Last Updated on August 22, 2019 by LawEuro
Information Note on the Court’s case-law 217
April 2018
Hoti v. Croatia – 63311/14
Judgment 26.4.2018 [Section I]
Article 8
Positive obligations
Article 8-1
Respect for private life
Stateless migrant unable to regularise residence status following break-up of predecessor State, despite many years of tolerated stay: violation
Facts – In 1962 the applicant was born in the autonomous region of Kosovo in the former Socialist Federal Republic of Yugoslavia (SFRY). His parents were political refugees from Albania. In 1979 he moved to Croatia, which was at the time part of the SFRY, and he has lived there ever since.
The applicant is stateless. During the existence of the former SFRY, his residence status in Croatia was regularised through the recognition of the effects of his domicile in Kosovo and the refugee status granted to his parents by the local authorities there. However, following the break-up of the former SFRY, his residence status passed through many stages and legal regimes. He applied for Croatian citizenship and a permanent residence permit but both applications were refused.
From 2011 onwards his status was dependent on one-year extensions of a temporary residence permit granted on humanitarian grounds. Under the Aliens Act, in order to prolong his stay on humanitarian grounds, the applicant needed a valid travel document or, failing that, the consent of the Ministry of the Interior, which was discretionary. In 2014 he was refused an extension for failing to provide a valid travel document even though there had been a possibility for him to travel to Kosovo to obtain such a document there. The applicant unsuccessfully challenged that decision before the domestic courts.
Law – Article 8: The applicant was unemployed as his prospect of finding employment was de facto hampered without the regularisation of his residence status. The prospect of him securing normal health insurance or pension rights was therefore also adversely affected. In those circumstances, particularly in view of the applicant’s advanced age and the fact that he had lived in Croatia for almost forty years without having any formal or de facto link with any other country, the uncertainty of his residence status had adversely affected his private life.
Although the applicant had not been subject to a process of erasure of his residence status, his case bore some resemblance to that of the applicants in Kurić and Others v. Slovenia, as it concerned a complex and very specific factual and legal situation related to the regularisation of the status of aliens residing in Croatia following the break-up of the former SFRY.
Moreover, the applicant was stateless. His residence status in Croatia, although not always regularised, had been tolerated by the Croatian authorities for a number of years. His position could not be considered on a par with that of other potential immigrants seeking to regularise their residence status in Croatia.
The principal question to be examined in the instant case was therefore whether, having regard to the circumstances as a whole, the Croatian authorities had provided an effective and accessible procedure or combination of procedures enabling the applicant to have the issue of his further stay and status in Croatia determined with due regard to his private-life interests.
Under the relevant domestic law stateless persons were not required to have a valid travel document when applying for a permanent residence permit in Croatia. However, this was of limited relevance as in order to be able to apply for permanent residence, stateless persons needed five years’ uninterrupted temporary residence in Croatia and for that a valid travel document was required. Thus, in reality, contrary to the principles flowing from the UN Convention relating to the Status of Stateless Persons (to which Croatia acceded on 12 October 1992 by succession), stateless individuals, such as the applicant, were required to fulfil requirements which by virtue of their status they were unable to fulfil.
It was difficult to understand the Croatian authorities’ insistence on the applicant’s obtaining a travel document from the authorities in Kosovo, while his statelessness was evident from his birth certificates issued by the authorities in Kosovo in 1987 and 2009. Furthermore, the Croatian authorities had never considered providing administrative assistance to facilitate the applicant’s contact with the authorities of another country to resolve his situation as provided in the international instruments to which Croatia was a party.
With respect to the extension of the applicant’s temporary stay on humanitarian grounds through the Ministry’s consent, such consent was purely discretionary, was not exercised consistently and appeared to take no account of the special features of the applicant’s case and his private-life situation. Nor had the domestic courts taken those matters into account when examining the applicant’s complaints.
Consequently, the respondent State had not complied 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.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 in respect of non-pecuniary damage.
(See also Kurić and Others v. Slovenia [GC], 26828/06, 26 June 2012, Information Note 153; and Abuhmaid v. Ukraine, 31183/13, 12 January 2017, Information Note 203)
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