not lawful. It is against the law and has putted G. in an unequal situation with other children. Although her mother L. stays in class with her, she does not have professional skills that a trained teacher has, in order to educate children of G.’s age and her special needs.

Since the situation is discriminatory, a complaint was filed at the Commissioner for Protection from Discrimination. It is foreseen by the law that in these situations, of children with special needs that are being registered in school, it is mandatory for the school board and education authorities, to gather a special commission to evaluate the needs of the child, to develop an individual learning plan and dedicate him/her an individual teacher. In our client’s case, none of these steps was followed. The school failed to act in compliance with the law and child needs and as a consequence it has enumerated discrimination.

The case is lodged with the commission and we have requested to ascertain the discrimination our clients are facing; obliging the school to gather the special commission to evaluate G’s abilities and develop her individual learning plan; appointing the dedicated teacher to her.

The commissioner against discrimination has reviewed the case and noticed this as an unacceptable and discriminatory situation. It has obliged the school, in accordance with the law to gather the special commission to evaluate G’s needs and the needs of all other children diagnosed with autism and that are following the school at the same time with G.   Urgently appoint the dedicated teacher.

This is a case that involves only our client, but a community of parents that have children with disabilities or special needs. They struggle to put them in public schools because the state is failing of having the proper academic staff to facilitate the learning process with these children. We have established a good practice with this case and a new standard in the right to education of children with special needs in general and specifically for all the children like G. following the same school. 

This case is supported by UNICEF.

G. is a little girl, 7 years old living with her father A.P. She is unregistered with the civil status office. Therefore, she cannot attend the school. After the birth of the girl, the mother H.T. left home and for many years lived abroad. Actually, she is paying her imprisonment in a penitentiary institution in Tirana. A.P. and H.T. never entered into a legal marriage and the girl was born during their short co living. The mother H.T is registered with the civil status office while the father A.P. with the civil status office in Tirana. Since the birth of the child and abandonment of the mother from home, the parents of G. had not any kind of relation between them. During the time of imprisonment of H.T, the father A.P habitually went to see her with the daughter.

After several attendances with the TLAS staff, A.P. was seriously engaged to follow the registration procedures of his daughet with the civil status office. TLAS carried out the following actions:

  • The mother obtained the identification document.
  • It was obtained the girl’s Birth Assistance Certificate.
  • It was realized the escort of the mother outside the penitentiary premises in the civil status office in Tirana were it is registered the father A.P.
  • The mother reported the birth based on the birth assistance certificate.
  • It was held the birth act in the presence of the father.
  • The mother recognized the paternity of the child, permitting for the child to take the last name of the father.

Finally, G.P. obtained the certificate and the identity as her peers. She can enjoy her rights for education and other social and health services.

A.F. demanded the alimony for her minor son, born outside of the wedlock. The father of the child, although recognized the paternity, refused to contribute in the well raising of the child.

Such cases are becoming a negative phenomenon in the Albanian society, because of the growing of the concubines and coexistence of couples with no legal marriage. Such problems arise at the moment of the interruption of the cohabitation. The fact that the child is not living with the other parent, does not release him/her from the obligation to contribute for a normal life of the child.

A.F. satisfied the eligibility criteria to benefit legal aid services from TLAS. The TLAS attorney started to work in the best interest of the child and carried out the following steps:

  • The necessary documents were collected to prove the fact that the child was living with the mother;
  • A thorough legal study was taken to support the request of the client.

Under the Article 163 of the Family Code the term cohabitation is defined as “Cohabitation is a factual union between a man and a woman living as a couple, with a common life that is stable and continuous in nature”.

For the children born outside of the wedlock, the Article 170 of the Family Code provides: “Maternity or paternity of a child born out of wedlock may be established through voluntary recognition or through a judicial decision which creates identical rights and obligations for the parents, in retroactive manner, as if the children were born from a marriage”.

From the statements of the above article, it is clear, that the children born during cohabitation enjoy the same rights as the children born during the wedlock; therefore the parents have the same obligations as for the children born during the wedlock.

According to Article 192, item “b” of the Family Code “Persons owing a duty of support, according to familial relation are:
b) Parents to their children”, 
Independently of the fact that the child is born outside of the wedlock or in the wedlock, and according to Article 196 parents are not discharged from their support obligation even if they have been divested of their parental responsibility. Article 197 provides that “Parents are obligated to provide support for their children, when they do not have sufficient means to live”

Furthermore, a minor child may demand from parents the alimony, even if he/she has possessions, but the proceeds from the possession or the work do not fulfill his/her needs.
The obligation for support continues during the time the adult children attend the high school or the university until 25 years old”.

  • After the assessment of the collected documentation, it was prepared the lawsuit summoning as defendant the father of the child.
  • The lawsuit was filed the court and the further steps were taken, in several trial hearings. The Court reached the decision that the claims and allegations of client A.F. were founded and the child benefited from the support of the father.

The case took almost 2 years; a very long period of time for A.F. and her child and the desired intent was achieved through the determination of Tirana Legal Aid Society. Considering such cases of alimony or custody for minors, TLAS has studied the duration of the trial proceedings for this type of cases and has discussed such problem in various working round tables, especially with the interested parties, the Ministry of Justice or Courts.

 

In the offices of Tirana Legal Aid Society appeared a group of 20 clients from Roma community from city of Fier. Two TLAS attorneys met personally the clients in their homes in the community.

It was settled that the families of Roma community lost the Albanian citizenship and had no any citizenship from other countries. They claimed that they never required the renounce the Albanian citizenship. Some of them were in possession of identification documents, which made it difficult to believe that they had had their Albanian citizenship removed. They were not in possession of any official document to prove the removal of the Albanian citizenship; the only documents were some personal identification documents of the time period before 1990.

  • After the verification, it resulted that these people were not registered in the national registry of the civil status.
  • Official information was requested in the General Directorate of Civil Status, related to the number and year of the Decree of removal of citizenship for this group of family members.
  • After the official response we were able to possess the concrete decree and the list of the persons deprived Albanian citizenship. The list contained 20 persons, and the citizenship was removed in 1994, which was a significant fact unknown from the same persons.
  • It was confirmed that in the Civil Status Office the official letter for the citizenship of the members of the Roma community was transferred in much delay, 6 years after the decision and the issuance of the decree.

The right to information of citizens in Albania is problematic, however it seems that is does not properly function, even between the state structures. As a result, such situation deprived these individuals for more than 6 years from social services, economic assistance, disability pension, and registration as unemployed, health services, right to vote or other fundamental rights. This was a direct violation of the human rights, affecting not only the individual, but, also, their families.

  • The TLAS attorneys started the work to solve the problem of the 20 clients. The legal space to require and legitimate the relinquishing of the citizenship was based on that time legislation in force. The existing law is the Law no. 8389, dated 5.8.1998 “On Albanin Citizenship”. The law states: “…An Albanian citizen may also be a citizen of another state.. . No one can be arbitrarily deprived of Albanian citizenship …“..Any Albanian citizen has the right to relinquish Albanian citizenship, provided that he holds another citizenship, has acquired another citizenship, or has received guarantees from the competent bodies of a foreign state for the acquisition of another citizenship...”

The TLAS attorneys assisted each citizen to reacquire the Albanian citizenship, based on the following procedures:
20 petitions were addressed to the President of the Republic; 20 birth and family certificates were obtained; Explanatory reports were send and confirmations were obtained from the local police stations and respective prefectures, regarding the citizenship origins of the parents of each applicant. 20 notarial statements were signed for the applicants; certificates of administrative unit for each applicant; birth and death certificates of parents of each applicant; 20 payment receipts for each application.

With very much difficulties were taken the notarial statements for the clients who were unable to read and write and they had to appear personally to sign them. After several months the respective institutions made the proper verification and evaluations and the application was forwarded to the Albanian President. With the Decree no. 7931, dated 23. 01. 2013, the President of the Republic decided to return the Albanian citizenship to the Roma community members from Fier.

I.L. was very appalled for the unlawful termination of the employment relations and with no justified cause. The TLAS attorney, the same, concluded that the termination of the employment agreement with the client was unlawful, failed to respect the legal notification term, and the causes and rules provided by the Labour Code, regarding the termination of the employment relations.

The legal employment relation is the relation established between the employer and the employee where it is provided that the employee engages to perform the work against the remuneration of the Employer. The employment relation is proved by the employment agreement and in case of absence of the agreement by the Employment Booklet.

Form the Booklet it resulted that the client I.L. commenced the employment at the Regional Health Authority in 18.05.1983, which at that time was called the Directorate of Hygiene and Epidemics. She has worked until 12.04.2012 without any interruption from the work. In 30.12.2011, the institution notified her for the curtailing of the working position and the termination of the employment agreement with effect after three months. After the notification, the client carried on to work until 10.04.2012, when the institution issued the order to discontinue the financial relations. The cause used by the defendant for the termination of the employment was the shutting of the position. The client worked at the position of the sanitary person for 29 years and she was correct, applying faithfully the institution’s regulations. For less than two years she would benefit the seniority pension.

In case of curtailing of the working position, the employer must comply to a few principles related to the work seniority, the fact that the employee is close to the pension age, so the consequences of the actions of the employer could be comfortable employee. To guarantee such principles, the employer is obliged to hear the employee’s opinion for the actions related to the employment agreement, before taking further actions to alterate the working relations.

The Employer submits to the employee the reasons of the decision for termination of agreement and it notifies the employer in writing, at least 48 hours after the hearing. The Employer failed to comply with the notification terms, violating the provisions of Article 144 of the Labour Code.

The client I. L. was from Egyptian community, and she evaluated her termination as racially motivated and discriminatory. By considering her from vulnerable categories and unable to react to the arbitrary decisions, the Employer, eventually, decided to take such actions against I.L. than to other employees holding the same position in the institution.

It was preceded with the collection of the necessary documentation to base the case. Formal letters were addressed to the institution to require copies of the personal documents filed in the client’s file, because at the moment of the termination such documents were not available to her. The Employment Booklet was retrieved from the Employment Office, in order for the client to benefit the social assistance.

The lawsuit was filed with Tirana District Court by the TLAS Attorney and the court decision, based on Articles 126-306 of the Code of Civil Procedure, dated 5.2.2013 decided:

The obligation of the defendant, Regional Health Institution, Tirana, to pay in favor of plaintiff I.L the salary of 2 months, because of violation of procedure provided by Article 143 of Labour Code.
The obligation of the defendant, Regional Health Institution, to pay in favor of plaintiff I.L. the salary of 14.5 months for work seniority, based on Article 145 of Labor Code.

The Court of Appeal confirmed (leave the ruling) the decision of the Disctrict Court.

TLAS made possible the protection of rights of an individual who could not afford it to secure the lawful rights; made possible the respect of rights of a minority member (Egyptian community), unjustly discriminated by the Employer.

The client H.K. appeared at TLAS offices to have advice regarding his problem. He was form Roma Community and from many years lived and worked as an emigrant in Greece. H.K was the biological grandparent of two minor children of eight and six years old. The children were born from the legal marriage of his son and the spouse. The lived, all together, in Greece, working with no regular residence permits.

The son of H.K passed away, because of a car accident living his spouse and the children. After this occurrence, the living conditions of the family changed dramatically. The mother of the children, because of lack of proper residence documentation was expelled to Albania, with no right to enter the Greek borders for 5 years. She left the children in Greece to live with the grandparents H.K. and his spouse.

After a few years, with the children growing up, started to grow their needs and the necessity to have a legal custodian to represent them. The mother was incapable to be close to them.

Therefore, it was necessary for H.K. to start court proceedings to claim the legal custody of the minor children, in circumstances of death of their father and impossibility of the mother to exercise the parental responsibilities.

From the circumstances of the case it was in the best interest of the children to be under the legal custody of their grandfather. The children were born in Greece and were familiar with the family and social environment setting, they were attending school and kindergarten, spoke the Greek language and benefited allowance from the Greek state. For these reasons the mother agreed that it was in the best interest of the children to live in Greece under the lega custody of their grandfather, until she could exercise the parental responsibilities.

In such circumstances, it was proper to start the court proceedings. Since, H.K. had no financial possibilities to cover the expenses for the court proceedings in Greece, it was determined to start the procedures in Albania, in the legal residence of the applicants, the client H.K and the mother of the children.

After the filing of the application with the court, it was essential to prove with written evidence our allegations, such as: “the children were taken care by the parents and the grandparents, jointly. After the death of the father, the cohabitation of the mother with the children was complicated, because she was in impossibility to pass the Greek border and to live with the children. The children were born in Greece, attended the school and the activities of their age. Actually, the mother was incapable to exercise the parental responsibilities, for circumstances not related to her, and, also, had not financial standing to keep the children.
Such situation, gave to the applicant the possibility to take care of the children, as a relative, in the capacity of a “de facto” custodian for the basic needs of the minors. However, the lack of a legal status impeded him to fully exercise his rights in relation to state institutions of third parties, on behalf of the children”.

It took some time to secure the documentation for the judicial proceeding, where most part of the documents in the Greece, in the form required by law.

After the collection of all written evidence it was required a psychological expertize and another assessment act of expertive to evaluate the social conditions of the mother, living in Albania. For these reasons, in trial were summoned a psycoligical expert and a social worker from the sector of social assistance and support at Tirana Municipality. The result of the expertizes was that in the higher interest of the children, it was the best solution to live the children under the custody of the grandfather, suggesting to find any form or method to preserve and continue the affective relation between the biological mother and the children.

The court ruled in favor to admit the claim to place the children under the legal custody of H.K.