EHRM, 26-04-2018, nr. 63311/14

The Government contended that the applicant had not diligently pursued the relevant steps for regularising his residence status in Croatia. In particular, he was first required to properly obtain a temporary residence permit in order to apply for permanent residence and eventually, if applicable, Croatian citizenship. However, after first having regularised his temporary residence between 1993 and 1996, he failed to regularise his status in the subsequent period. In 2014 he had also failed to comply with all the requirements to be granted an extension of temporary residence as he had failed to provide a valid travel document. The Government also considered that the applicant's complaint was premature given that he had had an opportunity to challenge the Ministry's decision refusing the extension of his temporary residence status of 30 January 2015 before the Administrative Court and the Constitutional Court.

The applicant argued that he had duly attempted to regularise his status in Croatia and had brought his application to the Court when the last chance of his regular residence status in Croatia had been extinguished by the Ministry's decision refusing the extension of his temporary residence status on 30 January 2015. In any event, in his view, the temporary residence status on humanitarian grounds was not sufficient in itself as it was completely at the Ministry's discretion and would not be capable of regularising his status. He stressed that he was now in his fifties and that he could no longer live with uncertainty from one year to another without knowing whether his residence permit would be extended. Such uncertainty had prevented him from finding stable employment and regularising his health insurance. The applicant also relied on the UNHCR's submission according to which it was very burdensome to regularise residence status in Croatia for somebody without a valid biometric passport from his or her country of origin. The applicant stressed that the general legislation concerning the rights of aliens was insufficient concerning the individuals in his situation and that the impossibility for him to regularise his residence status was at the heart of the issue in the present case.

The Court considers that the questions related to the exhaustion of domestic remedies should be joined to the merits, since they are linked to the substance of the applicant's complaint that he did not have an effective possibility to regularise his residence status in Croatia.

The Government contended that the applicant had abused his right of individual application by submitting the erroneous arguments in his initial application to the Court. The first one concerned his arguments that he had had SFRY citizenship prior to 1989, the second that he had had a domicile in the then Socialist Republic of Croatia, and the third that he had been erased from the relevant registers of domicile in Croatia. In particular, the applicant had initially argued his case on the basis of the Court's case-law in Kurić and Others (cited above) arguing that he had been a SFRY national. However, the documents provided by the Government, specifically the record of the applicant's interview by the police in 1989 (see paragraph 13 above), clearly showed that this was incorrect information. In the Government's view, it was irrelevant whether the applicant and/or his lawyer had mislead the Court on this issue as in any case that should be treated as an abuse of individual application.

The applicant submitted that his citizenship and residence status in the SFRY had been unclear. He pointed out that he had been born in Kosovo, that a document issued by the authorities in Kosovo had showed that his parents had had ‘citizenship of Kosovo’ and that he had been allowed to live and work in the SFRY and enjoy all other rights of its citizens. He therefore considered that the Government could not claim that he had been aware that he had been a foreigner with temporary residence in the SFRY, particularly because the ambiguity of his status was at the heart of the dispute in the case at issue. In any case, in the applicant's view, the important fact was that he had disappeared from the register of residence in Croatia in the period between 1993 and 1995, and that the problem of ‘erased persons’ in Croatia had also been an issue raised by the UNHCR in its submission.

The Court reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. In any case, however, the applicant's intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).

The Court has also already held that parties can submit arguments and counter-arguments related to their cases before it and the Court can accept or reject them, but such contentious submissions cannot in themselves be regarded as an abuse of the right of individual application (see Udovičić v. Croatia, no. 27310/09, § 125, 24 April 2014, and Harakchiev and Tolumov v. Bulgaria, nos. 15018/11 and 61199/12, § 185, ECHR 2014 (extracts)).

The Court notes that in different official documents issued following the dissolution of the SFRY, the applicant's nationality is stated differently. For instance, the Ministry's documents of 1993 and 1995 indicate that the applicant was a national of Albania (see paragraphs 18–32 above) whereas a document from 2002 indicates that he was a national of the FRY (see paragraph 35 above). Further, a document of 2003 indicates that he was a national of Serbia and Montenegro (see paragraph 39 above) and the more recent documents that he was a citizen of Kosovo (see paragraphs 45–56 above). At the same time, there is no doubt that the applicant was born and lived in the SFRY until its break-up and that his parents were considered to have been citizens of Kosovo (see paragraph 57 above). Accordingly, given the complexity of the issues surrounding the applicant's citizenship, and in view of the explanations provided by the applicant as to the reasons why he had initially been considered an Albanian national (see paragraphs 37–38 and 57 above) as well as the contentious nature of the matter, the Court does not find that the applicant attempted to intentionally mislead it with regard to his citizenship.

Further, the Court notes that the applicant lived in Croatia at the moment of the dissolution of the SFRY and was assured in 1993 that he would be granted citizenship as he met all the other relevant requirements under the applicable law (see paragraph 25 above), one of which was a registered residence for an uninterrupted period of at least five years in Croatia (see paragraph 60 above). However, in 1996 his second application for Croatian citizenship was dismissed on the grounds that he had not had a registered residence for an uninterrupted period of at least five years in Croatia (see paragraph 31 above). In these circumstances, the Court considers that a reasonable doubt could have arisen on the part of the applicant as to the erasure of his residence in the relevant registers. It cannot therefore be held that the arguments related to the applicant's residence, which remains a matter of dispute between the parties, amount to an abuse of individual application.

In view of the above considerations, the Court rejects the Government's objection.

The applicant contended that he had been unlawfully erased from the register of residence in Croatia sometimes in the period between 1993 and 1995, which had created a continuous situation making it impossible for him to regularise his residence status. The ‘erasure’ in question affected those persons who had had a registered domicile in the Socialist Republic of Croatia but had not acquired Croatian citizenship or obtained permanent residence in the new Croatian State due to the fact that they had failed to meet one of the necessary requirements (to have sufficient financial means; to have secured housing; to have health insurance; to provide documents that justify the purpose of the residence; and to have a valid passport). Those subjected to the erasure had never been informed thereof and the erasure had been carried out automatically and without prior notification. He had also not been informed of the erasure and had not had an opportunity to challenge it before the competent authorities. Nor had he been in a position to foresee the measure complained of to envisage its repercussions on his private or family life or both. In any event, the applicant stressed that there had been no legal basis for the application of the measure of erasure.

The applicant further argued, relying on the UNHCR's submission, that as a result of the erasure, he had been denied Croatian citizenship and had been left bereft of any legal status granting him a right of residence in Croatia. Moreover, the erasure from the residence register and the lack of personal documents had led to his loss of access to social and economic rights, such as the right to work, the right to health insurance and to pension benefits. If identified by the police, he could be subject to detention for up to eighteen months and possibly to deportation. The applicant also stressed that the Croatian authorities had failed to take any action, legislative or administrative, in order to regularise the situation of the ‘erased’ and to regulate clearly the consequences of the ‘erasure’, including the residence status of those who had been subjected to it.

The applicant also stressed that, prior to Croatia's independence, he had lawfully resided in that State for twelve years and had enjoyed a wide range of rights. However, owing to the ‘erasure’, he had experienced a number of adverse consequences, such as the inability to obtain or renew any identity documents, a loss of job opportunities, a loss of health insurance, and difficulties in regulating pension rights. At the same time, Croatia had failed to enact provisions aimed at permitting persons in the same situation as the applicant to regularise their residence status if they had chosen not to become Croatian citizens or had failed to do so although, in the applicant's view, such provisions would not have undermined the legitimate aims of controlling the residence of aliens or creating a profusion of new Croatian citizens, or both. In this connection, the applicant also stressed that he was a long-term migrant in Croatia. He contended that the absence of a legal mechanism that would enable persons who had lost their legal status owing to Croatian independence in spite of their long-term residence in Croatia and the prolonged impossibility of obtaining valid residence permits had been disproportionate and unjustified.

The Government considered that it was important to note that the applicant was not a stateless person but a citizen of Albania. According to the Government, this was evident from the fact that during the proceedings in respect of his application for Croatian citizenship he had submitted that he had been an Albanian citizen. Moreover, in several documents issued by the SFRY authorities in Kosovo (an employment booklet and a certificate on completion of primary education) that applicant had been considered an Albanian citizen. In addition, the Government pointed out that, according to the legislation applicable in 1954 (see paragraphs 66 and 70 above), the applicant's Albanian citizenship had been acquired by birth as his parents had been Albanian citizens. The Government also stressed that the available information showed that the applicant had never been a citizen of the SFRY or any of its republics but had rather had the status of a refugee in the SFRY. On Croatia's declaration of independence, the applicant found himself in that State as an alien with a temporary residence granted in the SFRY.

The Government also argued that the applicant had not had a domicile in the then Socialist Republic of Croatia or the SFRY but had only had temporary residence in the SFRY, registered in Kosovo. Accordingly, the authorities in Kosovo had issued him a residence permit and he had regularised his status with those authorities. The only time when his residence had been registered in the then Socialist Republic of Croatia had been in the period between 4 January and 30 June 1988. Accordingly, he could not have been erased from the relevant register when Croatia declared its independence given that his residence status had already expired. In the Government's view, the case at hand had therefore no similarities with the Kurić and Others case (cited above).

The Government further explained that following Croatia's declaration of independence, the applicant had found himself on its territory as a foreign national without a regularised residence status. Thus, in 1993, the relevant Croatian authorities had taken into account the fact that he had already lived in the former country for a number of years as a refugee and also for a while had a temporary residence in Croatia and that he had expressed his wish to live in Croatia, and issued the applicant an assurance that he would be eligible for Croatian citizenship if he obtained release from Albanian citizenship. The applicant had however remained passive and had never taken any action aimed at renouncing his Albanian citizenship or otherwise complying with the relevant requirements under the applicable Croatian Citizenship Act. In this connection, the Government considered that it had not been unreasonable to expect the applicant to renounce his Albanian citizenship in order to acquire Croatian citizenship as such a requirement had been aimed at avoiding dual nationality. Moreover, in the Government's view, it could not be considered that asking the applicant to contact the Albanian embassy in order to regulate the issue of release from its nationality had been an onerous administrative requirement.

The Government also pointed out that in the period between 1992 and 1995, after he had failed to obtain Croatian citizenship, the applicant had resided in Croatia without any legal basis. This had been why his second application for Croatian citizenship had been refused (see paragraphs 31–33 above). At the time of application, the applicant was unable to regularise his status as he had consistently failed to provide a valid travel document of Albania or to explain why that would be impossible for him to do so. In the Government's view, it was for the applicant, and not for the Croatian authorities, to renounce his citizenship or to show that he was stateless or to obtain a valid travel document from a country whose citizen he was. Lastly, the Government stressed that the Croatian authorities, in view of the applicant's specific situation, had consistently tolerated his stay in Croatia although it had not always been lawful. In fact, nothing had prevented the applicant from regularising his residence status; he had needed only to provide a valid travel document or a reason for which he had been unable to provide it. This would have allowed him to lawfully reside, work and secure health insurance in Croatia.

With regard to the situation in Croatia in general, the Government pointed out that there were not many stateless persons in comparison to the number of stateless persons globally. According to the 2011 census of population, there were 749 stateless person and 2,137 persons with unknown citizenship living in Croatia. Moreover, the ‘erasure’ of the former SFRY nationals with a registered domicile in Croatia had been impossible owing to the safeguards provided under section 79 of the Movement and Stay of Foreigners Act (see paragraph 61 above). In any event, those persons had qualified for Croatian citizenship under section 8 of the Croatian Citizenship Act (see paragraph 60 above). Accordingly, there had never been an ‘erasure process’ in Croatia following its declaration of independence.

The UNHCR stressed the need for States to address the issues of statelessness and to confront the general phenomenon of statelessness in accordance with the existing international mechanisms on the matter. The UNHCR submitted that following the disintegration of the SFRY, all successor States had used the principle of continuity of their internal (within each republic) citizenship in the creation of their new nationality laws. As a result, citizenship of a republic had become the central mechanism for the emerging States to grant nationality. The SFRY successor States, including Croatia, had chosen to grant nationality based upon the list of names in the nationality registers of those republics, which had had a number of consequences. In particular, although in principle statelessness should have been avoided for all former SFRY citizens because they had been presumed to be in possession of citizenship of at least one of the former republics of the SFRY, this approach had had serious repercussions for thousands of people. First of all, it had been incorrect to assume that all former SFRY citizens had possessed and could have proved citizenship of the republic in which they resided. One of the reasons for this is that some of them had not been registered as citizens in one of the republics of the SFRY to which they (or their parents) had moved. The UNHCR's experience in the region had showed that owing to variations in the registration of citizenship of each republic across the six republics since 1945, it had not always been possible to obtain confirmation of citizenship of a particular republic. Those people who had been unable to prove their citizenship of a republic were left stateless because they had not been able to acquire citizenship of any of the successor States of the SFRY.

The UNHCR further explained that after the disintegration of the SFRY, statelessness had affected mainly two groups of persons in Croatia. The first group was those who had had Federal citizenship and had moved to reside in Croatia from another Republic before the dissolution of the SFRY (mostly non-ethnic Croats). The second group comprised those who had been habitually residing in the former Socialist Republic of Croatia but whose residence had never been registered. The residence of the latter group of persons had not been registered notably owing to the lack of civil registration or identity documents that had been necessary to do so. Procedures to regularise residence and subsequently citizenship status for non-ethnic Croats had been introduced in 1991 but had proven ineffective owing to a lack of adequate public information and legal advice about the administrative procedures. This had disproportionately affected vulnerable groups, particularly minority groups from other republics. Owing to the fact that they had been unable to meet onerous administrative burdens such as documentary requirements relating to proof of past residence, and had been unable to pay high application fees, many of these minorities had not been able to regularise their residence status in Croatia. Thus, many had been excluded from acquiring Croatian citizenship or that of another successor State of the SFRY and remained stateless.

The UNHCR argued that persons with a registered domicile in the former Socialist Republic of Croatia who had not acquired Croatian nationality had needed to regularise their residence status in the new State of Croatia as foreigners. If they had not been able to fulfil all of the requirements to obtain temporary or permanent residence in the new State of Croatia, they had been erased from the register of domicile. Among them had been persons who had not acquired a nationality of another successor State of the SFRY and had been thus stateless. As a result of the erasure, they had not only been denied access to Croatian citizenship but had also been left bereft of any legal status granting them a right of residence in Croatia. In most cases, the persons concerned had not been informed about the erasure. Erasure from the register of domicile and the lack of identity documents had led to the loss of access to social and economic rights, such as the right to work, the right to health insurance and to pension benefits. If identified by the police, they could have been subject to detention for up to eighteen months with a view to deportation to their countries of origin. The UNHCR's experience showed that even when it had not been possible to deport stateless persons and they had eventually been released from detention, they had remained unlawfully in Croatia.

The UNHCR further explained, with regard to the legal status of stateless persons, including stateless persons who had been erased from the domicile registers in Croatia, that under the current Aliens Act stateless persons could apply for temporary residence on humanitarian grounds. However, the UNHCR stressed that the renewal of temporary residence permits on humanitarian grounds was far from straightforward for stateless persons, including stateless persons who had been erased from the domicile registers, as it required a valid national biometric passport of the current country of nationality. Stateless persons could not however meet this requirement. Moreover, Croatian legislation did not take fully into account the particular situation of such persons, notably their vulnerabilities and their close ties to the country through their long-term residence. The UNHCR also argued that following the erasure, a number of stateless persons had been denied Croatian citizenship and had continued to experience insecurity and legal uncertainty until today. Since 1991, the Government of Croatia had not undertaken measures to regularise the legal status or provide other remedies for those affected.

The Court notes at the outset that the case at issue concerns a complex and very specific factual and legal situation related to the regularisation of the status of aliens residing in Croatia following the break-up of the former SFRY. In particular, the applicant, whose parents had come to the former SFRY as political refugees from Albania in 1960, was born in Kosovo in 1962, which was at the time an autonomous province of Serbia, but already at a young age came to live to Novska in Croatia. During the existence of the former SFRY, which consisted of several republics including at the time Croatia, the applicant's residence status in Novska was regularised through the recognition of the effects of his domicile in Kosovo and the refugee status granted to his parents by the local authorities there. However, following the break-up of the former SFRY, although at the time he had resided in Novska for some twelve years and continued to reside there, the applicant's residence status passed through many stages and legal regimes and is at present covered by the temporary extension of his residence permit on humanitarian grounds. It should also be noted in this connection that the applicant's presence in Croatia, although in certain periods without any legal basis, was consistently tolerated by the local authorities.

Another distinctive feature of the case is the fact that, according to the available information, the applicant is at present stateless. As already noted above, a birth certificate issued by the SFRY authorities in Kosovo in 1987 indicated that the applicant had no nationality (see paragraph 24 above) and the same follows from a birth certificate issued by the current authorities in Kosovo in 2009 (see paragraph 58 above). Moreover, there are no reasons to doubt the applicant's arguments that he was advised by the Albanian authorities that he was not an Albanian national (see paragraphs 37–38, 57 and 66–74 above).

The Court has also taken note of the applicant's and the third-party intervener's submissions concerning the alleged problem of erasure of persons from the registers of domicile in Croatia following the dissolution of the former SFRY; an issue which gave rise to a breach of Article 8 in the Kurić and Others case against Slovenia (cited above, §§ 360–62). However, the Court does not consider that the case at hand concerns the issue of erasure of the applicant's name from the registers of domicile or residence in Croatia following the dissolution of the former SFRY.

In this connection, the Court notes that the evidence available before it conclusively shows that at the moment when Croatia declared its independence from the former SFRY in June 1991, and severed its ties with that entity in October 1991, the applicant had neither SFRY nationality nor a registered domicile or residence in Croatia. In fact, the available records of the Novska police demonstrate that the applicant was granted, as an immigrant from Albania with a regularised residence status in Kosovo, a temporary residence permit in Novska in the period between 4 January and 30 June 1988 pending the determination of his application for permanent residence in the then Socialist Republic of Croatia (see paragraph 10 above). In the subsequent period, having failed to regularise his residence status in Croatia, the applicant informed the Novska police in 12 June 1990 of a residence permit issued by the relevant authorities in Kosovo valid until 5 November 1991 on the basis of which he continued to de facto reside in Novska (see paragraph 15 above).

It is accordingly evident from the above that the applicant could not have been erased from the register of domicile or residence in Croatia in 1991 as after 1988 he had not resided in Croatia on the basis of any decision or residence permit issued by the Croatian authorities. It is true that a certain misgiving in this respect might arise from the decisions of the Croatian authorities in 1993 to issue the applicant with an assurance that he was eligible for Croatian citizenship, for which a regularised five-year uninterrupted residence in Croatia was needed, and then in 1995 dismissed his application for Croatian citizenship on the grounds that he had not had a registered residence in Croatia for an uninterrupted period of five years (see paragraphs 25 and 31 above). However, the 1995 decision appears to correspond to the reality of the situation arising from the relevant evidence, whereas the 1993 decision was either based on erroneous facts or, for reasons unknown to the Court, assumed that the five-year condition had been met. In any case, the latter decision is unable, in itself, to call into question the facts flowing from the evidence available to the Court.

The Court does not therefore find that the deficiencies in the legislation and practice alleged by the applicant and the third-party intervener concerning the erasure of domicile or residence of aliens residing in Croatia following the dissolution of the SFRY pertain in the applicant's case. Accordingly, reiterating that in proceedings originating in an individual application it is not called upon to review the legislation in the abstract, but has to confine itself, as far as possible, to an examination of the concrete case before it (see, amongst many other authorities, Travaš v. Croatia, no. 75581/13, § 83, 4 October 2016), the Court will not further deal with the alleged issue of erasure from the register of domicile in Croatia following the dissolution of the former SFRY.

Moreover, in the Court's view, the applicant's case should be distinguished from cases concerning ‘settled migrants’ as this notion has been used in the Court's case-law, namely, persons who had already been formally granted a right of residence in a host country and where a subsequent withdrawal of that right, with a possibility of expulsion, was found to constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8, which needed to be justified under the second paragraph of Article 8 (see, for instance, Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006‑XII; Maslov v. Austria [GC], no. 1638/03, ECHR 2008, and Savasci v. Germany (dec.), no. 45971/08, 19 March 2013; see also Jeunesse v. the Netherlands [GC], no. 12738/10, § 104, 3 October 2014).

Likewise, the situation of the applicant, who has resided in Croatia already for almost forty years without ever leaving his place of residence in Novska, and who found himself in a rather specific situation following the break-up of the former SFRY, which occurred outside either the applicant's control or individual choice, also cannot be fully equated to the situation of an alien seeking admission to a host country (see, amongst many others, A.S. v. Switzerland, no. 39350/13, § 46, 30 June 2015).

The applicant's situation is rather a specific situation of a stateless migrant who complains that the uncertainty of his situation and the impossibility to regularise his residence status in Croatia following his almost forty-year, at times regular and constantly tolerated, stay in Croatia adversely affects his private life under Article 8 of the Convention. The instant case thus concerns the issues of the respect for the applicant's private life and immigration lato sensu, both of which have to be understood in the context of the complex circumstances of the dissolution of the former SFRY.

Against the above background, the Court finds it appropriate, having in mind the circumstances of the applicant's case, to examine his complaint on the basis of its case-law related to the complaints of aliens who, irrespective of many years of actual residence in a host country, were not able to regularise their residence status and/or their regularisation of the residence status was unjustifiably protracted. In the Court's case-law, such cases, each of course within its particular factual circumstances, were found to involve an allegation of a failure on the part of the respondent State to comply with a positive obligation under Article 8 of the Convention to ensure an effective enjoyment of an applicant's private and/or family life (see Kurić and Others, cited above, §§ 357–58; Jeunesse, cited above, § 105; B.A.C. v. Greece, no. 11981/15, § 36, 13 October 2016; and Abuhmaid v. Ukraine, no. 31183/13, §§ 116–18, 12 January 2017). The relevant principles concerning the State's positive obligation in this respect will be summarised further below.

At the outset, the Court reiterates that Article 8 protects, inter alia, the right to establish and develop relationships with other human beings and the outside world and can sometimes embrace aspects of an individual's social identity. Thus, the totality of social ties between a migrant and the community in which he or she lives constitutes part of the concept of private life under Article 8 (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 63, ECHR 2008, and Abuhmaid, cited above, § 102).

Nevertheless, according to the Court's case-law, the Convention does not guarantee the right of an alien to enter or to reside in a particular country and Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens (see, amongst many other authorities, Chahal v. the United Kingdom, 15 November 1996, § 73, Reports of Judgments and Decisons 1996-V; Üner, cited above, § 54; Slivenko, cited above, § 115; Kurić and Others, cited above, § 355, and Abuhmaid, cited above, § 101).

Moreover, neither Article 8 nor any other provision of the Convention can be construed as guaranteeing, as such, the right to the granting of a particular type of residence permit, provided that a solution offered by the authorities allows the individual concerned to exercise without obstacles his or her right to respect for private and/or family life (see Aristimuño Mendizabal v. France, no. 51431/99, § 66, 17 January 2006, and B.A.C v. Greece., cited above, § 35). In particular, if a residence permit allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of Article 8. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Ramadan v. Malta, no. 76136/12, § 91, ECHR 2016 (extracts), and cases cited therein).

Having said that, the Court reiterates that measures restricting the right to reside in a country may, in certain cases, entail a violation of Article 8 of the Convention if they create disproportionate repercussions on the private or family life, or both, of the individuals concerned (see Maslov, cited above, § 100, and Kurić and Others, cited above, § 355). Moreover, the Court has held that in some cases, such as in the case at issue, Article 8 may involve a positive obligation to ensure an effective enjoyment of the applicant's private and/or family life (see paragraphs 119–120 above). In this connection, it is helpful to reiterate that the boundaries between the State's positive and negative obligations under Article 8 do not lend themselves to precise definition. The applicable principles are nonetheless similar. In both instances regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see, amongst many other authorities, Fernández Martínez v. Spain [GC], no. 56030/07, § 114, ECHR 2014 (extracts), and B.A.C. v. Greece, cited above, § 36).

The positive obligation under Article 8 may be read as imposing on States an obligation to provide an effective and accessible means of protecting the right to respect for private and/or family life (see Roche v. the United Kingdom [GC], no. 32555/96, § 162, ECHR 2005‑X, and Abuhmaid, cited above, § 118, with further references; see also Kurić and Others, cited above, § 358). Article 8 requires, amongst other things, a domestic remedy allowing the competent national authority to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to such an obligation (see Abuhmaid, cited above, § 118).

Accordingly, in view of the nature of the applicant's complaint and the fact that it is primarily for the domestic authorities to ensure compliance with the relevant Convention obligation, the Court considers that the principal question to be examined in the present case is whether, having regard to the circumstances as a whole, the Croatian authorities, pursuant to Article 8, provided an effective and accessible procedure or a combination of procedures enabling the applicant to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests (see, mutatis mutandis, Kurić and Others, cited above, §§ 357–59; Jeunesse, cited above, § 105, and Abuhmaid, cited above, § 119).

The Court notes at the outset that there can be no doubt that the applicant enjoys private life in Croatia. He came to Novska at the age of seventeen and has lived there ever since, that is to say for almost forty years (see paragraph 7 above). He has worked at different jobs and accumulated social ties in the local community where he lives (see paragraphs 15, 17, 18, 21, 43 and 48 above, and compare Abuhmaid, cited above, § 103). At present, he is fifty-five years old and has no link with any other country or place of residence and has in the meantime lost contact with all his relatives (see paragraph 8 above).

At the same time, the applicant's residence status in Croatia is uncertain as it depends on one-year extensions of his residence permit on humanitarian grounds, dependent on him providing a valid travel document, a condition which the applicant considers impossible for him to meet as he is stateless, or obtaining the discretionary consent of the Ministry for his stay, which has not been exercised consistently (see paragraphs 49 and 55-56 above). Moreover, although nominally available to him, the applicant's prospect of finding employment is de facto hampered without a regularisation of his residence status. He is therefore unemployed and survives by helping out on the farms in the Novska area (see paragraphs 43 and 48 above), which undoubtedly adversely affects the prospect of him securing normal health insurance or pension rights (see paragraph 99 above). In these circumstances, particularly in view of the applicant's advanced age and fact that he has lived in Croatia for almost forty years without having any formal or de facto link with any other country, the Court accepts that the uncertainty of his residence status has adverse repercussions on his private life.

The Court further notes several important particular features of the present case. It first and foremost takes into consideration the above-observed fact that the applicant's position cannot simply be considered to be on a par with that of other potential immigrants seeking to regularise their residence status in Croatia (see paragraph 116 above). The applicant was born in 1962 in the former SFRY as the child of an Albanian refugee couple that lawfully resided in that country. As Croatia was at the time part of the SFRY, the applicant came to live in Novska in 1979 where he settled and lived under the temporary residence regime provided by the authorities in Kosovo related to his status of an Albanian refugee which was recognised throughout the former SFRY. At the same time, according to a birth certificate issued in 1987, the applicant did not have any nationality (see paragraph 24 above). Although the applicant never changed his place of residence or any other feature of his personal status his already complex residence status was made even more convoluted by the break-up of the former SFRY, complex and disturbed succession process and the ensuing war. It was in these circumstances that the applicant, despite having lived in Croatia for almost forty years, found himself in the above-noted uncertainty of his residence status (see paragraph 126 above). In this sense, although the applicant was not subject to a process of erasure of his residence status (see paragraph 114 above), the applicant's case has some resemblance to the cases of applicants in Kurić and Others (cited above, §§ 357–59) who, following the succession of the republics of the former SFRY, found themselves in a situation in which they were unable to regularise their residence status.

A second important feature of the instant case is the fact that, as already noted above, the applicant is at present stateless (see paragraphs 24 and 110 above). A further important feature of the case is the fact that the applicant's parents died and that over the years he lost contact with his sisters (see paragraph 8 above). He has no other family or relatives in another country with whom he maintains contact nor was it ever established during the domestic proceedings that the applicant had any link with Albania or any other country. In fact, the applicant only in 1992 mentioned a brother who lived in Albania, but he did not even know where that brother lived (see paragraph 21 above). Thereafter the applicant never mentioned that brother and the information obtained by the police during the domestic proceedings did not establish that the applicant had maintained any links with his brother or anybody else in another country.

The Court lastly considers it important to note in this context that an important feature of the applicant's case is also the fact that his residence status in Croatia, although not always regularised, was tolerated by the Croatian authorities for a number of years. In particular, following the dissolution of the SFRY and the ensuing war, the applicant was recruited to perform a mandatory civil service in Novska. His residence status was afterwards regularised only in the period between 1993 and 1997 (see paragraph 27 above) and in the period between 2011 and 2014 (see paragraph 45 above) and then again since September 2015 until present (see paragraphs 55–56 above). At the same time, almost twenty-seven years have passed since Croatia declared independence and the applicant has been living in the same place of residence ever since. Moreover, although he was prosecuted for minor offences related to the status of aliens (see paragraph 48 above), the domestic authorities never instituted any proceedings related to the removal of unlawful aliens as provided under the relevant domestic law.

In this context, the Court also notes that, although a criminal complaint was lodged against him for causing a road accident, there is no evidence or suggestion that the applicant has a criminal record (see paragraph 48 above) nor did the intelligence agency find that the applicant was involved in any suspicious activity (see paragraphs 23 and 28 above). The only observation in that connection was made in the Novska police report of 1995 suggesting that the applicant had been socialising with individuals of similar characteristics with a tendency to get involved in trading of grey-market goods (see paragraph 29 above). However, the Court observes that this observation is unsubstantiated in any respect and that the report at issue contains a number of contradictions. For instance, it indicates that the applicant never tried to regularise his residence status in Croatia, which is not true in view of the fact that for a while in 1988 he had a regularised residence in Croatia (see paragraph 10 above). It also suggests that the applicant disappeared from his place of residence during the war in Croatia, which contradicts evidence showing that the applicant was engaged in mandatory civilian service in that period (see paragraph 17 above). It is also not clear what was meant by the suggestion that the applicant had an Albanian passport issued in Kosovo as obviously the local authorities in Kosovo could not have issued him with an Albanian passport and in any event the birth certificates issued by those authorities in 1987 and 2009 do not indicate that the applicant had Albanian nationality, which would have been a precondition for him obtaining an Albanian passport. Lastly and most importantly, the Court notes that the contents of the 1995 report were never mentioned or supported by any of the police or intelligence agency's reports on the applicant's personal situation.

Furthermore, having regard to the circumstances related to the applicant's residence status as a whole (see paragraph 124 above), the Court notes several aspects of the proceedings related to the applicant's application for a permanent residence permit in Croatia (see paragraphs 34-44 above). In making that assessment, the Court finds it important to note that it cannot subscribe to the Government's arguments which rely on the proceedings concerning the applicant's applications for Croatian citizenship. As explained in the Kurić and Others case (cited above, § 357), an alien lawfully residing in a country may wish to continue living in that country without necessarily acquiring its citizenship. Indeed, the applicant's complaint does not concern the impossibility for him to obtain Croatian citizenship but the general impossibility to regularise his residence status in Croatia. The Court is therefore not called upon to examine 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 (compare Kurić and Others, cited above, §§ 357–59).

With regard to the proceedings related to the applicant's application for a permanent residence permit in Croatia, the Court notes that this request was essentially dismissed because the applicant did not have three years of uninterrupted employment in Croatia and there was no particular interest of Croatia, as provided under section 29(2) of the Movement and Stay of Foreigners Act, in granting him a residence permit (see paragraphs 39 and 41 above).

The Court notes, however, that the applicant's employment booklet, which was available in the proceedings in question, indicates that he had been in employment in the period between July 1986 and December 1989 (see paragraphs 34 and 41 above). This period of employment was interrupted only for a period of some fifteen days (between 15 July and 1 August 1987). Although it was not explicitly mentioned in the decisions of the domestic authorities, the Court considers that if this interruption of the applicant's employment had led to the consideration that he did not have an uninterrupted employment in Croatia for three years, such a position, although formally correct, in view of all the applicant's personal circumstances, appears to have been overly formalistic and not reflective of the reality of the situation. Moreover, it is noted that the applicant provided assurance that he would be employed by the same employer if he managed to regularise his residence status (see paragraph 43 above).

In this connection, the Court also notes that the domestic authorities, including the Constitutional Court, did not take into account any private-life considerations related to the applicant's particular situation although the above-noted special features of the applicant's case were well known to them (see paragraphs 124–27 above; and compare, by contrast, Abuhmaid, cited above, § 122). Moreover, section 29(2) of the Act on the Movement and Stay of Foreigners, which the domestic authorities mentioned, allowed them to grant permanent residence to foreigners ‘in view of the particular personal reasons’ (see paragraph 61 above). However, the domestic authorities only found that there was no particular interest of Croatia in granting the applicant permanent residence without making any assessment of the applicant's ‘particular personal reasons’, as provided in the cited provision.

Having in mind the above circumstances of the applicant's case, the Court will now turn to the current proceedings through which the applicant is trying to regularise his residence status in Croatia. As already discussed above, this concerns the applicant's residence status on humanitarian grounds which is extended every year upon the applicant's request and which, if it were to reach a period of five years of uninterrupted residence, would qualify the applicant for applying for a permanent residence permit and thus regularising his residence status (see paragraph 62 above; section 92 of the Aliens Act). It has already been noted above that in order to prolong the stay on humanitarian grounds, the applicant needs either a valid travel document or the Ministry, upon its discretion, can give consent for the extension of the stay on humanitarian grounds even in the absence of a valid travel document (see paragraphs 81–82 above).

With regard to the applicant's possibility of obtaining a valid travel document to extend the stay on humanitarian grounds, the Court takes note of the third-party intervener's submission according to which in practice this means providing a valid national biometric passport of the current country of origin, which is a requirement that stateless persons are unable to meet (see paragraph 108 above). Indeed, the Court has already noted above that the applicant's possibility of obtaining Albanian nationality cannot be taken as an effective and realistic option (see paragraph 110 above).

It should also be noted that under the relevant domestic law stateless persons are not required to have a valid travel document when applying for a permanent residence permit in Croatia (see paragraph 62 above, and sections 93 and 96 of the Aliens Act). However, as the applicant's case shows, in practice this is of a limited relevance as in order to be able to apply for permanent residence, a stateless person would need to have a five-year uninterrupted temporary residence in Croatia for which a valid travel document is needed. Thus, in reality, contrary to the principles flowing from the Convention relating to the Status of Stateless Persons (see paragraph 65 above), stateless individuals, such as the applicant, are required to fulfil requirements which by the virtue of their status they are unable to fulfil.

Furthermore, the Court finds it striking that despite being aware that the applicant does not have any nationality, as is evident from his birth certificates issued by the authorities in Kosovo in 1987 and 2009, when extending the applicant's residence status on humanitarian grounds the Croatian authorities insisted that the applicant was a national of Kosovo (see paragraphs 53 and 55–56 above). As there was no suggestion that the applicant had ever had Kosovo nationality, it is difficult to understand the Croatian authorities' insistence on the fact that the applicant should obtain a travel document from the authorities in Kosovo (see paragraph 53 above). It is also noted in this connection that despite the applicant's statelessness, which was apparent from the relevant documents available to the Croatian authorities, they never considered taking the relevant measures, such as providing administrative assistance to facilitate the applicant's contact with the authorities of another country, to resolve the applicant's situation, as provided in the international documents to which Croatia is a party (see paragraph 65 above; see also paragraph 63 above).

With regard to the extension of the applicant's temporary stay on humanitarian grounds on the basis of the Ministry's consent, the Court has already observed above that such consent is purely a discretionary facility of the Ministry (see paragraph 81 above). Indeed, without providing any reasons, the Ministry refused to allow the extension of the applicant's temporary residence in July 2014 (see paragraph 49 above) whereas, also without providing any reasons, the Ministry gave its consent for the extension of the applicant's temporary stay in September 2015 and October 2016 (see paragraphs 55–56 above). The situation was thus created in which the period of the applicant's regularised stay between July 2011 and August 2014 was interrupted. This therefore delays his prospect of applying for permanent residence permit for a future period in which he would need to have five years of uninterrupted residence on humanitarian grounds subject to the Ministry's discretion, which has not been exercised consistently and which appears to takes no account of the special features of the applicant's case and his private-life situation.

The Court also notes that the applicant challenged the 2014 decision of the Ministry refusing the extension of his temporary stay before the Zagreb Administrative Court. However, it took that court more than two years to examine the applicant's complaints only to dismiss them by endorsing the Ministry's refusal to extend the applicant's temporary stay on humanitarian grounds. It thereby made no assessment of the applicant's specific private life situation and the circumstances of his stay in Croatia from the perspective of Article 8 of the Convention (see paragraph 54 above). In any case, although the applicant has challenged that ruling before the High Administrative Court, it should be noted that, even in the event of a positive ruling, it is uncertain, in view of the above considerations related to the manner in which the Ministry exercised its discretion in the applicant's case, whether it would have any real effect on the applicant's prospect of effectively regularising his residence status in Croatia.

Having regard to all the above procedures and circumstances cumulatively, the Court does not consider that, in the particular circumstances of the applicant's case, the respondent State complied with its positive obligation to provide an effective and accessible procedure or a combination of procedures enabling the applicant to have the issues of his further stay and status in Croatia determined with due regard to his private-life interests under Article 8 of the Convention (compare Kurić and Others, cited above, § 359; and contrast Abuhmaid, cited above, § 126).

The Court therefore rejects the Government's objection it has previously joined to the merits (see paragraph 88 above).

It also finds that there has been a violation of Article 8 of the Convention.