Monday, 5 September 2011

GUEST BLOG: Statelessness and the European Court of Human Rights - the Kuric case

Whilst the 50th anniversary of the 1961 Convention on the Reduction of Statelessness is a time for celebrating achievements in combating statelessness, it is important not to forget the lack of parties to both the 1954 Convention on the Status of Stateless Persons and the 1961 Convention. The United Nations High Commissioner for Refugees (UNHCR) has been mandated by the UN General Assembly to prevent and reduce the phenomenon and to assist individuals under the 1961 Convention. However no judicial or monitoring body exists specifically to hold states accountable for breaching their obligations and to develop principles on statelessness. In these circumstances, the international and regional human rights mechanisms, if effectively utilised, have real potential in preventing statelessness and offering redress to stateless persons.

For some time stateless applicants have been bringing claims to the European Court of Human Rights relating to alleged abuses suffered as a consequence of their lack of nationality. However the Court is new to examining whether the causes of statelessness or the condition itself violate the European Convention on Human Rights (ECHR). The case of Kurić and Others v. Slovenia (No. 26828/06) provides a valuable opportunity for the Court to do so, but its Chamber Judgment highlights a number of teething problems in this regard. On 21 February 2011 the case was referred to the Grand Chamber. This means that the Court will examine the case once more and make a fresh judgment.

Following the break-up of the Former Socialist Federal Republic of Yugoslavia (SFRY) federal citizenship ceased to exist and each successor state granted citizenship to those who had its republican citizenship. This resulted in statelessness for persons who, for example, could not prove their republican citizenship or had failed to renew it. The Kurić case concerns the argument that the applicants have been arbitrarily deprived of the possibility of acquiring citizenship of the new Slovenian State since 1991, as well as the hardship endured as a result of the erasure of their names from the register of permanent residents in 1992. As a result four of the applicants, who were not nationals of another SFRY successor State and were unable to obtain permanent resident status, can not acquire Slovenian nationality and remain stateless despite having been born in Slovenia or having lived there most of their lives.

In its 2010 Chamber Judgment the Court held that Article 8 (right to a private and family life) alone and in conjunction with Article 13 (right to an effective remedy) ECHR had been violated due to the continual refusal of the Slovenian authorities to regulate the situation of the applicants by issuing residents permits, which constituted an unjustified interference in their right to a private and family life. The Court further held that the non-implementation of decisions of the Slovenian Constitutional Court left the applicants without an effective remedy. The most significant result from a general statelessness viewpoint is that the Court examined the arbitrary deprivation of legal status, and to a certain extent the resulting statelessness, under existing ECHR rights despite the Government’s submission that the regulation of nationality is not included in the ECHR.

Although this gives hope about the Court’s potential approach to statelessness, there are a number of problems with the Judgment. Firstly, the Court held that one of the stateless applicants lost his victim status (under Article 34 ECHR) upon receiving a permanent resident permit. This assessment prevented the Court from examining whether the continuous effects of statelessness violated the applicant’s human rights. It implies that the granting of a permanent resident permit is enough to remedy the problems faced by a stateless person and that the granting of nationality is not necessary in that regard. Secondly, the Court referred to the applicants as de facto rather than de jure stateless. The Court provides no reason why it labelled them this way and does not define de facto statelessness, which indicates possible confusion. This is significant considering debates about whether de facto statelessness exists and the fact there is no agreed definition of it under international or regional law for the Court to use in classifying the applicants as such. Thirdly, in discussing regional and international conventions on statelessness the Court fails to acknowledge the 1954 Convention to which Slovenia is a party, but discusses the 1961 Convention. This could be because the Court was focusing on the causes of statelessness rather than the status of stateless persons. Nonetheless, if Slovenia is not party to the 1961 Convention and it does not reflect international custom, then the discussion of it in the context of Slovenia, whilst interesting background information, is irrelevant. The consideration of the 1954 Convention by the Court may have meant it focused more on the negative and continuing effects of statelessness, thus not leading it to decide that the granting of a permanent resident permit is enough to extinguish victim status and to rectify the problems of the stateless applicants. For example, the granting of a permanent resident permit may provide access to social rights but it will not necessarily prevent a stateless person from being socially excluded and it will not provide the sense of belonging which is derived from having a nationality.

On 6 July 2011 the Grand Chamber held its hearing. Among those who submitted written third party interventions underlining the link between statelessness and state succession, were UNHCR, the Serbian Government and the Open Society Initiative. Interestingly, the majority of the applicants were present and the Court’s President even requested that the Italian authorities grant a special travel document to one of the stateless applicants. This showed the great importance of the case and provided a vital human face to the issue of statelessness in the Courtroom. The applicants’ representatives stressed the difficulties faced by erased persons in obtaining permanent resident status and the continuing consequences of the erasure, including the hardship suffered by the applicants due to unemployment and the lack of healthcare. This showed an interesting link between the civil and political rights contained in the ECHR and the economic and social rights of stateless persons. The Slovenian Government, inter alia, argued that it had made attempts to rectify the situation and stated that it was not its fault if the applicants failed to take steps towards regulating their own status. Furthermore, Slovenia argued that the erasure did not cause statelessness and that permanent resident permits should be enough to regularise the situation of the applicants.

The Grand Chamber’s Judgment is pending so it remains to be seen whether the Court will depart from its Chamber Judgment. The writer hopes that the Court will take the opportunity to learn from its mistakes and strengthen its jurisprudence on statelessness. This is not only crucial for proving the ability of human rights mechanisms to protect stateless persons and for the evolution of regional and international law on statelessness, but most importantly it should offer redress for the applicants in Kurić and possibly take a step towards regularising the position of Slovenia’s thousands of erased persons.

Guest author: Claire Balding, LLM in Public International Law (Nottingham), Intern at the UNHCR Representation to the European Institutions in Strasbourg.
All opinions expressed are those of the writer.

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