Among all state institutions in Slovenia, the Constitutional Court played the most important role in uncovering the erasure and rectifying injustices caused by the erasure. The Constitutional Court adopted at least 16 decisions concerning the erasure, both in cases of individual complaints and in constitutional review of laws.
The most important decisions are two systemic decisions of 1999 and 2003, which had the most far-reaching positive consequences for the erased people.
The 1999 Constitutional Court Decision
The act of erasure was secretive and performed with such lack of transparency that even the affected individuals had not been informed about it. They by coincidence learned that they no longer have any legal status when, for example, their personal identity documents had expired and they tried to renew them; or when the police detained them for not having valid documents after stopping and identifying them on the street; or when they tried to exercise one of the social security rights, enrol in school, go to the doctor, etc.
In the 1990s, the public was not aware of this act, let alone that it was a large-scale measure. Only the Human Rights Ombudsman’s Annual Reports warned that the erasure affected a larger number of people.
Only by a Constitutional Court decision No U-I-284/94 of 8 February 1999 it was established that the erasure was against the law. With this decision the Constitutional Court established that the erasure was an unlawful act of state authorities. It found that the Ministry of the Interior coordinated and ordered the erasure which was then carried out by local Administrative Offices. However, the Ministry claimed that the status of the erased people expired automatically by law, namely under the provision of Article 81 of the Aliens Act of 1991.
This provision stated:
“Until the decision in the administrative procedure for granting citizenship of the Republic of Slovenia becomes final, the provisions of this Act shall not apply to the citizens of the SFRY who are citizens of another republic, and apply for citizenship of the Republic of Slovenia within six months from the implementation of the Law on Citizenship of the Republic of Slovenia in accordance with Article 40 of the said Law.
For the citizens of the SFRY who are citizens of other republics and do not apply for the citizenship of the Republic of Slovenia in the time period, established in the previous Paragraph, or were issued a negative decision, the provisions of this Act shall enter into force two months after the period in which they could have applied for the citizenship of the Republic Slovenia, or from being issued a final decision.”
The Constitutional Court held that the cited provision does not mention anything about expiry or obligatory deprivation of legal status of the individuals who were later erased from the register.
With regard to the erasure from the register of permanent residents, the Ministry of the Interior claimed that only Slovenian citizens could have been enrolled in the register, whereby the Ministry referred to Article 5 of the Rules on the register of permanent residents, which stated:
“1. The Register of permanent residents composes of information on Slovenian citizens with permanent residence registered on the territory of the municipality.
2. In the Register of permanent residents, a competent authority designates citizens of the Republic of Slovenia, who are travelling abroad temporarily but for more than three months, and individuals who were refused registration of permanent residence under Paragraph 4, Article 6 of the Permanent Residence and Population Registry Act (hereinafter referred to as the Act).”
The Constitutional Court found that the Rules do not provide for a legal basis for the erasure of persons from the register of permanent residents. The Court noted that permanent residents of Slovenia who did not obtain citizenship could reasonably have expected that despite Slovenian newly gained independence their status will not change.
The key citation from the Constitutional Court’s decision reads (Paragraph 16):
“Citizens of other republics who have not opted for Slovenian citizenship could legitimately not expect to be equated with foreigners who were yet coming to Republic of Slovenia, and that they will lose permanent residence with no notice whatsoever. As a state in formation Slovenia committed in its acts of independence to guaranteeing protection of human rights and fundamental freedoms to all persons within its territory, irrespective of their national affiliation, without any discrimination, in accordance with the Constitution of the Republic of Slovenia and applicable international law [...]. In view of the aforementioned acts of independence, the citizens of other republics, who have not opted for Slovenian citizenship or their application had been refused, could legitimately had expected that this circumstance would not have significantly worsen their legal situation and could continue residing permanently in Republic of Slovenia, if they so wished.”
The Constitutional Court held that the act of erasure infringed the constitutional principle of the protection of legitimate expectations (as a part of the principle of the rule of law, protected by Article 2 of the Constitution of RS) and prohibition of discrimination, established in Article 14 of the Constitution. Furthermore, the principle of equality before the law was violated when foreigners from third countries, who in the times of the SFRY obtained a residence permit, kept their status (with absolutely no effort), while persons from other republics of the former Yugoslavia were arbitrarily deprived of such legal status, which put them at a disadvantage in comparison with foreigners from third countries.
The 2003 Constitutional Court Decision
The second very important decision of the Constitutional Court, No U-I-246/02 of 3 April 2003, addressed the question of constitutionality of the law which was passed with intent to implement the 1999 Constitutional Court decision, i.e. the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia (ZUSDDD).
With this decision, the Constitutional Court confirmed its conclusions of the 1999 decision and added the following findings:
- ZUSDDD is inconsistent with the Constitution because it does not recognize permanent residence to the erased persons since the date of the erasure;
- ZUSDDD is inconsistent with the Constitution because it does not regulate obtaining permanent residence permits for the erased persons, against whom a measure of deportation (expelling) had been imposed;
- Article 1 of ZUSDDD is inconsistent with the Constitution because it does not define the concept of “de facto living in Slovenia”; although this was a key condition for obtaining the legal status it was unclear when was it fulfilled;
- Paragraph 1 and 2 of Article 2 of ZUSDDD are repealed in parts, where they lay down a deadline of three months to lodge a request for a permanent residence permit (this meant that the Constitutional Court reopened the deadline for filing requests that has already expired);
- The legislator must remedy the identified violations within six months from the date of publication of this Decision in the Official Gazette of the Republic of Slovenia;
- And last, the court ordered that retroactive effect of residence permits since the day of the erasure has to be acknowledged with separate (supplementary) decisions of the Ministry of the Interior issued to those erased who have already obtained a permanent residence in the Republic of Slovenia (see Constitutional Court decision of 2003).
This Constitutional Court decision remained unexecuted for seven years. In this time, the Ministry of the Interior proposed some controversial drafts of the law to enforce the decision of the Constitutional Court by the will of the legislator. Several referendums were requested during this period; however they were prohibited by the Constitutional Court several times. Finally, one of the National Assembly’s requests to prohibit the execution of the referendum was filed a day too late so the deadline was missed and the referendum was carried out.
The greatest opposition expressed towards the decisions concerned the Court’s requirement which obliged the Ministry of the Interior to issue supplementary decisions directly on the basis of the decision of the Constitutional Court and to recognize the status of the erased retroactively. On this issue, the then Minister of the Interior, Rado Bohinc, requested the opinion of some constitutional lawyers, who claimed that it was possible to issue an administrative decisions solely on the basis of the law passed in the parliament and not directly on the basis of the Constitutional Court decision or the Constitution itself. However, such a law was never passed because its adoption was prevented by the aforementioned referendum, which took place on 4 April 2004 and reflected the will of 94.68 % of voters against the implementation of the proposed Act (voter turnout stood at 31.45 %).
On the one hand, this result shows how unified public opinion in opposing the erased was and how successful was the demonization of individuals who were actually victims of massive human rights violations. On the other hand, the rejection of the Act was in fact positive for the erased, because the law was more restrictive than Constitutional Court decision. This means that on the basis of the rejected law fewer erased persons would be eligible for supplementary decisions in comparison to the number of decisions that would be issued directly on the basis of the decision of the Constitutional Court.
Ultimately, separate decisions were nevertheless issued directly on the basis of the Constitutional Court decision. Despite the outcome of the referendum and the objections of the constitutional lawyers, in respect of the Constitutional Court decision the Ministry of the Interior issued the first package (4040 decisions) as early as in 2004, while the second package (2581 decisions) was issued in 2009 under the Minister Katarina Kresal. The position of the constitutional lawyers that the administrative decisions may only be issued on the basis of law and not directly under the Constitution was thereon considered formalistic and wrong.
The significance of the Decision of the Constitutional Court of 2003
Compared to the 1999 decision of the Constitutional Court, the decision of 2003 is more rigorous and also more explicit. Not only did the decision establish unconstitutionality of certain provisions of the law and repeal them, the Constitutional Court also determined the manner in which the decision is to be executed.
The Constitutional Court opted for the concept of escalating sanctions, the concept which is brought in when previous decisions of the Court on the same subject are not properly implemented. This was also the case with the erased, because the law, adopted precisely with the purpose of eliminating unconstitutionality established with a previous constitutional decision, was found unconstitutional itself.
In the opinion of Professor Ciril Ribičič, a former constitutional judge, the said decision placed the Constitutional Court among distinguished European constitutional courts and the decision itself could be characterised as “grandiose”.
Other Constitutional Court decisions related to the erasure
In addition to the two most famous decisions of the Constitutional Court (U-I-284/94 and U-I-246/02), the Constitutional Court has issued:
- a decision which has assessed another constitutionality of the ZUSDDD (U-I-295/99);
- at least seven decisions on constitutional complaints filed in individual cases (Up-333/96, Up-60/97, Up-20/97, Up-152/97, Up-336/98, Up-119 / 99 and Up-211/04);
- five decisions with regard to the requested referendum, related to the erasure (U-II-3/03-15, U-II-1/04, U-II-3/04-7, UI -257/03-14 and U-II-1/10-25).