Opinion on the Constitutional
CDL-INF (2001) 14
OPINION
ON THE CONSTITUTIONAL LAW
ON THE RIGHTS OF NATIONAL MINORITIES
IN
adopted by the
at its 47th Plenary Meeting,
(
prepared by the Secretariat on the
basis of comments by:
Mr Franz MATSCHER (
Ms Hanna SUCHOCKA (
Mr Pieter VAN DIJK (Member, The
Mr Alain DELCAMP (
Introduction
Having been asked by the Parliamentary Assembly to follow
the developments in
the revision and implementation of
the Constitutional
rights and freedoms and rights of
national or ethnic minorities in the Republic
of
Constitutional
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
the Parliament of the
On
Venice Commission for opinion a Draft Constitutional
Minorities in
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
2000, in the presence of Ms Lidija
Lukina, Vice-Minister of Justice, and Ms
Sanja Tabakovic,
President of the Council of National Minorities in
further meeting of the Venice
Commission Rapporteurs was held in
October 2000.
At its 44th Plenary Meeting (
its opinion on the draft
constitutional law on the rights of minorities in
number of areas where it needed to
be clarified.
On 4 and 5 January 2001, the
Suchocka and Mr
Delcamp, met in
under the Chairmanship of the
Minister of Justice, Administration and Local
Self-Government Mr Ivanisevic, to draft the Constitutional
of national minorities in
Affairs, of the Council of National Minorities and experts
from the University
of
The Rapporteurs and the members of
the Working Group considered the draft
Constitutional
implications of the Constitutional
Revision of
minorities in
Constitution was adopted on
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 (
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
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
in 2000, shall cease to be valid on
the date of promulgation of the new
(Article 37 still provides that rights acquired before the
date of the entry
into force of the new
Commission understands that this provision does not concern
rights “acquired”
under the regime of the Constitutional
3.
List of Minorities
The Commission welcomes the abolition of the list of
minorities in the new
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
(see document CDL (2001) 69):
[t]his runs contrary to the practice generally advised by
both the Council of
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
in the Preamble to the
Constitution, the notion of minorities is restricted to
citizens of
of minority protection in
international law interpretation by the Human Rights
Committee (General Comment N°23 of
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
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
legislator from granting persons
belonging to minorities who are not (or not
yet) citizens of
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
stated in its opinion on the
Amendments of
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
Most of the rights guaranteed in the draft
with specific implementing laws.
The Commission understands that these
implementing laws must be
compatible with the general provisions in the
Constitutional
Constitutional
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
The Commission stresses in this respect the importance of
the hierarchy of norms
and the “constitutional” nature of
the
“Constitutional”
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
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
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
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: “
(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
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
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
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
National Minorities. Furthermore,
the explanatory report states that the expert
body provided for in Article 35 of
the draft
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
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
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
that the latter
granted in it owing to the
non-adoption to date of the
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
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
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
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
- while welcoming the removal of the list of minorities from
the
the Commission notes that such a
list continues to exist in the Constitution;
- laws implementing this “Constitutional”
organic laws under Article 83 of
the Constitution but as ordinary laws of which
the conformity with the
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
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.
[1] With regard to the meaning of the term “Constitutional
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.