Südosteuropa 59 (2011), H . 1, S . 2-24
NEžA KOGOVŠEK ŠALAMON
Nation-State Homogenization and the Battle for Legal Status: The Erased Residents of Slovenia
Abstract. In a measure that later became known as the erasure (izbris), more than 25,000 people were deleted from Slovenia’s registry of permanent residents . These erased people (izbrisani) were natives of other Yugoslav republics who had been permanent residents of Slovenia before independence, but who did not acquire Slovenian citizenship afterwards . The erasure had serious consequences for those affected by it, and it is considered one of the gravest human rights violations to have occurred in Slovenia since 1991 . The Constitutional Court of Slovenia found that the state administration had conducted the erasure without any legal basis . In fact, the vagueness of the so-called Aliens Act caused the court to deem this act unconstitutional . The legislature’s subsequent failure to act on this 2003 decision was condemned in 2010 by the European Court of Human Rights, which ruled in favour of the izbrisani in the case “Kurić and others vs . Slovenia” .
Neža Kogovšek Šalamon is a human rights lawyer . She works at the Peace nstitute,I Ljubljana, as a researcher and project director, and she is also a PhD candidate at the Faculty of Law at Ljubljana .
Introduction
In the former socialist Yugoslavia, internal migration from one republic to another occurred frequently as a consequence of the individual republics’ un- equal levels of economic development . Such migration was, in fact, encouraged because it supposedly created strong personal ties between Yugoslav citizens across the country . Of all the Yugoslav republics, Slovenia had the strongest economy . Accordingly, it attracted many immigrants from other parts of Yu- goslavia . Eventually, some 200,000 people from other Yugoslav republics pos- sessed a registered permanent residence in the Socialist Republic of Slovenia 1.
1 Jelka Zorn, Vpisani kot delavci, izbrisani kot neslovenci: Pogled izbrisanih na obdobje tranzicije, in: Neža Kogovšek / Brankica Petković (eds .), Brazgotine izbrisa . Prispevek h kritičnemu razumevanju izbrisa iz registra stalnega prebivalstva Republike Slovenije . Ljubljana 2010, 19-46, 25; and Borut Mekina, A Monument to the Erased, in: Jelka Zorn / Uršula Lipovec The Erased Residents of Slovenia 3
Following the dissolution of Yugoslavia in 1991, about 29,000 of these immi- grants did not acquire citizenship in the newly established Republic of Slovenia . Instead, they maintained their officially registered permanent resident status or left the new country voluntarily, de-registering their residences when they left . Contrary to these people’s expectations that their legal status, especially their right to reside in Slovenia, would not change, Slovenian state authorities terminated the registrations of some 25,671 people on 26 February 1992 .2 Those affected were not informed that they no longer possessed the right to reside in Slovenia,3 which meant of course that as of that date, they became undocu- mented migrants in a country where they had previously resided legally . The measure became widely known as the erasure 4. This article presents the background of this measure, explains some of the reasons why the Slovene authorities adopted it, and describes the consequences experienced by the erased people in light of the European Convention of Human Rights . The Convention refers, among other things,to the right to protection from expulsion, to the right to respect for one’s private and family life and to the right to an effective remedy for any violations of these rights . Recent developments include new legislation to the benefit of the erased, and the European Court of Human Rights’ judgement in their favour in July 2010,5 which has shed new light onto the issue . Considering the number of individuals affected by it and the consequences that they have suffered, theerasure is possibly the largest mass
Čebron (eds .), Once Upon an Erasure . From Citizens to Illegal Residents in the Republic of Slovenia . Ljubljana 2007 (Časopis za kritiko znanosti, 228), 44-51, 50 . 2 This statistical information was provided by the Slovenian Ministry of the Interior on 24 January 2009 . Statistics are available at
The Erasure: Independence, Law and Hidden Instructions
Determining who would be included in Slovenia’s body politic was the most crucial decision taken by Slovenian officials in the run up to the erasure . Dur- ing the preparations for the country’s declaration of independence in 1991, the Assembly of the Socialist Republic of Slovenia (skupščina) adopted a legislative package called the “legislation of independence” . This package included inter alia two legal acts that made the erasure possible: the Citizenship of the Repub- lic of Slovenia Act8 and the Aliens Act 9. Before the break-up of the Socialist Federative Republic of Yugoslavia (SFRY), each Yugoslavian had had both a federal Yugoslav citizenship and a republican citizenship (i . e . of the Socialist Republics of Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Montenegro, or Macedonia) 10. Two methods were used to create the new, independent Slov- enia’s body of citizens . First, in accordance with the principle of continuity, all those who already held the republican citizenship of the Socialist Republic of Slovenia were automatically granted citizenship of the new Republic of Slovenia (this group was mostly comprised of ethnic Slovenes) . Second, those who held the citizenship of another Yugoslav Republic but were registered as permanent residents in Slovenia were eligible to apply for Slovenian citizenship under conditions that were more lenient than the normal requirements for naturali- zation 11. For example, permanent residents seeking Slovenian citizenship were not subject to any language test requirements and had no obligation to renounce other citizenships that they may have held . The only other conditions governing this more lenient process were that applicants had to be citizens of another Yu- goslav republic, they had to have a permanent residence registered in Slovenia
6 Cf . Dedić / Jalušič / Zorn (eds .), The Erased (above fn . 3); Zorn / Lipovec Čebron (eds .), Once Upon an Erasure (above fn . 1) . 7 Cf . the working papers prepared within the University of Edinburgh School of Law CITSEE Project, available at
12 The time limit had started on 25 June 1991 and expired on 25 December 1991 . 13 See Article 40 of the Citizenship of the Republic of Slovenia Act . See also Alenka Meso- jedec Pervinšek, Predpisi o državljanih in tujcih z uvodnimi pojasnili . Ljubljana 1997, 24-29; and Decision of the Constitutional Court, No . U-I-147/92-9, of 6 May 1993 . 14 The exact number of people who obtained citizenship in accordance with Article 40 of the Citizenship of the Republic of Slovenia Act is 170,996 . Cf . Mesojedec Pervinšek, Predpisi o državljanih in tujcih (above fn . 13), 32 . 15 Mekina, A Monument to the Erased (above fn . 1), 50 . 16 Article 81, para . 2 of the Aliens Act . 6 Neža Kogovšek Šalamon in Slovenia the right to automatically obtain a permanent residence permit .17 These proposed amendments and their rejection in parliament reveals that the authorities were fully aware of the consequences that the Aliens Act would have on people’s legal status and that the language used in the Act was intentionally left vague, in order to allow for arbitrary interpretations of the law .18 In fact, the exact meaning of the provisions in Article 81, paragraph 2 of the Aliens Act was not specified by the Constitutional Court until 1999 . According to the court’s ruling, permanent residents of Slovenia who had not obtained Slovenian citizenship by 26 February 1992 were considered foreigners without any legal status in Slovenia . Such persons were required to apply for a new residency permit in order to stay in the country . These former permanent resi- dents had to apply, in other words, for a temporary residence permit for the purpose of taking up employment, studying, family reunification, etc ., or for a new permanent residence permit . In order to obtain a permanent residence permit, applicants were required to have lived in Slovenia for three years as holders of a temporary residence permit . Yet, the local administrative offices of the central government (upravne enote) had already started “updating” the registry of permanent residence, by termi- nating the affected persons’ rights to permanent residence in Slovenia as early as 26 February 1992 . Permanent residents whose applications for Slovenian citizenship had been declined were erased from the registry two months after the negative decision had been communicated to them . An internal instruction dated 4 June 199219 and signed by Slavko Debelak, who was then a State Secretary in the Ministry of the Interior, provided detailed instructions on how to conduct the updating or “cleansing” of the registry 20. Debelak’s Instruction was sent to all administrative units across Slovenia . The
17 Such a provision was adopted by Croatia, for example .Croatia ensured permanent resi- dence rights for all its permanent residents who held the citizenship of other former Yugoslav republics . Zakon o kretanju i boravku stranaca, Narodne novine Republike Hrvatske 53/1991, Article 79, 8 October 1991, available at
Ministry of the Interior also used an internal instruction to order local adminis- trative units to “bring to the state border”—a clear euphemism for expulsion— those who had lost their legal status in Slovenia on account of this “cleansing” 21. The order was issued without notifying the affected persons . Nor had any decision revoking these individuals’ right to reside in Slovenia been issued to them previously . Hence, these former permanent residents had no opportunity to seek judicial review of the orders for their expulsion in regular courts 22. For the most part, these people continued to live their lives uninformed about the imminent changes . Nevertheless, preparations for the deletion of their registrations began at the Ministry of the Interior and at the local level several months prior to February 1992, a fact that was revealed when several other internal instructions were made public in 2009 .23 A pair of internal instructions issued on 26 June 1991 and 30 July 1991 did not yet reveal how the erasure was to be carried out,24 but they did use a vague wording that indicated the insecure status of permanent residents who were not granted Slovenian citizenship .25 A set of guidelines for administrative units on how to deal with residency ap- plications from former permanent residents included in an internal instruction dated 5 February 1992—that is, nearly a month before the erasure—reveals that the state administration had already determined that persons who did not obtain Slovenian citizenship would be required to apply for new residence permits as foreigners . The problem, however, was that the permanent residents who would soon be required to file such applications were not aware of their situation26 . Only after their legal status as permanent residents in Slovenia had been revoked did some of the affected individuals receive letters “inviting” them to visit the administrative offices in order to discuss their legal status . When a person appeared at the administrative unit and presented a valid document affirming that person’s right to reside in Slovenia, holes were punched through the document in order to invalidate it . Once they heard about this destruction the ones mentioned below – was published in 2002 due to public pressure exerted on the authorities by the erased people and by human rights groups . 21 Internal instruction of the Ministry of Interior to the municipal administrative offices for internal affairs, No . 0016/4-1496-8 of 27 February 1992 . 22 This was assessed by the decision of the Constitutional Court, No . U-I-284/94, of 4 February 1999 (above fn . 3) . 23 The author of this article obtained several internal instructions on 5 May 2009 in the framework of the general public request for information of 19 March 2009 . One of them is the internal instruction of the Ministry of Interior No . 0016/9-s-26/3-92, of 5 February 1992 . 24 The term “to commit” is intentionally used, as the erasure neither “happened” nor did it “occur” . It was not a “natural disaster” for which no one was responsible, but rather a conscious act perpetuated by specific people . 25 Internal instruction of the Ministry of Interior No . 0016/8-s-010/14-91, of 26 June 1991; and internal instruction of the Ministry of Interior No . 0016/8-s-010/4-91, of 30 July 1991 . 26 Internal instruction of the Ministry of Interior No . 0016/9-s-26/3-92, of 5 February 1992 . 8 Neža Kogovšek Šalamon of residence permits, some of the more cautious permanent residents kept such documents to themselves, in order to preserve them . Those who did not find out that they had lost their legal status through such a formal meeting were confronted with this new fact on other occasions . Oftentimes affected individuals only learned about their loss of legal status by coincidence . They were informed, for example, when they sought social benefits after becoming unemployed, when they visited a doctor and found out that they no longer had health insurance or when they were prevented from enrolling in school .27 As of 2009, an investigation conducted by Slovenia’s Ministry of the Interior put the number of erased people at 25,671, 58 percent of them male, 42 percent female . 5,360, or 21 percent of them were children below the age of eighteen, many of whom were born in Slovenia . 1,302 of theerased persons had died since the erasure took place in 1992 . Of those still living, 10,943 had acquired legal status in Slovenia . This figure includes 7,313 people who acquired Slovenian citizenship (of whom 3,816 were granted citizenship by naturalization, while 3,497 obtained it due to the 2002 amendments to the citizenship act) . The other 3,630 people who had acquired a new legal status remained foreign citizens, but obtained permanent or temporary residence permits .28 According to the Slovenian Ministry of the Interior, 13,426 of the erased per- sons have still no legal status in Slovenia . It is not known how many of them are living in Slovenia sans papiers and how many are now abroad . However, it is clear that some of them have lived in the country without any legal status for the past 19 years . This is known because individuals continue to contact organizations dealing with the consequences of the erasure, asking for assist- ance in questions regarding their legal status . It is also known that some of the erased are currently living in Western European countries such as Germany, where they have obtained various precarious protected statuses (such as the German Duldung, a status that means that a person is tolerated as being in the country, but does not have any sort of residence permit) that do not offer them any long-term protection from deportation . A third, and probably the largest, group of the erased currently live in other successor states of the former Yugo- slavia . Most of them were able to acquire citizenship in accordance with the principle of continuity . They are outside Slovenia for various reasons . Some of them were deported . Others, who had left the country for another successor state, in order to visit family for example, were prevented from returning at the Slovenian border . Some were left stranded when the state borders were closed
27 Neža Kogovšek, Izbris kot kršitev pravno zavarovanih človekovih pravic, in: Idem / Petković (eds .), Brazgotine izbrisa (above fn . 1), 83-142, 123 . 28 This statistical information has been provided by the Slovenian Ministry of Interior on 24 January 2009 . Statistics are available at
29 Zorn, Vpisani kot delavci (above fn . 1), 21 . 30 Constitutional Court Decision No . U-I-284/94, of 4 February 1999 (above, fn . 3) . The Constitutional Court of Slovenia has issued two systemic decisions that found the two laws to be unconstitutional . In addition to that, the Constitutional Court has issued a number of decisions in favour of the erased, following constitutional complaints filed by individual erased persons . Constitutional Court Decisions No . Up-333/96 of 1 July 1999; No . Up-60/97 of 15 July 1999; No . Up-20/97 of 18 November 1999; No . Up-152/97 of 16 December 1999; No . Up-336/98 of 20 September 2001; and No . Up-211/04-21 of 2 March 2006 . 31 Zakon o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji (ZUSDDD), Uradni list Republike Slovenije, No . 61/1999 (the Legal Status Act), available at
In the years following 2000, the erasure became known to the wider public and the erased became more organized, establishing the Association of the Erased Residents of Slovenia . It was only then, in fact, that many of theerased realized that others shared their fate . Previously, many of them had thought that their erasure was actually a random administrative mistake . The ollectivec awareness of the community of the erased persons began to form in 2002 when Aleksandar Todorović, the initiator and later president of the association, publicized his phone number at a press conference and invited people to contact him in order to join the association 33. Before Todorović’s invitation, the erased could not develop a collective con- sciousness for two reasons . First, the individual act of obtaining information about their own legal status and the burdensome conditions imposed on their attempts to regain their standing as permanent residents had isolated them . The fact that many of the erased had not even been aware of the fact that they were part of an entire group that had been treated in the same manner only increased this sense of isolation . Second, in the earsy following the erasure, many of the victims were struggling in their precarious living conditions . Without legal status or access to social and economic rights, political engagement was very difficult .34 The Legal Status Act, adopted as an attempt to remedy the situation, was not without deficiencies . The time limit for filing anplication ap to regain permanent resident status was set at only three months . Furthermore, the law did not give the affected persons their permanent resident status back retroactively although this had been demanded by the Constitutional Court . By requiring that ap- plicants for permanent resident status prove their uninterrupted residence in Slovenia, the law also created two groups of erased persons – those who had left Slovenia and those who had stayed . The law, of course, put the former group in a less favourable position 35.
Amendments to the Citizenship of the Republic of Slovenia Act . These amendments provided the erased with the opportunity to acquire Slovenian citizenship under a more favourable regime, even though they had to meet the same condition – de facto uninterrupted residence in the Republic of Slovenia from the time of their erasure, regardless of their legal status in Slovenia at that time . See Zakon o spremembah in dopolnitvah zakona o državljanstvu repub- like Slovenije (ZDRS-Č), Official Journal of the Republic of Slovenia, No . 96/2002, available at
The Legal Status Act was submitted for a constitutional review and in 2003 the Constitutional Court once again ruled that parts of the law were not in accordance with the Slovenian constitution .36 The three-month period within which applications for permanent residence had to be filed was declared too short . The court also ruled that the law did not define the condition of “de facto uninterrupted residence” and that it left too much at the discretion of the ad- ministrative bodies tasked with evaluating the applications . Lastly, the court took umbrage at the fact that the new law did not enable erased persons who could not prove their de facto residence in Slovenia to regain their status as per- manent residents . Once again, the Constitutional Court ordered the legislature to remedy the situation within six months . This time, however, the decision was not acted upon for seven years .
The Role of the European Union in Addressing the Issue of the Erased
Slovenia’s accession to the European Union (EU) had a modest impact on the resolution of this issue . In its 1998 Progress Report for Slovenia, the Euro- pean Commission mentioned the fact that some former permanent residents still lacked legal status and suggested that a special act should be adopted in order to resolve this issue .37 In its 1999 report, the Commission noted that the Legal Status Act, which had been adopted in July 1999, provided a possibility for these people to file applications in order to regain permanent residence permits 38. However, it would be incorrect to assume that Slovenia’s adoption of the Legal Status Act had been due exclusively to the Commission’s 1998 report . The Constitutional Court’s first systemic decision on the matter of the erased, which had been issued in February 1999, played a part as well . It is, however, safe to conclude that the adoption of the Legal Status Act so quickly after the Constitutional Court decision was a consequence of the Slovenian authorities’ eagerness to meet the conditions set out by the European Commission . The problem of people without legal status was no longer mentioned in the Com- mission’s 2000 report on Slovenia, which indicates that the adoption of the Legal at
Status Act had, from the Commission’s perspective at least, resolved the issue 39. In the Commission’s report for 2001, the issue of people without legal status was mentioned once again, however . This time, the report stated that the im- plementation of the Legal Status Act had not proceeded as planned and that applications for permanent resident status were still being examined 40. In 2002, the National Assembly of Slovenia adopted amendments to the Citizenship Act41 that were aimed at fully satisfying the Commission’s requirements .42 In April 2003 the Constitutional Court of Slovenia issued decision U-I-246/02, which ruled parts of the Legal Status Act unconstitutional . The EU Commis- sion’s last progress report on Slovenia, which was issued in November 2003,43 did not even mention this decision, indicating that it went unnoticed . In 2004, Slovenia became an EU Member State . The Constitutional Court decision was left unimplemented for another seven years . Following Slovenia’s accession to the EU, it seems that the issue of peo- ple without regulated legal status was simply no longer a concern of the Commission . In fact, with the exception of the LIBE Committee of the Eu- ropean Parliament, which addressed the issue of the erased along with other civil liberties issues at a public hearing on 27 June 2007,44 EU bodies have remained silent on the issue . Despite the EU’s inaction, Slovenia’s treatment of the erased has frequently been condemned by the United Nations45 and the
39 Commission of the European Communities, 2000 Regular Report from the Commission on Slovenia‘s Progress Towards Accession, COM (2000) 712 final, 8 November 2000, available at Council of Europe, which has consistently called upon Slovenia to address the issue 46. Citizenship Laws in Other States in Transition When they declared their independence in the early 1990s, the Baltic States, the Czech Republic, Slovakia and the successor states of the former Yugoslavia all set forth rules in order to determine who was and who was not a citizen .47 The successor states of the former Yugoslavia based their citizenship policies on the principle of continuity . Thus, each successor state automatically granted citizenship to people who, prior to independence, had held the citizenship of the respective republic (provided that other conditions, such as actual residence in the republic on a certain date, etc ., were met) . In addition, people who had not held the citizenship of the republic in which they resided were given the option to apply for citizenship in that republic . In effect, therefore, these states based the acquisition of citizenship on the principle of descent (ius sanguinis) . The only exception was Bosnia and Herzegovina (and later Kosovo), which had the most liberal citizenship regime . Due in large part to the presence of the international community, under whose auspices important reforms were carried out, Bosnia and Herzegovina (and later Kosovo) automatically granted citizenship to those who had the citizenship of the former Yugoslav republic, as well as to those who had permanent (in Kosovo: habitual) residence on its territory 48. doc .nsf/(Symbol)/606c7119a9ba8155c1256d0100354060?Opendocument>; UN Human Rights Committee, Slovenia: Concluding Observations of the Human Rights Committee, CCPR/ CO/84/SVN, 25 July 2005, para . 10, available at As in Slovenia, questions regarding the legal status of permanent residents who were not able to acquire citizenship of the state where they resided arose in the other successor states of the former Yugoslavia, as well . The legal status of permanent residents was addressed in provisional acts adopted simultane- ously with or soon after citizenship legislation was enacted . An analysis of the post-independence citizenship regulations in the former Yugoslavia’s successor states reveals that Macedonia’s policies have the most in common with Slov- enia’s . Macedonia’s 1992 Act on Movement and Residence of Aliens introduced a provision identical to the Slovenian Aliens Act . The Macedonian law set a deadline for permanent residents to submit applications for Macedonian citi- zenship and stated that permanent residents who failed to acquire Macedonian citizenship, would face consequences two months after the application dead- line 49. This latter provision was interpreted in the same way as in Slovenia . The affected individuals were expected to resolve their legal status very quickly, and many were left stateless as a consequence .50 Croatia, in contrast, included in its Act on the Movement and Residence of Aliens (Zakon o kretanju i boravku stranaca) of 26 June 1991 provisions that both Slovenia and Macedonia would have needed in order to avoid erasures . Namely, Article 79 of the Croatian law states that persons who were considered Yugoslav citizens and who resided in the Republic of Croatia on the day that the Act went into effect, were to be recognized as permanent residents of Croatia .51 This provision ensured that former Yugoslav citizens residing in Croatia retained their right to live in the country even if they never became citizens . Reasons for the Erasure: Creation of a Nation-State, Discrimination and “Organized Innocence” Two key questions have to be investigated regarding the issue of the erased persons in Slovenia . First, we must consider why the Slovenian authorities arbitrarily interpreted the law in order to deprive such a large number of persons of their status as permanent residents; an action that had grave effects on those people’s lives . And second, we must determine how the erasure was possible at all . 49 Act on Movement and Residence of Aliens, Macedonian Official Gazette No . 36, 8 June 1992, available at A letter sent on 4 June 1992 by Mr . Igor Bavčar, who was then Minister of the Interior, to the government of Prime Minister Lojze Peterle reveals that the authorities were aware of the erasure’s negative effects at an early date .52 In that letter, Bavčar explained that there were two possible means of interpreting the legal situation of those permanent residents who had not acquired Slovenian citizenship . On the one hand, he wrote, these individuals could be considered to have acquired certain rights in the Republic of Slovenia (residence rights, property rights, family and private life-related rights, and others) . If this were the case, these rights had to be respected by recognizing the continuity of these people’s legal status in Slovenia . On the other hand, he suggested, these “acquired rights” could simply be “disregarded” . The Minister recommended the latter, and the way that the Aliens Act was subsequently interpreted shows that the government followed Bavčar’s proposal . The reasons for the government to take such drastic measures, which were later ruled unlawful and unconstitutional, are complex and not easy to identify . Nevertheless, it is clear that Slovenia’s situation in 1991 influenced the govern- ment . The country’s declaration of independence, its need to construct a body of citizens, the rising nationalism that was frequently directed against other members of what had until recently been a common state, as well as the politics of exclusion pursued by the new state all played into the government’s decision . Political theory identifies three preconditions for mass violations against the human rights of members of a state’s own population . First, orders have to be issued by the superiors of those participating in the violations . Second, the tasks that individual persons are expected to execute need to be small and divided among many . They should also be routine tasks . Third, the “objects” of the violations have to be depersonalized and dehumanized 53. The nationalist atmosphere in Slovenia at the time of the country’s declaration of independence eased the depersonalization and dehumanization of its non-Slovene residents . They were denounced as aggressors, traitors and manipulators who opposed independence 54. The state officials who carried out theerasure after being ordered to do so by their superiors believed that they were acting in accordance with the law 55. In so doing, they were able to see themselves as only a small part of the 52 Letter of the Ministry of Interior addressed to the Government of the Republic of Slovenia entitled “Odprta vprašanja o izvajanju Zakona o tujcih“ [Open questions on the execution of the Aliens Act], No . 0016/1-S-010/3-91 of 4 June 1992 . The letter is also published on the back cover of Zorn / Lipovec Čebron (eds .), Once Upon an Erasure (above fn . 1) . 53 Zorn, The Politics of Exclusion (above fn . 3), 101f . 54 Veronika Bajt, Več kot zgolj administrativno ustvarjeni “tujci”: Izbrisani in odmev nacionalistične konstrukcije drugega v simbolni ideji o “nas”, in: Kogovšek / Petković (eds .), Brazgotine izbrisa (above fn . 1), 193-214, 194, 202 . 55 Mekina, A Monument to the Erased (above fn . 1), 52 . 16 Neža Kogovšek Šalamon system . Everyone, and at the same time no one, could be considered responsi- ble . Thus, a situation that has been called “organized innocence” developed .56 Despite this rhetoric, the measure hurt the unwary and the most vulnerable . Most of the erased were ordinary workers who originated from other Yugoslav republics . Nevertheless, populist right wing political leaders in Slovenia fre- quently denounced and stereotyped the erased as aggressors against Slovenia’s independence and officers of the Yugoslav National Army . In fact, some right wing politicians have continued to do so 57. Such allegations are not substantiated by any statistical data, a fact that is clearly evident in the high number of women and children among the erased .58 Once the erasure had been committed, it was silently tolerated by the centre-left political leaders who held power between 1992 and 2004, and by the majority of the Slovenian population .59 It should not be overlooked that 171,000 persons from other Yugoslav repub- lics did acquire Slovenian citizenship, a number that far exceeded the authorities’ expectations .60 The erasure of those who did not obtain Slovenian citizenship can therefore be interpreted as an attempt to remove a “foreign” element from the populace and move towards national homogeneity 61. The erased, in other words, were attacked in place of the large number of non-Slovenians who had acquired Slovenian citizenship in accordance with Article 40 of the Citizen- ship Act .62 That the erased failed to acquire Slovenian citizenship has, in fact, been used as one of the main arguments by those who oppose any resolution of the problems caused by the erasure . They claim that the erased had a chance to resolve their legal status in Slovenia by obtaining citizenship, and that they 56 Vlasta Jalušič, Renouncing the Political Capacities: Organized Innocence and Erasure of Citizenship Responsibility in Post-Yugoslav Nation-state Building, in: Zorn / Lipovec Čebron (eds .), Once Upon an Erasure (above fn . 1), 95-114, 95 . 57 Ibid ., 109 . See also, for example, the transcript of the 14th regular session of the National Assembly of the Republic of Slovenia, of 3 March 2010 (the date the 2010 amendments to the Legal Status Act were adopted), available at 63 Mesojedec Pervinšek, Predpisi o državljanih in tujcih (above fn . 13), 33 . 64 Matevž Krivic, Politični zločin, ne “administrativna napaka“, Pravna praksa 26 (2007), n . 9, 21 . 65 Ibid ., 16 . 66 For the role of nationalizing nationalisms see also Bajt, Več kot zgolj administrativno ustvarjeni “tujci” (above fn . 54) . 67 Maja Semolič, Pravna problematika Zaposlovanja tujcev v Republiki Sloveniji, Faculty of Law Thesis . Ljubljana 1998, 23 . 18 Neža Kogovšek Šalamon more liberal policies suggest that permanent residents hailing from outside of Yugoslavia were not perceived as a threat to Slovenia’s national homogeneity by the Slovenian authorities . On the other hand, the psychological impetus to separate Slovenians from all other Yugoslavs remained strong . Before Slovenia’s independence, permanent residents of Slovenia who were citizens of other Yugoslav republics had had the same rights and obligations as the citizens of the Socialist Republic of Slovenia . This equality was enshrined in the Yugoslav Constitution, which provided equal treatment for all Yugoslav citizens, regardless of their place of residence within the federation . This provi- sion meant that citizens of other Yugoslav republics residing in Slovenia held more rights than non-Yugoslav foreigners who permanently resided there . Despite the fact that the citizens of other former Yugoslav republic continued to hold stronger legal ties to Slovenia and stronger residence rights than other foreigners, this state of affairs was turned upside down after independence . Applying the legal perspective a fortiori, also referred to as a maiore ad minus, it must be concluded that if non-Yugoslav foreign nationals maintained their right to reside in Slovenia, then citizens of the other former Yugoslav republics must have maintained this right as well . In fact, in its 1999 decision, the Constitutional Court of Slovenia ruled that the questions surrounding the legal status of citizens from other former Yugo- slav republics amounted to unconstitutional discrimination against them . The erasure also violated the constitution as regards the principle of legal certainty . Thus, the Constitutional Court ruled that citizens of the other republics of the former Yugoslavia who were registered permanent residents in Slovenia had no reason to expect that they would have to regain their legal status after Slovenia’s independence 68. According to the Court, therefore, the permanent residents’ expectation that their right to reside in Slovenia would continue to be valid was based on the principle of trust in the law . This principle is meant to ensure individuals that their legal situation will not change arbitrarily, yet this is just what happened to the people who were erased from Slovenia’s registers . The Constitutional Court also had to intervene against a set of laws intended to discriminate against the approximately 171,000 individuals who originated from other Yugoslav republics and whose applications for Slovene citizenship had been successful . Right-wing parliamentarians proposed that the National Assembly revoke these newly granted citizenships . They argued that double citizenship was unacceptable . Such initiatives were generally accompanied by nationalist rhetoric, yet none of them was approved by the Slovenian govern- ment’s legal department 69. There was even an attempt to hold a referendum, 68 Decision of the Constitutional Court of the Republic of Slovenia, U-I-284/94 of 4 Febru- ary 1999 (above, fn . 3) . 69 Zorn, We, the Ethno-citizens of Ethno-democracy (above fn . 18), 66 . The Erased Residents of Slovenia 19 calling for the revision and revocation of citizenships granted under Article 40 of the Citizenship Act . However, this was stopped by the Constitutional Court as unconstitutional 70. Adoption of Adequate Remedies? In Slovenia, as in many other legal systems, permanent resident status con- fers a wide range of rights . Though only Slovene citizens have the right to hold public office, the right to obtain public housing, and the right to vote at parlia- mentary and presidential elections, permanent residents do have the right to vote at municipal elections (though they cannot run as candidates) . Most of the other civil, social and economic rights necessary to maintain a decent standard of living are accessible to permanent residents, which means that individu- als deprived of permanent resident status face a number of grave problems . Thus, the erasure has caused the deterioration of family relations in numerous cases . By preventing members of the same family from living together, it has caused the break-up of some families . Theerasure has also caused considerable psychological and emotional distress . Losing their legal status as permanent residents has left some individuals unable to contribute to the family income. Erased parents have struggled to explain to their children why they cannot live the same lives as their classmates . In fact, the psychological disorders caused by the erasure have carried symptoms similar to post-traumatic stress disorder . These include high rates of depression, anxiety, and also illnesses connected to poverty, including tuberculosis . All these issues occur far more frequently among the erased than they do among the general population .71 Of course, the act of erasure itself infringed on private and family life because it included expulsion—or at least the threat thereof .72 The erased persons’ right to an effective remedy has also been violated, most significantly by the fact that the Constitutional Court’s 2003 ruling in favour of the erased persons was not implemented until 2010, when the Legal Status Act was amended . In other words, taking their case to the Constitutional Court was not an effective remedy for the erased, since it took more than seven years until action was taken on the Court’s ruling in favor of the erased .73 70 See the Decision of the Constitutional Court No . U-I-266/95 of 20 November 1995 . 71 For more information on the state of health of the erased see Uršula Lipovec Čebron, Izbri- sane pravice – nevidne bolezni: Analiza zdravstvenih posledic izbrisa, in: Kogovšek / Petković (eds .), Brazgotine izbrisa (above fn . 1), 149–188 . 72 Ibid . Cf . also Zorn, The Politics of Exclusion (above fn . 3), 123-127 . 73 Kogovšek, Izbris kot kršitev pravno zavarovanih (above fn . 27), 103ff . 20 Neža Kogovšek Šalamon On 13 July 2010, the European Court of Human Rights issued a decision in the case “Kurić and others vs . Slovenia” . The Court confirmed that the plaintiffs’ right to respect for their private and family life (Article 8 of ECHR) and also their right to effective remedy (Article 13 of ECHR) had been violated by the erasure 74. The court did not declare the right to property, protected by Article 1 of Protocol 1 to ECHR, to have been violated, because the plaintiffs had not yet exhausted their recourse to domestic remedies . Neither did the Court examine the applicants’ claim that Article 14, which prohibits discrimination, had been violated in relation to Article 8, because the violation of Article 8 had already been established . The plaintiffs’ other claims, which had been filed at the Eu- ropean Court of Human Rights on 4 July 2006, were declared inadmissible in 2007 .75 Thus, in its unanimous decision of 2010, the European Court found that in failing to implement the Constitutional Court decision of 2003, the state of Slovenia had interfered with the plaintiffs’ private and family life and therefore violated both Article 8 and Article 13 of the European Convention of Human Rights . Ruling that the consequences of theerasure amounted to a “continuous violation”, the Court overcame the ratione temporis obstacle that had prevented it from assessing the act of erasure, which took place before the ECHR entered into force on Slovenian territory . Because the Slovenian Constitutional Court’s April 2003 decision regarding the constitutionality of the Legal Status Act had remained unimplemented until 2010, this period of “continuous violation” clearly fell within the court’s competence . Although, as of June 2011, the judgement of the ECHR is not yet final, its preliminary ruling raises questions about when violations committed against a victim have effectively been remedied . In the course of the proceedings before the Strasbourg court, the complaints of two of the ten plaintiffs, who had already been retroactively granted permanent residence permits, were declared inad- missible . The Court found that these claimants could no longer be considered victims because “the material facts the applicants complained of have ceased to exist” . Furthermore, it ruled that issuing retroactive residence permits inline with the Constitutional Court’s decision “constitutes an adequate and sufficient remedy” 76. The court backed this decision by invoking earlier cases brought against Latvia, where the state had eventually offered permanent resident status 74 Kurić and others vs . Slovenia (above fn . 5) . The case was originally named Makuc and others vs . Slovenia; the first applicant, Milan Makuc, passed away in 2008, without living to see the result of his application . 75 See European Court of Human Rights, Makuc and others vs . Slovenia, Application No . 26828/06, Partial Decision on Admissibility, 31 May 2007, available at Concluding Remarks The erasure has marred Slovenian independence since its beginning . While the period until 1999 was characterized by silence on the issue and the period until 2008 by denial, official state rhetoric sinceate l 2008 has finally shifted from a discourse of exclusion to a discourse based in human rights and the rule of law . Katarina Kresal, who took the office of Minister of the Interior in 2008, subsequently announced a two-step policy aimed at addressing the situation of the erased . As a first step, Kresal promised to issue supplementary decisions to those erased persons who had already regained their status as permanent residents, a move that was in line with the Constitutional Court’s ruling . The aim of this first step was to legally recognize that the erased individual’s permanent residence permits had been valid since 26 February 1992 (i . e . retroactively) . According to Kresal’s promise, 6,381 supplementary decisions were issued by late 2009 .78 As a second step, preparations were made for the amendments to the Legal Status Act that were necessary for the implementation of the 2003 Constitutional Court decision . Accordingly, the 2010 amendments to the Legal Status Act enabled several groups of erased persons, who de facto had not resided in Slovenia con- 77 Cf . e . g . European Court of Human Rights, Shevanova vs . Latvia, Application No . 58822/00, Judgment, 7 December 2007, paras . 46-50, available at 79 The opposition parties wanted to prevent the act from entering into force by calling for a referendum . The Constitutional Court of Slovenia prohibited the referendum by finding that the law was to be considered the implementation of the 2003 Constitutional Court decision and that repealing it by a referendum would be unconstitutional . See Decision of the Consti- tutional Court, No . U-II-1/10-25, of 10 June 2010, available at An additional question is whether or not the applicants should have to actu- ally apply for a residence permit in Slovenia . TheLegal Status Act clearly places this obligation on the applicants, because residence permits are not issued ex officio . Yet, the court ruling did not impose any such obligation on the erased . The issue is of importance for three out of the eight plaintiffs whose application for permanent resident status has been declared admissible . This is because these three applicants have not applied for residence permits in Slovenia since their erasure . If the previously cited case concerning Latvia is to be considered a legal precedent here, however, then the state of Slovenia will be obliged to offer the applicants new residence permits in order for the state’s remedy to be deemed adequate 84. Although the 2010 Legal Status Act is far from perfect, developments in re- cent years have given reason for optimism that the erasure will be resolved in a satisfactory manner . Today, although the discourse has changed and concrete steps to remedy these problems have been undertaken, several questions remain . Will individuals and families who were expelled from Slovenia or who were forced to leave due to unbearable living conditions, actually be able to return and resume their arbitrarily interrupted lives? Will the erased receive compensation? Up to now, all such claims have been denied by the Slovenian courts, due to the expiration of the statutes of limitation 85. The question about compensation can be extended to needs to redress specific types of harm suffered by victims due to lost educational and work opportunities, health deterioration and the infringement of personal security . Finally, there si the issue of the responsibility of those public office holders and state officials who first ordered and carried out the erasure, and then failed to remedy the problems that were caused by it . The findings presented in this article show that measures that deprive people of their legal status should be accorded special attention, since countries that otherwise refrain from serious human rights violations may easily resort to measures such as the erasure in Slovenia . A closer look at today’s pattern of hu- man rights violations suggests that state authorities are far too aware of the fact that they can prevent people from accessing specific rights by simply depriving them of the necessary legal status . Using the method of “chain reasoning”, state authorities justify the lawful denial of basic rights on the grounds that certain persons do not hold a residence permit or that they did not even have permis- 84 Cf . Shevanova vs . Latvia (above fn . 77), para 47 . 85 See e . g . Supreme Court of the Republic of Slovenia, Judgment No . II IPS 315/2010, of 21 October 2010, available at 86 Ryszard Cholewinski, Irregular Migrants: Access to Minimum Social Rights . Strasbourg 2005, 31 . 87 Vlasta Jalušič, Zlo nemišljenja . Arendtovske vaje v razumevanju posttotalitarne dobe in kolektivnih zločinov . Ljubljana 2009, 113 .