ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION

373. The applicants claimed that in enjoying their rights under Article 8 of the Convention, they had been discriminated against on the ground of their national origin, when compared to other foreign citizens (the so-called

“real” aliens) who continued to live in Slovenia on the basis of temporary or permanent residence permits.

374. They invoked Article 14 of the Convention, which reads as follows:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

A. Arguments of the parties

1. The applicants

375. The applicants argued that they had been treated less favourably than “real” aliens who had lived in Slovenia since before independence and whose permanent residence permits remained valid under section 82 of the Aliens Act.

376. In the applicants’ view, the issue of discriminatory treatment of the

“erased” was one of the main features of the present case, and the Grand Chamber should examine the merits of their complaint under Article 14 (they cited Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 89, ECHR 1999-III, and Nachova and Others

v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 160-168, ECHR 2005-VII). They underlined that the Constitutional Court itself had confirmed the existence of discrimination. If the continuous right to residence of “real” aliens was recognised by the Aliens Act, the same should apply all the more to the “erased”.

377. Lastly, the applicants contested the respondent Government’s allegations (see paragraph 379 below) that positive discrimination had been carried out in respect of them since they had not been subjected to deportation; five of the applicants had in fact been deported.

2. The Government

378. The Government stated that at the time of its independence, the Republic of Slovenia had allowed citizens of the other former republics of the SFRY with permanent residence in Slovenia to acquire Slovenian citizenship under exceptionally favourable conditions. In addition, the 1991 Constitutional Law guaranteed them equal treatment to Slovenian citizens until their acquisition of Slovenian citizenship or the expiry of the time-limits set by the Aliens Act (see paragraph 202 above). However, bearing in mind the necessity of forming a corpus of Slovenian citizens – especially with a view to the 1992 parliamentary elections – this equality in treatment could not last indefinitely. Therefore, it was up to the permanent residents without Slovenian citizenship to seize the opportunity to acquire citizenship of the independent Slovenia; this was not granted automatically.

379. The applicants’ position was therefore linked to the fact that they, as aliens, had not acquired permanent residence permits. They had been treated like all other aliens without a residence permit. As to the SFRY legislation and the provisions of the Aliens Act, the applicants and the

“real” aliens had never been in a comparable situation. Moreover, the applicants had benefited from positive discrimination, since they had in principle not been deported from Slovenia.

3. The third parties

380. Apart from the Serbian Government, the other third parties’

submissions before the Chamber focused primarily on the issue of discrimination, which had been recognised as being of fundamental importance in the Court’s case-law.

381. The third-party interveners stated that the “erased” had been subject to discrimination, both direct and indirect, on the ground of national origin or ethnicity or both (citing D.H. and Others v. the Czech Republic, cited above, § 175). The Aliens Act contained stricter provisions for the “erased”

than for other aliens. Because the Slovenian population was ethnically homogeneous as compared to other former SFRY republics, the “erasure”

disproportionately affected non-ethnic Slovenes, ex-SFRY minorities, and

Roma, thereby also discriminating among residents on ethnic grounds.

There was no objective justification for what had resulted in decades of legal limbo experienced by the “erased”. Lastly, other Council of Europe bodies had interpreted the right to non-discrimination as requiring positive action on the part of member States.

B. The Chamber judgment

382. The Chamber considered that, in view of its finding of a violation of Article 8 of the Convention, it was not necessary to rule on the applicants’ complaint under Article 14 (see paragraph 400 of the Chamber judgment).

C. The Grand Chamber’s assessment

383. Having regard to the importance of the discrimination issue in the present case, the Grand Chamber considers, unlike the Chamber, that the applicants’ complaint under Article 14 of the Convention should be examined.

1. Applicability of Article 14 of the Convention

384. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts in issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, 21 February 1997, § 33, Reports 1997-I; Petrovic v. Austria, 27 March 1998, § 22, Reports 1998-II; and Zarb Adami v. Malta, no. 17209/02, § 42, ECHR 2006-VIII).

385. In the present case, the Court has found that the measures complained of constituted an unlawful interference with the applicants’

“private or family life” or both within the meaning of Article 8 § 1 of the Convention (see paragraph 339 above). Article 8 thus being applicable to the facts of the case, Article 14 is applicable too.

2. Compliance with Article 14 of the Convention taken in conjunction with Article 8

(a) General principles

386. According to the Court’s well-established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (see Willis v. the United Kingdom, no. 36042/97, § 48, ECHR 2002-IV). A difference in treatment has no objective and reasonable justification if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible (see, among many other authorities, Oršuš and Others v. Croatia [GC], no. 15766/03, § 156, ECHR 2010).

387. The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment (see Gaygusuz v. Austria, 16 September 1996, § 42, Reports 1996-IV). The scope of the margin of appreciation will vary according to the circumstances, the subject matter and its background (see Rasmussen v. Denmark, 28 November 1984, § 40, Series A no. 87, and Inze v. Austria, 28 October 1987, § 41, Series A no. 126), but the final decision as to observance of the Convention’s requirements rests with the Court. Since the Convention is first and foremost a system for the protection of human rights, the Court must, however, have regard to the changing conditions in Contracting States and respond, for example, to any emerging consensus as to the standards to be achieved (see Ünal Tekeli v. Turkey, no. 29865/96, § 54, ECHR 2004-X, and, mutatis mutandis, Stafford v. the United Kingdom [GC], no. 46295/99,

§ 68, ECHR 2002-IV).

388. That being said, Article 14 does not prohibit Contracting Parties from treating groups differently in order to correct “factual inequalities”

between them. Indeed, in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach of that Article (see Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 44, ECHR 2009). The Court has also accepted that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group, and that discrimination potentially contrary to the Convention may result from a de facto situation (see D.H. and Others v. the Czech Republic, cited above, § 175, and the authorities cited therein).

389. Lastly, as to the burden of proof in relation to Article 14 of the Convention, the Court has held that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (ibid., § 177).

(b) Whether there has been a difference in treatment between persons in similar situations

390. Turning to the instant case, the Court observes that the status of citizens of States other than the former SFRY republics who had lived in Slovenia before its independence (the so-called “real” aliens) was regulated by section 82 of the Aliens Act, which provided that their permanent residence permits remained valid (see paragraph 207 above). However, the Aliens Act failed to regulate the status of the citizens of other SFRY republics who were residing in Slovenia. As underlined above (see paragraph 344 above), this legal vacuum resulted in the “erasure” of the latter and the unlawfulness of their stay on the Slovenian territory.

391. It could be argued that before the independence of Slovenia there was a difference between these two groups, since one was composed of aliens, whereas the other was composed of citizens of the former federal State of which Slovenia was a constituent part. However, in the Court’s opinion, after the declaration of independence and the coming into existence of the new State, their situation became at least comparable. The two groups were both composed of aliens holding citizenship of a State other than Slovenia or stateless people. As an effect of the “erasure”, members of only one of the groups could keep their residence permits.

392. Therefore, there has been a difference in treatment between two groups – “real” aliens and citizens of former SFRY Republics other than Slovenia – which were in a similar situation in respect of residence-related matters.

(c) Whether there is objective and reasonable justification

393. The Court does not see how the necessity, referred to by the Government, of forming a corpus of Slovenian citizens with a view to the parliamentary elections of 1992 (see paragraph 378 above) could have required differential treatment in granting foreigners the possibility of residing in Slovenia, as a residence permit did not confer the right to vote on the holder. It is true that only the “erased”, and not “real” aliens, were given the possibility of acquiring Slovenian nationality on favourable conditions.

However, the Court has already underlined that, as such, a failure to apply for citizenship cannot be considered a reasonable ground for depriving a group of aliens of their residence permits (see paragraph 357 above).

394. Under these circumstances, the Court considers that the differential treatment complained of was based on the national origin of the persons concerned – as former SFRY citizens were treated differently from other

foreigners – and that it did not pursue a legitimate aim and therefore lacked an objective and reasonable justification (see, mutatis mutandis, Sejdić and Finci, cited above, §§ 45-50). Moreover, the situation of the former SFRY citizens, including the applicants, was significantly altered after the declaration of independence when compared with that of “real” aliens.

Before 1991, former SFRY citizens were, in matters connected to residence, in a privileged position in comparison with “real” aliens. At the relevant time, citizenship of the federal State could have been looked at as an objective ground for such preferential treatment. However, as a consequence of the independence legislation, former SFRY citizens suddenly found themselves in a situation of unlawfulness which has been found to breach Article 8 (see paragraphs 361-362 above) and in a disadvantaged position vis-à-vis “real” aliens, as only the permanent residence permits of the latter remained valid, even in the absence of an application for Slovenian nationality (see paragraph 390 above). In the Court’s view, the legislation at stake thus placed a disproportionate and excessive burden on former SFRY citizens.

395. The above conclusion is also confirmed by the decision of 4 February 1999 in which the Constitutional Court held that the “erased”

were in a less favourable legal position than “real” aliens who had been living in Slovenia before independence and whose special permanent residence permits remained valid under section 82 of the Aliens Act (see paragraph 42 above).

396. Having regard to the foregoing, the Court finds that there has been a violation of Article 14 taken in conjunction with Article 8 of the Convention.