In spite of 2010 amendments to the legislation there are numerous issues that remain unresolved in the field of remedying human rights violations caused to the erased people.
On the occasion of 20th anniversary of the erasure, non-governmental organizations alerted the authorities (Members of the Parliament, presidents of all branches of power and the president of the Constitutional Court) about these problems. See a letter and a memorandum (in Slovenian) describing the unresolved issues.
Until now only half of the erased people managed to regulate their legal status in Slovenia (see also statistics). The reasons for this are:
1. Insufficient legal framework on regulation of legal statuses
With the 2010 amendments to the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia, some of the erased people obtained a few more options to obtain a permanent residence permit. However, these options are quite narrow, and the procedure is difficult and lengthy. Accordingly, the possibility provided with the 2010 amendments cannot be considered sufficient.
The law namely still requires the erased people to:
- lodge an application for a permanent residence permit
- pay the administrative fee in the amount of 92 EUR
- meet the conditions required by law
- submit evidence proving that they meet the conditions
- arrange the translation of all documents into Slovenian language
- attend a hearing at the administrative office
- carry out a number of other administrative acts.
These administrative acts are very demanding for the erased people who usually have no legal education. They require a lot of resources which many cannot afford, in particular if they lodge the application for permanent residence permit from abroad. For many erased people the law is too complicated and in case they lodge their application without legal representation they risk higher chances of being rejected.
Even if the erased people meet all the conditions required by the competent body, there is no assurance that the legal status they had been unlawfully deprived of will be returned to them, since many still do not fulfill the conditions. In most cases the problem is that this many years after the erasure they are not able to change their past life circumstances in order to fulfill the conditions. Namely, the cases in which the erased people can obtain the legal status still do not cover all possible situations. In fact, the problem is that the law sets any conditions at all, as legal statuses should have been returned to the victims unconditionally.
From the law it is apparent that the authorities shift the responsibility to regulate their legal status in its entirety on the erased people.
2. The problem of the need to prove that the person tried to return to Slovenia
One of the conditions that the erased people who do not live in Slovenia have to meet is to prove they tried to return. They have to prove that they tried to return between the fifth and tenth year of absence.
The reason why this condition ended up in the law, what is its purpose and why it does not suffice that the person tried to return in the first five years or after ten years of absence, is not known. In the draft law provided to non-governmental organizations for comments this condition was not included. It was added later in the legislative procedure. This condition causes significant problems to the erased as there is usually no evidence proving that one tried to return.
3. The problem of the maximum allowed absence
Another problem is the unclear wording of the law, according to which one could assume that those erased who are absent from Slovenia for more than ten years are not permitted to get their status back.
This rule does not make any sense as it is not clear why the legislature would adopt such law after 18 years since the erasure, in order to enable the erased people who are absent from Slovenia to get their legal status back, and then limit the allowed absence to a maximum of ten years. The reason why this provision ended up in the law is not known. The draft law that was sent to non-governmental organizations into comment did not contain such provision. It was added later in the legislative procedure. For a more detailed analysis of this problem see Recent developments.
4. The absence of additional measures remedying the violations
While the legislature made available some of the options to regulate their legal status, it did not foresee any additional measures that would enable the erased people to integrate in the Slovenian society and to rehabilitate in case they suffered health or psychological consequences of the erasure.
Integration measures that would be needed are support and assistance in integration into society, regulation of health insurance, inclusion into active employment policy, provision of scholarships to the erased people and their children etc.
5. The family reunification problem
The erased people, who acquired a permanent residence permit, are not able to return to Slovenia if the residence permit is not issued also to their family members. This problem concerns in particular those erased people who raised their families after the erasure and whose family members were not erased.
Currently, family members of the erased people have to meet the same conditions for family reunification as all other foreigners, in accordance with the Aliens Act. They have to prove that they have sufficient means of subsistence, health insurance and a valid passport for each family member. These conditions are not appropriate for family members of the erased, as they do not take into account their specific situation. For example, if family members are stateless, they cannot meet the condition of a valid passport.
If the acquisition of a residence permit is made possible only for the erased person and not also to his or her family members, or if there are conditions in place that family members cannot meet for family reunification, there is a risk of violation of Article 8 of the European Convention on the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to protection of private and family life.
6. The problem of housing
Where is an erased person supposed to live after she gets her legal status back in Slovenia?
After the independence the erased people were not allowed to buy off apartments in which they lived based on housing rights acquired in the time of socialism. The right to buy off apartments was only reserved to Slovenian nationals. They also could not rent non-profit apartments as these are only reserved for nationals as well. This means that by deprivation of legal status they also lost access to legally available housing. Also, if they get their status back they are not able to access this type of housing.
This means that it is necessary to amend the Housing Act in a way to provide access to non-profit rented housing also for people who are long-term residents in Slovenia.
For urgent cases where it is not possible to wait for the opportunity to rent such non-profit apartments, the authorities should make available the empty apartments in its possession to the erased and their families until a more durable solution can be found.
Another issue that remains unsolved until today is the issue of validity of lease contracts for apartments in which the erased people lived before they were deprived of their legal status and before they were deported or prevented to return. These lease agreements were never cancelled, meaning that they should still be valid.
7. No official apology for the erasure
An issue that remains open is also the issue of lack of official apology for the damage caused by the authorities with the erasure.
The apology expressed by the Minister of Interior Katarina Kresal and the president of the National Assembly Pavel Gantar is of immense importance. However, it was expressed only verbally and this apology is not written in any of the official documents. An appropriate way to issue an apology would be, for example, a resolution adopted in the National Assembly, containing the apology to the erased people and a commitment towards remedying the violations and towards preventing such violations from happening again.
8. Unclear benefits of supplementary decisions
The erased people who acquire their permanent residence permits in Slovenia or Slovenian citizenship also acquire supplementary decisions, by which the authorities recognize that a particular erased individual also had a residence permit since the erasure onwards (a measure that is supposed to ensure restitutio in integrum concerning a legal status of an individual).
What kind of benefits do these supplementary decisions bring?
So far none of the erased people managed to claim any kind of past right that derives from a permanent residence permit (for example work permit or financial assistance).
This means that in fact the supplementary decisions have no practical value, except for the symbolic one. By their value they are only a piece of paper that does not serve any other purpose but the implementation of the ruling of the Constitutional Court No U-I-246/02 of 3 April 2003, by which this court ordered that such supplementary decisions need to be issued.
This has to be changed by establishing which rights could be recognized for the past on the basis of the issued supplementary decisions.
9. The erased cannot obtain compensation for damages through regular courts
By illegally depriving them of their legal status the authorities caused serious pecuniary and non-pecuniary damages to the erased people in all fields of their lives.
Some could not enroll in schools, others were forced to live separately from their families, they were afraid for their personal safety, of being deported or detained in the Aliens Centre, or they actually experienced these measures. They could not access the labour market, leave the country or return into one if they were deported.
Many tried to claim compensation through regular courts (see compensations), but they were not successful. Not even one erased person until now successfully claimed compensation from Slovenian courts. Their claims were also rejected by the Supreme and the Constitutional Court. For this reason it is necessary to adopt the law on remedying the violations of the rights. See also proposed measures.