In 1991, Slovenia gained its independence. Subsequently, legal issues arose concerning the legal status of nationals from other republics of the Socialist Federal Republic of Yugoslavia (SFRY) who were lawfully and permanently residing in Slovenia during this transition. They could, up to a certain date, choose to apply for Slovenian nationality. If they did not apply or if their application was rejected, the newly passed Law on Foreigners (ZTuj) would apply to them in accordance with Article 81(2) of ZTuj. However, for those nationals of other SFRY republics that did not opt for Slovenian nationality or whose application was rejected, this law failed to define the conditions for obtaining permanent residence. These individuals found themselves in a legal vacuum, leading to uncertainty and challenges regarding their legal status, facing possible deportation and limited access to essential services. In this decision, the Constitutional Court of Slovenia declared that Article 81(2) of ZTuj was unconstitutional as it had not outlined the conditions for acquiring permanent residence for this specific group of individuals.
- Article 13(2), 28, 64, 81(2), 82(3) of the Slovenian Law on Foreigners (“ZTuj”)
- Slovenian Law on citizenship (“ZDrz”)
- Article 2 of the Constitution of the Republic of Slovenia (“The Constitution”)
- Article 5 of the Slovenian Regulations on Registration
- The Constitutional Law on Implementation of the Basic Constitutional Paper on Autonomy and Independence of the Republic of Slovenia
- Article 12 of the International Covenant on Civil and Political Rights (“ICCPR”)
- Article 8 of the European Convention on Human Rights (“ECHR”)
Slovenia, formerly a constituent republic of the SFRY, declared its independence in June 1991. The SFRY was a federation composed of six republics and, before its dissolution, SFRY nationals held two nationalities – one to their own republic and a one to the SFRY itself.
SFRY nationals residing in Slovenia enjoyed the same rights as those with Slovenian nationality if they were registered as permanent residents. Upon Slovenia´s independence in 1991, special provisions were enacted to regulate their status in the new State. Article 13 of The Enabling Statute for the Implementation of the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia provided that nationals of other SFRY republics who had permanent residence in Slovenia should have the same rights and duties as Slovenian nationals. However, this only applied to those SRFY nationals who, on 23 December 1990 (the day of the plebiscite on the independence and sovereignty of the Republic of Slovenia), both held Slovenian permanent residence and had Slovenia as their current location of residence. SFRY citizens who met these criteria had the choice to apply for Slovenian nationality by the deadline of 26 December 1991, in accordance with the newly passed Law on Citizenship (ZDrz) which determined the conditions and procedure for nationals of other SFRY republics to acquire the citizenship of the Republic of Slovenia. Those who applied for Slovenian nationality before the deadline, and whose application was accepted, became Slovenian nationals. However, those who did not apply for Slovenian nationality or whose application was rejected were subject to the provisions of the Law on Foreigners (ZTuj). As explained below, this new law – passed in June 1991, right after Slovenia’s independence – created uncertainty with respect to the legal status of such individuals.
ZTuj was also passed as part of the bundle of legislations relating to Slovenia´s independence. Article 81(2) of ZTuj outlined that with respect to the nationals of other SFRY republics who met the aforementioned criteria but did not apply for Slovenian nationality, or whose application for nationality was rejected, provisions of the ZTuj would start to apply two months after the expiry of the time period within which they could apply for nationality of Slovenia, or from the date of issuance of final decision on nationality.
However, ZTuj did not contain any further special provisions concerning the group of nationals from other SFRY republics who as set out in Article 81(2) did not apply for Slovenian nationality, or whose application was rejected, and the general rules (for all foreigners) therefore applied. The consequence of the unregulated legal status of nationals from other SFRY republics was that competent administrative authorities in Slovenia erased those individuals from the permanent residence register and considered them as foreigners. Consequently, they applied Article 13 of ZTuj for them, which stated that a foreigner can stay on the territory of Slovenia for maximum three months and if they want to stay longer, they need to apply for temporary residence. Administrative authorities automatically issued temporary residence permits to these individuals or in some cases merely considered them as applicants for temporary residence. This was done even though, before Slovenia´s independence, these nationals from other SFRY republics held Slovenian permanent residence and were actually residing in Slovenia.
According to Article 13(2), to obtain a temporary residence permit, these individuals had to demonstrate that they met at least one condition outlined in the article which would justify a longer period of residence in Slovenia (“for the purpose of education, specialisation, employment, medical treatment, pursuit of a professional activity, or has contracted a marriage with a citizen of the Republic of Slovenia, has immovable property in the territory of the country, enjoys a right arising from work in the country, or has any other justifiable reason which would make it necessary for him or her to remain in the country for a longer period of time”), and prove that they had sufficient means of financial support. If an individual failed to satisfy any of the specified conditions, the competent administrative authorities had the discretion to reject the application. Once such a decision became final, nationals from other SFRY republics were stripped of their right to reside in the territory of the Republic of Slovenia (as per Article 28 of the ZTuj). The issuance of a temporary residence permit was a prerequisite for applying for the permanent residence permit in accordance with Article 16 of the ZTuj.
It is important to note that foreigners from countries other than the former republics of the SFRY (e.g. France, Austria, etc.), who held permanent residence in Slovenia before its independence and were actually residing in Slovenia, retained their permanent residence status after Slovenia`s independence. Unlike nationals from other SFRY republics whose residence was erased from the permanent residence register, foreigners from such third countries did not undergo such a process. Their permanent residence status remained intact, and they were not required to reapply for their permanent residence in Slovenia.
These provisions that required nationals from other SFRY republics to reapply for permanent residence were problematic for such nationals, as they faced several barriers in reacquiring residence permits. One significant obstacle was their inability to prove their foreigner status, often due to an ongoing war in their home country. Consequently, they were unable to obtain a valid passport or other necessary certificates, which, according to Article 64 of the ZTuj, were mandatory attachments to applications for the issuance of permanent or temporary residence permits. For those reasons they were unable to provide required documents and therefore, lost their right to reside in Slovenia. In contrast, foreigners from countries other than the former SFRY republics, did not have to undergo such a process.
The petitioners, nationals of other SFRY republics whose permanent residency in Slovenia was erased pursuant to Article 81(2), questioned the constitutionality of Article 81(2) of ZTuj due to the absence of provisions for acquisition of permanent residence by individuals in their position. The Constitutional Court acknowledged the lack of precise regulation for this group and accepted the petition to assess the statutory regulations' conformity with the principles of a law-governed state and equality under the Constitution.
The applicants contended that the ZTuj was unconstitutional due to its failure to define the conditions for acquiring a permanent residence permit for individuals mentioned in Article 81(2). This included those who did not apply for Slovenian nationality within the specified timeframe or those whose application for nationality was rejected.
As the decision focused on the verification of constitutionality (based on the applicants' petition), specific details regarding their legal arguments were not provided.
The Slovenian Parliamentary Secretariat for Legislation and Legal Matters argued that the implementation of the ZTuj aligned with the law's intended purpose and ensured legal protection for individuals. It accepted that ZTuj lacked specific provisions addressing the residence status of nationals of other SFRY republics who did not apply for Slovenian nationality or received negative decisions. However, according to the Government's interpretation, the ZTuj was applied in a manner that did in fact consider the permanent residence of these individuals, ensuring they were not at a disadvantage compared to foreigners with existing permanent residence permits. In its opinion, this gap did not compromise the legal security of the individuals concerned, and the existing legislation was deemed consistent with the principles of the rule of law.
The Government argued that individuals had the opportunity to obtain nationality upon Slovenia's independence, but they chose not to. Further, permanent residence could only be acquired through application, not automatically. The Government emphasised that some individuals opted not to apply for Slovenian nationality to avoid losing rights in their home countries, while others who registered their residence were not actually residing in Slovenia.
The Constitutional Court found that ZTuj failed to regulate and clarify the irregular legal status of nationals of other SFRY republics as foreigners in Slovenia who had been permanently and actually residing in its territory. Following the Constitutional Court´s reasoning, their legal status should be addressed in the ZTuj´s Transitional Provisions, preventing uncertainty regarding their legal status.
The Constitutional Court´s decision reiterated the principle of the rule of law as outlined in Article 2 of the Constitution of the Republic of Slovenia and its inherent principles, including the protection of confidence in the law, the principle of safeguarding legitimate expectations, and ensuring equality and equitable treatment. Furthermore, the decision highlighted Slovenia's obligations under European and international law.
1. Protection of confidence in law
Nationals from other SFRY republics found themselves in an uncertain legal position upon the expiration of the deadlines specified in Section 81(2) of the ZTuj. These individuals could not discern from the text of the ZTuj what status they would hold as foreigners and which provisions of the law should apply to them. The Constitutional Court concluded that due to the irregular legal status of nationals from other SFRY republics as foreigners in Slovenia, the principle of protection of confidence in the law, as one of the basic principles of the rule of law, was violated (para. 15).
“Therefore, the Constitutional Court concludes that due to the irregular legal status of citizens of other republics as foreigners in the Republic of Slovenia, the principle of protection of confidence in the law, which is one of the principles of the rule of law, was violated.” ("Zato Ustavno sodišče zaključuje, da je bilo zaradi neurejenega položaja državljanov drugih republik kot tujcev v Republiki Sloveniji, kršeno načelo varstva zaupanja v parvo, ki je eno izmed načel pravne države")
2. Protection of Legitimate Expectations, Article 12 of the International Covenant on Civil and Political Rights and Article 8 of the European Convention on Human Rights (ECHR)
The Constitutional Court underscored the principle of protection of legitimate expectations, which safeguards individuals from arbitrary changes in their legal status by the State. Nationals of other SFRY republics residing in Slovenia with permanent and actual residence were left uncertain about their legal position when specified deadlines expired, violating their legal expectations. Those individuals who were formally considered permanent residents until Slovenia’s independence, and who did not opt for Slovenian nationality (or whose application was rejected) could not reasonably expect to be treated the same as foreign nationals arriving in Slovenia (para. 16).
"Citizens of other republics who did not opt for Slovenian citizenship could not reasonably expect to be treated the same as foreign nationals arriving in Slovenia, risking the loss of their permanent residency without notification." ("Državljani drugih republik, ki se niso odločili za slovensko državljanstvo, povsem upravičeno niso mogli pričakovati, da bodo izenačeni s tujci, ki šele prihajajo v Republiko Slovenijo, in da bodo izgubili stalno prebivališče in še to brez vsakršnega obvestila.")
The Constitutional Court emphasised that Slovenia, as a future State, pledged in its acts of independence to uphold the protection of human rights and fundamental freedoms for all individuals within its territory. This commitment should be applied regardless of their nationality and without discrimination, in accordance with the Constitution of the Republic of Slovenia and relevant international law. It stated that nationals of other SFRY republics, who chose not to apply for Slovenian nationality or had their application rejected, could reasonably expect that their situation would not significantly worsen and that they could continue to reside permanently in Slovenia. They were justified in expecting that their legal status would be regulated according to international law, particularly referencing Article 12 of the International Covenant on Civil and Political Rights, which affirms the right to move freely and choose residence and applies to all legally residing persons within a state's territory. This right may be limited only for specific reasons set in Article 12(3) – limitations provided for by statute, protection of national security, public order, public health and morality, rights and freedoms of others and if this is in conformity with other rights recognised by the said Covenant (para. 16).
Furthermore, the Constitutional Court highlighted issues arising from the application of provisions of the ZTuj regarding the acquisition of temporary or permanent residence permits. It noted that certain individuals were not able acquire such permits unless they met specific conditions for prolonged residence in accordance with Article 13(2) ZTuj (They had to demonstrate their necessity to remain in the country for a longer time “for the purpose of education, specialisation, employment, medical treatment, pursuit of a professional activity, or has contracted a marriage with a citizen of the Republic of Slovenia, has immovable property in the territory of the country, enjoys a right arising from work in the country, or has any other justifiable reason”). Failure to obtain these permits could lead to these individuals being deemed as illegal residents and facing deportation (in accordance with Article 28 of ZTuj), potentially violating their rights under the ECHR, particularly Article 8, which protects the right to family life and allows interference only under specific circumstances determined by statute. The Constitutional Court also referenced the European Court of Human Rights' position that deportation of a foreigner could constitute a violation of Article 8 of the ECHR (para. 16).
3. Ensuring Equality in Legal Treatment
Finally, the Constitutional Court underscored the significance of equality as per Article 14 of Slovenia's Constitution. After Slovenia gained independence, individuals who held foreigner status under the SFRY Law on Movement and Residence of Foreigners (which applied to the entire territory including Slovenia prior to independence) ie nationals of third countries eg France or Austria, were residing in Slovenia. ZTuj addressed their legal status in Article 82(3) – permanent residence permits issued under the Law on Movement and Residence of Foreigners continued to be valid for all foreigners who were permanently residing in the territory of Slovenia at the time the ZTuj entered into force. This allowed all such foreigners with valid permanent residence permits to stay in Slovenia without additional requirements. However, the legal status of nationals from other SFRY republics who were legally residing in Slovenia and had a registered permanent residence was not addressed. The Constitutional Court found that this fact placed them in a less favourable legal position than the aforementioned foreigners. This failure to regulate their status violated the principle of equality outlined in Article 14 of the Constitution, as there was no justifiable reason to treat them differently (para. 18).
"Because no reasonable justification can be found for the described differentiation, which would justify that the transitional legal position of nationals of other republics, who had registered permanent residence in the Republic of Slovenia and legally resided on its territory, should be substantially different from the legal position of those individuals who had foreigner status with permanent residence before Slovenia's independence, the omission of legal regulation of the position of these individuals also constitutes a violation of the principle of equality from the second paragraph of Article 14 of the Constitution." ("Ker za opisano razlikovanje ni mogoče najti stvarno utemeljenega razloga, ki bi utemeljeval, da bi moral biti prehodni pravni položaj državljanov drugih republik, ki so v Republiki Sloveniji imeli prijavljeno stalno prebivališče in so na njenem ozemlju zakonito prebivali, bistveno drugačen od pravnega položaja tistih oseb, ki so imele položaj tujca s stalnim prebivališčem že pred osamosvojitvijo Slovenije, pomeni opustitev pravne ureditve položaja teh oseb tudi kršitev načela enakosti iz drugega odstavka 14. člena Ustave.")
The Constitutional Court of Slovenia held that the ZTuj was inconsistent with the Constitution, as it did not define the conditions for acquiring a permanent residence permit for the persons mentioned in Article 81(2) i.e. nationals of other SFRY republics who did not apply for nationality of the Republic of Slovenia within the time limit or who were issued a negative decision. It gave the legislature six months to address this inconsistency. Additionally, the Constitutional Court decided that until the mentioned inconsistency was removed, no decision on forcible removal of a foreigner could be passed, when the person in question had a registered permanent residence in Slovenia on 23 December 1990, that is on the day of the plebiscite, and was actually residing in Slovenia.
- Moustaquim v. Belgium, the decision dated 18 February 1991, Series A, No. 193
- Beldjoudi v. France, the decision dated 26 March 1992, Series A, No. 234-A
- Nasri v. France, the decision dated July the 13th, 1995, Series A, Vol. 320