von Rütte 149 Three points seem of particular interest and shall be discussed in more detail in the following outline: 1) the ECtHR’s acceptance of the applicant’s statelessness and the recognition of stateless persons as belonging to a particular group which is exposed to particular vulnerability (3.1); 2) the Court’s finding of a right to an accessible, fair and effective regularisation procedure under Article 8 ECHR (3.2); and 3) the particular circumstances of the case at hand in the context of the collapse of the SFRY (3.3). 3.1 Statelessness as a Factor of Particular Vulnerability A central element of the case was the question of whether Mr Hoti was, in actuality, stateless and what impact this had on his life. The Croatian government had disputed this, arguing that the applicant was not stateless but Albanian citizen by descent through his parents.19 On the other side, the applicant’s claim that he was, in fact, stateless was supported by UNHCR as a third-party intervention stressing that the disintegration of the SFRY had left thousands of former SFRY citizens stateless.20 Dissolution and succession of states indeed are highly complex situations that expose the population of the predecessor states to the risk of statelessness.21 Mr Hoti’s biography mirrors the complex and multifaceted history of statehood and citizenship on the Balkan. He was born to Albanian parents in Kosovo, then an autonomous province of Serbia, which was itself one of the republics of the SFRY. He later settled in another republic of the SFRY: Croatia. After the dissolution of the SFRY, Serbia, Croatia and, a bit later, Kosovo became independent states.22 Albania transitioned to a parliamentary system in 1991. The Court acknowledged that Mr Hoti’s birth certificate did not state a nationality, that none of the involved successor states accepted him as a citizen and that it cannot be reconstructed which nationality he had at which point in time. Moreover, the ECtHR was of the opinion that acquiring Albanian nationality was not an effective and realistic option for Mr Hoti.23 Recalling the relevant provisions of the Convention relating to the Status of Stateless Persons24 and without requiring any further proof, the Court accepted that ‘according to the available information, the applicant is at present stateless’.25 This straightforward recognition of Mr Hoti’s statelessness is important.26 The Court refrained from placing the burden of proving a negative—the fact that he was not a national of neither Albania, Kosovo nor Serbia—on the applicant and implicitly rejected interpretations of Article 1 of the 1954 Convention according to which the impossibility of re-acquiring a nationality was a precondition for recognizing statelessness.27 At the same time, the Court recognised ‘stateless migrants’ as belonging to a specific group which is at particular risk of becoming a victim of human rights violations28—and who are often required to meet requirements which by virtue of their status they are unable to fulfil29.30 This finding differs substantially 19 20 21 22 23 24 25 26 27 28 29 30 Hoti v. Croatia (n 1) para 100. Hoti v. Croatia (n 1) para 105 ff. See among many Ineta Ziemele, ‘State Succession and Issues of Nationality and Statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014); Jeffrey Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’ (1998) 19 Michigan Journal of International Law 1141; Christine Kreuzer, ‘Kommentar: Die Bedeutung der Menschenrechte für die Regelung der Staatsangehörigkeit’ in Kay Hailbronner and Eckart Klein (eds), Flüchtlinge – Menschenrechte – Staatsangehörigkeit: Menschenrechte und Migration; Beiträge anlässlich des Symposiums am 9./10. Oktober 2000 in Potsdam (Müller 2002). The need to protect individuals from statelessness is also reflected in Article 3 of the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession of 2006, ETS No. 200, and Article 4 of the ILC Draft Articles on Nationality of Natural Persons in relation to the Succession of States of 1999 which call upon states to take the necessary measures to prevent statelessness in the context of state succession. See on the history of citizenship in the SFRY and of its dissolution also the ECtHR’s judgment in Kurić and Others v Slovenia (Chamber) [2010] ECtHR Application No. 26828/06, para. 19 ff. as well as Andreas Zimmermann, ‘Dissolution of Yugoslavia’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2011); Christine Kreuzer, Staatsangehörigkeit und Staatensukzession : die Bedeutung der Staatensukzession für die staatsangehörigkeitsrechtlichen Regelungen in den Staaten der ehemaligen Sowjetunion, Jugoslawiens und der Tschechoslowakei (Duncker und Humblot 1998). Hoti v. Croatia (n 1) para 136. Convention Relating to the Status of Stateless Persons, 28 September 1954, 360 UNTS 117 (1954 Convention). Hoti v. Croatia (n 1) para 110. See also Swider (n 3). Switzerland, for example, only recognises individuals as stateless if they have lost their nationality through no fault of their own and have no means of reinstating it, see Federal Tribunal, 2C_1/2008, judgment of 28 February 2008, E. 3.2. This practice is in contradiction to the interpretation of the 1954 Convention by UNHCR and now also seems to contradict the case law of the ECtHR. See also the criticism voiced by UNHCR regarding this practice, UNHCR Büro für die Schweiz und Liechtenstein, Staatenlosigkeit in der Schweiz, November 2018, <https://www.unhcr.org/dach/wp-content/uploads/sites/27/2018/11/CH_UNHCR-Statelessness_ in_Switzerland-GER-screen.pdf> accessed 28 December 2018. See also Swider (n 3); Lambert (n 3). Hoti v. Croatia (n 1) para 137. See also David Weissbrodt and Clay Collins, ‘The Human Rights of Stateless Persons’ (2006) 28 Human Rights Quarterly 245.