Published on 7 July 2025
THIRD SECTION
Application no. 16807/24
Stojan RISTIĆ and Others
against Slovenia
lodged on 4 June 2024
communicated on 24 June 2025
SUBJECT MATTER OF THE CASE
The applicants, whose particulars are set out in the Appendix, are a family of three, who had lived in Slovenia for several years until they left it in May 1992 (father) and July 1992 (mother and daughter). In the meantime they had been “erased” from the permanent residents register on 26 February 1992 (see Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 21-39, 341-362, and 393-396, ECHR 2012 (extracts)) and were subsequently not able to obtain a permanent residence permit under the Act on the Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in Slovenia adopted in 2010 (hereinafter “the Amended Legal Status Act”).
In 2013, the applicants applied for permanent residence permits under the Amended Legal Status Act. The latter sets out that in order to obtain a permanent residence permit the person in question must demonstrate that he or she has “actually resided” in Slovenia at the time of the “erasure”. Under section 1(č) of the Amended Legal Status Act the condition of “actually residing” in Slovenia could be met in certain cases of justifiable absences. In particular, the condition of “actually residing” in Slovenia could be satisfied if the justified absence did not exceed five years, and for further five years provided that the person also demonstrated that he or she had tried to return to Slovenia in order to live there (see Kurić and Others, cited above, §§ 76‑79). In the present case, the Administrative Unit rejected the applicants’ requests under section 1(č) finding that the applicants had failed to prove that they had actively tried to return to Slovenia during the first ten years following their departure.
The applicants lodged an action with the Administrative Court, which dismissed it. The Administrative Court found that while the first five years of the applicants’ absence from Slovenia could be considered justified (as resulting from the “erasure”), this was not the case for the subsequent five years, since the applicants had not made any attempt to return to Slovenia.
The applicants lodged an appeal on points of law, which was rejected by the Supreme Court. The Constitutional Court examined their constitutional complaint and petition for the review of constitutionality on the merits, assessing the constitutionality of both the Amended Legal Status Act and the Act on Compensation for Damage to Persons Erased from the Register of Permanent Residents, which it considered to be intertwined. On 6 February 2024 it dismissed the applicants’ constitutional complaint and petition by six votes to three. The Constitutional Court’s decision was served on the applicants on 5 March 2024.
The applicants complain under Article 8 of the Convention and in substance under Article 13 of the Convention, contesting the decision of the Constitutional Court and the application of the domestic legislation adopted for the protection of the “erased” persons.
In particular, the applicants allege that the Amended Legal Status Act had set impossible conditions for acquiring residence status for those “erased” who had been forced to leave Slovenia. In this respect they argue that the domestic courts’ interpretation of section 1(č) of the Amended Legal Status Act was arbitrary and provided no chance of restoring their legal status (namely obtaining the permanent residence permits) and receiving compensation for the violations that they had suffered (citing Anastasov and Others v. Slovenia (dec.), no. 65020/13, § 102, 18 October 2016). The applicants assert that many of the “erased” were turned away when they tried to return to Slovenia before 2010 as they had no right to legal entry. In this connection, the applicants dispute the domestic authorities’ expectation that they should have attempted to return during that period.
The applicants also challenge the Constitutional Court’s view that the acknowledgment of violations of the “erased” persons’ rights in the domestic legal system provided sufficient moral satisfaction for them. They argue that this conclusion is inconsistent with the Court’s reasoning in its judgment in Kurić and Others (cited above) and its decision in Anastasov and Others (cited above), as it fails to offer adequate redress for the harm suffered due to the “erasure”.
Relying on Article 6, the applicants complain that Judge M.A., along with another judge of the Constitutional Court, casted votes contrary to their own judicial convictions only to avoid a deadlock. In this respect, the applicants highlight that in his concurring opinion, Judge M.A. criticized the impugned provisions of the Amended Legal Status Act as being incompatible with the right to an effective remedy and explained that he had voted for the disputed decision because the Constitutional Court judges had been repeatedly unable to reach a majority for a decision upholding the applicants’ complaint.
The applicants further complain, under Article 1 of Protocol No. 1 to the Convention, that the compensation scheme established by the Act on Compensation for Damage to Persons Erased from the Register of Permanent Residents effectively prevents the “erased” persons in similar situations as them from receiving compensation, given that the compensation could be granted only if the conditions for the residence set out in the Amended Legal Status Act were met.
QUESTIONS TO THE PARTIES
1. Having regard to the reasons underpinning the rejection of the applicants’ request for permanent residence permits, has there been a violation of Article 8 taken alone and in conjunction with Article 13 of the Convention (see Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 341‑362, 393-396, ECHR 2012 (extracts))?
2. Is Article 6 § 1 of the Convention applicable to the proceedings before the Constitutional Court in the present case? If so, did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention, as regards the proceedings before the Constitutional Court?
The parties are invited to comment, in particular, on whether the voting process before the Constitutional Court – where some judges reportedly voted against their convictions to avoid a deadlock – impaired the overall fairness of the proceedings before the Constitutional Court.
3. Is Article 1 of Protocol No. 1 to the Convention applicable regarding the applicants’ inability to seek compensation under the scheme established by the Act on Compensation for Damage to Persons Erased from the Register of Permanent Residents? If so, has there been a violation of Article 1 of Protocol No. 1 to the Convention on account of the applicants’ lack of access to compensation under the aforementioned scheme?
APPENDIX
Application no. 16807/24
No.
Applicant’s Name
Year of
birth
Nationality
Place of residence
1.
Stojan RISTIĆ
1954
Kosovar[1]
Lipljan
2.
Danijela NIKOLIĆ
1982
Kosovar
Priština
3.
Radica RISTIĆ
1960
Kosovar
Lipljan
[1] All reference to Kosovo, whether to the territory, institutions or population, in this text shall be understood in full compliance with United Nations Security Council Resolution 1244 and without prejudice to the status of Kosovo.