The applicant was convicted of two counts of grand theft and sentenced to imprisonment and subsequent expulsion from Slovenia for a period of five years. The applicant claimed that he should not have been sentenced to expulsion due to his statelessness. The Supreme Court held that his statelessness was not a determinative factor for the purposes of the sanction of expulsion of foreigners, since the term “foreigner” includes both nationals of other States and stateless persons. The court added that, in any event, (i) the applicant was not in fact stateless but a national of the Republic of Croatia; and (ii) even if he were stateless, he could not benefit from the additional protection against expulsion afforded by the 1954 Statelessness Convention because he had entered and resided in Slovenia unlawfully. Consequently, the Supreme Court upheld the accessory sentence of the applicant’s expulsion from Slovenia for a period of five years.
Slovenian law
- Articles 2 and 3 of the Foreigners Act (ZTuj-1)
- Articles 40, 111, 111, 112, 126 and 212 of the Penal Code of the Republic of Slovenia (KZ)
- Articles 371, 420, and 424 of the Criminal Procedure Act (ZKP)
International law
- Articles 1 and 31 of the 1954 Convention relating to the Status of Stateless Persons
The applicant, who claimed to be stateless, broke into and stole multiple vehicles together with two accomplices. He was convicted of two counts of grand theft and sentenced to two years and six months in prison. He was also given an accessory sentence of expulsion from Slovenia for five years.
In sentencing the applicant to expulsion, the lower-instance courts found that he was not stateless but rather a national of the Republic of Croatia. This was based on reports prepared by Croatian authorities and the fact that the applicant had a Croatian national identification card and national identification number.
In his request for the protection of legality (an extraordinary legal remedy), the applicant argued that he should not have been sentenced to expulsion from Slovenia due to his statelessness. The exact legal argument used to substantiate this claim is not evident from the judgment.
The applicant argued that the lower-instance courts wrongly found that he is a national of the Republic of Croatia (the exact arguments why he was not to be considered as a Croatian national are not evident from the judgment). Moreover, he argued that the lower-instance courts erroneously held that he has no ties to Slovenia, as he has been living in Slovenia for 6 years in a cohabitation relationship with his partner, also helping her with her illness.
The Supreme State Prosecutor argued that the applicant’s arguments do not fall within the permitted scope of requests for the protection of legality. This remedy allows applicants to claim an erroneous application of the law or a significant departure from procedure. However, the applicant’s claims relate solely to an allegedly erroneous findings of fact.
The court held that the applicant’s alleged statelessness is irrelevant for the purposes of handing down an accessory sentence of expulsion of a foreigner from Slovenia under Article 40 of the Penal Code (KZ). The Foreigners Act (ZTuj-1) defines a foreigner as anyone who is not a national of Slovenia. There was no doubt for the court that the applicant was not a national of Slovenia, nor did the applicant ever claim differently. Consequently, the lower instance courts did not erroneously apply the law when handing down the accessory sentence of expulsion from Slovenia.
The Supreme Court rejected the applicant’s claims that lower instance courts erroneously found him to be a Croatian national, since this involves questions of fact and therefore falls outside of the permitted scope of requests for the protection of legality. In any event, the Supreme Court found that lower instance courts correctly concluded that the applicant was a Croatian national. His Croatian nationality was evidenced by a report prepared by Croatian authorities, his Croatian national identity card and his Croatian national identity number.
The Supreme Court noted that under Article 1(1) of the 1954 Statelessness Convention and Article 2 of the Foreigners Act (ZTuj-1) [the judgment contains a clerical error and refers to Article 1 of ZTuj-1], a person is stateless only if no State considers that person as its national:
“[...] In this connection, the Supreme Court points out that, according to Article 1(1) of the UN Convention relating to the Status of Stateless Persons and Article 1(2) of the Foreigners Act, a stateless person is only a person who is not regarded as a national by any State [...]”.
However, Croatia considered the applicant to be its national, and the Supreme Court found the applicant to be a national of Croatia under its laws.
The Supreme Court further added that, in any event, the applicant cannot benefit from the protection against expulsion afforded by the 1954 Convention, since he entered and resided in Slovenia unlawfully, without registering his residence with the competent authorities:
“[...] In addition, the greater protection of stateless persons against expulsion from the State applies only to those who legally reside in the territory of a State (Article 31(1) of the Convention), and the convicted person illegally entered and stayed in our State without registering his residence with the competent authorities.”
Therefore, according to the Supreme Court, even if the applicant were a stateless person, the 1954 Convention would not prevent the courts from sentencing him to expulsion from the territory of Slovenia, as Article 31 applies only to stateless persons lawfully in the territory of the State party.
The Supreme Court did not expressly address the applicant’s submissions concerning his family ties to Slovenia.
The Supreme Court dismissed the applicant’s request for the protection of legality and upheld the sentence of expulsion from Slovenia for five years.
No relevant external materials available.
None.
There have been no third party interventions.