On 24 September 2012 National Assembly approved the first reading of the Draft Law on compensations for damage to persons who have been erased from the register of permanent residence (the Draft Law). The European Court of Human Rights demanded the adoption of the Act in the judgment Kurić and others v. Slovenia in 2012. The Draft Law provides for recognition of the right to compensation for only around 10,000 persons (of total 25,671) that already arranged permanent residence permit in Slovenia or Slovenian citizenship. For this group the Draft Law predicts 40 EUR of lump sum compensation for each month of the erasure, which will be enforced in an administrative procedure. The excess up to 2.5 times the lump sum will be possible to require before the courts in Slovenia. The Draft Law also provides for additional integration measures in the field of social and health care and housing.
Representatives of the erased and non-governmental organizations have expressed a number of comments on the Draft Law, which were not taken into account. As inappropriate they pointed out narrowing the group of beneficiaries to those persons who have already arranged their status. The damage caused by erasure affected all of them, but in different amounts. Awarding the compensations only to persons with arranged status means that one group of erased people will have access to all available measures to redress (regulation of the status, compensation and additional measures provided for in the Draft Law), while the second group will have access to none of those measures. The argument that the other group has not indicated an interest to regulate their status in Slovenia is untenable, since the existence or non-existence of damage caused by the erasure and regulation of status in Slovenia are not related. Many people filed applications, but were unsuccessful, and many would file them if they met the legal conditions under which it was necessary to prove actual (illegal) living in Slovenia.
Another crucial comment on the Draft Law is related to the amount of lump-sum compensation, which is not comparable to the compensation that the European Court of Human Rights awarded to the six erased people who have been erased for 19 years. In their case the European Court acknowledged 20,000 EUR of compensation only for non-pecuniary damage, while the Court has not yet decided on the compensation for pecuniary damage. According to the Draft Law people who were also erased for 19 years would receive the compensation in the amount of 9,120 EUR. The difference between the two amounts is already obvious, and will additionally be increased when the Court decides on the amount of compensation for pecuniary damage for six complainants in the Kurić case.
Other comments on the Draft Law are related to the fact that the law does not allow access to compensation for children and heirs of the deceased erased persons. Representatives of the erased, moreover, pointed out that it is necessary to extend the deadline for obtaining a permanent residence permit, which expired on 24 July 2013, and that it is necessary to allow family reunification to the erased on more favorable terms than those provided for in the Aliens Act.
The Draft Law will be discussed in the National Assembly twice more, first at the Committee for Internal Policy (most likely in October) and then again in plenary session (possibly in November). It is envisaged that the law will be adopted by the end of the year. Ideally, Slovenia will miss the deadline set by the European Court for six months, since the law should have been adopted by 26 June 2013. Due to the delay and the failure to respect the judgment of the Court 654 erased persons already filled their complaints to the European Court of Human Rights.
In the debates some Members of Parliament repeatedly cited untrue facts about the erasure. Some statements are quoted and commented below, while the record of the entire session of the National Assembly is available (in Slovenian language) here.
Gregor Virant: “Those who have not opted for citizenship had an additional two months to line up and get a permanent residence permit according to the Aliens Act.”
Comment: Those, of which the authorities expected they will arrange a residence permit, have not been informed about this; therefore there was no “line”. The two-month period (between the expiration of deadline for citizenship on 12/26/1991 and the erasure on 02/26/1992) meant only the period during which the status of the erased people was completely unclear. “The line” for people who were later erased should not even exist, because the legislature should have regulated their status automatically, as was also confirmed by the Constitutional Court in its decisions in 1999 and 2003.
Branko Grims: “In European Union the erasure is used for what happened in the Baltic countries, where people lost their rights, everything overnight, as if they were non-existent. This did not happen to anyone in Slovenia”
Comment: This, of course, is a complete untruth, because this is exactly what happened to the erased people: with the withdrawal of the status of permanent residents they became legally non-existent, what was remaining was only their bare life. The words erasure and erased were established exactly for this community, and if typed in any browser in English, the browser offers only information on human rights violations that occurred in Slovenia. The terms statelessness and stateless (apatrid) were established for problems with the status of the Baltic States, as in these countries the particular problem was denial of access to citizenship. However, during the given period stateless persons in Estonia were in the same position as the erased in Slovenia and also had problems with the status of permanent residents, not just citizens.
Vinko Gorenak: “Administrative Unit Ljubljana has sent 25 thousand invitations. Before the erasure I mean. Come, it costs 300 SIT or something like that, and arrange your status.”
Comment: This is a false fact. Invitations have been sent only after the erasure, when people already lost their status and could not do anything to prevent this. When they came to the counter at the Administrative Unit, the officials withdrew and punctured their documents. They could only apply for a new temporary residence permit, but in most cases they did not get it, because they did not have a passport of “their” country, which officials demanded from them.
Gregor Virant: “It should be clear that the independence legislation in 1991 enabled all those who had permanent residence in Slovenia on the day of the plebiscite to obtain citizenship in a very simple way, without meeting any conditions.”
Comment: That is not true. There were two additional conditions: the first one was actual living in Slovenia, so only registered permanent residence was not sufficient, and second was concern for public order, state security and national defense. People who did not meet these two conditions were rejected. And there were many who wished to apply for citizenship, but the officials unlawfully refused to take their applications, because they said did not contain all attachments.
Jožef Horvat: “Complementary decisions were issued in contravention of the provisions of the Aliens Act and the Act on General Administrative Procedure without specific declaratory proceedings. So that’s how many erased people came to the entry of permanent residence retroactively, although they were actually not entitled to it. “
Comment: Statement is not based on facts. Issuing of supplementary decisions was based on the decision of the Constitutional Court and, therefore, was not unlawful. For legality, there must be a legal basis, which may also be a decision of the Constitutional Court.
Vinko Gorenak: “The Council of Europe recommended Slovenian model to Lithuania, Latvia and Estonia, and said, “Look, this is how it was solved in Slovenia, it is good, it is solid, you should also arrange it in a similar way.””
Comment: The statement is inaccurate and misleading. First, the recommendations were about the regulation of citizenship (not permanent resident status), as Slovenia solved this question in a more inclusive way than Latvia and Estonia, that caused mass statelessness with their civil laws. And secondly, Lithuania was not among the states receiving the recommendations, since its law on citizenship was even more inclusive than Slovenian.
Gregor Virant: “Once again, all those who ever wanted to arrange their status were able to do so. They could arrange it by the laws, which have been adopted for this purpose exactly.”
Comment: Not true. The law certainly did not open the door widely, especially not the Amending Act from 2010, as the majority of applicants for permanent residence on the basis of this Amending Act was rejected.
Vinko Gorenak: “We and the People’s Party (SLS) and New Slovenia (NSi) wanted to solve the problem, we proposed appropriate solutions, and these people would have had the compensations for about 10 years now, because we have proposed such a law, constitutional law was proposed, but Slovenian political left wing never wanted to adopt it.”
Comment: Not true. The draft constitutional law totally and completely excluded the right to any compensation. Based on that law the erased would not be able to claim compensations, and the European Court would have decided exactly as it did now.
Jožef Jerovšek: “And to say that there was the intent behind on how to get to these people is outrageous and indecent.”
Comment: Unfortunately, it is true that the erasure was intentional act. This is evident from the Parliamentary debates in 1991, when the legislative and legal department reminded Members of Parliament that the status of persons who were later erased needs to be regulated, and to this end some Members proposed amendments to the Aliens Act and warned of the consequences. The parliamentary majority, however, still voted against.
Ljubica Jelušič: “But none of those erased will get this right by itself, for this right, for the compensation, much more will have to be done. Not only that they took care of the supplementary decision or submitted the application for a supplementary decision, so they can get the right to entry to our register of permanent residents retroactively, they will also be individually addressed well when it comes to the issue of compensation, how much it will be, will they receive it for themselves, their family members, children and so on.”
Comment: Statement is not correct. Supplementary decision under the Draft Law is not and should not be a condition for compensation. The Draft Law predicts that every erased person will receive compensation only for themselves, and not for their family members. Children of the erased are excluded from the compensation, which is unacceptable.