Nationality and Statelessness Before the European Court of Human Rights: A landmark judgment but what about Article 3 ECHR?

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)

Introduction

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.

Facts

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.

Judgment

The judgment by the First Section of the Court contains some interesting features summarised here.

1. The Court rejected the Government’s request to strike out the application. The Court accepted that the case concerns the specific circumstances related to the regularisation of the status of aliens residing in a state following the break-up of the SFRY and that in some cases, where unequivocal assurances are given by the relevant authorities that permanent residence will be granted, such cases may be struck out. However, in the present case, the applicant was only ever granted a temporary residence permit at the discretion of the Ministry, hence the matter cannot be said to be resolved within the meaning of Article 37(1)(b) ECHR (para.82).
2. The Court also rejected the Government’s contention that the applicant had abused his right of individual application by being unclear about his citizenship with the intention of misleading the Court. The Court instead noted “the complexity of the issues surrounding the applicant’s citizenship” and “the reasonable doubt … as to the erasure of his residence in the relevant registers” (paras.93-94).
3. The UNHCR contributed a valuable intervention as third-party, focusing on statelessness, the theory of citizenship following the disintegration of the SFRY (i.e. the principle of continuity of citizenship in the creation of new nationality laws) and the gaps in practice resulting in two groups of persons in Croatia becoming stateless as a consequence of the erasure. These persons would have lost access to social and economic rights, and they would be subject to detention with a view to deportation if they were to become known to the police. The UNHCR further emphasised the difficulty faced by stateless persons who had been erased from the domicile register to apply for renewal of temporary residence permits on humanitarian grounds, because it required a valid national biometric passport of the current country of nationality. Croatian legislation did not protect such persons.
4. In the Merits, the Government made a number of bold arguments, including that the applicant was not a stateless person but a citizen of Albania; that he had “remained passive and had never taken any action aimed at renouncing his Albanian citizenship” (para.102); that “it was for the applicant … to renounce his citizenship or to show that he was stateless or to obtain a valid travel document from a country whose citizen he was” (para.103); and that former SFRY nationals with a registered domicile in Croatia had qualified for Croatian citizenship under the Citizenship Act, hence there was never an “erasure process” after 1991.
5. In its preliminary assessment, the Court clarified that the case at hand was not concerned with the erasure of Mr Hoti from the register of domicile in Croatia in 1991 since his residence after 1988 had only ever been tolerated. For this reason also, his situation could not be assimilated to that of “settled migrants” or that of aliens seeking admission to a host country. Rather his situation was very specific to him as a “stateless migrant” whose inability to regularise his residence status adversely affected his private life under Article 8 ECHR.
6. The Court then found it appropriate to examine his complaint by reference to the case law applicable to “aliens who, irrespective of many years of actual residence in a host country, were not able to regularise their residence status”. According to this case law, Article 8 protects disproportionate intrusion by the state on the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual social identity” (para.119). However, while states may have positive obligations to ensure effective enjoyment of an applicant’s private life, including, an effective and accessible procedure and a domestic remedy, Article 8 does not guarantee the right to be granted a particular legal status or type of residence permit.
7. The Court then went on to apply these general principles to the applicant’s situation and concluded that Croatia’s failure to regularise Mr Hoti’s residence status in Croatia, despite having lived there for forty years as a “stateless migrant”, amounted to a violation of Article 8 ECHR (private life).

Comments

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.