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)



Strasbourg, 12 July 2001


CDL-INF (2001) 14








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)







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), slation 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), 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[1] 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 (document CDL (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 document CDL (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

document CDL (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



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 document CDL (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



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



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 (document CDL (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.[2] 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



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”[3] 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,

documents CDL (2000)62 and 79 rev). The new Articless 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 (document CDL (2001)1),

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


-                     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



The Commission remains at the disposal of the Croatian authorities for further

co-operation in the field of this draft law.








[1] With regard to the meaning of the term “Constitutional Law” in the Croatian

constitutional order, see below, point 5.

[2] The Commission understands the term “public services” used in the English

translation to mean “the civil service”.

[3] The term “Minority Self-Rule” has also been suggested. The term “autonomy”

could be more accurate.