In this case the Court unanimously found a clear violation of Article 8 of the Convention, considering that the “erasure” of the applicants amounted to an interference with their “private or family life” or both within the meaning of Article 8 § 1 of the Convention (see Slivenko v. Latvia [GC], no. 48321/99, § 96, ECHR 2003-X).
The main and the worst consequence of the “erasure” was that it was factually and legally impossible for the applicants to obtain permanent residence permits and/or Slovenian citizenship, and thus to continue to enjoy the full range of social and political rights which they had enjoyed prior to Slovenia’s independence, having been lawfully residing there for several years, or even decades, as former SFRY citizens.
As the Court pointed out in paragraph 356 of the judgment, “owing to the
‘erasure’, they experienced a number of adverse consequences, such as the destruction of identity documents, loss of job opportunities, loss of health insurance, the impossibility of renewing identity documents or driving licences, and difficulties in regulating pension rights. Indeed, the legal vacuum in the independence legislation ... deprived the applicants of their legal status, which had previously given them access to a wide range of rights” (emphasis added).
While I agree with the general sense of paragraph 356 of the judgment, which captures the essence of this case, this paragraph is, in my opinion, to some extent legally incomplete and unfinished. This is no “ordinary violation” of Article 8 § 1 of the Convention. We are dealing with large-scale violations of the right of every person to be a person before the law, the right to his or her legal personality.
This absolutely fundamental right is directly provided for by Article 6 of the Universal Declaration of Human Rights and by Article 16 of the International Covenant on Civil and Political Rights. This per se testifies abundantly to the fact that we are dealing here with something extraordinary! Moreover, the right to legal personality is very well founded in universal and customary international human-rights law. This right is a fundamental precondition for the enjoyment not only of the basic human rights and freedoms, but also of the whole range of different substantive and procedural rights.
By their “erasure” the applicants were de facto deprived of their legal personality, because they had been simply and ruthlessly “erased” from the legal order of Slovenia. They ceased to exist as “legal subjects” – that is, as
“natural persons” in the Slovenian legal system. They were treated as disposable objects and not as subjects of the law. Needless to say, this runs counter to the applicants’ inherent human personality and dignity.
The fact that this right is not mentioned expressis verbis in the Convention does not mean that it is not indirectly and tacitly included within the ambit of Article 8 § 1 of the Convention. As the Court has ruled on several occasions, the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers, among many other things, the personal identity and physical, psychological and moral integrity of a person. It can therefore embrace multiple aspects of the person’s physical, social and moral identity and dignity. The right to private life cannot be restricted to the so-called “inner circle” of human existence, in which an individual may live his or her own personal life as he or she chooses, thus excluding entirely the outside world not encompassed within that circle.
Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings (see Niemietz v. Germany, 16 December 1992, § 29, Series A 251-B). It follows necessitate nature that Article 8 protects in addition the right to personal development and the right to establish and develop relationships with other human beings as well as the outside world, even in the public context, which may also fall within the scope of “private life” (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008, and P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX).
On the one hand, it is absolutely clear that the right to legal personality is a basic precondition and essential necessity both for the realisation and enjoyment of the aforementioned different aspects of private life, including the so-called “inner circle”, and also – in the public context – for the
“external development” of personality.
On the other hand, the right to legal personality is a normal, natural and logical consequence of human personality and inherent human dignity; it is a natural and inherent part of every human being and his or her human personality. The broad, non-exhaustive and flexible nature of Article 8 of the Convention obviously means that this right is included within its comprehensive ambit. This right is tacitly, but very clearly, included and deeply rooted in the concept of individual personality and inherent human dignity embraced by Article 8 of the Convention.
The right to be a person before the law is acquired by birth, but unfortunately it can be restricted or totally denied by the illegal and arbitrary action of a government. The restriction or denial of this right can take place through two principal means of “vulgar positivism”: the passing of “illegal and illegitimate laws”, that is, laws with illegal and illegitimate aims or with an “anti-human content”; and the improper and arbitrary implementation of formally “legal and legitimate laws”, as happened in the present case.
The Court had an excellent opportunity to rule that this right was an inherent part of Article 8 of the Convention. The majority unfortunately failed to say so and to confirm expressly and explicitly something that
already falls implicitly and tacitly within the ambit of Article 8 of the Convention. This aim could have been achieved by adding one short and simple sentence to this effect at the end of paragraph 356.
Divesting the applicants of their legal personality by virtue of the large-scale “erasure” deprived them not only of their legal status, which had previously given them access to a wide range of rights. It also essentially and substantially decreased their legal capacity and procedural ability to use the allegedly accessible domestic remedies to regulate their legal status. For this reason, all the remedies mentioned by the Government may be considered to have been essentially inaccessible and insufficient for the applicants, as stated in the joint dissenting opinion of Judges Bratza, Tulkens, Spielmann, Kovler, Kalaydjieva, Vučinić and Raimondi. Not only the legal vacuum in the independence legislation (see paragraphs 344-356 of the judgment), but also the deliberate implementation of this legislation through secret and subordinate regulations with clearly illegitimate aims, placed additional, insurmountable administrative obstacles in the applicants’
way and thwarted the subsequent success of their legitimate claims for regularisation of their legal status.
In such circumstances Mr Dabetić and Mrs Ristanović should have been considered to have been dispensed from the obligation to apply formally for a residence permit in the first place. In a situation where they had previously been “erased” from the legal system of Slovenia, de facto deprived of their legal capacity and confronted with an organised and carefully planned governmental policy with the aim of decreasing the number of “ethnically unsuitable” citizens, such an application, no doubt, would have been totally pointless and futile, as was clearly the case for the other applicants.
The applicants, including Mr Dabetić and Mrs Ristanović, could not have lost their victim status, because they are still suffering. They have to endure the consequences of the “erasure” and the deprivation of their legal personality. Nor have they yet been given any appropriate redress and compensation!
Furthermore, for years the Government blatantly disregarded the judgments of the Constitutional Court of Slovenia. These judgments of the Constitutional Court clearly confirmed the violations of the applicants’
rights. In this case, we have what is a classic example of a “continuing violation” of the Convention.
Last but not least, in my opinion, the Court did not sufficiently take into consideration the particularly aggravating circumstances in this case, namely the fact that this was a large-scale, gross and systematic violation of basic human rights as a consequence of a deliberately organised and planned governmental policy, as more than 25,000 persons were “erased”
from the Slovenian legal system and thus deprived of their right to be recognised as a person before the law. Needless to say, this amounted to a legalistic means of ethnic cleansing.