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Restoring the Erased

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It took two decades, but the Erased finally got their day in court. And the court ruled in their favor.

On June 26, 2012, the European Court of Human Rights upheld a lower court ruling that Slovenia had violated the European Convention on Human Rights in its treatment of the roughly 25,000 people stripped of residency in the wake of the country's independence. The Grand Chamber ruled that, among other things, Slovenia discriminated against former Yugoslav nationals (in comparison to other resident aliens). The ruling also mandated that Slovenia pay compensation to the group that has come to be known as the Erased.

The Erasure took place in 1992. The first organization of the Erased was founded in 2002. And now, after a half dozen years of legal battle, victory was secured in 2012.

Neza Kogovsek Salamon, who heads up the Peace Institute in Slovenia, has been one of the architects of the legal strategy that culminated in Kuric and Others vs. Slovenia, the case that generated the European Court decision.

"It was actually a case that started with 11 applicants, and it started with some activists outside of the Peace Institute," she told me back in October. "Nothing was happening at the time. The politicians were ignoring the issue, unless they used the issue against the Erased to gather political points. So, it was a very desperate situation for the victims and for the civil society. A group of activists decided that something had to be done, and the only thing that hadn't been explored yet was the European Court of Human Rights. That's how they started to gather cases."

We were talking in the Peace Institute offices, which are located in Metelkova, the former army barracks that activists squatted in the 1990s. In addition to a youth hostel and several nightclubs, Metelkova houses a large collection of NGOs, including the Peace Institute. The alternative culture nurtured at Metelkova provided a good deal of support for the Erased at a time when the Slovenian mainstream was oblivious about the issue.

After the European Court decision, the major issue remaining is compensation: how much, for whom, in what form, over what period of time. Few people in Slovenia, however, expect that the government will ignore the judgment.

"This court is actually the most successful international court on the planet," Neza Kogovsek Salamon explained to me. "When it comes to success rate, the number of judgments issued, the number of decisions implemented, there is no comparable institution in the world. If the Republic of Slovenia wants to be a democratic state, if it wants to be in the group of other democratic states without having to defend itself all the time, then it simply has to respect the decisions of the highest judicial bodies in Europe."

In this interview, she guided me through the thorny legal issues, the question of compensation, and the implications of the case for human rights more generally. Below this interview, I've also included excerpts from our 2008 conversation.

The Interview

Tell me what happened after you first brought the case to the European Court of Human Rights.

We worked on the case very seriously for three years. Then, the European Court of Human Rights issued the first decision on the merits, and it found in favor of the applicants. Unfortunately there were only 10 of them left, because one had died. There was another misfortune with the cases, because the court only found in favor of eight applicants. Two of them had already received permanent residence permits at the time, so the court said that this was a sufficient remedy offered to the people by the state. So, only eight of them were still victims in this case, because they still didn't have any permanent residence issued by the state. It was a win, but it had some serous downsides.

There was a big question about what would happen next. The Slovenian government made it very easy. Both the attorneys and the applicants were undecided whether to appeal the case or not. They decided to appeal only with regard to the two who were left out. The Slovenian government, however, appealed everything. The government was not happy with the verdict, even though it was actually quite good for the government. Even though the court found in favor of the applicants, it decided that returning a permanent residence to the people is sufficient, without any compensation. This actually doesn't cost very much, when you look at it from the point of view of the government. But this was a very bad outcome for the applicants, and for the community of the Erased in general. The Slovenian government didn't really see it that way.

A year after that, in 2011, there was a public hearing. Of course the Court held public hearings all the time. But for the Erased people, of course, it was a key event. Our project made sure that they went to Strasbourg to attend the hearing, so that the judges could actually see the people about whom they are deciding. When you see the applicants, you can see their suffering, what they have been through in the last 20 years, on their faces. So it was quite important for us that this is not just an abstract legal issue for the judges but that it actually has a very serious impact on the victims of the violation.

That was quite an event, you can imagine. Some of the applicants, they were getting outside of the country for the first time in 20 years because they simply had no documents before that. We even asked the court to give them special permission if the police would stop their bus and they could show these documents of the European Court of Human Rights saying that they are going to attend the hearings. This was quite an emotionally strong period for the applicants and for the whole team.

Finally, in 2012, the grand chamber issued the second judgment, which was great for the Erased in most aspects. Six of the remaining eight applicants were granted compensation. In the meantime these six people had also received permanent residence from the government. So the key question was whether the grand chamber was going to consider the giving back of permanent residence to be a sufficient remedy. If they said yes, then the whole case would be lost. There were only two people that didn't get permanent residence, and this is because they didn't apply in time. One of them applied later, but one didn't apply at all. They said, "We want the state to give it back to us without applying."

But the court said that these six people who had already received permanent residence are still victims, because this is not sufficient. It only stops the violations from continuing, but it doesn't really remedy anything from the past. For the past there has to be compensation--this was the key message of the European Court of Human Rights. The six applicants got 20,000 Euros each for non-pecuniary damages. They are still waiting for pecuniary damages to be determined, which means they will probably get something more. Which again, is probably not so much when you think about the 20 years of suffering. But still it is a very high compensation from the European Court of Human Rights when you look at its case law. It's not very often that the court grants such a high compensation.

What's the difference between pecuniary and non-pecuniary?

To read the rest of the interview, click here.