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Strasbourg, 28
February 2002
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Restricted
CDL (2002) 33
Or. eng.
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EUROPEAN COMMISSION
FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
DRAFT CONSOLIDATED OPINION
on the law on the election of members
of the representative bodies
of local and regional self-government units
of croatia
on the basis of comments by:
Mr Pieter VAN DIJK (Netherlands, Member)
Mr Christof HARTMANN (Germany, Expert)
Ms Hanna SUCHOCKA (Poland, Member)
Mr Franz MATSCHER (Austria, Member)
Introduction
2.
This opinion examines the Law as adopted by the Croatian
Parliament on 6 April 2001, in particular from the perspective of minority
protection. The following documents have also been taken into account: the
Opinion of the Venice Commission on the Constitutional Law on the Rights of
National Minorities in Croatia (CDL-INF (2001) 14); its Opinion on the
Amendments of 9 November 2000 and 28 March 2001 to the Constitution
of Croatia (CDL-INF (2001) 15); its report on Electoral Law and National
Minorities (CDL-INF (2000) 4); the CLRAE Report on the Local Government
Elections in Croatia of 11 June 2001; the Final Report of the Office for
Democratic Institutions and Human Rights (ODIHR) on Local Government Elections
of 11 July 2001; and the Opinion on Croatia of the Advisory Committee on the
Framework Convention for the Protection of National Minorities (Advisory
Committee) of 6 April 2001 (CM (2001) 88).
3.
General
considerations on electoral systems and their effects on the protection of the
rights of national minorities are dealt with in the comments of Mr Hartmann
(CDL (2002) 16, at 3.1 and 3.2) and in the Commission’s report on Electoral Law
and National Minorities (CDL-INF (2000) 4). <The present opinion was adopted
by the Commission at its 50th Plenary Meeting, held in Venice on
8-9 March 2002.>
I Persons
entitled to vote
A Age
4.
The right to vote is guaranteed under this Law to persons 18
years and over. Whereas it is not unknown to grant the vote to persons younger
than this (some South American countries have indeed lowered the voting age to
15 or 16 years), the right to vote is commonly granted at 18 years and
this condition may certainly be said to be in conformity with international
standards. This condition has no special impact on minorities.
B Nationality
5.
There is a growing
tendency in Europe to grant the right to vote for local representative bodies
not only to citizens but also to residents who are not citizens of the country
concerned, but have had residency there for a considerable period of time (not
necessarily permanent residence or domicile within the meaning of various
laws). This phenomenon may be observed within the member States of the European
Union (subject to particular arrangements taking into account the situation in
each member State). In addition, the Council of Europe Convention on the
Participation of Foreigners in Public Life at Local Level (1992) recommends
granting foreigners the right to vote and stand for local elections provided
that they have been lawfully and regularly resident in the host country during
the five years preceding the election.
6.
The restriction of
the right to vote to Croatian citizens, in the first paragraph of Article 2 of
the Law, deserves reconsideration from this perspective.
7.
In relation to
minorities, reference is made here to the Commission’s Opinion on the
Constitutional Law on the Rights of National Minorities in Croatia (CDL-INF (2001) 14 at p. 3), which stated that "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 further stated (at p. 4) that the provision
in the Croatian Constitution restricting the right to vote and the right to
take part in the conduct of public affairs to citizens "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". This restriction
would seem to be the more problematic since the 1991 Law on Citizenship is said
to be disadvantageous to those who are not ethnic Croats, whereas ethnic
Croats who live outside Croatia do have the right to vote (see the CLRAE draft Report at p. 5, the ODIHR
Final Report at p. 7, the Opinion of the Advisory Committee § 27 and
below). It would be advisable to revise both the Constitution and the 1991 Law
on Citizenship in these respects.
8.
Finally, Article 9
of the Law on Voter Registers requires voters to be identified by ethnicity. It
is not clear whether that requirement has a legitimate aim, given the fact that
there are no separate elections for members of minorities. Since the voter
registers are public documents, the requirement may involve a risk for persons
belonging to certain minorities (see the Opinion of the Advisory Committee
§ 19). It must be recalled that, according to Article 3, paragraph 1
of the Framework Convention for the Protection of National Minorities, “every person belonging to a national minority
shall have the right freely to choose to be treated or not to be treated as
such”.
C Permanent Residence
9.
The requirement of permanent residence in the unit concerned
raises the issue of special facilities for displaced persons in Croatia, for
whom it remains problematic to change permanent residence (see, with regard to
the 2001 local elections, the CLRAE draft Report at pp. 12-13 and the ODIHR
Final Report at pp. 8 and 19). The application and interpretation of the
term “permanent residence in the area” are of particular importance within the
current political context in Croatia, in which the issues of the return of Serb
refugees, equal opportunity for citizenship rights regardless of ethnicity and
the full restoration of property rights remain unresolved or only partially resolved.
However, it should be noted that the difficulties experienced by former
Croatian citizens of Serb origin in renewing their citizenship, and thus their
voting rights, from their current place of residence arise largely from
problems in the citizenship laws. This is an issue that should therefore be
repaired through amendments to the citizenship laws, and not through electoral
legislation.
10.
Furthermore, the Constitutional Court ruled in
1999 that the Constitution allowed ethnic Croats living in Bosnia and
Herzegovina and holding dual citizenship to vote for local government elections
in Croatia. Whereas there may be some reasons to relax the residency
requirements for national polls (especially with regard to the
importance of minority-sensitive political decisions taken at this level), such
arguments hardly exist for local and regional elections. Problems of
transparency and access to judicial review, which already arise with respect to
external voters participating in national polls, as well as the crucial
influence external voters may have on the result of an election if they are
numerous, are compounded in the case of local elections by the fact that the
representatives at this level will be deciding on matters that are of great
importance to the local community but generally of little relevance to external
voters.
11.
As is described in the electoral reports, the specific voting
arrangements for displaced persons were not covered in the Election Law. This
led to certain organisational obstacles witnessed during the 2001 elections in
some polling stations for displaced Serb voters.
12.
In sum, both the application and the interpretation of the term “permanent
residence in the area” in Article 2 need clarification in order to ensure that
displaced voters can effectively exercise their right to vote and to avoid
falsification of the results of local elections.
II The Electoral System
and its Impact on Minorities
A Proportional
System Using the d’Hondt Method of Allocating Seats
13.
Article 9 of
the Law reflects the principle of proportionality of seats for the majority and
the various minorities living in the unit concerned (see also Articles 15, 44
and 132 of the Croatian Constitution).
14.
It is to be
welcomed that the term "minorities" is not defined, and especially
that the minorities are not listed. However, here the same observation arises
as that made by the Venice Commission in its Opinion on the Constitutional Law
on the rights of National Minorities in Croatia (CDL-INF (2001) 14, p. 3),
viz. that a list of minorities is
still valid in the Preamble of the Constitution. As long as that Preamble has
not been amended, the Law should state expressly that "minorities" in
the sense of the Law is not restricted to those minorities that are listed in
the Preamble of the Constitution.
15.
The electoral system is laid down in Articles 9 and 11-24
of the Law. A system of proportional representation – which generally favours
smaller groups and is therefore more advantageous to minorities – is provided
for, with blocked lists in a single constituency at the level of each local and
regional self-government unit. The number of seats in each unit is stipulated
by the unit’s statute. A 5 % threshold is applied for all elections. The
d’Hondt method was used for the calculation of seat distribution. The mayor is
not elected by the population, but by the elected representatives of the local
council. The mode of his or her indirect election is not regulated in the Law.
16.
The 5 % threshold is quite high and tends to
favour larger groupings, to the detriment of small political parties. It should
be noted also that the lower the number of seats in a unit – a matter not
regulated by law but left for the statutes of each unit, as described above –,
the lower the probability that the (proportional) representation of minorities
will be achieved. For instance, in elections to small local councils with only
seven to ten seats, minor parties will need to obtain between eight and twelve
percent of valid votes in order to have a representative elected. The de
facto threshold may therefore in fact be higher than that laid down by law.
Again, this acts to the detriment of small (often minority) political parties.
17.
The Commission
questions whether such a threshold – whether the 5 % legal threshold or a
higher de facto one – would be in accordance with Article 15 of the
Constitution and with the text and purpose of Article 21 of the draft Constitutional
Law on the Rights of National Minorities in the Republic of Croatia, which aim
at ensuring to national minorities on a proportional basis the right to
political representation at state and local levels and participation in
public affairs. (In that same draft Constitutional Law, in relation to the
Croatian Parliament, it is provided under Article 20 that minorities
forming less than 4% of the population shall together have at least 6 seats in
the Parliament.)
18.
Furthermore, certain ambiguities arise with regard to the
concept of proportional representation used in the Law. This applies in
particular to the comparison of Articles 9 and 61. Article 9,
paragraph 1 states that “statutes of local and regional self-government
units shall determine the number of members of representative bodies from
amongst Croatian citizens, members of ethnic and national communities or
minorities, in accordance with the proportional
share of their members in the total population of the unit.” But
Article 61 also refers to the principle of “adequate representation” of the minority population in the
compiling of electoral slates. This expression is also used in paragraph 2
of Article 9, with reference to the representation of Croatian people in
areas where they are in the minority. The question therefore arises as to
whether Article 61 and paragraph 2 of Article 9 may soften the
criteria arising out of the first paragraph of Article 9, to the
disadvantage of minorities.
19.
It would be difficult to find an answer to this question in
the Law itself, and no other law precisely regulates these questions. It is
true that the Constitutional Law on the Rights of National Minorities is still
only at the draft stage. However, extensive consultations on the draft of that
law have been held and its highly framework-like character was criticised by inter
alia the Venice Commission. In response to that objection came the
explanation that the constitutional law was intended to provide a general
framework to be filled in with other specific laws. That is how Article 13 of
the Draft Constitutional Law should be understood when it states: “Members of
national minorities shall, along with the general and equal right to vote for
members of representative bodies of the local and regional self-government
units, have the right to elect a certain number of members of representative
bodies in proportion to the percentage they make up within the total population
of the unit, in accordance with a special law and statute.” Without a doubt,
the law currently under analysis is just such a special law. It should
therefore be filled with unequivocally precise and exhaustive content that
leaves no room for doubt as to the scope of the principle of proportionality.
Not every law can or should be a legislative framework.
20.
Article 23 provides that: “All voters having
permanent residence in the area of that unit who come to the polls, shall
elect, on the basis of the slates of candidates, all members of the unit’s
representative body.” This provision excludes any separate voter rolls or
ethnic representatives elected by the voters of their group exclusively (and
will therefore need to be amended if the Constitutional Law on the Rights of
National Minorities is eventually adopted as it stands). According to the letter
of the legal provision, the electoral system is thus limited to using direct
and explicit strategies to protect minorities by reserving quotas at the level
of candidacy. All parties proposing candidates are obliged to present mixed
slates of candidates and the system thus includes a major incentive for
inter-ethnic coalition building. However, without any clear provision about the
ranking of candidates within the slates, the necessity of including
representatives of minorities proportionally does not guarantee their election
to the local and regional councils and does not ensure a proportional outcome.
21.
Finally, it may be
noted that it is not clear from the Law how the principle of proportionality
of Article 9 and the resulting fixing of "proportional shares" may be
reconciled with the freedom of choice of voters laid down in Article 10.
Article 23, which regulates how the members of the representative bodies are
elected, speaks of a "proportional electoral method", but that does
not seem to relate to the composition of the constituency in a majority and
minorities. If a voter declares that he or she belongs to a certain minority,
and consequently his or her vote is taken into account in determining the
"proportional share", does that mean that he or she may vote only for
a candidate belonging to the same minority? And if several members of a certain
minority do not wish to do so, given the fact that the voting is secret, how
could that affect the "share" of that minority?
22.
The issue is also
still not sufficiently clarified by Article 21 of the draft Constitutional Law
on the Rights of National Minorities in Croatia.
B Procedures
for the Implementation of the Proportionality Principle
i) Composition of Electoral Slates
23.
The system of
proportional representation is sometimes criticised, in general terms, for
encouraging the creation of parties along national or ethnic lines.
Article 61 of the Law appears to try to compensate for this effect, at
least to some extent, by providing that, “At the regular elections 2001, the
proponents of slates shall, while compiling slates, acknowledge the principle
of the adequate representation of the minority population, taking into account
the local circumstances.”
24.
This provision is
nevertheless unsatisfactory, for two reasons. First, it does not require
parties to place minority candidates in positions where they have a reasonable
chance of being elected under the system of blocked lists laid down by the Law.
Article 11 paragraph 3 mentions only the obligation to pay
heed to the principle of gender equality, but is silent on ethnic proportionality.
Even those parties that might be seriously committed in presenting such proportional
slates would not be able to guarantee any proportionality in the outcome, as
the overall composition of the council is the result of the winning candidates
of different party lists (and not different ethnic lists).
25.
Second,
Article 61 of the Law, which is part of the interim and final provisions,
only relates to the regular elections of 2001 and would, consequently, seem to
be of no relevance any longer, unless the Article will be amended to refer to
future elections. It does not contain any sanction for the situation in which
the adequate representation provided for is not "adequately"
reflected in the proposed slate (for the rather disturbing figures concerning
minority representation on candidate lists, see the ODIHR Final Report at p.
17). Furthermore, Article 61 provides, in a rather vague fashion, for additional
elections in the case that the elections held have not resulted in
proportional representation of national minorities. This system of additional
elections (“by-elections”) is discussed below.
26.
On a more general level, the manner of list voting
(blocked or open) has been the subject of much discussion in all countries
adopting new election laws. Different arguments favour each of those
alternatives, and neither oversteps the bounds of democratic standards. The
Croatian election law has adopted the method of voting for the party leader and
does not allow preferential voting within the limits of the slate. This
solution undoubtedly strengthens individual parties, especially the party
leader, who has a decisive say in how the names of candidates are arranged on a
slate. The order in which candidates are listed determines who gets elected;
the electorate exerts a smaller influence on the concrete personal composition
of a given representative body. However, for the reasons described above, this
voting method presents the disadvantage that it may disrupt the principle of
proportional representation of minorities. At the same time, though, it avoids
possible strains due to internal campaigning such as nationality appeals
between candidates on a given slate. It should be emphasised that legal
solutions that are less likely to trigger conflicts should be promoted.
Therefore, even if the possibility of voting for a given candidate would appear
to constitute a better safeguard of minority rights, this is not always the
rule. It therefore appears that the adopted solution may be the better one in
Croatia’s current situation.
ii) The System of By-Elections
27.
A serious failing
of the Law is that, while it provides, under Article 9, that the statutes
of local and regional authorities shall determine the number of seats to be
held by “Croatian citizens, members of ethnic and national communities or
minorities, in accordance with the proportional share of their members in the
total population of the unit”, there is a remarkable absence of clear
provisions governing how such a composition of the relevant bodies is actually
to be achieved. As mentioned above, Article 61 provides for additional
elections in cases where the elections held have not resulted in proportional
representation of national minorities. It is not clarified, however, how such
additional elections will be held and who may participate in them; only the
minorities which are under-represented?
28.
It is also not
clear how the results of these additional elections will be combined with the
results of the original elections. Will those elected candidates, who were
listed last on their respective slates and who do not belong to the national
minority concerned, have to resign to make room for candidates of the same
slate who belong to the national minority concerned and who have been elected
in the additional election? This consequence would amount to disrespect for
the mandate given to the former by the voters, and would create a cause for
ending a term of office before its expiration that is not listed in Article 7.
On the other hand, an ad hoc increase
of the membership of the elected body to provide seats for the additionally
elected members, would also seem problematic and be in violation of the relevant
statutes and regulations determining the size of the representative bodies (see
also the ODIHR Final Report at p. 6).
29.
Two solutions to address this kind of problem exist in
the laws of other States. The first solution would remain within the overall logic
of the Croatian local and regional electoral system by providing for “best
loser seats” according to the Mauritius model. Thus, if the electoral outcome
did not reflect the established quotas, the lowest-ranked winners according to
the d’Hondt formula would be substituted by the best-placed minority candidates
from the same lists. The second option would be to shift to a majoritarian
electoral system with open party lists (and possibly multiple voting) where
voters cast their votes for single candidates on the lists, and the seats would
be distributed to the candidates obtaining the highest number of votes taking
into account the agreed seat ratio between the different groups (Lebanese
model). Other solutions may also be found, such as applying the system of double representation governing the
elections at the State level, as provided for by the draft Constitutional Law
on the Rights of National Minorities in Croatia, to the elections at the
regional and local levels; but in any case, it is essential that clear provisions on this matter be
included in the present Law.
iii) Use of the 2001 Census in Determining
Minority Quotas
30.
The Law additionally provides (Article 61,
paragraph 2) for the by-elections discussed above to be held within 90
days after the results of the 2001 census are published in order to correct
eventual under-representation of minorities. It remains to be seen to what
extent such by-elections will ever be held, if the results of the census are
published. In addition, the method of determining
the size of the different groups is highly disputed, for instance in relation
to the position of refugees, displaced persons and Croatian citizens living
abroad, while for many persons belonging to a minority it may be problematic to
identify themselves as such in a census, especially for Roma, out of fear of
discrimination or intimidation (see the ODIHR Final Report at pp. 6-7, and the
Opinion of the Advisory Committee § 20). Moreover, the census question
on ethnicity, correctly reflecting the principle that no one can be obliged to
declare themselves as belonging (or not belonging) to any given minority, was a
voluntary question. (See the ODIHR Final Report, p. 7.) The proportional
quotas will therefore reflect only the figures of those persons having declared
themselves as belonging to such minorities.
31.
Finally, the composition
of the population, and therefore the numerical proportion of the different
groups, will be subject to changes. It is unclear on what occasions and how frequently
changes in numbers will be taken into account in allocating seats.
III Specific Provisions
Having a High Impact on National Minorities
Article 11
32.
It is not clear
from this provision whether there is a minimum numerical requirement for the
registration of a political party, while Article 12 requires a minimum number
of signatures for the proposal of an independent slate.
33.
There is no special
provision for the proposal by minorities of slates for the election. This again
raises the question of how the proportionality principle of Article 9 is to be
put into effect. Do the minorities have to establish a separate political party
or have to propose an independent slate as a group of voters to guarantee that
candidates will be elected for the number of seats proportionally allocated to
them?
34.
There seems to be
no sanction if the obligation under the third paragraph to take care of the
principle of gender equality in composing the slates is not met. In fact,
during the 2001 local elections the requirement was not implemented in several
instances (CLRAE draft Report at p. 12; ODIHR Final Report at p. 18).
Article 12
35.
There is no
provision in Article 12, identical to that of Article 11, stipulating that the
proponents of an independent slate shall be obliged to take care of the
principle of gender equality. This difference does not seem to be justified.
36.
Does the minimum
numerical requirement of signatures also apply to minorities who wish to
propose an independent slate, even if the total number of members of the minority
concerned residing in the unit and entitled to vote is less than the required
number of signatures?
Article 14
37.
The time-limit of
12 days for forwarding proposed lists of candidates to the competent electoral
commission, laid down in the first paragraph of Article 14, appears rather
short given inter alia the requirement under Article 15 that lists
contain the same number of candidates as the number of members of the
representative body being elected.
Article 15
39.
The requirement
that the ethnicity of candidates is mentioned would seem to serve a legitimate
aim only if that requirement relates in any way to the proportionality
principle laid down in Article 9 (see above, part I.B). If for the seats
proportionally allocated to the majority and minorities in the unit,
candidates are elected on the basis of separate slates, there would seem to be
no justification for requiring that candidates reveal their ethnicity if they
do not figure on a specific minority slate. If, on the contrary, the
"proportional shares" are brought about by counting the candidates of
a certain ethnicity who have been elected, it is not clear how it may be
guaranteed beforehand that the "proportional share" will be achieved,
while it is of course not possible to change the results of the elections in
order to give effect to proportionality without holding additional elections.
(See, however, the remarks at the end of the observations in section II.B.ii)
above.)
40.
The decision of the
Constitutional Court that, if a list of candidates is no longer complete due to
events other than the decease of a candidate, the list is no longer valid,
could amount to a frustration of the right of proportional political
participation. This solution is obviously disadvantageous for every
political grouping. In the case of minorities, however, it has an especially
negative dimension since it can bring about the elimination of an entire
minority slate, thereby completely violating the principle of proportional
representation defined in Article 9. Imprecisely formulated provisions of
the law therefore lead to internally contradictory principles within the
framework of a single law. The Law should
be amended to remedy this undesirable effect, for instance by allowing lists of
candidates to contain more names than the number of seats available or by
providing where necessary for a procedure to add names to a slate that would
avoid the elimination of the entire slate.
Article 17
41.
The provision does
not take into account the inclusion of independent slates by their name.
Articles 18 and 19
42.
The question of
access to the media is addressed only very briefly (Article 19). It should
either be developed in the present law or treated in a more substantial manner
in other pieces of legislation. Is there a guarantee of access to the national
and local media? And if so, does that mean access to the public media only, or
also to the private media? What tools of expression are covered by the notion
of "local public information outlets"? Is the guarantee of access
"without obstacles" not too absolute? One could think of necessary restrictions
as to time and place, and of certain measures necessary to protect public order
and to protect the rights and interests of others. Are all forms of access free
of charge? What is meant by "under equal conditions"? Is that formal
equality or substantive equality proportional to, for instance, the membership
of the political party or coalition, or the number of signatures of independent
slates? And finally, what sanctions are involved, if access and coverage are
not given in conformity with the requirements?
Article 21
43.
An exceptionally important problem, to which the proper
importance is not always attached, especially in what are known as the new
democracies, is the issue of compensating campaign costs. The basic question is
whether the state should finance political parties or whether they should be
left entirely to their own resources. Various arguments favour one or the other
alternative. The law under analysis has opted for a solution whereby the state
provides compensation for elections. However, Article 21, which deals with
this problem, is exceedingly general. Political parties and leaders of
independent slates that gain a minimum of one member in a representative body
at the elections shall be entitled to the compensation of electoral campaign
expenses. But the details have been left to the government’s discretion. This
is unsatisfactory, since, regardless of which system is chosen, it must in any
case be precisely defined in the election law, or possibly in the law on
political parties. The opportunity to regulate this matter in the present law
has not been tapped, and that constitutes a major shortcoming of the law.
Leaving the matter entirely up to the government without any clearly legislated
rules always spawns the threat of preferential treatment of certain parties or
of corruption. Historical examples of such phenomena are not in short supply.
Hence, this is one of the more serious defects of the present law.
44.
Particular issues
that require clarification include: the criteria for determining the amount of
compensation; the questions whether the number of candidates elected or the
number of members of the political party are relevant factors; whether the fact
that a political party will have members who pay a contribution, which usually
will not be the case for an independent slate, will be taken into account; and
whether there is room for "positive discrimination" to enable
presumably minorities to participate effectively in the elections.
45.
Provisions are
lacking concerning the use of the funds provided and concerning reporting and
auditing (see, however, Article 6, third paragraph, of the Constitution).
Article 26
47.
Since the State
Electoral Commission also supervises the work of regional and local electoral
commissions, its composition is also relevant for the elections of members of
the representative bodies of regional and local units. Paragraph four provides
for the extended composition of the State Electoral Commission for the
representation of political parties in the Commission, but not for
representation of those minorities whose voters are not affiliated with a
political party (nor of other voters who support independent slates).
Furthermore, a qualified majority should be required for the decisions of the
electoral commissions in order to avoid the political majority imposing its
views too easily.
Article 27
48.
For the composition
of the regional and local electoral commissions the same holds a fortiori: there is no provision for
the representation of those minorities whose voters are not affiliated with a
political party (nor of other voters who support independent slates). Since the
electoral commissions determine the voting results of the respective units
(Articles 46-49), representation on these commissions is instrumental in
supervising that equal political representation is ensured.
49.
The provision
according to which the chairpersons of electoral commissions of a unit shall be
graduate lawyers is praiseworthy, and could be extended to their deputies (cf.
Article 32, paragraph 4, where a similar requirement already applies
to both the chair and the deputy chair of a voting committee). In addition,
there should be an express provision that the chairs of the electoral
commissions and their deputies shall be independent and impartial persons.
Articles 28-32
50.
Since the electoral
commissions appoint the members of the voting committees and since in the
composition of the former no representation of minorities is guaranteed (see
comments on Articles 26 and 27), there is also no guarantee that minorities
are proportionally represented in the voting committees. As these committees
have to ensure the regularity and secrecy of voting (Article 32, first
paragraph), decide on whether or not a voter is allowed to vote (Article 41),
visit voters at home who are not able to come to the polling station (Article
42, second paragraph), count the votes (Article 43, second paragraph) and
establish the voting results (Article 44), such proportional representation
is instrumental to the protection of the voting rights of minorities. The
possibility of appointing monitors, provided for in Article 34, does not offer
full compensation for this lack of proportional representation, given the
difference in functions and powers between the voting committees and the
monitors.
Article 34
51.
There is no special
reference to national minorities as groups which shall have the right to
appoint monitors, although national minorities are not necessarily covered by
the category of "political parties and voters who proposed the
slates" nor by the category of "non-governmental associations".
The right of minorities to appoint observers for the elections in those units
where their members participate in the elections and are candidates, is a very
effective tool to supervise the implementation of their equal right to vote and
to proportional political representation.
Article 37
52.
The wording of the
second paragraph confirms that one can only vote for a whole slate and not give
one's preferential vote to a candidate who is not number one on the list of the
slate. The effects on national minorities of this system of blocked lists, as
well as its effects on the implementation of proportional political
representation, are discussed above, at II.A and II.B.
Article 49
53.
Among the details
to be announced, the ethnicity of the candidates elected is not mentioned.
This contrasts with the requirement under Article 15 that the ethnicity of
candidates be stated on the proposals of slates of candidates and again indicates
that the Law does not seem to provide express guarantees for ensuring that
there is in fact proportional political representation of minorities at
regional and local level. This makes the conformity of Articles 9 and 15
with the Framework Convention for the Protection of National Minorities still
more doubtful.
Article 52
54.
If a certain
minority does not participate in the elections as a separate political party or
with an independent slate, its right to raise objections with the
Constitutional Court concerning irregularities in the candidacy procedure
would seem to be insufficiently guaranteed. Such a right to raise objections
with the Constitutional Court is, however, of vital importance to ensure
proportional political representation. In fact, the provisions of this law on locus
standi with respect to lodging objections with the Constitutional Court are
very restrictive in general.
Articles 53-56
55.
If objections to
the electoral commissions may also only be submitted by political parties and
coalitions, or by leaders of independent slates, the same observation holds
that the possibility for minorities to have their right to proportional
political participation ensured, is insufficiently guaranteed.
56.
The third paragraph
of Article 56 provides that an appeal to the Constitutional Court shall be
submitted through the competent electoral commission. Since the appeal will be
directed against the decision of that very electoral commission, this provision
could negatively affect the free access to the Constitutional Court, also for
representatives of minorities.
57.
ODIHR reports,
however, that during the 2001 local elections the appeals process was properly
conducted with adequate recourse to an appeal and that the appeals were duly
considered (Final Report at p. 9).
Article 61
58.
See the
observations made in the context of the comments on proportional representation
in section II.B.ii).
59.
The third paragraph
of Article 61 provides for the precedence of the statutes of regional and local
units over the present Law in the matter of participation of national minority
members in the representative bodies. This precedence clause would seem to be
of too general a character. If the statutory provision concerned provides for
such participation but does not guarantee a "proportional share" in
the sense of Article 9, the latter must have precedence in order to ensure the
right of proportional political participation. Moreover, the relation between
the statutes and the present Law may also raise a constitutional issue which
should ultimately be settled by the Constitutional Court.
IV Other Provisions
Article 3
Article 5
61.
In the second
paragraph, the President of the Republic is not mentioned as a function that is
incompatible with the membership of a representative body. This reference
should be added.
Article 7
62.
After the third
dash, there is a reference to a court verdict sentencing the member to a
unconditional prison sentence of more than six months, the words "on the
day of the coming into effect of the court verdict". If the court verdict
is open to appeal, does the term of office indeed end on the day of the coming
into effect of the verdict, or on the day on which the period for appeal has
been lapsed without an appeal having been lodged, or, if an appeal had been
lodged, on the day the final judgement is pronounced? This needs to be
clarified.
Article 8
63.
This provision
needs to be rephrased for the sake of clarity. The first paragraph creates the
impression that each member of a representative body has a specific deputy,
while it becomes clear from the second and third paragraph that as a rule one
and the same non-elected candidate will figure as a possible substitute for the
first member out of a group of several members who is suspended or whose term
of office ceases before the expiration of his or her term of office. An
alternative may be considered to put the second and third paragraph at the
beginning and to add a paragraph concerning the replacement of those members
who have not been elected on a party slate or coalition slate.
64.
In any case, these
provisions should be modified in order to make clear that the candidate that
replaces another candidate whose term of office has been suspended or has
ceased is the first non-elected candidate on the list and that the party cannot
choose a replacement freely on the list. Otherwise, the order of the list would
lose its meaning, since it would be possible for a party, when a candidate at
the top of the list resigns, to replace him or her by someone from the bottom
of the list.
Article 50
65.
The important
question of the financing of the elections (Article 50) is addressed only
very briefly. This should either be developed in the present law or treated in
a more substantial manner in other pieces of legislation.
V General
Remarks
66.
The aim of the present law does not appear to be to deal with
every question arising in the field of local elections. The Commission
therefore considers it acceptable that the law does not deal with issues that
may be dealt with in other laws, such as the registration of voters or certain
sanctions to be imposed for failures to respect this law. However, it would be
advisable for explicit references to be made to such laws at the relevant
points in the present law. Care should also be taken to ensure that concepts
referred to across a number of laws do not become incoherent through the simple
fact that the relevant laws were adopted at different times and in very
different political and legal circumstances.
Conclusions
69.
From the above
analysis it may be concluded that the Law on the Election of Members of the
Representative Bodies of Local and Regional Self-Government Units is unclear on
several points. A number of ambiguities arise from insufficiently clear or
precise provisions, which should be amended. Reference is made here in particular to the points raised above in
sections III and IV. Furthermore, as the law does not deal with
every question arising in the field of local elections, the problems arising
will in some cases require amendments also to other laws. The fair
representation of national minorities at the local level may require amendments
in particular also to the Law on Citizenship.
70.
Care should also be taken to ensure that the
relationship between the concepts contained in this law and in other laws that
are already in force, but that were drafted in very different political and
legal circumstances, does not become incoherent. Such incoherence would not
improve the guarantees of electoral rights.
71.
The absence of
regulations with respect to the media and financing of elections are especially
important lacunae. The present
law would seem, particularly in these respects, to constitute a certain
framework which must be imbued with precise substance before the next election
takes place. This must be done sufficiently in advance of the next elections in
order to guarantee the fair preparation and holding of the elections.
72.
There are moreover
a number of serious flaws which mean that the right of minorities to
proportional political representation at regional and local level, provided for
in Article 21 of the draft Constitutional Law on the Rights of National
Minorities in the Republic of Croatia, finds insufficient procedural and
material guarantees in the Law under consideration. In particular:
-
the application of
a double standard with respect to the residency requirement for the right to
vote – non-Croatian citizens residing in Croatia cannot vote in these
elections, whereas Croatian citizens living abroad are entitled to vote – does
not appear justified in the context of local and regional elections, does not
reflect the general European approach to participation in local and regional
elections, and has serious consequences in particular for Serb refugees;
-
whereas the
principle of proportional political representation of minorities is enunciated
in the Law, the means of ensuring its implementation are not clearly laid down;
-
the proportional
system using blocked lists means that candidates belonging to national
minorities will only be elected if they are placed sufficiently high on the
slate on which they are running, and thus, even if the slates themselves
reflect the proportional composition of a given electoral unit, there is no
guarantee that this will lead to proportional representation on the relevant
local or regional body;
-
Article 61 of
the Law, which provides that additional elections (“by-elections”) shall be
held within 90 days of the publication of the 2001 census results if
proportional representation of minorities has not been achieved, does not
regulate these by-elections any further, provides no means of enforcement and
is in any case an interim provision applicable only to the 2001 local and
regional elections;
-
the legal threshold
of 5% required for a list to have a candidate elected is quite high and may
exclude national minorities from being represented; and, if the council is
small, the de facto threshold may indeed be higher still;
-
the requirement
that candidates declare their ethnicity (Article 15) does not appear, in
combination with the other provisions of the Law, to enhance the possibilities
of proportional representation of national minorities as laid down under
Article 9, and therefore does not seem to serve a legitimate aim.
73.
These factors have
a significant impact on minorities. It cannot be said prima facie that
the resulting limitations of the principle of proportional representation
of parties as well as of minorities have a legitimate purpose and are
proportional to the aim pursued, also in an international law perspective. It
is especially important that these elements be amended and clarified before the
next elections, and sufficiently in advance of them to ensure that the
preparation and holding of the elections is fair.
74.
Finally, these
factors highlight the importance of adopting the Constitutional Law on the
Rights of National Minorities. The adoption of this text – which has already
been delayed by several years – is vital to ensure that a clear framework for
the protection of national minorities is laid down, within which the provisions
of the present Law will fill in the details regarding the participation of
national minorities in public life at the local and regional level.
