The Scars of the Erasure_web

Erasure_4a 10.1.11 20:29 Page 136136 THE SCARS OF THE ERASUREbe secured to all without discrimination on any ground already mentioned above,to which it also adds “association with national minority” and property.Legal sources specify three ways of implementing the principle of discriminationprohibition. It can be a general legal principle, so court action cannotbe taken directly in case of discrimination. Next, it can be defined as anaccessory right that can be realized in connection with another concrete rightthat is violated. Such a principle is applicable under the ECHR, where an actionin case of the violation of Article 14 can be taken only if provisions in anotherarticle are violated too (e.g., violation of the discrimination prohibition alongwith violation of the right to private and family life). Finally, the right to non-discriminationcan be exercised as an independent right without asserting the violationof other rights. This principle is introduced by Protocol 12 to the ECHR,which states that “the enjoyment of any right set forth by law shall be securedwithout discrimination on any ground.” (Article 1 (1)). Article 1 (2) states that,“no one shall be discriminated against by any public authority on any groundsuch as those mentioned in paragraph 1.” Slovenia has ratified this Protocolin 2010, and since prohibition of discrimination is also defined in Article 14 ofthe Slovenian Constitution, it can be exercised as an independent right on thisbasis as well.Prohibition of discrimination is relevant to our discussion in many respects.The discriminatory nature of the erasure was confirmed by the ConstitutionalCourt in its 1999 ruling. The Court established that the erased peoplewere treated unequally compared to other foreigners in Slovenia, because thelegislator regulated in detail how the alien status that existed before Sloveniagained independence would be transformed after Slovenia gained indepen -dence but failed to regulate the status of citizens of other Yugoslav republics,so they found themselves in an uncertain situation. Discriminatory treatmentstemmed from discussion in Parliament during the period when legislation pertainingto the gaining of independence was in the process of adoption and later,when certain MPs exalted Slovenianness and displayed antagonism towardsimmigrants from other republics of ex-Yugoslavia (Zorn 2007). Discriminationmanifested itself as nationalism and racism (see the chapter by Veronika Bajtin this volume). Furthermore, discrimination found expression in laws that wereadopted or proposed with the purpose of redressing injustice caused by the erasure.The Act Regulating the Legal Status of Citizens of former Yugoslavia Livingin the Republic of Slovenia set more demanding terms relating to prior criminalrecord than those applicable to other aliens in the Republic of Slovenia seekingpermanent residence status. The proposal of the Constitutional Act on theerased people, originally submitted in 2005 and revived in 2007, similarly containedmuch stricter terms than those generally applying to other aliens in Slovenia.In addition, the erasure discriminated not only in terms of legal rights, buton other grounds as well, as is obvious from its outcome: those who sufferedthrough the erasure were exclusively the nationals of other ex-Yugoslav republics