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Legal Personhood Between the Erasure and The Università degli studi di Palermo Universitat de Girona Dottorato in “Diritti Umani, Programa de doctorado en Evoluzione, Tutela e Limiti” “Derecho, Economía y empresa” Dipartimento di Giurisprudenza Facultat de Dret IUS/20 LEGAL EXCLUSIONISM: LEGAL PERSONHOOD BETWEEN THE ERASURE AND THE RULE OF LAW IL DOTTORE IL COORDINATORE MATIJA ŽGUR Chiar.ma Prof.ssa ISABEL TRUJILLO IL TUTOR IL CO-TUTOR Chiar.mo Prof. BRUNO CELANO Chiar.mo Prof. JORDI FERRER BELTRÁN CICLO XXIX ANNO CONSEGUIMENTO TITOLO 2017 TABLE OF CONTENTS PROLOGUE. THE MANY FACES OF THE ERASURE 4 “People don’t understand that citizenship is something different from permanent residence” 4 “12 Years an Erased” 6 A citizen in name only 8 CHAPTER 1. LEGAL EXCLUSIONISM: A NEW WAY OF LOOKING AT OLD PROBLEMS 11 PART I. LEGAL STATUS & LEGAL PERSONHOOD 19 INTRODUCTION 19 CHAPTER 2. LEGAL STATUS 21 2.1. Status as a “special condition of the ab-normals” 25 2.2. “From status to contract” 28 2.3. Status as a matter of capacities and incapacities 32 2.4. Status as a matter of “commodious exposition” 34 2.5. Status as an intermediary legal term 36 2.6. Status as a sensible set of rights and duties 39 CHAPTER 3. LEGAL PERSONHOOD 45 3.1. The person as an intermediary legal concept? A proposal 46 3.1.1. Specifically on legal capacity 50 3.2. Who is law for? 56 3.2.1. A formalist approach to personhood 60 The (mis)fortunes of the formalist approach 64 3.2.2. Substantive approaches to personhood 67 The Rationalists 68 The Religionists 72 The Naturalists 77 3.3. New conceptualizations in the personhood debate 81 Juridical Humanism & its insufficiencies 82 The necessity of conceptual refinements: the introduction of non-personal subjects of law 85 CONCLUSION 90 PART II. LEGAL PERSONHOOD & THE ERASURE 93 INTRODUCTION 93 CHAPTER 4. A RECONSTRUCTION OF THE LEGAL FRAMEWORK 98 4.1. Citizenship & permanent residence in the former SFRY 99 4.2. The transition: legal foundations for the independent state 102 4.3. The “Independence legislation” 106 The Citizenship Act 106 Subsequent amendments to the Citizenship Act: “The Exclusion Clauses” 110 The Aliens Act 111 CHAPTER 5. THE LEGAL MECHANISMS OF THE ERASURE 115 5.1. Disenfranchisement as a precursor to the Erasure 116 5.2. The Erasure in the narrow sense (deprivation of residency status) 127 Preparations and the first instructions 128 Instructions authorizing the Erasure 130 5.3. The unlawfulness of the Erasure 132 The first “systemic” decision: the unlawfulness of the Aliens Act 136 The second “systemic” decision: an attempt at remedying the inadequacies of the Legal Status Act 140 The final resolution: Kurić and others v. Slovenia 143 CHAPTER 6. THE CONSEQUENCES OF THE ERASURE & LEGAL PERSONHOOD 148 6.1. Precariousness of legal personhood 149 6.2. Consequences for the status of a person 157 6.3. The interconnection of legal statuses: an inverted pyramid or a web? 167 CONCLUSION 171 PART III. THE ERASURE & THE RULE OF LAW 175 INTRODUCTION 175 CHAPTER 7. THE RULE OF LAW 180 7.1. Introduction 180 7.2. The requirements of the Rule of Law 188 7.2.1. Generality 188 7.2.2. Publicity 191 7.2.3. Prospectivity 195 7.2.4. Intelligibility 197 7.2.5. Consistency 200 7.2.6. Practicability 202 7.2.7. Constancy 203 7.3. Congruence 204 CHAPTER 8. ERASURE AS AN AFFRONT TO THE RULE OF LAW 214 8.1. Introduction 214 8.2. Erasure & the Rule of Law requirements 214 8.2.1. Generality 214 8.2.2. Publicity 216 8.2.3. Prospectivity 219 8.2.4. Intelligibility 221 8.2.5. Consistency 223 8.2.6. Practicability 224 8.2.7. Constancy 225 8.3. Congruence 226 CONCLUSION. THE PERSON IN LIMBO: LEGAL EXCLUSIONISM, ERASURE & THE RULE OF LAW 231 REFERENCES 243 ABSTRACTS 257 Abstract 257 Riassunto 259 Resumen 261 ACKNOWLEDGMENTS 263 PROLOGUE. THE MANY FACES OF THE ERASURE “People don’t understand that citizenship is something different from permanent residence” 1 Ana (that is not her real name), was born in Velika Kladuša (now Bosnia and Herzegovina) in 1958. There she completed her elementary education and vocational training. In 1978 she moved to Ljubljana (Slovenia) where she was able to find a job. After only three months, her employer asked her to register a permanent residence in Ljubljana because they were going to offer her a permanent contract. Soon after establishing residence in Slovenia, Ana met her future husband and they had three children together. After her husband got a civilian job with the military they were able to move into a military-owned apartment. In 1990, at the beginning of Slovenian independence process, Ana filed for divorce (she said she and her husband just weren’t meant to be because they saw the world too differently) and she was given both custody over her children as well as the apartment. In 1991, when she was supposed to apply for citizenship, Ana decided not too, for she was told that it was not obligatory. She thought to herself: I’ve lived here for so many years, I had permanent residence registered in Ljubljana, my children were citizens and Slovenes through their father, and I was part of that family, the mother of three children and I had a regular job. ... I couldn’t know that I was going to lose my rights if I didn’t take citizenship. Indeed, Ana had no way of knowing that her residency status will be invalidated without any prior notification. Here is how she recalls the moment she found out she had been erased: In 1993 I went to Mačkova Street to get a certificate concerning a shared household which I had to submit to the center for social work. The clerk asked me for my personal document. When I gave her my ID card, she took it, punched it and instructed me to go to the office for foreigners. When I wanted to get the certificate and didn’t get it, I knew that something was seriously wrong ... I couldn’t understand what had happened that I was suddenly left without permanent residence. Until then, I had obtained and extended all my documents in Ljubljana, but when the country became independent this stopped. My passport and driver’s license, both 1 The case presented here is taken from Kogovšek Šalamon et al. 2010: 251–255. 4 issued in Ljubljana, had already expired by that time. Only then did I begin to understand that I no longer had legal status in this country. Although she was able to keep the apartment after her divorce, Ana nevertheless was unable to purchase it because she had been erased and did not have Slovenian citizenship. After realizing that her condition indeed presented a problem, in the summer of 1992 she finally applied for citizenship. Ana, however, still could not purchase the apartment – not even on behalf of her children who were Slovenian citizens. First of all, she didn’t have any valid documents, so she couldn’t obtain a bank loan even though at that time she still had a permanent job. The other reason was that the Ministry of Defence, the new owner of the apartment, sued her for unpaid rent. The court procedure lasted for seven years, during which time the Ministry attempted to evict her. In the end, the Ministry lost the case since the debt was accumulated when her ex-husband was the official tenant. Ana was deeply aware how lucky she was in retaining her job – and a permanent one at that – despite having been erased. The Erasure was nevertheless also felt in this segment of her life: The awkward thing was, that without a personal document, I couldn’t withdraw my wages which were paid to my bank account. Until 1995 I didn’t have problems because I withdrew money from ATMs. The problem emerged when the bank card had to be replaced, and, naturally, I had to submit a personal document. I gave my old ID card, but they didn’t consider it a valid document. How could I get my wages? Agreeing with her employer to be paid “cash-in-hand”, Ana was able to overcome this problem as well. But what of it if her salary was so low that it didn’t even allow her to provide for her children and herself? The pressure under which she had lived was eventually felt by her three children as well. The hardship had had an especially profound effect on her older daughter. She was really hurting because of this; she quarrelled with everyone, she was angry with the teachers, she went totally berserk. Her marks were bad, she barely managed to complete elementary education, and she couldn’t enroll anywhere after that. It was difficult for her; she wanted to be like her friends, her schoolmates but she couldn’t. When she was in the eighth grade she reproached me, saying that I wasn’t able to take care of her, that she didn’t need me, and that it was my fault that she couldn’t enroll anywhere. Although her children were Slovenian citizens through their father and received child benefits, Ana herself, even though a single parent, could not obtain any kind of social assistance on the account of her “status-less” condition. Ana eventually fell ill due to the psychological pressure of living on the edge and without valid documents. She was advised by her doctor to take a few months of sick leave, but was 5 rejected by her employer.
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