CONCURRING OPINION OF JUDGE ZUPANČIČ

Especially in the international jurisdiction, this case raises very serious moral dilemmas. Some of these questions, as we shall see, were blocked from arising within the much narrower scope of the national jurisdiction. However, the historical spirit of the Convention, stemming from the similar sequelae of the Second World War, both enables the larger perspective and – necessitate nature – requires it! Indeed, in this and in other important cases this specificity of the broader perspective and especially of the enhanced objectivity due to the distance from the isolated national theatre seems to be the historically maturing purpose of our own international jurisdiction.

The number of persons allegedly affected since 1992 by this officially authorised legalistic attempt at ethnic cleansing, as Judge Vučinić rightly calls it, stands at 25,671. Following the new 1999 Citizenship Act – ultimately in conformity with the first judgment of the Constitutional Court – at least 6,621 of the aggrieved have apparently so far demonstrated their legal interest and have in fact regularised their residence or citizenship status. Up until 31 January 2012 the administrative units of the Ministry of the Interior had registered 229 applications for permanent residence as well as 101 applications for ex tunc regularisation. They had issued 59 permanent residence permits; 83 applications were rejected, whereas 87 applications were still pending. They had rendered 52 special and ex officio positive decisions, as well as 74 decisions upon a special application; of these, 10 applications were rejected administratively, whereas 17 were still pending. Against these decisions an administrative appeal was possible; up until 31 January 2012 there were 29 administrative appeals to the Ministry of the Interior. Presumably, after that recourse to a judicial decision is possible. Apparently, about half of the original 25,671 affected persons either no longer live in the Republic of Slovenia or have not so far manifested their legal interest in regularising their residence status. As for indemnification of the victims, the domestic law, as per the decision of the Constitutional Court, posted a five-year deadline ending in March 2004. Given the legislative disregard of the judgment of the Constitutional Court until 1999 and the obvious continuity of the violation, this closing date ought not to be applicable.

On the other hand, I hasten to add, one cannot be certain in how many of these cases the victims, that is, those entitled to standing ( legitimatio activa ) in potential future cases, have themselves indeed neglected to apply for their citizenship in due time. Also, the twenty-year postponement in legally resolving this question – on a case-by-case basis! – in the domestic legal system was to some extent due to the contrived and disingenuous impression, maintained in the misled Slovenian public, to the effect that at least some of the aggrieved had brought the problem upon themselves; allegedly their procrastination was due to their own nationalist (Serbian, Croatian etc.) ambivalence as to their animus manendi concerning their continued residence in the then newly established Republic of Slovenia. This was before, during and after the Balkan wars twenty years ago. One must therefore keep in mind that – at the time – it was far from obvious for many of those concerned, in the context of their own wishful thinking, that the megalomaniac myths of Greater Serbia or greater whatever in the Balkans were unfounded. The real, and not merely legal, victims of these primitive tribal wars – fraught with the narcissism of small differences and with the consequent unspeakable atrocities that followed in Croatia, Serbia and Bosnia and Herzegovina – are now counted in the hundreds of thousands of those killed, tortured, raped, and so on. Moreover, the perfidious instigation of certain continental European foreign intelligence services interested in the disintegration of Yugoslavia, which triggered the rest of the insane activation of the chauvinist and revanchist collective unconscious, has been duly publicised, especially in the American press, and is now an established historical fact. This unfortunate process caused the surfacing of figures now known to be psychopaths, who were personally responsible for all manner of inhuman callousness. The latter was simply unimaginable in Yugoslavia before this tsunami of cruelty actually started to roll over the country. The historian A.J.P. Taylor, for example, considered Josip Broz Tito to be the last of the Habsburgs, capable of keeping together a tolerant multinational community; A.J.P. Taylor did not live to see it disintegrate. On the other hand, from the corroborated retrospective view of twenty years, the disintegration of Yugoslavia was and continues to be an unmitigated disaster. In this historical reassessment, the French would say: “ A quoi tout cela a-t-il servi? ” No reasonable person can reasonably answer this question except by saying, as Erich Fromm would have, that this was a folie à millions . We do not wish to draw parallels here with the disintegration of the ex-Soviet empire and its consequences; suffice it to say, because this is a matter of international law, that Woodrow Wilson, before launching, under the influence of Tomáš Garrigue Masaryk, his famous catchphrase concerning the self-determination of nations – had been explicitly and repeatedly forewarned about the possible consequences. The consequences are now here; that is to say, the particularisation and balkanisation of national entities has in fact materialised. This will hopefully be compensated for, as I emphasised at the time in an article in El País , by universalisation in the context of the European Union. Nationalist squabbles would be in the Hegelian sense transcended and would, including border disputes, become largely inapposite within the context of the European Union. The European free movement of people, for example, makes what is at stake in this case simply sans objet. What has come apart on one level is, with the tragic historical delay, slowly coming together on a higher level. It is also increasingly clear that the keeping together, in the manner of A.J.P. Taylor, of this , in other words, the European entity, will require much political wisdom. Still, the historical delay has caused this case and many other still more appalling consequences. Some of them have ascended to international jurisdictions, most of them have not.

Because the ethnic cleansing attempt in the case before the Grand Chamber was done through misconstruction of the Slovenian Citizenship Act and its premeditated legal lacunae , the specificity of the case lies in its minutely recorded legalistic features. This is why we have a precise historical record of the number of the aggrieved, the number of those who were not provided for by the domestic system, in the manner of Article 41 of the Convention, and so on. The above-mentioned two-faced legalistic legacy of the communist system reminds us of the case of Streletz, Kessler and Krenz v. Germany ([GC], nos. 34044/96, 35532/97 and 44801/98, ECHR 2001 ‑ II); there, too, the façade of schizophrenic legality had been maintained, in East Germany, as seemingly intact. Behind the façade the impunity had continued unimpeded. In the case before us we had an intentional lacuna in the law, which was then filled in by the semi-official but unpublished dépêches issued by the then Minister of the Interior and his Secretary of State. They were explicitly approved by the then Prime Minister and his Government. In terms of criminal law we may therefore speak of dolus directus in the first case and at least of dolus eventualis in the latter case. Meanwhile, the public had been misled to believe, as I said, that the thousands affected by this were simply negligent in failing to apply for their Slovenian citizenship. Fortunately, owing to the legalistic nature of the abuse, all these actions, correspondence and so on, as pointed out above, were recorded and are on file; the Grand Chamber had the opportunity to see the relevant correspondence and the dépêches and to take them into account. It remains to be seen whether the domestic criminal legal system will, vis-à-vis the protagonists, react accordingly; if not the issue will again come to Strasbourg under the procedural limbs of Articles 3 and 8, among others. Similarly, when it comes to compensating the 25,671 allegedly aggrieved persons, the judicial branch of the domestic legal system would, as in the judicial delay cases (see Lukenda v. Slovenia , no. 23032/02, ECHR 2005 ‑ X), be well advised to process all of the situations fairly and on a case ‑ by-case basis.

In fairness to the national legal system, we must consider the honourable and courageous stance – faced with the continuity of this appalling situation – taken twice by the Constitutional Court in Slovenia. This proves all over again that the national defence of constitutional rights is the best antechamber for our own protection of human rights. The relevant judgments of the Constitutional Court in Ljubljana were snubbed by both the executive and the legislative branches at the time. The price will now be paid by the Slovenian taxpayer. As per recent information, the rest of the judicial branch, owing to its characteristic post-communist legal formalism, has likewise failed to compensate the aggrieved for the continuing violations such as we have established in the cases before us.

This case also proves that legal mills do grind slowly – but unremittingly. Precisely because of international jurisdiction, at least here, justice will have been done. Moreover, while justice as such cannot be defined, injustice is easily recognisable. The broader question is, therefore, why it was not recognised in the domestic legal system. Indeed, in post-communist legal systems there seems to be an irreconcilable mutual exclusion between mechanical legal formalism on the one hand and the simple sense of justice on the other. Often enough, we encounter this irreconcilability – summum ius, summa iniuria! – in other cases, including Western ones, except that in this colossal instance the Constitutional Court had identified the injustice. It was the malevolent political will that impeded the rule of law and blocked the proper judicial remedy.

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE VUČINIĆ

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.