The applicant requested a travel document for stateless persons. The Court pondered on whether he may be stateless, and discussed the concepts of de jure and de facto statelessness, but ultimately ruled that it is irrelevant for the applicant's request because he does not have the right to reside legally in Germany, and therefore is not eligible for a travel document in accordance with Article 28 of the 1954 Convention.
Articles 1 and 28 of the 1954 Convention relating to the Status of Stateless Persons
The Court reasoned as follows:
"It is doubtful whether the applicant is a stateless person within the meaning of Art. 28 of 1954 Convention. According to the legal definition of Art. 1 Para. 1 of 1954 Convention, a stateless person is a person whom no state regards as a national on the basis of its law, i.e. a person who is de jure stateless."
"On the other hand, the so-called de facto stateless persons are not subject to the provision of Art. 28 of 1954 Convention. De facto stateless are those who renounce the protection of their state without losing their nationality as a result, as well as those whose state denies them its protection, or persons who do not want or cannot avail themselves of the protection of their home country."
"Contrary to the opinion held by the state authorities, however, the legal or practical possibility to acquire a nationality does not exclude the applicability of the Convention on the Status of Stateless Persons. Rather, such stateless persons [who have the possibility to acquire another nationality] also fall under the scope of the Convention on Stateless Persons."
"When determining statelessness, the decisive factor is how the foreign nationality regulations are actually applied by the authorities and courts of the respective state."
"When applying the above standards to the applicant's situation, it is questionable whether he is stateless. According to Art. 29 of the Kosovar Citizenship Act, he could be a Kosovar citizen. Article 29 para. 3 of the Kosovar Nationality Act provides for the possibility to be included in the nationality register upon application, and it has not been established whether the applicant submitted such an application. According to the authority responsible for nationality matters, however, people who meet the Article 29 criteria for registration from the Kosovar Nationality Act are considered Kosovar citizens even before registration, the latter being currently only possible in person in Kosovo."
"According to the applicant's UNMIK certificate of August 10, 2005, he fulfils at least one criterion for obtaining Kosovar citizenship on Art. 29 of the Kosovar Citizenship Act - that one of his parents was born in Kosovo before 1.1.1998 - in accordance with Art. 4 para. 1 of Administrative Regulation 05/2009."
"However, the question of whether the applicant is stateless does not need to be answered. The applicant's request to be issued a travel document according to Art. 28 para 1 of 1954 Convention cannot be fulfilled already on the basis that the applicant does not reside legally in Germany."
The court rejected the applicant's request to issue him a travel document for stateless persons.