Until today, not even a single erased person has succeeded before Slovenian courts in obtaining compensation for being erased and deprived of his or her legal status or for the consequences of this unlawful measure.
Compensation, however, became possible through the judgment of the European Court of Human Rights which awarded six erased persons compensation for non-pecuniary damages in the amount of 20.000 EUR per person. In this pilot judgment the court also ordered Republic of Slovenia to set up an ad hoc compensation scheme (within one year since the delivery of the judgment), as it established that the lack of ability to obtain compensation is a consequence of a “structural problem” in the Slovenian legal system.
To claim compensation in Slovenia, the erased people currently have at their disposal only general rules of tort law, which also include the rules on statutory limitations. These stipulate that a matter has to be brought to court at the latest three years since the person learned about the damages or five years since the damages occurred. The Slovenian courts consider different moments in time since when statutory limitations have to be calculated. In most cases, the courts have ruled that the person should have learned about the damages at the latest with the publication of the first ruling of the Constitutional Court in Official Gazette of the Republic of Slovenia, which was published on 12 March 1999.
At that time, the large majority of the erased persons did not yet regulate their legal status. The first ruling of the Constitutional Court of 1999 went by rather unnoticed by the general public. Only after the second ruling issued in 2003 did the public discussions become intense. It was only then that the majority of the erased realized that the deprivation of their legal status by the state was illegal. The majority of tort actions were initiated in this period. However, in all of the cases completed until now the courts ruled that the statutory limitations had expired.
This means that the Slovenian courts considered that all erased persons should have shown the necessary care for their legal situation by reading the official gazettes and wait for the Constitutional Court to decide. This assumption is unrealistic as in the time of living sans papiers the erased people were struggling for survival and their existence. It is also unrealistic to expect that in the 90s, when they were bearing the brunt of the damage, the erased would have been able to inform themselves about the possibilities of claiming reparation, since among lawyers there was a general consensus at that time that the actions of the state were legal and in accordance with the constitution.
Statistics of the claims for compensation lodged to Slovenian courts
(source: Ministry of the Interior)
Until May 2012 97 (pre-litigation) claims of compensation and 75 (litigation) claims were lodged by the erased persons (of which 30 plaintiffs firstly initiated claims of compensation whereas 45 lodged a lawsuit directly in courts).
52 litigate proceedings have been completed with final decisions, out of which 35 were completed with a judgment by the higher court (claims were rejected), 8 with a judgment by local or district courts (the plaintiff did not appeal), 8 with a decision (the plaintiff withdrew the claim or died and the heirs did not continue the proceeding) and 1 with a court settlement with which the plaintiff withdrew the claim.
Among the 35 claims that were completed with a judgment by the higher court, 17 appeals have been brought before the Supreme Court RS. Five of those proceedings have been completed, namely with rejection or with refusal of the appeal.
36 of the erased persons initiated claims of reparation after they received a supplementary decision in 2009, 2010 or 2011. After the claims of compensation were rejected, 9 of them brought the case to court.
After they received the rejection of the supplementary decision in 2008, 2009 and 2010, 15 erased brought their case directly to court.
Two erased people appealed to the Constitutional Court RS. The Constitutional Court RS did not accept the matters into consideration and rejected the appeals.
The need to adopt the law on remedying the violations of human rights
Due to the deprivation of their legal status and its consequences, the erased residents cannot obtain reparation through the Slovene courts. To make the redress of the damage possible, a special law on remedying violations of human rights would have to be passed. The law would have to address the problem of compensations as well (see also unresolved issues). This was confirmed by the European Court of Human Rights in its judgment of 26 June 2012.