Loading...

Erased

Citizenship, Residence Rights and the Constitution in Slovenia

by Neža Kogovšek Šalamon (Author)
Monographs 371 Pages

Summary

This book is about the «erasure», a process by which the Republic of Slovenia unlawfully deprived 25 671 of its residents of their legal status following the country’s secession from the former Yugoslavia in 1992. After losing their status, these individuals were left without any rights on the territory of Slovenia. Since the Slovenian state refused to remedy the problem for many years, the European Court of Human Rights took up the case. In the 2012 Kuric and Others v. Slovenia decision, the Grand Chamber found that Slovenia had violated human rights. This book describes the full background of this case and examines its constitutional implications.

Table Of Content

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Table of Contents
  • Acknowledgments
  • Preface
  • Introduction
  • Part I: The Legal Framework of Citizenship
  • 1. The Legal Acts of the SFRY and the Socialist Republic of Slovenia on Citizenship and Residence
  • 1.1 From 1811 to 1918: The Common Civil Code and Heimatrecht
  • 1.2 From 1918 to 1945: The Kingdom of Serbs, Croats, and Slovenes
  • 1.3 From 1945 to 1974: Centralised Yugoslavia and the Primacy of Yugoslav Citizenship
  • 1.4 From 1974 to 1991: Decentralisation and the Primacy of Citizenship of the Republics
  • 1.5 Republic Citizenship and the Register of Residents
  • 1.6 Citizenship Records
  • 2. The Pre-constitutional Legislative Documents of the Socialist Republic of Slovenia
  • 2.1 The Referendum and the Statement of Good Intentions
  • 2.2 The Basic Constitutional Charter and the Constitutional Act Enabling its Implementation
  • 3. The Adoption of the Independence Legislation
  • 3.1 Introduction
  • 3.2 Establishing the Citizenship of the Republic of Slovenia in 1991
  • 3.3 The Situation of Children
  • 3.4 Remedying Certain Shortcomings in the Legislation on Citizenship
  • 3.5 Statistical Data on Citizenships Granted under Article 40 of the Citizenship of the Republic of Slovenia Act and Related Circumstances
  • 3.6 The Suitability of the Legislation on Citizenship from the Perspective of the Obligation to Submit an Application
  • 3.7 The Suitability of the Legislation on Citizenship from the Perspective of the Principle of Preventing Statelessness
  • 3.8 The Suitability of Legislation on Citizenship from the Perspective of the International Obligations of States in the Case of Succession
  • Part II: The Situation of Aliens following Slovenian Secession and the Erasure
  • 1. The Situation of Persons who did not Obtain Slovenian Citizenship
  • 1.1 Transitional Provisions in the Aliens Act
  • 1.2 The Amendments that Could Have Prevented the Erasure
  • 1.3 A Mistake or a Deliberate Decision?
  • 2. The In-house Instructions on the Implementation of the Aliens Act and Other Independence Laws
  • 2.1 The In-house Instruction of 26 June 1991 – SFRY Citizens as Aliens
  • 2.2 In-house Instruction of 30 July 1991 – A Moratorium
  • 2.3 The In-house Instructions of 5 February and 18 February 1992 – The Unlawful Invalidation of Documents and Restrictive Conditions on Work Visas
  • 3. The In-house Instructions on the Erasure from the Register of Permanent Residents.
  • 3.1 The In-house Instructions of 28 February 1992 – The Erasure, the Invalidation of Passports, and Deportations
  • 3.2 The In-house Instruction of 15 June 1992 – The Removal of Individual and Household Records
  • 4. The Consequences of the Erasure
  • 4.1 Disregard for the Situation of Citizens of Other SFRY Republics in Slovenia
  • 4.2 A Communication to the Government of 4 June 1992 – “Ignore the Acquired Rights”
  • 4.3 Informing the Public about the Erasure
  • 4.4 Invalidation of Identification Documents and Difficulties with Acquiring Legal Status
  • 4.5 The Expiration of Driver’s Licenses
  • 4.6 Implications for Employment
  • 4.7 The Difficulty of Retaining the Right to Tenancy
  • 4.8 The Right to Education
  • 4.9 Arrests
  • 4.10 Expulsions
  • 4.11 The Right to the Protection of Private and Family Life and the Role of the European Court of Human Rights
  • 5. The Role of the Supreme Court in Confirming the Erasure
  • 6. Conclusions
  • Part III: The Elements of Totalitarianism as a Precondition for Collective Violations of Human Rights
  • 1. Nationalism and the Creation of the Other
  • 1.1 Nationalising Nationalism
  • 1.2 The Identity of the Historical Victim and the Creation of “the Other”
  • 2. Elements of Totalitarianism
  • 2.1 The Problem of Thoughtlessness
  • 2.2 The Non-Recognition of the Ethical Dilemma and Dehumanisation
  • 2.3 Depriving People of Legal Status to Dehumanise Them
  • 2.4 Double Dehumanisation
  • 3. The Inability to Confront the Past
  • 3.1 “We Were Only Implementing the Law”
  • 3.2 Attributing the Responsibility to the Victims, Redirecting Attention, and Denying the Crime
  • 3.3 Non-Punishment
  • 3.4 Organised Innocence
  • 4. Other Motives behind the Erasure
  • 4.1 Revenge
  • 4.2 Material Motives
  • 5. The Disintegration of Yugoslavia as a Contributing Factor
  • 5.1 State of Exception
  • 5.2 The Theory of Shock
  • 6. The Totalitarianism of the Law
  • 6.1 Introduction: The Law (Statute) as a Tool
  • 6.2 The Elements of Totalitarianism in the Law
  • 7. Conclusions
  • Part IV: The Erasure, Constitutionality, and the Rule of Law
  • 1. Introduction
  • 2. Constitutional Issues and the Erasure
  • 2.1 The Rule of Law and the Erasure
  • 2.2 Referendums and the Erasure
  • 2.3 The Right to Compensation and the Role of the ECHR
  • 3. Conclusions
  • Part V: The Implementation of the Decisions of the Constitutional Court
  • 1. Introduction
  • 2. An Overview of the Implementation of the Decisions
  • 3. The Implementation of the Constitutional Court’s Decisions on the Erasure
  • 3.1 Decision No. U-I-284/94: The Legal Status Act
  • 3.2 Decision No. U-I-246/02
  • 3.3 The meaning of the special declaratory decisions
  • 4. The Role of State Officials in the Implementation of the Constitutional Court’s Decision
  • 5. Social and Cultural Constraints on How the Courts Influence Social Change
  • 6. The Principle of Ensuring Respect for the Constitutional Court’s Decisions
  • 7. The Meaning of the ECHR Kurić and Others v. Slovenia Case for Constitutional Democracy
  • 8. The Compensation Scheme
  • Part VI: A Comparison of the Erasure and Exclusion Politics in Other Countries in Times of Succession
  • 1. Introduction
  • 2. The Successor States of Former Yugoslavia
  • 2.1 Croatia
  • 2.2 Bosnia and Herzegovina
  • 2.3 FYRO Macedonia
  • 2.4 Serbia
  • 2.5 Montenegro
  • 2.6 Kosovo
  • 2.7 Discussion
  • 3. Newly Formed Eastern European Countries
  • 3.1 Estonia
  • 3.2 Latvia
  • 3.3 Lithuania
  • 3.4 The Czech Republic and the Slovak Republic
  • VII. Conclusion
  • VIII. Sources
  • Appendix I: Extract from the Grand Chamber Judgment in Kurić and Others v. Slovenia Case
  • Index

← 10 | 11 →

Acknowledgments

Twelve years ago, when I returned to Slovenia from my LL.M. course at the University of Notre Dame (USA) and a six-month internship at the New York-based Human Rights Watch, where I focused on issues of international justice, war crimes, and crimes against humanity, I was susceptible for getting engaged in difficult human rights challenges. At the time, Slovenian society was struggling to take responsibility for a mass violation of human rights that occurred in 1992, soon after the secession of Slovenia from the former Yugoslavia. The issue was known as “the erasure”. I soon started working at the Peace Institute, a private independent research institution based in Slovenia, which was at the time already deeply involved in researching the erasure as well as its consequences, and in advocating for redress. Becoming part of the team, I started developing projects aimed at both further research and providing legal advice to the “erased” people. In this process I cooperated not only with a number of exceptional lawyers, activists, and academics who worked together to push for change in society, but also with the erased individuals themselves, who showed immense energy and fought relentlessly for their rights. During this process, when I started to pursue an academic career, I decided to write my dissertation on this topic. This was the first PhD thesis on the “erasure” written and defended at the Law School of the University of Ljubljana. After earning my PhD in 2011, I continued with my work in this field and this book is a result of this undertaking. There are many people and organisations who were involved in this process and whom I would like to thank: members of the project team gathered at or around the Peace Institute Lev Kreft, Sara Pistotnik, Katarina Vučko, Maja Ladić, Lana Zdravković, Veronika Bajt, Brankica Petković, Jovana Mihajlovič Trbovc, Jasminka Dedić, Uršula Lipovec Čebron, Jelka Zorn, Imma Tuccillo Castaldo; Blaž Kovač and Nataša Posel from Amnesty International Slovenia; Matevž Krivic, former Constitutional Court judge and legal representative of the Association of the Erased Residents of Slovenia; Niko Jurkas and Silva Stanković from this same association; Irfan Beširević, late Aleksandar Todorović and Mirjana Učakar from the Civil Initiative of Erased Activists; attorneys Andrea Saccucci, Anton Giulio Lana, Alice Sironi and Giulia Borgna who represented the erased people before the European Court of Human Rights; my academic mentor Professor Bojan Bugarič; professors Vlasta Jalušič, Ciril Ribičič and Vladimir Simič who were members of my doctoral commission; Open Society Foundations for supporting projects in the field of the erasure and believing that change is possible; Open Society ← 11 | 12 → Justice Initiative, Equal Rights Trust and United Nations High Commissioner for Refugees for submitting their third party interventions in the Kurić and Others v. Slovenia case; Pasos – Policy Association for an Open Society for the Think-Tank Achievement Award 2012 which recognised the importance of our work; and PILNet for the 2012 European Award for Partnership in the Public Interest bestowed to Andrea Saccucci, Anton Giulio Lana and the Peace Institute for our cooperation in litigating the Kurić case. I am particularly grateful to Boštjan M. Zupančič, Judge at the European Court of Human Rights, who kindly wrote a preface to the this book, and Ágnes Bezeczky, the language and copy editor of this volume who made this complex material understandable for international readers. As always, any errors or oversights are mine alone.

The Author

← 12 | 13 →

Preface

The book you hold in your hands was instrumental in the process by which the European Court of Human Rights decided the question of possible violations concerning the “erasure” of individuals, non-citizens and residents in Slovenia, from the Slovenian residence register.

Legal and political background

Certain members of the Slovenian Government of the time, who had an insidious and stealthy modus operandi, were directly responsible for this “erasure”, which was carried out secretly in most, if not all, of the “administrative units” [upravne enote] of the Republic of Slovenia. Who, apart from the prime minister, the minister of the interior and the state secretary in the ministry of the interior, was also responsible is still not known. Criminal trials against these individuals have not been initiated despite the fact that I, among others, have in my concurring opinion of the judgment of the European Court of Human rights (infra) entreated the authorities and subsequent governments to do so. The criminal liability of the conniving members of subsequent governments is similarly still not clear.

The story in short is as follows.

In the decades before the disintegration of the federal state of Yugoslavia, Slovenia was the most developed of the “federal republics”, as they were called. Obviously, there were no borders between these quasi-states; there was among them a free flow of goods and also of workers. The economy in Slovenia called for more workers than it was able to supply. Persons from other “republics” were invited to the country. There, for many years, often decades, these nominal citizens of other “republics” established themselves with what in law would be called animus manendi, the intention to stay. Their children were born in this new cultural and economic environment and thus in many cases the problems that this book is about concerned two or even three consecutive generations.

Upon the disintegration of Yugoslavia, or more precisely upon the separation of the Republic of Slovenia from the federal state, the status of these people came into question. Ethnically, they were not Slovenians. Many spoke Serbo-Croatian or even Albanian and the local population continued to perceive them as foreigners. Thus, immediately after Slovenia seceded, the nationality status of these “foreigners” came into question. They had been duly listed in all the respective ← 13 | 14 → status registers, not only of residence but also employment, taxes, social security, etc. They were most often issued Slovenian identity cards and passports, etc., although this happened, naturally, in the context of the larger federal Yugoslav state. Upon the disintegration of Yugoslavia, some of those who wanted to register their Slovenian permanent residency and/or citizenship came to the counters of the said administrative units. They submitted their identity cards, passports and other requested documents. The officials in these units then proceeded with the perforation of these documents and made them null and void. Unbeknownst to the public at large and to the aggrieved persons in question, they were subsequently “erased” – hence the term – from the residence register with all the ensuing legal consequences.

Thereafter, the “erased” were not only deprived of their chance to become citizens of the Republic of Slovenia, they were also deprived of their legitimate residence permits. In turn, this implied the loss of social security benefits, the possibility of employment, retirement benefits, etc.

As I pointed out in my concurring opinion in the case of Kurić and Others v. Slovenia (Application No. 26828/06), delivered on 26 June 2012, infra, there were at the time at least 25 671 such wronged individuals and their respective families. I maintained that this had been a clerical attempt at “ethnic cleansing”, which is perhaps a debatable designation strictly in terms of international law, but which certainly did describe the essence, legal or otherwise, of what had been going on.

How did this attempt come about?

In order to comprehend this, one has to keep in mind the principal political motivation for the secession of Slovenia, a process which catalysed the disintegration of the federal state of Yugoslavia. One of the political protagonists of that time, the late Jože Pučnik, had made it publicly known what he thought the policy towards the segment of the populace from other “Yugoslav republics” ought to be:1

Don’t be misled by illusions, because this is not a national but a social issue […] Personally, I oppose automatically taking over of the state of affairs as it was on the day of the referendum. If the Republic of Slovenia wants to ensure a firm social structure, we will have to introduce some kind of criteria when granting citizenship. Don’t let us be apparently democratic and create problems that we will not be able to solve later. We must be aware of what it is possible to solve in Slovenia viewed from the social perspective – the national aspect of this issue is in fact of secondary importance. We are setting up a community that must ensure for itself, from the very beginning, the living circumstances, and we must be ready to eliminate the heritage of the Yugoslav federation, perhaps in an ← 14 | 15 → unwanted way as the need may be […] It is necessary to calculate – demographically as well – what consequences could follow in five or ten years, along with the demands for cultural autonomy. Personally, I will endeavour, using all the influence I possess within the Social Democratic Party, to spare Slovenia the problems such as those that were seen in Knin. We do not want to see Knin in Slovenia and today we have an opportunity to solve these issues in a humane, socially responsible and legal manner. We should not allow rotten compromises or rally-driven democracy that could create troubles for us, such as those encountered by England, France and Germany and other countries that existed during the colonial period. Slovenia, in my opinion, should not allow itself to be burdened by these additional problems.

There can be no doubt that his statement was particularly nationalistic. The quote, however, was not an isolated occurrence. It had a legitimizing political impact on significant figures of the secession such as Lojze Peterle (Prime Minister at the time, now a European MP!) and Igor Bavčar (Minister of Interior at the time), the latter being a direct perpetrator of the “erasure”, an accomplice before and during and after the fact, together with late Slavko Debelak, the state secretary at the Ministry of the Interior at the time.

Many of the leading politicians and intellectuals of that time adhered to the idea that the main purpose of Slovenia’s secession was to preserve a pure Slovenian ethnic identity, whatever this actually meant. This is plainly obvious from Pučnik’s separationist ideological statement, which, as we have said, was an inspiration to other important right wing protagonists advocating the secession of Slovenia. Yugoslavia was, for them, something undesirable, mostly from the point of view of pure ethnic identity; they felt that the “Slovenian nation” was being overwhelmed by the “southern brothers”, as they were then derisively called.

The “erased” came to Slovenia mostly from Bosnia and Herzegovina, from Kosovo, but also from Serbia, Croatia and other parts of former Yugoslavia. They came as “guest workers” because Slovenia needed them much the same way that Germany and other Western European countries imported their workforce from abroad. In fact, the term “guest worker” comes from the German “Gastarbeiter”.

The Social Context of Immigration

In many respects, this was an emblematic immigration situation in which the newcomers only slowly adapt to the new cultural environment.

In the United States, for example, which has extensive historical experience with immigration, it is said that it takes four generations for immigrants to assimilate into the American culture. The incoming group is not reckoned as the first generation; the first generation is the one already born in the United States. If we know nothing more, we already understand that immigration is a painful ← 15 | 16 → process and that the actual integration into the new cultural community occurs only during the change of subsequent generations. One basic requirement in this respect is the ability to speak the native language.

Indeed, in this respect there certainly were some problems with the workforce from other former republics of Yugoslavia. They mostly did not make the effort to learn the Slovenian language. After all, Yugoslavia was a living federal entity and many of the newcomers perceived Serbo-Croatian as the lingua franca of Yugoslavia, making it quite unnecessary to learn Slovenian. Obviously, this aroused antipathy on the part of Slovenians. The prevailing perception, in legal terms, was that they did not have the requisite animus manendi, the intent to stay in the country.

Another offshoot of this mentality, as I mentioned in my concurring opinion to the above case, was the assumption of much of Slovenia’s population, which was not informed of how these people were underhandedly deprived of their resident status, that the “erased” did not actually want to acquire Slovenian citizenship. They allegedly had a “Yugoslav” mentality which led them to maintain that Serbian or even Yugoslav citizenship was more prestigious, better and more legitimate. Meanwhile, the great majority of Slovenians had never really accepted their “Yugoslav” identity. In other words, this was an ongoing cultural conflict.

To what extent this was actually true remains an open question, but the fact is that the public perceived the former guest workers to adhere to this “Yugoslav” attitude. Indeed, this probably made it easier for the Government at the time to produce the misapprehension that these people did not wish to register as Slovenian residents, let alone as citizens. Much antipathy among ordinary people to the judgment of the European Court of Human Rights also derived from these possibly false assumptions.

The Larger Question of Migrants

In some respects, the situation at the time of the “erasure” from the register of nationality may be compared to the migration crisis which is currently upon Germany and the rest of Europe.

First of all, it is no accident that East European countries, including former East Germany, are not at all in the mood to permit immigration from northern Africa. The residual values, as Raymond Williams2 would have called them, were quite different in Eastern Europe than in Western Europe. These countries were ← 16 | 17 → to a large degree isolated for decades not only from the West; they were, under the totalitarian regimes, for the same reason practically secluded from much of Eastern Europe, too. Much like in Slovenia, they developed a mentality centred on the desire to maintain their ethnic identity, since obviously under totalitarianism they were under constant threat coming mostly from the Soviet Union. Latvia is typical example of this outlook. It was subject to mass immigration by Russians during the Soviet era, who still represent about forty per cent of Latvian population. These Russians are deprived of Latvian citizenship; they are only entitled to permanent residence permits. We suspect that here, too, the political impetus behind the similarly discriminatory treatment of foreigners is very much the same as in Slovenia, the defence of ethnic identity.

Moreover, the current East European opposition to accepting the people fleeing from the embattled areas in North Africa derives from parallel socio-psychological characteristics. Williams’s “residual values”, in other words, hold sway over all East European ethnic groups and for similar historical reasons. Sad be it to say, the Slovenian overreaction, to put it mildly, is not an exception.

For example, in Latvia the authorities require Russian permanent residents (without Latvian passports) to take a language test that these people cannot possibly pass. So far, nobody has made a legal issue of the situation of Latvian Russians – no case has come before the European Court of Human Rights in Strasbourg – but in all fairness one must still maintain that the situation of Russians in Latvia is similar to that of the “erased” members of other ethnic groups in Slovenia. As I wrote many years ago in the case of Ždanoka v. Latvia:

This has to do with the demographic fact that thirty per cent of the existing Latvian population speaks Russian. Presumably, this puts in jeopardy the pro-autonomy rule of the autochthonous majority in whose name the separation of Latvia (and the other two Baltic States) from the Soviet Union was carried out in the first place. […] The large Russian-speaking minority in Latvia is a demographic by-product of the long-term illegal occupation by the Soviet Union. Does the historical fact that the occupation was illegal – and it is probably not an accident that the majority opinion emphasises the early illegality of the Molotov-Ribbentrop pact – imply that the residence of the Russian-speaking population in Latvia is itself illegal?3 ← 17 | 18 →

Sociological Aspect

Sociologically, this whole cluster of assimilation problems has come to the fore in the current crisis, where various national groups in Eastern Europe, but also in the West, are reacting aggressively and with a great deal of prejudice against potential North African and Middle Eastern immigrants. Given the great cultural difference, which was minimal in the former Yugoslavia, between the native cultures in Europe and the North African and Middle Eastern immigrants, there are obviously going to be great problems in attempting to integrate and assimilate them. One aspect of this cluster of problems is as follows.

The power of a particular culture, European, American or otherwise, may be measured by the amount of positive identification this culture receives from the members of other cultures. To put it simply, those immigrating to the United States positively identify with “America” and they wish to hasten their own assimilation, sometimes to the point of burning all the bridges behind them. This testifies to the attractiveness of American culture and makes it much easier for the assimilation processes to begin and to continue, as a new generation of immigrants succeeds the previous generation that came to the United States. Slovenia, for example, was by far the most developed federal republic. Even today, people in the countries to the south tend to look up to Slovenia for its economic success after independence.

In this light, one would be inclined to speculate that the prospect of positive identification it received from the southern immigrants was not so minimal as to prevent assimilation.

Moreover, the second and the third generation of Southern immigrants born in Slovenia are not only doing well, they are contributing to the country’s growth both economically and culturally.

Broader Considerations

Here I would like to introduce another constatation. Every nation, as long as it is isolated and closed to the negative and positive, mostly negative, feedback from outside of its territory and culture, tends to become culturally, politically, scientifically, etc. – self-referential. This is famously true of France and its exception française. The French, too, are not too eager to learn foreign languages, as they are somehow convinced that their own culture is superior. This has an impoverishing effect on French society, which is thus more likely to develop exacerbated idiosyncratic characteristics. The French situation, in this context, may be exceptional in that it makes it obvious that at least economic performance of the French Republic lags behind other European Union countries. The French are ← 18 | 19 → little able to learn from the positive experiences of other nations in the cultural, medical, scientific, etc. domains. This has obvious untoward consequences. The foreigner in France finds it easy to discern the drawbacks that such a national self-referential attitude has.

But this is true of all nations, big or small. The Americans, the British, the Scandinavians, the Italians, the Spanish, for obvious reasons the Germans to a lesser extent, and all the nations of Eastern Europe, are to some extent culturally self-referential. Inasmuch as they are locked in upon themselves, and especially if this happens behind the so-called language barrier, the consequences are perceptibly dysfunctional. Every nation, to put it bluntly, that is in this sense self-referential, is to some extent irrational. The two recent European World Wars, by no means an exception, are enough proof of this unhappy phenomenon.

This aggravates the culturally dysfunctional characteristics, as we said, since they do not receive corrective negative feedback from the outside world. The said language barrier represents a serious obstruction. Behind the walls of “national identity” protected by the national language that nobody outside this small world understands, all kinds of cracked ideas gain ground. Collective hysteria can spread, such as that which we currently witness vis-à-vis the immigrants in different national entities in Eastern Europe.

In systems theory it is taken for granted that robust systems and subsystems tend to be open to the outside world. Inversely, systems and subsystems that are weak tend to protect themselves like a shell closing in on itself if it feels itself to be in danger.

Details

Pages
371
ISBN (PDF)
9783653065565
ISBN (ePUB)
9783653951516
ISBN (MOBI)
9783653951509
ISBN (Softcover)
9783631671689
Language
English
Publication date
2016 (June)
Published
Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2016. 371 pp.

Biographical notes

Neža Kogovšek Šalamon (Author)

Neža Kogovšek Šalamon holds an LLM in international human rights law from the University of Notre Dame (USA) and a PhD from the Law School of the University of Ljubljana (Slovenia). Her research fields include administrative and constitutional law, fundamental rights, citizenship, migration, asylum and non-discrimination.

Previous

Title: Erased