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Strasbourg, 12 July
2001
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CDL-INF (2001) 14
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OPINION
ON THE CONSTITUTIONAL LAW
ON THE RIGHTS OF NATIONAL MINORITIES
IN CROATIA
adopted by the Venice Commission,
at its 47th Plenary Meeting,
(Venice, 6-7 July 2001)
prepared by the Secretariat
on the basis of comments by:
Mr Franz MATSCHER (Member, Austria)
Ms Hanna SUCHOCKA (Member, Poland)
Mr Pieter VAN DIJK (Member, The Netherlands) and
Mr Alain DELCAMP (Expert, France)
Introduction
Having been asked by the Parliamentary Assembly
to follow the developments in the revision and implementation of the
Constitutional Law of 1991 on human rights and freedoms and rights of national
or ethnic minorities in the Republic of Croatia, the Venice Commission
considered, at its 43rd Plenary Session, the Constitutional Law of
11 May 2000 amending the Constitutional Law of 1991. In its Opinion (document
CDL-INF (2000) 10), the Commission found that the legislation in question
considered lacked rules at the constitutional level to regulate or set out the
framework of an effective participation of minorities in public life and rules
pertaining to the establishment, functioning and competencies of bodies
representing minorities at the local and national level. The Commission
reiterated its availability to co-operate with the competent Croatian
authorities with a view to preparing a new text of the Constitutional Law on
the Rights of Minorities as requested by the Parliament of the Republic of
Croatia.
On 21 July 2000, the Government of the Republic
of Croatia forwarded to the Venice Commission for opinion a Draft
Constitutional Law on the Rights of Minorities in Croatia (CDL (2000) 62).
The Venice Commission Rapporteurs, Mr Franz Matsher, Mr Pieter van Dijk
and Ms Hanna Suchocka, and Mr Alain Delcamp, Chairman of the Expert Committee
of the Congress of Local and Regional Authorities of Europe in charge of the
monitoring of the European Charter of Local Self-Government, considered the
draft law at a meeting held in Paris, on 1 September 2000 and subsequently on
22 September 2000, in the presence of Ms Lidija Lukina, Vice-Minister of
Justice, and Ms Sanja Tabakovic, President of the Council of National
Minorities in Croatia. A further meeting of the Venice Commission Rapporteurs
was held in Venice, on 13 October 2000.
At its 44th Plenary Meeting (Venice, 13-14
October 2000), the Commission adopted its opinion on the draft constitutional
law on the rights of minorities in Croatia (CDL (2000) 79 rev), noting that the
draft law was generally positive but highlighting a number of areas where it
needed to be clarified.
On 4 and 5 January 2001, the Venice Commission
Rapporteurs, Mr Matscher, Ms Suchocka and Mr Delcamp, met in Zagreb with the
Croatian Working Group set up under the Chairmanship of the Minister of
Justice, Administration and Local Self-Government Mr Ivanisevic, to draft the
Constitutional Law on the
rights of national minorities in Croatia. Representatives of the Ministry of
Foreign Affairs, of the Council of National Minorities and experts from the
University of Zagreb took part in this meeting.
The Rapporteurs and the members of the Working Group
considered the draft Constitutional Law (CDL (2001) 1) prepared by the Working
Group as well as the implications of the Constitutional Revision of 9 November
2000 on the rights of minorities in Croatia. Since this meeting a further
series of amendments to the Constitution was adopted on 9 March 2001 and a new
draft of the law on the rights of national minorities has been prepared
(documentCDL(2001)29). It is this draft that is the object of the present
opinion, adopted by the Commission at its 47th Plenary Meeting
(Venice, 6-7 July 2001).
1.
General Comment
The Commission is of the opinion that the new draft law
(see documentCDL(2001)29) constitutes an important step forwards in the
protection of national minorities in Croatia. It provides a comprehensive and
coherent framework for further legislative and regulatory action in the field
of minorities’ protection. Several problems identified by the Commission in
earlier drafts (see documentCDL(2000)79 rev) have been eliminated. However,
various improvements might still be made to the draft and these are discussed
below.
2.
Effects of the Entry into Force of the New
Constitutional Law
The Commission notes with satisfaction that Article 39 of
the new draft clarifies the situation as to the validity of various instruments
guaranteeing rights of persons belonging to minorities at the level of the
Constitution. It is now clear from this provision that the Constitutional Law
of 1991, as amended in 2000, shall cease to be valid on the date of
promulgation of the new Law. (Article 37 still provides that rights acquired
before the date of the entry into force of the new Law are not restricted or
amended by the latter. The Commission understands that this provision does not
concern rights “acquired” under the regime of the Constitutional Law of 1991.)
3.
List of Minorities
The Commission welcomes the abolition of the list of
minorities in the new Law. It notes, however, that a list of minorities is
still valid in the Preamble of the Constitution. As the Commission had occasion to remark in its
opinion on the amendments of 9 November 2000 and 28 March 2001 to the Constitution
of Croatia (see documentCDL(2001)69):
[t]his runs contrary to the practice generally
advised by both the Council of Europe and the OSCE High Commission on National
Minorities, as it tends to create legal problems related to the protection of
rights of minorities (in particular, those that may exist in fact but do not
appear on the list) that far outweigh the political benefits gained from the
recognition of specific minority groups, which may be better accomplished at
the moment when minorities seek to claim the exercise of a specific right.
4.
Definition of Minorities
Under the draft Law as well as in the list of minorities
that continues to exist in the Preamble to the Constitution, the notion of
minorities is restricted to citizens of Croatia. Such a restriction departs,
however, from recent tendencies of minority protection in international law
interpretation by the Human Rights Committee (General Comment N°23 of 6 April
1994 of Article 27 of the International Covenant on Civil and Political
Rights and practice of the OSCE High Commissioner on National Minorities).
Furthermore, except in the case of political representation at levels other
than the local level, citizenship is generally irrelevant to the content of
internationally prescribed minority rights.
The Commission understands that the definition in
Article 1 of the draft Law does not purport to be a general definition of
“national minorities” but aims at defining the persons who have the specific
“constitutional” rights enshrined in the new Constitutional Law. Consequently,
this does not prevent the Croatian legislator from granting persons belonging
to minorities who are not (or not yet) citizens of Croatia the rights they are
entitled to under international law and in accordance with the Constitution of
Croatia. The Commission would favour nevertheless the inclusion of an explicit
provision to this end in the draft law.
In this context the Commission notes with satisfaction
that following the March 2001 amendments to the Constitution of Croatia,
individuals’ entitlement to constitutional rights has been dealt with more
clearly, and in many cases (e.g. the right of assembly; the right to freedom of
association; the right to petition) now clearly includes all persons. However,
some of the rights enshrined in the Constitution are also now clearly
restricted to citizens: in particular, the right to take part in the conduct of
public affairs and to have access to the public service, as well as the right
to vote. This may generate some problems for the effective enjoyment of these
rights by persons belonging to minorities who are not, or not yet, citizens of
Croatia. As the Commission stated in its opinion on the Amendments of 9
November 2000 and 28 March 2001 to the Constitution of Croatia (documentCDL(2001)69):
There may be some problems with respect to
Article 44 of the Constitution, which, in its current form (after the
March 2001 amendments) limits the right to take part in the conduct of public
affairs and of access to the public services to citizens.
Provided, however, that this provision is not interpreted as barring
non-citizens from holding lower-level posts attached to the civil service, it
would not conflict with international standards. It would seem that the right
to vote is now, following the March 2001 amendments, limited to citizens;
however, it may be noted in this respect that many states grant the right to
vote for bodies of local self-government also to non-citizens.
5.
Implementing Laws and Hierarchy of Norms
Most of the rights guaranteed in the draft Law shall be
exercised in accordance with specific implementing laws. The Commission
understands that these implementing laws must be compatible with the general
provisions in the Constitutional Law. Restrictions of the rights enshrined in
the new Constitutional Law should be only for legitimate purposes (also in
respect of international law) and proportionate to the aim pursued. They should
not affect, in any case whatsoever, the very essence of the rights guaranteed. Furthermore,
it must be understood that the compatibility of special implementing laws with
the Constitutional Law must be subject to review by the Constitutional Court.
The Commission stresses in this respect the importance of
the hierarchy of norms and the “constitutional” nature of the Law. Although the
draft Law is termed a “Constitutional” Law, it is understood that as a result
of the amendment of Article 83 of the Constitution and of decision U-I-774/2000
of 20 December 2000 of the Constitutional Court (which found that the
Constitution does not provide for any Constitutional Law other than the one on
the Constitutional Court) the Law on the Rights of Minorities will be an
“organic” Law. The Constitutional Court found in the same decision (U-I-774/2000)
that an organic law “is a law which is below the Constitution, but above other
laws, and its stronger force stems from the special majority by which it is
passed”. It is the Commission’s understanding that the new Law will thus take
precedence over implementing laws and that, consequently, the Constitutional
Court of Croatia – which is entrusted with the task of reviewing not only
constitutionality stricto sensu but
also legality in general – will be able to review the compatibility of
implementing laws with the new Law.
It remains however to be seen how the new provisions of
Article 83, paragraph 1 of the Constitution will be put into practice.
This provision reads: “Laws (organic laws) regulating the rights of national
minorities shall be passed by the Croatian Parliament by a two-thirds majority
vote of all representatives”. The question can be raised whether all
implementing laws should therefore be regarded as “organic” laws in the sense
of Article 83 of the Constitution. Such an interpretation would not only make
the adoption of implementing laws extremely cumbersome but might also
compromise the constitutional review process, as implementing laws would have
the same legal force as the new organic Law. In order to ensure the effective
protection of the rights of minorities, the Commission therefore recommends
that Article 83 of the Constitution be interpreted restrictively, as having no
application to implementing laws.
6.
Electoral Rights
The draft Law clearly provides for a “plural” (double)
vote system for citizens belonging to minorities. It is expressly stated that
“members of national minorities shall have, along with the general and equal
right to vote for members of the House of Representatives of the Croatian
Parliament, the right to elect a certain number of members of Parliament in
accordance with a special Law” (Article 18 of the draft).
As to the substance, the Commission agrees with the idea
of letting the legislator define the specific number of minorities’
representatives in the Croatian Parliament, as the principles for such
representation are laid down in Article 20 of the draft, i.e.: at least 6
members of the Croatian Parliament for minorities forming less than 4% of the
population, in accordance with the Elections of Members of the Croatian
Parliament Act.
For minorities forming more than 4% of the population, it
is specifically provided (Article 19, paragraph 1) that they “shall
have the right to representation in the bodies of state authorities in
proportion to their share in the population”. This, when read in conjunction
with paragraph 2 of this Article and with Article 18, seems quite clearly
to include representation in the Croatian Parliament. It is not clear, however,
to which bodies other than the Croatian Parliament the provisions of Article 19
are intended to apply, and in particular whether and to what extent they also
apply to executive and judicial bodies at the level of the state. The draft law
refers to the law on the organisation of state authorities as the text regulating
this proportional representation; but it may be advisable for the scope of
Article 19 to be further clarified in the present draft.
Article 21 deals with similar questions, but with respect
to local and regional bodies rather than state authorities. The reference here
to proportional representation in executive bodies is new and presents some
problems in so far as mention is made of the right to “elect a certain
number of members of…executive bodies of local and regional
self-government” (emphasis added).
7.
Council of National Minorities and Office for National
Minorities
The Commission notes with approval that it is now clearly
stated in the explanatory report that the special advisory body provided for in
Article 34 of the draft Law is the continuation or successor of the present
Council of National Minorities. Furthermore, the explanatory report states that
the expert body provided for in Article 35 of the draft Law is the continuation
or successor of the present Office for National Minorities. Both of these
bodies thus now have a clear basis in law.
8.
Minority Self-Government
The question of the so-called “minority self-government”
is a significant aspect of the draft Law. The new draft provides in a much more
detailed manner for a system of “personal autonomy”, inspired by the Hungarian
model but with some territorial aspects as well. The Commission considers that
the system the draft aims at establishing provides, in general, a viable and
adequate substitute for the abolished special status regime provided for in the
Constitutional Law of 1991 and never implemented.
It should be stressed in particular that the new text
(Articles 22-29) is a substantial improvement in comparison with the draft
forwarded to the Commission in July 2000, on which its initial opinion was
based (see, respectively, documentsCDL(2000)62 and 79 rev). The new Articles
should be read in conjunction with relevant provisions in the Constitution as
amended, granting local self-government units an important part of decision
making power in local affairs. The Commission notes with approval that under
Article 26 minority self-government units have legal personality and can thus
address the courts, including the Constitutional Court. In addition, minority
self-government units have the power under Article 27 to decide independently
issues concerning the use of their national signs and symbols as well as local
holidays. These competences are, however, minimal, and competence in other
areas such as religion and education could be added to this list. Other
competences may also be assigned to the minority self-government units, in
accordance with the draft Law, by virtue of the Law on Local Self-Government.
However, it is to be noted that the latter Law has now been passed and such competences
could not yet be granted in it owing to the non-adoption to date of the Law on
the Rights of National Minorities.
On issues such as proposing constituencies, passing
development plans, plans for the protection of the environment or other issues
of special interest for national minorities, according to an earlier draft
(documentCDL(2001)1), local and regional self-government bodies were obliged
to consult the minority self-government and, if they did not follow the opinion
of the minority self-government, to give the reasons in writing. These
provisions have disappeared from the current draft. While the requirement to
give reasons in writing may have been somewhat heavy, it is to be regretted
that some consultation process in such matters is no longer expressly provided
for. A right still exists under Article 28, paragraph 1, sub-paragraph 5 for
minority self-governments or representatives to receive a written answer to
their proposals and requests within 30 days; however, this places the initiative
on the minority body to make a proposal or request when such issues arise
rather than requiring other bodies to consult them.
Other provisions expressly providing for the right of
minority self-governments to petition the President, Prime Minister or
President of the Parliament in relation to issues especially important to them;
allowing for them to maintain contacts and sign co-operation agreements with
minority associations and to co-operate with self-government bodies of other
national minorities; providing for national-level minority self-government
bodies to establish their own rules in accordance with certain requirements
laid down in the draft Law; and providing that a national-level minority
self-government has the same competences as a minority local self-government,
have also been removed from the current draft. The Commission fails to see why
these provisions, which could successfully have addressed the issue of
minorities’ cultural autonomy at regional and state level and could become a significant
means for promoting minorities’ rights, have been removed from the draft.
Several points could be further clarified in the draft, in
particular:
-
the manner in which a member of a local self-government body
is denoted as having been elected “by one national minority” (Article 23
para.1);
-
the consequences that may arise in the theoretically possible
event that there may be two minorities having the requisite 20% of members of a
local or regional self-government body in order to be entitled to establish a
“minority self-government” (Article 23 para. 2);
-
the prerogatives of the “minority representative” referred to
in Article 23 para. 3;
-
the possibility – or even necessity – for State financial
support for the budget of local and regional minority self-government units;
-
the question of legal personality of minority self-government
units at the level of the communes (mjesna);
-
the purpose of the register of minority self-government to be
kept in accordance with Article 29 and the information to be kept in it.
9.
Miscellaneous Provisions
Article 11, paragraph 2 places an obligation on fully or
partially state-owned media bodies to publish or broadcast information and data
related to discrimination against a national minority or a member of a national
minority. It is not clear that this provision will result in a diminishing of
the number of cases where such discrimination occurs and the Commission
considers that such a provision may be better omitted from the Law.
A distinction is made in Article 13, paragraph 1 between
associations formed on the one hand for the purpose of the protection and
promotion of national minorities’ ethnic, linguistic and/or religious
characteristics and on the other hand for the preservation (but not the
protection or promotion) of their own culture, tradition, language and/or
religion. This distinction seems unnecessary and the paragraph might be more
simply drafted if the terms “cultural” and “traditional” were included in the
first list (of characteristics) and the second list were removed.
While the intention stated in the explanatory report of
ensuring that minority associations have a certain political significance is
laudable, the role that may be played by the representatives they nominate to
the Croatian Parliament under Article 13, paragraph 3 of the draft is unclear
and, given the provisions already made for the representation of national
minorities at state and local level under Articles 17 to 21 of the draft, the
presence in these bodies of further representatives of minority associations
may constitute an unnecessary complication in the functioning of the
Parliament.
Finally, reference is made on several occasions to the
House of Representatives. Following the abolition of the House of Counties
under the March 2001 amendments to the Constitution, these references in the
law should systematically be replaced with a reference to the Croatian
Parliament.
10.
Conclusions
The Commission wishes to thank the Minister of Justice and
the members of the Working Group for the spirit of genuine openness and
co-operation which has prevailed during work on the draft Law on the Rights of
National Minorities.
It finds that the new draft significantly improves the
legal framework of minority protection in Croatia. It clarifies most of the
inconsistencies of previous drafts, in particular as regards the effects of the
new law and the electoral rights aspects, and provides for the establishment of
a system for minority self-government at local, regional and state level that
can be regarded as an adequate response to the needs of minorities in Croatia.
Attention must nevertheless be drawn to certain aspects of
the draft Law:
-
while welcoming the removal of the list of minorities from the
Law, the Commission notes that such a list continues to exist in the
Constitution;
-
laws implementing this “Constitutional” Law must not be
treated as organic laws under Article 83 of the Constitution but as ordinary
laws of which the conformity with the Law on the Rights of National Minorities
is subject to review by the Constitutional Court;
-
some ambiguities with respect to the provisions on minority
self-government, in particular as regards their functioning, should be removed
while, at the same time, some necessary clarifications as to their competencies
should be made.
The Commission notes that more than one year after the
abolition of the suspended provisions of the Constitutional Law of 1991 in May
2000, no normative action has been successfully carried out by the Croatian
Parliament at supra-legislative level to replace the abolished provisions. The
protection of minorities’ rights at the level of the Constitution therefore
remains incomplete.
The Commission remains at the disposal of the Croatian
authorities for further co-operation in the field of this draft law.
