Kurić and Others v. Slovenia

Parties (including notable third parties)

Mr Mustafa Kurić; Mr Velimir Dabetić; Ms Ana Mezga; Mrs Ljubenka Ristanović; Mr Tripun Ristanović; Mr Ali Berisha; Mr Ilfan Sadik Ademi; Mr Zoran Minić (The Applicants). Slovenia (The Respondent) Third parties: • The Serbian Government • Equal Rights Trust • Open Society Justice Initiative (submission updated before the Grand Chamber) • Peace Institute – Institute for Contemporary Social and Political Studies • Legal Information Centre of Non-Governmental Organisations • UNHCR (before the Grand Chamber only)

---

Summary of Facts

This case concerned eight Applicants who had all been citizens of the Socialist Federal Republic of Yugoslavia (‘SFRY’) and were registered as permanent residents in Slovenia before its independence in 1991. By the time of the proceedings, two Applicants (Mr Kurić and Mr Dabetić) were stateless, while six were nationals of successor States of the former SFRY.

When Slovenia declared independence in June 1991, citizens of the SFRY living permanently in Slovenia were allowed to apply for Slovenian citizenship under the 1991 Citizenship Act, provided they met certain conditions. They had six months to apply, however many people, including the Applicants, failed to do so within this deadline. Those who missed the deadline or whose applications were refused became foreigners in accordance with the Aliens Act, which also formed part of Slovenia’s independence legislation.

In February 1992, two months after the deadline expired, the names of those who had not obtained Slovenian citizenship were deleted from the ‘Register of Permanent Residents’ – a measure later known as the ‘erasure’ – and, according to the Government, were transferred to the ‘Register of Aliens Without a Residence Permit’. Official data from 2009 indicate that 25,671 individuals were affected, including the Applicants. Most were not notified and only discovered their loss of status when attempting to renew documents. The impact of the erasure was significant, as the Applicants’ former SFRY documents and passports became void, and they consequently faced severe difficulties, including loss of jobs and pensions, inability to travel or re-enter Slovenia, and family separation.

The treatment of these individuals differed from that of other (non-SFRY) foreign nationals who had lived in Slovenia before independence, whose status was preserved. In 1999, the Constitutional Court ruled that this situation was unconstitutional because the Aliens Act did not set out how the ‘erased’ could regain permanent residence, leaving them in a worse position than other foreigners and creating a legal gap. To address this, Slovenia adopted the Legal Status Act in 1999, which allowed the ‘erased’ to apply for permanent residence, but only going forward (not retroactively) and within a short time limit. In 2003, the Constitutional Court found this law unconstitutional too, because it failed to grant retroactive residence from the date of erasure, did not clarify what ‘actually residing’ meant, and did not cover those who had been deported. The Court ordered changes, including retroactive recognition of residence.

After years of delay and political obstacles, the law was amended in 2010 to fix these problems. The Constitutional Court then confirmed that the amended law was constitutional, as it provided both retroactive and current residence permits, defined ‘actual residence,’ and included those who had been deported or forced to leave Slovenia. For the Applicants in this case, these legal gaps meant years without status, loss of jobs and pensions, and severe hardship. Five of the Applicants were deported, and most struggled to regularise their status under earlier laws including the Legal Status Act.

In 2006, eleven Applicants brought the case before the European Court of Human Rights (‘ECtHR’), alleging violations of Articles 8, 13, and 14 (in conjunction with Article 8), and Article 1 of Protocol No. 1. In 2010, the Third Section found violations of Articles 8 and 13 for eight Applicants but declared the complaints of three inadmissible. It did not rule on Article 14 and found the complaint under Article 1 of Protocol No. 1 inadmissible. The Slovenian Government requested referral to the Grand Chamber, which was granted in 2011, with eight Applicants remaining. At the time of the Grand Chamber proceedings, six Applicants had obtained permanent residence permits with retroactive effect, while two Applicants remained without status.

---

Legal Arguments

Legal Arguments by the Applicant

In response to the Government’s preliminary objections, the Applicants argued they remained victims despite six of them receiving residence permits, as this did not repair the harm caused by the ‘erasure’. The Applicants stressed that the retroactive effect of the residence permits was only declaratory and offered no real reparation for past damage or lost entitlements, describing the permits as ‘just a piece of paper’ (paragraph 256). Relying on Article 8 case-law, the Applicants submitted that a long-term failure to regularise a person’s legal status requires adequate redress that accounts for the time elapsed and consequences suffered, something they argued had not been provided. The Applicants further noted that prospects of obtaining compensation in accordance with domestic law were virtually non-existent, as all claims brought by the ‘erased’ had been dismissed by domestic courts. By May 2011, 41 claims had been dismissed with final effect, and eight claims brought directly before courts had all been unsuccessful (paragraph 257).

On exhaustion of domestic remedies, the Applicants contended that available remedies were neither suitable nor effective, as none could address their complaints and, in practice, had proven ineffective. They noted that 1,250 requests for permanent residence had been rejected under the Legal Status Act, demonstrating serious flaws in the legislative framework. The Applicants added that even if these remedies were considered adequate, the three Applicants who never applied for residence permits at the time of the submission of arguments should be exempted due to exceptional circumstances. In particular, the second applicant was ‘de jure and de facto stateless’ (paragraph 282) and had previously urged the authorities to regularise his status and grant him citizenship, which were refused, and that the fourth and fifth Applicants were deported, making it extremely difficult to pursue remedies with any realistic chance of success. The Applicants submitted that they had ‘continued to find themselves in a state of extreme vulnerability and insecurity’ even after the ‘erasure’ (paragraph 283).

Concerning the complaint under Article 8, the Applicants alleged they had not been in a position to successfully apply for a permanent residence permit until 2010 due to the ‘erasure’ and, in the case of three Applicants (Mr Kurić, Mr Dabetić, and initially Mr Ademi), due to the fact that they had become stateless because of the dissolution of the SFRY. Before the Chamber, they argued that the Aliens Act was neither accessible nor foreseeable given that the authorities failed to provide adequate information, and the Act did not expressly apply to the ‘erased’ as it was designed for irregularly residing foreigners. Before the Grand Chamber, the Applicants agreed with much of the Chamber’s findings, including that the erasure was carried out arbitrarily and with disregard for the consequences for the Applicants’ rights and legal status, noting that five Applicants were deported and that some had become stateless. The Applicants also stressed that the Government ‘continued to minimise the unlawfulness and arbitrariness of the ‘erasure’’ and systematically disregarded Constitutional Court rulings (paragraph 320). The Applicants also suggested that the Chamber should have further assessed the impact of the ‘erasure’ on citizenship rights considering international obligations to prevent statelessness.

The Applicants alleged two further violations of their Convention rights in conjunction with Article 8. Firstly, under Article 13, the Applicants relied on the Court’s judgment in M.S.S. to argue that they had not been provided with effective remedies capable of addressing their complaints and providing them with relief. They submitted that the remedies available were neither accessible, adequate, nor effective in practice (279–280). Secondly, under Article 14, the Applicants argued they were discriminated against as a result of the ‘erasure’ and treated less favourably than ‘real’ foreigners whose permanent residence status remained valid after independence. The Applicants added that the Constitutional Court had confirmed the existence of discrimination and noted that five Applicants had been deported.

Legal Arguments by the Respondent

The Slovenian Government submitted several preliminary objections, including that the Applicants no longer qualified as victims because six Applicants had received permanent residence permits under the amended Legal Status Act, which provided both current and retroactive status, and that the remaining two Applicants had never applied for such permits. The Government maintained that Slovenia had acknowledged the illegality of the ‘erasure’ through Constitutional Court rulings and public apologies and had offered redress through legislation enabling regularisation. The Government added that residence permits were not ‘a piece of worthless paper’ but conferred extensive social rights, placing holders on an equal footing with citizens for social entitlements (paragraph 249). It also noted that compensation could be sought under domestic law, although none of the Applicants had successfully pursued such claims.

The Government also submitted that the Applicants had not exhausted domestic remedies. At the time of the submission of arguments, the Government raised that three Applicants had never applied for residence permits, which was a necessary step to regularise their status. One of these Applicants (the fifth Applicant, Mr Ristanović) did subsequently apply for and receive a residence permit during the proceedings. The Government also suggested that all Applicants had failed to pursue the available legal avenues to obtain residence permits, including by not lodging individual constitutional appeals or reviews. The Government argued that the Constitutional Court had full jurisdiction and could have effectively remedied the alleged violations, as demonstrated by cases brought by other ‘erased’ persons. In the Government’s view, no applicant had demonstrated exceptional circumstances to justify bypassing these remedies.

Concerning the complaints under Article 8, the Government argued before the Chamber that the dissolution of the SFRY required urgent legislative measures to regulate Slovenian citizenship and residence. It maintained that Slovenia had offered ‘exceptionally favourable conditions’ for acquiring citizenship and that those who failed to apply within the six-month deadline should have regularised their status (paragraph 325). The Government submitted that regulating residence and enforcing deportation were legitimate State functions necessary in a democratic society and proportionate to the aim of ensuring public safety. Before the Grand Chamber, the Government acknowledged that the ‘erasure’ was unlawful and unconstitutional but stressed that it had since complied with Constitutional Court rulings, resumed issuing retroactive permits in 2009, and enacted the amended Legal Status Act in 2010. The Government added that it informed the ‘erased’ through brochures and other resources and noted that thousands of residence permits had been granted under both the original and amended Legal Status Acts, which it argued the Chamber had insufficiently considered. The Government further noted that Article 8 does not guarantee a right to a specific residence permit and that granting retroactive permanent residence exceeded Convention requirements. It also rejected the Chamber’s statements on statelessness as ‘legally and substantively inaccurate’ (paragraph 329), asserting that the erasure only affected residence status, not citizenship, and argued that the SFRY dual-citizenship concept made statelessness unlikely, since in principle all SFRY citizens had citizenship of one of the Republics and the break-up should not have created statelessness.

In response to the applicant’s complaint under Article 13 in conjunction with Article 8, the Government maintained that the Applicants had access to several accessible and effective domestic remedies. Regarding the complaints under Article 14 in conjunction with Article 8, the Government denied the existence of discrimination and argued that the Applicants had failed to take advantage of the opportunity to acquire Slovenian citizenship under ‘exceptionally favourable conditions’ granted to citizens of former SFRY republics.

Third Party Intervention

Open Society Justice Initiative argued that exposing individuals to the arbitrary denial of citizenship and statelessness interfered with Article 8. Citing UNHCR data, they noted that by 2009, 4,090 ‘erased’ persons were stateless in Slovenia, while only five had been naturalised since 2002 (paragraph 332). The interveners emphasised States’ positive duty under customary international law and instruments such as the European Convention on Nationality to prevent statelessness and facilitate nationality for habitually resident stateless persons. While welcoming progress, UNHCR warned that onerous requirements could still leave many without permanent status or citizenship. Other interveners broadly supported these concerns.

Outcome

On Preliminary Objections

On victim status, the Grand Chamber held that although Slovenia had acknowledged the breach of the Applicants’ rights and issued residence permits to six Applicants, this did not constitute ‘appropriate’ and ‘sufficient’ redress given the ‘widespread human-rights concern created by the ‘erasure’’ and the consequences for these Applicants over a nearly twenty-year period (paragraph 267). The Grand Chamber added that no compensatory damages had been awarded to the ‘erased’, and that the Applicants’ prospects of compensation were too remote to be relevant for denying victim status. Accordingly, the six Applicants who received permits remained victims, and the Government’s objection on these grounds were unanimously dismissed.

On the non‑exhaustion of domestic remedies, the Grand Chamber unanimously dismissed the objection concerning the six Applicants who had received a residence permit, noting that the Applicants had already taken steps to remedy the situation without success. By contrast, for the two Applicants who had not yet received residence permits, the Grand Chamber upheld the Government’s objection, noting that neither applicant had properly applied for a residence permit in Slovenia and ‘cannot be considered dispensed from the obligation’ to do so despite their individual circumstances (paragraph 292). Their complaints were therefore found to be inadmissible by nine votes to eight.

On Article 8

The Grand Chamber agreed with the Chamber's finding that the Applicants had established a private and/or family life in Slovenia and that the ‘erasure’ interfered with those rights and continued to do so. On the merits of the complaint under Article 8, the Grand Chamber agreed with the Chamber’s finding that the Applicants had established a private and/or family life in Slovenia and that the ‘erasure’ interfered with those rights and continues to do so. It subsequently examined whether the interference was justified under Article 8(2).

The Grand Chamber observed that the ‘erasure’ resulted from the joint effect of section 40 of the Citizenship Act and section 81 of the Aliens Act. The Grand Chamber assessed that although the relevant provisions of the Citizenship Act were accessible, the Applicants could not have reasonably foreseen that their failure to apply for citizenship within the six-month window would render their residence unlawful or lead to automatic ‘erasure’ without notice or remedy. The Grand Chamber found relevant the Slovenian Constitutional Court’s findings that the transfer of names from the relevant registers of permanent residents and irregularly staying foreigners lacked any legal basis and that no procedure existed to regularise their status, creating a legal vacuum. Moreover, the Grand Chamber added the administrative instructions implementing the ‘erasure’ were not public, raising accessibility concerns. The Grand Chamber therefore held that the interference was not ‘in accordance with the law’ (paragraph 349).

While accepting the existence of legitimate aims to protect national security, the Grand Chamber found that the authorities had not struck a fair balance between the pursuit of such aims and the effective respect for the Applicants’ right to private and family life. In particular, the Grand Chamber noted that the ‘erasure’ had severe consequences, including loss of identity documents, jobs, health insurance, pensions, and legal status, and that the failure to apply for citizenship did not justify the blanket deprivation of their status. Moreover, the legislature’s omission to provide a route to permanent residence for those who did not naturalise upset this balance of interests. The Court stressed that Article 8 entails positive obligations, particularly in the case of long-term migrants such as the Applicants, and in these circumstances, regularisation was necessary to prevent disproportionate harm. Slovenia’s prolonged failure to act comprehensively and promptly breached these obligations. Accordingly, the Grand Chamber concluded that the measures complained of were neither prescribed by law nor necessary in a democratic society and therefore unanimously found a violation of Article 8.

Concerning Article 13 in conjunction with Article 8, the Grand Chamber unanimously held there had been a violation, referring to its findings concerning the applicant’s victim status that no ‘adequate’ and ‘effective’ remedies leading to redress had been provided.

Unlike the Chamber judgment, the Grand Chamber also found it necessary to examine the Applicants’ complaints under Article 14 in conjunction with Article 8. In doing so, it noted that after independence, citizens of other SFRY republics and ‘real’ foreigners were in comparable situations as non-Slovenian nationals or stateless persons (paragraph 391). However, only the ‘real’ foreigners retained valid residence permits, while former SFRY citizens were ‘erased’ and rendered unlawfully resident. The Court recalled that discrimination means treating differently, without objective and reasonable justification, persons in relevantly similar situations, and that once a difference in treatment is shown, the burden shifts to the Government to justify it (386, 389).The Grand Chamber noted that this differential treatment, based on national origin, lacked objective and reasonable justification. It therefore unanimously confirmed the existence of a violation.

On Article 46

In relation to Article 46, the Grand Chamber found it premature to assess whether Slovenia’s reforms had fully resolved the status of the ‘erased’, noting that they still lacked compensation for violations of their rights. Given the systemic nature of the problem, the case was treated under the pilot-judgment procedure. Slovenia was ordered to create an ad hoc compensation scheme within one year, and similar cases were put on hold pending that measure. Under Article 41, each of the six Applicants was awarded non-pecuniary damage, with pecuniary claims reserved.

Separate Opinions

Several separate opinions were issued, reflecting strong criticism of Slovenia’s actions and disagreement on admissibility. Judge Zupančič, concurring with the Grand Chamber judgment, described the ‘erasure’ as a ‘legalistic attempt at ethnic cleansing’, rooted in deliberate legislative gaps and political obstruction, and stressed the moral dimension and systemic injustice corrected only through international jurisdiction. Judge Vučinić, partly concurring, agreed with the finding of a violation of Article 8 but argued that the Grand Chamber had understated its gravity, suggesting the Applicants were effectively stripped of legal personality, a fundamental right implicit in Article 8. Several judges (Bratza, Tulkens, Spielmann, Kovler, Kalaydjieva, Vučinić, Raimondi, Costa) dissented on the inadmissibility finding concerning the two Applicants yet to receive a residence permit, finding it contradictory to require exhaustion of remedies the Court deemed ineffective and rejecting the idea that failure to act meant loss of victim status. Judges Kovler and Kalaydjieva added that victim status and the effectiveness of remedies are inseparable and criticised inconsistent outcomes between similar cases.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
Regional	European Convention on Human Rights	Articles 8, 13, 14, 41, 46
Domestic	Citizenship Act 1991 (as amended 2002)	Sections 10, 19, 39, 40
Domestic	Aliens Act 1999	Sections 13, 16, 23, 28, 81, 82
Domestic	Legal Status Act 1999 (as amended 2010)	Sections 1, 2

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Patricia Mindus, European Citizenship after Brexit (Palgrave Macmillan, 2017) 68-70.

• In this book, the author argues that the Kurić judgment established that lawful residence creates enduring rights even when nationality or statehood changes. The author suggests that the judgment was instructive in outlining that stripping permanent residents of their status after succession violates Article 8, as social ties formed by settled migrants are part of private life.
• The author refers to a so-called ‘Kurić doctrine’ which confirmed that residence rights are ‘frozen’ once lawfully acquired, preventing arbitrary loss due to political or legal shifts.