148 Social Identity and the Right to Belong – The ECtHR’s Judgment in Hoti v. Croatia 2 Displacement, State Succession and Rejected Permits: The Facts Bedri Hoti was born in 1962 in Kosovo which was at that time part of the Socialist Federal Republic of Yugoslavia.5 His parents had previously fled Albania and were granted refugee status in Kosovo. In 1979, the applicant moved to Croatia (also one of the republics of SFRY). Mr Hoti has been living and working in the same town of Novska in Croatia ever since.6 He is not married, has no children and has lost contact to other members of his family after his parents have died.7 Apart from a driving licence, Mr Hoti has no travel or identity documents and all attempts to obtain documents failed.8 His birth certificate—issued by Kosovar authorities—notes that Mr Hoti does not have a nationality.9 The Croatian authorities considered him to be a citizen of Serbia and Montenegro, Kosovo or Albania. After the independence of Croatia from the SFRY and the subsequent war, Mr Hoti applied for Croatian citizenship in 1992.10 The application failed because Mr Hoti was not able to submit evidence that he had renounced his—alleged—Albanian citizenship within a period of two years, even though he theoretically fulfilled all requirements to acquire Croatian citizenship.11 A second application three years later was rejected because the applicant did not have a registered residence in Croatia for an uninterrupted period of five years—as he was only registered with the local authorities since 1993.12 Similarly, an application for a permanent residence permit was rejected in 2001 because Mr Hoti did not fulfil the requirements for such permit.13 Even though Mr Hoti’s repeated attempts to regularise his legal status in Croatia since 1987 were futile, he nevertheless stayed in Croatia, sometimes irregularly although informally tolerated by the authorities, sometimes with a temporary residence permit on humanitarian grounds valid for a couple of months.14 When he tried to prolong this temporary residence permit for the fourth time in 2014 his request was denied as he failed to provide a valid travel document. His appeal against this decision was still pending when Mr Hoti lodged his complaint with the ECtHR in 2014. After the case was communicated to the Croatian government, the applicant was again granted a temporary residence permit on humanitarian grounds.15 3 Particular Vulnerability of Stateless Persons and a Right to Regularisation: The Judgment In his complaint to the ECtHR, Mr Hoti argued that the ‘insecurity of his residence status in Croatia due to the fact that he had not had an effective possibility to regularise his residence status’ violated the right to private life protected by Article 8 ECHR.16 The Croatian government, by contrast, maintained that the applicant was in the meantime granted another temporary residence permit on humanitarian grounds and thus lacked victim status and that he had not pursued the relevant steps for regularising his residence status in Croatia failing to exhaust domestic remedies. On the merits, Croatia disputed that the applicant was stateless but that he had Albanian citizenship. Thus, the government argued, he could have regularised his residence status any time by providing a valid travel document. The Court first underlined the complexity of the factual and legal situation of the case.17 Then it weighed the arguments of the parties and came to a unanimous verdict: Croatia had not complied with its positive obligation under Article 8 ECHR to provide an effective and accessible procedure enabling Mr Hoti to have his stay and status in Croatia determined with due regard to his private life interests.18 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Hoti v. Croatia (n 1) para 5 ff. Hoti v. Croatia (n 1) para 7. Hoti v. Croatia (n 1) para 8 and 21. Hoti v. Croatia (n 1) para 35 and 38. Hoti v. Croatia (n 1) para 58. Hoti v. Croatia (n 1) para 18 ff. Hoti v. Croatia (n 1) para 25. Hoti v. Croatia (n 1) para 26 ff. Hoti v. Croatia (n 1) para 34 ff. Lambert (n 3). Hoti v. Croatia (n 1) para 55 f. Croatia’s request to strike the application out of the list of cases as being resolved on the basis of the new permit was rejected by the Court as the ‘effects of the temporary residence status on humanitarian grounds cannot be said to amount to a measure removing the uncertainty of the applicant’s residence status of which he complains’ (para 82). Hoti v. Croatia (n 1) para 75. Hoti v. Croatia (n 1) para 109. Hoti v. Croatia (n 1) para 141. The complaints raised under Article 14 in conjunction with Article 8 ECHR and Article 1 of Protocol No. 12 were declared manifestly ill-founded.