“Everyone has the right to a nationality”

Hoti v. Croatia – a landmark decision by the European Court of Human Rights on residence rights of a stateless person

3 May 2018 | Katja Swider, University of Amsterdam
Photo: Adrian Grycuk; European Court of Human Rights, Creative Commons

Last week the European Court of Human Rights (ECtHR) found that Croatia’s failure to ensure stability of residence for Mr. Hoti, who lived in Croatia for nearly forty years, amounted to a violation of Article 8 of the European Convention on Human Rights (ECHR) – the right to private and family life. The applicant’s repeated attempts to regularise his residence in Croatia were largely unsuccessful, aside from occasional short-term permits, which were granted and withdrawn sporadically, and did not provide him with stability of residence.

Mr. Hoti’s statelessness played a crucial role in the judgement. Even though stateless applicants appeared before the Court in the past, their statelessness was at best framed as an additional source of vulnerability, and not as a central issue in their claims. The Hoti judgment closely engages with the phenomenon of statelessness, invoking the relevant UN treaties, and considering the details of how statelessness affected the applicant’s access to relevant rights. This blog highlights a number of findings that may be particularly useful for national and international advocacy and litigation efforts on statelessness.

Establishing the applicant’s statelessness

One striking aspect of the judgment is that the Court on its own authority determines the applicant to be stateless, despite the state disputing that fact, and despite the relevant evidence being far from straight-forward.

The applicant was born on the territory of Kosovo, then an autonomous province of Serbia within the Socialist Federal Republic of Yugoslavia (SFRY). His parents were political refugees from Albania, and enjoyed a refugee status in SFRY. In 1979, aged 17, the applicant moved to Croatia and has lived there ever since.

In the course of numerous lengthy proceedings regarding the applicants’ residence rights it has been repeatedly alleged, including by the applicant himself, that he was a national of Albania, and sometimes that he was (also) a national of Kosovo. References to his Albanian and Kosovar nationality can be found in various official documents produced by the SFRY and Croatian authorities. In its submission to the ECtHR, Croatia maintained that Mr. Hoti was a national of Albania. No written statements by Albanian authorities confirming or denying that the applicant is their national were submitted to the Court.

Evidence suggesting that the applicant is stateless includes his birth certificate, issued in Kosovo, according to which he does not have any nationality, as well as the applicant’s statement that when he attempted to contact the authorities of Albania and of the Federal Republic of Yugoslavia (while it existed), he was orally informed that he was not a national of those countries.

On the basis of the above, the Court did not only declare the applicant stateless, but “found it striking” that Croatia did not come to the same conclusion, and did not fulfill its statelessness-related international obligations with regards to Mr. Hoti. The Court did not directly reproach the state for not having a statelessness determination procedure, but did question why the applicant’s statelessness was never formally established on the national level. It is repeatedly emphasised that statelessness is a relevant fact in this case, which contributed to the Court’s conclusion that Croatia was found in violation of the Convention.

The Court insisted that the statelessness of the applicant is ‘apparent’, and that there is no ground to believe he is either an Albanian or a Kosovar national. It is significant that the evidence on which the Court bases its assessment does not comply with very high legal certainty requirements. This leads to a conclusion that if statelessness of the applicant is a relevant factor in the context of access to human rights, the standard of proof when determining the status of statelessness cannot be too high. For example, the Court found ‘no reason to doubt the applicant’s arguments that he was advised by the Albanian authorities that he was not an Albanian national’, even though there was no written evidence or witness statements confirming that any contact between the applicant and Albanian authorities on this matter took place. The practice of ‘doubting’ stateless persons’ accounts of their futile attempts to contact various embassies is fairly standard in Europe; and the stance of the Court in this case offers the welcome prospect of a change in approach and discourse. 

Moreover, the Court does not give much weight to the state’s submission that it is up to the applicant to show that he is stateless, and instead confronts Croatia for not proactively determining the applicant to be stateless. This indicates that the Court considers the state responsible to at least share the burden of proof with the applicant when establishing the fact of statelessness. The welcome stance on the burden and standard of proof taken in this case by the ECtHR is very much in line with the UNHCR guidelines on issues of proof in statelessness determination procedures.

Right to a nationality and right to a stable residence

The Court emphasizes that this judgment is not about the applicant’s right to a nationality, but about his right to stable residence, distinguishing this case from Genovese v. Malta, where the issue at stake was nationality as part of the concept of private life, and where residence rights played no role. In the case of Hoti, even though the same Article 8 is at stake, the Court explicitly states that it does not consider "whether the applicant should be granted Croatian citizenship but rather whether, if he had chosen not to become Croatian citizen or had failed to do so, he would have an effective possibility to regularise his residence status allowing him to normally lead his private life in Croatia".

The reference to the choice not to become citizen is interesting in light of the facts of the case. In 1989 the applicant was encouraged to apply for the citizenship of SFRY, but refused to do so, citing the lack of benefits he saw in the status of a national and expressing preference for a permanent residence instead. After Croatian independence Mr. Hoti did apply for Croatian citizenship, but was refused. It is important that the Court did not assign significance to the potential culpability of the applicant in his lack of citizenship, and insisted that the state of Croatia had nevertheless an obligation to ensure stability of residence for him through any adequate legal status.

Requirements the applicant couldn’t comply with due to being stateless  

The main obstacle to Mr. Hoti obtaining a nationality and stable residence permit was the requirement to supply a foreign travel document or to renounce his foreign nationality. The Court repeatedly recognized that stateless persons are unable to fulfill such requirements. It even invoked the ‘principles’ of the 1954 Convention, the article 6 of which prohibits imposing on stateless persons requirements ‘which by their nature a stateless person is incapable of fulfilling’. The ECtHR’s explicit recognition of this important principle can perhaps support the advocacy effort for better laws and administrative practices that do not require stateless persons to do the impossible in order to be able to access basic rights.

Stateless persons as a special category of migrants

Finally, the Court seems to plant some seedlings of a concept of a ‘stateless migrant’ as a special category of a rights-holder, distinguishing it from the categories of an ‘alien seeking admission to a host country’, and a ‘settled migrant’. It is not very clear from this judgment alone what the implications of being a ‘stateless migrant’ exactly are for access to Convention rights. The Court also emphasizes the ‘special features’ of the Hoti case related to the dissolution of SFRY, placing possible doubt on the generalizability of this judgment to all stateless persons. Still, categorizing stateless persons as a group in the context of a human rights court is an important development which will hopefully continue towards greater awareness of how statelessness affects the ability to enjoy various human rights.

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