ITEMID: 001-111634
LANGUAGEISOCODE: ENG
RESPONDENT: SVN
BRANCH: GRANDCHAMBER
DATE: 2012
DOCNAME: CASE OF KURIĆ AND OTHERS v. SLOVENIA
IMPORTANCE: 1
CONCLUSION: Preliminary objections dismissed (Article 35-1 - Effective domestic remedy;Continuing situation;Article 35-3 - Ratione materiae;Ratione temporis);Preliminary objection dismissed (Article 34 - Victim);Preliminary objection allowed (Article 35-1 - Effective domestic remedy);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary damage - reserved;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Anatoly Kovler;Angelika Nußberger;Corneliu Bîrsan;David Thór Björgvinsson;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Jean-Paul Costa;Josep Casadevall;Luis López Guerra;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 15. The first applicant, Mr Mustafa Kurić, was born in 1935 and lives in Koper (Slovenia). He is a stateless person. The second applicant, Mr Velimir Dabetić, was born in 1969 and lives in Italy. He is a stateless person. The third applicant, Ms Ana Mezga, is a Croatian citizen. She was born in 1965 and lives in Portorož (Slovenia). The fourth applicant, Mrs Ljubenka Ristanović, is a Serbian citizen. She was born in 1968 and lives in Serbia. The fifth applicant, Mr Tripun Ristanović, the son of the fourth applicant, was born in 1988 and is currently living in Slovenia. He is a citizen of Bosnia and Herzegovina. The sixth applicant, Mr Ali Berisha, was born in 1969 in Kosovo. According to the most recently available data, he is a Serbian citizen. He currently lives in Germany. The seventh applicant, Mr Ilfan Sadik Ademi, was born in 1952. He lives in Germany and is now a Macedonian citizen. The eighth applicant, Mr Zoran Minić, was born in 1972. According to the Government, he is a Serbian citizen.
16. The Socialist Federal Republic of Yugoslavia (“the SFRY”) was a federal State composed of six republics: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Montenegro and Macedonia. SFRY nationals had “dual citizenship” for internal purposes, that is, they were citizens both of the SFRY and of one of the six republics. Until 1974, federal citizenship prevailed over republic citizenship: republic citizenship could only be held by a Yugoslav citizen.
17. The regulation of citizenship was similar in all republics of the SFRY, with the basic principle of acquiring citizenship by blood (jus sanguinis). In principle, a child acquired his or her parents’ citizenship; if the parents were citizens of different republics, they jointly agreed on their child’s citizenship. On the date of acquisition of the citizenship of another republic, a person’s prior republic citizenship came to an end.
18. From 1947 a separate Register of Citizenship was kept at the level of the republics and not at the level of the federal State. From 1974 the citizenship data for newly born children were entered in the Register of Births and from 1984 the entry of data in the Register of Citizenship ended, all citizenship data being entered in the Register of Births.
19. SFRY citizens had freedom of movement within the federal State and could register permanent residence wherever they settled on its territory. Full enjoyment of various civil, economic, social and even political rights for SFRY citizens was linked to permanent residence.
20. SFRY citizens living in the then Socialist Republic of Slovenia who were citizens of one of the other SFRY republics, such as the applicants, registered their permanent residence there in the same way as Slovenian citizens. Foreign citizens could also acquire permanent residence in the SFRY under a separate procedure.
21. In the process of the dissolution of the SFRY, Slovenia took steps towards independence. On 6 December 1990, the then Assembly of the Republic of Slovenia adopted the “Statement of Good Intentions” (Izjava o dobrih namenih), guaranteeing that all persons with permanent residence on Slovenian territory would be enabled to acquire Slovenian citizenship if they so wished (see paragraph 200 below).
22. On 25 June 1991 Slovenia declared its independence. A series of laws termed “the independence legislation” were passed. This included the Citizenship of the Republic of Slovenia Act (Zakon o državljanstvu Republike Slovenije – “the Citizenship Act”), the Aliens Act (Zakon o tujcih, see paragraphs 205-207 below), the National Border Control Act (Zakon o nadzoru državne meje) and the Passports of the Citizens of Slovenia Act (Zakon o potnih listinah državljanov Republike Slovenije).
23. At the material time, in contrast with some of the other former SFRY republics, the Slovenian population was relatively homogeneous, as roughly 90% of the 2 million residents had Slovenian citizenship. Approximately 200,000 Slovenian residents (or 10% of the population), including the applicants, were citizens of the other former SFRY republics. This proportion also broadly reflects the ethnic origin of the Slovenian population at that time.
24. In accordance with the Statement of Good Intentions, section 13 of the 1991 Constitutional Law provided that those citizens of other republics of the former SFRY who, on 23 December 1990, the date of the plebiscite on the independence of Slovenia, were registered as permanent residents of the Republic of Slovenia and actually lived there, held equal rights and duties to citizens of the Republic of Slovenia, with the exception of the acquisition of property, until they acquired citizenship of the Republic of Slovenia under section 40 of the Citizenship Act or until the expiry of the time-limit set out in section 81 of the Aliens Act (25 December 1991 – see paragraphs 202, 205 and 207 below).
25. Section 40 of the Citizenship Act, which entered into force on 25 June 1991, provided that citizens of the former SFRY republics who were not citizens of Slovenia (“citizens of the former SFRY republics”) could acquire Slovenian citizenship if they met three requirements: they had acquired permanent resident status in Slovenia by 23 December 1990 (the date of the plebiscite), were actually residing in Slovenia, and had applied for citizenship within six months after the Citizenship Act entered into force. As indicated in paragraph 24 above, this deadline expired on 25 December 1991. After that date, the less favourable conditions for acquisition of citizenship by naturalisation provided for by section 10 of the Citizenship Act became applicable also for citizens of other former SFRY republics (see paragraph 205 below).
26. According to the official data, 171,132 citizens of the former SFRY republics living in Slovenia applied for and were granted citizenship of the new State under section 40 of the Citizenship Act. Estimations are that an additional 11,000 persons left Slovenia.
27. Under the second subsection of section 81 of the Aliens Act, citizens of the former SFRY republics who either failed to apply for Slovenian citizenship within the prescribed time-limit or whose requests were not granted became aliens. The provisions of the Aliens Act became applicable to the former SFRY citizens either two months after the expiry of the time-limit (that is, by 26 February 1992), or two months after a decision issued in administrative proceedings rejecting their application for citizenship became final (see paragraph 207 below).
28. After the declaration of independence, the Ministry of the Interior (“the Ministry”) sent several unpublished internal instructions (okrožnice, navodila, depeše) to municipal administrative authorities relating to the implementation of the independence legislation, and in particular the Aliens Act. In a circular of 26 June 1991 the Ministry instructed the administrative authorities that citizens of other SFRY republics living in Slovenia were henceforth considered aliens in all administrative proceedings and that, in accordance with section 13 of the 1991 Constitutional Law, they held equal rights and duties to citizens of the Republic of Slovenia until the expiry of the relevant time-limits (see paragraph 24 above). It further gave technical instructions in the field of passports and aliens. On 30 July 1991 the Ministry informed the municipal administrative authorities that, further to the Brioni Declaration between the European Community Ministerial Troika and representatives of Slovenia, Croatia, Serbia and Yugoslavia, the enforcement of the independence legislation in the sphere of internal affairs had been suspended for a period of three months. During this period, citizens of other SFRY republics would not be treated as aliens. Two further administrative circulars were issued on 5 and 18 February 1992, drawing attention to the general problems relating to the implementation of the Aliens Act. The former circular stated that, when administering matters concerning the status of aliens, the personal documents of citizens of other SFRY republics issued by the Slovenian administrative authorities should be kept and their passports revoked and destroyed.
29. On 26 February 1992, the date on which the second subsection of section 81 of the Aliens Act became applicable, the municipal administrative authorities removed those who had not applied for or obtained Slovenian citizenship from the Register of Permanent Residents (Register stalnega prebivalstva – “the Register”) and, according to the Government, transferred them into the Register of Aliens without a Residence Permit.
30. On 27 February 1992 the Ministry indicated in its instructions to the municipal administrative authorities that it would be necessary to regulate the legal status of these persons. It drew their attention to the fact that numerous problems were expected to arise; the legal status of the persons concerned should be regulated and, in parallel, “the clearing of records” should be undertaken. In addition, the Ministry pointed out that the papers of such persons, even if issued by the Slovenian authorities and formally valid, would in fact become invalid owing to the persons’ change in status ex lege. The Ministry also gave an interpretation of sections 23 and 28 of the Aliens Act in cases of cancellation of residence and forcible removal.
31. The applicants stated that persons whose names were removed from the Register received no official notification. They pointed out that no special procedure was provided for to that effect and no official documents were issued. They only subsequently became aware that they had become aliens, when, for example, they attempted to renew their personal documents (personal identification card, passport, driving licence). The Government, however, maintained that, in addition to the publication in the Official Gazette, the Slovenian population was informed about the new legislation through public media and notices. In some municipalities, personal means of notification were allegedly also used.
32. According to official data from 2002, the number of former SFRY citizens who had lost their permanent residence status on 26 February 1992 amounted to 18,305, of whom approximately 2,400 had been refused citizenship. They became known as the “erased” (izbrisani), and included the applicants in the present case. New data on the “erased” were collected in 2009 (see paragraph 69 below).
33. As a result, the “erased” became aliens or stateless persons illegally residing in Slovenia. In general, they had difficulties in keeping their jobs and driving licences and obtaining retirement pensions. Nor were they able to leave the country, because they could not re-enter without valid documents. Many families became divided, with some of their members in Slovenia and others in one of the other successor States to the former SFRY. Among the “erased” were 5,360 minors. In most cases their identity papers were taken away. Some of the “erased” voluntarily left Slovenia. Some were served with removal orders and deported from Slovenia.
34. After 26 February 1992 the registration of permanent residence of citizens of other former SFRY republics was terminated if they had not acquired a new residence permit. However, under section 82 of the Aliens Act, permanent residence permits issued to foreigners with citizenship of States other than the former SFRY republics continued to be valid after the entry into force of the Aliens Act (see paragraph 207 below).
35. On 4 June 1992 the then Minister for the Interior sent a letter (no. 0016/1-S-010/3-91) to the Government, informing them of the questions that remained open relating to the implementation of the Aliens Act, in view of the large number of persons from the other republics of the former SFRY living in Slovenia without a regulated status. He also stated that, in his view, during the process of independence, all the rights of citizens of other SFRY republics living in Slovenia, as resulting from international conventions and bilateral treaties, had been taken into account. The Government maintained that, further to this letter, they took action in order to attenuate the consequences of the “erasure” by interpreting the provisions of the Aliens Act in a more flexible manner (see paragraph 36 below). In addition, on 15 June 1992 another administrative circular with instructions on the implementation of the Aliens Act was sent to the municipal administrative authorities. It addressed a number of open questions relating to such matters as the allocation of military apartments, registration of temporary refugees from Bosnia and Herzegovina, the keeping of records, transmission of personal information from the population register, and proceedings involving aliens. Personal identification cards issued to aliens by the Slovenian authorities were to be destroyed. In particular, as far as former SFRY citizens with permanent residence in Slovenia were concerned, it specified the dates to be entered in the register: either when they became Slovenian citizens or when they became aliens under section 81 of the Aliens Act (26 February 1992 or two months after the date of receipt of the decision not to grant Slovenian citizenship).
37. On 28 June 1994 the Convention took effect in respect of Slovenia.
38. The Slovenian Parliament submitted a request for a referendum on the question whether or not citizenship granted to former SFRY citizens on the basis of section 40 of the Citizenship Act should be withdrawn. On 20 November 1995 the Constitutional Court held that the request was unconstitutional.
39. In the years that followed, several non-governmental organisations, including Amnesty International and Helsinki Monitor, and the Slovenian Human Rights Ombudsman issued reports drawing attention to the situation of the “erased”.
40. On 24 June 1998 the Constitutional Court declared partly admissible a challenge to the constitutionality of the first subsection of section 16 and the second subsection of section 81 of the Aliens Act (see paragraphs 27 above and 207 below), brought in 1994 by two individuals whose names had been removed from the Register in 1992.
41. In a decision of 4 February 1999 (U-I-284/94) the Constitutional Court declared that section 81 of the Aliens Act was unconstitutional since it had not set out the conditions for acquisition of permanent residence for those subject to its second subsection. It noted that the authorities had deleted from the Register the names of citizens of the former SFRY republics who had not applied for Slovenian citizenship and entered them ex proprio motu in the Register of Aliens, without any notification. It further found that there was no legal basis for this measure; the Inhabitants’ Evidence of Residence and Population Registry Act did not provide for ex lege deregistration.
42. The provisions of the Aliens Act were, in general, designed to regulate the status of aliens who entered Slovenia after independence, not of those who were already living there. While section 82 of the Aliens Act did regulate the legal status of aliens originating from outside the former SFRY republics, no similar provision existed in respect of persons from the former SFRY. As a consequence, the latter were in a less favourable legal position than aliens who had lived in Slovenia since before independence.
43. A proposal had been made in the legislative process in 1991 for a special provision regulating the temporary situation of former SFRY citizens living in Slovenia who had not applied for Slovenian citizenship. The legislature had maintained that their situation should not be regulated by the Aliens Act but rather by an agreement between the successor States to the former SFRY. Since the relevant agreements had not been concluded, notably because of the state of war in Croatia and in Bosnia and Herzegovina, their situation remained unaddressed. In the Constitutional Court’s view, in the light of modern developments in human-rights protection, the situation of persons who had held the nationality of the predecessor but not of the successor State, with permanent residence on the territory of States that had disintegrated after 1990, had become a matter governed by international agreements.
44. Section 81 was therefore declared unconstitutional as it did not prescribe the conditions under which persons who either failed to apply for or were denied Slovenian citizenship could apply for permanent residence after the expiry of the prescribed time-limit. A legal void had thus formed and the principles of the rule of law, legal certainty and equality had been breached.
45. Furthermore, the provisions of the Aliens Act regulating the acquisition of permanent and temporary residence for aliens entering Slovenia (sections 13 and 16 of the Aliens Act – see paragraph 207 below) should not be used to regulate the status of citizens of the former SFRY republics who had a reasonable expectation that the new conditions for retaining permanent residence in Slovenia would not be stricter than those set forth in section 13 of the Constitutional Law (see paragraph 202 below) and section 40 of the Citizenship Act (see paragraph 205 below), and that their status would be determined in accordance with international law.
46. The Constitutional Court further found that section 16(1) of the Aliens Act was not unconstitutional, because it applied only to aliens entering Slovenia after independence.
47. The legislature was given six months in which to modify the unconstitutional provisions. In the meantime, the Constitutional Court ruled that no citizen of the former SFRY who was registered as a permanent resident in Slovenia on 23 December 1990 and was actually residing there could be forcibly removed from Slovenia pursuant to section 28 of the Aliens Act.
48. The Constitutional Court also pointed out that the unregulated situation of citizens of the former SFRY republics who had found themselves in a precarious legal position could lead to a violation of, inter alia, the right to respect for family life, as protected by Article 8 of the Convention (extracts of this decision are quoted in paragraph 214 below).
49. As a consequence, the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in Slovenia (Zakon o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji – “the Legal Status Act”) was passed on 8 July 1999 to regulate the legal status of the “erased” by simplifying the requirements for acquiring a permanent residence permit.
50. Under section 1 of the Legal Status Act, citizens of other successor States to the former SFRY who were registered as permanent residents on Slovenian territory on 23 December 1990, the date of the plebiscite, or on 25 June 1991, the date of independence, and had been actually resident there were entitled to a permanent residence permit, regardless of the provisions of the Aliens Act. They had three months to submit an application. Section 3 of the Legal Status Act provided for some exceptions for those with criminal convictions. Residence permits were granted ex nunc to those fulfilling the above conditions (see paragraph 210 below).
51. Ruling on another constitutional challenge (U-I-295/99), on 18 May 2000 the Constitutional Court set aside one part of section 3 of the Legal Status Act as unconstitutional because it found that the requirements for the acquisition of permanent residence set forth therein were stricter than the grounds for revoking a permanent residence permit under the Aliens Act.
52. Relying on its leading decision of 4 February 1999 (see paragraphs 41-48 above), the Constitutional Court has given several decisions in individual cases brought by some of the “erased”.
53. On 1 July 1999 (Up-333/96) it examined the case of a claimant who had been refused the renewal of his driving licence because of the “erasure” of his name from the Register. The Constitutional Court noted that following its decision of 4 February 1999, the Legal Status Act had been drafted, but had not yet been passed. It decided that, until the Legal Status Act entered into force, the claimant should enjoy the status he would have had before the expiry of the time-limit set forth in the second subsection of section 81 of the Aliens Act (see paragraph 27 above). The administrative authorities were ordered to register the claimant as a permanent resident at the address where he had been living before his name was illegally deleted from the Register and to renew his driving licence.
54. A similar decision (Up-60/97) was adopted on 15 July 1999 with regard to claimants who were all members of one family and citizens of one of the former SFRY republics, and had been denied permanent residence under section 16 of the Aliens Act, because the father had lost his job.
55. On 18 November 1999 (Up-20/97) and 16 December 1999 (Up152/97), in cases concerning the payment of a military pension to two “erased” persons, the Constitutional Court quashed the judgment of the Supreme Court and sent the case back for re-examination.
56. On 20 September 2001, in a case (Up-336/98) concerning an individual’s right to a childcare allowance, the Constitutional Court quashed the decisions of the lower authorities and sent the case back for reexamination.
57. Furthermore, the Constitutional Court has examined a number of cases brought by “erased” persons concerning the conditions for acquiring Slovenian citizenship. In a decision of 6 July 1995 (Up-38/93) it held that the condition of “actually residing in Slovenia” in section 40 of the Citizenship Act (see paragraphs 25 above and 205 below) could be fulfilled in a situation where a person’s residence in Slovenia had been interrupted on justifiable grounds if there were other circumstances proving that the centre of his or her life interests was on Slovenian territory. It quashed the Supreme Court’s decision because there had been differential treatment of analogous cases and sent the case back for re-examination.
58. On 3 April 2003, ruling on a challenge to the constitutionality of the Legal Status Act in its version of 8 July 1999 in a case (U-I-246/02) brought by the Association of the “Erased” and by other “erased” persons, the Constitutional Court found the Legal Status Act unconstitutional because it did not grant retrospective permanent residence from the date of the “erasure”, it did not define the meaning of the words “actually residing” which appeared in section 1 and it failed to regulate the acquisition of permanent residence for citizens of former SFRY republics who had been forcibly removed from Slovenia pursuant to section 28 of the Aliens Act.
59. Although the exact number of those deported was unknown, the Constitutional Court considered that the numbers would probably be low, since the unregulated status of the “erased” had generally been tolerated. It also struck down the three-month time-limit for submitting applications for permanent residence because it was unreasonably short and ordered the legislature to rectify the unconstitutional provisions of the impugned Act within six months. The Constitutional Court further observed that permanent residence was important in securing certain rights and benefits, such as military pension rights, social allowances and renewals of driving licences.
60. In point no. 8 of the operative part of the decision, the Constitutional Court ordered the Ministry to issue, ex proprio motu, decisions establishing permanent residence in Slovenia ex tunc with effect from 26 February 1992, the date of the “erasure”, to those who already had ex nunc (non-retroactive) permits in accordance with the Legal Status Act or the Aliens Act (extracts of this decision are quoted in paragraph 215 below).
61. On 25 November 2003 Parliament enacted the Act on the Application of Point No. 8 of the Constitutional Court’s Decision no. UI246/02-28 (Zakon o izvršitvi 8. točke odločbe Ustavnega sodišča Republike Slovenije št. U-I-246/02-28), also known as the “Technical Act”. This Act laid down the procedure for issuing ex tunc permanent residence permits to citizens of the former SFRY republics who had been registered as permanent residents in Slovenia on both 23 December 1990 and 25 February 1992 and who had already acquired a permanent residence permit under the Legal Status Act or the Aliens Act.
62. However, a referendum on whether the Technical Act should be implemented was held on 4 April 2004. The turnout was 31.54%; 94.59% of valid votes were against its implementation, and therefore the Act never entered into force.
63. In the meantime, in a decision (U-II-3/03) handed down on 22 December 2003, the Constitutional Court specified that the legal basis for the issuance of the supplementary residence permits by the Ministry was its decision of 3 April 2003 (see paragraphs 58-60 above); the Ministry was under an obligation to implement the decision.
64. Furthermore, in an individual case (Up-211/04) brought by one of the “erased”, claiming that his absence from Slovenia was due to the state of war, on 2 March 2006 the Constitutional Court set aside the judgments of the Supreme Court dismissing the claimant’s request for a permanent residence permit under the Legal Status Act, and remitted the case to the Administrative Court. It instructed the latter to make an appropriate assessment of the legal condition of “actually residing on the territory of the Republic of Slovenia” from 23 December 1990 onwards and of the reasons for the claimant’s absence from Slovenia.
65. In particular, the Constitutional Court held that the fact that the legislature had been late in eliminating the inconsistencies did not prevent the courts from determining the case in conformity with its decision of 3 April 2003 (see paragraphs 58-60 above).
66. In 2004 the Ministry issued 4,034 retroactive permits to the “erased”, solely on the basis of the above-mentioned Constitutional Court decision. The issuing of these permits by the authorities ex proprio motu was temporarily stayed and resumed in 2009, further to a change in government (see paragraph 70 below).
67. According to the Government, 13,355 applications had been submitted under the Legal Status Act by 30 June 2007. As a result, 12,236 permanent residence permits were issued.
68. Following the parliamentary elections held on 21 September 2008, a new government was appointed in November 2008. The regulation of the status of the “erased” in compliance with the Constitutional Court’s decisions was established as one of its priorities.
69. Further to an upgrading of the IT system, the Ministry collected new data on the “erased” and issued a report stating that on 24 January 2009 the number of the people removed from the Register amounted to 25,671, of whom 7,899 had subsequently acquired Slovenian citizenship; 7,313 of them were still alive. A further 3,630 had acquired a residence permit. 13,426 “erased” persons did not have a regulated status in Slovenia on that date and their current residence was unknown.
70. In 2009 the Ministry resumed the process of issuing, ex proprio motu, decisions establishing permanent residence in Slovenia ex tunc with effect from 26 February 1992 under point no. 8 of the operative part of the Constitutional Court’s decision of 2003 (see paragraph 60 above) to those who were already in possession of ex nunc permits. 2,347 such decisions were issued.
71. Subsequently, the Ministry prepared amendments and supplements to the Legal Status Act (“the amended Legal Status Act”), regulating the incompatibilities between the Legal Status Act and the Constitution, following the Constitutional Court’s decision of 3 April 2003, in particular in respect of those who had been deported and those who had had to leave Slovenia because of other reasons related to the “erasure”. On 8 March 2010 the amended Legal Status Act was passed.
72. On 12 March 2010 thirty-one parliamentarians requested that a referendum be held on the amended Legal Status Act, inter alia because it did not regulate the question of compensation for the “erased”; as a result, its entry into force was postponed. On 18 March 2010 the National Assembly decided that the postponement of the entry into force of the amended Legal Status Act or its rejection in a referendum would have unconstitutional consequences and referred the matter to the Constitutional Court.
73. In its decision of 10 June 2010 (U-II-1/10) the Constitutional Court relied on its previous leading decisions and found that the provisions of the amended Legal Status Act were consistent with the Constitution. The amended Act was considered to provide for a permanent solution to the status of those “erased” persons who had been unable to regularise their status, including that of their children, and for the issuing of special retroactive decisions to those of them who had been granted Slovenian citizenship, without the requirement of having a prior permanent residence permit. The Constitutional Court refused to allow a referendum to be held, considering that the potential rejection of the amended Legal Status Act would lead to unconstitutional consequences. It further found that the delay in implementing its leading decision of 2003 had entailed a fresh violation of the Constitution.
74. In paragraph 43 of its decision the Constitutional Court held that, by passing the Act in question, which provided for the retroactivity of permanent residence status, the legislature had introduced moral satisfaction as a particular form of reparation for the “erased”. If damage was caused to individuals as a result of their “erasure”, the question of possible State liability could arise on the basis of Article 26 of the Constitution if other conditions provided for by that Article and the relevant statutory conditions were met. In any event, the amended Legal Status Act on its own did not entail a new type of State liability for damage or a new legal basis for enforcing claims for damages. It was legitimate for the legislature to pass specific legislation limiting the State’s liability, as had been done, for instance, in respect of the victims of the Second World War. The Constitutional Court held that the fact that the amended Legal Status Act did not address the question of financial reparation was not unconstitutional.
75. On 15 June 2010 the President of the National Assembly publicly apologised to the “erased”; the Minister for the Interior did the same on 22 June 2010.
76. On 24 June 2010 the amended Legal Status Act was published in the Official Gazette. It entered into force on 24 July 2010, a few days after the delivery of the Chamber judgment. Prior to its enactment, 13,600 requests for residence permits had been submitted, of which 12,345 had been granted.
77. Section 1 of the amended Legal Status Act applied to aliens who had been citizens of other former SFRY republics on 25 June 1991, had been registered as having their permanent residence in Slovenia on 23 December 1990 or on 25 June 1991, and had actually resided there since then, regardless of the provisions of the Aliens Act. It provided for the acquisition of both ex nunc and ex tunc permanent residence permits by the “erased”. It also regulated the status of the children of the “erased” and provided for the issuing of retroactive decisions to those “erased” persons who had been granted Slovenian citizenship without having obtained a permanent residence permit.
78. In particular, section 1 (č) defined the meaning of the words “actually residing” in Slovenia, which was a precondition for obtaining permanent residence status, as a situation where the person had the centre of his or her life interests in Slovenia, this being determined on the basis of personal, family, economic, social and other ties demonstrating the existence of actual and permanent connections between the individual and Slovenia.
79. It further indicated that the condition of “actually residing” could be met in cases of justifiable absence for more than a year (forced removal from Slovenia, absence as a consequence of the “erasure” or impossibility of returning because of the state of war in other successor States of the SFRY). In the case of a longer absence, the condition of “actually residing” could be satisfied for the period of five years and for a further five years only if the person had tried to return to Slovenia – see paragraph 211 below).
80. According to the data submitted by the Government, from 24 June 2010 to 31 May 2011 the territorial administrative units received 173 applications for ex nunc permanent residence permits and eighty-four applications for supplementary, ex tunc permits. Including the permits issued by the Ministry of the Interior, these applications resulted in the issuing of sixty-four ex nunc permanent residence permits and 111 ex tunc permanent residence permits, in some cases by the authorities ex proprio motu. Further proceedings were still pending. The deadline for submitting requests under the amended Legal Status Act expires on 24 July 2013.
81. On 26 April 2011 an association, Civil Initiative of the “Erased”, together with fifty-two other private individuals, lodged a petition with the Constitutional Court for constitutional review of the amended Legal Status Act (U-I-85/11). The proceedings are currently pending.
82. Furthermore, one of the “erased” lodged a constitutional appeal challenging the rejection by the Supreme Court of his compensation claim, amounting to 50,492.40 euros (EUR) for loss of work and non-pecuniary damage. As far as pecuniary damage was concerned, the Supreme Court observed that the State authorities had not acted unlawfully and that Article 26 of the Constitution was therefore inapplicable. On 5 July 2011 (Up-1176/09) the Constitutional Court rejected the constitutional appeal, upholding the Supreme Court’s view that, in spite of the decision of the Constitutional Court subsequently abrogating the impugned provision of the Citizenship Act, it could not be said that administrative authorities or courts had acted unlawfully at the material time. Furthermore, since the loss of work had been related to the refusal to grant Slovenian citizenship to the claimant and not to the refusal to grant a permanent residence permit, the leading decisions of the Constitutional Court on the subject of the “erasure” could not be taken into account.
83. On 21 July 2011 the Government submitted some thirty final judgments delivered by the courts of first and second instance and by the Supreme Court in compensation proceedings brought by the “erased”. All the compensation claims were in the end dismissed, mostly for failure to comply with the prescribed time-limits, although the courts had in some cases initially established that the compensation claims were well-founded. At that time, proceedings in eleven cases brought by “erased” persons were pending before the Supreme Court. Finally, on 7 November 2011 the Government submitted a new decision delivered by the Constitutional Court on 26 September 2011 (Up-108/11) in a case brought by one of the “erased” who had claimed compensation for pecuniary and non-pecuniary damage. In that case the first-instance court had initially held in an interim judgment that there were grounds for holding the State liable for damages. However, the Supreme Court upheld the second-instance decision dismissing the claim on account of the expiry of the statutory time-limit. That decision was endorsed by the Constitutional Court.
84. Before 25 June 1991, the date on which Slovenia declared its independence, the applicants were citizens of both the SFRY and one of its constituent republics other than Slovenia. They had acquired permanent resident status in Slovenia as SFRY citizens, a status which they retained until 26 February 1992, when their names were deleted from the Register.
85. Further to the entry into force of the amended Legal Status Act on 24 July 2010, Mr Kurić, Ms Mezga, Mr Ristanović, Mr Berisha, Mr Ademi and Mr Minić received both ex nunc and ex tunc permanent residence permits. Mr Dabetić and Mrs Ristanović did not apply for residence permits. The following is a summary of the specific situation of each applicant.
86. Mr Kurić was born on 8 April 1935 in Šipovo (Bosnia and Herzegovina). According to the Government, he is of unknown citizenship. After completing his elementary education, he trained as a shoemaker. He moved to Slovenia at the age of twenty and settled in Koper in 1965. In 1976 he rented a small workshop from the Koper Municipality and established a private business there. He was registered as a permanent resident in Slovenia from 23 July 1970 until 26 February 1992.
87. In 1991 he fell seriously ill, was hospitalised for three months, and allegedly failed for that reason to lodge an application for Slovenian citizenship. He stated that he had been reassured that there would be further opportunities to apply for it. The Government confirmed that the applicant had been hospitalised. However, he had already been released from hospital on 15 June 1991.
88. The applicant never received any official notification that he no longer had a legal status in Slovenia.
89. In 1993 the applicant’s home caught fire and he lost most of his papers. When he applied to the Koper Municipality for replacement papers, he was informed that his name had been deleted from the Register.
90. The applicant continued with his business and was paying rent until the late 1990s, when he started experiencing financial difficulties. Since he could no longer pay the rent, he lost the right to remain in the premises. Without any identity documents, he was at risk of being expelled if he travelled outside the local community, where the police tolerated his presence.
91. The applicant stated that in the 1990s he tried on various occasions to regularise his status with the Koper Administrative Unit but allegedly received no reply or instruction on how to proceed. In 2005 he wrote a letter to the Ministry in which he requested to be granted Slovenian citizenship. He received no reply. However, the Government maintained that Mr Kurić had never applied for a residence permit in Slovenia.
92. The applicant further maintained that in 2006 he had started proceedings for pension rights with the Institute of Pension and Invalidity Insurance. On 14 May 2006 the latter sent him a letter with evidence of his years of employment, requesting him to provide a certificate of citizenship. However, further to an enquiry by the Agent of the Government, on 29 October 2007 the Institute of Pension and Invalidity Insurance stated that the applicant had not begun any official proceedings before it.
93. On 7 May 2007 the applicant applied for Slovenian citizenship as a stateless person. His request was dismissed on 27 July 2007.
94. On 29 January 2008 the applicant again applied for Slovenian citizenship under section 10 of the Citizenship Act. On 10 June 2009 the Koper Administrative Unit dismissed his request. He did not challenge this refusal before the Administrative Court.
95. On 24 February 2009 the applicant applied for a permanent residence permit. On 2 November 2010 he was granted both ex nunc and ex tunc residence permits. They were delivered to him on 26 November 2010.
96. The applicant stated that even after receiving the permanent residence permit, he was still encountering many difficulties, particularly with regard to his claims for pension rights, and had serious health problems.
97. Mr Dabetić was born on 22 September 1969 in Koper (Slovenia). He is a stateless person. He was registered as a permanent resident in Slovenia from 29 September 1971 until 26 February 1992. His parents and two brothers were born in Montenegro and they, like the applicant, were removed from the Register in 1992. The applicant’s mother was granted Slovenian citizenship in 1997 and his father in 2004. The applicant completed elementary school and two years’ specialised education in a secondary school for metal workers. He currently lives in Italy without any legal status.
98. The applicant stated that in 1991 he had moved to Italy, but remained registered as a permanent resident in Koper (Slovenia) until the events of 1992. He allegedly received false information from the Koper Administrative Unit. The Government stated that the applicant had been living in Italy since 1989, and not since 1991. He had therefore not been resident in Slovenia when it became independent.
99. The applicant alleged that when he had sought to apply to the Koper Administrative Unit for Slovenian citizenship, the employee had told him to submit his Slovenian employment record. The applicant stated that he worked in Italy on the basis of a lawful working permit and that he could not provide such a document. The employee allegedly replied that Italy and not Slovenia should grant citizenship to the applicant.
100. The applicant further stated that he had learned about the “erasure” later than the other applicants. In 2002, when his old SFRY passport expired, the Italian authorities had refused to extend his working residence permit (permesso di soggiorno) and had ordered him to return to Slovenia. Even though he had tried to return to Slovenia lawfully, he had been unable to regularise his status there. The Government maintained that the applicant had never properly applied for a residence permit in Slovenia.
101. On 26 November 2003 the applicant urged the Ministry to issue a supplementary, ex tunc decision regulating his status following the delivery of the Constitutional Court’s decision of 3 April 2003, without having previously submitted a request for an ex nunc permanent residence permit.
102. On 29 November 2003 the applicant applied for Slovenian citizenship under section 19 of the Citizenship Act as amended in 2002.
103. On 9 February 2004 the applicant lodged a complaint with the Nova Gorica Unit of the Administrative Court, alleging inaction on the part of the administrative authorities (tožba zaradi molka upravnega organa), which had failed to issue a supplementary ex tunc decision.
104. On 20 May 2005 the applicant’s complaint was rejected by the Administrative Court.
105. On 14 November 2005 the Ministry dismissed his application for Slovenian citizenship because he had failed to prove that he had actually resided in Slovenia for ten years and had lived there uninterruptedly for the last five years.
106. At the same time, the applicant also applied to the Italian Ministry of the Interior to obtain the status of a stateless person.
107. In recent years the applicant has been repeatedly stopped and detained by the Italian police. Moreover, on 20 April 2006 he was ordered to leave the country within five days. Eventually, he was given leave to remain in Italy since he had applied for recognition of his stateless person status and the proceedings were pending.
108. The applicant was also charged with illegal immigration into Italian territory. On 19 June 2006 the Mantua District Court acquitted him, on the ground that he had no citizenship and could not be expected to leave Italy voluntarily. At the time his application for stateless person status was pending. His application was eventually dismissed on the ground that an alien who was unlawfully residing in Italian territory was not entitled to the status in question.
109. The applicant stated that he had been living in extremely difficult conditions. He has not brought any proceedings under the amended Legal Status Act.
110. Ms Mezga was born on 4 June 1965 in Čakovec (Croatia). She is a Croatian citizen. In 1979 she moved to Ljubljana (Slovenia), where she later found work. She completed eight years of elementary school and was registered as a permanent resident in Slovenia from 28 July 1980 to 26 February 1992.
111. According to the applicant, in 1992, after the birth of her second child, she became aware of the fact that her name had been “erased” from the Register. Her employer had shortened her maternity leave and made her redundant. Moreover, in March 1993 she was stopped by the police during a routine check. Since she had no identity documents, she was detained at the police station and later in a transit centre for foreigners (prehodni dom za tujce), but was released after paying a fine. The applicant considered that this arrest amounted to confirmation of the loss of her legal status.
112. Subsequently, she moved to Piran, where she met H.Š., a Slovenian citizen, with whom she had two children, both of whom are Slovenian citizens. She stated that she had not started any proceedings in order to regularise her status since she clearly did not fulfil the conditions under the existing legislation.
113. After the entry into force of the Legal Status Act, on 13 December 1999 Ms Mezga submitted an application for a permanent residence permit. The Ministry asked her five times to complete her application and informed her that she could also have sought a permanent residence permit under the provisions for family reunion.
114. On 14 April 2004 the applicant requested the Ministry to issue a supplementary decision under point no. 8 of the operative part of the Constitutional Court’s decision of 3 April 2003 (see paragraph 60 above).
115. On 29 April 2004 the applicant applied for Slovenian citizenship under section 19 of the amended Citizenship Act.
116. On 15 October 2004 she attended a meeting at the Piran Administrative Unit in the context of proceedings for a permanent residence permit. On 25 October 2004 she was requested to complete her application.
117. On 5 November 2004 the Institute of Pension and Invalidity Insurance stated that the applicant’s employment in Slovenia was registered in their files.
118. On 6 December 2004 the Ministry terminated the proceedings relating to the applicant’s request for a permanent residence permit on account of her inactivity and her inability to prove that she had been actually resident in Slovenia since 23 December 1990 onwards.
119. In the proceedings concerning citizenship, on 18 November 2005 the Ministry gave the applicant two months to complete her application. Among other things, she had to prove that she had been actually resident in Slovenia since 23 December 1990.
120. On 13 June 2006 the Ministry dismissed her application for Slovenian citizenship.
121. On 10 August 2007 the applicant applied for a temporary permit as a family member of a Slovenian citizen.
122. On 13 September 2007 she received a temporary residence permit valid until 13 September 2012.
123. On 22 July 2010 the applicant applied for a permanent residence permit under the amended Legal Status Act. On 1 March 2011 she was granted both ex nunc and ex tunc residence permits. They were delivered to her on 2 March 2011.
124. The applicant stated that even after receiving the permanent residence permit she had experienced difficulties in arranging her health insurance and social financial support. She had serious health problems.
125. Mrs Ristanović was born on 19 November 1968 in Zavidovići (Bosnia and Herzegovina). She is currently a Serbian citizen. She moved to Ljubljana (Slovenia) in 1986 in search of work. She married there and on 20 August 1988 her son, the fifth applicant Mr Tripun Ristanović, was born. Mrs Ristanović was registered as a permanent resident in Ljubljana from 6 August 1986 to 20 November 1991.
126. Mrs Ristanović maintained that she believed that she would be granted Slovenian citizenship automatically as a permanent resident. However, in 1994 both Mrs Ristanović and her son were deported from Slovenia. She stated that she learned about the “erasure” at that time. However, Mrs Ristanović’s husband, who was in possession of a work permit and a temporary residence permit at the material time, remained in Slovenia. He later received a permanent residence permit.
127. According to the respondent Government, Mrs Ristanović moved from her municipality without deregistering her permanent residence and her personal records were transferred from the Register of Permanent Residents into the register of persons who had “emigrated without having deregistered”.
128. The applicant stated that she had lived in Serbia as a refugee and had been without any identity papers for many years. In 2004 she acquired a Serbian identity card and in 2005 a Serbian passport. She stated that she and her son had not applied for a permanent residence permit or for Slovenian citizenship since for many years they had not fulfilled the condition of actually residing in Slovenia under the existing legislation.
129. Mrs Ristanović has not brought any proceedings under the amended Legal Status Act. She stated that she had serious health problems.
130. Mr Tripun Ristanović was born on 20 August 1988 in Ljubljana (Slovenia). He is the son of the fourth applicant, Mrs Ljubenka Ristanović. He is a citizen of Bosnia and Herzegovina. Mr Ristanović was registered as a permanent resident in Ljubljana from 20 August 1988 until 26 February 1992.
131. In 1994 Mr Ristanović, who was a minor at the time, was deported from Slovenia with his mother.
132. He lived in Serbia with his mother as a refugee for many years. In 2004 the authorities of Bosnia and Herzegovina issued an identity card and a passport to Mr Ristanović. Since he had no Serbian documents, he had allegedly been living in Serbia in constant fear of being deported.
133. On 9 November 2010 he applied for a permanent residence permit under the amended Legal Status Act. On 10 March 2011 he was granted both ex nunc and ex tunc residence permits. They were delivered to him on 11 March 2011 and the applicant returned to Slovenia.
134. According to the Government, the applicant lodged a petition with the Constitutional Court for constitutional review of the amended Legal Status Act. The petition was joined to those lodged by the association Civil Initiative of the “Erased” and by other private individuals. The proceedings are currently pending (see paragraph 81 above).
135. Mr Berisha was born on 23 May 1969 in Peć (Kosovo) in a Roma ethnic community. According to the Government, he is a Serbian citizen. He moved to Slovenia in 1985. He worked in a factory in Maribor until 31 May 1991. He was registered as a permanent resident in Slovenia from 6 October 1987 until 26 February 1992.
136. In 1991 he allegedly spent some time in Kosovo with his sick mother. This appears to have been the reason why he did not apply for Slovenian citizenship at that time.
137. In 1993 the applicant was detained by the Slovenian border police when re-entering the country after visiting relatives in Germany. His SFRY passport was taken away from him and he was kept in a transit centre for foreigners for ten days. The applicant maintainted that it was then that he learned about the “erasure”. Moreover, on 3 July 1993 he was deported to Tirana (Albania), allegedly without any decision. The Albanian police returned the applicant to Slovenia because he had no valid passport. He was again placed in the transit centre, from which he escaped during the night.
138. In 1993 the applicant fled to Germany, where he received a temporary residence permit for humanitarian reasons, owing to the unstable situation in Kosovo at the time.
139. On 9 August 1996 he married M.M., who was born in Kosovo and was also a member of a Roma ethnic group. They had four children between 1997 and 2003 while the family were living in Germany.
140. In 2005 the German authorities dismissed the applicant’s request for another extension of his residence permit because the overall situation in Kosovo was deemed stable enough for him to return there. He was ordered to leave Germany with his family by 30 September 2005.
141. At an unknown time, the applicant and his family submitted requests for asylum in Germany.
142. Subsequently, the applicant and his family returned to Slovenia.
143. On 13 July 2005 the applicant and his family submitted an application for temporary residence permits. On 25 July 2005 they also applied for permanent residence permits under the Legal Status Act.
144. Since they believed that they ran the risk of being deported, on 26 September 2005 the applicant and his family also submitted asylum requests. In addition, the applicant sought refugee status.
145. Further to the withdrawal of their asylum requests, on 19 October 2005 the Ministry terminated the proceedings. The Ministry also ordered that the applicant and his family should return to Germany. On 28 October 2005 the removal order was issued but was not executed. On 10 November 2005 a new removal order was issued, setting the date of removal for 18 November 2005. The applicant started proceedings before the Administrative Court. On 15 November 2005 his request was granted.
146. At that time the case also received considerable attention from the local and international community owing to the efforts of Amnesty International.
147. On 27 February 2006 the family again applied for asylum in Slovenia. They were living in an asylum centre at the time.
148. On 28 April 2006 the applicant brought a complaint before the Administrative Court, alleging inaction on the part of the administrative authorities in the proceedings relating to the permanent residence permits for him, his wife and their four children.
149. On 19 July 2006 the German authorities informed the Slovenian authorities that Germany had jurisdiction under the Dublin Regulation to examine the asylum requests by the Berisha family.
150. On 28 July 2006 the applicant’s fifth child was born in Slovenia.
151. On 30 October 2006 the Ministry decided, further to the above-mentioned decision of the German authorities, that it did not have jurisdiction to examine the asylum requests by the applicant and his family and that they would be handed over to Germany. The Ministry had also received fresh evidence that Mr Berisha and his family were asylum seekers in Germany, where they had received financial aid for that purpose.
152. On 5 November 2006 the applicant and his family instituted proceedings in the Administrative Court, contesting the Ministry’s decision. On the same day they also requested the non-enforcement of the impugned decision and withdrew their application for asylum (see paragraph 147 above).
153. According to the applicant, on 7 November 2006 the Ministry again tried to transfer him and his family to Germany. On 15 November 2006 the Administrative Court annulled the removal order. The Ministry lodged an appeal.
154. On 28 December 2006 the Supreme Court upheld the Ministry’s decision of 30 October 2006 that Germany had jurisdiction under the Dublin Regulation to decide on the applicant’s request for asylum.
155. On 1 February 2007 the applicant and his family were handed over to Germany, where they have lived with “toleration” status (Duldung).
156. Neither the applicant nor his family have applied for Slovenian citizenship.
157. In the context of asylum proceedings, on 18 April 2008 the Constitutional Court rejected a constitutional appeal by the applicant.
158. On 19 October 2010 Mr Berisha was granted both ex nunc and ex tunc residence permits further to his request lodged on 25 July 2005 (see paragraph 143 above). The permits were delivered to him on 24 November 2010 through the Slovenian Consulate in Munich.
159. The applicant, who is currently still living in Germany, stated that he was for the time being prevented from returning to Slovenia as his five children and his wife did not have any legal status there and would not have fullfilled the conditions for family reunion under the Aliens Act.
160. On an unspecified date, the applicant filed a compensation claim with the State Attorney’s Office, which was rejected. According to the respondent Government, he did not initiate court proceedings.
161. Mr Ademi was born on 28 July 1952 in Skopje (“the former Yugoslav Republic of Macedonia”) in a Roma ethnic community. He is now a Macedonian citizen. In 1977 he moved to Slovenia, where he worked until 1992. He had his permanent residence registered there from 27 September 1977 to 26 February 1992.
162. According to the applicant, in 1991 he missed the deadline for applying for Slovenian citizenship. In 1993 he was stopped by the police in the course of a routine check. Since he had no valid identity documents, he and his family were expelled to Hungary. The applicant maintained that he had learned about the “erasure” at that time. Shortly afterwards the applicant and his family moved to Croatia, from where they re-entered Slovenia illegally.
163. On 23 November 1992 the applicant applied for Slovenian citizenship with the assistance of a lawyer.
164. The applicant later moved to Germany, where he declared himself a stateless person and obtained a temporary residence permit and a passport for foreigners.
165. On 9 February 1999 he requested the Embassy of “the former Yugoslav Republic of Macedonia” to issue him with a passport, but received a negative reply since he was not a citizen of that country.
166. On 16 February 2005 the applicant applied for a permanent residence permit under the Legal Status Act. On 20 April 2005 the Ministry requested him to supplement his application with evidence of citizenship.
167. On 26 May 2005 his application was rejected on the ground that he was a stateless person. The Ministry stated that the Legal Status Act applied only to citizens of other successor States to the former SFRY.
168. On 11 July 2005 the Ministry replied to a letter from the applicant seeking a further examination of his application for Slovenian citizenship lodged in 1992. It informed him that, since he did not appear to have lived in Slovenia for the preceding ten years, he did not meet the requirements for Slovenian citizenship under the amended Citizenship Act.
169. On 9 September 2005 his application for Slovenian citizenship was dismissed.
170. On 31 July 2007 the applicant again applied for a permanent residence permit under the Legal Status Act. On 31 March 2008 the Ministry rejected his application, again on the ground that he was not a citizen of any other successor State to the former SFRY. The applicant started proceedings before the Administrative Court.
171. On 18 February 2009 the Administrative Court upheld the decision by the Ministry, dismissing the applicant’s request for a permanent residence permit. The applicant appealed.
172. On 6 October 2010 the Supreme Court granted his appeal and sent the case back for re-examination. It noted that the amended Legal Status Act had been enacted in the meantime and that the applicant’s request should now be examined in the light of the new legislation. In the course of these proceedings, the applicant submitted a Macedonian passport issued on 19 August 2010.
173. On 20 April 2011 Mr Ademi was granted both ex nunc and ex tunc residence permits. They were delivered to him on 23 May 2011.
174. The applicant, who has serious health problems, is currently living between Slovenia and Germany, where his temporary status has been terminated in the meantime.
175. Mr Minić was born on 4 April 1972 in Podujevo (Kosovo). According to the Government, he is a Serbian citizen. He moved to Slovenia with his family in 1977. The applicant completed elementary school, followed by a three-year secondary school course in cookery. He was registered as a resident in Slovenia from 1 August 1984 to 26 February 1992.
176. According to the applicant, in 1991 he was visiting his grandparents in Kosovo. For that reason, he and his family missed the deadline for submitting the application for Slovenian citizenship by one month, as the war in Kosovo had made collecting the necessary documents difficult. According to the Government, there was no evidence that Mr Minić had applied for Slovenian citizenship in 1991. In addition, it followed from the applicant’s employment documents that he had been working in Podujevo from 1992 until 1999. He married a Serbian citizen, with whom he has four children.
177. The applicant stated that he had found out that he had been “erased” together with other members of his family when trying to regularise his status in Slovenia. As a result of the unbearable living conditions in Slovenia without any legal status, he had been compelled to move temporarily to Kosovo.
178. He returned to Slovenia on several occasions. In 2002 the applicant was arrested by the police in Slovenia because he was working without a permit. He was prosecuted, ordered to pay a fine and on 5 June 2002 expelled to Hungary, in spite of the Constitutional Court’s decision of 4 February 1999 (see paragraphs 41-48 above), without any formal order.
179. The applicant stated that he had not applied for any legal status in Slovenia for many years because he did not meet the conditions for Slovenian citizenship or for a permanent residence permit under the legislation existing at the time. As to his family, his mother was eventually granted Slovenian citizenship in 2000 and his siblings in 2003.
180. After the delivery of the Constitutional Court’s decision of 3 April 2003 (see paragraphs 58-60 above), on 15 September 2003 the applicant applied for Slovenian citizenship under section 19 of the amended Citizenship Act.
181. Between 26 April and 9 October 2004 the Ministry asked the applicant five times to complete his application by providing evidence, among other things, that he had been living in Slovenia without interruption since 23 December 1990. When he failed to do so, he was summoned for a hearing at the Ministry.
182. At the hearing on 17 December 2004 he confirmed the information stated in his employment record, namely that he had worked in Podujevo (Kosovo) from 8 January 1992 to 6 April 1999 and had thus not been living in Slovenia uninterruptedly since 23 December 1990.
183. On 21 February 2006 his application for Slovenian citizenship was accordingly dismissed. That decision was served on Mr Minić between 28 June and 2 July 2006 during a trip to Slovenia.
184. On 17 July 2006 the applicant initiated proceedings before the Administrative Court.
185. On 30 June 2006 he applied for a permanent residence permit under the Legal Status Act.
186. On 29 March 2007 a hearing was held at the Ministry. On 14 July 2007 the applicant provided supplementary documents in support of his request.
187. On 18 July 2007 the Ministry dismissed the applicant’s request since he did not meet the requirement of actual residence in Slovenia.
188. On 19 September 2007 the applicant initiated proceedings before the Administrative Court.
189. On 10 September 2008, in the context of administrative proceedings concerning the applicant’s request for Slovenian citizenship, the Constitutional Court dismissed a constitutional complaint lodged by him.
190. On 26 November 2008 the Administrative Court quashed the Ministry’s decision of 18 July 2007 (see paragraph 187 above) and sent the case back for re-examination.
191. On 24 July 2009 the Ministry again dismissed the applicant’s request since he did not meet the requirement of actually residing in Slovenia.
192. The applicant then initiated proceedings before the Administrative Court. He stated that he had been inextricably blocked in Kosovo in 1992 and had since returned to Slovenia as often as possible, but that the war and other circumstances had prevented him from doing so to any significant extent. Moreover, he was a Serb from Kosovo who had been granted the status of displaced person in Serbia after his house in Kosovo had been burnt down. He had tried on several occasions to regularise his status in Slovenia but had been deported in 2002. His parents, brother and two sisters were all Slovenian citizens.
193. On 19 January 2011 the Administrative Court quashed the decision of the Ministry and sent the case back for re-examination with an indication that his request should be dealt with under the amended Legal Status Act.
194. On 4 May 2011 the applicant was granted both ex nunc and ex tunc residence permits. They were delivered to him on 9 June 2011.
195. On 1 June 2011 the applicant lodged a compensation claim with the State Attorney’s Office. His claim was rejected owing to the expiry of the statutory time-limit, on the ground that he had found out about the damage caused to him by the “erasure” when he had applied for Slovenian citizenship or for a permanent residence permit.
196. Section 1 of this Act provided that every citizen of the Socialist Republic of Slovenia was simultaneously a citizen of the SFRY, thus establishing the primacy of republic citizenship.
197. This Act distinguished between a permit for temporary or permanent residence of an alien in the State territory and the temporary or permanent place of residence of an SFRY citizen, denoting the actual location of his or her residence.
198. This Act regulated the registration and deregistration of permanent and temporary residence and the keeping of population registers on Slovenian territory.
199. In 1991, section 5 of the Act was amended to provide:
“The registration of permanent residence and registration of any change of address is obligatory for all inhabitants, whenever they settle permanently in a settlement or change their address. Deregistration of permanent residence is obligatory for inhabitants who move from the territory of the Republic of Slovenia.”
200. The purpose of the Statement of Good Intentions, adopted on 6 December 1990 in the course of preparations for the plebiscite on the independence of Slovenia, was to express the State’s commitment to certain values in pursuit of its independence. The relevant provision of this document provides:
“... The Slovenian State ... shall ... guarantee to all members of other nations and nationalities the right to an all-embracing development of their culture and language and to all those who have their permanent residence in Slovenia the right to obtain Slovenian citizenship if they so wish ...”
201. The relevant provisions of the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia, published on 25 June 1991, provide:
“The Republic of Slovenia guarantees the protection of human rights and fundamental freedoms to all persons on the territory of the Republic of Slovenia, regardless of their national origin and without any discrimination, in accordance with the Constitution of the Republic of Slovenia and binding international agreements...”
202. The relevant provisions of the 1991 Constitutional Law provide:
“Citizens of the other republics [of the former SFRY] who on 23 December 1990, the day the plebiscite on the independence of the Republic of Slovenia was held, were registered as permanent residents in the Republic of Slovenia and actually reside there shall, until they acquire citizenship of Slovenia under section 40 of the Citizenship of the Republic of Slovenia Act or until the expiry of the time-limit set forth in section 81 of the Aliens Act, have equal rights and duties to the citizens of the Republic of Slovenia...”
203. The relevant provisions of the Constitution of the Republic of Slovenia provide:
“Statutes and regulations must comply with generally accepted principles of international law and with treaties that are binding on Slovenia. Ratified and published treaties shall be applied directly.”
“In Slovenia everyone shall be guaranteed equal human rights and fundamental freedoms irrespective of national origin, race, sex, language, religion, political or other conviction, material standing, birth, education, social status or any other personal circumstance.
All are equal before the law.”
“Everyone shall have the right to compensation for damage caused by the unlawful acts of a person or body performing a function or engaged in an activity on behalf of a State or local authority or as a holder of public office.
Any person suffering damage also has the right, in accordance with the law, to claim compensation directly from the person or body that has caused the damage.”
204. The relevant provisions of the Constitutional Court Act provide:
“The Constitutional Court shall deliver a decision declaring an appeal unfounded or shall allow the appeal and quash the act that was the subject of the appeal or declare it null and void in whole or in part, and return the matter to the competent body. ...”
“1. If the Constitutional Court quashes an individual act, it may also determine a disputed right or freedom if such a procedure is necessary in order to put an end to consequences that have already occurred as a result of that act or if such is the nature of the constitutional right or freedom and provided that a decision can be reached on the basis of information in the record.
2. The decision referred to in the preceding paragraph shall be implemented by the authority which is competent for the implementation of the individual act which the Constitutional Court abrogated or annulled and replaced by its decision. If there is no competent authority according to the regulations in force, the Constitutional Court shall determine such authority.”
205. The relevant provisions of the Citizenship Act provide:
“The competent authority may, within its discretion, accept a person’s request for naturalisation if this is in compliance with the national interest. The person must fulfil the following conditions:
(1) be eighteen years of age;
(2) have been released from current citizenship or prove that he or she will be released [from such citizenship] if he or she acquires citizenship of the Republic of Slovenia;
(3) have been actually resident in Slovenia for ten years, of which the five years immediately preceding the submission of the application must have been continuous;
(4) have a guaranteed permanent source of income, at least in an amount that enables material and social security;
(5) have a command of the Slovene language for the purposes of everyday communication;
(6) not have been sentenced to a prison sentence longer than one year in the country of which he or she is a citizen or in Slovenia for a criminal offence which is prosecuted by law, provided that such an offence is punishable pursuant to the regulations of his or her country and also pursuant to the regulations of the Republic of Slovenia;
(7) not have had his or her residence in the Republic of Slovenia prohibited;
(8) the person’s naturalisation must pose no threat to the public order, security or defence of the State;
...”
“Persons who acquired citizenship of the Republic of Slovenia and of the Socialist Federal Republic of Yugoslavia under valid legislation shall be considered citizens of Slovenia under the present Act.”
“Citizens of another republic [of the former SFRY] who on 23 December 1990, the day the plebiscite on the independence of the Republic of Slovenia was held, were registered as permanent residents in the Republic of Slovenia and actually reside there shall acquire citizenship of the Republic of Slovenia if, within six months after the present Act enters into force, they submit an application to the internal affairs authority of the municipality where they live...”
206. On 14 November 2002 the Citizenship of the Republic of Slovenia Act was amended. The relevant provision reads:
“An adult who on 23 December 1990 was registered as a permanent resident on the territory of the Republic of Slovenia, and has lived there uninterruptedly since that date, may apply for citizenship of the Republic of Slovenia within one year after the present Act enters into force if he or she meets the requirements set forth in ... this Act.
When deciding under the preceding subsection whether the applicant meets the requirements set forth in ... this Act, the competent authority may take into consideration the length of the applicant’s stay in the State, his or her personal, family, business, social and other ties with the Republic of Slovenia and the consequences a refusal of citizenship would have for the applicant.
...”
207. The relevant provisions of the Aliens Act read as follows:
“A foreigner who enters the territory of the Republic of Slovenia with a valid passport may remain there for three months or as long as the validity of an issued visa allows him or her to, unless otherwise provided by an international agreement ...
A foreigner wishing to remain on the territory of the Republic of Slovenia for longer than provided for by the preceding subsection for reasons of education, specialisation, employment, medical treatment, professional experience, or because he or she has married a citizen of the Republic of Slovenia, has immovable property on the territory of the Republic of Slovenia, or enjoys the rights afforded by employment in the State or for any other valid reason requiring his or her residence in the State, must apply ... for a temporary residence permit.
...”
“A permanent residence permit may be issued to a foreigner who has been living on the territory of the Republic of Slovenia continuously for at least three years on the basis of a temporary residence permit and meets the requirements set forth in the second subsection of section 13 of this Act for permanent residence on the territory of the Republic of Slovenia ...”
“A foreigner residing on the territory of the Republic of Slovenia on the basis of a foreign passport, a visa or an entrance permit, or an international agreement ... or who has been issued with a temporary residence permit ... may be refused leave to remain:
(i) if reasons of public order, security or defence of the State so demand;
(ii) if he or she refuses to abide by a decision of the State authorities;
(iii) if he or she repeatedly breaches public order, national border security or the provisions of this Act;
(iv) if he or she is convicted by a foreign or national court of a crime punishable by at least three months’ imprisonment;
(v) if he or she no longer has sufficient means of subsistence and his or her subsistence is not otherwise secured;
(vi) for the protection of public health.”
“An authorised officer of the internal affairs authority may take a foreigner who fails voluntarily to leave the territory of the Republic of Slovenia when required to do so by the competent authority or administrative body in charge of internal affairs, or who resides on the territory of the Republic of Slovenia beyond the period provided for in section 13(1) of this Act or beyond the period allowed in the decision granting temporary residence, to the State border or diplomatic/consular representation of the State of which he or she is a citizen, and direct such person to cross the border or hand him or her over to the representative of a foreign country.
The internal affairs authority concerned shall order any foreigner who does not leave the territory of the Republic of Slovenia in accordance with the preceding subsection, and cannot be removed immediately for any reason, to reside in a transit centre for foreigners for a period not exceeding thirty days if there exists a suspicion that he or she will seek to evade this measure.
An internal affairs authority may designate a different place of residence for a foreigner who is unable to leave the territory of the Republic of Slovenia immediately but has sufficient means of subsistence.”
“Until the decision issued in the administrative proceedings concerning the request for citizenship becomes final, the provisions of this Act shall not apply to citizens of the SFRY who are citizens of other republics and who apply for Slovenian citizenship in accordance with section 40 of the Citizenship of the Republic of Slovenia Act within six months after it enters into force.
As regards citizens of the SFRY who are citizens of other republics but either do not apply for citizenship of the Republic of Slovenia within the time-limit set out in the previous subsection or are refused citizenship, the provisions of this Act shall apply two months after the expiry of the time-limit within which they could have applied for citizenship or after the decision made in respect of their application became final.”
“... Permanent residence permits issued in accordance with the Movement and Residence of Foreigners Act ... shall remain valid if the foreign holder of such a permit had permanent residence on the territory of the Republic of Slovenia when this Act came into force.”
208. In order to facilitate the acquisition of permanent residence permits for citizens of the other former SFRY republics who had either failed to apply for Slovenian citizenship or had not acquired residence permits under the Aliens Act, on 3 September 1992 the Government adopted the following decision:
“... in examining applications for permanent residence permits for aliens referred to in section 16 of the Aliens Act ..., the Ministry of the Interior shall consider that the condition for permanent residence in the territory of the Republic of Slovenia has been met when the alien has had permanent residence registered for at least three years and was actually residing here before the provisions of the Aliens Act started applying to him.”
209. The 1999 Aliens Act replaced the Aliens Act of 1991. Several amendments were made to the 1999 Aliens Act in the subsequent years. In 2011 it was replaced by a new Aliens Act (Official Gazette, no. 50/2011).
210. The relevant provisions of the Legal Status Act, enacted further to the Constitutional Court’s decision of 4 February 1999 (see paragraphs 4148 above), provide:
“Citizens of another successor State to the former SFRY (hereinafter ‘foreigners’) who were registered as permanent residents on the territory of the Republic of Slovenia on 23 December 1990 and are actually resident in the Republic of Slovenia, and foreigners who were actually resident in the Republic of Slovenia on 25 June 1991 and have been living there continuously ever since, shall be issued with a permanent residence permit, regardless of the provisions of the Aliens Act ..., if they meet the requirements set forth in this Act.”
“An application for permanent residence shall be submitted within three months after this Act enters into force ...
A foreigner who has lodged an application for permanent residence pursuant to section 40 of the Citizenship of the Republic of Slovenia Act ..., but has received a decision refusing to grant his application, may submit an application under the preceding subsection within three months after this Act enters into force or the decision became final, if such decision is issued after this Act entered into force...”
211. On 24 July 2011 the amended Legal Status Act (Zakon o spremembah in dopolnitvah Zakona o urejanju statusa državljanov drugih držav naslednic nekdanje SFRJ v Republiki Sloveniji, Official Gazette no. 50/2010) came into force. Section 1 (č) of the Act provides:
“Actual residence in the Republic of Slovenia for the purposes of this Act shall mean that an individual has the centre of his or her life interests in the Republic of Slovenia, this being determined on the basis of his or her personal, family, economic, social and other ties demonstrating the existence of actual and permanent connections between an individual and the Republic of Slovenia. Justifiable absence from the Republic of Slovenia because of reasons referred to in the third subsection of this section shall not mean an interruption of actual residence in the Republic of Slovenia.
The condition of actual residence in the Republic of Slovenia shall be met if the person left the Republic of Slovenia and his or her continuous absence was not longer than one year, irrespective of the reason for the absence.
The condition of actual residence in the Republic of Slovenia shall also be met in the event that the absence was longer than one year but was justifiable for the following reasons:
- if the person left the Republic of Slovenia as a consequence of removal from the Register of Permanent Residents;
- if the person left the Republic of Slovenia because he or she was assigned to work, study or undergo medical treatment by a legal entity from the Republic of Slovenia or, in the case of a minor, by his or her parents or guardians, or if the person was an employee on a ship with a home port in the Republic of Slovenia, during the period of posting, study or treatment or the period of employment on the ship;
- if the person left the Republic of Slovenia because he or she could not acquire a residence permit in the Republic of Slovenia owing to non-fulfilment of the relevant conditions and the application for a permit was rejected or dismissed or the procedure was terminated;
- if the person could not return to the Republic of Slovenia because of the state of war in other successor States to the former Socialist Federal Republic of Yugoslavia, or for medical reasons;
- if the person was expelled from the Republic of Slovenia pursuant to section 28 ... or section 50 of the Aliens Act ..., unless the person was an alien expelled from the country as a sanction for having committed a criminal offence;
- if the person was refused entry to the Republic of Slovenia, except where entry was refused because of the imposition of a secondary sanction of expulsion for having committed a criminal offence ...
If the absence for reasons referred to in the preceding subsection, except for those referred to in the second indent, lasted more than five years, it shall be deemed that the condition of actual residence is satisfied for the period of five years and for a further period of five years only if the conduct of the person demonstrates that, during the period of absence, the person tried to return to the Republic of Slovenia and to continue his or her actual residence there.
For the purposes of this Act, a permanent residence permit or a specific decision on a retroactive permanent residence permit and registered permanent residence or a supplementary decision issued pursuant to point 8 of the Constitutional Court decision ..., no U-1-246/02-28 of 3 April 2003 ... shall not mean that the condition of actual residence in the Republic of Slovenia in proceedings initiated under the Citizenship of the Republic of Slovenia Act is met.”
212. The relevant provision of the Rules provides:
“The Register of Permanent Residents contains data on citizens of the Republic of Slovenia who have registered permanent residence in the territory of the municipality.
In the Register of Permanent Residents, the competent authority shall identify citizens of the Republic of Slovenia who travel abroad temporarily for more than three months, and persons to whom the authority has declined registration of permanent residence ...”
213. The relevant provision of the State Attorney Act provides:
“If a person intends to initiate civil or other proceedings against an entity defended by the State Attorney, this person should first submit a proposal to the State Attorney’s Office for resolution of the disputed relationship before the beginning of the proceedings. The State Attorney should as soon as possible, and not later than in thirty days, act appropriately and inform the person concerned of its position.”
214. The relevant parts of the Constitutional Court’s decision of 4 February 1999 (see paragraphs 41-48 above) read as follows:
“At the session of 4 February 1999 concerning the proceedings for the review of constitutionality commenced on the initiative of B.M. and V.T. ..., the Constitutional Court gave the following decision:
1. The Aliens Act (Official Gazette of RS, Nos. 1/91-1, 44/97 and 50/98) is inconsistent with the Constitution in that it fails to determine the conditions for the acquisition of a permanent residence permit by the persons referred to in subsection 2 of section 81 upon the expiry of the period during which they had the possibility of applying for citizenship of the Republic of Slovenia, if they did not do so, or after the date on which the decision on refusal to grant citizenship became final. ...
3. The inconsistency as established in paragraph 1 of the operative provisions shall be eliminated by the legislature within six months from the date of publication of this decision in the Official Gazette of the Republic of Slovenia.
4. Pending the elimination of the inconsistency established in paragraph 1 above, no deportation order as referred to in section 28 of the Aliens Act shall be made against citizens of any other republic of the former Socialist Federal Republic of Yugoslavia if on the date of the plebiscite of 23 December 1990 they were registered as having permanent residence in, and are actually resident in, the Republic of Slovenia.
Reasons:
...
14. The Constitutional Court finds that the provisions of subsection 2 of section 13 and subsection 1 of section 16 of the Aliens Act should not apply to citizens of other republics who have not acquired the citizenship of the Republic of Slovenia. Neither should the competent authorities have transferred these persons from the existing Register of Permanent Residents to the Register of Aliens ex proprio motu, without any decision or notification being addressed to the persons concerned. There was no statutory basis whatsoever for them to take such action. The Inhabitants’ Evidence of Residence and Population Registry Act, which is invoked by the Government in its explanations, does not contain any provisions on the removal of permanent residents from the Register on the basis of the Act itself.
Neither is the Government empowered by statute to adopt individual decisions determining the manner in which statutory provisions are to be implemented. On the basis of Article 120 of the Constitution, duties and functions associated with public administration are to be conducted independently and at all times pursuant to, and in a manner consistent with, the Constitution and the law. When the Government found that the Aliens Act could not also be applied in practice to citizens of other republics, it should have proposed that the legislature regulate their legal position, and should not have interfered with the legislative power by adopting a decision.
15. For the foregoing reasons, the Aliens Act, whose transitional provisions do not regulate the legal status of citizens of other republics who had permanent residence in the Republic of Slovenia and were actually resident in its territory, has violated the principles of a law-governed State under Article 2 of the Constitution. For this reason, the citizens of other republics, upon the expiry of the time-limits set in subsection 2 of section 81, found themselves in an insecure legal position. From the text of the transitional provisions, which specify that the provisions of the Aliens Act are to be applied, the said persons could not have grasped what their position would be as foreigners and which statutory provisions should apply to them. Accordingly, the Constitutional Court concludes that, because the legal position of citizens of other republics as foreigners has not been regulated in the Republic of Slovenia, the principle of legal certainty as one of the principles of a law-governed State has been violated.
16. The principle of legal certainty guarantees to the individual that the State will not make his or her legal position worse without justified reasons. It was quite justified that citizens of other republics who did not opt for Slovenian citizenship should not expect that they would be made equal to foreigners who had only just come into the Republic of Slovenia and that they would be deprived of permanent residence, without, moreover, being given any notice whatsoever. ...”
215. The relevant parts of the Constitutional Court’s decision of 3 April 2003 (see paragraphs 58-60 above) read as follows:
“At a session held on 3 April 2003 in the proceedings to examine petitions and in the proceedings to review constitutionality commenced upon petitions by the Association of the Erased of Slovenia, Ptuj, and others, represented by M.K. ... and N.M.P. ... , the Constitutional Court decided as follows:
1. The Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia (Official Gazette RS, Nos. 61/99 and 64/01) is inconsistent with the Constitution, as it does not recognise citizens of other republics of the former SFRY who were removed from the Register of Permanent Residents on 26 February 1992 as having permanent residence from the aforementioned date.
2. The Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution, as it does not regulate the acquisition of a permit for permanent residence by citizens of other republics of the former SFRY as referred to in the previous paragraph whose forcible removal as a foreigner was ordered under section 28 of the Aliens Act (Official Gazette RS, No. 1/91-1 and 44/97).
3. Section 1 of the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia is inconsistent with the Constitution for the reasons mentioned in the reasoning of this decision.
4. Subsections 1 and 2 of section 2 of the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia are abrogated in the parts in which they determine a time-limit of three months for submitting an application for the issuance of a permit for permanent residence. ...
7. The legislature is obliged to remedy the unconstitutionalities established in paragraphs 1, 2 and 3 of the operative provisions within six months from the date of the publication of this decision in the Official Gazette of the Republic of Slovenia.
8. The permanent residence status of citizens of other republics of the former SFRY is hereby established from 26 February 1992 onwards if they were removed on that day from the Register of Permanent Residents, by means of a permit for permanent residence issued on the basis of the Act on Regularisation of the Legal Status of Citizens of Other Successor States to the Former SFRY in the Republic of Slovenia, the Aliens Act (Official Gazette RS, Nos 1/91-1 and 44/97), or the Aliens Act (Official Gazette RS, No. 61/99). The Ministry of the Interior must as an official duty issue supplementary decisions on the establishment of their permanent residence in the Republic of Slovenia from 26 February 1992 onwards.
R e a s o n s :
...
15. As the challenged Act does not enable citizens of other republics to acquire permanent resident status from the day when it was not formally recognised in their case [that is, when such status was taken away], and thus only partially remedies the established unconstitutionality, it is inconsistent with the Constitution. The principle of legal certainty as one of the principles of a State governed by the rule of law under Article 2 of the Constitution requires that the position of the persons concerned should not remain unregulated for any period of time. Permanent resident status is an important linking aspect for claiming certain rights and legal benefits which the persons concerned could not claim owing to the legally unregulated state of affairs. Their position in the Republic of Slovenia was legally uncertain owing to the unregulated state of affairs, as by acquiring the status of foreigner they lost their permanent resident status in the territory of the Republic of Slovenia and found themselves in an unregulated position or in an essentially worsened legal position (for example, that of having temporary resident status), which has lasted, in the case of some of the adversely affected persons, for as much as ten years. From the recommendation that the National Assembly made in the light of the 7th annual report of the Human Rights Ombudsman for the year 2001 (Official Gazette RS, No 2/03), it follows that the issue of the legal position of such citizens of other republics still calls for legal regulation. ...
22. On account of the fact that their permanent resident status was not recognised from the day when their legal status was, following the gaining of independence by the Republic of Slovenia, changed to the [different] status of a foreigner, citizens of other republics were not able to assert certain rights that they would have otherwise been entitled to as foreigners permanently residing in the Republic of Slovenia. The petitioners did not explicitly define these rights; however, from the decisions of the Constitutional Court it follows that these concerned, in particular, the right to the advance payment of a military pension, the right to social-security benefits and the ability to change one’s driving licence. ...”
216. The Arbitration Commission of the Conference on Yugoslavia (commonly known as the Badinter Arbitration Commission, chaired by Mr Robert Badinter) was a commission set up by the Council of Ministers of the European Economic Community on 27 August 1991 to provide the Conference on Yugoslavia with legal advice. The Badinter Arbitration Commission handed down fifteen opinions on “major legal questions” arising from the dissolution of the SFRY.
217. In its Opinion No. 9, the Commission considered how the problems of State succession resulting from the dissolution of the SFRY should be resolved. It ruled that they should be resolved by mutual agreement between the various successor States.
218. The principal Council of Europe instrument concerning citizenship is the European Convention on Nationality, which was adopted on 6 November 1997 and entered into force on 1 March 2000. Slovenia has not signed this convention, the relevant part of which reads:
“1. In matters of nationality in cases of State succession, each State Party concerned shall respect the principles of the rule of law, the rules concerning human rights and the principles contained in ... this Convention ..., in particular in order to avoid statelessness.
2. In deciding on the granting or the retention of nationality in cases of State succession, each State Party concerned shall take account in particular of:
(a) the genuine and effective link of the person concerned with the State;
(b) the habitual residence of the person concerned at the time of State succession;
(c) the will of the person concerned;
(d) the territorial origin of the person concerned.
...”
219. On 19 May 2006 the Council of Europe adopted the Convention on the Avoidance of Statelessness in relation to State Succession. This convention entered into force on 1 May 2009. Slovenia has not signed it. The relevant parts read as follows:
“1. A successor State shall grant its nationality to persons who, at the time of the State succession, had the nationality of the predecessor State, and who have or would become stateless as a result of the State succession if at that time:
(a) they were habitually resident in the territory which has become territory of the successor State, or
(b) they were not habitually resident in any State concerned but had an appropriate connection with the successor State.
2. For the purpose of paragraph 1, sub-paragraph b, an appropriate connection includes inter alia:
(a) a legal bond to a territorial unit of a predecessor State which has become territory of the successor State;
(b) birth on the territory which has become territory of the successor State;
(c) last habitual residence on the territory of the predecessor State which has become territory of the successor State.”
“States concerned shall take all necessary steps to ensure that persons concerned have sufficient information about rules and procedures with regard to the acquisition of their nationality.”
220. On 26 May 2005 the Advisory Committee on the Framework Convention for the Protection of National Minorities adopted its second opinion concerning Slovenia and expressed concern about the problematic situation of the “erased”. On 1 December 2005 the Government filed their written comments (see the relevant part of the report in Kurić and Others v. Slovenia, no. 26828/06, § 262, 13 July 2010 – hereinafter referred to as “the Chamber judgment”).
221. On 14 June 2006 the Committee of Ministers of the Council of Europe adopted Resolution ResCMN(2006)6 on the implementation of the Framework Convention for the Protection of National Minorities by Slovenia. It noted as an issue of concern the situation of the “erased”.
222. The Council of Europe Commissioner for Human Rights has addressed the issue of the “erased” on a number of occasions and addressed recommendations to the Government in order to remedy the situation (see the relevant extracts of the Commissioner’s reports in paragraphs 264-265 of the Chamber judgment).
223. Further to his visits, during which he discussed the issue of the “erased” with the Slovenian authorities, he sent letters to the Prime Minister in office. In his letter of 10 May 2011 he expressed appreciation of the Government’s determination to find a solution for “the erased”. He welcomed the enactment of the amended Legal Status Act. He nevertheless expressed concern that the law did not fully remedy the negative impact of the “erasure”. Only 127 of the “erased” had submitted requests under the new law at that time and thirty-two of them had been rejected. The fulfilment of the condition of actual residence for those who had left Slovenia for longer than ten years continued to be a problem in his view. He was also concerned by the non-existence of any reparation mechanism at the domestic level that would provide redress to the “erased”. He added that a number of the “erased” persons had become stateless and drew attention to the Council of Europe’s international-law instruments on the avoidance and the reduction of statelessness and the need for Slovenia to ratify them.
224. On 13 February 2007 the European Commission against Racism and Intolerance (“ECRI”) published its third report on Slovenia, which was adopted on 30 June 2006. This report described the situation of the “erased” and made recommendations to the Government (for the relevant extracts see paragraph 266 of the Chamber judgment).
225. In 1961 the United Nations adopted the Convention on the Reduction of Statelesness. Slovenia has not ratified it.
226. In 1999 the International Law Commission of the United Nations adopted the Draft Articles on Nationality of Natural Persons in relation to the Succession of States. Article 6 of the Draft Articles states as follows:
“Each State concerned should, without undue delay, enact legislation on nationality and other connected issues arising in relation to the succession of States consistent with the provisions of the present draft articles. It should take all appropriate measures to ensure that persons concerned will be apprised, within a reasonable period, of the effect of its legislation on their nationality, of any choices they may have there under, as well as of the consequences that the exercise of such choices will have on their status.”
227. On 24 August 2010 the United Nations Committee on the Elimination of Racial Discrimination issued concluding observations stating, inter alia:
“While taking note of the adoption in March 2010 of the law regulating the legal status of the ‘erased’ people, the Committee remains concerned at the situation of the non-Slovenes from the former Yugoslavia, including Bosnians, ethnic Albanians from Kosovo, Macedonians and Serbs, whose legal status remains unresolved and who are therefore facing difficulties in terms of access to social and economic rights, such as access to healthcare services, social security, education and employment. The Committee is also concerned that the new law does not envisage any outreach campaign directed towards the ‘erased’ people living abroad in order to inform them of its existence ...
The Committee recommends that the State party:
(a) Resolve definitely the legal status of all concerned citizens from the former Socialist Federal Republic of Yugoslavia States presently living in Slovenia;
(b) Ensure the full enjoyment of their economic and social rights including the access to health services, social security, education and employment;
(c) Conduct an outreach campaign to inform the ‘erased’ currently living outside Slovenia of the existence of the new legislative measures and the possibility of benefiting from them; and
(d) Grant full reparation, including restitution, satisfaction, compensation, rehabilitation and guarantees of non-repetition, to all individuals affected by the ‘erasure’.”
228. On 20 June 2011 the United Nations Committee against Torture issued its concluding remarks, stating, inter alia:
“While noting the legislative measures taken to amend the Act Regulating the Legal Status of citizens of Former Socialist Federal Republic of Yugoslavia Living in the Republic of Slovenia in order to remedy the provisions that were found to be unconstitutional, the Committee remains concerned that the State party failed to enforce the Act and to restore the residency rights of persons, known as the ‘erased’, originating from other Yugoslav republics whose permanent residence in Slovenia was unlawfully revoked in 1992 and already returned to other republics of Former Socialist Republic of Yugoslavia. The Committee is concerned that the discrimination against the so called ‘erased’ persons, including against those who belong to Roma community, is persistent (arts. 3 and 16).
In light of its general comment No. 2 (2008) on implementation of article 2 by States parties, the Committee recalls the special protection of certain minorities or marginalized individuals or groups especially at risk is part of the State party’s obligations under the Convention. In this respect, the Committee recommends that the State party takes measures to restore the permanent resident status of the so-called ‘erased’ persons who were returned to other States in Former Socialist Federal Republic of Yugoslavia. The Committee also encourages the State party to facilitate the full integration of the ‘erased’ persons, including of those who belong to Roma communities and guarantee them with fair procedures for application for citizenship.”
VIOLATED_ARTICLES: 13
14
8
VIOLATED_PARAGRAPHS: 8-1