Natisni vsebino

ASSESSMENT OF RESPECT FOR HUMAN RIGHTS AND LEGAL SECURITY IN THE COUNTRY

1. ASSESSMENT OF RESPECT FOR HUMAN RIGHTS AND LEGAL SECURITY IN THE COUNTRY

This assessment of the respect for human rights in Slovenia is notmerely based on actual cases dealt with by the Office of the HumanRights Ombudsman last year (these are described and systematised byindividual areas in Chapter Two); rather, it attempts to cover theissue in its entirety. In addition to findings relating to therespecting of human rights dictated by the analysis of issues dealtwith on the basis of petitions received, the assessment draws oninformation obtained by the ombudsman through conversations withindividuals, the representatives of various groups of the population(especially marginalised groups), representatives of non-governmental organisations and other persons who are directly affected or are simply dedicated observers of events in society. It also draws on contactswith people seeking information or legal advice from the ombudsman'soffice; and last but not least on cooperation with state bodies andother bodies. This part of the Report is therefore a broadcross-section of observations of the state of human rights in Sloveniawhich does not derive merely from petitions received by the ombudsman.

Althoughit is not the Human Rights Ombudsman's task to provide information andlegal advice to people in distress, all of the ombudsman's staff alsoact in this capacity. This is something which indicates insufficientefforts on the part of state bodies to become more citizen-friendly.Lack of familiarity with their own rights, or finding themselves lostin the tangled web of state institutions, often leaves people helpless.The inability to take advantage of the services of state bodies andother institutions, though they are available, often leads to exclusionfrom society, poverty and violations of human rights. For this reasonall these institutions should do more to ensure the transparency oftheir work and to familiarise the public with it.

During thecourse of our work we have noted that some groups of the populationcomplain more than others. Certain groups of people, especially themarginalised, only rarely seek help or protection from the Human RightsOmbudsman. These groups include children, people in education, membersof the Roma community, the poor and refugees. The absence of complaintsfrom these groups does not mean that their rights are not beingviolated or that they are able to exercise them without problems. Oftenthe very opposite is true. The reason for the lack of complaints ispeople's insufficient familiarity with their own rights or their ignorance of complaints procedures (or the absence of these), fear of the consequences of a complaint, mistrustof society and similar. In short: for the Human Rights Ombudsman to beable to work at all, a certain level of democratic and culturaldevelopment of the whole of society is necessary.

Unfortunatelysome social groups in Slovenia are unable to enjoy to the full thislevel of development. The state institutions whose work should bedirected towards these groups are, with their often excessivelybureaucratic mode of work, not active enough in recognising orrectifying their problems. A common denominator in the assessment ofthe work of these institutions could be said to be the lack of sensitivity for the hardshipsof people who need help. This applies to institutions at all levels.Chapter Two contains a series of cases which serve as evidence of thisclaim; we shall mention just a few of them here. In the legislativefield, the failure to respect the rulings of the Constitutional Courtin relation to income tax reliefs for children, the ten years needed toregulate the status of refugees, the failure to issue non-statutoryregulations enabling the exercising of statutorily guaranteed rights,violations of the rights of children with special needs because of thecontinued absence of executive regulations, and many other similarshortcomings. It seems that the State is always too busy with greathistorical objectives (the achievement of independence, the building ofthe State and its institutions of authority, macroeconomic stability,denationalisation, integration into the European Union and Nato) anddoes not have time for the little hardships of ordinary people. But theattitude of society towards the 'little' problems of 'little' people isin indication of the attitude towards human rights of every individual.

Asimilar lack of sensitivity can be noted in contacts with state bodiesin the regulation of concrete personal matters – for examplethe failure to reply to correspondence in administrative proceedings,breaches of legal deadlines for the issuing of decisions, theinadequate functioning of inspectorates, which often hide behind a lackof clarity over jurisdiction, and even an unfriendly attitude towardscitizens. Unfortunately this lack of sensitivity is not only a featureof institutions. It often appears in the daily lives of people whooppose the accommodating of different types of people in theirneighbourhood: refugees, children with special needs, cured drugaddicts, people with mental problems, members of the Roma community andothers. Too little tolerance of others and of those that are different is something that can be observed in society as a whole.

The next source of violations of human rights is the unequal position of the State and the individual evenwhere such a situation should not be permitted. Courts are often yearslate with a decision while on the other hand the individual misses hisappeal deadline if he is just one day late. A similar situation existsin administrative procedures: institutions always have a mass ofexcuses available but will not accept any excuse from the individual.The State and the taxpayer are in an unequal position in the case ofpenalty interest relating to income tax.

The State exploits its power and arbitrarily changes the rules of conduct, often breaching the law itself.Its insufficiently decisive action over the protection of people fromarbitrariness and its failure to punish those breaching the law (e.g.cases too frequently falling under the statute of limitation) causesmistrust and fear and, above all, uncertainty. In the recruitment andappointment of staff, and also in other calls for applications, we alltoo often observe that an important role is played in decisions bynepotism, personal acquaintance and above all the criterion ofpolitical attractiveness. Belonging to a specific party is often moreimportant than professional expertise. This causes a negativeselection, a reduction in professional standards and corruption.

The next failing which reduces the level of human rights is the less-than-optimal organisation of the State.Not only is work not coordinated between departments and withindepartments (in response to last year's Human Rights Ombudsman reportthe government presented short circuits in the cooperation andcoordination of ministries as an excuse for the slow adopting ofregulations!), it is not even known which bodies Slovenia actuallyneeds, how many there should be and what type of organisational networkis required (how many ministries and which ones, bodies withinministries, offices, parastatal bodies – public institutes,agencies, funds, etc.). It often seems that the organisation of thenational administration is governed according to the needs of political parties andtheir members rather than in accordance with what is most important forthe State and citizens. In the case of setting up government officeswhich in many areas could take over a part of the functions of asector-specific Human Rights Ombudsman, it seems that the guidingprinciple is more a question of providing employment for currentlyunemployed party functionaries than meeting the needs of citizens. Theterritorial organisation (or lack of) of the administration(administrative districts, the position of administrative units andother decentralised services) and an incomplete local governmentnetwork (size and functions of municipalities, the problem of regions)reduce the transparency and efficiency of the functioning of the State.Something similar has occurred with the denationalisation andprivatisation of certain activities which have been and still could beperformed by state institutions (notaries, enforcement officers).Instead of certain services becoming cheaper and more accessible tocitizens, they are more expensive and less efficient. The transferringof statutory powers to professional associations (chambers ofphysicians, notaries, attorneys etc.) remains an unresolved problem.

The poor organisation of the State is joined by the problem of inadequate regulations.The legal system was put together following models from various othercountries and insufficient attention was paid to the special featuresof Slovene society. Hurrying over a glut of legislative work (not leastso as to move closer to the European Union) often demands the adoptionof statutes without thorough analysis of the situation and needs, andthis often leads to the immediate amendment of laws and otherregulations, sometimes even before the newly passed act has begun to beimplemented. Other inadequacies are also evident, among themunrealistic estimates and insufficient consideration of the financialand other consequences of an individual law, the facilities for itsimplementation within a specific timeframe or the justification andprecise regulation of encroachments on human rights and fundamentalfreedoms. Frequent conflicts over political prestige or horse-tradingbetween political parties are no guarantee of the technically correctdrafting of bills; these are often merely a muddle of various conceptsor interests. If we add to this mistakes in specifying, preparing andissuing non-statutory regulations which frequently render the implementation of laws impossible, we are slightly closer to an actual assessment of the situation.

The next shortcoming reducing the level of human rights in Slovenia is the incomplete implementation of regulations.Ministries do not act effectively enough to ensure the correct, uniformand effective implementation of procedures, since timely, accurate anduniform substantive and organisational instructions to administrativebodies are frequently lacking. To this may be added the ofteninsufficient level of professional training of personnel, mistakes inthe running of procedures, mistakes in acts issued and widespreadbreaches of statutory deadlines (or at the very least reasonabledeadlines) for decision-making. We also encounter interpretations ofpossibilities of encroachments on human rights which are not alwayssufficiently restrictive, or restrictive interpretations of provisionson people's rights. In administrative procedures in particular, doubtsarising from conflicts of laws, the imprecisely defined rights of theindividual or even legal vacuums often cause public servants to takedecisions which are to the detriment of the individual. This means thatthe individual pays for the poor work of the State, which from thepoint of view of human rights is not admissible. The State holds allthe levers of authority and has the power, the right and the duty toadopt laws and procedures which will not admit doubt. If they do, theState must change the regulation and in the meantime cannot transferthe consequences of its poor functioning to the individual. Recentlythe relationship between public servants and 'customers' has improvedslightly, but it is still a long way from what it should be.

Althoughthe violations of human rights described in the various chapters ofthis Report are in the majority of cases also violations ofconstitutionally guaranteed rights, we focus here merely on thoseviolations which in general terms mean discrimination. This is wherethe number of petitions has shown the largest increase – theconsequence of active contacts between the Human Rights Ombudsman and arange of associations representing various groups of the population ofSlovenia, in particular marginalised groups. The information obtainedby the ombudsman at these meetings covers a much greater range ofissues than could be concluded from the petitions presented in Chapter2.1. Most often they involved latent discrimination and a lack of willto do away with it.

In addition to gathering information aboutproblems, meeting these groups meant, more than addressing individualviolations, acquainting people with their rights and ways to exercisethem. In short, a kind of empowermentof people. Most common were complaints of alleged discrimination on thebasis of faith, ethnicity, sex or sexual orientation. While theprotection of the Italian and Hungarian national communities is solid,it falters in the case of all the other groups which make up one tenthof the population of Slovenia. The constitutional requirement of aspecial law covering the Roma community has still not been fulfilled,while other national minorities which appeared after Slovenia achievedindependence have no special legal protection at all. Neither are theresystemic routes for the satisfying of their cultural needs. It appearsthat there is not even any political will for this.

Because ofthe incomplete standards and procedures for allocating funds toreligious communities, which can result in discrimination against anindividual community, the ombudsman wrote to the government andrequested that the situation be regulated. The Muslim community inSlovenia has for almost three decades been trying in vain to build itsown cultural centre. This may mean a violation of the constitutionallyguaranteed right to free profession of religious beliefs. Thatconstruction should have been held up for so long cannot be theconsequence of a coincidental concatenation of unfavourablecircumstances; instead it almost looks like a conscious blockade.

Themain negative characteristics in the enforcement of penal sentences arethe overcrowding of prisons and detention centres, groupsentence-serving, lack of staff, and poor health care for convictedprisoners and detainees. Although Slovenia is one of the countries withthe lowest ratios of persons in custody to total inhabitants,conditions are nevertheless poor and are getting worse. The main causeof this is the large increase in the number of convicted prisoners inrecent years – the figure has in fact more than doubled.Aside from the replacement of buildings at Koper prison, no majorimprovements are to be expected in the near future. Conditions fordetainees are even worse than those for convicted prisoners as inaddition to problems of space, they also suffer a stricter visitingregime. This also varies from prison to prison, which further worsensthe situation since it means discrimination against detainees.

Lastyear we also identified cases of unlawful detention not covered by acourt order. Although these are isolated cases and rather than beingthe result of a systemic decision are more the consequence ofinattention or even negligence on the part of the court, this isnevertheless a serious breach of the constitutionally guaranteed rightto personal freedom. It is also a violation of the Convention on theProtection of Human Rights and Fundamental Freedoms, Article 5 of whichprovides that everyone shall have the right to liberty except in casesprescribed by law. In psychiatric hospitals we came across cases whereno extension of compulsory psychiatric treatment had been ordered butdespite this the individuals concerned were not allowed to leave theinstitution. Even in these cases the problem is mainly one ofnegligence and a too-casual respect for the law and the rights ofpatients. It should also be noted that the illegal practice of carryingout compulsory psychiatric treatment in a social institution instead ofa hospital is not infrequent. It is a reflection of the indifference ofthe legislative body towards powerless groups of the population that alaw regulating the area of mental health has still not been passed. Itis unacceptable that for reasons of political prestige – anddespite the submission of two bills – the legislature isstill unable to regulate the whole area of the protection of personswith mental disorders.

In recent years (in particular at thebeginning of 2001) there has been a large increase in the number ofillegal migrants trying to enter Western Europe via Slovenia beingdetained by the police. Because the Slovene authorities were not readyfor such an increase in the number of illegal aliens, although theyshould have foreseen it, numerous problems have arisen, most notablythe resistance of local residents to accommodation centres for aliensin their vicinity. Although we cannot accept the negative and sometimeseven hostile attitude of Slovene citizens towards people sufferinghardship, something which indicates a high degree of xenophobia,it is above all the actions of the authorities that are to blame here.The almost nightly illegal transportation of persons unknown from onepart of Slovenia to another necessarily provokes doubts, mistrust andfear in people's minds which further incites resistance to foreigners.The State and its institutions must remove the causes for xenophobia,without further increasing people's fear through lack of preparednessand the confused addressing of problems that have arisen unnecessarily.A lack of sensitivity towards people's hardships has also come to lightduring the ombudsman's visits to centres for aliens. We informed thepublic of our findings during our visit to the Centre for Aliens atVeliki Otok near Postojna and demanded immediate measures from those incharge.

There is an urgent need to pass legislation regulatingthe status of refugees from Bosnia-Herzegovina and removing thetemporary status which they have had for the last ten years. From thepoint of view of equality before the law, the social state and humanrights, certain conditions for gaining citizenshipor permanent residence are also questionable. Above all the criterionof level of guaranteed means of livelihood when the people in questionhave already lived in Slovenia for decades, have a spouse and childrenwho hold Slovene citizenship, but are unable to formally regulate theirstatus because their income is too low. Their unregulated statusprevents them from finding employment (and in a few cases has evencaused the loss of employment) and thus the circle is complete.

Another serious systematic violation of human rights and unscrupulous treatment is the deleting ofnames from the register of permanent residents of Slovenia; even worseis the fact that ten years have passed without the State rectifyingthose violations which it has committed itself. Almost all stateinstitutions are guilty of this. Legal proceedings relating to eventssurrounding Slovenia's achievement of independence which are stillunconcluded after ten years also point to the impotence of the statebased on the rule of law. It is the right of every suspect that thecourt should pronounce on the charges against him without unnecessarydelay, and relieve him of uncertainty. Proceedings which drag on formore than a decade do not give anyone a feeling of legal security.

The right to a fair trailmeans rapid, effective and quality decision-making. This however issomething we still do not have in Slovenia, although a fall in thenumber of petitions to the ombudsman does point to a gradualimprovement of the situation. The petitions we do receive show that theconstitutional right to legal protection without unnecessary delay isstill not guaranteed, since a wait of several years for the firsthearing after bringing an action in a civil case is almost the rule.Although attempts are being made to improve the situation (the Herkulesproject, encouraging parties to find friendly settlements to disputes,facilitation of access to files, mediation, free legal aid), there havestill been no major changes. The fourth correction to the CriminalProcedure Act highlights the perfunctoriness of all involved inadopting laws, something which has been particularly apparent in theimplementation of certain new rules of enforcement, where the conceptof privatisation of the functions which the State has to perform hasbrought more confusion and a more expensive procedure which is nofaster than the old one. Particularly affected are the poorer membersof society, since the costs of enforcement in court of a finaljudgement are often beyond their financial means and at the same timesuch a procedure does not even guarantee a result. The insensitivity ofthe legislature towards the problems of socially vulnerable groups canalso be noted in this area: it has failed to respect the ruling of theConstitutional Court which at the beginning of 1999 called for anamendment within a year to the Enforcement of Judgements and Insuranceof Claims Act. The poor legal security of individuals can often also bethe result of substandard work by lawyers. Although these can facedisciplinary and criminal action for poor work, this rarely happens inpractice.

The increase in the number of complaints to theombudsman over violations of human rights in police procedures is morethan anything else an indication of greater awareness of the rights ofindividuals – though it probably also indicates increasedrepression, something which Slovenia has been unable to avoid since 11September 2001. Increasingly vocal demands for greater security even atthe expense of human rights have been a kind of motto of politiciansand repressive state institutions around the world; Slovenia is noexception. But there is no dilemma here: security and freedom cannotoppose each other. Without freedom there is no security, while we canonly protect freedom in accordance with laws and with full respectingof human rights. Numerous complaints about the violent behaviour ofpolice officers are probably also a reflection of an erroneousunderstanding of the maintaining of security, while the police do notdeal with complaints sufficiently impartially and are not sufficientlybound by the prescribed procedures.

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