The Scars of the Erasure_web

Erasure_4a 10.1.11 20:29 Page 105THE ERASURE AS A VIOLATION OF LEGALLY PROTECTED HUMAN RIGHTS105tions or other deadlines, many others made use of every legal remedy availableto them at the time of their legal battle. These included lawsuits with administrativecourts in the cases of rejected applications for permanent residence or citizenship,complaints when the administrative bodies failed to respond to theirapplications (e.g., the Ministry of the Interior), appeals to the Supreme Court, orextraordinary judicial remedies such as revision; in disputes related to pensionsor other social transfers, they resorted to lawsuits with the Labor and Social Court,the Higher Labor and Social Court and the Supreme Court. Those few who tookactions for compensation and lost the case (and not one final judgment on compensationso far has been in favor of an erased person) carried on their struggle,and some procedures are still ongoing. However, the most important judicial remedythe erased people had at their disposal was the constitutional appeal (as thelast instance within the national legal system), i.e. the initiative to assess the constitutionalityand lawfulness of regulations related to the erasure. Most disputesbrought to the Constitutional Court were resolved in favor of erased persons. TheConstitutional Court created jurisprudence constante by which it protected theirrights. The most widely known are two decisions: No. U-I-284/94, dated 4 February1999 and No. U-I-246/02, dated 3 April 2003, issued following the initiativefor the assessment of constitutionality and lawfulness. What is less known,though, is that many other constitutional appeals were decided in erased persons’favor. 25 A detailed analysis of all decisions would be beyond the scope of thischapter, so the question we would like to raise in connection with the right to aneffective remedy is whether legal remedies were truly effective for the erased people.Unfortunately, given the large number of legal remedies pursued and resultingcourt proceedings that are still underway, it would be difficult to establish whetherall the legal remedies mentioned above were effective. We will therefore focuson the most important remedy, which helped the erased people collectively andin a systemic manner in exercising their rights: the initiation of the procedure withthe Constitutional Court to assess constitutionality.The well-known decision of the Constitutional Court issued in 2003 wasnot put into practice for at least 6 years, so naturally, doubts about the effectivenessof this legal remedy increased over that period. The opinion that prevailedwas that it was effective only if there was the political will in the countryto put into practice such a decision requiring legislative and executive action,because there is no mechanism within Slovenian legislation that could compelthe legislative and executive branches of the government to put it into practice.There is “only” the general obligation contained in the Constitution and the ConstitutionalCourt Act, stating that decisions by the Constitutional Court are bindingon all bodies in the Republic of Slovenia and that the latter are obliged torespect them. However, in the absence of political will, this obligation became25 See, for example, the ruling of the Constitutional Court No. Up-211/04-21, dated 2 March 2006; ruling No. U-I-295/99-13, dated 18 May 2000; ruling No. Up-60/97, dated 19 July 1999; ruling No. U-I-89/99, dated 10 June 1999;ruling No. U-I-266/95, dated 20 November 1995.