ECHR judgment of April 26, 2018 in the case of “Hoti) v. Croatia (application No. 63311/14).
In 2014, the complainant was assisted in preparing an application. Subsequently, the application was communicated to Croatia.
The case was successfully considered a complaint about the absence of a migrant who is a stateless person, the ability to regulate their residence status in the state after the collapse of the previous state, despite many years of permitted stay in the country. The case was a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
In 1962, the applicant was born in the autonomous province of Kosovo, in the former Socialist Federal Republic of Yugoslavia. The applicant’s parents were political refugees from Albania. In 1979, the applicant moved to Croatia, which at that time was part of the Socialist Federal Republic of Yugoslavia, and has since lived in Croatia.
The applicant is a stateless person. During the existence of the Socialist Federal Republic of Yugoslavia, the status of the applicant in Croatia was regulated by recognizing the fact of his residence in the autonomous province of Kosovo and granting the status of Kosovo by the authorities of the applicant to the parents of the refugee status. However, after the collapse of the Socialist Federal Republic of Yugoslavia, the status of the applicant’s residence in the country changed several times and was regulated by different legal regimes. The applicant applied for Croatian citizenship and a permanent residence permit, but both applications were rejected.
Since 2011, the status of the applicant depended on the extension of his temporary residence permit on an annual basis for humanitarian reasons. According to the Aliens Act, in order to extend his stay in the country on humanitarian grounds, the applicant needed a valid document of entry / exit from the state (travel document) or, in the absence of such a possibility, the consent of the Ministry of the Interior, which was at the discretion of the ministry itself. In 2014, the applicant was denied an extension of his residence permit due to his lack of a valid travel document, although the applicant had the opportunity to go to Kosovo and get the necessary document there. The applicant appealed against this decision before the domestic courts, but to no avail.
QUESTIONS OF LAW
Regarding compliance with Article 8 of the Convention. The applicant was unemployed, since he couldn’t have a de facto job without legalizing his residence status in the country. Therefore, the prospect of the applicant getting a normal medical insurance or ensuring his pension rights were seriously violated. Under such circumstances, especially in view of the applicant’s advanced age and the fact that he lived in Croatia for almost 40 years without a formal or de facto connection with any other state, the uncertainty of his residence status in the country seriously affected his private life.
Although the applicant was not tried to deprive him of his status as a resident, his case had some similarities with the applicants' case in the case of Kuric and Others v. Slovenia (Kurić and Others v. Slovenia), as it concerned a complex and extremely specific factual and legal situation related to the legalization of status foreigners who lived in Croatia after the collapse of the Socialist Federal Republic of Yugoslavia.
Moreover, the applicant was a stateless person. His status as a resident in Croatia, although not always legitimized, has been the power of Croatia for many years. The position of the complainant could not be considered equal to the position of potential migrants applying for the legalization of their residence status in Croatia.
Therefore, the main issue in the present case was whether the Croatian authorities, given the circumstances of the case as a whole, provided an effective and accessible procedure or a set of procedures that would allow the applicant to decide on his further stay in Croatia and status in that country proper consideration of the privacy interests of the applicant.
According to the relevant domestic legislation, stateless persons should not have valid travel documents when applying for a permanent residence permit in Croatia. However, this fact did not matter much, because to apply for a permanent residence permit, a stateless person had to continuously live in Croatia on temporary grounds for five years, and this required a valid travel document. Thus, in fact, contrary to the principles of the United Nations Convention relating to the Status of Stateless Persons (to which Croatia acceded in succession on 12 October 1992), stateless persons, such as the applicant, had to fulfill the requirements that, because of their status could not.
It is difficult to understand the position of the Croatian authorities, who insisted that the complainant obtain a travel document from the Kosovo authorities, while his status as a stateless person was evident on the basis of birth certificates issued in Kosovo in 1987 and 2009. In addition, the Croatian authorities did not consider the possibility of providing the applicant with administrative assistance in establishing contact with the authorities of another country in order to resolve the situation of the applicant, as enshrined in international legal instruments to which Croatia was a party.
With regard to the extension of the temporary residence permit of the applicant on humanitarian grounds with the consent of the Ministry of the Interior, such permission was issued at the discretion of the Ministry. This method was used irregularly and, apparently, this procedure did not take into account the special circumstances of the applicant’s case and the situation with his private life. The domestic courts also did not take these issues into account when considering the appellant’s complaints.
Consequently, the authorities of the respondent state did not fulfill their positive obligation to provide an effective and accessible procedure (or a set of procedures) that would allow the applicant to resolve issues of his further stay in Croatia and status in this country with due attention to the interests of the applicant in private life , guaranteed by Article 8 of the Convention.
The case was a violation of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The European Court awarded the applicant EUR 7,500 in respect of non-pecuniary damage.