What might the Grand Chamber of the European Court of Human Rights decide in Kurić and Others v. Slovenia?

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1 What might the Grand Chamber of the European Court of Human Rights decide in Kurić and Others v. Slovenia? Essay Samo Bardutzky 1 Contents 1. Introduction Background of the Case The Facts of the Case The Chamber Judgment Admissibility Merits Article Articles 13 and 14 in conjunction with Article Articles 46 and Request for referral to the Grand Chamber Exhaustion of domestic legal remedies (Paras of the Request) Statelessness (Paras of the Request) General measures (paras of the Request) Status of a victim in the sense of Article 35 of the Convention (Paras. 60 and 61 of the Request) Prospects of the respondent government s objections Exhaustion of domestic remedies General and individual measures Objections regarding statelessness Conclusion Researcher at University of Ljubljana, Faculty of Law; Senior Legal Advisor to the Ministry of Justice of the Republic of Slovenia, assigned to the team of the Agent of Government before the Grand Chamber of the European Court of Human Rights in case Kurid and others v. Slovenia. The views expressed in this essay are the author's personal views and not official positions of the institutions or parties mentioned above.

2 1. Introduction At the moment of submission of this essay the fate of the Kurid and others case (hereinafter, the Case) will still be unknown. The judgment of the Chamber of the European Court of Human Rights (hereinafter, Chamber judgment) was issued on 13th July 2010, 2 however the referral to the Grand Chamber was accepted. 3 The hearing before the Grand Chamber is scheduled for the 6th July 2011, which means that by the time this essay is discussed in group, the final decision will have been published. The goal of this essay is not to predict correctly what the decision of the Grand Chamber will be; the verb might was instead chosen for the title of this essay on purpose, to stress that its purpose is to assess the arguments of the parties and of the Chamber in light of the repeat procedure. This poses the imminent danger of slipping into speculation. However, even if trying to anticipate the framework of argument that will be used by the Court always borders on speculative thinking, the method of this piece will be in drawing logical conclusions from the existing case law and factual circumstances of the Case, so that another way to read the title of the essay could also be by reading might as should. This essay, at the moment, does not comply fully with the formal requirements of academic writing. Several citations refer to materials that were available to the author (see note 1) but they are at the moment not generally available: the request of the respondent government, its position in the procedure before the Grand Chamber and the position of the applicants in the procedure before the Grand Chamber. These documents would be available to the public under Slovenian law on access to information should anyone request that their disclosure. More importantly, the content of these documents will be presented in the Grand Chamber judgment and therefore easily referred to. The structure of this essay is as follows: in the first part, the background of the case will be presented, drawing from both the arguments and findings in the judgment of the Chamber and other (mostly media) sources. Second, the essay strives to give a comprehensive overview of the Chamber judgment, including the parties arguments pertaining to several issues dealt with in the judgment. Third, the arguments from the respondent government s successful request for a referral to the Grand Chamber are presented. Fourth, the arguments of the respondent government in the request for a referral are critically assessed. This is done with the help of the arguments presented in the written observations submitted by the applicants. 2. Background of the Case 2 Application no /06. 3 Press release issued by the Registrar of the Court no. 218 of 15 March 2011, available at: &key=89038&sessionId= &skin=hudoc-pr-en&attachment=true.

3 The background of the Case is the highly politically sensitive issue of the erasure of permanent residents of Slovenia in February 1992 (which will be explained in more detail infra). What has lead the Chamber to find Slovenia in violation of Convention rights, however, is not only the act of the erasure itself, but the situation out of which it arose and the implications in the following twenty years. It is nevertheless undisputable that the violations suffered by the applicants can be traced back to the act of erasure. The political sensitivity of the erasure is linked to the fact that it happened eight months after the declaration of independence of Slovenia, which was followed by a short lasting armed conflict between Slovenians and the Yugoslav federal army that opposed the breakup of Yugoslavia. Doubtlessly illegal, it was one of the acts in the process of establishing a new state and more precisely, building a corpus of its citizens and deciding who may be present on its territory. It bears ethnic connotations as many of the erased were people from other parts of former Yugoslavia who settled in Slovenia after World War II. This stirs up negative emotions mostly on the right wing pole of the political spectrum and high level right wing politicians have implied that the erased were disloyal to the emerging Slovenian state. 4 These emotions peaked at a national referendum on a law that intended to remedy the situation in 2004: with 31,54% turnout, 94,56% of the voters were against its implementation The Facts of the Case The complaints were initially lodged by eleven applicants. One of them, Mr Makuc, died in the course of the proceedings and his cousin was denied locus standi. 6 Two applicants (Mr Petreš and Mr Jovanovid) were issued ex officio supplementary residence permits and were therefore not considered victims by the Chamber. 7 Eight applicants' complaints under Articles 8, 13 and 14 of the Convention were declared admissible by the Chamber. 8 Mr Jovanovid and Mr Tripun Ristanovid are citizens of Bosnia and Herzegovina; Ms Mezga is a citizen of Croatia; Mrs Ljubenka Ristanovid, Mr Berisha and Mr Minid are Serbian citizens; Mr Dabetid and Mr Ademi are stateless persons. 9 Before the declaration of independence of Slovenia, the applicants were all citizens of the Socialist Federal Republic of Yugoslavia (SFRY) and citizens of one of its constituent republics, but not Slovenia. They all had permanent residence in Slovenia. Possession of permanent residence in the Yugoslav system, was linked to full enjoyment of various civil, social, economic and even political rights. 10 After the independence of Slovenia, citizens of Slovenia automatically acquired the citizenship of the newly independent state. Pursuant to Article 40 Citizenship Act, citizens of other Yugoslav republic with permanent residence in Slovenia that in fact resided in Slovenia were given a possibility to acquire the citizenship of Slovenia if they applied for it within six months after 25 June 1991, when the Act entered into force. 11 It is disputed whether documents from other SFRY republic 4 Lungescu, Oana: Slovenia's surge of nationalism, Story from BBC NEWS, 13 April 2004, available from: 5 Chamber judgment, para Chamber judgment, para. 277, first sentence of the operative part of the judgment. 7 Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para. 35.

4 had to be enclosed with the application ,132 persons applied for and were granted citizenship under Article 40 Citizenship Act; around 11,000 persons left Slovenia. 13 To the other citizens of other republics of SFRY, the Aliens Act became applicable on 26 February 1992 (upon expiration of the mentioned deadline) or when the decision denying them citizenship became final. 14 They were consequently erased (hence term 'erasure') from the Register of Permanent Residents and transferred into the Register of Aliens without Residence Permit. 15 On 4 February 1999, the Constitutional Court found Article 81 of the Aliens Act unconstitutional. 16 This lead the National Assembly to adopt the Act on Regularisation of the Legal Status of Other Successor States to the Former SFRY in Slovenia 17 (hereinafter: ZUSDDD). This act laid down simpler requirements for acquiring an ex nunc permanent residence permit (compared to the requirements pursuant to the Aliens Act, that no longer applied to the persons affected by the erasure). 18 Different provisions of this Act has so far been amended twice (in 2000 and 2010), and various provisions were twice set aside by the Constitutional Court 19 which also ordered the Ministry of Interior to issue the erased decisions declaring them permanent residents ex officio. 20 More than four thousands such decisions were issued solely on the basis of this order. 21 A response by the legislature was to adopt an act to execute the Constitutional Court's order, but the entry into force of this act was blocked by referendum (see above text to footnote no. 5). The 2008 parliamentary elections saw the victory of left-wing parties that had promised the solution of the problem of the erased and on 8 March 2010 ZUSDDD was changed for the second time. 22 A referendum was again requested by opposition parliamentarians, but this time it was stopped by the Constitutional Court as it would result in unconstitutional consequences. 23 At the time of the consideration of the Chamber judgment, the amendments to the Act (ZUSDDD-B) had not yet entered into force. 24 Whereas ZUSDDD regulates the acquisition of permanent residence permits, in 2002 the Citizenship Act was also amended. This was to enable the acquisition of Slovenian citizenship under more favourable conditions to all aliens who had permanent residence in Slovenia on 23 December 1990 and had since lived uninterruptedly in 12 Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Decision of the Constitutional Court no. U-I-284/94, published in OdlUS VIII, 22, the version in English is available from 17 Zakon o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji (ZUSDDD) Official Gazzette no. 61/ Chamber judgment para Decision no. U-I-295/99-13, Official Gazzette no. 54/2000 and decision no. U-I-246/02-28, Official Gazzette no. 36/ Decision no. U-I-246/02-28, Official Gazzette no. 36/2003, sentence no. 8 of the operative part of the judgment. 21 Chamber judgment, para Zakon o spremembah in dopolnitvah Zakona o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji (ZUSDDD-B), Official Gazzette no. 50/ Decision no. U-II-1/10, Official Gazette no. 50/2010, the version in English is available from 24 It had been, however, adopted, and this issue shall be revisited infra.

5 the country. By the expiration of deadline on 29 November 2003, 2,959 applications were lodged and 1,747 persons acquired Slovenian citizenship by June Legislative referendum in the Slovenian constitutional system can only be called after a piece of legislation has been adopted by the National Assembly and before it enters into force. 26 In reviewing the demand for referendum, the Constitutional Court ascertains whether there is an unconstitutional legal void that would remain unfilled, should the law fail to pass to referendum. Only such a situation can justify the limitation of an encroachment on direct democracy. In the course of this procedure, the Court however tacitly checks the constitutionality of the law that is supposed to fill the existing legal void. Should the new law prove to fall short of the demands of the Constitution, the Constitutional Court would not prevent the referendum from taking place. 27 This way, the procedure that stopped the referendum also resulted in a confirmation for the legislature that the Constitutional Court was satisfied with the way the problem was solved. This was especially important as several previous attempts have proven to fall short of this task. What is often overlooked in legal analyses is the human dimension of the violations suffered by the applicants and, in this case, thousands of people affected by the erasure. The description of individual stories in the Chamber judgment does not give a full impression of the sufferings endured. 28 Erasure (directly or indirectly) made people some homeless or out of work. By losing access to the health system, some people were unable to get treatment for serious diseases. Some people were sent to the other republics of former SFRY, poor and warring countries to which they only formally belonged as citizens. 4. The Chamber Judgment 4.1. Admissibility The situation in which individual applicants find themselves as a consequence of erasure, differs. The respondent Government therefore raised objections pertaining to all of them and further objections pertaining to individual applicants. The respondent government raised objection as to the compatibility of the application with the provisions of Convention ratione materiae, as the regulation of citizenship and residence was allegedly outside of the scope of the Convention, citing Üner v. the Netherlands. 29 Further, it objected as to the Court s jurisdiction ratione temporis as the erasure took place before the Convention entered into force with respect to Slovenia, 30 and, refering to Posti and Rahko v. Finland, alleged non- 25 Article 19 of the Act Amending the Citizenship Act [Zakon o spremembah in dopolnitvah zakona o državljanstvu Republike Slovenije] (ZDRS-Č), Official Gazzette no. 96/2002; Chamber judgment, paras. 55 and ZRLI Art. 21 Act on Referendum and Popular Initiative, Official Gazzette no. 26/2007, 22/2009, 34/ Nerad, Sebastian in Kaučič, Igor (ed.): Legislative Referendum [Zakonodajni referendum], 2010, p Chamber judgment, paras. 43 and on. An interview with one of the applicants was published in Equal Rights Review, Volume One (2008), p. 68, available at: 29 Chamber judgment, para Chamber judgment, para. 279.

6 compliance with the six-month rule (Article 35 par. 1 Convention), the situation could not be construed as a continuing situation. 31 The respondent Government maintained that the applicants failed to exhaust domestic legal remedies both with regard to permanent residence permits as well as citizenship. They could have made use of the constitutional complaint and had their cases heard by the Constitutional Court. The effectivity of this remedy was proven in several cases considering the erased. 32 The Court followed the applicants view (Chamber judgment, para. 290 and on) on the objection ratione temporis and the six-months rule, relying on its position in Hutten-Czapska v. Poland: the Court in examining the facts may have regard to the facts prior to ratification inasmuch as they could be considered to have created a continous situation extending beyond that date or may be relevant for understanding of facts occuring after that date. In cases of continous situations, the six-month rule is not applicable. 33 The Court also refused the objection of non-exhaustion of domestic remedies, as the applicants essentially complain about the lack of compliance with the decisions of the Slovenian Constitutional Court. 34 Regarding admissibility, the Court ruled on several questions regarding one or more individual applicants. As mentioned before, it found the complaints of Mr Petreš and Mr Jovanovid inadmissible as they were issued ex officio supplementary residence permits on the basis of point no. 8 of the operative part of the Constitutional Court decision. 35 The Court found that the material facts complained of by the applicants have ceased to exist and that the issuing of the retroactive residence permits in line with the Constitutional Court s decision, constitutes an adequate and sufficient remedy for their complaints under Articles 8, 13 and 14, therefore they can no longer be seen as victims. 36 The responding government claimed that Mr Kurid, Mr Dabetid, Mr Ristanovid and Mrs Ristanovid had never applied for residence permits. Mr Ademi s application had been rejected for lack of evidence and Mrs Mezga s application for her lack of cooperation. Administrative dispute proceedings (judicial review of administrative action) brought by Mr Berisha and Mr Minid to contest the rejection of their applications are still pending. 37 The applicants argue that Mr Kurid and Mr Dabetid had used the domestic legal remedies at their disposal, so there seems to be a dispute on facts. With regard to Mr and Mrs Tripunovid, the applicants state that they did not fulfil the statutory conditions (as the legislation was not in line with the case law of the Constitutional Court) and therefore did not file their claims. The applicants find that the proceedings brought by Mr Berisha and Mr Minid could not be considered effective. 38 The Court only took a position with regard to Mrs Mezga, comparing it to the situation of Mr Petreš and Mr Jovanovid that had ceased to be victims once they were issued ex officio retroactive residence permits. As such a permit was not issued to Mrs Mezga, her complaint remains admissible Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para ; text to footnote no. 20 supra. 36 Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para. 312.

7 4.2. Merits Article 8 Interference with the applicants rights under Article 8 The Court assessed the issue of violation of Article 8 of the Convention in two steps: by establishing that there was interference with the applicants rights (Article 8 paragraph 1) in the first step and, to answer the objections of the respondent government, 40 by denying the justification of the interference in the second step. The Court first had to determine whether the applicants were entitled to claim that they had a private or a family life in Slovenia. 41 At the outset, a State is entitled to control the entry of aliens into its territory and their residence there. 42 Such decisions can in particular cases amount to interference with the right under Article 8 of the Convention, especially when the measure in question would seriously impact the affected person's strong personal or family ties in the host country. 43 Citing the judgment in Pretty v. the United Kingdom, Article 8 also protects»the right to establish and develop relationships with other human beings and the outside world«(no. 2346/02, 61, ECHR 2002-III) and can sometimes embrace aspects of an individual's social identity. 44 The Court perceives 'private life' in the Convention sense also to include»the totality of social ties between settled migrants and the community in which they are living«. The explusion of a settled migrant can therefore amount to interference with the migrant's life. It depends on the circumstances in a particular case whether the focus will be on the 'family life' aspect or 'private life' aspect of the right pursuant to Article The Convention does not guarantee a right to acquire or retain a particular nationality/citizenship as such. However, its arbitrary denial might have such an impact on the private life of the individual that it will fall within the scope of Article Nevertheless, the Chamber does not exclude the possibility that an arbitrary denial of citizenship might, in certain circumstances, raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual. The Court further emphasizes that there are possibly positive obligations on the state to ensure effective respect for private and family life. 47 As the Chamber warned in the part of judgment that deals with admissibility, the decision on the Court's jurisdiction ratione temporis is inseparable from the decision on merits. The applicants' allegations concerning the lack of opportunity to acquire Slovenian citizenship in 1991 had already 40 Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Mikulid v. Croatia, no /99, 53, ECHR 2002-I. 45 Uner para. 59 and Slivenko para Chamber judgment, para (see X. v. Austria, no. 5212/71, Commission decision of 5 October 1972, DR 43, p. 69, Karassev v. Finland (dec.), no /96, ECHR 1999-II, Slivenko v. Latvia (dec.), cited above, 77, and Kuduzovid v. Slovenia (dec.), no /00, 17 March 2005). 47 Chamber judgment, para (see, for example, Gül v. Switzerland, 19 February 1996, 38, Reports 1996-I; Ignaccolo-Zenide v. Romania, no /96, 94, ECHR 2000-I; and Mehemi v. France (no. 2), no /99, 45, ECHR 2003-IV).

8 been declared inadmissible in Makuc and Others v. Slovenia. 48 However, before the 'erasure' took place, the applicants had been living in the territory of the Republic of Slovenia for several years:most of them for decades, some were even born there. And before the erasure, all of the applicants resided in Slovenian lawfully. 49 They did not enter the territory as aliens but as citizens of the SFRY. At the moment of the erasure on 26 February 1992, the applicants therefore had a stronger residence status than long-term migrants. 50 Even though the erasure had been carried out before the entry into force of the Convention and Protocol No. 1 in respect of Slovenia (28 June 1994), the applicants were and continue to be affected by it in the time period after The erasure was found unlawful for the first time by the Constitutional Court in Comparing the situation that the applicants found themselves in to circumstances»in the aftermath of the First and Second World War, or after the change in State boundaries in central and eastern Europe following the fall of the Berlin Wall«52, the Chamber concludes (emphasis added):»359. In view of the individual circumstances of the applicants who had all spent a substantial part of their lives in Slovenia (see paragraphs 83-86, 91-92, , 119, , , 145, 168, above), the fact remains that they had developed there the network of personal, social, cultural, linguistic and economic relations that make up the private life of every human being (see Slivenko, cited above, 96). Most of them have also developed family life in Slovenia or maintained ties with their family living in Slovenia (see Moustaquim, cited above, 36). The Court concludes that the applicants had a private and/or a family life in Slovenia at the material time within the meaning of Article 8 1 of the Convention. * Consequently, the Court considers that the prolonged refusal of the Slovenian authorities to regulate the applicants' situation comprehensively, in line with the Constitutional Court's decisions, in particular the failure to pass appropriate legislation (see paragraphs above) and to issue permanent residence permits to individual applicants, constitutes an interference with the exercise of the applicants' rights to respect for their private and/or family life, especially in cases of statelesness.«justification of the interference The Chamber focused on the demand for legality in assessing the possible justification of the interference. It set out the principles according to which this issue is to be assessed. Citing Slivenko, the measure should have some basis in domestic law. The law that represents a basis for the measure should be of quality, accessible to the person concerned and foreseeable as to its effects. 53 What is particularly important is that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. 54 In Kurid and Others, this is linked to the case law of the 48 Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para. 366, quoting Slivenko and Amann v. Switzerland *GC+, no /95, 52-54, ECHR 2000-II.

9 Slovenian Constitutional Court. The Chamber does not see any reason to depart from its decisions. 55 The Constitutional Court found that the erasure was unlawful since the Aliens Act had not foreseen the regulation of the status of the erased, who received no notification about the change in the status. This constitutes an infringement of the rule of law (Article 2 of the Constitution of Slovenia). 56 The unjustified different treatment of citizens of SFRY with permanent residence in Slovenia when compared to real aliens (citizens of countries other than SFRY that held permanent residence permits before the declaration of independence of Slovenia) breached the principle of equality. 57 In 2003, the Constitutional Court declared several provisions of ZUSDDD unconstitutional. 58 The Chamber recognised the efforts of the Slovenian authorities both to enable a large number of citizens of other republics of SFRY to acquire Slovenian citizenship after the declaration of independence as well as to bring the legislation in line with the case law of the Constitutional Court. 59 This, nevertheless, does not suffice. The amendments and supplements to ZUSDDD were adopted by the National Assembly on 8 March 2010 but they have not yet entered into force by the time the judgment was issued. Hence, 376. The Court notes that the dissolution of the SFRY and the fact that the registers of citizens in the SFRY were not always accurate created a special and complicated situation (see paragraphs 24, 27, 97, 174, 239 and 253 above). However, in the light of relevant international-law standards aimed at the avoidance of statelessness, especially in situations of State succession (see paragraphs , 267 and 272 above), and in view of its findings above, the Court finds that there has been a violation of Article Articles 13 and 14 in conjunction with Article 8 The conclusions of the Chamber with regard to the missing justification of the interference with the right to family and private life apply to the alleged violation of Article 13 as well. The applicants complained about the legislature s failure to adopt a systemic law which was indispensable for their full reintegration. 60 The Chamber found that the legislature has not fully complied with the decisions of the Constitutional Court and in view of the findings with regard to Article 8, the respondent Government failed to establish that the remedies at the applicants' disposal can be regarded as effective remedies. 61 The Chamber found that in view of its findings of a violation of Article 8, it was not necessary to rule on the applicants complaints under Article 14 taken in conjunction with Article Articles 46 and Chamber judgment, para. 373, quoting Jankovid v. Bosnia and Herzegovina, no. 5172/03, 16 May Chamber judgment, para. 367 and Chamber judgment, para Chamber judgment, para Hence, the attempt of the Slovenian legislature to remedy the situation of the erased failed. 59 Chamber judgment, para See also text to note Chamber judgment, para Chamber judgment, para Chamber judgment, para. 400.

10 The facts of the case disclose the existence of a shortcoming, consequence of which the remaining group of the erased are still denied their rights under Articles 8 and 13. This shortcoming may give rise to numerous subsequent well-founded applications. 63 The respondent State has an obligation to put an end to the breach and to make reparation for its consequences with a view of restitutio in integrum. If the national law does not allow or only allows partial reparation, the Court may afford the party appropriate satisfaction pursuant to Article In principle, the respondent State remains free to choose the means by which it will redress the violation, but it has to follow the Court s conclusions and remains under monitoring of the Committee of Ministers. 65 However, the Chamber was quite straightforward in explaining its view of the application of Article 46 in this case. As the violation in Kurid and Others is on account of the failure of the Slovenian legislature and administration to comply with the decisions of the Slovenian Constitutional Court, the appropriate general and individual measures, in view of the Chamber, are enactment of appropriate legislation and regulation of the situation of the individual applicants by issuing retroactive permanent residence permits. 66 The applicants claimed awards for pecuniary and non-pecuniary damage as well as the reimbursement of costs and expenses. With regard to pecuniary damage, the applicants with no income requested amounts that they would get in social allowances had they retained permanent residence. As in 1991, tenants in Slovenia in general had the opportunity to buy the apartments in which they lived under favourable conditions, those of the applicants who were unable to make use of this right (although they had it) as a result of the erasure claimed the current market value of their apartments. In addition, several applicants claimed compensation for costs that they had when they arranged documents and visa in other countries. 67 The respondent government considered the latter claims completely unfounded. With regard to social benefits, it held that the Court could not speculate about the outcome of individual proceedings. 68 The applicants claimed 200,000 EUR each in respect of non-pecuniary damage. This is due to dramatic and wide-ranging upheaval in their lives caused by the erasure (loss of employment, serious health problems...) and they had sustained forms of suffering recognized by the Court, such as pain, anxiety, feelings of instability, sadness because of xenophobia and absence of remedies. 69 The respondent government found this sum to be totally exaggerated in light of the Court s case law (Slivenko) and with regard to the average monthly income in Slovenia. 70 The Chamber considered that the question of compensation is not ready for decision. It must be reserved and fixed once it is known whether the parties have reached an agreement and what measures have been taken by the respondent State Chamber judgment, para Chamber judgment, para The Court quoted Scozzari and Giunta v. Italy [GC], nos /98 and 41963/98, 249, ECHR 2000-VIII; Assanidze v. Georgia *GC+, no /01, 198, ECHR 2004-II; Maestri v. Italy [GC], no /98, 47, ECHR 2004-I; and Viaşu v. Romania, no /01, 79, 9 December Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para Chamber judgment, para. 422.

11 5. Request for referral to the Grand Chamber The respondent government explicitly contested three elements of the Chamber judgment: 1. the dismissal of the government s objection regarding the (non-)exhausting of domestic legal remedies and consequently the Chamber holding the applicants Mr Dabetid, Mrs Ristanovid and Mr Tripunovid victims in the sense of the Convention; 2. the obligation on the part of the respondent state to secure the applicants the rights under Articles 8 and 13 through general and individual measures; 3. the finding of the Chamber that the respondent state caused statelessness. 72 As it was stressed by the applicants, this means that the Government accepts the remaining parts of the Chamber judgment. 73 The analysis in the continuation of this piece focuses on these three issues Exhaustion of domestic legal remedies (Paras of the Request) The respondent government seems to reiterate the objections that were unsuccessfully submitted to the Chamber. It emphasises the meaning of the constitutional complaint, which is heard by the Constitutional Court and has proven to be an efficient legal remedy in several cases of the erased persons, especially as the Constitutional Court in individual cases has ordered the administrative organs to enter the names of complainants back into the Register of Permanent Residents and ordered the administrative organ to issue a driver s license to a person who has been affected by the erasure. Especially important is the position of the Constitutional Court that the Administrative Court does not need to wait for the legislature to fill the unconstitutional legal void that was established by the former and can decide the cases of the erased persons following the instructions laid down by the Constitutional Court. In view of the respondent Government, the applicants failed to show the presence of extraordinary circumstances that would relieve them of the burden to exhaust domestic legal remedies Statelessness (Paras of the Request) The respondent government seems to be especially concerned that the position of the Chamber that the erasure caused statelessness might also affect the Chamber s demand for general and special measures that would remedy the statelessness. Attention is drawn to the fact that the complaint against statelessness was never brought in the framework of the domestic legal system. Article 40 of the Citizenship Act, if anything, caused dual citizenship rather than statelessness. This is a specific regime in the circumstance of the dissolution of the federal state and consequent state succession, as everyone in SFRY had a double citizenship: that of Yugoslavia and that of one (but only one!) of its constituent republics. This means that the dissolution of the state could in no case lead to statelessness. Also, the independence legislation followed the fundamental principle of Yugoslav citizenship law (each person can only maintain a link of citizenship with one of the republics): the citizenship of the newly created state was not simply conferred on a person regardless of its will. 72 Request of the Government of the Republic of Slovenia for referral of the case to the Grand Chamber, 12 October 2010 (hereinafter: Request), para Observations, para. 3.

12 In addition, the 2002 amendments to the Citizenship Act (Section 19 of ZDRS-Č) enabled all persons who were permanent residents of Slovenia on 23 December 1990 and had lived in Slovenia since to acquire Slovenian citizenship. The respondent government goes on to present the situation of the individual applicants. The most interesting cases are those of the two applicants that presented themselves in the application to the Court as stateless persons: Mr Dabetid and Mr Ademi. With regard to Mr Dabetid, the respondent government states that he applied for Slovenian citizenship pursuant to Section 19 ZDRS-Č, but his application was rejected as he did not prove that he was in fact living in Slovenia, and he never brought judicial review proceedings against this decision. Mr Sadik applied for Slovenian citizenship in 1992 and his application was rejected in 2005 as he did not fulfill the requirement of in fact living in Slovenia. He never brought proceedings of judicial review General measures (paras of the Request) The respondent Government draws attention to the timeline of the events surrounding the adoption of ZUSDDD-B on the one hand and the Chamber judgment on the other. ZUSDDD-B, which in the eyes of the respondent government remedies the situation completely and fits the criteria of the general and special measures that the respondent State is obliged to adopt. The law was adopted on 8 March A request for referendum was filed, but the Constitutional Court effectively prevented it in its decision that was declared on 15 June Chamber Judgment bears the date of 13 July 2010 and it states that the deliberations in private took part on the 22 June ZUSDDD-B was published in the Official Gazzette on the 24 June 2010 and entered into force one month later, on 24 July The respondent government asserts that ZUSDDD-B will be an appropriate legal basis for permanent residence permits to be issued in respect of the applicants should they decide to file for a permit. It represents legal basis for the issuing of both permanent residence permits and ex tunc (retroactive) supplementary decisions recognizing permanent residence to the erased from the point of the erasure. The respondent government addresses the issue of monetary compensation of the applicants (paras of the Request). The government argues against the Court granting just satisfaction to the applicants. The basic underlying argument is the non-exhaustion of domestic legal remedies with regard to monetary compensation. According to the respondent government, none of the applicants ever filed a compensatory lawsuit before Slovenian courts. The respondent government goes on to describe the legal framework for exerting compensatory claims in the Republic of Slovenia and asserts that it is for the courts of the state party to the Convention to adjudicate claims for monetary compensation. In each individual case, the Slovenian courts will assess first and foremost the causal link between the erasure and the damage and the scope of the damage Status of a victim in the sense of Article 35 of the Convention (Paras. 60 and 61 of the Request) In addition to the three main elements of the request for the referral, the respondent government also states that the general assessment of the Chamber that Slovenia has failed to adopt legislation that would regulate the status of the applicants in line with the Constitutional Court case law cannot lead to the conclusion that the victims of the violation are also persons that never applied for a permanent residence permit. Mr Tripunovid, Mrs Tripunovid and Mr Dabetid, unlike other applicants,

13 have never applied for residence permits. Just as the status of victim was denied to Mr Jovanovid and Mr Petreš that have obtained such permits, it should be denied to the three applicants in questions. 6. Prospects of the respondent government s objections 6.1. Exhaustion of domestic remedies It is submitted that there are basically two possible arguments for the applicants claim that they could not have been expected to exhaust domestic remedies in Slovenia. The first is non-compliance of the Slovenian authorities with the decisions of the Slovenian Constitutional Court that has been mentioned by the Chamber 74 (in the language of Article 35/I of the Convention, this is an issue of effectiveness and adequacy). The other possibility that has not been explicitly invoked is the accessibility of the legal remedies: only to take the example of Mrs Tripunovid and Mr Tripunovid that were deported from Slovenia in and have since lived in Serbia (a country isolated by the international community for a large part of the nineties) or Bosnia and Herzegovina (a country with an on-going brutal armed conflict at the time). With regard to the first argument, the finding of the Chamber in Paragraph 307 strikes us as slightly superficial. It does not mention the fact that there are two procedures through which an individual can access the Constitutional Court: the constitutional complaint (ustavna pritožba) that can be filed against judgments of lower courts on the one hand and the initiative for review of legislative acts (pobuda za presojo ustavnosti predpisov) on the other hand. 76 It is undoubtedly true that the legislator failed to comply with the decisions in which the Constitutional Court declared legislative acts that applied to the erased persons unconstitutional (in 1999, for reason of an unconstitutional legal void; in 2003, because of the requirements to acquire a permanent residence permit). When the Constitutional Court annuls a provision of a legislative act, the provision disappears from the legal system without any collaboration on the part of the legislature. When the Constitutional Court merely declares that a certain piece of legislation is in breach of the Constitution, there are no real means available with which it could force the National Assembly to adopt or amend a certain legislative norm. However, the respondent government stressed that the applicants should have filed a constitutional complaint to the Constitutional Court. As the prerequisite for a constitutional complaint is the exhaustion of all other legal remedies, this would entail a lengthy path through the Slovenian administrative and judicial system. In the end, the result of a successful constitutional complaint can be not only the quashing of the unconstitutional decisions of the lower court. The Constitutional Court is entitled either to grant the claimed petitum itself or to order other authorities to execute its judgment. 77 And this is what the Constitutional Court did in Up-333/96 and in Up- 60/97: in addition to quashing the judgments of the Supreme Court which rejected the complainants 74 Chamber judgment, para. 307, quoting Tokid and Others v. Bosnia and Herzegovina, paras. 57 and 58.) 75 Observations, para Articles 22 and 50, Constitutional Court Act *Zakon o Ustavnem sodišču+, Official Gazette no. 64/07 (official consolidated text). The English translation is available from: 77 Article 60 Constitutional Court Act.

14 pleas as there was no statutory basis to grant them, it ordered the administrative authorities to enter the complainants names in the register of permanent residents until legislation is brought in line with the case law of the Constitutional Court. 78 It is submitted that the constitutional complaint should be considered an effective legal remedy by the Court. This, however, leaves us with the issue of accessibility of the legal remedy. This was only (not even explicitly) mentioned by the applicants in the procedure before the Chamber with respect to Mrs Mezga, and the Chamber did not seem to deal with the argument once it found the legal remedies to lack efficiency. Should the respondent government succeed in convincing the Grand Chamber in the efficiency of the constitutional complaint, it is submitted that a lot will depend on how articulate the parties will be at the oral hearing with regard to its accessibility General and individual measures Was the request for referral regarding general and special measures even sensible? If the adoption of ZUSDDD-B fell in the period while Kurid and Others v. Slovenia was under deliberation by the Chamber and therefore did not affect its decision, would it not suffice simply to interpret the entry into force of ZUSDDD-B as fulfilling the obligation laid down on Slovenia in the operative part of the judgment? It should be considered that the Chamber explicitly (though briefly) acknowledged the adoption of ZUSDDD-B, but at the same time apparently this was not enough for the Chamber to find that the obligation on the part of Slovenia would be discharged with. A very plausible explanation for the reluctant attitude of the Chamber would be that it might have learned from the previous chapters of the story of the erased that an adoption of a legislative act in the Slovenian constitutional system does not necessarily mean that the act will ever enter into force. Even if the news of the decision of the Constitutional Court preventing a referendum from taking place had reached the Chamber on the 15 June, a week before their deliberations took place, this probably did not suffice to the Chamber. The applicants also stress that it would be too early for the Court to assess whether ZUSDDD-B achieves the result required by the Convention as there is no settled domestic practice or case law. 79 The applicants submit that so far (the Observations are dated 2 May 2011) twelve out of a hundred erased persons that lodged applications under ZUSDDD-B have seen them dismissed. The applicants position is that the question whether ZUSDDD-B really represents general measures that secure the right to private and family life to the applicants is in the jurisdiction of the Committee of Ministers, not the Grand Chamber. Explicitly, they oppose the idea that this would represent a serious question affecting the interpretation or application of the Convention or an issue of general importance in the sense of Article 43 of the Convention, thus justifying a referral to the Grand Chamber. 80 On the other hand, the applicants claim ZUSDDD-B to be prima facie an insufficient general remedy. 81 This is because an erased person, in order to obtain a permanent residence permit, has to file an application, pay an administrative fee of 75 euro, prove that her application meets the statutory requirements, provide costly official translation of documents supporting the application and attend a hearing. The most problematic requirement in ZUSDDD-B is 78 Decision Up-333/96, published in OdlUS VIII, 286 and decision Up-60/97, published in Up-60/ Observations, para Observations, para Observations, para. 31.

15 that the erased person had to live in Slovenia de facto. 82 In line with the decision of the Constitutional Court, the law now foresees a range of exceptions such as if the person left Slovenia as a consequence of the erasure. 83 If this absence lasted more than five years, then the person must be able to show that after five years she attempted to return to Slovenia. 84 The applicants state that Mr Dabetid and Mrs Ristanovid are not in a condition to satisfy the requirements of de facto living in Slovenia nor to rely on any of the exceptions provided. 85 In addition to that, the applicants hold the supplementary retroactive residence permit to be a piece of paper as it does not restore any rights that were withheld from the erased in the years when they were without a legal status. This goes especially for the right to monetary compensation of damages. 86 What then is the outlook of the respondent government s objection to the Chamber s order to adopt general and individual measures? It seems unlikely that the Grand Chamber would see the Chamber s decision to demand the adoption of such measures as erroneous. Given that ZUSDDD-B, the flagpole of the respondent government s arguments, was adopted in the beginning of March 2010 and still was not in force end of June 2010, the Grand Chamber might uphold the Chamber s skepticism towards Slovenian legislative endeavors. A different approach would only be imaginable if the legislation adopted by Slovenia had, in one way or the other, ex lege conferred upon the erased persons retroactively valid permanent residence permits and at the same time automatically recognized lump sum damages. This is what we can imagine as a prima facie appropriate general measure that might have satisfied the Grand Chamber and lead to the revocation of the contested order. However, this is far from reality. The applicants claim rather that ZUSDDD-B as a general measure is prima facie inappropriate and substantiate their claim by the fact that there are erased persons who remain unable to regularize their status even under the new law. It seems a lot will depend on how successful the respondent government will be in persuading the Grand Chamber to the opposite, i.e., that ZUSDDD-B established an efficient and just system that redresses those that have been affected and only rejects completely unfounded applications Objections regarding statelessness In objecting to the Chamber's position on statelessness, the respondent government refers to paras. 43, 317 and ZUSDDD Article 1 Paragraph ZUSDDD Article 1.č Paragraph ZUSDDD Article 1.č Paragraph Observations, para Observations, para In Paragraph 43, the Chamber states: As a result (of the erasure of their names from the register of permanent residents, note by author), the erased became aliens or stateless persons illegally residing in Slovenia. In Paragraphs 316 and 317, the wording of the Chamber judgment is: Under Article 8 of the Convention, the applicants alleged that they had been arbitrarily deprived of the possibility of acquiring Slovenian citizenship and/or of preserving their status as permanent residents after Slovenia declared its independence in 1991,

16 Paragraphs 43 and 317 are hardly relevant for the overall meaning of the Chamber judgment. Paragraph 43 is a part of the summarized chapter on the background of the case, where legal arguments are likely to be presented in a simplified manner. Paragraph 317, even if it is the part of the Court s assessment of the issue of violation of Article 8, presents the allegations of the applicants and not the Court s position. The only truly relevant paragraph which mentions statelessness is no It does not causally link statelessness to the 1992 erasure; it simply states that the people who were striped of their permanent residence, had it even worse when they were also without citizenship. This does not necessary mean that Slovenia is responsible for statelessness as the aggravating circumstance to the predicament that the erased are in (although it is undoubtedly responsible for the erasure). The nervous reaction of the respondent government was triggered by the way this finding was received in the international human rights community. 88 The complex legal situation in Kurid and Others was especially simplified in the blog post by Goldston: Striking though it was, Slovenia s erasure of thousands of persons, rendering them stateless, was not unique. And in relation to general and individual measures, Goldston remarks: Relatedly, in Kurid the Court found it sufficient as a remedy for the government to issue retroactive permanent residence permits. It left to another day the question of whether, with respect to persons who are otherwise stateless, that is sufficient or alternatively, whether citizenship itself the legal embrace of an individual by the political community he or she inhabits is an essential component of private life under Article It is not surprising that the government, in light of the obligation to adopt general and special measures, wanted to do away with unpredictability with regard to the interpretation of the Chamber judgment. The question remains whether it was the issue of statelessness that was decisive in the decision that the request for a referral be granted. From the analysis of the wording of the paragraphs where statelessness was mentioned the conclusion can be drawn that the issue of statelessness does not represent one of the crucial legal issues in this case. Furthermore, the question as to how it is possible that some of the applicants are stateless when the respondent government claims that each citizen of SFRY had a citizenship of one of the constituent republics and it is not possible that anyone would become stateless in the context of state succession. 90 The applicants claim that the practice of because they were not in a position to submit a formal request for citizenship within the short period set out in the domestic legislation. As a result, on 26 February 1992 their names had been unlawfully erased from the Register of Permanent Residents. Subsequently, the applicants had not been in a position to seek Slovenian citizenship or to apply for permanent residence in Slovenia. Some of the applicants were also unable to acquire citizenship of any other successor State of the former SRFY and have become, de facto, stateless persons. In Paragraph 361, the Chamber states: consequently, the Court considers that the prolonged refusal of the Slovenian authorities to regulate the applicants' situation comprehensively, in line with the Constitutional Court's decisions, in particular the failure to pass appropriate legislation (see paragraphs above) and to issue permanent residence permits to individual applicants, constitutes an interference with the exercise of the applicants' rights to respect for their private and/or family life, especially in cases of statelessness. 88 Request, para James A. Goldston, The Struggle Against Statelessness Advances in Strasbourg, July 21, 2010; 90 Request, para. 46.