THIRD SECTION DECISION

Transcription

1 THIRD SECTION DECISION Applications nos /12 and 30415/12 István FEHÉR against Slovakia and Erzsébet DOLNÍK against Slovakia The European Court of Human Rights (Third Section), sitting on 21 May 2013 as a Chamber composed of: Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Nona Tsotsoria, Johannes Silvis, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above applications lodged on 8 March 2012 and 7 May 2012 respectively, Having deliberated, decides as follows: THE FACTS 1. The applicants belong to the Hungarian minority living in Slovakia and they are currently Hungarian nationals. The applicant in application no /12, Mr István Fehér ( the first applicant ), was born in 1960 and lives in Komárno. The applicant in application no /12, Ms Erzsébet Dolník ( the second applicant ), was born in 1940 and lives in Levice. They were represented before the Court by Mr Z. Lomnici, a lawyer practising in Budapest.

2 2 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION A. The circumstances of the case 2. The facts of the case, as submitted by the applicants, may be summarised as follows. 1. The first applicant s case 3. On 14 November 2011 the first applicant informed the Nitra District Office that he had acquired Hungarian citizenship on 15 September Referring to Article 5 2 of the Constitution, he indicated that he did not wish to give up his Slovak citizenship and wanted to continue living and working in Slovakia as a Slovak citizen respecting the Constitution and the laws of the Slovak Republic. 4. On 22 November 2011 the District Office asked the first applicant to complete and return a notice confirming his loss of Slovak citizenship. 5. On 14 December 2011 he informed the District Office that he was not willing to comply with the above request, as the relevant provisions of the Citizenship Act 1993 were contrary to Article 5 2 of the Constitution. 6. On 13 February 2012, in the absence of any reply, the first applicant reiterated his arguments. He also referred to the fact that he had not been formally notified of his loss of Slovak citizenship. 7. On 24 February 2012 the District Office informed the first applicant that the relevant authorities had been notified that he had lost Slovak citizenship on the basis of his letter indicating that he had acquired Hungarian citizenship. He was reminded that his Slovak passport and identity card had become invalid and had to be returned to the authorities. In cases where persons had voluntarily opted for the citizenship of a different State, they lost their Slovak citizenship ex lege. The Slovak authorities were therefore not required to issue a formal certificate to that effect. 8. In a letter the first applicant asked his local authority, the Komárno Municipal Office, why he had not been notified along with the other electors of an upcoming parliamentary election scheduled for 10 March In its response of 23 February 2012 the Municipal Office informed him that the law obliged it to delete from the electoral register all persons who had lost Slovak citizenship. 10. In a different letter of 23 February 2012 the Municipal Office informed the first applicant that it had been notified by the District Office on 27 December 2011 that he had lost Slovak citizenship. He was advised to address his request for a certificate of his permanent address to the relevant department of the police, who kept a register of foreigners permanently residing in Slovakia. 11. The first applicant s employer made his continued employment conditional upon his compliance with the statutory obligations imposed on

3 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION 3 foreigners residing in Slovakia and his adherence to the social security insurance scheme. 12. The first applicant experienced health problems owing to stress resulting from the above. 2. The second applicant s case 13. On 25 August 2011 the second applicant informed the Nitra District Office that she had sworn an oath of allegiance and obtained Hungarian citizenship on 18 August She further declared that she was not renouncing her Slovak citizenship and that she wished to continue living in Slovakia and respecting its laws. 14. On 4 January 2012 the second applicant asked the District Office to issue her with a Slovak citizenship certificate. She reiterated her intention to remain a Slovak national and argued that under the Constitution, no one could be deprived of Slovak citizenship against his or her will. 15. On 16 January 2012 the District Office advised the second applicant that under section 9(1)(b) of the Citizenship Act 1993, persons who had voluntarily acquired a different State s citizenship automatically lost Slovak citizenship. The District Office therefore issued no certificates in that respect. 16. On 17 February 2012 the second applicant asked her local authority, the Levice Town Office, why she had not been notified along with the other electors of the upcoming parliamentary election. 17. On 20 February 2012 the Town Office informed the second applicant that it had been notified by the District Office that she had lost Slovak citizenship. On that basis, and in accordance with the relevant law, the Town Office had deleted her from the electoral register. She was therefore disallowed from voting in the parliamentary election on 10 March Her complaint was dismissed as being totally devoid of merit, with reference to the fact that she had lost Slovak citizenship. 18. On 1 March 2012 the second applicant complained to the District Office that she had received no official notification of her loss of Slovak citizenship. She was thereby prevented from seeking redress from the Slovak authorities. 19. On 18 April 2012 the District Office informed the second applicant that, following her letter of 25 August 2011, it had notified the relevant authorities, namely the local authority in which she lived, the police, the tax and customs offices, and the institutions in charge of social and public health insurance, that she had lost Slovak citizenship. The law did not oblige the District Office to issue a certificate confirming loss of citizenship, as it took effect ex lege. 20. The Levice District Police repeatedly informed the second applicant that, following her loss of Slovak citizenship, she was required by law to return her national identity card. She replied that she had received no

4 4 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION official notification of her loss of Slovak citizenship and still considered herself to be a Slovak national. She pointed out that a group of members of parliament had initiated proceedings to determine whether the relevant statutory provisions conformed to the guarantees of the Constitution. 21. The police also asked the second applicant to return her Slovak passport, which had become invalid following her loss of Slovak citizenship. Her failure to do so was susceptible of constituting a minor offence, for which a fine up to 33 euros (EUR) might be imposed. 22. The second applicant replied that she considered herself to be a Slovak citizen and therefore saw no reason for returning her identity card and passport. B. Relevant domestic law and practice 1. The Constitution 23. Pursuant to Article 5 1, the circumstances under which persons acquire and lose Slovak citizenship are to be stipulated by law. 24. Article 5 2 provides than no person may be deprived of Slovak citizenship against his or her will. 2. Citizenship Act 1993 (Law no. 40/1993, as amended) 25. The Citizenship Act 1993 (Zákon o štátnom občianstve Slovenskej republiky), as amended with effect from 17 July 2010, contains the following relevant provisions. 26. Section 9(1) provides: Citizenship of the Slovak Republic may only be lost: (a) by means of release upon one s own request; (b) upon acquiring a foreign State s citizenship by way of an explicit expression of intent. 27. Section 9(16) provides that a person loses Slovak citizenship on the same day he or she voluntarily acquires the citizenship of a foreign State by way of an explicit expression of intent such as a request, declaration or any other action directed at acquiring the citizenship of a foreign State. 28. Subsections (17) and (18) of section 9 provide exceptions to the above, namely where a person acquires foreign citizenship (i) by marriage to a foreign national, provided that the person acquires the foreign citizenship during the marriage, or (ii) by birth. 29. Pursuant to section 9(19), persons who lose their Slovak citizenship under section 9(16) are obliged to notify their local district office without delay. 30. Section 9(20) read in conjunction with section 9(14) obliges the relevant district office to notify the following authorities of the person s loss

5 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION 5 of Slovak citizenship under section 9(16): the local authority in which the person resides, the police, the tax and customs offices, and the institutions in charge of social and public health insurance. 31. Section 9b(1)(d) provides that a minor offence has been committed if a person fails to comply with the obligation under section 9(19), namely to notify the district office about their loss of Slovak citizenship without delay. 32. Section 9b(2) renders such an offence punishable by a fine of up to EUR 3, Relevant domestic practice 33. On 22 September 2011 thirty members of parliament claimed before the Constitutional Court that sections 9(1)b, 9(16), 9(19), 9b(1)(d) and 9b(2) of the Citizenship Act 1993 were contrary to Article 5 1 and 2 of the Constitution, Article 6 1 of the Convention, and Article 11 of the European Convention on Nationality. 34. On 4 July 2012 the Constitutional Court at its plenary session declared the motion admissible. 35. The proceedings on the merits are pending. C. Other relevant documents 1. European Convention on Nationality 36. The European Convention on Nationality (CETS No. 166) entered into force in respect of Slovakia on 1 March Its relevant provisions read as follows: Article 3 Competence of the State 1. Each State shall determine under its own law who are its nationals. 2. This law shall be accepted by other States in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognised with regard to nationality. Article 4 Principles The rules on nationality of each State Party shall be based on the following principles: (a) everyone has the right to a nationality; (b) statelessness shall be avoided; (c) no one shall be arbitrarily deprived of his or her nationality;... Article 5 Non-discrimination 1. The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin....

6 6 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION Article 7 Loss of nationality ex lege or at the initiative of a State Party 1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: (a) voluntary acquisition of another nationality;... Article 11 Decisions Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality contain reasons in writing. Article 12 Right to a review Each State Party shall ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law.... Article 15 Other possible cases of multiple nationality The provisions of this Convention shall not limit the right of a State Party to determine in its internal law whether: (a) its nationals who acquire or possess the nationality of another State retain its nationality or lose it; Hungarian Citizenship Act With effect from 26 May 2010 the Hungarian Citizenship Act (Law no. LV of 1993) was amended. Its section 4(3) provides for naturalisation, upon request and on preferential terms, of non-hungarian nationals with an ascendant of Hungarian nationality or who can plausibly show their Hungarian origins and provide proof of their knowledge of the Hungarian language. COMPLAINTS 38. The applicants complained that they had been deprived of their Slovak citizenship contrary to Article 5 2 of the Constitution. That legislation was not accompanied by any procedural guarantees permitting them to seek the protection of their rights. As a result, they had been excluded from the parliamentary election and had encountered practical difficulties related to their social security insurance. The Komárno Municipal Office had refused to certify that the first applicant had his permanent address in the town. The applicants alleged a breach of Articles 13 and 14 of the Convention, of Article 1 of Protocol No. 1 and of Article 1 of Protocol No. 12 in the context of the above.

7 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION 7 THE LAW A. Joint examination of the applications 39. In view of their similar factual background and the legal issues raised, the Court considers it appropriate to examine both applications jointly. B. Complaint about the loss of Slovak nationality 40. The substance of the applicants complaints relates to the fact that contrary to their wish to retain Slovak citizenship, they lost it after they had acquired Hungarian citizenship. 41. In that connection, the Court reiterates that a right to nationality similar to that in Article 15 of the Universal Declaration of Human Rights, or a right to acquire or retain a particular nationality, is not guaranteed by the Convention or its Protocols. Nevertheless, the Court has not excluded 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. Since the Convention guarantees no right to nationality, the question whether a person was denied a State s nationality arbitrarily in a way susceptible of raising an issue under the Convention is to be determined with reference to the terms of the domestic law (for a recapitulation of the relevant case-law see Kurić and Others v. Slovenia [GC], no /06, 353, ECHR 2012; Genovese v. Malta, no /09, 30, 11 October 2011; Fedorova v. Latvia (dec.), no /01, 9 October 2003; Karassev v. Finland (dec.), no /96, ECHR 1999-II; Fedorova v. Latvia (dec.), no /01, 9 October 2003; and, mutatis mutandis, Slivenko and Others v. Latvia (dec.) [GC], no /99, 77, ECHR 2002-II; all with further references). 42. In the present case, the applicants did not rely on their rights under Article 8 of the Convention. In any event, the Court notes that they opted for Hungarian citizenship of their own free will at a time when the relevant provisions of the Slovak Citizenship Act 1993 were in force. Accordingly, they decided to acquire Hungarian citizenship while being aware of the consequences which such a decision would entail under Slovak law. Thus they were not denied Slovak citizenship arbitrarily in view of the applicable legal provisions. In these circumstances, and in view of the documents before it, the Court discerns no issue under Article 8 of the Convention which it should examine of its own initiative. 43. It follows that the complaints relating to the loss by the applicants of their Slovak citizenship and the breach of their rights under Article 5 2 of the Constitution and Slovakia s undertakings under international instruments other than the Convention is incompatible ratione materiae

8 8 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION with the provisions of the Convention within the meaning of Article 35 3 (a) and must be rejected in accordance with Article C. Alleged breach of Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14 of the Convention 44. The applicants complained that, following their loss of Slovak nationality, they had experienced difficulties as regards their adherence to the Slovak social security system. They relied on Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14 of the Convention. 45. The Court has held that benefits under a State s social security system may, under certain circumstances, attract the guarantees of Article 1 of Protocol No. 1, and that unjustified denial of such benefits on the ground of a person s nationality is contrary to Article 14 in conjunction with Article 1 of Protocol No. 1 (see Andrejeva v. Latvia [GC], no /00, 77-92, ECHR 2009). 46. However, the applicants, apart from referring to difficulties as regards their social security insurance, did not specify the facts which they considered to have resulted in a breach of the provisions at issue. In that respect their complaints are unsubstantiated. 47. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. D. Complaints about the applicants exclusion from the parliamentary election and the refusal to issue the first applicant with a certificate of his permanent address 48. The applicants complained that they had been disallowed from voting in the parliamentary election held in March The Slovak authorities deleted the applicants from the parliamentary electoral register as they had lost Slovak citizenship. While it is true that Article 3 of Protocol No. 1 implies individual rights, including the right to vote, for the reasons set out in paragraphs above the Court finds that no issue arises under that provision as a result of the fact that the applicants lost their Slovak citizenship ex lege upon their decision to acquire Hungarian citizenship. Furthermore, no right can be derived from Article 3 of Protocol No. 1 for foreigners to participate in the election of the legislative body of a State of which they are not citizens (see Makuc and Others v. Slovenia (dec.), no /06, 31 May 2007, 206 and 208, with further references and, for a broad recapitulation of the relevant principles established under the Convention and other international instruments,

9 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION 9 Sitaropoulos and Others v. Greece [GC], no /07, and 63-68, ECHR 2012). 50. The first applicant also complained that the Komárno Municipal Office had refused to issue him with a certificate that he permanently resided in the town. 51. The Court notes that the municipal authority advised the first applicant to address his request to the police who registered the stay of foreigners in Slovakia (see paragraph 10 above). It does not appear from the documents submitted that in that context the first applicant encountered any difficulties capable of raising an issue from the viewpoint of his rights under the Convention and its Protocols. 52. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention. E. Alleged breach of Article 1 of Protocol No The applicants further complained that the general prohibition of discrimination laid down in Article 1 of Protocol No. 12 had been disregarded in their case. 54. The Court notes that Slovakia signed but has not yet ratified Protocol No. 12 to the Convention. It has therefore not entered into force in respect of the respondent State. 55. It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 3 (a) and must be rejected in accordance with Article F. Alleged breach of Article 13 of the Convention 56. The applicants complained under Article 13 of the Convention that they had no effective remedy at their disposal as regards the alleged breach of their rights. 57. The Court observes that Article 13 of the Convention requires domestic legal systems to make available an effective remedy empowering the competent national authority to address the substance of an arguable complaint under the Convention. The Court refers to its conclusion above that the complaints raised by the applicants were inadmissible. They are consequently not arguable for the purposes of Article It follows that the complaint under Article 13 is manifestly ill-founded and must be rejected in accordance with Article 35 3 (a) and 4 of the Convention.

10 10 FEHÉR v. SLOVAKIA AND DOLNÍK v. SLOVAKIA DECISION For these reasons, the Court unanimously Decides to join the applications; Declares the applications inadmissible. Marialena Tsirli Deputy Registrar Josep Casadevall President