Edit: I am adding paragraphs on the constitutional framework, administrative law framework, precedent-setting/dicta, and on the futility of legal analysis in political decisions (not that it did not happen with Slovak citizenship before, see Lex Derer).

Edit 2: This was just a quick post for a couple of my friends and acquaintances; I didn’t expect it to get that much attention. I appreciate your emails, but I cannot estimate your chances of obtaining Slovak citizenship. Also, some parts would need more attention or are not fully precise. I know.

Edit 3: I have added the pdf version of the decision.

 

I was asked by three people what I think about the Slovak Interior Minister’s decision (č. SL-OLVS-2025/006324-002, SL-OLVS-2025006324-002) regarding § 2 of the Czechoslovak (constitutional) law . 236/1920 Coll. (the birth-on-territory presumption of Czechoslovak citizenship). I will expand the post with the decisions mentioned below, but this blog post is final in its reasoning. Also, my blog posts on the dual citizenship bill and SCOTUS taking the citizenship case are coming soon, too. 

 

In short – I think it was an anomaly which won’t stick, unless there is political will. I don’t want to tell people not to apply, but I would also not have hopes up. 

 

Over the summer, the Slovak interior minister, based on the recommendation from one of his committees, decided to strike down the decision of the Slovak interior ministry about not awarding Slovak citizenship to an applicant whose ancestor was born in Slovakia, but lost his general Hungarian citizenship (the citizenship of the Hungarian part of Austria-Hungary, the Lands of the Crown of Saint Stephen, Transleithania). 

Quick detour 

Slovakia awards citizenship to people whose ancestors, at most great-grandparents, were born in today’s Slovakia’s borders and were Czechoslovak citizens.  

Hungarian law of that time said that a person loses Hungarian citizenship if they are out of the country for ten years, with exceptions for minors and the like. There were exceptions such as getting a passport or signing up at a consulate. This was modeled after BuStAG/1870 (since I know the German jurisprudence, Hungary interpreted it completely differently).

Czechoslovakia granted citizenship according to Czechoslovak (constitutional) law n. 236/1920 Coll. which in § 1 gave citizenship, among others, to people who has Austrian or Hungarian citizenship and had domicile rights in the area of Czechoslovakia (home rights, Heimatrecht). It also had § 2 which presumed Czechoslovak citizenship for people who were born in the area of Czechoslovakia unless the opposite is proven.  

There was a huge difference between treatments of home rights of Cisleithanian and Transleithanian citizens. While Hungary took away home rights after ten years, the Austrian part was much more lenient. This might be behind the difference in Citizenship-by-Descent laws in both countries. 

Appeals to interior ministry’s decisions are decided by the minister; however, they are recommended by a committee which might have no idea about the law and which does not need to have any legal training at all.

Constitutional Framework

Political systems in continental Europe usually differ from those in the US where there is the presidential system. In the US, separate parts of government are called departments (the Department of Homeland Security or the Department of Defense d/b/a the Department of War). In Europe, those departments are called ministries (e.g., the Ministry of the Interior). Heads of these ministries are not called secretaries, but ministers. It has its reason, in the US, a (cabinet) Secretary reports to the President. In continental Europe they don’t report to anybody (but they can be replaced). Ministries are the highest levels of the administration (L3).

Administrative Law Framework

There is an administrative proceeding in which the first level is the Ministry of the Interior. Appellate jurisdiction is, since there is no “higher” body, given to the boss of the ministry = the Minister of the Interior. Since ministers are busy, they have advisory committees to help them (an analogy of the secret committees to the Emperor in the past).

Once a minister decides on the appeal and a ministry does not agree, there are limited actions it can do in that given case.

It is also very legal system specific. I recently had a case in front of the Supreme Administrative Court of the Czech Republic where the ministry did not agree and was able to override minister’s decision by additional argumentation. However, that is an exception and not a norm.

Nonetheless, in the majority of cases, a ministry takes the decision as given and applies it in the case (so called cassation effect). It does not mean it sets a precedent for every case, though. There are good decisions and bad decisions.

Precedent Setting and Dicta

Continental Europe is much less inclined to work by precedents. The administrative practice should converge (as per the administrative code), but some differentiation is accepted.

Decisions usually have the holding/ration decidendi, the part that is binding, and dicta (OD, orbiter dicta) which is not part of the decision.

In this case, it can be argued that the decision of the Minister of the Interior about citizenship is dicta only because there was a procedural mistake, and the decision was vacated because of that.

 

The case 

Over the summer, the interior minister decided that § 2 of Czechoslovak (constitutional) law n. 236/1920 Coll. Means that everybody born in Slovakia was a Czechoslovak citizen unless shown otherwise. Even if a person lost his domicile rights, they were still Czechoslovak citizens.  

The section, as seen below, really, by plain reading, is telling just this. However, it is needed to look at the contemporaneous interpretations and cases, and also at additional judicial opinions over the time. 

• 2.

O osobách, které se narodily nebo narodí na území Československé republiky, má se za to, že jsou státními občany československými, není-li prokázáno, že narozením nabyly jiného státního občanství. 

 

Unofficial translation: 

• 2

With respect to persons who were born or will be born in the territory of the Czechoslovak Republic, it shall be presumed that they are Czechoslovak citizens, unless it is proven that by birth they acquired another citizenship. 

Here comes the troubles with the minister’s decision. 

One of the goals of treaties of Paris suburbs was to make sure nobody is without citizenship – what turned out pretty good prediction given that the International Court of Justice had to get involved in 1925 in case of Poland, Austria and former Kingdom of Galicia and Lodomeria. That arbitration did consider the same language and it was decided that people who lost citizenship are ineligible. 

Czechoslovak contemporary judicial decisions (Boh. A 5336/26) explains that this second paragraph is only complimentary to the first paragraph for people where it is impossible to decide which citizenship should apply. They cite both the Treaty of Saint-German-en-Laye and the Treaty of Brno.  

Czech Supreme Administrative Court considered such case (case n. 4 As 19/2004) where the court confirmed that the second section is complementary only, and if one lost domicile rights, he or she cannot be considered a Czechoslovak citizen. 

Moreover, the Slovak citizenship law has two conditions – an ancestor born in Slovakia and was a Czechoslovak citizen. If the minister’s decision stays, the second condition is meaningless (up to very limited cases). This also speaks against this interpretation (the doctrine of legislative infallibility).

Another point that the minister hadn’t taken into account is Czechoslovakia took the legal system of Austria, Hungary (and partially Germany) by so-called Reception Norm (Section 2 of the Zákon o zřízení samostatného státu československého, n. 11/1918 Coll.) Austria-Hungary had entered into an international treaty with the United States which stated that if Austrian or Hungarian citizen naturalizes, Austria-Hungary won’t ever consider them a citizen. Given that the legal system was accepted by Czechoslovakia and is in line with the given treaty, this also speaks against Slovak minister’s decision. 

Yet another point is that the US-Czechoslovakia naturalization treaty (n. 169/1929 Coll.) is applied retroactively, so that person would lose Czechoslovak citizenship as of naturalization, so would never become a citizen. 

Conclusion (Political v. Legal Reasoning)

There are various legal reasons that the decision on birth in the area not to be followed. However, at the end, the law is what the minister says it is if there is nobody to challenge it in court. I believe there is a discussion within the ministry on what the real guidance should be because it is possible that the advisory committee had no idea what they were doing.

Therefore, we will hear about the outcome, but it wont’ be based on the law itself.

It is about political will. If Slovakia wants to get more people as citizens, especially given the judgment on Malta (Case C-181/23), they can make it this way instead of changing the legal requirement which might be tough. Nonetheless, the current political representation does not look like they would like to do it (but I am no expert and might be wrong).