The Erasure: Administrative Ethnic Cleansing in Slovenia
29 October 2003
THIS ARTICLE PRESENTS the results of research into the legal status of Roma in Slovenia.2 Many Roma in Slovenia today are stateless and without any personal documents. The failure of the Slovene state to regulate their legal status exposes these individuals to grave violations of their fundamental human rights. A considerable number of the stateless Roma were victims of the 1992 erasure of non-Slovene residents from the Registrar of Permanent Residents carried out by the Slovene authorities, apparently in an effort to preclude them from being counted among the initial group of citizens of the new Slovenian state.
Slovene legislation distinguishes two categories of minorities and Roma, respectively - "non-autochthonous" and "autochthonous".3 Regardless of the existence of this legal distinction, there is no legal definition of the term "autochthonous", and it is not found in the text of the constitutionally guaranteed protection of the Romani community.4 This distinction entails serious disadvantages for "non-autochthonous" Roma. According to the Slovene legislation, only "autochthonous" minorities ("autochthonous" Roma, Hungarian and Italian national minorities) enjoy the special minority protection accorded by domestic and international standards, whereas members of all other ethnic minorities enjoy only individual rights and freedoms.5
Furthermore, this distinction has had a decisive impact on government programmes aimed at the improvement of the socio-economic position of the Romani minority. Only "autochthonous" Roma are beneficiaries of such programmes. The problems of "non-autochthonous" Roma, such as lack of Slovene citizenship and personal documents, receive no special attention.6
The issue of "autochthonousness" was addressed by the Constitutional Court in the Šajnovic case,7 where the Court declared the Law on Local Self-Government8 (LLSG) unconstitutional as it does not provide for any measure to ensure representation of Roma in municipal councils.
In 1997, the petitioner, Mr Rajko Šajnovic, the former president of the Romani association Rom, wanted to stand as a Roma councillor in Novo Mesto, a town in southern Slovenia. However, his candidacy was rejected because the municipal statute did not provide for a reserved seat for a Romani representative. He filed a constitutional complaint claiming that the Novo Mesto municipal statute was in breach of Article 39 of the LLSG because it did not provide for a Romani councillor in the municipal council.
The Court declared the Statute of the Novo Mesto Municipality unconstitutional because it did not provide for a Romani representative in the municipal council, and rejected the claim of the municipality that the Romani community on the territory of the Novo Mesto Municipality is non-autochthonous. The Court also ruled that Article 39 of the LLSG is unconstitutional, as it does not determine which municipalities are obliged to provide for a Romani councillor and it contains no definition of "autochthonous" Roma. The Court recognised the distinction between "autochthonous" and "non-autochthonous" Roma as legitimate by establishing that "autochthonous" Roma are those who have lived in Slovenia for more than three generations or a century.9
On the basis of this decision, the National Assembly amended the LLSG, requiring that 20 municipalities, which had "autochthonous" Roma within their territories, should provide for at least one Romani representative in the municipal council before the local elections in November 2002.10 The criterion of "autochthonously settled Romani community within a municipality's territory" was used in order to determine whether the municipality is obliged to provide for a Romani councillor.
Seventeen municipalities complied with the law. However, the so-called "rebellious municipalities"11 refused to amend their statutes and filed a complaint before the Constitutional Court. These municipalities claimed that the legislation arbitrarily determined the municipalities in which autochthonous Roma live. Their main argument was that the legislation did not contain the criteria for establishing the existence of autochthonous Roma within the municipality's territory, as prescribed by the Šajnovic case.12 The Court rejected their claims and held that the legislation set the criteria for "autochthonousness" ("autochthonous settlement") in a non-arbitrary manner and in compliance with the Constitution.13
On the basis of the Constitutional Court decision, the right of the Romani minority to have representatives in municipal councils is accorded only to "autochthonous" Roma. However, the primary problem remains: the legislation does not provide a definition of, or criteria for, "autochthonousness", according to which it would be possible to determine which Roma are "autochthonous" and which are not.
The Erasure and Its Consequences for the "Non-Autochthonous" Roma
Slovenia gained its independence and state sovereignty in June 1991. Almost 12 years later, however, there are still 4,000-5,000 persons with unregulated status in Slovenia.14 This figure, provided by the Ministry of Interior, encompasses former permanent residents in Slovenia who have not obtained Slovene citizenship or any legal status as a resident alien since 1991.
This problem affects "non-autochthonous" Roma in particular, most of whom migrated to Slovenia from other parts of the former Socialist Federal Republic of Yugoslavia (SFRY) for economic or other reasons, prior to its dissolution in 1991. According to the president of the Romani Association Ljubljana, around 70% of "non-autochthonous" Roma are without Slovene citizenship.15 Field research carried out by the author as part of an ERRC project indicates that around half of the Roma without Slovene citizenship have no personal documents, which results in high levels of statelessness among Roma.16 The figures show that lack of citizenship and of any legal status usually affects whole families, including children who were born after 1991, when Slovenia became an independent state.
In particular, the lack of personal documents poses serious obstacles for Roma in such areas as employment, health care, education and housing. As the Law on Social Protection17 confers the right to social security only to citizens and permanent residents, Roma who have the status of temporary aliens and those without any legal status are denied access to welfare benefits.
Large numbers of Roma without Slovene citizenship and personal documents were affected by the erasure of files from the Registrar of Permanent Residents (RPR) of the Republic of Slovenia. On February 26, 1992, the Slovene Ministry of Interior secretly erased files of non-Slovenes from registers of permanent residents of Slovenia. These files were transferred from the active to the passive or the so-called "dead" Registrar of Permanent Residence, which means that the persons were treated as permanent residents who no longer live in Slovenia for various reasons, such as permanent emigration and death.
According to government figures from June 2002, 29,064 persons were erased.18 However, an internal document of the Minister of Interior from 1996 mentions a number of around 83,000 "new aliens" (Slovene: zatečeni tujci).19 According to the Ljubljana-based Helsinki Monitor of Slovenia (HMS), the figures vary from 62,816, which was the figure provided to the HMS by the Ministry of Interior in December 2000, to the HMS's own estimate of 130,000 persons.20
Who are the erased? They are the citizens of other republics of the former SFRY who had permanent residence in Slovenia prior to its independence and who did not obtain Slovene citizenship under Article 40 of the Law on Citizenship21 for various reasons: Either they had no interest in acquiring Slovene citizenship, or - for instance, those born in Slovenia - they did not know that they had to apply, thinking that they were already Slovene citizens. Also erased were those who applied for citizenship within the prescribed six-month period but whose applications were rejected on the grounds that they "pose a threat to public order or the security and defence of the State" (Article 40, paragraph 3 of the Law on Citizenship). In some instances citizenship was even subsequently withdrawn.
In one case decided by the Supreme Court in 1993,22 a Romani man with Macedonian citizenship was denied Slovene citizenship although he had lived in Slovenia for 14 years, had permanent residence and applied for Slovene citizenship within the prescribed period. He had, however, been sentenced for various misdemeanours six times in the period 1974-1990. Therefore, the Ministry of Interior rejected his application on the basis of its discretionary powers under Article 40, paragraph 3, of the Law on Citizenship, with the explanation that he posed a threat to the public order of the Republic of Slovenia. The applicant claimed that he had committed misdemeanours only to earn his livelihood and that he could not go back to Macedonia because he had no residence there, but the Court upheld the Ministry's decision.
In 1999, the Constitutional Court annulled Article 40, paragraph 3, of the Law on Citizenship concerning the threat to public order.23 However, this decision did not provide redress for persons who had already been denied citizenship because of this article or whose citizenship had been withdrawn on the same grounds. These persons could reapply for citizenship only under the regular naturalisation procedure in accordance with Article 10 of the Law on Citizenship. However, they would again be subject to examination of "whether they pose a threat to the public order" in accordance with Article 10, paragraph 1, item 8.
The consequences of the erasure were devastating for "non-autochthonous" Roma in particular.24 The erased became aliens staying illegally on the territory of the Republic of Slovenia and had to regulate their alien status in accordance with the Law on Aliens.25 Their prior residence in Slovenia did not count as the period prescribed for the acquisition of renewed permanent residence because they were not aliens before February 26, 1992, when their files were erased from the RPR.
The erased received no prior notification regarding the change of their status and the erasure itself was carried out by the Ministry of Interior in secrecy and without any legal ground. Therefore, the erased could not complain against this decision nor seek any remedy for the injustices caused by the erasure.
Furthermore, the erasure did not result only in the loss of the status of permanent residence, but also in the loss of all rights attached to this status, such as the right to work, protection from unemployment, social security, health care, housing and education. The denial of most of the fundamental economic and social rights of the erased is completely at odds with the principle that Slovenia is a social state.26
Other fundamental rights of Roma have been violated by Slovene authorities. There are many documented cases of arbitrary expulsions from Slovenia, detentions in centres for aliens and police violence.27
Mr Kadri Bajram, a 28-year-old Macedonian Roma and one of the erased, suffered police harassment on several occasions and was arbitrarily deported from Slovenia in 1996. According to his testimony to the author, as he and his family had lost the status of permanent residents, they acquired three-month tourist visas in order to enter Slovenia in 1996. After his visa had expired, Mr Bajram was checked by the police and taken to the police station where his passport was taken away. The following day he was brought before a court where he was told that he would have to pay a fine. He paid, thinking that he would be released. However, later he was told by the police that he was to be deported from Slovenia. Although Mr Bajram was a Macedonian citizen, he was handed over to Croatian police officers at the border. After he arrived in Zagreb, the Croatian police returned his Macedonian passport and released him. Mr Bajram tried to re-enter Slovenia several times unsuccessfully. Three months following his expulsion, he managed to enter Slovenia illegally. He obtained permanent residence only in 2002, almost three years after he had applied for permanent residence under the Law on the Settling of the Status of Citizens of Other Succession States of Former SFRY in the Republic of Slovenia (see below).28
The results of research on the erasure indicate that the erasure and all its legal consequences were systematically carried out by Slovene authorities in order to force thousands of ethnic non-Slovenes (i.e. Albanians, Bosniaks, Croats, Roma, Serbs, etc.) to leave Slovenia. Unfortunately, the efforts of the Slovene authorities to cleanse non-Slovenes from Slovenia have been largely successful. Due to the existential hardship in which many erased found themselves after the erasure, many emigrated with their families from Slovenia, either to their countries of origin or to Western European countries.
The Constitutional Court ruled on a constitutional complaint filed in 1994 by two of the erased, Mr Blagoje Mikovic and Mr Vojislav Tomic, only in 1999.29 The petitioners challenged the constitutionality of Article 81, paragraph 2, of the Law on Aliens,30 which was used as a legal ground for the erasure by the Ministry of Interior.
In its decision,31 the Court declared the erasure unconstitutional and ordered that the status of people who became foreigners after February 26, 1992, should be regulated.
As a result, in July 1999, the National Assembly adopted the Law on the Settling of the Status of Citizens of Other Succession States of Former SFRY in the Republic of Slovenia (LSSCOSS),32 which opened a three-month window for filing an application for permanent residence under certain conditions.33 In total, 12,937 persons applied for permanent residence. By February 2003, 12,047 applications had been processed, of which 10,713 were approved, 288 were rejected, 97 were discarded and in 949 cases the procedure was stopped, either because the applicant withdrew the application or had become a citizen in the meantime.34 This means that around 900 applications remained unresolved as of February 2003.
Many Roma did not apply within the period prescribed by the LSSCOSS, mostly because they were not informed about this opportunity in time. However, many Roma who did apply within the three-month period were rejected for various reasons. Such is the case of Mr Kemalj Sadik, a 53-year-old Romani man from Macedonia, who had had a registered permanent residence in Ljubljana since 1979.35 Prior to the dissolution of SFRY and Slovenia's independence, he was a successful entrepreneur and his family owned two houses in Ljubljana. In 1991, when Slovenia gained independence and opened a six-month window for citizens of other republics of the former SFRY with permanent residence in Slovenia to file an application for Slovene citizenship, he was absent from Slovenia on business. Consequently, he and his wife were erased on February 26, 1992, whereas their three children, who filed an application within the prescribed period, obtained Slovene citizenship.
Mr Sadik could not carry out his business any more due to the erasure. However, he still had to pay taxes. Evidently, the erasure resulted only in the deprivation of rights, not of duties. Having no possibility to work in Slovenia, Mr Sadik, like other erased, was forced to settle his status in Slovenia anew. His old Yugoslav passport and personal identity documents were destroyed by officials. Having been born in Macedonia, he was recognized as a Macedonian citizen. He was, therefore, forced to go to Macedonia to obtain a Macedonian passport in 1992. On his way back to Slovenia, the border police did not allow him to enter Slovenia, because allegedly he did not have a valid visa. Mr Sadik argued that his family and his home were in Slovenia, but the police did not allow him to enter and even physically injured him and called him "cefur".36 Mr Sadik therefore entered Slovenia illegally. He was caught by the border police and sentenced to 14 months imprisonment. He was released after serving eight months of the sentence.
Due to the erasure, Mr Sadik lost his permanent residence and could no longer carry out his business or obtain a new job. He and his wife were not entitled to social support and also had no health care. On one occasion in 1999, Mr Sadik was even taken to the Transit Centre for Aliens for expulsion, although he was later released, because at that time official policy "softened" towards those erased who had families in Slovenia. The government's official policy towards the erased had changed due to the Constitutional Court decision that the erasure was unconstitutional and illegal. Also, the European Union urged the Slovene government to settle this issue and regulate the status of persons without documents.37
In 1999, Mr and Mrs Sadik filed applications for permanent residence under the LSSCOSS. In 2000, Mrs Sadik obtained permanent residence. However, according to the Ministry of Interior no application by Mr Sadik had been received. Fortunately, Mr Sadik had kept the mail receipt proving that he had filed the application in time. In 2002, the Ministry issued him a humanitarian visa for a nine-month period, on the basis of which Mr Sadik applied for a work permit and was entitled to social assistance. In March 2003 he also obtained Slovene citizenship under Article 19 of the amended Law on Citizenship.
Mr Sadik could not carry out his business for 11 years, nor could he or his wife get jobs. He lived without any social support for 10 years and he was forced to sell a house in order to support his wife and himself. During this time, his freedom of movement was curtailed as he could not leave Slovenia.
Although the Constitutional Court decision of 1999 required the government to settle the status of persons who had been erased and to recognise their permanent residence retroactively, the LSSCOSS envisaged only the acquisition of permits for permanent residence, but did not return to the erased their status retroactively. The LSSCOSS, in effect, legalised the erasure and its detrimental consequences by excluding from its scope those erased who had been deported from, or prevented from entering Slovenia on the basis of the unconstitutional and illegal act of the erasure. As a result, the Constitutional Court had to rule on this issue again and this time it explicitly wrote that all erased must be formally recognised retroactively, in line with the purpose of the 1999 Court's decision.38
Similar deficiencies are contained in the amendment of the Law on Citizenship,39 which enables people who had a registered permanent residence in Slovenia on December 23, 1990, and have lived there without interruption to apply for citizenship within a one-year period. Like the LSSCOSS, Article 19 of the amended Law on Citizenship excludes from its scope those erased persons who were absent from Slovenia for a certain period due to the erasure.40 In addition, the requirement that applicants must demonstrate knowledge of the Slovene language will pose a serious obstacle for many Roma, in particular for the elderly and for those with little education.41
Roma, as the most deprived and marginalized ethnic group, have been disproportionately affected by the erasure. As mentioned above, around two thirds of "non-autochthonous" Roma are still without Slovene citizenship and many of them are still without any legal status and personal documents. There are many reported cases of police harassment of Roma without documents who have been threatened with expulsion from Slovenia and verbally assaulted as "Gypsies" and "cefurs". In its concluding observations on Slovenia in its 2000 report, the United Nations Committee against Torture stated that in some instances, Roma were victims "of police ill-treatment and excessive use of force," which "reportedly resulted in severe injuries."42
A New Bill: Déjà Vu?
Mr Sadik's story is only one among tens of thousands of personal and family tragedies, which have been taking place for the last decade in Slovenia. Regrettably, the Slovene authorities have adopted an extremely formalistic approach towards the erasure and the erased and still claim that the legal proceedings concerning the erased have always been "correct" and that "they were grounded in the Constitution."43
Only recently, due to the pressure of some non-governmental organisations and, in particular, upon the establishment of the Association of the Erased Residents in Slovenia and the engagement of former Constitutional Judge Mr Krivic, legal representative of the Association and of erased individuals, the government finally recognised that "injustices occurred in some cases and that they should be remedied."44
Apparently, there is not sufficient political will in independent Slovenia to remedy the human rights violations caused by the erasure. This is not so surprising if we take into account that the politicians and parties who were in power when the erasure was initiated and implemented are the same today. The public debate on the erasure has focused on the issue of political responsibility and accountability, as Slovenia will have to pay compensation to the erased in the future.
As the authorities have not provided adequate solutions to the injustices caused by the erasure, civil society has acted. The HMS was the first non-governmental organisation which brought this issue to the attention of the public, EU institutions and international human rights bodies. Change has also come about as a result of engagement on the issue by organisations such as the Slovene branch of Amnesty International, the Peace Institute, the European Roma Rights Center and the Open Society Institute. A crucial point in the strengthening of the civil society efforts was the establishment of the Association of the Erased Residents of Slovenia, formed by erased individuals and human rights activists. On the 11th anniversary of the erasure (February 26, 2003), the Association organised protests and other public events. These included showing a documentary about the erased made by the British TV Channel 4, a roundtable discussion and a lecture for ambassadors in Slovenia, which attracted significant media attention. Many erased Roma engaged in all the activities carried out by the Association and human rights activists and some joined the Association as active supporters. In addition, they have informed other Roma who have been affected by the erasure of the need to claim their rights. Endnotes:
The Cooperation of Roma and Civil Society
According to Article 40, paragraph 2, however: "Regardless of whether the person fulfils the conditions from the preceding paragraph a petition for citizenship of the Republic of Slovenia is turned down if the person has since June 26, 1991 committed a criminal offence from Chapter 15 or 16 of the Penal Code of the Socialist Federal Republic of Yugoslavia (Official Gazette of the Socialist Federal Republic of Yugoslavia, nos. 44/76, 34/84, 74/87, 57/89, 3/90 and 38/90) directed against the Republic of Slovenia or other values which in accordance with the provision of the first paragraph of Article 4 of the Constitutional Law on the Implementation of the Fundamental Constitutional Deed on Independence of the Republic of Slovenia are protected by the penal legislation of the Republic of Slovenia irrespective of where the offence was committed. If criminal proceedings were instigated for the offence, the procedure for the acquisition of citizenship is suspended until the criminal proceedings are finished."
Furthermore, according to Article 40, paragraph 3, regardless of whether the applicant fulfils the conditions of Article 40, paragraph 1, the application may be rejected on the grounds of Article 10, paragraph 1, item 8, the latter stipulating that "the person's admission to citizenship of the Republic of Slovenia poses no threat to public order or the security and defence of the State". (Uradni list Republike Slovenije, Nos. 1/91, 30/91, 38/92, 13/94, 96/2002).
When deciding on the grounds of the previous paragraph, the competent body may consider the person's length of residence in the state, his/her personal, family, economic, social and other ties connecting him/her with the Republic of Slovenia, and the consequences entailed by the refusal of the application for admission in the citizenship of the Republic of Slovenia for the person concerned, with regard to the fulfilment of the conditions set in items 6 and 8 of the first paragraph of Article 10 of the Law on Citizenship." (Unofficial translation by the author.)
• The person must demonstrate active command of Slovene language (paragraph 1, item 5);
• The person should not have been sentenced in the state of which he/she was a citizen or in the Republic of Slovenia to a prison term longer than one year for a criminal offence prosecuted by law if such an offence is punishable by the laws of his/her own country or by the laws of the Republic of Slovenia (paragraph 1, item 6);
• The person's admission to citizenship of the Republic of Slovenia poses no threat to public order or the security and defence of the State (paragraph 1, item 8); and
• The person renders a statement that he/she recognizes the legal order of the Republic of Slovenia by virtue of acquiring the citizenship of the Republic of Slovenia (paragraph 1, item 10).
As the authorities have not provided adequate solutions to the injustices caused by the erasure, civil society has acted. The HMS was the first non-governmental organisation which brought this issue to the attention of the public, EU institutions and international human rights bodies. Change has also come about as a result of engagement on the issue by organisations such as the Slovene branch of Amnesty International, the Peace Institute, the European Roma Rights Center and the Open Society Institute. A crucial point in the strengthening of the civil society efforts was the establishment of the Association of the Erased Residents of Slovenia, formed by erased individuals and human rights activists. On the 11th anniversary of the erasure (February 26, 2003), the Association organised protests and other public events. These included showing a documentary about the erased made by the British TV Channel 4, a roundtable discussion and a lecture for ambassadors in Slovenia, which attracted significant media attention. Many erased Roma engaged in all the activities carried out by the Association and human rights activists and some joined the Association as active supporters. In addition, they have informed other Roma who have been affected by the erasure of the need to claim their rights.