The European Court of Human Rights has ruled that the Slovenian authorities failed to comply with Constitutional Court Decisions concerning th 'Erased', violating their rights to private and family life (Art. 8) and not providing an effective remedy to their situation (Art. 13).
See the press release below issued by the European Court of Human Rights 13 July 2010.
To read the full decision go to:
Press release issued by the Registrar
Kuric and Others v. Slovenia (application no. 26828/06)
SLOVENIAN AUTHORITIES FAILED TO COMPLY WITH CONSTITUTIONAL COURT DECISIONS CONCERNING “ERASED” PEOPLE
Violation of Article 8 (right to a private and family life)
Violation of Article 13 (right to an effective remedy)
of the European Convention on Human Rights
The case concerned the applicants’ complaints that the Slovenian authorities prevented them from acquiring citizenship of the newly-established Slovenian State in 1991, and/or from preserving their status as permanent residents, as a result of which they have faced almost 20 years of extreme hardship.
The 11 applicants are: Mustafa Kurić, Ljubomir Petreš, Velimir Dabetić, and Ilfan Sadik Ademi, all stateless persons; Milan Makuc (now deceased2), and Ana Mezga, both Croatian nationals; Jovan Jovanović and Tripun Ristanović, both citizens of Bosnia and Herzegovina; and, Ljubenka Ristanović, Ali Berisha and Zoran Minić, all Serbian nationals. They belong to a group of people known as the “erased”. Mainly former citizens of the Socialist Federal Republic of Yugoslavia (the “SFRY”) who had their permanent residence in Slovenia, following the declaration of independence by Slovenia in 1991, they either did not request Slovenian citizenship within the prescribed time-limit or their request was not granted.
As a result, their names were “erased” from the Slovenian Register of Permanent Residents on 26 February 1992. At the time, approximately 200,000 Slovenian residents, including the applicants, were citizens of other former SFRY republics. According to the official data, 171,132 applied for and were granted citizenship of the new Slovenian State before the deadline, which was six months from the date of entry into force of the Citizenship Act, namely by 25 December 1991; about 11,000 others left Slovenia.
People who either failed to apply, or whose requests were not granted, became aliens. On or shortly after 26 February 1992, the municipal authorities removed them from the Register of Permanent Residents and, according to the Slovenian Government, transferred them into the Register of Aliens which was for people without a residence permit. According to the Government, people were informed about the change through the media, notices, and were even contacted personally in some municipalities. The applicants denied ever receiving notification of their names being removed from the first register and being entered into the second one. They only subsequently learned that they had become aliens when, for example, they tried to renew their personal documents.
According to the applicants, the erasure of their names from the Register of Permanent Residents had serious and enduring negative consequences. Some were evicted from their apartments, could not work or travel, lost all their personal possessions, including their documents, and lived for years on end in shelters and municipal parks with grave detrimental consequences for their health. Others were detained and expelled from Slovenia.
In 1999 the Constitutional Court found unconstitutional the provisions of the law applicable as from the day of “the erasure” (the Aliens Act) as it did not regulate the status of the “erased” who had not received an official notification about the change of their status. Following this Constitutional Court’s decision, the Legal Status Act was passed in order to regulate the situation of “the erased”. However, in 2003, the Constitutional Court reiterated its 1999 ruling. It further held that the Legal Status Act was unconstitutional, in particular since it failed to grant “the erased” retroactive permanent residence permits and to regulate the situation of those deported.
According to the official data from 2002, the number of former SFRY citizens who lost their permanent residence status on 26 February 1992 amounted to 18,305, of whom approximately 2,400 had been refused citizenship. Gradually that number diminished, as some people voluntarily left Slovenia and others were granted residence permits following the above mentioned Constitutional Court decisions. At present it is believed that there are potentially several thousand people still in the category of the “erased”.
Complaints, procedure and composition of the Court
The applicants complained in particular that they were arbitrarily deprived of the possibility of acquiring citizenship of the newly-established Slovenian State in 1991 and/or of preserving their status as permanent residents. They relied in particular on: Article 8 (right to respect for private and family life), Article 13 (right to an effective remedy) and Article 14 (prohibition of discrimination).
The application was lodged with the European Court of Human Rights on 4 July 2006.
Judgment was given by a Chamber of seven judges, composed as follows:
Josep Casadevall (Andorra), President,
Elisabet Fura (Sweden),
Corneliu Bîrsan (Romania),
Boštjan M. Zupančič (Slovenia),
Alvina Gyulumyan (Armenia),
Egbert Myjer (The Netherlands),
Ineta Ziemele (Latvia), judges,
and Santiago Quesada, Section Registrar.
Decision of the Court
The Slovenian Government argued that the applications had to be declared inadmissible because: they concerned the right to citizenship, which was not, as such, protected by the Convention; they related to a period of time before the entry of the Convention into force in respect of Slovenia (28 June 1994) and were therefore out of time; and the applicants had not exhausted all available domestic remedies before turning to the Court.
The Court acknowledged that the right to acquire or retain a particular nationality was not included among the rights and freedoms guaranteed by the Convention. At the same time it found that the social and community ties enjoyed by settled migrants like the applicants (most of whom had been residing legally in Slovenia for several decades) constituted private life within the meaning of Article 8, and was thus protected under the Convention. It further concluded that, although the erasure had happened before 28 June 1994, which was when the Convention had entered into force in respect of Slovenia, on that date the applicants were - as they continued to be - affected by the fact that their names were erased from the register. Concerning the exhaustion of domestic remedies, the Court recalled that the Slovenian Constitutional Court had found the erasure unconstitutional and that the applicants’ complaint was about the authorities not having complied with those decisions.
The Court noted, however, that Mr Petres and Mr Jovanovic had been issued residence permits in March 2009 and could therefore no longer claim to be victims of the alleged violations. Mr Makuc having died, his cousin was found not to have a legal interest in pursuing the application. The complaints of the other eight applicants were declared admissible.
Private and family life (Article 8)
The Court noted that the applicants’ names were “erased” from the register on 26 February 1992 when the Aliens Act had become applicable. The applicants, who had all spent a substantial part of their lives in Slovenia, had developed there personal, social, cultural, linguistic and economic relations that made up the private life of every human being. Therefore, at the relevant time, they had enjoyed a private life in Slovenia within the meaning of Article 8 § 1 of the Convention. It further found that the Slovenian authorities had persistently refused to regulate the applicants’ situation in line with the Constitutional Court’s decisions. In particular, they had failed to pass appropriate legislation and to issue permanent residence permits to individual applicants and had thus interfered with their rights to respect for their private and/or family life, especially where the applicants were stateless.
Examining further whether the interference was justified, the Court observed that the Slovenian Constitutional Court had declared section 81 of the Act unconstitutional since it had not set out the conditions for acquisition of permanent residence for people who were citizens of other former SFRY republics, held permanent residence in Slovenia, lived on the Slovenian territory at the relevant time, and had either failed to apply for Slovenian citizenship or had their requests not granted. In addition, the other law regulating the status of those people, the Legal Status Act, had also been declared unconstitutional as it had failed to grant “the erased” retroactive permanent residence permits and to regulate the situation of those deported. A consequence of the unregulated legal status, according to the Constitutional Court, had been the transfer of the applicants’ names into the register of aliens, without any notification or legal bases for that transfer.
The Court saw no reason for departing from the Constitutional Court’s decisions. It found that the unlawful situation, resulting from the lack of legal basis at the moment of the entry into force of the Convention in respect of Slovenia, had persisted for more than 15 years afterwards for the majority of the applicants given that the legislative and administrative authorities had not complied with the judicial decisions.
The Court finally noted that on 8 March 2010 amendments to the Legal Status Act were passed by Parliament, however, at the time it considered this judgment those amendments had not yet entered into force.
Accordingly, there had been a violation of Article 8.
Effective remedy (Article 13) in respect of private and family life
The Court reiterated that in spite of the legislative and administrative endeavours made in order to comply with the Constitutional Court’s leading decisions of 1999 and 2003, those had not yet been fully implemented. Consequently, Slovenia had not shown that the remedies at the applicants’ disposal could be regarded as effective.
Accordingly, there has been a violation of Article 13.
The Court held that it was not necessary to rule on the applicants’ complaint under Article 14 (prohibition of discrimination.
Just satisfaction (Article 41)
The question was reserved for decision at a later date.
Implementation of the judgment (Article 46)
The Court recalled that it was in principle not for the Court to determine what remedial measures might be appropriate to satisfy Slovenia’s obligations to execute the Court’s judgment, as the execution arm of the Council of Europe (the Committee of Ministers) dealt with the enforcement of its judgments. .However, it observed that the violation found clearly indicated that appropriate general and individual measures needed to be adopted in Slovenia so that the violations could be remedied. The Court concluded that it was necessary to legislate and regulate adequately the situation of the individual applicants by issuing them with retroactive permanent residence permits.
The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website (http://www.echr.coe.int).
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on the day the request is rejected.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
2 After the death of Mr Makuc, his cousin expressed a wish pursue his application before the Court.Read More
There are Roma in a number of European countries who have no nationality. They face a double jeopardy - being stateless makes life even harder for those who are already stigmatized and facing a plethora of serious, discrimination-related problems. For those who happen to be migrants as well, their situation is even worse.
Many Roma lack personal identity documents which hinders their access to basic human rights, such as education and health services, and increases their susceptibility to continued statelessness. In fact, estimates indicate that thousands have no administrative existence at all. They often have never obtained a birth certificate and do not overcome administrative hurdles when trying to be recognised by the State. They live entirely outside of any form of basic social protection or inclusion.
This is largely a hidden problem. Naturally, it is difficult to establish facts in this area but too little effort has been made by state authorities to collect relevant data about the scope and nature of this systematic marginalisation. As repeatedly noted by the European Committee of Social Rights, states have an obligation to identify the dimension of the exclusion of vulnerable groups such as the Roma, including through statistical means.
Absence of data, only estimates available
There are no precise statistics on the number of stateless Roma. Estimates in South Eastern Europe indicate the following:
Bosnia and Herzegovina: 10 000; Montenegro: 1 500; Serbia: 17 000; Slovenia 4 090 (citizens of former Yugoslavia, many of whom are ethnic Roma).
According to the UNHCR the great majority of the persons referred to as stateless face problems being formally recognized as citizens of the country where they are habitually resident. This is because they lack proper registration and documentation and encounter many difficulties in their attempt to obtain proof of nationality.
Political developments in recent years have made Roma in Europe more vulnerable. The break-up of former Czechoslovakia and former Yugoslavia caused enormous difficulties for persons who were regarded by the new successor states as belonging somewhere else - even if they had resided in their current location for many years.
The Czech Republic used a citizenship law which made tens of thousands of Roma stateless (the intention was that they should move to Slovakia). This law was, however, amended after interventions from Council of Europe and others in 1999. Thereby the main part, though not all, of the problem was finally resolved.
In Slovenia several thousand persons, among them many Roma, became victims of a decision to erase non-Slovene residents from the Register of Permanent Residents. They had missed a deadline and had not sought or obtained Slovenian citizenship soon after the independence of the country. Many of them had moved to Slovenia from other parts of Yugoslavia before the dissolution of the Federation.
Croatia and “the former Yugoslav Republic of Macedonia” also adopted restrictive laws which made access to nationality very difficult. Again, this hit Roma people in particular. One consequence was that those who had migrated to other parts of Europe were in limbo; they were not accorded nationality either by their host country or by the new states which had emerged in the areas where they had previously lived.
The Kosovo1 conflict led to a large displacement of Roma people primarily to Serbia, Bosnia and Herzegovina, Montenegro and “the former Yugoslav Republic of Macedonia” but also to other countries outside the region. While in Kosovo recently, I met with one NGO which is currently working on a large civil registration project, hoping to register the 10 000 to 11 000 members of the community who find themselves with no papers.
It is not acceptable that European citizens are deprived of their right to a nationality – a basic human right. It is necessary to address this problem with much more energy than has been done so far.
European host states where children of Roma migrants have been born and have lived for several years should do their utmost to provide a secure legal status to these children and their parents. Both the UN Convention on the Rights of the Child and the International Covenant of Civil and Political Rights stipulate that children shall have the right to acquire a nationality. In other words, the host country has an obligation to ensure that children do have a nationality; the fact that their parents are stateless is no excuse.2
When in Italy last January I was pleased to learn that the government was preparing draft legislation to provide Italian nationality to stateless minors whose parents had left the war-torn former Yugoslavia and where at least one of their parents was in Italy prior to January 1996. The government also announced that it would ratify the 1997 European Convention on Nationality without any reservation.3 A number of Roma stateless children will benefit from such legislative developments - when adopted.
Problems relating to nationality also affect many adult Roma. When in Montenegro, I learned about the impressive efforts of the UN High Commissioner for Refugees who is trying to break the vicious circle caused by the absence of identity documentation. Without such papers individuals are hindered from asserting their most basic rights. The programme has already helped a great number of individuals including some who had left Kosovo.
I also noticed positive steps during a visit to “the former Yugoslav Republic of Macedonia”. Progress has been made to ensure that Roma can attain personal documents including birth certificates, identity cards, passports and other documents related to the provision of health and social security benefits.
These are the good examples. However, it should be remembered that such measures are an obligation. The Strasbourg Court has stated that the non-provision by states of proper personal documentation which would facilitate employment, medical care or providing for other crucial needs, may indeed contradict the right to private life, a human right protecting the individual’s moral and physical integrity.4
The Council of Europe has been a pioneer in the field of protecting Roma rights. The messages coming from its various bodies emphasize that host states should employ all possible means to end the de facto or de jure statelessness of Roma and provide them with a nationality, in accordance with the standards of the 1997 European Convention on Nationality and the 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession.
Both treaties contain general principles, rules and procedures of the utmost importance for the effective enjoyment of the human right to a nationality in Europe. Some core provisions are:
The problem of the stateless Roma must be addressed with determination. They often do not have the means to speak out themselves. A study recently published by the EU Fundamental Rights Agency showed also that many Roma do not know how to approach ombudsmen and other national human rights institutions.
National human rights action plans should pay attention to the urgent need to provide resources to facilitate legal work for stateless Roma. In Croatia a free legal aid scheme for Roma was put into place in 2003. This was a good step to promote the necessary legal empowerment. Many more initiatives of this kind are needed.
This Viewpoint can be re-published in newspapers or on the internet without our prior consent, provided that the text is not modified and the original source is indicated in the following way: "Also available at the Commissioner's website at www.commissioner.coe.int"
The compendium of the 27 Viewpoints written by the Commissioner during his second year in office is available in electronic version.
Two recent reports on nationality issues in Latvia are available at:
'Citizens of a Non-Existent State'
'The Last Prisoners of the Cold War'
For more information contact: Aleksejs.Dimitrovs@europarl.europa.euRead More
About the Authors: Samuel M. Witten serves as Acting Assistant Secretary of State for Population, Refugees, and Migration and David J. Kramer serves as Assistant Secretary of State for Democracy, Human Rights, and Labor.
Fifteen-year-old Meesu was born in Thailand, and grew up there, but she is not a Thai citizen. Like some members of hill tribes, she is not a citizen of any country. Without citizenship, she faced travel and work restrictions in Thailand and was trafficked to Malaysia to be a sex worker. When Malaysian police busted the prostitution ring, they could not send Meesu home because she was not Thai. She languished in jail for months.
Meesu's case is sadly not unique. She is one of the world's many stateless people. The United Nations estimates that worldwide there are up to 15 million people who are unable to exercise their "right to nationality," the human right that underpins the relationship between individuals and governments.
Stateless people often say their very existence is ignored. Philosopher Hannah Arendt, who became stateless when she fled Nazi Germany and later acquired U.S. citizenship, described the right to nationality as the right to have rights, and wrote: "The loss of a community willing and able to guarantee any rights whatsoever has been the calamity which has befallen ever-increasing numbers of people."
It was the surge in the number of stateless around World War II that led the drafters of the 1948 Universal Declaration of Human Rights to include Article 15, which states that "Everyone has the right to a nationality" and should not be deprived arbitrarily of his or her nationality. Still, millions of people -- such as the Bidoon in Kuwait and the Rohingya in Burma (the young woman in the photo, above, belongs to the Rohingya ethnic group and lives along the Bangladesh-Burma border) -- remain stateless, and as a result, suffer from discrimination in access to education, employment, health care, marriage and birth registration, property rights and other abuses.
Although the problem of statelessness persists, international attention to it has drifted to the margins in recent decades. Data on statelessness is scant and seldom highlighted. We do not know, for example, whether the global number of stateless people is increasing or decreasing over time. Issues of citizenship and nationality are politically delicate and often considered sovereign matters. In some cases, governments lack the capacity to officially recognize and document all their citizens; and in other cases, statelessness legally or effectively results from systematic discrimination or gaps in citizenship laws and procedures. In the most egregious cases, governments have denationalized their citizens for political reasons.
In an effort to increase awareness about the existence of stateless people and the problems they face, the U.S. Department of State has begun to include a section on statelessness in our annual Country Reports on Human Rights Practices. This change is part of our effort to elevate the issue on the world human rights agenda. Published last month, the reports describe the scope of the problem in 50 countries in all regions of the world.
In addition to these country reports, the Department of State is increasing its support for stateless populations through diplomacy and humanitarian assistance. American diplomats press foreign governments to prevent and resolve situations of statelessness within their territory. We have advocated publicly for the protection of stateless persons in Congress and around the UN General Assembly.
The United States is the single largest donor to the United Nations High Commissioner for Refugees, whose mandate includes the protection of stateless people. Last fiscal year, we provided over $363 million to UNHCR, including contributions to the agency's core budget that supported protection and assistance programs for stateless populations. We also provided $2.5 million in targeted funding to address statelessness in 2007. For example, the Department contributed $689,000 to a UNHCR program to construct or rehabilitate 10 schools and to issue temporary ID cards for 150,000 stateless Rohingya in Burma's Northern Rakhine State, which improved their access to health care and other services.
Solutions for stateless people require government action. Especially where stateless persons lack access to naturalization, and where discrimination embedded in nationality laws results in significant stateless populations, governments must rectify their laws and policies. Universal birth registration is another important step in preventing statelessness from occurring. We urge other governments and non-governmental organizations to step up their efforts on this issue.
As for Meesu, the fifteen year old trafficking victim and citizen of nowhere, she was eventually sent back to Thailand. After months of negotiation, the Thai government agreed to consider accepting, on a case by case basis, stateless people who could prove previous residence in the country. Until we all make a broader effort to reduce statelessness, however, millions of individuals will continue to be deprived of the "right to have rights."
Continuing to Fight for Human Rights Around the World
“I stand here today with many Human Rights and Refugee advocates urging Congress to help bring an end to statelessness, human trafficking and displaced people around the world,” stated Congresswoman Sheila Jackson Lee. “The United States Government should take the lead in addressing the crisis of displaced people around the world and enacting my legislation would do just that. That is why I plan on introducing legislation in the House of Representatives that calls for an increase in global stability and security for the United States and the international community by reducing the number of individuals who are de jure or de facto stateless and at risk of being trafficked.”
Congresswoman Jackson Lee’s Legislation :
“As a senior Member of the Committee on Foreign Affairs and a member of the Human Rights Caucus I am deeply concerned with the current state of those who are without a state. I have long been an outspoken advocate for the universal nature of human rights and the plight of those peoples who the international community all to often ignores,” added Congresswoman Jackson Lee.
“We have a moral and a legal obligation to protect those who are without a state as a signatory to the 1948 Universal Declaration of Human Rights which clearly states, ‘Everyone has the right to a nationality’ and should not be arbitrarily deprived of a nationality. Numerous international treaties and conventions make up the body of international law that outline the rights and responsibilities of nations with regard to this ever important issue, however enforcement has been lethargic and the time to stand up and demand change is now. The problem of statelessness can be resolved through the advent of adequate nationality legislation. That is why it is critical to enact this legislation immediately,” concluded Congresswoman Sheila Jackson Lee.
June 26, 2008Read More
WASHINGTON D.C.—The Open Society Policy Center today hailed the commitment of Congresswoman Sheila Jackson Lee (D-TX) to address the global crisis of statelessness.
Statelessness is a massive but under-recogniz ed human rights problem that cries out for Unit ed States leadership,” said Robert O. Varenik of the Open Society Policy Center . “We are grateful to Congresswoman Jackson Lee for bringing this issue to the fore and we encourage Congress to act on it quickly.”
As Congresswoman Jackson Lee has noted, statelessness is a severe but largely overlooked human rights problem. Globally, over 11 million people are stateless. Although many of these individuals have never crossed an international border, without recognition of their citizenship they cannot claim the protection of any state, including the state in which they have spent their entire lives. Under domestic law they cannot work legally, exercise the right to political participation, or travel freely, and are subject to a host of other restrictions on their rights.
Around the world, from the Dominican Republic to Myanmar , governments are manipulating citizenship to disenfranchise and delegitimize specific groups. This practice, which violates the human right to citizenship, is typically associated with myriad and serious problems, ranging from endemic poverty to human trafficking to civil wars.
Many stateless people are members of ethnic minority groups. State policies that deny nationality to these groups are often specifically intended to restrict their political participation and bar certain candidates from standing for office. Denial or deprivation of nationality also frequently is abused by states to restrict freedom of association and freedom of expression, by threatening individuals with expulsion if they exercise their rights to freedom of expression or association.
The economic desperation and social marginalization caus ed by statelessness makes people vulnerable to trafficking. Even individuals who have citizenship often lose it when they are traffick ed : confiscation of their travel and identity documents can leave them in a situation of de facto statelessness if they are not able to contact the authorities of their home country to obtain new documents.
The legislation will bring new attention and resources to the pervasive problem of statelessness. The bill will ensure that the Unit ed States collects vital information on statelessness that will help efforts to combat trafficking and other human rights violations. The bill would also provide for increas ed resources for a program to fight statelessness and cooperate with international agencies responsible for statelessness.
The active commitment of the Unit ed States to combat statelessness will transform the lives of millions of stateless people for the better, and we urge Congress to pass the bill as quickly as possible,” said Varenik.
Originally posted at: http://www.justiceinitiative.org/db/resource2?res_id=104115.
Everyone has the right to a nationality. Also, no one shall be arbitrarily deprived of his or her nationality or denied the right to change nationality. These rights are spelled out in the 1948 Universal Declaration of Human Rights – but still not respected in a number of countries, also in Europe. The victims are stateless.
A stateless person is an individual who is not considered as a national by any state under its domestic law. Some of them are refugees or migrants, having left their country of origin. Others live in their home country but are still not recognised as citizens.
Having a nationality means in both law and practice to possess ‘a right to have rights’ (together with the obvious duties). Though non-citizens residing in a country also have human rights, there are certain rights which may be limited to nationals: for example the right to enter a country and stay there but also to vote and be a candidate in elections.
The fact that stateless persons are excluded from participation in the political process undermines the reciprocal relationship between duties and rights. In fact, non-citizens also tend to be marginalised in areas where formally they have rights. Many of them face gross discrimination in their daily lives. They may be denied employment, housing or access to education and health care, because they do not have valid personal identification documents.
When travelling across borders they are particularly vulnerable, if they can travel at all.
The plight of the stateless has received limited attention in recent years and seems to be little understood in wide circles. Stateless people worldwide are currently estimated by UN High Commissioner for Refugees at 12 million. The number in Europe is estimated to be 640,000.
There are, however, agreed international standards to protect the right to have a nationality and to be well treated while one still has no citizenship. There is a UN Convention relating to the Status of Stateless Persons from 1954 and a Convention on the Reduction of Statelessness from 1961.
The provisions of the first treaty enable stateless persons to have access to fundamental human rights in host states. At the same time these states are encouraged to facilitate the integration and naturalization of these individuals. The second treaty complements the first one and includes provisions to prevent the emergence of new cases of stateless persons. The UNHCR has been charged with the task of helping to eliminate statelessness globally.
There has been a special focus on the need to ensure that children are not made victims of statelessness. Both the UN Convention of the Rights of the Child and the International Covenant of Civil and Political Rights stipulate that children shall have the right to acquire a nationality(1). The host country has an obligation to ensure that children do have a citizenship; that the parents are stateless is no excuse.
Europe has a shameful history of producing and repressing stateless people, the memory of which contributed to the norms which were agreed through the UN treaties mentioned here. However, developments after 1989 created new problems of statelessness in Europe.
The break-up of the Soviet Union, Yugoslavia and Czechoslovakia caused enormous difficulties for persons who were regarded by the new governments as belonging somewhere else - even if they had resided in their current location for many years.
For instance, large numbers of residents, including children, remain non-citizens in Latvia and Estonia. I have recommended that steps be taken to grant citizenship automatically to children and to relieve older people from the requirement to go through the tests for naturalisation(2). It should be noted that the European Court of Human Rights has highlighted the obligation of states to effectively protect personal and family life in such situations(3).
Several thousand persons, among them many Roma, who had not sought or obtained Slovenian citizenship soon after the independence of that country, became victims of a decision in 1992 to erase non-Slovene residents from the Register of Permanent Residents. Many of them had moved to Slovenia from other parts of Yugoslavia before the dissolution of the federation.
Also in other states in the Balkans there are Roma who are without citizenship or even basic identity papers. Those who have moved from the former Yugoslav Federation to other parts of Europe – for instance Italy - often lack personal documents and therefore live in uncertainty. They are de facto stateless. Their newborn children are frequently not registered and risk losing their right to apply one day for citizenship as they cannot prove legal residence in the country.
In Greece a Nationality Code caused the de-nationalisation of a large number of members of the Muslim minority in Thrace, many of them of Turkish origin. This particular provision in the Code was withdrawn in 1998 but the change did not apply retroactively which meant that Muslims who had lost their citizenship did not get it back but had to start a naturalisation process as if they were newcomers. I have suggested that the Greek authorities address this unfair situation with priority(4).
Another case of eventual de-nationalisation was discussed during my visit last year to Bosnia and Herzegovina where the authorities had prepared a review of citizenship granted to a significant number of foreign nationals since 1992. To withdraw citizenship, when already granted, must be regarded as a very serious action and should only be possible in extreme circumstances of deliberate deceit in the original application.
A case which must be brought to a positive solution is the fate of the Meskhetians who were deported 1944 from Georgia by Stalin to other parts of the Soviet Union. Very few of those who so wished have been able to return to Georgia and many of those who now are in, for instance, Krasnodar Krai in Russia are stateless. There are hopes that the Georgian authorities will now ensure the follow through of their decision to ensure the possible return of this minority.
The Council of Europe has adopted two highly relevant treaties to guide a rights-based approach, especially to those problems which have followed the state dissolutions and successions since 1989. One is the 1997 Convention on Nationality and the other is the 2006 Convention on the Avoidance of Statelessness in relation to State Succession.
Both treaties contain general principles, rules and procedures of utmost importance for the effective enjoyment of the human right to a nationality in Europe. Some core provisions are:
• the overarching principle of non-discrimination in law and practice;
• the special protection that must be provided by states to children born on their territories and who do not acquire at birth another nationality;
• restrictive conditions on which someone may lose his or her nationality ex lege;
• the duty of the states to reason and provide in writing their nationality-related decisions.
It is a serious concern that only sixteen Council of Europe member states have, so far, ratified the 1997 Convention on Nationality. This is in spite of Recommendation R(99)18 of the Committee of Ministers (on the avoidance and reduction of statelessness) which clearly encouraged ratification. Moreover, only two states have ratified the 2006 Convention on the Avoidance of Statelessness in relation to State Succession.
The problem of statelessness in Europe should be given higher priority. The victims have in most cases little possibility themselves to be heard and are in many cases silenced by their fear of further discrimination. It is most important that governments, ombudsmen, national human rights institutions and non-governmental organisations take action for the rights of stateless persons.
The persistence of “legal ghosts” in today’s Europe is unacceptable. Council of Europe member states should protect the rights of stateless persons on their own or other states’ territories and adopt a proactive policy. They should realise that measures aimed at reducing and eliminating statelessness can prevent, as well as resolve, conflicts. This is one way of promoting social cohesion and harmony in our societies.
Originally posted on the Council for Europe website:Read More
Although more than forty ethnic groups reside in Kenya, not all of them have been able to call that country home. The Nubian community, whose ancestors came to Kenya from Sudan in the late nineteenth century as conscripts of the British colonial army, is one group that has historically been denied citizenship.
Their applications for civil identification continue to be subject to a process known as “vetting,” where a panel of government officials and community elders scrutinize a range of documentation, previously including even grandparents’ birth certificates. Such excessive requirements became obstacles to obtaining citizenship, leading Nubians to suffer the effects of statelessness, such as lack of legal protection, inability to vote, vulnerability to harassment, travel restrictions, and lack of access to higher education and social services.
But as related by one Nubian community leader, the Nubians fought for their rights “tooth and nail.” On their own and with the help of non-governmental organizations such as the Center for Minority Rights Development, the Institute for Human Rights and Development in Africa, and the Open Society Justice Initiative, the Nubian community challenged their treatment and status. They filed complaints in the Kenya High Court in 2003 and in the African Commission of Human and Peoples' Rights in 2006. They also spoke publicly about their situation in national and international fora.
Over the last few years, conditions have improved. Nubian community leaders report that nearly everyone now has a national ID card and the registration process is no longer as onerous as before. They believe their actions have also helped reduce corruption in applicable government ministries. Characterizing the status quo as a “gentlemen’s agreement” with the government, a Nubian elder emphasized that the community refuses to stop at such informal solutions. “Long after we are gone,” he said, “national identification should be a matter of course.” In their view, the court cases must proceed and the Nubians must be recognized as an official ethnic group of Kenya.
Refugees International asked the elder what advice he could share for other groups in the world at risk of statelessness. Directing his answer to such groups, he concisely outlined five elements to the success of his community:
“First, you must maintain your identity as a people. Be proud of your culture and avoid identifying yourselves with larger groups. Hold high your language, arts and crafts, and ensure ceremonies are practiced regularly. Assimilation is the worst form of social crime, as it can destroy your culture. It amounts to extermination. Instead, you must work for integration through a kind of ‘structural affirmative action.’”
“Second, you must always be united. Unity is critical to delivering a clear message to your government, and for receiving messages from your government or other groups who might assist your cause. Be well-organized, but avoid at all cost, slipping into a privileged group and eating the big cake.”
“Third, use the existing legal frameworks. Everything must be done officially. This approach demonstrates your commitment to a fair process.”
“Fourth, engage constructively with authorities at all levels. There is no point to militancy, as it only begets militancy. Good lawyers are essential here as is professional structured engagement.”
“Fifth, in extreme cases do not take it lying down, jump from the local level and internationalize the issue. Use international organizations and international law to apply pressure on your government to implement the law. Tickle the mind of decision makers.”
Nubians are conscious that their case could have far-reaching implications for other marginalized groups in Kenya and Africa as a whole. Their example should also be a source of hope and encouragement for stateless communities struggling to claim their rights all over the world.
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Twice the size of the U.S. state of Nevada in land mass, Kenya spans the equator and, with the Indian Ocean running along its southeast coast, shares borders with Somalia, Ethiopia, Tanzania, Uganda, and Sudan. The country is a regional hub for trade, finance, and communication. Kenya provides shelter to almost a quarter of a million refugees.
Within the multi-ethnic fabric of Kenyan society is a group of Nubians who have historically been denied citizenship. Now numbering approximately 100,000 persons, their Sudanese ancestors either migrated or were forcibly moved to Kenya over a hundred years ago as conscripts of the British Army. When the British left Kenya, there was no provision for the Nubians for resettlement or land ownership in Kenya. Since they were not considered British citizens or protected persons under colonial rule, they could not access citizenship under the Kenyan Constitution. For nearly a century they have suffered the attendant consequences of statelessness, such as absence of legal protection, vulnerability to abuse and harassment, denial of land ownership, and lack of equality in access to social services.
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The UN has published a report by the Independent Expert on Minority Issues, Gay McDougall, entitled, 'Promotion and Protection of all Human Rights, Civil,Political, Economic, Social and Cultural Rights, including the Right to Development.'
The document can be obtained at the following location: