Have a problem? Just apply some heat and it’ll melt away. Photo by dr. Fil

Who are the infamous “erased”?  Read e.g. Pengovsky’s post here and here.

  • It is not about citizenship.
  • It is not about Yugoslav army officers.
  • It is about regular people.

I have been hearing about this issue for so long, reading the news superficially and simply agreeing that if the Constitutional Court of the Republic of Slovenia decided – twice – that human rights of a certain group of people were violated, it was so and that the situation should be rectified.

This week I finally took the time to read up on it a bit more in detail. The “erased” have been used as point-generators in national politics for the past 17 years. Most of them were not Slovenian nationals, which made them a ready target for nationalist types, but lately even the Christian People Party’s youth section set off to score political points on their backs by counting on the ignorance of the Slovenian student population. When the first erased was awarded damages in the court of law this week, the youngsters who claim to honour Christian values stated that students need money more than the erased and staged a related campaign.

It is one thing to show a man that he is in error, and another to put him in possession of the truth. – John Locke

Thanks to a well-written, very informative article series in Pravna praksa (Legal Practice) magazine by Neža Kogovšek of the Peace Institute, I can share some facts:

Before declaring its independence, Slovenia was one of the six republics of the Yugoslav federation.

(Most) Yugoslav citizens held a double citizenship: that of the federation and (in most cases) that of one of the republics. In accordance with the ius sanguinis principle, children were awarded the republic citizenship of their parents regardless of their place of birth. If e.g. a child was born to two Serbs in Slovenia, it would be given (Yugoslav and) Serbian citizenship.

Many people migrated for work-related purposes within Yugoslavia, changing the location of their permanent residence to another republic while remaining in the state of their federal citizenship.

On 25 June 1991, the Assembly of the Republic of Slovenia adopted the Constitutional Act Implementing the Basic Constitutional Charter on the Independence and Sovereignty of the Republic of Slovenia, which stated in Article 13:

“Citizens of other republics who on the day of the plebiscite on the independence and sovereignty of the Republic of Slovenia, 23 December 1990, were registered as permanent residents of and actually live in the Republic of Slovenia shall have, except in the cases specified in Article 16 of this Act (my note: real-estate issues), equal rights and duties as the citizens of the Republic of Slovenia until they acquire citizenship of the Republic of Slovenia under Article 40 of the Citizenship of the Republic of Slovenia Act or until the expiry of the time limits determined in Article 81 of the Aliens Act.”

On the same day, the Citizenship of the Republic of Slovenia Act entered into force, automatically awarding citizenship of the now independent state to all persons with Slovenian “republic citizenship”. Article 40 of this Act allowed citizens of other republics to file for citizenship within 6 months should they wish to do so. 171,132 of the roughly 200,000 citizens of other republics did so and gained the new state’s citizenship.

The rest did not, for various reasons. Some were not informed of the possibility to file for citizenship, some were convinced that they didn’t have to do anything since they’d lived in the country for decades, some didn’t want the citizenship and only wanted to retain their permanent residence, some were afraid of losing their property in other republics had they become full Slovenian citizens. Yet others did file for citizenship, but had their applications rejected by clerks on account of them being incomplete (e.g. due to their inability to produce a birth certificate from the war-ridden Bosnia). The clerks did not advise them to file incomplete applications which they could have done and supplement them later, and they consequently missed the statutory deadline.

Two months after the expiry of the 6-month deadline, on 26 February 1992, 17 years ago yesterday, these people became subject to the Aliens Act and their status became unclear. For two months, it was completely unregulated and afterwards, it was unclearly covered by the Aliens Act, which did not specify whether they should be considered aliens with a residence in Slovenia or as illegal migrants. Since the Aliens Act did not regulate the status of such persons, the Constitutional Court presided by Lovro Šturm unanimously declared it unconstitutional in 1999 (Decision).

In part of the decision, the Court found that the Act did not arrange the transitory status of citizens of other republics who lived legally on the Slovenian territory and had a permanent residence. Consequently, their position was less favourable than that of aliens who had the status of aliens before the Republic of Slovenia declared its independence. Since there was no reason for this difference in the treatment of the two groups, the Court held that the omission of legal regulation of the status of such persons constituted a violation of the constitutional principle of equality.

Namely, there were suddenly two groups of aliens in Slovenia:

  • aliens from other countries (outside Yugoslavia) who had a permanent residence permit and a registered permanent residence in Slovenia – the Aliens Act provided for the permanent residence permits issued under Yugoslav legislation to remain valid;
  • aliens from other Yugoslav republics who had a registered permanent residence in the Republic of Slovenia, but did not have a permanent residence permit, because they had not needed one since prior to the country’s independence they were citizens of the same state, i.e. Yugoslavia.

Consequently, the “erasure” only affected Croats, Bosnians, Serbs, Montenegrins, Roma, Albanians and Macedonians (and Slovenians) and was declared discriminatory by the Constitutional Court on that account.

Erasure could have been avoided had an amendment proposed by Zveza socialistične mladine – Liberalna stranka (Association of Socialist Youth – Liberal Party) and Stranka demokratične prenove (Party of Democratic Renewal) been adopted. The proposed amendment read:

“Citizens of the SFRY who are citizens of other republics and do not apply for citizenship of the Republic of Slovenia, but have a registered permanent residence or are employed in the Republic of Slovenia on the day of entry of this Act into force shall be issued a permit for permanent residence in the Republic of Slovenia.”

It was not adopted, the legal gap remained and erasure took place. The legal gap was filled by internal documents at the Ministry of the Interior addressed to various institutions, which then carried out the erasure. On 27 February 1992, state secretary Slavko Debeljak sent instructions to all administrative units stating that upon expiry of the two-month deadline, persons who had not applied for citizenship should be treated in accordance with the Aliens Act and ordered for registries to be brought in line. He further stated that these people’s documents were no longer valid even if they were issued by competent authorities and did not yet expire.

On 4 June 1992, the Minister of the Interior at the time Igor Bavčar informed the Government about two different legal standpoints regarding the issue. The first one took into account the principle of “acquired rights” and held that all persons with a registered permanent residence in Slovenia should retain it and the second one held that they should register their permanent residence anew after three years of holding a temporary residence permit. He favoured the second approach, stating that “acquired rights should be ignored” even though this might cause “distress due to existential links to the Republic of Slovenia”.

Administrative bodies followed Debeljak’s instruction and transferred personal data of such persons into the inactive population records, thus depriving them of the status of permanent residents. They were effectively erased. By losing their permanent residence, they also lost all related rights and entitlements such as social assistance, healthcare and family benefits.

In 1999, the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia was adopted. Even on its basis, not all the erased could sort out their status, because the Act refers to citizens of other successor states and the Ministry of the Interior held that a person who could not present proof of citizenship of one of the other successor states could not obtain a status. The problem being that although most people did have double citizenship, the republic-level citizenship records in Yugoslavia were often incomplete and outdated so that while everyone had their federal-level citizenship sorted out, this was not the case with the republic-level citizenship. The Constitutional Court presided by Dragica Wedam Lukić unanimously found the Act inconsistent with the Consititution (Decision).

The second part of Point 8 of the Decision provided that the Ministry of Internal Affairs must (ex officio) issue supplementary decisions to citizens of other republics of former SFRY who were erased from the registry of permanent residents on 26 February 1992, which shall determine their permanent residence in the Republic of Slovenia from 26 February 1992 onward.

“Technical” and “systemic” acts were proposed, but were not adopted. In April 2004, a referendum was held against the “technical” bill. The question was posed (see original) roughly as “are you in favour of enforcement of the Act on the Implementation of Point 8 of the Decision of the Constitutional Court…” About 94% voted against with a 31% turnout. This was an election year and the erased proved a handy subject on which to gain points by stirring emotions with the help of misleading or false information and instilling fear.

Janez Janša’s government tried to push through a constitutional act in an attempt to circumvent the Decision, but failed. By:

  • putting the blame on the erased, e.g. they had the chance to get Slovenian citizenship, but didn’t use it (often with the note: because they thought Slovenia couldn’t make it as a sovereign state) and are now sorry for it;
  • branding the erased traitors or aggressors (no more than 2.5% of the erased were in any way connected to the Yugoslav army, including cleaning and kitchen personnel, etc.; many fought in the territorial defence during the ten-day war and some were even decorated for it prior to erasure);
  • predicting huge claims for damages by the erased if they were issued supplementary decisions establishing their residence in the Republic of Slovenia from 26 February 1992 on

that government pulled wool over people’s eyes so as to deny any wrongdoing by the State and government officials and evade the unanimous decisions of the Constitutional Court.

The new Government, more specifically the Ministry of the Interior led by Katarina Kresal, finally began fulfilling the Decision of the Constitutional Court, thus upholding the rule of law in the Republic of Slovenia.

And there we ago again. Blaming the erased, branding them traitors, portraying them as fortune seekers (what, who’ve lived in a twilight zone for years on purpose so they could claim damages??), proposing a new act circumventing the Constitutional Court Decision, the whole deal.

Except unlike 2004, this is not an election year.

Or is it?