Austria - Constitutional Court case of 29 January 1997

The applicants arrived to Austria in 1989 from the Soviet Union, and became stateless the same year. They applied for Austrian nationality in 1993, before fulfilling the ten year residency requirement, and the judgment considers whether their statelessness can be considered as a circumstance "worthy of special consideration" allowing for an exception to the ten year residency requirement. 

Case name (in original language)
94/01/0744
Case status
Decided
Case number
94/01/0744
Citation
https://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Vwgh&Dokumentnummer=JWT_1994010744_19970129X00
Date of decision
State
Court / UN Treaty Body
Constitutional Court of Austria (Verfassungsgerichtshof)
Language(s) the decision is available in
German
Applicant's country of birth
Soviet Union {former}
Applicant's country of residence
Austria
Relevant Legislative Provisions

Section 14 StbG - the domestic implementation of the UN Convention on the Reduction of Statelessness of 30 August 1961, Federal Law Gazette No. 538/1974

Facts

The applicants (a couple and their daughter) lived in the Soviet Union until September 1989 and have had their (main) residence in Vienna since then. They were Soviet nationals until 1989, and are now stateless. They applied for Austrian nationality in 1993. They did not fulfil the 10-year residency requirement, and the only way nationality could be granted to them if there was a "reason worthy of special consideration".

Decision & Reasoning

On the issue of whether statelessness constitutes a “reason worthy of special consideration”, the Court reasoned as follows:

“Since the first complainant is stateless and has been employed by the same employer since August 13, 1990, it remains to be investigated whether one of these circumstances is a "reason particularly worthy of consideration" for the granting of nationality, which the applicant did not expressly claim.”

“The statelessness of the first applicant, however, fulfils the requirement of the "other lack of protection of the home country" contained in the list mentioned. The fact that the legislature has viewed statelessness as an factor for a positive settlement of an application for the granting of nationality also results from the fact that stateless persons have a right to a nationality under the conditions of Section 14 StbG - the domestic implementation of the UN Convention on the Reduction of Statelessness of 30 August 1961, Federal Law Gazette No. 538/1974.”

“According to Section 14 (1) (1) StbG, a stateless person only has a legal right to be granted nationality if he was born in the territory of the Republic of Austria and has been stateless since birth. Since the first applicant was not born in Austria, but only entered it at the age of 37, the Administrative Court believes that there are no similar or comparable circumstances to those described in Section 14 of the StbG.”

“The statelessness of the first applicant - which, by the way, does not allow for any conclusions to be drawn about a level of assimilation having been achieved beyond what would be expected after the normally required ten-year period - does not constitute a reason "particularly worthy of consideration" for being granted nationality that justifies neglecting the default naturalization requirement of ten-year main residence in Austria.”

Outcome

The Court ruled against the applicant.