ECtHR - Hoti v. Croatia (no. 63311/14)

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Country of Applicant: 
Kosovo
Date of Decision: 
26-04-2018
Citation: 
Hoti v. Croatia (no. 63311/14), 26 April 2018
Court Name: 
European Court of Human Rights (First Section)
Headnote: 

The restriction of the right to reside in a country may entail a violation of Article 8 ECHR, when creating disproportionate effects on the individuals’ private life. States should provide effective and accessible means to protect the right to respect for private and family life.  

 

Facts: 

The Applicant, Mr. Hoti, is a stateless person born to Albanian parents residing in former SFRY (Socialist Federal Republic of Yugoslavia) Kosovo, as refugees. He has been living and working in Croatia for almost 40 years under temporary and humanitarian residence permits. Every attempt to regularise his status by applying for permanent residence permit or citizenship has been dismissed, because Croatia considers him to be an Albanian or Kosovar citizen and insists that he did not have an uninterrupted registered residence in the country for more than 5 years as required under domestic law.

Therefore, Mr. Hoti complained that Croatia is violating his right to private life under Article 8 and 14 ECHR by discriminating against former SFRY citizens. Croatia requested the ECtHR to strike out the application under Article 37§1(b) ECHR based on the issuance of a temporary residence to the Applicant for a further year by the State. Furthermore, the Government suggested that he had abused the right of individual application by submitting invalid arguments in his initial application to the Court and asseverated the non-exhaustion of domestic remedies on part of the Applicant. The latter claimed that he has been erased from the register of residence in Croatia without being informed and that domestic law does not regulate the status of individuals who have found themselves in situations like his after the dissolution of the SFRY.

 

Decision & Reasoning: 

The Court dismissed the Government’s request and held Croatia accountable for violating the Applicant’s right to private life by not providing effective and accessible procedures for the individual to determine his stay and status in the country and by not assessing the Applicant’s personal circumstances under Article 8 ECHR. The temporary residence permit was considered insufficient to remove the uncertainty of the Applicant’s residence status of which he complained, since the granting of a permanent residence permit, which would allow for the application to be stricken out under Article 37§1(b) ECHR, was not guaranteed.. Furthermore, the Court found that the lack of regularized status hindered the Applicant’s prospect of securing employment, health insurance and pension rights, given his advanced age.  As for the alleged abuse, the Court, considering the complexity of the issues regarding the Applicant’s citizenship in combination with his erasure from the residence registry, found that the arguments invoked by him regarding his residence could not amount to abuse.

The erasure question was deemed irrelevant to the case; nevertheless the positive obligation of a state to provide a solution capable of giving individuals the ability to enjoy the right to private life under Article 8 ECHR without obstacles was ascertained. Furthermore, the Court considered the 5 year requirement for permanent residence permit de facto imposed on stateless applicants by Croatia, along with the fact that a stateless individual was required to fulfill a qualification that his legal status precludes, such as providing a valid travel document, to be in profound disharmony both with domestic and international law.

There is a pending application at the Croatian High Court on part of the Applicant who challenged the Croatian Ministry of Interior for having dismissed his appeal for the extension of his temporary residence permit on humanitarian grounds due to the fact that he had not provided a valid travel document. The ECtHR found that even in the event of a positive ruling, the prospect of effective regularization of the Applicant’s stay remains unclear.

With regard to Art 14 ECHR, the Court did not find any violation because there was no evidence that Mr. Hoti ever held SFRY citizenship, therefore dismissed the alleged discrimination against former SFRY citizens raised by the Applicant.

 

Outcome: 

Application granted (violation of Article 8 ECHR)

The Court held that Croatia was to pay the Applicant 7,500 EUR in respect of non-pecuniary damage plus any tax chargeable.

 

Observations/Comments: 

UNCHR as a third-party intervener highlighted the need for States to address the issue of statelessness and brought up the adverse consequences that the erasure of individuals from the registers of domicile in Croatia after SFRY dissolution had in regards to Article 8 ECHR. However, the ECtHR did not find any connection with Mr. Hoti’s case as the latter had neither SFRY nationality nor a registered domicile in Croatia at the moment of the country’s declaration of independence from the SFRY. The Court found that Mr. Hoti’s case should be distinguished from cases concerning “settled migrants” or aliens seeking admission to a host country.

The case summary was completed by Odyssefs Platonas, LLM student at Queen Mary University.

Case Law Cited: 

ECtHR - Abuhmaid v. Ukraine, no. 31183/13, 12 January 2017

ECtHR - Kaftailova v. Latvia, Application No 59653/00

ECtHR - Sisojeva and Others v. Latvia [GC], Application No. 60654/00

ECtHR - Jeunesse v. the Netherlands [GC], no. 12738/10

ECtHR - Maslov v. Austria ([GC], no 1638/03

ECtHR - Fernandez Martinez v. Spain (Application no. 56030/07, judgment 15th May 2012)

ECtHR - Aristimuno Mendizabal v. France, Application no. 51431/99

ECtHR - Kurić and Others v. Slovenia [GC], Application no. 26828/06, 31 May 2007

ECtHR - H.P v. Denmark (dec.), no. 55607/09, 13 December 2016

ECtHR - Gross v. Switzerland [GC], Application no. 67810/10, 30 September 2014

ECtHR - Harakchiev and Tolumov v. Bulgaria, Application nos. 15018/11 and 61199/12, 8 July 2014

ECtHR - Roche v. the United Kingdom [GC], no. 32555/96, ECHR 2005‑X

ECtHR -Shevanova v. Latvia [GC], no. 59643/00, 7 December 2007

ECtHR -Savasci v. Germany (dec.), no. 45971/08, 19 March 2013

ECtHR -Udovičić v. Croatia, no. 27310/09, 24 April 2014

ECtHR -Khan v. Germany [GC], no. 38030/12, 21 September 2016

ECtHR -Travaš v. Croatia, no. 75581/13, 4 October 2016

ECtHR - Ramadan v. Malta, no. 76136/12, ECHR 2016

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99
Attachment(s): 
Other sources cited: 

Albanian Citizenship legislation in practice

SFRY Movement and Stay of Foreigners Act (Official Gazette of the SFRY no. 57/1980) > Section 33, 50, 52

Authentic Language: 
English
State Party: 
Croatia
National / Other Legislative Provisions: 
UN Convention on Stateless Persons 1954
Aliens Act > section 44
47
52 (4)-54
65 (1) (5)
73
92
93
96
Movement and Stay of Foreigners Act > section 29 (1)
29(2)
Constitution of the Republic of Croatia > Article 33
35
Croatian Citizenship Act > Section 8
8 (a)
8(1) (3)
Movement and Stay of Foreigners Act > Section 29 (1)
79
Administrative Procedure Act > Section 136-137
Albanian Citizenship Act of 16 December 1946 > Section 4
13