Q&A CONCERNING THE ERASED

1. a) The erasing and the erased – in brief

The Republic of Slovenia “erased” a number of its inhabitants (the latest statistics from 2009 counted 25,671 erased persons) in 1992. Roughly half were women and children. Many of them experienced grave hardship as a result.

The erasing meant that citizens of other republics of former Yugoslavia with a residence permit in Slovenia who did not apply for Slovenian citizenship lost the right to permanent residence in the country without any legal basis or any decision being served. They became illegal “aliens” in Slovenia who had to arrange the status of a legal alien anew. Citizens of third countries (for example Germany, Italy, Switzerland etc.) who had a residence permit, as did the later erased persons, did not have to do anything as after a deadline expired they automatically became aliens with permanent residence in the Republic of Slovenia. The erased were thus discriminated compared to other foreigners. The erasing denied them of social and other rights in a country in which they had permanent residence and in which many of them had been born and attended school; some were put in centres for the deportation of aliens and/or deported from the country.

The Constitutional Court of the Republic of Slovenia has twice established that an unconstitutional situation was involved, namely that the erasing was illegal and that the government failed to address its consequences properly. The unconstitutionality and illegality of the erasing has been noted by the Constitutional Court indirectly in seven other cases.

The Republic of Slovenia is only now, in 2010, eighteen years after the erasing and eleven years from the first and seven from the second decision of the Constitutional Court (the latter also being the second oldest unfulfilled decision of the Constitutional Court) putting right the injustice brought upon the erased and closing a painful chapter in the history of our young country.

1.b) Who are the erased (statistical data as at 24 January 2009 on persons losing permanent residence in the Republic of Slovenia as of 26 February 1992)?

1. Persons losing their permanent residence in the Republic of Slovenia as of 26 February 1992

1.1. By sex

SEX / NUMBER
MEN / 14775
WOMEN / 10896
TOTAL / 25671

Persons erased from the register of permanent residents of the Republic of Slovenia on 26 February 1992, by sex

MENWOMEN

1.2. By age group

AGE GROUP / NUMBER
up to 18 / 5360
18-29 / 5008
30-39 / 6496
40-49 / 4032
50-59 / 2795
above 60 / 1980
TOTAL / 25671

Persons erased from the register of permanent residents of the Republic of Slovenia on 26 February 1992, by age group (1992)

up to 18above 60

1.3. By age group and sex

AGE GROUP / MEN / WOMEN / TOTAL
up to 18 / 2764 / 2596 / 5360
18-29 / 2562 / 2446 / 5008
30-39 / 4083 / 2413 / 6496
40-49 / 2543 / 1489 / 4032
50-59 / 1855 / 940 / 2795
above 60 / 968 / 1012 / 1980
TOTAL / 14775 / 10896 / 25671

Persons erased from the register of permanent residents of the Republic of Slovenia on 26 February 1992, by sex and age group (1992)

up to 18above 60

WOMEN

MEN

2. Legal history of the erasing (up until the Act Amending the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia)

The Aliens Act (Official Gazette of the Republic of Slovenia, nos. 1/91-I, 44/97, 50/98-Decision of the Constitutional Court, 14/99-Decision of the Constitutional Court), which was one of the laws establishing independence and entered into force on 25 June 1991, specified that citizens of former Yugoslavia who were citizens of republics other than Slovenia who do not apply for citizenship of the Republic of Slovenia in accordance with Article 40 of the Citizenship of the Republic of Slovenia Act within six months of it entering into force or who receive a negative decision will be subject to provisions of the Aliens Act two months after the expiry of the deadline in which they could have applied for citizenship of the Republic of Slovenia or from the final status of the decision (second paragraph of Article 81 of the Aliens Act). Given the abovementioned legal provision, the Aliens Act began to apply to citizens of other republics of former Yugoslavia who did not apply for citizenship of the Republic of Slovenia under Article 40 of the Citizenship of the Republic of Slovenia Act by 26 February 1992. As of that date, they should have applied for a residence permit in Slovenia in line with the Aliens Act.

Citizens of other republics of former Yugoslavia with permanent residence in Slovenia were erased from the register of permanent residents on the date when the Aliens Act began to apply to them.

The 1991 Aliens Act specified no specific or different conditions for obtaining permanent residence in Slovenia with regard to other aliens for citizens of former Yugoslavia who were citizens of other republics and did not apply for Slovenian citizenship by the set deadline or were issued a negative decision. Due to the above, the Constitutional Court of the Republic of Slovenia in the proceedings for constitutional review by decision no. U-I-284/94 dated 4 February 1999 decided that the Act was in conflict with the Constitution and ordered the legislator to eliminate the conflict within six months of the decision of the Constitutional Court being published in the Official Gazette of the Republic of Slovenia.

On 30 July 1999, Official Gazette of the RS no. 61/99 published the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia, which entered into force on 28 September 1999 and stipulated the conditions to obtain permanent residence for citizens of other successor states of former Yugoslavia. Under the Act, citizens of other successor states of former Yugoslavia could obtain permanent residence subject to the condition that they had permanent residence in Slovenia as at 23 December 1990 and that they were actually living in Slovenia as of that date, and that they lived in Slovenia on 25 June 1991 and had been living without interruption in the country as of that date. The Act further stipulated that such aliens must apply for permanent residence within three months of it entering into force, i.e. until 28 December 1999, unless they had applied for citizenship under Article 40 of the Citizenship of the Republic of Slovenia Act and had been issued a negative decision. In such a case, they could submit an application within three months of the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia entering into force or within three months of the final status of the decision if the date of the final status was after the Act entering into force. A permanent residence permit issued under the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia applied prospectively, i.e. as of the permit’s serving, as did a permanent residence permit issued under the Aliens Act.

By decision no. U-I-246/02-28 of 3 April 2003 the Constitutional Court decided on the agreement with the Constitution of certain provisions of the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia and in Item 8 of the operative part of the decision it stated as follows: “A permanent residence permit, issued on the basis of the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia or on the basis of the Aliens Act (Official Gazette of the Republic of Slovenia, nos. 1/91 and 44/97) or the Aliens Act (Official Gazette of the Republic of Slovenia, no. 61/99) establishes the permanent residence of citizens of other republics of former Yugoslavia in the Republic of Slovenia as of 26 February 1992 if they were erased from the register of permanent residents on that date. The Ministry of the Interior shall ex officio issue them supplementary decisions on establishing their permanent residence in the Republic of Slovenia as of 26 February 1992.”

Constitutional Court decision no. U-I-246/02-28 of 3 April 2003 inter alia annulled provisions of the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia specifying the three-month deadline for submitting an application for a permanent residence permit because the three-month deadline was too short in the Court’s opinion. Given the above, the Constitutional Court decision extended the deadline for submitting an application for a permanent residence permit under the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia, based on which permanent residence may be obtained by citizens of other successor states of former Yugoslavia who had registered permanent residence in Slovenia as at 23 December 1990 and had actually been living in Slovenia as of that date or who have lived in Slovenia without interruption since its independence on 25 June 1991 if they had not previously obtain a permanent residence permit.

The Constitutional Court also established that the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia was in conflict with the Constitution because it did not acknowledge permanent residence for citizens of other republics of former Yugoslavia who were erased from the register of permanent residence on 26 February 1992 as of that date because it did not regulate the obtaining of permanent residence by those citizens of other successor states of former Yugoslavia who were expelled and because it did not set the criteria for determining an unspecified legal term of actual living. The legislator was ordered to eliminate the conflicts within six months of the decision being published in the Official Gazette of the Republic of Slovenia. Constitutional Court of the Republic of Slovenia decision no. U-I-246/02-28 was published in Official Gazette of the RS no. 36/03 of 16 April 2003.

3. What did the Act Amending the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia (“the Act”) bring?

The Act’s main purpose was to redress wrongs and restore human dignity to the erased in line with the decision of the Constitutional Court of the Republic of Slovenia no. U-I-246/02-28 dated 3 April 2003.

The Act stipulates the cases in which citizens of other republics of former Yugoslavia, who were erased when the Aliens Act started to apply to them, had a permanent residence permit and registered permanent residence retroactively, i.e. as of the erasing of permanent residence.

In line with the Constitutional Court decision, the Act further stipulates the cases where the expulsion has no effect on the obtaining of a permanent residence permit and does not interrupt the condition of actual living in Slovenia.
The Act also laid down the criteria for determining the condition of actual living in Slovenia and those absences from Slovenia that do not interrupt the condition of actual living in Slovenia.

In determining the condition of actual living, the legislator opted for a relatively general definition of actual living and enumerated examples of an absence from the country which do not interrupt the condition of actual living. The determining of actual living is thus founded on a basic definition according to which “the Republic of Slovenia is the centre of vital interests” where an individual’s essential personal, family, economic or social needs are being met. Such a definition enables the competent authority to check when determining the condition of actual living whether an alien has selected Slovenia as the country to which she or he links the essential elements of living such as work, family etc. In the definition of actual living, the legislator selected an alternative listing (the use of “or”) instead of a cumulative listing (the use of “and”) as the latter version would, given the problem of presenting evidence and the variety of life situations of the erased, make meeting the said legal condition virtually impossible.

Due to the specific situation of citizens of other republics of former Yugoslavia who were erased from the register of permanent residents when the Aliens Act began to apply to them, in line with the said Constitutional Court decision and the case law to date the Act also sets out the circumstances that have no effect on an interruption of actual living. In accordance with the Act, the condition will be met if a person is sent abroad to work, study or for treatment or if she or he is employed on a ship with a homeport in the Republic of Slovenia. Such an absence preserves the link with the domicile country because of the condition that the work, study or treatment was a referral by a legal entity from the Republic of Slovenia or, in the case of a minor, the parents. Actual living would also not be interrupted in line with the Act if a person left Slovenia due to circumstances stemming from the erasing from the register of permanent residents of the Republic of Slovenia when the Aliens Act began to apply to them. Actual living would also not be interrupted if a person left Slovenia because they could not obtain a permanent residence permit in the Republic of Slovenia due to non-meeting of the conditions and the application for such a permit had been turned down, dismissed or the proceedings had been suspended or if a person was unable to return to Slovenia due to the war in other successor states of former Yugoslavia or for health reasons.

The condition of actual living would also be met if a person was expelled from the country or denied entry to it, except in cases when the expulsion or denial of entry was a result of an imposed secondary sentence of expulsion of an alien from the country for committing a criminal offence or if entry was denied for reasons of public order, violent acts, public health or the adopted international obligations of the Republic of Slovenia.

Certain novelties introduced by the Act are discussed in answer to the next question (the matter of issuing permanent residence permits to children of the erased and issuing special decisions to citizens of the Republic of Slovenia who were citizens of other republics of former Yugoslavia with permanent residence in Slovenia at the time of its declaration of independence, later erased when the Aliens Act began to apply to them, and subsequently granted citizenship of the Republic of Slovenia without being issued a permanent residence permit beforehand).

The competent authority for issuing permanent residence permits under the previous Act was the Ministry of the Interior, which in practice had proved to be a deficiency. Therefore, the Act transferred the competence to issue permanent residence permits to administrative units and designated the Ministry of the Interior as the body of appeal. The legislator opted for such a solution due to the fact that administrative units can more easily and at a lower cost determine the basic condition underlying the issue of a permanent residence permit, i.e. actual living in the Republic of Slovenia. The Ministry of the Interior will bring to a conclusion all proceedings initiated before the new Act was published in the Official Gazette of the Republic of Slovenia.

The Act also set a new deadline for submitting an application for a permanent residence permit because the Constitutional Court annulled the three-month deadline for submitting an application, deciding it was too short. (Consequently, the deadline for submitting an application under the old Act has been extended which is disputable from the aspect of the determinability and predictability of the law.) Under the Act, an alien not in possession of a permanent residence permit can submit an application for permanent residence within three years of it entering into force, which is an appropriate and sufficient period in the legislator’s opinion. Constitutional Court decision no. U-II-1/04 of 26 February 2004 on the agreement with the Constitution of a request for a referendum states that setting a six-month deadline for submitting an application for permanent residence is in itself not in conflict with the Constitution, which led the legislator to the opinion that a three-year deadline is in agreement with the Constitution.

The Act is a complex expert matter and the Ministry of the Interior therefore plans to implement measures to facilitate application of the Act, namely:

- a toll-free helpline for legal assistance;

- informing eligible persons living abroad via the media;

- adopting professional guidelines to facilitate the procedure; and

- training the staff of administrative units.

4. Does the Act Amending the Act Regulating the Legal Status of Citizens of Former Yugoslavia Living in the Republic of Slovenia (“the Act”) expand the range of eligible persons and, if so, how and why?

The Act regulates the position of children of the erased and of those erased who later became citizens of the Republic of Slovenia but had no permanent residence permit. Unless their position was regulated by law, they would be in a worse position than those persons who obtained permanent residence permits and to whom supplementary decisions have been issued in accordance with Item 8 of the decision of the Constitutional Court of the Republic of Slovenia no. U-I-246/02 dated 3 April 2003.

As elsewhere, the legislator followed the principles of constitutional law enshrined in the case law concerning the erased made by the Constitutional Court and applied them mutatis mutandis to situations which must be taken into account for a comprehensive solution of the issue of the erased (notably from the aspect of equality before the law – Article 14 of the Constitution).

  • CHILDREN OF THE ERASED: The old Act did not regulate the status of children born after 25 June 1991. Therefore, such children did not have a registered status in the Republic of Slovenia (unless given one under the Aliens Act), which was a violation of the Convention on the Rights of the Child (Official Gazette of the SFRY – international agreements – no. 15/90 and Official Gazette of the Republic of Slovenia – international agreements – no. 9/92, in particular with the principle of the primary consideration of the best interests of the child under the first paragraph of Article 3 thereof. The Act enabled children of the erased (born in the Republic of Slovenia after 25 June 1991 and actually living in Slovenia since birth) to apply for a permanent residence permit in Slovenia and to be granted permanent residence retroactively, at the address of their parents at the time.
  • CITIZENS OF OTHER REPUBLICS OF FORMER YUGOSLAVIA ERASED FROM THE REGISTER OF PERMANENT RESIDENTS WHO WERE LATER GRANTED CITIZENSHIP OF THE REPUBLIC OF SLOVENIA (but never had a permanent residence permit) – they may issue an application for the issue of a special decision applying retroactively within three years of the Act entering into force. This is a matter of the equal legal treatment of all erased persons for the entire duration of the erasing.

-Article 1 of the Act specifies the conditions for the issue of a permanent residence permit to those aliens who were citizens of other republics of former Yugoslavia when Slovenia declared independence on 25 June 1991. Under the old Act, a condition was citizenship of another successor state of former Yugoslavia at the time of deciding on the application which proved to be a deficiency in the practice of administrative bodies. There have been cases of aliens who were citizens of other republics of former Yugoslavia at the time of Slovenia declaring its independence later obtaining a different citizenship (not being citizens of a successor state of former Yugoslavia), meaning that they could not obtain a permanent residence permit under the old Act. There have also been cases of aliens who were citizens of other republics of former Yugoslavia at the time of Slovenia declaring its independence not being able to prove citizenship of a successor state of former Yugoslavia at the time of deciding on their application in the proceedings for the issue of a permanent residence permit, meaning that they could not obtain a permanent residence permit under the old Act. Constitutional Court decision no. U-I-246/02 of 3 April 2003 uses the term citizens of other republics of former Yugoslavia and not citizens of successor states of former Yugoslavia in both the operative part and the grounds.