With regard to the issue of allegations of unconstitutionality of the Act on compensation for damage to erased
persons, or the ZPŠOIRSP, we must initially emphasise that the Ombudsman has dealt with the issue of injustice
committed with illegal and unconstitutional erasure since the start of the term of office. Efforts in this area
are evident from the annual reports; in 2004, we issued a special report on this matter informing the National
Assembly. We regret that 23 years have passed since the erasure, and that until 2014, especially due to the lack
of political will, the injustices committed by the erasure were not appropriately corrected. We also regret that
the highest-ranking (political) state authorities were not able to publicly admit this injustice and appropriately
apologise and that there was no political will to establish the circumstances or political responsibility of
individuals for erasure. The European Court of Human Rights “forced” the state to start rectifying this injustice.
If we had done this ourselves and sooner, it would have been much less painful.
After examining the available material and information, and based on a unanimous decision of all seven
members of the Ombudsman’s board, the Ombudsman decided not to submit a request for a review of
constitutionality of the ZPŠOIRSP. There are several reasons for this, and we would like to point out the following.
No rectification of injustice in the past by laws is, and cannot be, just for individuals who have suffered injustice.
Generalised compensations that equate all individuals – although each has their own story and injustice, and
this cannot be considered and individualised appropriately – inevitably present a certain satisfaction, but not
the reimbursement of actual and total damage. Any act to rectify injustice committed in the past at the same
time presents a burden for people who did not cause the injustice and the redistribution of available public
funds in society. This is particularly painful if the persons who actually caused the injustice are not officially
revealed and do not contribute to the rectification of injustice. The amount of (lump sum) compensation for
damage recognised by law, is always too little for those who suffered injustice, and a (unjustifiable) burden
for those who had nothing to do with injustice but who have to contribute to rectifying it, or who bear the
consequences due to the reduction in public funds.
All compensation for injustice is therefore merely symbolic. If the amount of lump sum compensation as
envisaged by the ZPŠOIRSP is assessed, it will be found that it is a similar amount to the compensation envisaged
to rectify other forms of injustice. The amounts of compensation based on the Payment of Compensation
to the Victims of War and Post-war Aggression Act (ZSPOZ) that determines compensation based on three
different acts on the rectification of injustice (Act on Victims of War Violence, Redressing of Injustices Act and
Act on Special Rights of Slovenia War Victims 1991) are comparable to compensation based on the ZPŠOIRSP.
The total amount which an individual can receive based on the aforementioned acts is even lower than the
total amount which a beneficiary receives based on the ZPŠOIRSP (we must emphasise that the Ombudsman
received many complaints from victims of previous injustices who cannot agree to such limitations and low
compensation and consider such legal regulation unjust). On the other hand, we can seek differences between
the aforementioned regulations, e.g. on who caused the injustice subject to rectification.
We assessed that, from the great number of requests for financial compensation based on the ZPŠOIRSP, more
than one half of the total number of beneficiaries (according to information from the Ministry of the Interior)
and a small number of complaints sent to the Ombudsman in this regard (which frequently did not fulfil the
conditions for consideration) and a relatively small number of requests through the courts show that the great
majority of beneficiaries accepted what the ZPŠOIRSP offered. The foundation and causality with damage do
not have to be proven in an administrative procedure, so this solution is probably better for beneficiaries than
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ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015
procedures where actual damage must be proven, especially given the lapse of time from when the damage
occurred. The possibility of receiving higher compensation, although with a limit, by means of a judicial
procedure is also still available. Nonetheless, we must consider that Article 15 of the ZPŠOIRSP envisages
other forms of just satisfaction for the erased. Besides monetary compensation under the conditions from
the mentioned Act, beneficiaries are also entitled to the following forms of just satisfaction: payment of the
obligatory health insurance contribution, inclusion and priority consideration in social care programmes, relief
in the enforcement of rights to public funds, national scholarships, equal treatment in resolving residential
issues, access to the educational system, inclusion and priority consideration in programmes for assistance in
the inclusion of aliens who are not citizens of EU Member States, i.e. in the cultural, economic and social life
of the Republic of Slovenia.
The regulation of a special form of compensation based on the ZPŠOIRSP involves a special legal regulation
whereby the legislator has many opportunities to arrange the method of enforcement of compensation and
the possibility of balancing the interests of beneficiaries and the capacities of the state and citizens. As is
evident from the explanations of amendments in the adoption of the ZPŠOIRSP, this balance was accurately
presented and explained. Also, because according to judicial practice the right to compensation based on
erasure exceeded its limitation period, the regulation can be treated as a special case. This was also done by
the legislator in other similar cases involving the enforcement of monetary compensation, also in the case
of the act on the protection of the right to trial without undue delay. Erased children are also entitled to
compensation according to the ZPŠOIRSP, but not those children born to the erased subsequently who were
not actually erased. Now the legislator envisages that the damage caused to non-erased children can be
considered only within the scope of enforcing compensation in a judicial procedure. We must also consider that
the legal regulation of these issues requires a complex and casuistic standardisation of different life situations;
therefore, it is more appropriate to consider similar cases individually. The Constitutional Court stressed that
there should also be an option for a judicial assessment of the legal regulation, including the Constitutional
Court’s assessment. With regard to the legal deadline for enforcing compensation and the regulation of
inheritance, we believe that the legislator must assess this issue.
Granting Slovenian citizenship of a minor child of a Slovenian citizen
The Ombudsman considered a complaint of a foreign citizen with regard to granting Slovenian citizenship to her
minor son. The complainant stated that she and her husband, who was a Slovenian citizen, divorced in 2006.
Their son was born in 2000; however, the father never wanted to bring him to the Republic of Slovenia. After
the divorce, the complainant came to the Republic of Slovenia for employment purposes, and she arranged her
status and residence here. At that time, her son was staying with grandparents in Bosnia and Herzegovina. In
2013, he visited the father in Slovenia, where he had a major accident and was hospitalised. The father should
have signed documents to arrange residence for the son, but refused to do so. Residence was subsequently
arranged, not due to the father’s status, but based on the mother’s residence. Since the complainant obtained
the information that she could also submit an application for a subsequent entry of citizenship, she went
to the administrative unit in Maribor, where she was rejected with the explanation that subsequent entry of
citizenship can only be made by the parent with Slovenian citizenship. She asked the Ombudsman for help.
The Ombudsman explained to the complainant the provisions of the current Citizenship Act of the Republic of
Slovenia (ZDRS) that refer to the subsequent application for Slovenian citizenship. Considering the situation
described above, the Ombudsman assessed that the provision of Article 5 of the ZDRS is inflexible and could
encroach on the constitutional right to equality, and also be a violation of the equal treatment principle and the
principle of the child’s best interests. According to the aforementioned provision, an application for Slovenian
citizenship can be made only by a parent with Slovenian citizenship, which means in the case concerned that
children may be considered differently, since it is left to the will of the parent who is a Slovenian citizen. We
assessed that the ZDRS should allow the application to be submitted by a parent who is not a Slovenian citizen,
or submitted by the child by legal representative. The Ombudsman informed the Ministry of the Interior of this
assessment and requested a comment on the possibilities of amending Article 5 of the ZDRS in accordance
with our assessment.
ANNUAL REPORT OF THE HUMAN RIGHTS OMBUDSMAN OF THE REPUBLIC OF SLOVENIA FOR 2015
95
2.6 ADMINISTRATIVE MATTERS
2.6 ADMINISTRATIVE MATTERS
form of eliminating the consequences of human rights violations was established due to erasure from the
permanent residency register”. The court also stated: “When reviewing the constitutionality of the ZUSDDD,
it is essential that this Act enabled persons who were erased from the permanent residency register based
on their request to arrange their legal situation in advance, i.e. by acquiring a permanent residence permit
under conditions that were more beneficial than at the time when the ZTuj regulated the system, as well as by
acquiring a supplementary or special decision on permanent residence retrospectively, i.e. from the moment
of erasure from the permanent residence register onwards.” It is evident that the court permits the possibility
that individuals may claim violations of human rights in individual cases, but it must be “considered that the
addressees of legal norms have to always abrogate violations of human rights before the competent court as
far as possible, thus ensuring that the courts also decide on constitutional law issues”. We also considered the
fact that with regard to the realisation of the ZUSDD the Ombudsman did not receive any complaints that were
obviously justified or indicated the unconstitutionality of legal solutions.
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