New ECHR ruling on the case of the Erased in Slovenia

Kuric and others v. Slovenia, Application no. 26828/06 (GRAND CHAMBER)

(Prepared by Anja Lansbergen for the European Union Democracy Observatory on Citizenship)

Facts:

Prior to 25 June 1991 – the day on which Slovenia declared independence from the former Socialist Federal Republic of Yugoslavia (“SFRY”) – the applicants were citizens of both SFRY and one of its constituent republics other than Slovenia. They had acquired permanent resident status in Slovenia as SFRY citizens.

On 26 February 1992 the applicants became subject to the Aliens Act (Zakon o tujcih). As they had not applied for Slovenian citizenship within the required timeframe, their names were on this date deleted from the Register of Permanent Residents of Slovenia (Register stalnega prebivalstva).

The applicants claimed under Article 8 of the European Convention of Human Rights that they had been arbitrarily deprived of the possibility of acquiring citizenship of the newly-established Slovenian State in 1991 and/or of preserving their status as permanent residents. They requested that permanent residence status be awarded to them retroactively, on the basis of the Constitutional Court's decision of 3 April 2003, and claimed awards for pecuniary and non-pecuniary damage as well as reimbursement of costs and expenses incurred in the proceedings.

On 13 July 2010 the Third Section of the European Court of Human Rights ruled that the erasure of the applicants’ names from the Register of Permanent Residents was in breach of Article 8 of the Convention (Kuric and others v. Slovenia, Application no. 26828/06). The Court considered the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of private life within the meaning of Article 8. Regardless of the existence or otherwise of a family life, the expulsion of a settled migrant thus constitutes interference with his or her right to respect for private life. This interference could not be justified as being “in accordance with the law” under paragraph 2 of Article 8 in light of the Slovenian Constitutional Court’s decision of 3 April 2003 that had declared the impugned measure to be unlawful. The Court required the Government of Slovenia to secure for the applicants the right to a private and/or family life and effective remedies in that respect, and invited the Government and the applicant to submit written observations on the financial award to be made to the applicants for any pecuniary or non-pecuniary damage resulting from the violations found.

On 13 October 2010 the Slovenian Government requested that the case be referred to the Grand Chamber.

Judgment:

Upholding the decision of the Third Section, the Grand Chamber ruled on 26 June 2012 that the erasure of the applicants’ names from the Register of Permanent Residents of Slovenia was in violation of Article 8 of the Convention.
 
In submissions made to the Grand Chamber, the Slovenian Government had not contested that the impugned measure constituted an infringement of the right under Article 8, and the Grand Chamber therefore found no reason to depart from the findings of the Third Section in this regard. The Grand Chamber thus turned to consider whether such infringement could be justified under the provisions of paragraph 2 of Article 8. [§§339 – 340]

The Grand Chamber held that, having regard to the questionable foreseeability of the measure and in light of the Constitutional Court decisions of February 1999 and April 2003, the interference with the applicants’ Article 8 rights was not “in accordance with the law”. Despite the measure pursuing a legitimate objective (of creating a “corpus of Slovenian citizens” and thus to protecting the interests of the country’s national security), the regularisation of the residence status of former SFRY citizens was necessary in order to ensure that failure to obtain Slovenian citizenship would not disproportionately affect the Article 8 rights of the “erased”. The absence of State regulation to this effect and the prolonged impossibility of obtaining valid residence permits upset the fair balance which should have been struck between the legitimate aim of the protection of national security and effective respect for the applicants’ right to private or family life or both. For these reasons, the measures complained of were neither “prescribed by law” nor “necessary in a democratic society” to achieve the legitimate aim of the protection of national security, and consequently the impugned measure constituted a violation of Article 8. [§§341 – 362]

The Grand Chamber further concluded that the Slovenian Government’s failure to establish adequate and effective remedies in order to redress the alleged violation of Article 8 constitutes a violation of Article 13 of the Convention on the right to an effective remedy. [§§369 – 372]

In contrast to the decision of the Third Section, the Grand Chamber considered it necessary to rule on the issue of compliance with Article 14 (prohibition of discrimination) in conjunction with Article 8. [§383] The Grand Chamber found that the effect of the “erasure” was that aliens could keep their residence permits, whereas citizens of the former federal State of which Slovenia was a constituent part were deprived of them. There was therefore a difference in treatment between two groups – “real” aliens and citizens of former SFRY Republics other than Slovenia – which were in a similar situation in respect of residence-related matters. [§§391 – 392]. This difference in treatment did not pursue a legitimate aim and therefore lacked an objective and reasonable justification [§394], and as such was in violation of Article 14.

The Grand Chamber required the Government of Slovenia to set up an ad hoc domestic compensation scheme within one year of the delivery of the judgment to compensate other potentially effected persons. [§§406 – 415] The Government was further obliged to pay non-pecuniary damages of €20,000 to each applicant, and €30,000 to the applicants jointly in respect of costs. The applicants’ claims for non-pecuniary damages were dismissed. [§§424 – 428]

 

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