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Victory for the Erased at the European Court of Human Rights

Tuesday, July 20, 2010

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:

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=871256&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

562
13.07.2010


Press release issued by the Registrar
Chamber judgment1

Kuric and Others v. Slovenia (application no. 26828/06)

SLOVENIAN AUTHORITIES FAILED TO COMPLY WITH CONSTITUTIONAL COURT DECISIONS CONCERNING “ERASED” PEOPLE
Unanimously
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

Principal facts

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

Admissibility

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.

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