In our “Case Watch” reports, lawyers and staff at the Open Society Justice Initiative provide quick-hit analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.
Velimir Dabetic almost didn't make it to the Grand Chamber of the European Court of Human Rights on July 6, despite his status as an applicant in Kuric and Others v. Slovenia, a case focused on the legal plight of some 25,000 people who were struck off Slovenia's registry of permanent residents in 1991.
Known as "the erased," many of the 25,000 still lack legal status. Some of them, like Dabetic, remain statelessness; he was only able to travel to Strasbourg with a temporary travel identity document issued after the intervention the president of the Grand Chamber.
The erased were citizens of the Socialist Federal Republic of Yugoslavia who resided in Slovenia when the federation broke up. Within the former Yugoslavia, federal citizenship was paramount; many Yugoslav citizens would be legal residents of a republic without being a citizen of that republic.
Following the dissolution of the federation, republican citizenship became essential. Slovenia opted to give all of its residents a prescribed period in which to apply for permanent residency or for citizenship. Failure to do so resulted in the removal of legal residents from the registry rolls. Despite these extreme consequences, many of the erased were not made aware of the six-month deadline or its import at the time.
The applicants argue that as a result they were arbitrarily deprived of the possibility of acquiring Slovenian citizenship, as well as the immediate ability simply to maintain their legal status—in violation of Article 8 of the European Convention of Human Rights, which protects the right to private and family life.
Under a robust body of European and international law, states must afford strong protections to individuals on their territory to avoid creation of statelessness in instances of state succession—when one state entity replaces another—a fact that the Grand Chamber must consider when determining the proportionality of an interference with the applicants’ Convention rights.
The applicants are also seeking to have the Grand Chamber consider separately their Article 14 discrimination claim, asserting that the erasure disproportionately impacted non-Slovenian Yugoslavians, as compared to third-country aliens permanently residing in Slovenia at the time the 1991 law took effect.
In a July 2010 decision, the lower ECHR chamber agreed unanimously that the Slovenian government had breached its obligations under Articles 8 and 13 of the ECHR, but declined to consider separately the issue of discrimination under Article 14. Acknowledging that the European Convention did not guarantee a right to citizenship, the Court nonetheless found that the longstanding, intimate connections of the applicants with Slovenia constituted "private life" within the meaning of Article 8.
Going even further, it also stated that “especially in cases of statelessness… the prolonged refusal of Slovenian authorities to regulate the applicants’ situation comprehensively… [and] in particular the failure to pass appropriate legislation… constitutes a violation of the applicants’ right to private and/or family life.” Slovenia referred the chamber decision to the Grand Chamber, seeking a reversal.
Acting as a third party in Kuric, the Open Society Justice Initiative has submitted updated written comments (attached to our summary of the litigation on our website) to the ECHR arguing both that the Article 8 ruling should be affirmed and an Article 14 violation be found, taken in conjunction with Article 8.
A separate Article 14 finding could address an important gap in international human rights protection: deprivation of access to citizenship and problems of statelessness frequently arise from discriminatory practice, and in this instance, the practice of the government demonstrates that certain subgroups of people were targeted—non-ethnic Slovenes, Yugoslav minorities, and Roma. The intersection of discrimination and access to and enjoyment of the human right to nationality is a central concern of the Open Society Justice Initiative’s Equality and Citizenship project.
At the hearing in Strasbourg, the applicants’ counsel opened with a forceful argument squarely framing the deprivation of access to citizenship as an Article 14 violation. Evoking the ghosts that haunt the successor states to the former Yugoslavia, counsel for the applicants opened his arguments by calling the erasure of some 25,000 residents a “secret administrative cleansing operation.” His forceful phrasing was a reminder that Kuric arises out of state succession that evolved against a background of discrimination against ethnic and religious groups.
Slovenia’s discriminatory practices after its secession from the former Yugoslavia rendered Dabetic legally invisible and acutely vulnerable – as it did the other erased. After being eliminated from the registry rolls, they endured years of legal limbo resulting in hardships such as the loss of jobs and pensions, financial problems and impoverishment, ill health, and separation from family members granted Slovenian citizenship who continued to live in the country. Despite being allowed to travel to the Stasbourg court hearing, his temporary travel document expires this month.
In spite of these hardships, the Slovenian government challenged the victim status of the applicants in Kuric, arguing at last week’s hearing that the Grand Chamber should strike the case without considering the substance of the applicants’ claims. This result—effectively “erasing” the chamber decision—would unravel a rare victory for one of the world’s most vulnerable groups: non-citizens.
Dabetic’s journey to Strasbourg gives the lie to the notion that the effects of the erasure have been meaningfully repaired; a favorable finding by the Grand Chamber could be the first step toward a real and comprehensive remedy.