Published on 11 April 2023

THIRD SECTION

Application no. 29295/22 Elmi ABO against Estonia lodged on 7 June 2022 communicated on 20 March 2023

SUBJECT MATTER OF THE CASE

The applicant was born in 1948 in Abkhazia, Georgia. She has been issued with an Estonian residence permit and has been living in Estonia since 1998. In 2020 the applicant – presuming that she was an Estonian citizen by descent – applied for the Estonian passport for the first time. The Police and Boarder Guard Board (hereinafter “PBGB”) refused to issue her a passport, concluding that the applicant’s predecessors had never obtained Estonian citizenship in accordance with the Tartu Peace Treaty of 1920, and that the applicant was therefore not an Estonian citizen.

In 1920, following the conclusion of the Tartu Peace Treaty between Estonia and Russia, the applicant’s father and grandmother, living in Russia at the time, applied for and were issued with a certificate of Estonian citizenship and with an Estonian passport of limited validity (such persons were known an “optants”, opteerujad or optandid in Estonian). However, they never resettled to Estonia.

Until 2015 the PBGB’s administrative practice was to acknowledge as Estonian citizens and issue Estonian passports to descendants of such persons as the applicant’s father and grandmother, even though their ancestors had never resettled to Estonia. However, in 2015 the interpretation of the Tartu Peace Treaty and, consequently, the administrative practice of issuing Estonian passports changed. According to the new interpretation, resettling to Estonia had been a prerequisite for the optants to acquire Estonian citizenship. As the applicant’s predecessors had never resettled to Estonia and had thus never obtained Estonian citizenship, the applicant had not obtained Estonian citizenship by birth. In contrast, the State continues to acknowledge as Estonian citizens those persons whose citizenship had been recognised before 2015, regardless of whether their ancestors had moved to Estonia or not. The PBGB’s refusal was upheld by the domestic courts.

The applicant complains that the refusal to recognise her Estonian citizenship and issue her with an Estonian passport violated her rights under Article 8 of the Convention (taken alone) as well as under Article 8 in conjunction with Article 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been an interference with the applicant’s right to respect for her private and/or family life within the meaning of Article 8 § 1 of the Convention? What were the consequences for the applicant of the refusal to recognise her as an Estonian citizen?

If there was an interference with the applicant’s rights under Article 8 of the Convention, was that interference arbitrary in terms of Article 8 § 2 (compare with Ahmadov v. Azerbaijan , no. 32538/10, §§ 42-54, 30 January 2020; Usmanov v. Russia , no. 43936/18, §§ 58-70, 22 December 2020; Hashemi and Others v. Azerbaijan , nos. 1480/16 and 6 others, §§ 45-58, 13 January 2022)?

2. Has the applicant suffered discrimination in the enjoyment of her Convention rights, contrary to Article 14 of the Convention read in Conjunction with Article 8 of the Convention? More specifically, what could be considered as grounds for discrimination in the present case (compare with Genovese v. Malta , no. 53124/09, §§ 31-36, 11 October 2011)?

Moreover, did that difference in treatment pursue a legitimate aim; and did it have a reasonable justification?