Restoring the Erased

It took two decades, but the Erased finally got their day in court. And the court ruled in their favor.

On June 26, 2012, the European Court of Human Rights upheld a lower court ruling that Slovenia had violated the European Convention on Human Rights in its treatment of the roughly 25,000 people stripped of residency in the wake of the country’s independence. The Grand Chamber ruled that, among other things, Slovenia discriminated against former Yugoslav nationals (in comparison to other resident aliens). The ruling also mandated that Slovenia pay compensation to the group that has come to be known as the Erased.

The Erasure took place in 1992. The first organization of the Erased was founded in 2002. And now, after a half dozen years of legal battle, victory was secured in 2012.

Neza Kogovsek Salamon, who heads up the Peace Institute in Slovenia, has been one of the architects of the legal strategy that culminated in Kuric and Others vs. Slovenia, the case that generated the European Court decision.

“It was actually a case that started with 11 applicants, and it started with some activists outside of the Peace Institute,” she told me back in October. “Nothing was happening at the time. The politicians were ignoring the issue, unless they used the issue against the Erased to gather political points. So, it was a very desperate situation for the victims and for the civil society. A group of activists decided that something had to be done, and the only thing that hadn’t been explored yet was the European Court of Human Rights. That’s how they started to gather cases.”

We were talking in the Peace Institute offices, which are located in Metelkova, the former army barracks that activists squatted in the 1990s. In addition to a youth hostel and several nightclubs, Metelkova houses a large collection of NGOs, including the Peace Institute. The alternative culture nurtured at Metelkova provided a good deal of support for the Erased at a time when the Slovenian mainstream was oblivious about the issue.

After the European Court decision, the major issue remaining is compensation: how much, for whom, in what form, over what period of time. Few people in Slovenia, however, expect that the government will ignore the judgment.

“This court is actually the most successful international court on the planet,” Neza Kogovsek Salamon explained to me. “When it comes to success rate, the number of judgments issued, the number of decisions implemented, there is no comparable institution in the world. If the Republic of Slovenia wants to be a democratic state, if it wants to be in the group of other democratic states without having to defend itself all the time, then it simply has to respect the decisions of the highest judicial bodies in Europe.”

In this interview, she guided me through the thorny legal issues, the question of compensation, and the implications of the case for human rights more generally. Below this interview, I’ve also included excerpts from our 2008 conversation.

 

The Interview

 

Do you remember where you were and how you felt about the fall of the Berlin wall?

 

I think I was still in elementary school, so I have no idea. The only thing I remember is the Eurovision song Brandenburger Tor that included the line: “After many long years, a new spring for the Brandenburg Gate.” Which means there are no more walls and was referring to the fall of the Berlin wall. So that’s the only thing I remember about the Berlin Wall.

 

Why did you decide to go into law? And human rights in particular?

 

I always felt that I have this sense of justice. I wanted to see justice in the world, and for me law was a natural way to go. Even though, while I was in law school, I saw that law is not always about justice. Very often it’s about a formalistic approach to resolving issues. So when I discovered that some branches of law have more to do with justice, these branches were of course very attractive to me. That’s how I started to work in the field of asylum law, citizenship, migration, human rights, and non-discrimination. These are still the issues that I connect very much with justice. I ended up a lawyer very much because of the sense of justice that I have always been carrying with me. Even my mother would say, for example, that when I was little I was always screaming about some injustice that has taken place.

 

Do you remember a particular incident when you were a child?

 

Not really. This is just something that she would say. I don’t remember that. But I’m not surprised that she would say that, because that’s very much me.

 

How did you get involved in the issue of the Erased?

 

When I was in the United States, I was very lucky to work as an intern for Human Rights Watch. Since I was from Slovenia, which was a part of former Yugoslavia, and because I spoke the local languages, I was interesting for them — with regard to the war crimes and crimes against humanity that took place after the dissolution. This is the issue I was studying in the United States when I was studying human rights law as well as working at Human Rights Watch.

Of course these are quite difficult issues for a twenty-something person. Then, when I came back, I actually needed a challenge that would be comparable to what I was doing in the United States. The biggest challenge in Slovenia at the time seemed to be the issue of Erased. It was very stigmatized, very politicized. And it was very difficult, on the other hand, for the victims. It’s not of course comparable to war crimes in the sense of the gravity of the crimes, but it’s very much comparable in the sense of the social and political mechanisms that led to these violations. So I immediately saw the parallels between the two issues. And I figured very quickly that this is something that would answer my need for a challenge.

 

In what year was that?

 

That was in 2006. I returned to Slovenia at the end of 2004. For a year I was working on non-discrimination issues, which were not difficult enough, I have to say. So this is when I got involved with the issue of the Erased. We started to prepare a project, and we received funding.

 

You said that anti-discrimination was not a big enough challenge. Why?

 

There are of course very difficult situations when it comes to anti-discrimination, and some problems are quite serious: for example, when you work on issues concerning the Roma population, or disability, or racism. I’m still working on these issues. But at the same time Slovenia was struggling a lot with issue of the Erased. On the political level, it didn’t compare to non-discrimination issues.

 

When you were in the United States, doing your studies and working with Human Rights Watch, had you thought about working with the Tribunal and going to The Hague?

 

It was always a very interesting option. But I just didn’t channel my interest in that direction sufficiently to pursue any opportunities there. At the time that I returned to Slovenia, there was an opportunity waiting for me here already, with the Peace Institute, working on non-discrimination issues. So that’s why I decided that I am going to start here and then see what happens. And then I just continued here, and I’m very happy about that.

 

When we talked about four and a half years ago, if I remember correctly, there had been a number of cases in front of the European Court. And there was a problematic piece of legislation here in Slovenia that did not include compensation and that raised some question about when citizenship would be retroactive. There were a number of thorny loophole questions. Could you take me through that point to where we are today?

 

The case that you mentioned is called Kuric and Others vs. Slovenia. It was actually a case that started with 11 applicants, and it started with some activists outside of the Peace Institute. Nothing was happening at the time. The politicians were ignoring the issue, unless they used the issue against the Erased to gather political points. So, it was a very desperate situation for the victims and for the civil society. A group of activists decided that something had to be done, and the only thing that hadn’t been explored yet was the European Court of Human Rights. That’s how they started to gather cases.

They gathered about 50 cases. And they looked for an attorney that would take the case pro bono to the European Court of Human Rights, because the people of course had absolutely no money to pay for an attorney. They looked for an attorney in Slovenia, and nobody wanted to take it. Some of the people said that the case had no chance of succeeding, others said they were scared, still others said they were not interested or they didn’t do pro bono cases. So they were not able to find anybody in Slovenia. They had some connections with Italian activists who found an attorney in Rome to represent them, so that’s how it all started.

The attorney selected 11 of the most difficult cases from these 50 and they took the case to court. About six months ago, the Peace Institute got involved in terms of supporting the case. We offered because we had started a project that enabled us as an institution to start working on this professionally, not just in our free-time, but really focusing on the issue through our capacity as lawyers, researchers, people working with the media, and so on. We actually got involved with the case quite seriously. We filed a third-party intervention to the court, and we were working in the field in Slovenia on the case. Because without being here and doing the analysis, we wouldn’t be able to exhaust the domestic remedies in the country. The Italian lawyer didn’t speak Slovenian so he couldn’t do it by himself. So this is where the Peace Institute started to play a big role.

 

And this was in…

 

This was in the beginning of 2007. After that, we worked on the case very seriously for three years. Then, the European Court of Human Rights issued the first decision on the merits, and it found in favor of the applicants. Unfortunately there were only 10 of them left, because one had died. There was another misfortune with the cases, because the court only found in favor of eight applicants. Two of them had already received permanent residence permits at the time, so the court said that this was a sufficient remedy offered to the people by the state. So, only eight of them were still victims in this case, because they still didn’t have any permanent residence issued by the state. It was a win, but it had some serous downsides.

There was a big question about what would happen next. The Slovenian government made it very easy. Both the attorneys and the applicants were undecided whether to appeal the case or not. They decided to appeal only with regard to the two who were left out. The Slovenian government, however, appealed everything. The government was not happy with the verdict, even though it was actually quite good for the government. Even though the court found in favor of the applicants, it decided that returning a permanent residence to the people is sufficient, without any compensation. This actually doesn’t cost very much, when you look at it from the point of view of the government. But this was a very bad outcome for the applicants, and for the community of the Erased in general. The Slovenian government didn’t really see it that way.

A year after that, in 2011, there was a public hearing. Of course the Court held public hearings all the time. But for the Erased people, of course, it was a key event. Our project made sure that they went to Strasbourg to attend the hearing, so that the judges could actually see the people about whom they are deciding. When you see the applicants, you can see their suffering, what they have been through in the last 20 years, on their faces. So it was quite important for us that this is not just an abstract legal issue for the judges but that it actually has a very serious impact on the victims of the violation.

That was quite an event, you can imagine. Some of the applicants, they were getting outside of the country for the first time in 20 years because they simply had no documents before that. We even asked the court to give them special permission if the police would stop their bus and they could show these documents of the European Court of Human Rights saying that they are going to attend the hearings. This was quite an emotionally strong period for the applicants and for the whole team.

Finally, in 2012, the grand chamber issued the second judgment, which was great for the Erased in most aspects. Six of the remaining eight applicants were granted compensation. In the meantime these six people had also received permanent residence from the government. So the key question was whether the grand chamber was going to consider the giving back of permanent residence to be a sufficient remedy. If they said yes, then the whole case would be lost. There were only two people that didn’t get permanent residence, and this is because they didn’t apply in time. One of them applied later, but one didn’t apply at all. They said, “We want the state to give it back to us without applying.”

But the court said that these six people who had already received permanent residence are still victims, because this is not sufficient. It only stops the violations from continuing, but it doesn’t really remedy anything from the past. For the past there has to be compensation—this was the key message of the European Court of Human Rights. The six applicants got 20,000 Euros each for non-pecuniary damages. They are still waiting for pecuniary damages to be determined, which means they will probably get something more. Which again, is probably not so much when you think about the 20 years of suffering. But still it is a very high compensation from the European Court of Human Rights when you look at its case law. It’s not very often that the court grants such a high compensation.

 

What’s the difference between pecuniary and non-pecuniary?

 

Non-pecuniary damages actually means compensation for the suffering — the emotional suffering, the physical suffering — caused by this violation. Pecuniary damages actually means material damages: lost incomes, lost future income, the expenses that they had. Because they were left without any kind of legal status. For example, if they had to pay for a doctor, since they were not entitled to free health services. This is still waiting to be decided.

 

And that depends on the person?

 

Yes, it’s case by case.

 

Non-pecuniary, that was one sum for each…?

 

That was the same sum for the six applicants, which of course does not mean that the same sum would be awarded in any future cases, unless they would be very similar in the circumstances. The principle of equity is actually the main basis on which the European Court decides damages. It approximates the damage but doesn’t really go into details when determining the amount of non-pecuniary damages. So, this was really big benchmark in the whole struggle, because this was the first time that any of the erased people got any kind of monetary compensation for this violation. At the same time, the judgment is quite important because it is also a pilot judgment. Meaning that the court also ordered the Slovenian state to adopt an ad hoc mechanism for compensations to be paid in Slovenia. This means that it doesn’t only have an effect on the six applicants who won in this case, but it also has an effect on all the other Erased people in Slovenia.

There was of course a downside to the judgment. First of all, the two applicants who were already rejected stayed in this position. The grand chamber couldn’t really change, for procedural reasons, the decision of the chamber. Because it does not have the competence to look into the question of who is still a victim and who is not a victim. If the chamber decides that people are no longer victims of a violation, then the grand chamber cannot change that. This was very unfortunate. There was also a very close vote on this among the judges, so there was no agreement among the judges on this issue. Another downside concerns the other applicants who did not apply for permanent residence until 2010, and there was a very close vote by the judges. Nine of the judges felt that they should have applied for permanent residence permit – and that this was an effective domestic remedy — while eight judges said: “but we already said in the judgment that there are no effective remedies in the country, so why would we claim for the two that they have to apply for this? What if they don’t want permanent residence anymore? What if they just want compensation for the suffering? Isn’t that legitimate as well?” So that was a very close vote, nine to eight, but the nine, of course, prevailed. So the two people were rejected for reason of the non-exhaustion of domestic remedies.

This is what happened with the case at the European Court of Human Rights. At the same time, of course, we had some national developments, which didn’t really have much to do with this pending case. There was a change of government here in Slovenia in the meantime. In 2008, a left-wing government came to power. They were a bit more attentive to this issue, and the minister of interior, Katarina Kresal, was actually very much in favor of doing something. She actually said in her first speech to the public, when she was running for the position of the minister, that one of her priorities would be dealing with the issue of Erased people, because it was simply unbearable, from the point of view of the rule of law, to have a constitutional court decision from 2003 that had not been implemented yet. She said that she would immediately do something about that. When she came to power, the ministry of interior started to prepare an amendment to the problematic law from 1999. When this law was passed in 2010, the government enabled a bigger group of erased people to get their status back. Not all of them, because there were still quite strict conditions that a person had to meet to get the status back. The number of people who managed this is quite low, so civil society, including the Peace Institute and including me, is still not very happy with the law. But still the window of opportunity opened up a bit more.

The main problem is the deadline to apply for legal status, which is going to expire next year. Some people are only now getting information about this possibility, and we believe that some people will get the information only after the expiration of this deadline. So, they will never be able to get back permanent residence according to the more favorable conditions that are in place for the Erased. They will only be able to get it back under the general rules of migration law in Slovenia. So we think that this deadline should be extended.

The other problem is, without going into too much detail, that there are still very strict conditions that have to be fulfilled. You have to prove that you tried to return, and it’s very difficult to try to prove that if, for example, you only made phone calls. How can you prove that you made a phone call on September 1, 2007? It’s completely impossible. So there are some very difficult conditions like that, and this is proven by the rejection rate of these applications filed by the Erased people, which is quite high.

 

The Slovenian government has no intention to appeal this latest decision of the European court? Does it have that option?

 

It doesn’t have any other option to appeal. This is the final, final decision. The only thing they can do is to implement the decision. They have to explain how they implemented the decision to the committee of ministers, which is the body supervising the implementation of the European Court of Human Rights decisions in the Council of Europe. The European Court has no more powers to execute the decisions. It is up to the government, and the government has to explain to the committee of ministers. The committee of ministers then reviews the measures proposed by the government, and then it issues an opinion on whether this is sufficient or not.

 

But in some cases the European Court makes decisions and governments simply don’t implement the decision because the court, as you said, doesn’t have any actual leverage other than public opinion. When I said to one of my Slovenian interviewees, “The Slovenian government could just ignore this decision too,” this person said, “The Slovenian government would never do that!” I said, “Really? I’m actually quite surprised and happy to hear that.” And that’s your opinion as well?

 

Well, it does happen of course. There are a number of decisions of the European Court of Human Rights that haven’t been implemented, as we all know. There is a very well known one in the United Kingdom about prisoners deprived of the right to vote. There was a decision in the European Court of Human Rights, and the UK government got very angry and simply refused to implement it. So it does happen, as it does happen as well with the Slovenian Constitutional Court decisions. It was a very similar situation with the 2003 decision, and it took seven years for the government to implement it.

This is very much a decision of the government: what kind of government and what kind of state the Republic of Slovenia wants to be. Is it going to be a state that will respect the most important rule-of-law institutions, not just in Slovenia, but on the European level, and this goes particularly for the European Court of Human Rights? This court is actually the most successful international court on the planet. When it comes to success rate, the number of judgments issued, the number of decisions implemented, there is no comparable institution in the world. If the Republic of Slovenia wants to be a democratic state, if it wants to be in the group of other democratic states without having to defend itself all the time, then it simply has to respect the decisions of the highest judicial bodies in Europe. Otherwise, in this political process, it’s going to have a lot of explaining to do. And it already has had a lot of explaining to do with the issue of the Erased, which was completely unnecessary. It could have resolved the issue 10 years ago. I would be very surprised if the government chose the path that would make it still have a lot of explaining to do.

I would personally advise the government to resolve the problem, because otherwise it is just going to be hanging there. People are not going to just die off so soon. There are lots of young Erased people who can call attention to this issue for the next 50 years, and I’m not very sure if we all – not just civil society, but the government too – have the resources and the energy to deal with this. Also, public opinion here has changed a lot. There are lots of people who didn’t understand before but who now understand, after the European Court of Human Rights judgment.

 

Was there any significant political voice that called for ignoring the European court decision?

 

The word “ignore” wasn’t used. There were some statements that were not very flattering and that pointed to the direction of ignoring. But this word was not used. The statements were made in terms of, for example, “Slovenia just simply doesn’t have the money to pay these compensations.” This was the statement of the prime minister. After that he didn’t issue these statements anymore. I would say the politicians thought twice and realized that this is not a statement to be made in democratic Europe. Also, the first six compensations were paid on time, within the three-month deadline set by the court. Each country that is a member of the Council of Europe and that has granted competence to the European Court of Human Rights to review complaints has put money aside in reserve for compensations to be paid because of the judgments of the court. Slovenia has done the same.

 

You mean the 20,000 Euro non-pecuniary judgment?

 

Yes, for the six applicants. Meaning that 120,000 Euros was already paid. Another statement was given by the current minister of interior, who said something like, “Some of the Erased people do not deserve this, so the experts will decide who will get compensation and who will not.” So there was still some relativism introduced into the issue, which we have been hearing for the last 20 years. But after some time these kinds of statements stopped.

Now everything points in the direction that a law will be prepared, in accordance with the European Court of Human Rights judgment. There was just recently a working group appointed to prepare this law. The court gave Slovenia one year to prepare this ad hoc compensation committee. Of course the question remains: “What kind of scheme will they propose? What kind of conditions will be again imposed on the people?” Because there will definitely be some conditions. The Slovenian government will definitely try to limit the number of people eligible for such compensation and limit the amount of compensation as much as possible. If the compensation paid, or proposed, will be very low, they will again have some explaining to do.

 

And do you have any recommendations at this point about how compensation can be calculated?

 

There were some measures in the past, passed by the Slovenian government, on the issue of remedying human rights violations. These laws concerned remedying injustices that took place at the time of the Second World War. This is a starting point that can be used for the issue of the Erased as well.

Compensation would definitely have to be paid for the erasure as such, and for the suffering that the people have experienced. There is definitely a difference between those who managed to regulate their status very soon – some people managed that after a few months or a few years — and those who couldn’t do it for 15-20 years. There is also a way to calculate material damages. For example, if because of the erasure, the Erased people weren’t able to keep their permanent residence all this time, which is something that should have taken place. If they kept a permanent residence permit, they would be at least entitled to social assistance from the state. This is the minimum income that anybody with permanent residence in Slovenia is entitled to.

There are also other possibilities that can be explored, because we are all aware of the financial situation of Slovenia. There are not endless opportunities for compensation. There are also many proposals on the table of remedies that are not necessarily expressed in money. For example, the state has a number of empty apartments. If there is a family who would like to return but has nowhere to return to, the family could use this apartment for a year until they managed to integrate a little bit better and support themselves. There is also a scheme of scholarships already in place in Slovenia. If there is a child born to an Erased person, there could be additional points awarded to this child when he is competing for the scholarship. A similar priority could be given to a person who today has citizenship and is already eligible for non-profit apartments: an additional 100 points could be given to the Erased people and maybe they could get an apartment this way. So there are a number of additional ways to address this compensation without really causing additional financial burden to the state.

 

Part of your project was to do a lot of interviews with the Erased, and I’m curious, were you able to do interviews with people outside of Slovenia as well?

 

Yes, some interviews were made both in Slovenia with the people who were absent for a very long time and also outside of Slovenia with people who are still absent. So we know quite well what happened to the people who, for example, were deported, who could never return, and what happened to people who left Slovenia temporarily to visit somebody or to go to a funeral or to go on vacation and could never return. Some people thought they would leave temporarily and see what happens, and they could not return. I think we have quite a good insight into what people experienced in these 20 years.

 

I remember stories of people being deported and getting caught up in the wars that were taking place at that time. Were you able to track down people who had that experience?

 

Yes, usually when we interview somebody who was been absent for almost 20 years, they have a story like this, of being caught up in a war after being deported.

 

Do you have a sense of how many people who are not in Slovenia at the moment would like to take advantage of the opportunity to return? 

 

We don’t have the precise statistics. But we do know that from about 25,000 erased people, about 10-11,000 managed to regulate their status in Slovenia, and this number has not increased much since 2009. Also, unfortunately, about 1,300 people died. Which means that about 13,000 of the Erased, more or less, are still outside Slovenia and are still potential applicants for permanent residence permit. Among those 13,000, maybe 250 until now applied for permanent residence permit since 2010, when the amendments to the old act were introduced. So, 250 out of a potential 13,000 is a very low number. So what we figured out when we were talking to the people is that first of all, the information about this possibility simply doesn’t reach the potential applicants, because the government didn’t do any serious information campaign when this law was adopted. Maybe some brochures were sent to embassies of Slovenia in the successor states of the former Yugoslavia, but the state as such didn’t really do any information campaign. We tried to disseminate information through our media and civil-society channels in the countries of former Yugoslavia, but this is very limited.

Second of all, people are probably now not so interested in regulating their legal status in Slovenia because 20 years have passed since this violation took place. They probably arranged their lives now in the republics of former Yugoslavia or in Western Europe. A lot of Erased people are living in Germany, Belgium, and so on, where they went after the dissolution of Yugoslavia. Now they are becoming a little bit more interested because they saw that something is finally moving with the European Court of Human Rights judgment and the possibility of compensation, which is totally normal. Even if they are not interested to get their permanent residence permit, they might be interested to get some compensation for the suffering they have gone through because of the erasure.

 

Earlier you said there had been a shift in public opinion here in Slovenia. I remember when I was here in 2008, there was a pro bono ad campaign with banners and selections from interviews with the Erased. I’m curious whether you think that played an important role in this shift in public opinion, or were there other major initiatives?

 

The information campaign with the big banners was important, and it contributed a little bit to the change. But I think that the main element that changed public opinion was, first of all, the civil society work on this issue. Which of course is only possible if you have support for these projects. Otherwise you just do it in your free time, which none of us has very much of. Civil society was working on this issue for the last six years, constantly, without letting the politicians remove it from their agenda. This made it possible every year to do some activities on the anniversary of the erasure, which is February 26. We did roundtables informing the public about what has been happening and public letters supporting the case in the European Court of Human Rights, which then ended up with such a victorious judgment. There were also the protests carried out by the Erased people themselves.

I wouldn’t say that any one of these activities had a much more important role than any other, except for perhaps the European Court of Human Rights judgment. That was definitely the major element that influenced public opinion. If civil society had been weak, if there were no funds behind it, if there was no legal aid, if there was no such combination of different activities, I think that the issue would have been in a quite different state today.

We carried out a public opinion poll a couple of years ago precisely to see where public opinion stands. It would be very useful to repeat that in the future, like next year or in two years, with the same questions, to see whether this changed or not.

 

What were the results a couple years ago?

 

There is a little summary of the results in the introduction to our book, The Scars of Erasure. It’s actually not as bad as you would expect. But I would expect now it would be even better.

The source of information that I have for saying that public opinion has changed is the commentaries in the media. If you go online and look at the major newspapers and the commentaries on the issue of the Erased, the forum below the articles shows a completely different story compared to what was happening a couple of years ago. Before it was only stigmatization of Erased people, trying to portray them as traitors, cheats, aggressors, trying to dehumanize them. But now it’s a completely different story. People who clearly are not political are saying, “But come on people, the European Court of Human Rights said it. I mean if they said it, obviously there’s something wrong. I was not supporting the erased people for a very long time, but this clearly convinced me because I just believe in this court. I think it has credibility, and we just simply have to do something about it.” Things like that show you that ordinary people who are not paid to participate in this kind of forum – and there are people paid by the political parties to comment in the newspaper – are saying that they are not experts and have changed their opinion.

 

Some of the folks in the Erased movement want compensation in the form of justice: punishment for those who are responsible for what happened. Do you think that is possible?

 

This issue actually started to become more visible now that no one can argue that this was not a violation when even the European Court of Human Rights has said that it is. Many times you had politicians, especially new ones who just entered the scene, who wanted to debate whether or not this was a violation. Now these types of politicians are in a minority, and this has opened the space for the issue of responsibility to come up.

So, lots of people are now asking about the issue of responsibility. Also lots of people are not very happy that taxpayers are going to be paying for this compensation. So they are calling on the perpetrators of this violation to pay. It’s a very good question, whether this will happen or not. It’s not possible to prosecute this as genocide or a war crime. It doesn’t meet the threshold for a crime against humanity. So it has to be something else, like the abuse of authority or violation of equality. So there is a possibility under our criminal law.

Justice Zupancic, a Slovenian judge at the European Court of Human Rights, also very clearly pointed out in his concurring opinion that the member states of the Council of Europe have to investigate all suspicions of violations of equality of discriminatory acts. And the European Court of Human Rights did confirm that the erasure, and the lack of remedies for the erasure, was not just a violation of article 8, which is the protection of private and family life, but also a violation of the principle of non-discrimination. It was clearly a discriminatory act, and therefore the country has to investigate it. If it doesn’t investigate it, then it also violated the principle of non-discrimination. So there’s an additional duty of non-discrimination that has to be investigated by the state if they want to be in accordance with the European Convention on Human Rights. This opens up a very interesting legal and political discussion. On the one hand, our law has quite short statutory limitations that have all expired because this violation took place 20 years ago; on the other hand, we have a very clear obligation under the European Convention on Human Rights to investigate all discriminatory acts, regardless of any possible expiration of statutory limitations. The Erased people are preparing some kind of criminal report, which the state prosecutor’s office will have to deal with.

 

So, this investigatory committee would be separate from the ad hoc committee that’s put together for figuring out compensation?

 

This would be a separate issue. Because what you’re actually suggesting is, if I understand correctly, some kind of truth commission. So there are three possibilities. One is the committee that was put in place by the government to implement the European Court of Human Rights decision on compensation. The second thing is the report prepared by the Erased people, which would be sent to the prosecutor’s office. And the third possibility, which civil society has put on the table, is the possibility of a truth, or investigatory, committee. We have been advocating for this for quite a long time, but there was no serious response yet by the government. The only response that we got was something like, “We don’t think that’s necessary.”

So I don’t think that this will take place, even though this would be quite useful for catharsis: to really embrace the fact that this did happen, that we really have to put energy into remedying these violations and investigate what happened. We already know a lot of what happened. We have the main documents, but some issues still remain unclear. Like whether this was really a decision, or was it something that just came naturally? Whether it was discussed by some government committee, or the government just trusted the ministry to do the right thing, and then the ministry did it this way? So there are lots of issues that still remain unresolved on this political level. So it would definitely be useful to have some kind of truth commission. But I’m very often afraid that this proposal would be abused by the parliament to establish a parliamentary committee—which is never good. It’s always used just for political purposes, and it never really is genuinely used to investigate some kind of an issue. So I would say that if they want to have a parliamentary committee, it’s better to not have anything.

 

Do you think that this issue has implications beyond just the Erased? Does it have implications for how one defines citizenship, or how one establishes citizenship in a state in transition, or questions of non-discrimination?

 

I think it already had impact beyond that. I’m not sure if it had de facto impact, in terms of some countries learning from us and doing it the right way, especially because in Europe there were not so many new countries that would be defining citizenship. But I think that it did affect scientific discussion about citizenship, even though, as you know, it’s not so much about citizenship. It’s more about permanent residence and the right to continue residing in the country even though the borders changed. Even if you are without citizenship, as long as you have residence rights you can still live normally, with all the social and economic rights.

But regardless of that, I think it already did have a lot of impact, because there were lots of academics, researchers, philosophers who took the problem of erasure as their starting point. Even on the international law level, the international law commission started to work on draft articles about the regulation of citizenship in the case of state succession. And these articles take into account the problems that took place in Slovenia, in the former Yugoslavia, as well as the Baltic states and the Czech Republic and Slovakia. So there is a very good starting point with the draft articles, which unfortunately never really grew into a convention, or anything binding for the international public.

Of course it doesn’t mean that similar violations cannot take place in the future. They always do. We always think that we learn something from a genocide, and there’s another genocide taking place. But still the awareness does produce certain changes at the international level with regard to declarations, even if they are not binding. So, slowly, we are making progress as a planet.

 

You said that the reason you took on the issue is because it was a challenge, a big challenge. Have you identified another major injustice that would engage you in the same way that this issue has engaged you?

 

Unfortunately, I think that we are living in a time that is quite challenging when it comes to human rights. Especially because of the economic crisis, which is now worldwide. The economic crisis has been a very useful excuse to interfere with human rights in general, especially social and economic rights, which are not even recognized as rights everywhere in the world.

There was recently a quite big interference with the rule of law and human rights in general in Slovenia. For example, there was a problem with pensions. With the austerity package that Slovenia adopted, there was also a big cut in one portion of pensions that are being paid in Slovenia. But these pensions were recognized by legislation, and by binding decisions issued by competent bodies. So they are part of the rule of law. With the austerity measures, the state has interfered with a number of pensions that were recognized this way, and this raises a very serious debate of how far the austerity measures can go when it comes to human rights protection, and mechanisms we actually have in place to protect human rights. We are awaiting a new package of austerity measures that will definitely again cut some of the acquired rights.

This is a very serious challenge. It’s a challenge for all of us to find a way to protect human rights to the extent that we can afford to and at the same time make sure that the government does not go bankrupt.

 

Have you already elaborated a project on this? Or are you just beginning to think about it?

 

We have some projects that are dealing with this, but in a more specific way, for example, in labor rights. It doesn’t deal so much with the whole scale of social and economic rights, not yet. One of our colleagues is actually doing a twin project with Mexico. We are learning from them about austerity measures and a weak social state and so on. And they can learn from us about what kind of mechanisms can be in place to at least have some kind of welfare state.

 

When you look into the near future, and you consider the prospects for Slovenia over the next couple of years, how do you evaluate those prospects on a scale of 1 to 10, with one being most pessimistic and ten being most optimistic?

 

I would say 5. Because we cannot ignore the fact that we are part of the developed world. We live very well compared to a very big part of the world that doesn’t live so well. I try to mention this from time to time when people are very desperate. Because I know how people are living in other parts of the world, and we are still well off. So for that reason I would still keep it a 5.

But I would not assess it more than 5 because I think that Slovenia is unfortunately following the pattern that Europe is tackling the crisis, which we are not very happy about it. We think that it is adopting too much of a neo-liberal, Chicago School approach. We think that the Keynes school would be a better one to follow. Maybe a New Deal would be a very good option, not just for Slovenia, but for Europe. Because Slovenia is very much connected to the economy of Europe as a whole, because we are such a small economy. So that’s why I would not give it more than a 5.

 

The second quantitative question is, when you look back from 1989 until today and you evaluate all that has happened here in this country, or hasn’t happened here in this country, how would you evaluate that 1 to 10, with 1 being most dissatisfied and 10 being the most satisfied?

 

I would say the same, 5. I think we still managed to have some progress. We tackled some difficult issues, at least to a certain extent. But precisely for the fact that so much has been promised at the independence, I still think that the state as such made lots of mistakes that were completely unnecessary. That’s why I would not keep it more than 5, and I consider 5 a bad grade. It’s not 1, but it’s not passing.

 

The final quantitative question, again from 1989 until today, same scale, 1 being most dissatisfied and 10 being the most satisfied: your personal life?

 

I’m always optimistic, always trying to set new goals. And so far I have achieved most of my goals, so I would just give it a 10.

 

Ljubljana, October 19, 2012

 

Interview (2008)

 

ON THE ERASED

I studied international human rights law at the University of Notre Dame in Indiana. When I came back to Slovenia, I cooperated with the Peace Institute, doing some judicial training on anti-discrimination. At this time, I was planning to do a bigger project on issue of erasure. The work that had been done on this issue was not systematic enough, the NGOs working in this field are weak. So it was important for a bigger NGO like the Peace Institute to do advocacy and research on this topic.

When I came back to Slovenia in 2004, the right-wing parties had won the elections. Many people dealing with the issue of the Erased at that time were tired. So I came to the Peace Institute, showed some enthusiasm about the issue. This was the biggest human rights violation in the 16-year history of Slovenia. Since I had been dealing with war crimes and other human rights violations around the world in my studies, I felt that this was the issue that needed attention at the moment. So I became coordinator of a three-year project that began in January 2007 and will end in December 2009 and will monitor everything connected to the issue of the Erased and analyze policy developments. My role is overview but as a lawyer I will also get involved in particular cases and I will serve as the contact person for the attorney’s office in Rome representing the 11 cases in the European court. Whenever they need information on national legislation or on the complainants, I am the contact person.

There are two main parts of the field research. We will be contacting erased people throughout Slovenia and abroad (Bosnia, Italy, Germany). And we will also do interviews with the Erased to make an archive of their recorded testimony. We will later use these recordings to do sociological and legal analysis of the consequences of erasure. From this research, we have encountered people who still don’t have status or need legal assistance to resolve other legal issues. We link these people in the field with lawyers. Everything depends on the client. People are still afraid of the authorities and what will happen to them. We are also planning two academic conferences to insert the issue of erasure into public discourse and into the academic debate. Because up to now it has been completely lacking. Why do we only have two publications on the Erased, which is the biggest human rights situation in Slovenia? In comparison, there are a dozen publications on Roma.

ON THE DRAFT LAW

The government has said that its proposed draft law will resolve the issue of the Erased and implement the decision of the Constitutional Court from 2003.  But if we look at the draft law, it will not in fact implement the court decision. The 2003 Constitutional Court decision demanded that the status of the Erased be returned from the date of erasure, retroactively. But the draft law foresees the return of erasure only to the moment of the filing of the application for permanent residence. A person could have filed in 1999 or 2005 – it’s different for every person. If this law were adopted, these people would have a gap in the history of their legal status of 10 years, or 16 years. The second point is that the beneficiaries of the law are limited to those who applied in the past for permanent residency, and does not include those who didn’t apply. A third point: the draft completely excludes the right to compensation.

Of the 18,000 Erased, about 12,000 already have permanent residency. They got it back. A lot of them also got citizenship. So, there are about 6,000 left. About 2,000 of these have some temporary residency, on the basis of work or family status or schooling. This means that they are still in a very precarious situation. This status could cease any year. The other 4,000 still don’t have status. Many were expelled and couldn’t return. Many left on their own because they couldn’t survive in Slovenia as illegal migrants. We don’t know how many of these are here and how many have left. The Slovenian government claims that the erasure doesn’t exist anymore because the ones who left did so voluntarily. But they didn’t leave voluntarily.

The government didn’t coordinate with other political parties whose votes they needed in order to get the law passed by two-thirds. This suggests that adoption of the law is not the government’s goal. Last October 29, the government faced a deadline to respond to a lawsuit filed in the European Court of Human Rights. That’s when the government confirmed the draft of the constitutional law. The old proposal was first prepared in fall 2004. It was marked internal and wasn’t known to the public. Only after Amnesty International and journalists from the paper Mladina filed a complaint with the Information Commissioner in accordance with the Access to Public Information act was the draft made public in April 2005. At that time, the coalition parties were not able to secure two-thirds of the votes. It was put aside and no one ever thought it would again be invoked as an appropriate tool because it was rejected that first time. Then, suddenly after two and a half years, this act is proposed as an appropriate tool for remedying violation. The government simply wanted to show that there was some activity going on and shift the burden to parliamentarians. Now the government can point fingers at the parliamentarians who don’t support it. But I think the members of parliament have good grounds for not supporting it, because it doesn’t implement the Constitutional Court decision.

The Constitutional Court established that erasure was unconstitutional. So we need to repair the unconstitutionality. We have to reestablish the situation as it was before the violation. One part of remedying the situation is to eliminate the legal gaps in the history of the Erased. If a person got permanent residence back as of 2005, this person has a 13-year gap in their legal history. If this person got a supplementary decision recognizing their erasure from 1992, this person would for the first time have proof that permanent residency was taken away for them. The Constitutional Court said this is the case for the whole community. But the individual doesn’t yet have this recognition. This person could also use this supplementary decision to ask for compensation.

Why did people not file for compensation after the 2003 Constitutional Court decision? We don’t know. But here are some guesses. They didn’t know whether they had the right to do so because no act said that they had the right to compensation. If the state proposed a law, and the law were adopted, then people would immediately say, “Ah, there really was a violation, and I have the right to file a claim.” Since the government from 2003 on was simply buying time, people were also confused. Only two claims were filed, and they were not successful because of the statute of limitations. According to the general principle of tort law, compensation for damage can be claimed three years after you learned of the damage or five years after the damage was done. The court in one case interpreted the statute to have expired after the publication of the first Constitutional Court decision in 1999, which was more than five years before the claim for compensation. Because of this negative outcome of the first lawsuit and the general position of most lawyers that the statue already expired, people were not courageous enough to file such claims.

We are also trying to file an exemplary lawsuit for compensation but are having difficulty finding a good case. We’re trying to find a person who recently got their status back, for example in 2007. That’s the moment when they were sure that the state was responsible for the violation done to them. Most of the statuses issued to people happened more than three years ago.

We’re now in 2008. The coalition parties don’t believe the erasure ever took place. The state goes back to 1992 to justify that what they did was right. This is like the work of Sisyphus: you climb and you climb and you think you’re talking about something at the top and then they go back to 1992 and you’re back again at the bottom. We’re waiting for elections in the Fall for parliament. Some parties other than the government party have good chances. We’ve talked with these other parties. But the issue of the Erased is not popular, so none of them can give you their word that they would actually resolve it once they come into power. Even if the government swings back to the left, the chances for the status of the Erased to be resolved is very small. It will take more than a shift in government. Generations will have to change. Until all the people who were in power during the erasure retire and new people come in who can see the situation objectively, there will be very little chance of positive outcome. Left-wing parties were on top for 12 years, and they tolerated the consequences of the erasure. So, everyone is complicit.

We don’t really have any good public opinion analysis on views of the erasure. There were only a couple smaller polls conducted by a communication agency around the time of the Constitutional Court decisions. The moment when they were conducted was very politicized, very heated. So perhaps the polls would be different now. They were all very negative against the Erased. The outcome of the referendum was that 97% of the voters said that the rights of the Erased should not be restored. Only about a third of registered voters voted. And they were the ones who were totally against the Erased. So, it’s hard to say that the referendum or the polls around the referendum represent public opinion. The opponents of the Erased are so loud, and they give their nationalistic statements without any fear. Supporters are quiet, and reluctant to expose themselves on this issue.

ON THE EUROPEAN COURT OF HUMAN RIGHTS

The claims were filed on July 4, 2006. The application is very long, 100 pages, and covers 11 cases. There are two types of claims. The first is general and applies to all applicants. The second includes specific claims that consider violations that happened to them individually. There were about 12 violations of rights invoked. Eight of them were declared inadmissible by the court for different reasons. For instance, one person claimed that because of the erasure, his health deteriorated. Because he didn’t have health insurance, his health deteriorated even more. This was very much the case with many of the Erased. But the right of health is not protected by the European Convention of Human Rights. The same applies to the right of employment.

Four claims of violations of rights remained under the scrutiny of the court. It’s a two-stage process. The court investigates whether the case fulfils procedural requirements and then it decides on the merits of the case. These four rights that the claimants say were violated are: 1) right to private and family life; 2) right to effective legal remedy; 3) right to non-discrimination; and 4) right to property. In this last case, people did not get the pensions for which they paid contributions. Some worked for 30 years and had paid contributions for all that time.

The case is considered urgent, which means that it will be decided sooner than the majority of cases in the Court. The applicants had a deadline to respond to the government by January 30, 2008. Now the government has a deadline of the end of May. NGOs like the Peace Institute, the Equal Rights Trust from London, the Open Society Justice Initiative have filed third party amicus briefs. We focused on the right to effective legal remedy, which I think is the strongest part of application. The government said that the Erased have so many other legal remedies. But how many legal remedies can you expect these people to use? Many are homeless, many are poor.

If the Court finds in favor of the claimants, the government is obliged to remedy only these people. Unless the Court recognizes that it is systemic and requires legislation that deals with all those affected. Even if these people only win in this individual case, the court provides an interpretation of standards, which other Erased can invoke in their lawsuits. This can be used domestically but it depends on the court.

ON PUBLIC AWARENESS

We are using everything we can – gathering information to support claims in the lobbying process, legal remedies, media for public awareness, international lobbying. We’ve tried many things, and nothing has helped. But if we help this new generation, we hope this can bring change in the future.

The president of one association of the Erased, Alexander Todorovic, feels that criminal procedures are very important. He filed a complaint. He was prosecuted in court by three people responsible for the erasure because he called them fascist. The court was lenient. They said he just shouldn’t do it again. He used the opportunity of the court room to file the criminal complaint of genocide – which was a bit off if you ask me but anyway. The police started to investigate this complaint, so he thinks this is very important politically. The sole fact that the police is investigating it as an act of genocide is a great victory.

There is a communications agency just now carrying out a public awareness campaign. There is a building being renovated that now has yellow drapes in the front with three stories of the erased. It’s also on bus stops – silhouettes of people with links to their stories. They present intimate stories of people in an emotional way to touch every individual who reads them – without politicization, without political debate. We contributed the stories from our interviews, especially those of women and children. Here’s one example: “When they told me that I’m not in the register any more, I thought it was only a bureaucratic mistake that would take only an hour of my time… not 16 years.” They give just the skeleton of the story to give some drama. It’s a pro bono campaign. The whole agency is devoted to it.

They also have a lot of sponsors. The building belongs to the municipality of Ljubljana and the mayor gave it for free. The city could have gotten a lot of money for the advertising space. The mayor is sensitive to this issue because he is an ethnic Serb. He offered the façade for two months to raise awareness. The construction company agreed to pay for the production and the hanging of the drapes. Some resources were provided by Amnesty International and by us. It was the idea of the communications agency. They want to do a social responsibility project and they thought this was the most problematic issue. They had to choose between hate speech and the Erased and they chose the Erased.

ON CITIZENSHIP

It’s possible to get Slovenian citizenship if you’re not Slovenian. About 170,000 non-ethnic Slovenians got citizenship after independence. There are lots of provisions in our legislation. There is naturalization (after 10 years), special interest (sports and culture), refugees (after 5 years for people with asylum status). You can get citizenship if you get married.

We more or less have the same citizenship legislation as in 1991. The government provided a little easier condition for Slovenians living outside Slovenia but other than that the legislation didn’t change much. A provision was added for refugees. There was a possibility for the Erased to apply for citizenship through another provision.

All other claims from the Erased are about permanent residence. They want this right back. Ordinary people mix up the two. Erasure has nothing to do with citizenship. Citizenship was used to define the group that was erased.

UPDATE

In the meantime we found out from the Ministry of Interior that this data is not entirely true. Among the 12.000 there are also people who only had temporary residence at the time of independence of Slovenia, so they were not erased (the Erased are those who had permanent residence). The Ministry actually does not have the separate data on Erased only; even they don’t know how many have status.

At the end the drapes were hanging there for even longer, for more than two months.

 


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