Hoti v Croatia

Parties (including notable third parties)

Hoti (Applicant); Republic of Croatia (Respondent); United Nations High Commissioner for Refugees (UNHCR) (Third Party Intervener)

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Summary of Facts

In 1960, the Applicant’s parents fled Albania as political refugees and fled to Kosovo, which was part of the Socialist Federal Republic of Yugoslavia (‘SFRY’). The Applicant was born in Kosovo and moved to Croatia at 17 years old in 1979. In 1987, the Applicant applied for a permanent residence permit but was refused. At the time it was encouraged that Albanian refugees apply for SFRY citizenship rather than residence statuses as foreigners. The Applicant refused as he saw no benefit in acquiring SFRY citizenship. He remained and worked in Croatia on the basis of his documents from Kosovo, which provided a temporary residence status valid until 5 November 1991.

In 1991, Croatia became independent and the Applicant applied for Croatian citizenship which he was due to be awarded when he renounced his Albanian citizenship. The Applicant was unable to obtain a certificate of renunciation of Albanian citizenship and therefore his Croatian citizenship application was unsuccessful. In February 1995, he submitted a new citizenship application. This was refused in August 1995 on the separate grounds that he did not have a registered residence in Croatia for an uninterrupted period of five years.

In 2001, Mr Hoti applied for a permanent residence permit, arguing that he was employed and had sufficient means of subsistence and a strong interest to live in Croatia. His application was dismissed in 2003 on the basis that he did not meet the statutory requirements, including that he was not married to a Croatian national or permanent resident, he did not have three years of uninterrupted employment, and there was no interest of Croatia in granting him residence. The Applicant appealed this decision but was unsuccessful.

In the meantime, his temporary residence permit had been extended on humanitarian grounds for periods of one year. When extending his permit in 2013, the Applicant explained why he did not have a travel document of Kosovo which was a prerequisite to obtain an extension, but his application was refused.  The Applicant continued to challenge this decision domestically without success.

In 2015, the police granted the Applicant temporary residence status on humanitarian grounds for a further year and invited him to provide a travel document, but stressed that the Ministry had given consent to the extension irrespective of whether the Applicant provided a valid travel document. His status was extended again for a year in 2016.

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Legal Arguments

Legal arguments by the Applicant

The Applicant contended that he had been erased from the register of residence in Croatia. Thus, he had been denied Croatian citizenship as well as a legal status of residence in Croatia.

The erasure from the residence register and the lack of personal documents had led to his loss of access to social and economic rights, such as the right to work, the right to health insurance and to pension benefits. If identified by the police, he could be subject to detention for up to eighteen months and possibly to deportation. The Applicant also stressed that the Croatian authorities had failed to take any action to regularise the situation of the ‘erased’. The erasure also caused the inability to obtain or renew any identity documents, a loss of job opportunities, a loss of health insurance, and difficulties in regulating pension rights.

The Applicant also stressed that prior to Croatia’s independence he had lawfully resided there for 12 years and had enjoyed a range of rights.

Legal arguments by the Respondent

The Government argued that the Applicant was not stateless but a national of Albania, and that he did not take any action to renounce his Albanian citizenship in order to obtain Croatian citizenship.

In the Government’s view, it was for the Applicant, and not for the Croatian authorities, to renounce his citizenship or to show that he was stateless or to obtain a valid travel document from a country whose citizen he was. The Applicant was unable to regularise his status as he had consistently failed to provide a travel document.

With regard to the situation in Croatia in general, the Government pointed out that there were not many stateless persons in comparison to the number of stateless persons globally. According to the 2011 census of population, there were 749 stateless person and 2,137 persons with unknown citizenship living in Croatia. Moreover, the ‘erasure’ of the former SFRY nationals with a registered domicile in Croatia had been impossible owing to the safeguards provided.

Outcome

The Court found that the Applicant's case did not concern an ‘erasure’ from residence registers, as the evidence showed he lacked a registered residence in Croatia at the time of independence.

The Court noted that the Applicant’s case should be distinguished from cases concerning ‘settled migrants’, namely persons who had already been formally granted a right of residence in a host country and where a subsequent withdrawal of that right was found to constitute an interference with the right to respect for private and/or family life. (paragraph 115).

The Applicant’s situation was specifically of a stateless migrant who complained that the uncertainty of his situation and the impossibility to regularise his residence status in Croatia (where he had been staying for almost 40 years) adversely affected his private life under Article 8 ECHR. His situation occurred in the context of the complex circumstances of the dissolution of the former SFRY.

The Applicant’s residence status in Croatia was uncertain as it depended on one-year extensions of his residence permit on humanitarian grounds, on him providing a valid travel document, a condition which the Applicant considered impossible to meet as he was stateless, or on him obtaining the discretionary consent of the Ministry, which had not been granted consistently.

Moreover, the Applicant’s prospect of finding employment was hampered without a regularisation of his residence status, which undoubtedly adversely affected the prospect of securing health insurance or pension rights. In these circumstances, particularly in view of the Applicant’s advanced age and fact that he had lived in Croatia for almost forty years without having any formal or de facto link with any other country, the Court accepted that the uncertainty of his residence status has adverse repercussions on his private life.

The Court also stated that a ‘second important feature of the instant case is the fact that […] the Applicant is at present stateless’, and that he had no family or relatives in another country with whom he maintained contact nor was it ever established during the domestic proceedings that the Applicant had any link with Albania or any other country (paragraph 128). Further, ‘there are no reasons to doubt the Applicant’s arguments that he was advised by the Albanian authorities that he was not an Albanian national’ (paragraph 110).

With regard to obtaining a valid travel document to extend the stay on humanitarian grounds, the Court noted the requirement to provide a valid national biometric passport is one that stateless persons are unable to meet (as noted by the third-party intervener) (paragraph 136). The Court further noted that ‘under the relevant domestic law stateless persons are not required to have a valid travel document when applying for a permanent residence permit in Croatia. However, as the Applicant’s case shows, in practice this is of a limited relevance as in order to be able to apply for permanent residence, a stateless person would need to have a five-year uninterrupted temporary residence in Croatia for which a valid travel document is needed’. It therefore considered that stateless individuals, including the Applicant, were in reality required to fulfil requirements that they are unable to meet which is contrary to the principles flowing from the Convention relating to the Status of Stateless Persons (paragraph 137).

The Court found it striking that the authorities insisted that the Applicant was a national of Kosovo despite evidence from his birth certificate that he was stateless. It stated that ‘as there was no suggestion that the Applicant had ever had Kosovo nationality, it is difficult to understand the Croatian authorities’ insistence on the fact that the Applicant should obtain a travel document from the authorities in Kosovo’, and that the Croatian authorities never considered taking relevant measures to resolve the Applicant’s situation, such as providing administrative assistance to facilitate the Applicant’s contact with the authorities of another country (paragraph 138).

Following this reasoning, the Court found that the Respondent had failed to comply ‘with its positive obligation to provide an effective and accessible procedure or a combination of procedures enabling the Applicant to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests under Article 8’ (paragraph 141), and unanimously held that there was a violation of Article 8.

The Court declared the Applicant's complaints under Article 14 in conjunction with Article 8 and Article 1 of Protocol no. 12 inadmissible as manifestly ill-founded, noting he was never an SFRY citizen.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	8, 8(1), 35, 35(1), 35(3)(a)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Katja Swider, ‘Hoti v Croatia: European Court of Human Rights Landmark Decision on Statelessness’ (2019) 1(1) Statelessness & Citizenship Review 184.

• The author analyses the decision of the court and notes that the judgment was interesting in that when coming to its decision the Applicant’s reasoning to substantiate his claim were not reflected in the Courts reasoning. Rather than engaging with the reasoning of the Applicant, it focused largely on the Government’s standpoint and contesting this.
• The author notes that the decision was an important one in establishing precedent for acknowledging the role of statelessness in access to human rights at the level of international jurisprudence.
• The author believes there were two key aspects of the decision.
  • Firstly, the determination of the statelessness status of the Applicant. The Court paid little mind to the Government’s submission that the Applicant must show he is stateless.
  • Secondly, the decision “implies an obligation on the part of states to have mechanisms and procedures in place to identify the status of stateless persons within their jurisdiction, at least in contexts where their statelessness might be a relevant factor in accessing the ECHR rights.”