Briefing Paper for Expert Consultation on Issues Related to Minorities and the Denial or Deprivation of Citizenship, 6-7 December 2007, Convened by the UN Independent Expert on Minority Issues

Claude Cahn and Sebihana Skenderovska

I. Introduction

A number of large forces in Europe have in recent years weakened the power of the nation-state in Europe and/or given rise to competing trans-national authorities, particularly the European Union. Although extensive efforts have been made to link these practices to fundamental human rights or to the rights of European citizens – and indeed many hundreds of thousands of Europeans have benefited from these developments –, in practice a number of persons with genuine effective links to one or more European states are precluded from full and effective citizenship in all or any European states or polities. Many may even lack the recognized citizenship of any country. This exclusion is frequently on grounds of ethnicity or perceived race. Roma – a stigmatized, pariah minority – are particularly affected. Exclusion from the polity can and frequently does give rise to expulsion or threat of expulsion from country.

II. Regional Developments in Europe

Space considerations preclude a full treatment of regional developments driving the erosion of state power in Europe as concerns the person vis-à-vis the state or one state, and the rise of the “European citizen”. Some key issues for consideration:

The Article 1 provision of the European Convention on Human Rights that the rights of the Convention shall be guaranteed to all persons on the territory has in practice been of greater significance than similar guarantees under international law or regional law elsewhere in the world, as a result of the power of the Council of Europe, and in particular (although not only) its premiere body, the European Court of Human Rights. The decoupling of fundamental rights from citizenship has been particularly strong in Europe. Some noteworthy interventions by the Court in this area have included:

• Rejecting the effort by France to administratively designate part of in the international zone of a Paris airport as “extra-territoritorial” for the purposes of reviewing requests for asylum (implicating in particular Article 3 ban on cruel and degrading treatment guarantees); similarly, rejecting Belgium’s denial of bona fides to applicants for asylum on the territory;
• Rejecting the effort by Austria to provide unemployment benefits solely on the basis of nationality;
• A number of decisions, particularly with respect to Turkey, which have recognised extra-territorial obligations of the State.

The Council of Europe system has also been instrumental in strengthening the rights of citizens of particular other states, in particular States Parties to the European Social Charter, which sets out that the extensive social rights of the Charter are to be enjoyed by citizens of one Charter Party “ lawfully resident or working regularly” in another Charter Party. The approach of strengthening the rights of particular non-nationals in European states has also been taken by the European Union in bilateral treaties with a number of countries, in particular Turkey, and is also very evident in frameworks for relations between the European Union, its Member States, and wealthy non-EU States in close proximity, such as Norway and Switzerland.

The European Union’s role in strengthening the rights of persons on the territory of a state of which they do not hold the citizenship has been immense, and primarily with respect to citizens of one European Union Member State present or resident in another. This has been true particularly since European Union integration entered its intensive phases following the Treaty of Maastricht (2002), which initiated among other things the status of “citizenship of the European Union”, conferred upon all persons enjoying the citizenship of a Member State of the European Union. Although achieving even formal equality of status has been fraught, particularly with respect to the citizens of EU Member States of twelve countries which joined the Union in the 2004 and especially the 2007 enlargements, in principle the playing field has been levelled in fast range of areas related to the free movement of persons between EU member States, and their establishment and/or integration in an EU Member State other than the one in which they may hold citizenship.

The foregoing notwithstanding, Europe – East and West — paradoxically is home to tens if not hundreds of thousands of persons formally excluded from the polity. The domestic legal regime driving the exclusion of certain categories of persons from full belonging in Europe and in particular in the nation-states of Europe is complex and varied and in many cases resists reduction. A rudimentary summary follows below.

III. Overview of Problematic Practice in/by European States

Although statelessness was by no means eradicated in Europe in 1989, the current crisis in Europe dates from the collapse of Communism, and in particular (i) the collapse of the three major Communist federations (Czechoslovakia, Yugoslavia and the Soviet Union); (ii) the conflict in the former Yugoslavia and the large numbers of refugees in Europe that the conflict has given rise to; and (iii) inflamed populist, xenophobic pressure on governments in the West, in turn driving exclusionary practices.

Three large federations dissolved following the end of Communism in 1989: Czechoslovakia, Yugoslavia and the Soviet Union. These events generated many stateless persons, among them many Roma, as successor states refused to recognise as citizens of the new states certain categories of persons, often on an ethnic basis. Other states which did not collapse also have very problematic practices where Roma, non-privileged/non-white migrants and the descendents of migrants, and others are concerned, practices which lead to extreme social exclusion. In some countries, such as the Baltic states, these practices have targeted primarily ethnic Russians, although Roma and others are also affected. A summary of key issues follows.

III. 1 Arbitrary Exclusion from Citizenship as a Result of Legal Provisions Reliant Primarily on “Blood”

The laws of European states traditionally place strong emphasis on jus sanguines; jus soli provisions tend to be strongly qualified. Some countries — such as Greece and Germany — have pursued very blood-based policies on recognition of citizenship, in some cases for long periods of time, and which were, as a result, still recently generating individual cases of stateless persons among persons born on the territory and with long-term family ties to the territory. The German-based NGO Gesellschaft fuer Bedrohte Voelker was still reporting on cases into the late 1990s/2000s of Sinti expellees and/or their children from Sudetenland (1945/1946), who still had no German citizenship. A similar set of countries with no jus soli provisions or only weak jus soli provisions for allocating citizenship, with large migrant Romani communities, including inter-generational migrant communities. Countries here include in particular Austria, Italy and Switzerland .

In recent months, the situation in Italy has taken on emergency proportions. An extensive campaign — apparently with the purpose of mobilising racist assumptions about “Gypsies” in the Italian public to active hatred, in order to push the government to curb immigration — has been carried out by the Italian media since the Spring months of 2007, becoming particularly intense following the deaths of four Romani children from Romania in a settlement in Livorno in August 2007. As a result of the resulting government clampdown, several hundred persons have been expelled from Italy in recent months, and Italian police have destroyed the housing of many thousands of Roma. Many tens of thousands of persons are particularly vulnerable to expulsion from Italy, as a result of the exclusionary practices noted above.

III. 2 Arbitrary Preference of Ethnic Kin

In many instances, exclusionary practices in the field of (non)recognition or provision of citizenship on an ethnic basis is coupled with strong preferential treatment of ethnic kin – in law and/or in practice – even where ties to the state at issue are attenuated by many generations, or indeed may have never existed at all. This is the case in countries such as Croatia, Germany, Hungary and Ireland , to name only the most evident and egregious. To some extent, arbitrary ethnic preference in the field of citizenship is a feature all European states, even among the most nominally liberal and open, such as the United Kingdom.

III. 3 Statelessness in the Context of State Succession

A number of countries adopted extremely restrictive citizenship laws – laws designed to exclude certain ethnic groups — as the Communist federations collapsed:

Croatia adopted a citizenship law aimed at excluding Serbs, Roma and others from access to belonging in the new state, and has reinforced this law with extremely restrictive practice in this area, including forced expulsions of Roma from Croatia.

The Czech Republic designed its citizenship law with a number of provisions aimed at forcing Roma in the Czech Republic to go to Slovakia. Key elements of the law were amended in 1999, but certain categories of persons – notably those not in the country for any time between 1993 and 1999, still do not have access to Czech citizenship, other than by naturalisation.

Macedonia implemented an extremely restrictive citizenship law after independence, giving rise to a number of categories of excluded groups, most notably ethnic Albanians and Roma. Widely touted amendments in 2004 failed to remedy the underlying problem that Macedonian officials fail to recognise the legitimate ties of a number of categories of persons to Macedonia.

Slovenia adopted an extremely restrictive citizenship law excluding “indesirables from the south” (Bosnians, ethnic Albanians from Kosovo, Macedonians, Roma, Serbs) and also destroyed the records of many tens of thousands of ex-Yugoslavs living in Slovenia at the time of independence. The Slovene Constitutional Court ruled the act illegal in 1999, but a subsequent public referendum reinforced government intransigence in providing justice to the “erased”.

Other countries with status issues arising as a result of the collapse of the communist federations include Russia and a number of the Baltic countries. In Russia, a large number of persons who were previously Soviet citizens and who previously resided legally in the Russian Federation, have since been disenfranchised as a result of the entry into force in 2002 of the Federal Laws on Russian Citizenship and on the Legal Status of Foreign Citizens. A highly charged atmosphere of racial or ethnic exclusion and preference has resulted additionally in systematic racially selective inspections and identity checks by law enforcement officials, targeting (negatively) people from specific minorities and/or of certain appearance, particularly Roma and persons perceived to be from the Caucasus and Central Asia. Also there are numerous reports that residence registration is used as a means of excluding, on discriminatory grounds, persons belonging to certain ethnic groups. The European Court of Human Rights has found Russia in contravention of Convention provisions as a result of the denial or seizure of personal documents, as well as for reasons in which the link between personal documents issues and racial discrimination gave rise to Convention violations.

III. 4 Other Examples of Extremely Problematic Practice in the Area of Personal Status

Some states are systematically failing to integrate persons who have been in the country for long periods of time, developed real ties to country-of-exile, but have yet to have been provided with any status providing for the possibility of durable integration. Since the early 1990s, Germany has applied the status of “tolerated” to several hundreds of thousands of persons, many of whom are Roma from the former Yugoslavia (see below). Persons with the “tolerated” status may have been in Germany for well over a decade, and developed extensive ties to the country, but have not yet been provided with a status recognising any form of right of stay in Germany. Macedonia has been emulating this bad model: 2000 Romani refugees from Kosovo in Macedonia since 1999 have never been provided with any status other than temporary stop on expulsion. Serbia also has tens of thousands of Romani displaced persons from Kosovo, whom it refuses to issue with even identity cards. As such, they are excluded from basic public services.

III. 5 Persons Whose Ties to their State Have Not Yet Been Adequately Recognised

The Council of Europe approach to the foregoing issue has been to require that, in the context of state succession, statelessness shall be avoided and those persons with “genuine and effective links” to the new state shall be recognised as citizens. The 1995 European Convention on Nationality provides a 4-point test of assessing these links under a chapter explicitly devoted to “state succession and nationality”. In 2006, adopted a new Convention devoted explicitly and solely to the avoidance of statelessness in the context of state succession. These standards have not yet made serious impact yet on existing problems. For example, Macedonia has strenuously resisted providing citizenship to 2000 remaining Roma excluded from access to citizenship as a result of Macedonia’s very restrictive citizenship law. Recent amendments to Macedonia’s law on citizenship, although brought about to incorporate the European Convention on Nationality provisions on citizenship in the context of state succession into the domestic legal order have in practice not yet done so. Also, as noted above, Slovenia has done nothing to rectify the bureaucratic purge of tens of thousands of persons in the early 1990s. Similar issues remain in Croatia.

III. 6 Continuing Effects of Bad Law

Sufficient pressure was brought upon the Czech Republic to amend its exclusionary citizenship law in 1999. Nevertheless, as noted above, certain categories of persons – most notably anyone who left the country for any period of time between 1993 and 1999 – is still excluded from access to citizenship other than via naturalization procedures. This group includes persons who went to Slovakia for medical treatment or to give birth among relatives because at that time they had no access to any citizenship, or only to Slovak citizenship. In addition, those Roma who were forced to become “Slovaks” as a result of the Czech citizenship law may today face systematic discrimination as a result, for example, of local rules denying families social housing where one member of the family is a “foreigner” or similar. The Czech government has never undertaken any serious study of the situation of persons forced to be “Slovaks” as a result of the 1993 citizenship law and the current situations of exclusion they may be facing now, and so no policy measures exist to address these problems.

III. 7 Lack of Personal Documents and/or Other Documents

In addition to the issues noted above, many Roma in Europe lack one or more personal documents, creating conditions for exclusion from services, as well as systematic frustration of fundamental human rights. In some situations, birth at home gives rise to a failure to secure a birth certificate, leading to non-recognition as a legal person, as guaranteed inter alia under Article 16 of the International Covenant on Civil and Political Rights (ICCPR). In some areas, lack of documents is such a severe issue that it becomes inter-generational. Documents lacking may include, in addition to birth certificates, personal identification cards, documents related to the provision of health insurance and social aid, and passports. Barriers arising from a lack of documents can be daunting, and the lack of one document can lead to the inability of a person to access further documents. The lack of access to personal documents and citizenship threatens the ability of Roma to gain access to services crucial to the realisation of a number of fundamental rights and freedoms, such as the right to vote, the right to adequate housing, the right to social assistance, the right to education and the right to the highest attainable standards of health. Countries and regions with particularly extreme problems in this area include Bosnia and Herzegovina, Croatia, Italy, Greece, Kosovo, Macedonia, Romania, Russia, Serbia and Ukraine , although this list is by no means exhaustive.

IV. Germany: Particular Case or Illustrative of General European Trends?

Exclusionary practices among all of the successor states to the former Yugoslavia, combined with restrictive practices toward migrants and refugees in other European states, have given rise to status problems among emigrant diaspora populations of Roma from these countries in Austria, Germany, Italy, the United Kingdom and elsewhere, as well as indeed in other former Yugoslav countries (as for example the thousands of Kosovo Romani refugees in Bosnia, Croatia, Macedonia, and Serbia ). This section will look briefly at issues in one country – Germany – although these issues are present to a greater or lesser degree in many countries in Europe.

There is a high degree of anti-Romani sentiment in Germany. A poll conducted in 1992 by the Allensbach Demoscopic Institute indicated that 64 percent of Germans had an unfavourable opinion of Roma – a higher percentage than for any other racial, ethnic or religious groups. A survey conducted in 1994 by the EMNID Institute indicated that some 68 percent of Germans did not wish to have Sinti and Roma as neighbours. A 1995 poll conducted in German schools indicated the presence of strong anti-Romani attitudes even among the younger generation: 38 percent of students in Western and 60.4 percent in Eastern Germany expressed negative attitudes toward Sinti and Roma. There is no indication that attitudes toward Sinti and Roma have improved in recent years.

Media and others frequently propagate anti-Romani sentiment, often through coded references to Roma. The Council of Europe’s European Commission Against Racism and Intolerance (ECRI) noted in its Second Report on Germany: “Stigmatising prejudices about Roma and Sinti are reportedly perpetuated by some media, particularly by naming alleged perpetrators of crimes as Roma or Sinti without such mention being required for understanding the reported incident.” During the years 1997 to 2000 the Central Council of German Sinti and Roma yearly lodged about 30 to 45 complaints on defamatory and offensive reporting about Roma in the media. In 2003, the number of such complaints came to more than 50. Media frequently use coded references to Roma such as “Landfahrer” (“vagrants”) and “mobile ethnische Minderheit” (“mobile ethnic minority”), apparently in order to circumvent criminal code bans on incitement to hatred of groups.

Anti-Romani sentiment has a long history in Germany. Official policies of persecution and expulsion began soon after the arrival of the first Romani groups on the territory of today’s Germany in the late Middle Ages. These policies continued in the succeeding centuries and anti-Romani policies were pursued to the extreme during the Nazi era, when Sinti and Roma were targeted for extermination under racial policies. Sinti and Roma activists note that hundreds of thousands of Sinti and Roma were killed throughout Europe during the Holocaust, as a direct result of the policies of the Hitler government. Those who survived the genocide were subjected to continued harassment and humiliation at the hands of the police and other authorities, as a number of pre-war anti-Gypsy laws and institutions remained in force. The genocide of Sinti and Roma was only acknowledged officially in 1982.

There are no reliable figures regarding the total size of the Sinti and Roma population in Germany and estimates vary widely. The Government has provided an estimate of up to 70,000 German Sinti and Roma. Some Sinti and Roma leaders put the number between 150,000 and 200,000. Roma and Sinti live in all of the German states (Länder) , with many Romani individuals living in larger western German cities as well as in Berlin. Estimates indicate that during the 1990s, up to 100,000 of the Roma in Germany.

Among Roma who are foreigners in Germany, the majority are Roma from southeastern Europe. Included in this group are a number of persons who may be refugees in the sense of the 1951 Convention relating to the status of refugees, but the majority of whom have not been actually recognised as refugees, owing primarily to restrictive practices by German authorities in the application of refugee law. A large number of Roma in Germany do not possess German citizenship, or even a durable or meaningful residence status. Taken as a whole, the Sinti and Romani community is an immensely diverse group of people, including persons with links to German culture as long as 600 years, persons who fled slavery in Romania during the 19th century, and recent migrants and refugees from Central and Eastern Europe, arriving after World War II or at various times since. Some Sinti and Roma in Germany are itinerant or nomadic. The Romani community includes German citizens, nationals of other European Union States (who as a result of European Union rules have a more privileged legal status than persons coming from non-EU States), recognised refugees and long-term residents.

Several types of administrative status prevalent among Sinti and Roma in Germany are of particular cause for concern. In addition to instances of statelessness, noted above, reported among Sinti and Roma in Germany from after World War II until recent years, many factually long-term and very long-term resident Roma in Germany hold only a temporary status called “tolerated” (“duldung”). A “duldung” is not a residence permit — it is merely a stop on expulsion, and it must be renewed at very frequent intervals, in some instances after only several weeks. Members of the same family are often provided with “duldung” status different periods of time, meaning that a head of household may be almost constantly queuing for renewal of the status for various members of family. The “duldung” status frequently includes restrictions on freedom of movement, access to employment and various forms of social and health protection, although provisions vary from state to state within the Federal Republic of Germany. Numerous Romani individuals have had had no administrative status in Germany other than a “duldung” for periods sometimes longer than ten years.

There are no publically available figures on the total number of Roma who are in possession of the “tolerated” status in Germany. The total number of “tolerated” persons is, however, growing overall: in 2001, the number of persons with “tolerated” status was approximately 233,000. In 2002, the number rose to around 227,000, of whom 146,838 had been living in Germany for at least five years and 78,487 for more than ten years respectively. The repeated provision of extremely short-term “duldung” status has effectively prevented tens of thousands of third-country national Roma in Germany from integration in Germany, although such persons may have given birth to children in Germany (and those children may be enrolled in and regularly attending German schools) and have formed extensive real and factual ties to Germany.

In addition, persons provided with the “duldung” status and their children may labour under extreme conditions of stress due both to the ever-present threat of expulsion from Germany, as well as very frequent interaction with the often hostile public officials responsible for allocation of the “duldung”. As such, long term use of the “duldung” may itself constitute a form of cruel and degrading treatment as banned under a number of international human rights instruments. In addition, there are widespread and plausible allegations that Roma are more likely to be provided with a “duldung” (rather than a more durable status including the progressive accrual of rights) than non-Romani third country nationals, in violation of Germany’s commitments banning racial discrimination, including but not limited to the International Convention on All Forms of Racial Discrimination (ICERD).

According to a number of pronouncements by high-level officials, Germany by policy expels non-citizen Roma and other persons it regards as undesirable. In mid-April 2003, for example, Ms Jelena Markovic, Deputy Minister on Human and Minority Rights of Serbia and Montenegro, told an OSCE Human Dimension Meeting on Roma and Sinti:

“Germany will send back more than 50,000 of our citizens. More than 80% of the persons to be sent back from Germany are Roma.”

Forcible expulsions of Romani foreigners from Germany are currently on-going. The overwhelming majority of foreign Roma currently being systematically expelled from the Federal Republic of Germany come from the former Yugoslavia (or one of its successor states), or were born in Germany to Roma from ex-Yugoslavia. These include persons from Kosovo, who may face very extreme levels of exclusion in Kosovo as a result of the ethnic cleansing of Roma, Ashkalis, Egyptians and others regarded as “Gypsies”, which took place beginning June 1999. Current expulsions of Roma are the latest in a series of expulsions from Germany of Romani foreign nationals taking place since 1989.

Apart from issues such as expulsion and threat of expulsion, however, it is difficult to clearly separate the problems faced by Roma and Sinti citizens on the one hand and foreign Roma on the other, given the prevalence of anti-Romani sentiment in Germany and the tendency of German officials and members of the public at large to treat citizen and non-citizen Sinti and Roma as “Gypsies”, regardless of citizenship.

Sinti and Roma who possess German citizenship are recognised as a national minority by the German government. However, the German government has repeatedly stated that where Sinti and Roma are concerned, it regards minority protections in Germany — including those secured under Article 27 of the International Covenant on Civil and Political Rights — as applying only to those Sinti and Roma who are citizens of Germany. This limitation is at odds with the UN Human Rights Committee’s position as to the scope of the Article 27 protections. In General Comment 23, the Committee states: “[…] the individuals designed to be protected need not be citizens of the State party. In this regard, the obligations deriving from article 2.1 are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, […]. A State party may not, therefore, restrict the rights under article 27 to its citizens alone.”

German hysteria with respect to Romani migrants and refugees from the former Yugoslavia – and particularly with respect to Roma from Serbia and Kosovo – played out in particular during the period 2003-2005. Episodes of mass exclusionary public mobilisation of this kind have played out in a number of Western European states in recent years, including France, Spain, the United Kingdom, Ireland, Belgium, the Netherlands, Spain, Finland, Austria and elsewhere. Most recently, since the summer months of 2007, Italy has been in the throes of a media driven effort to systematically expel Romanians, in particular Romani Romanians. This effort has involved mobilised state measures, particularly since November 2007, as well as an Italian government-led effort to amend European Union law in order to facilitate more smoothly the expulsion of citizens of other European Union Member states. The fact that these and similar mass expulsions are race-based, and that they are coupled also with extensive racial profiling, means that Europe is increasingly “black” in the East and “white” in the West.

V. Conclusion

Despite remarkable efforts by pan-European bodies at both supplementing and ameliorating the powerful links between social, political and civic inclusion on the one hand, and the nation-state on the other – efforts supplementing international law and in principle opening unique possibilities for new forms of integration — Europe in fact remains a place in which hundreds of thousands of persons are formally excluded from the polities of the places where they live, or indeed in many cases from any polity. The post-1989 period has seen these exclusionary dynamics re-invigorated through the forces of ethnic war, ethnic cleansing, the disintegration of three major multinational federations, as well as through repeated powerful xenophobic mobilisations throughout the continent.

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