May 16, 2018
By Dr. Hélène Lambert (Professor of Law at the University of Wollongong, Australia, and Professor of International Law at the University of Westminster in London, United Kingdom)
Two years ago, following the judgment of the Fourth Section of the European Court of Human Rights in Ramadan v. Malta, Marie-Bénédicte Dembour called on the Court to take nationality seriously because it is “a core human rights issue” (Strasbourg Observers). Dembour criticised the Court for insisting “that the applicant brings impossible proofs” of his nationality, thereby favouring the defendant State, and for blaming the applicant for his predicament. Hoti v Croatia gives us the opportunity to scrutinise once more how the Strasbourg Court understands nationality and statelessness in human rights terms, and there is some good news.
The applicant was born in Kosovo (then part of the Socialist Federal Republic of Yugoslavia or “SFRY”) in 1962. He was the son of political refugees who had fled Albania in 1960 to settle in Kosovo. In 1979, the applicant moved to Croatia (also part of SFRY) and settled in Novska, where he has lived ever since. Since then, his parents have died, and he has lost touch with his two sisters and two brothers. He is not married, and he does not have children. According to his birth certificate, Mr Hoti has no nationality. However, the Croatian authorities consider him to be a national of Kosovo or Albania because of his parents’ and his own status as Albanian refugees in Kosovo. Throughout the 40 years he has lived in Croatia, his legal status has been partly tolerated and partly regulated by short term humanitarian permits granted sporadically. He has long wished to get Croatian citizenship and a permanent residence permit in Croatia so as to be able to live a normal life in Croatia. However, despite several attempts, he has so far been unable to regularise his residence status.
He argues that he is stateless, that he has no valid travel document and that he was erased from the register of domicile and residence in Croatia without being informed. He further argues that there was a gap in the relevant domestic law (Aliens Act) in that his situation (resulting from the dissolution of the SFRY) should have been regulated. Hence, an application of the Aliens Act could not lead to a solution in his case. He relies on Article 8 ECHR (private life) based on the fact that during the last four decades he has worked intermittently as a waiter and a car mechanic; he is currently surviving by helping out on a farm.
The judgment by the First Section of the Court contains some interesting features summarised here.
Acclaimed by the Institute on Statelessness and Inclusion (Monthly Bulletin April 2018) as a landmark judgment, the decision of the First Section in Hoti v Croatia contains a lot of positives, not the least the fact that for the first time the Court chose to tackle the issue of statelessness head on. Indeed, the Court’s decision to accept the applicant’s statelessness despite the state arguing otherwise is commendable, and explicit reference is made to the 1954 Convention relating to the Status of Stateless Persons.
The Court also reemphasised the principle of consent in the acquisition of nationality, namely that “an alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its nationality” (para.131).
However, when applying the general principles to the specific case (paras.125 et seq.), one can’t help but think that Article 3 ECHR (which prohibits torture, inhuman and degrading treatment) is the elephant in the room. Why is it that Article 3 ECHR is never argued before the Court in cases involving stateless persons? The Court itself flagged a number of particular features often determinant in Article 3 detention or expulsion cases: his “advanced age”, that “the applicant’s residence status in Croatia is uncertain” and with no hope that it will ever be resolved since it is “impossible for him to meet” one of the requirement by being stateless; his “prospect of finding employment is de facto hampered” and so too are his prospect of “securing normal health insurance or pension rights” (para.126); he has no contact with family or relatives.
As Michelle Foster and I have argued here, statelessness is a broad human rights issue: it’s about non-discrimination and equality, it’s about women’s rights and children’s rights, and it’s about family and private life. But crucially, statelessness is about inhuman and degrading treatment and the obligation of the Contracting Parties to secure to everyone within their jurisdictions the right to be free from such ill-treatment. This is not a general or abstract issue as statelessness impacts directly on access to civil, political, social, cultural and economic rights including the right to work, the right to basic subsistence, the right to health care, pension rights, freedom of movement, protection against detention etc. – see also our forthcoming book.
Is the Court ready for Article 3 ECHR arguments? Some of the language used in Hoti v Croatia is sufficiently reminiscent of Article 3 to suggest that it may be. However, all rests on applicants’ lawyers to address statelessness as an Article 3 issue and advise their clients accordingly. Lately, statelessness has been given a renewed impetus as an important human rights issue, and the work of the UNHCR and leading academics has been integral to this. The judgment in Hoti v Croatia makes a valuable contribution to this debate. It’s now up to lawyers to recognise this and direct the debate towards Article 3 ECHR, in particular inhuman and degrading treatment.