Kurić and Others v. Slovenia (26828/06)
The applicants are members of a group called the "erased." The names of the "erased" were removed from the Register of Permanent residents after Slovenia's declaration of independence in 1991; they were no longer legally resident in Slovenia. The Court found that, despite efforts made since 1999, the Slovenian Government failed to provide an adequate remedy with the requisite promptness.* The Court unanimously held that violations of Articles 8, 13, and 14 of the European Convention on Human Rights had occurred.The eight applicants are Mustafa Kurić and Velimir Dabetić, both stateless persons; Ana Mezga, a Croatian national; Tripun Ristanović, a citizen of Bosnia and Herzegovina; Ljubenka Ristanović, Ali Berisha, and Zoran Minić, all Serbian nationals; and Ilfan Sadik Ademi, now a citizen of the "former Yugoslav Republic of Macedonia."
Background
The Socialist Federal Republic of Yugoslavia (SFRY) was a federal state consisting of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro, and Macedonia. Nationals were citizens of both the SFRY and one of the constituent republics. Prior to 1947, a separate Register of Citizenship was kept at the republic level and not at the federal level. Beginning in 1974, citizenship data for newborns was entered in the Register of Births. Beginning in 1984, entry in the Register of Citizenship ended, and all citizenship data was entered in the Register of Births. With respect to citizenship in the republics, a child generally acquired the citizenship of his or her parents.SFRY citizens were allowed free movement within Yugoslavia. They were permitted to register as permanent residents anywhere in Yugoslavia. With permanent residence came civil, political, economic, and social rights.
During the dissolution of the SFRY, Slovenia took measures toward independence.
Prior to June 25, 1991, when Slovenia gained independence, the applicants were nationals of the SFRY and one of its republics other than Slovenia. They were permanent residents in Slovenia. However, on February 26, 1992, their names were erased from the Slovenia Register of Permanent Residents because they had not applied for citizenship by the legal deadline (December 25, 1991). Of 200,000 residents in Slovenia who were citizens of other former SFRY republics, 171,132 applied for and were granted Slovenian citizenship. Those who failed to apply for or were denied Slovenian citizenship became aliens or stateless persons illegally residing in Slovenia.
The Slovenian Government asserts that those people were informed of the change in their status. Applicants denied receiving notice, but say they learned by chance that their status changed. The applicants pointed out that no special procedure was provided to give notice and no official documents were issued.
The applicants contend that their "erasure" had serious and enduring consequences. In many cases, their identity papers were taken. Some were evicted, could not work or travel, lost personal possessions, and lived in poor conditions for years. Some were expelled from Slovenia.
Timeline
December 6, 1990 Assembly of Republic of Slovenia adopts "Statement of Good Intentions", which guarantees opportunity to acquire Slovenian citizenship for all permanent residents who desire it.June 25, 1991 Slovenia declares independence and passes "the independence legislation," a series of laws which include the Citizenship of the Republic of Slovenia Act ("the Citizenship Act"), the Aliens Act, the National Border Control Act, and the Passports of the Citizens of Slovenia Act.
February 26, 1992 Municipal Authorities removed those who had not applied for or obtained citizenship from the Register of Permanent Residents and, according to the Government, transferred them to the Register of Aliens Without a Residence Permit.
1999 Constitutional Court finds provisions of the Aliens Act unconstitutional because it did not regulate the situation of the "erased." The Act did not set conditions for those who were subject to section 81(2) to get permanent residence, and there was no legal basis for the authorities to strike those individuals from the Register of Permanent Residents and add them to the Register of Aliens. The Constitutional Court noted that nationals of former SFRY republics were in a less favorable legal position than other aliens living in Slovenia.
July 8, 1999 Legal Status Act is passed to regulate situation of the "erased."
2003 The Constitutional Court finds the Legal Status Act partially unconstitutional because it fails to grant the "erased" retroactive permanent residence permits, to define the meaning of "actually residing in Slovenia," and to regulate the acquisition of permanent residence by deported persons.
July 24, 2010 The Amended Legal Status Act, adopted in response to the 2003 Constitutional Court decision, becomes effective.
Summary of Applicable Laws
Section 13 of the 1991 Constitutional Law--Citizens of other former SFRY republics who, on December 23, 1990, were registered as permanent residents and actually lived in Slovenia, held equal rights and duties to citizens, with the exception of acquisition of property, until they acquired citizenship under section 40 of the Citizenship Act or until expiry of the time limit in section 81 of the Aliens Act.Section 40 of the Citizenship Act--former SFRY citizens who were not Slovenian Citizens could acquire citizenship if they met three requirements: 1) acquired permanent residence in Slovenia by December 23, 1990, 2) were actually residing in Slovenia, and 3) had applied for citizenship within the six months after the Citizenship Act was in force (in other words, by December 25, 1991).
Section 81(2) of the Aliens Act--Citizens of former SFRY republics who failed to apply for citizenship within the prescribed time or whose requests were denied became aliens.
IN 1991, 25, 671 former SFRY citizens had lost permanent residence status. Some left Slovenia voluntarily. Others were granted residence permits after the 2003 decision of the Constitutional Court. Still others were deported. Of the number, 7,899 had acquired Slovenian citizenship.
In 2009, 13,426 of the "erased" still had no regulated status in Slovenia. By June 2010, of 13,600 requests for permanent residence, 12,345 had been granted.
Complaints and Procedure
Applicants complained that they had been arbitrarily deprived of their legal status as permanent residents, that no effective remedies were available to them, that they had been subjected to discriminatory treatment, and that they had arbitrarily been denied pension rights. Their application was lodged with the ECHR on July 4, 2006. In a Chamber judgment, the Court held that violations of Articles 8 and 13 had occurred, that it was not necessary to examine the case under Article 14, and that the remainder of the applicants' complaints were inadmissible. The Court found that Slovenian authorities had failed to comply with the Constitutional Court decisions concerning the "erased."On October 13, 2010, the Government requested that the case be referred to the Grand Chamber. A panel of the Grand Chamber accepted the request on February 21, 2011. The Serbian Government, the Equal Rights Trust, the Peace Institute-Institute for Contemporary Social and Political Studies, the Open Society Justice Initiative, the Legal Information Centre for Non-Governmental Organizations, and the UNHCR were permitted to intervene as third parties. Croatia and Bosnia and Herzegovina did not wish to exercise their right to intervene.
Article 8
The Grand Chamber considered Article 8 to be applicable to the situation because "erasure" and its consequences amounted to interference with private or family life, or both. At the relevant time, the applicants had social, cultural, and economic ties in Slovenia."According to the Court’s established case-law,the expression 'in accordance with the law' requires that the impugned measure should have some basis in domestic law,and it also refers to the quality of the law in question,requiring that it should be accessible to the person concerned and foreseeable as to its effects."
The Legal basis for the government's interference with those rights consisted in the Citizenship Act and the Aliens Act, legal instruments accessible to any interested persons. The applicants could have foreseen treatment as aliens if they failed to apply for citizenship, but they could not reasonably expected that their status as aliens would result in the unlawfulness of their residence in Slovenia and would lead to their "erasure." The absence of notification, the Court reasoned, could have led them to believe that their status as residents was unchanged.
Moreover, the Court attached weight to the Constitutional Court findings that the transfer of the names of "erased" persons from the Register of Permanent Residents to the Register of Aliens had no domestic legal basis and that the applicants were in a legal vacuum since the Aliens Act did not put a procedure in place for former-SFRY nationals to apply for permanent residence. The Ministry of Interior had distributed several circulars to the administrative units regarding implementation of the Aliens Act. From these circulars, it is apparent that Slovenian authorities were aware of the negative consequences of the "erasure," which was executed in secret. The circulars were not accessible to the applicants. The legislation and administrative practice resulting in "erasure" lacked foreseeability and accessibility.
At least until 2010, the Slovenian legal system failed to regulate clearly the consequences of "erasure" and the residence status of those subjected to it.
Thus, the interference of applicants Article 8 rights was not in accordance with the law.
Due to the widespread repercussions of "erasure," the Court examined whether the measure pursued a legitimate aim and was proportionate to it. The Court took the view that a desire to create a "corpus of Slovenian Citizens" was in the interest of national security and was a legitimate aim.
The Court next considered whether the interference was "necessary in a democratic society." "[A] measure interfering with rights guaranteed by Article 8 § 1 of the Convention can be regarded as being 'necessary in a democratic society' if it has been taken in order to respond to a pressing social need and if the means employed are proportionate to the aims pursued." The Court noted that the applicants were deprived of legal status that had entitled them to health insurance, pension rights, identity documents, and job opportunities. The Court opined that the Slovenian State should have regularized the residence status of former SFRY citizens to ensure that failure to obtain Slovenian citizenship did not disproportionately affect Article 8 rights. Thus, the interference was not "necessary in a democratic society."
The Court concluded that, despite efforts made after the Constitutional Court decisions of 1999 and 2003, the Slovenian authorities failed to remedy comprehensively and with requisite promptness the blanket nature of "erasure" and its consequences.
Accordingly, Article 8 of the Convention was violated.
Article 13
The Court found that there were no "adequate" and "effective" remedies available to the applicants at the relevant time. Therefore, there was a violation of Article 13 in conjunction with Article 8 of the Convention.Article 14
Unlike the Chamber, the Grand Chamber examined the applicants' Article 14 claims due to the importance of the discrimination issue. The Court noted that there was a difference in treatment between the citizens of former SFRY republics and other foreigners in Slovenia. The Court found that the difference in treatment was based on national origin and did not pursue a legitimate aim. The Court held that there had been a violation of Article 14 in conjunction with Article 8 of the Convention.Article 46
The Court considered it premature to rule on the efficacy of the amended Legal Status Act. However, based on the remoteness of the possibility of applicants obtaining compensation at the domestic level, the Court found that there was a shortcoming in the Slovenian legal system. The Court decided that the case was appropriate for its pilot judgment procedure, as there are many affected persons. The Court indicated that the Slovenian government should set up a compensation scheme for the "erased" people.* Unless otherwise noted, all information is from the judgment of the Court.
