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U-I-283/94
12.2.1998
DECISION
At a session held on 12 February 1998, in a proceeding for assessing
constitutionality and legality commenced on the initiative of Danijel Starman
of Koper and others, the Constitutional Court
reached the following decision:
1. It is not in conflict with the Constitution that the Elections to the
National Assembly Act (Official Gazette RS, no. 44/95) gives members of the
Italian and Hungarian self-governing national communities the right to cast two votes at elections of
delegates to the National Assembly.
2. It is not in conflict with the Constitution that the Local Elections Act
(Official Gazette RS, no. 72/93, 7/94, 33/94 and 70/95) gives members of the
Italian and Hungarian self-governing national communities the right to cast two votes at elections of
members of the municipal council.
3. Article 22 of the Records of Electoral Rights
Act (Official Gazette RS, no. 46/92) is not in conflict with the
Constitution. 4. It is in conflict with the Constitution that the Records of
Electoral Rights Act (Official
Gazette RS, no. 46/92) does not determine measures according to which the
commissions of the Italian and Hungarian self-governing national communities
decide on inscription in the special electoral roll of citizens, members of
the autochthonous Italian and Hungarian national communities. The National
Assembly must rectify this conflict with the Constitution prior to calling
the next regular elections to the National Assembly.
5. The fourth paragraph of article 53, article 134 and the second paragraph
of article 140 of the Statute of the Urban Municipality of Koper are not in
conflict with the Constitution and law.
6. The initiative is rejected in the part which refers to the Delegates Act
(Official Gazette RS, no. 48/92) and the Standing Orders of the National
Assembly (Official Gazette RS, no. 40/93, 28/96 and 26/97).
Reasoning
A.
1. By resolution on 6.6.1996, the Constitutional Court partially accepted and
partially rejected the initiative of Danijel Starman and others (hereinafter:
the initiators) whereby they impugned the provisions of the following
regulations: - Records of Voting Rights Act (Official Gazette RS, no. 46/92
- hereinafter: ZEVP),
- Elections to the National Assembly Act (Official Gazette RS, no. 44/92 -
hereinafter: ZVDZ)
- Self-governing National Communities Act (Official Gazette RS, no. 65/94 -
hereinafter: ZSNS),
- Local Elections Act (Official Gazette RS, no. 72/93, 7/94, 33/94 and 70/95
- hereinafter: ZLV)
- Statute of the Urban Municipality of Koper (Official Publications
Koper/Capodistria, no. 9/95 - hereinafter: the Statute)
2. The initiative was accepted in the part which refers to: - the asserted
anti-constitutionality of the right
of members of the Italian and Hungarian national communities (hereinafter:
national communities) to cast two votes at elections to the National Assembly
and at elections to a municipal council - one for the election of
representatives of the national community to the National Assembly or
municipal council and the other for election of other delegates or members of
the municipal council; these rights
are given them by ZVDZ and ZLV,
- article 22 ZEVP,
- fourth paragraph of article 53, article 134 and the second paragraph of
article 140 of the Statute.
3. The initiators believe that double
voting rights,
as they themselves characterise the rights
of members of the national communities to cast two votes at elections to the
National Assembly and to a municipal council, is in conflict with the
constitutional principle of equality before the law. Double voting rights in their opinion is impermissible
discrimination which in no way contributes to the protection of the national
communities.
4. In the original initiative, the initiators expressed the standpoint that
the Standing Orders of the National Assembly (Official Gazette RS, no. 40/93,
28/96 and 26&97) should restrict the limits of the mandate of
representatives of the national communities. In their opinion, it is anti-
constitutional if representatives of the national communities take part in
decision making on all matters which are within the jurisdiction of the National
Assembly.
5. The provision of article 22 ZEVP, which enables inscription in the
electoral roll on demand to members of the Italian and Hungarian
nationalities who do not have permanent residence in nationally mixed
settlements, in the opinion of the initiators, is anti-constitutional because
extending rights to nonautochthonous
members of the national community exceeds the constitutional protection of
the nationalities.
6. In the opinion of the initiators, the following provisions of the Statute
are also in conflict with the Constitution: - the provision of article 134,
which awards local communities the status of a legal person (the initiators
believe that by establishing legal persons of public law the Statute
encroaches on the jurisdiction of the legislator),
- the provision of the second paragraph of article 140, because it determines
the direct representation of national communities in the councils of local
communities (the initiators believe that the special provisions on rights of national communities do not come
into consideration for local communities because it is not a self-governing
local community), and
- the provision of the fourth paragraph of article 53, which determines that
the deputy mayor must be a member of the Italian nationality if the mayor is
not a member of the Italian nationality (such that, the initiators believe,
the passive voting rights of persons who are not of the
Italian nationality are discriminatorily restricted).
7. On 14.11.1996, the initiators submitted "a proposal for the temporary
restraint of ZVDZ, insofar as it gives members of the national communities double voting
rights, the provisions of the
Standing Orders, insofar as these do not determine limits to the mandate of
representatives of the national communities (especially the second paragraph
of article 119 and the second paragraph of article 128(, and the Delegates
Act (Official Gazette RS, no. 48/92 - hereinafter ZoP) in entirety in
relation to representatives of national communities". They again stress in
this submission their standpoint that it is anti- constitutional that
delegates who are representatives of national communities take part in
decision making on all matters in the National Assembly, e.g., also in the
election of the President of the Government and the appointment of ministers.
The Constitutional Court considered that with the cited proposal the
initiators had extended the initiative also to the Standing Orders and ZoP.
They carried out a public hearing on the proposal for the temporary restraint
and, after it, rejected the proposal by resolution.
8. The Secretariat of the National Assembly for legislation and legal affairs
(hereinafter: the Secretariat) first (prior to the partial acceptance of the
initiative) answered to the whole initiative. It believes that the initiative
is unfounded, since "the laws which the initiators impugn as violating
the Constitution only implement constitutional provisions on the special rights of the autochthonous national
communities", The special protection of the national communities, in the
opinion of the Secretariat, is the implementation of the principle of
equality, namely such that it respects the special position and circumstances
in which these communities live. Even if the laws had determined other or
wider rights than the Constitution
determines, this would not be in conflict with it, the Secretariat believes.
9. Double voting rights in the
opinion of the Secretariat derive from the third paragraph of article 64 of
the Constitution, and in relation to the composition of the National Assembly
and the position of delegates in it, also from the third paragraph of article
80 and the first paragraph of article 82 of the Constitution. In relation to
the rights of members of national
communities who live outside nationally mixed regions, the Secretariat draws
attention to the provision of the fourth paragraph of article 64 of the
Constitution, which entrusts to the legislator determining the rights which members of national
communities shall realise also outside regions in which these communities
live. Statutorily determining the status of members of national communities,
in the opinion of the Secretariat, is "very debatable because of
constitutional provisions which guarantee human rights
and freedoms, including the provision of article 61 of the
Constitution". The Secretariat also believes that the initiators do not
show legal interest in lodging the initiative under consideration.
10. After the issuing of the resolution on the partial acceptance of the initiative
and after the carrying out of a public hearing, the Secretariat once more
(exhaustively) answered to the accepted part of the initiative. It states in
answer that the so-called double voting rights
are required by constitutional provisions; it is the implementation of the
special constitutional rights under
the third paragraph of article 64 of the Constitution in addition to general voting rights.
The Secretariat stresses the commitment of the Constitution to the protection
of the rights of national communities
and it derives from the so-called positive concept of regulating the position
of these communities. The Constitution guarantees them special rights which appear as "positive
discrimination". The Secretariat stresses the protection of minorities
as an important measure of the democraticness of an ethnically plural
society. It draws attention to article 4 of the Framework Convention of the
Council of Europe on the protection of ethnic minorities, to which Slovenia
is also a signatory; this article determines that measures which are a result
of respecting the specific circumstances in which members of a minority live
cannot be treated as discrimination against members of the majority nation.
11. The Secretariat states that the arrangement of the position of the
national communities under the Constitution signifies continuity in this
field, since the positive concept of protection of minorities was already
introduced here with the Constitution of 1974 and later constitutional
amendments. It mentions also the provisions of the Declaration at the time of
independence and the Basic Constitutional Charter on the Independence and
Sovereignty of the Republic of Slovenia (Official Gazette RS, no. 1/91 - I -
hereinafter: TUL), which determine that the Italian and Hungarian national
communities in the RS and their members are guaranteed all rights from the then Constitution and valid
international contracts. It also states the provisions of article 338 of the
Constitution from 1974 (amendment from 1989), according to which the national
communities have at least one delegate each in each of the councils of the
then Assembly SRS. It draws attention that the national communities had
special voting rights under these provisions and a
termination of this right would
signify violation of the principle of confidence in law.
12. The Secretariat draws attention to the obligations of Slovenia under
international law according to the Contract on friendship and cooperation
between the Republic of Slovenia and the Republic of Hungary, under the
Agreement on guaranteeing special rights
of the Slovene national minority in the Republic of Hungary and the Hungarian
national community in the Republic of Slovenia (Official Gazette -
International Contracts, no. 6/93) and under the Osim Agreement from 1975. It
also stresses that the Framework Convention of the Council of Europe on the
protection of national minorities demands of signatories, among which is
Slovenia, that in all fields of economic, social, political and cultural life
they adopt, as necessary, measures for encouraging the active and full
equality between members of national minorities and members of the majority
nation. From the cited convention, states the Secretariat, derives the
requirement for public participation of minorities in public affairs and
especially in minority affairs.
13. In relation to article 22 ZEVP, the Secretariat states that under the
Constitution special voting rights of members of the national
communities are not territorially limited and that the rights of members of national communities
are guaranteed under the Constitution irrespective of their numbers and
distribution. The Secretariat refers also to the provision of the fourth
paragraph of article 64 of the Constitution, according to which the law shall
regulate the position and manner of exercising the rights of the Italian or Hungarian national communities in
regions in which they live, mandatory self-governing local communities for
exercising these rights, and those rights which members of these national
communities shall exercise also outside these regions.
14. In relation to the statements of the initiators that the Standing Orders
and ZoP should limit the rights of
delegates - representatives of the national communities, the Secretariat
states that from all the provisions of the Constitution which speak of
delegates, derives their equal position irrespective of the electoral base
and any other circumstances. According to the standpoint of the Secretariat,
this applies for all rights of delegates
of the national communities under article 19 ZoP, as well as for rights which derive from the Standing
Orders (e.g., the right to form a
special delegate group, the right to
select working bodies in which they will participate etc.). The Secretariat
also believes that the procedural preconditions are not given for trying the
constitutionality of the Standing Orders and ZoP. The initiators are claimed
not to have shown legal interest, since the Standing Orders and ZoP regulate
relations which concern delegates and the rules of their work in parliament.
The Secretariat further draws attention to the fact that the representative
of the initiators expressed the standpoint at the public hearing that ZoP
does not apply to elected representatives of national communities. In
relation to this, the Secretariat believes that it is necessary to reject the
initiative in this part because the initiators are claimed themselves to have
abdicated from it.
15. The Municipal Council of the Urban Municipality of Koper (hereinafter:
the Council) answered to the part of the initiative which refers to the
Statute. In relation to the representation of the Italian community on
councils of local communities, the Council states that it "analogously
respected the provisions which regulate the number of members of members of
the Italian national community on the municipal council". The provision
that the deputy mayor must be of the Italian community if the mayor is not,
in the opinion of the Council has support in article 39 ZLS.
16. The Italian and Hungarian self-governing national communities also took a
stance to the initiative. Both believe that the impugned provisions are not
in conflict with the Constitution, but signify in fact the realisation of
constitutional directives on protection of the autochthonous Italian and
Hungarian national communities.
B. - I.
17. The initiative being tried raises constitutional questions which relate
to the protection of the autochthonous Italian and Hungarian national
communities. Respecting or protecting ethnic, religious, linguistic and other
minorities is an important indicator of a democratic society. Democratic
states devote special attention to the protection of minorities. The
protection of minorities is guaranteed in two forms: as a ban on
discrimination on the basis of nationality, language, religion or racial
affiliation, and as the guarantee of special rights
which appertain only to the minority or its members. The latter form of
protection is known in the theory as positive protection of minorities.
Positive protection causes so-called positive discrimination, because members
of minorities are guaranteed rights
which members of the majority do not have. Such a type of measure represents
a high level of protection of national minorities, which the majority group
of the population recognises for them, and which indicate a democratic
society.
18. The rights of national minorities
are regulated in international law by multinational conventions and bilateral
agreements between states. The position of the Italian minority or national
community in Slovenia was arranged after the second world war by the Special
Statute of the Free Trieste Territory, annexed to the London Memorandum on
the agreement between the governments of FLRY, Italy and Great Britain. The
Special Statute ceased to apply with the validation of the Agreement between
SFRY and the Italian Republic concluded in Osim (Official Gazette SFRY -
International contracts, no. 1/77; hereinafter: the Osim Agreement). The Osim
Agreement expressed in the preamble for both states "commitment to the
principle of the maximum possible protection of the citizens - members of the
minorities, which derives from their constitutions and their internal
legislation and each side shall implement it autonomously, whereby it shall
behave also according to the principles of the Founding Charter of the United
Nations, the Universal Declaration on Human Rights,
the Convention on the prevention of any form of racial discrimination, and
universal pacts on human rights".
Article 8 of the Osim Agreement determines: "When the Special Statute
annexed to the London Memorandum on Consent of 5 October 1954 ceases to
apply, each side states that it will maintain in validity internal measures
which it has already adopted with the implementation of the mentioned
statute, and that in the framework of its internal law, it will guarantee to
members of the affected minorities the same level of protection as determined
by the Special Statute which ceases to apply". The Special Statute
ceased to apply on the day on which the Osim Agreement entered into validity,
but it remained the measure for guaranteeing the rights of national minorities in the neighbouring states. In
the provisions of the agreement there is nothing to be found which would
guarantee to members of the minorities the right
to direct representation on representative organs.
19. The position of the Hungarian national community in Slovenia is regulated
by the Agreement on guaranteeing special rights
of the Slovene national community in Hungary and the Hungarian national
community in the Republic of Slovenia, signed on 6.11.1992 and ratified by
law on 26.3.1993 (Official Gazette RS - MP, no. 6/93). In article 8 of this
agreement, it is determined that the signatories, in conformity with internal
legislation, shall guarantee suitable participation of the minorities in
decision making on local, regional and state levels on matters which refer to
the rights and position of the
minorities and their members.
20. One of the measures for the protection of minorities is also guaranteeing
their participation in decision making on public affairs. However, valid
international law does not guarantee to minorities representation on
representative bodies (Ohlinger/Pernthaler, Projeckt eines
Volksgruppenmandats im Kaernter Landtag, p. 8; the authors also refer to the
work of Oeter, Minderheiten im institutionellen Staatsaufbau. See also Turk,
Mednarodnopravni vidiki sedanjega položaja slovenske narodnoste skupnosti v
Italiji, p. 6; the author states that it is possible to find exceptions in
only a few international contracts - e.g. in the peace treaty of Sevres and
in the memorandum on Cyprus). Even the Framework Convention of the Council of
Europe on the protection of ethnic minorities, which Slovenia has also signed
but not yet ratified (the Convention does not yet apply), does not explicitly
require of the signatories that representation of minorities be guaranteed on
representative organs. It only determines that the signatories are bound to
adopt, if this is necessary, suitable measures in all fields of economic,
social, political and cultural life for encouraging the full and effective
equality between members of a national minority and members of the majority
nation. Measures adopted on the basis of this obligation shall not be
considered discriminatory (third paragraph of article 4).
21. Although international law does not require this, the constitution and
laws of some states guarantee the participation of minorities in decision
making on general matters in representative bodies. Above all the following
models of guaranteeing this right are
known (they can also be combined)1: a) division into electoral units adapted
to the territorial distribution of minorities (this measure is established
among others in the following states: Hungary, Croatia, Finland, Belgium,
Italy and Switzerland).
b) omission of the electoral threshold for national minority parties (this
measure is established among others in the following states: Hungary,
Germany, Poland, Rumania) and c) guaranteeing delegate places for minorities
on representative bodies (this right
is guaranteed among others in the following states: Croatia, Rumania,
Hungary, Denmark, Finland).
22. The Slovene Constitution of 1974 did not contain provisions on mandatory
representation of national communities in municipal and republican
assemblies. In article 252, it was determined that members of nationalities
may found self-governing communities for education and culture in
municipalities in which they live. These communities shared decision making
on specific matters in the field of education and culture in councils of
municipal assemblies or of appropriate self-managing interest communities.
Representation of members of national communities on the councils of
assemblies was only guaranteed by internal candidature rules of the then
Socialist League of Working People, which had a monopoly role in the procedure
of deciding candidates.
23. With the constitutional amendments of 1989 (Official Gazette SRS, no.
32/89) provisions on the protection of nationalities were amended and
supplemented. In article 250 appeared the definition of these two
nationalities as autochthonous. After article 163 was added a provision
according to which, in the assemblies of municipalities in which live members
of the Slovene nation together with members of the Italian or Hungarian
nationalities, these two nationalities must be represented. In the third
paragraph of article 338 of the Constitution, it was determined that the
Italian and Hungarian nationalities shall each have one delegate in each of
the councils of the Assembly SRS. In conformity with this constitutional
provision, the Elections to the Assembly Act (Official Gazette SRS, no. 42/89
and 5/90, Official Gazette RS, no. 10/90 and 45/90) determined that for
elections of delegates of members of the Italian or Hungarian nationalities
to councils of the Assembly SR Slovenia in nationally mixed regions, special
electoral units shall be formed and that special electoral units could also
be formed for the election of delegates of members of the Italian or
Hungarian nationalities to councils of municipal assemblies (article 37).
The law determined in article 10 that electors in the regions of special
electoral units and other members of these nationalities in a municipality
which has a region in which members of the Italian or Hungarian nationality
also live autochthonously with members of the Slovene nation (so-called
nationally mixed regions) shall have active voting
rights in elections of the delegates
of the Italian or Hungarian nationalities, and to councils of municipal
assemblies electors in the regions of special electoral units, and other
members of the nationality in a municipality which has a nationally mixed
region only if such is determined by the statute of the municipality. The law
gave passive voting rights only to members of the Italian and
Hungarian nationalities.
24. The Basic Constitutional Charter on the Independence and Sovereignty of
the Republic of Slovenia (Official Gazette RS, no. 1/91-I) in the second
paragraph of the third point determined: "The Italian and Hungarian
national communities in the Republic of Slovenia and their members are
guaranteed all the rights under the
Constitution of the Republic of Slovenia and valid international
contracts". By the Constitution of the Republic of Slovenia was meant
the then valid Constitution, that is the Constitution of 1974, amended and
supplemented with amendments.
25. The current Constitution determines in the first paragraph of article 5
that the state shall on its territory protect and guarantee the rights of the autochthonous Italian and
Hungarian national communities. The special rights
of the autochthonous Italian and Hungarian national communities in Slovenia
are regulated in article 64 of the Constitution and in the third paragraph of
article 83 of the Constitution, in which it is determined that there shall
always be elected to the National Assembly one delegate each of the Italian
and Hungarian communities.
26. Article 64 of the Constitution carries the heading "Special rights of the autochthonous Italian and
Hungarian national communities in Slovenia". In the fourth paragraph of
article 64 it is determined that the national communities shall be directly
represented on representative organs of local government and in the National
Assembly. In the sixth paragraph of this article it is determined that laws,
other regulations and general acts which affect the constitutionally
determined rights and position of
only national communities cannot be adopted without the consent of the
representatives of the national communities.
27. The Constitution guarantees to members of the national communities two
mutually indivisibly connected rights:
the right to direct representation on
representative organs of local communities and in the National Assembly and
the right each to one delegate to the
National Assembly. The latter is a logical extension of the right to direct representation in the
National Assembly. The cited rights
are special rights of the national
communities, whereby irrespective of the number of their members and
irrespective of the voting system,
these communities are guaranteed the opportunity to participate in the
decision making of the National Assembly and representative organs of local
communities.
28. Whenever matters are concerned which affect the constitutional rights and position only of the national communities,
the representatives of the national communities in the National Assembly and
municipal councils have the right of
a "minority veto" (sixth paragraph of article 64 of the
Constitution). With this is guaranteed that the representatives of the majority
nation cannot outvote the representatives of the two national communities in
matters which refer only to the constitutional rights
or position of the national communities.
B. - II.
29. The initiators believe that the mandate of delegates - representatives of
the national communities should be restricted by the Standing Orders and ZoP
or by special laws, to deciding only on those questions which refer to the
national communities. In the original initiative, this standpoint was only
mentioned, but later the initiators, by the proposal for temporary restraint,
extended the initiative also to the cited acts. At the time of reaching a
decision on the proposal for temporary restraint, the Constitutional Court
did not judge the existence of the procedural preconditions for commencing a
proceeding for assessing the constitutionality of ZoP and the Standing
Orders.
At the time of reaching a decision on the acceptance of part of the
initiative, it judged in particular whether the procedural preconditions for
commencing this procedure are given. It found that the statutory arrangement
of the extent of authority (mandate) of delegates does not encroach directly
on the rights, legal interests or
legal position of the initiators. It therefore rejected the initiative in
this part.
B. - III.
30. ZVDZ determines that:
a citizen of the Republic of Slovenia who on the day of voting has completed 18 years and who has
not been deprived of his business capacity has the right to elect and be elected as a delegate (first paragraph
of article 7),
- a member of the Italian or Hungarian national communities who has voting rights
has the right to elect and be elected
a delegate on this national community (article 8).
From none of the provisions of the law does it derive that exercise of
special voting rights (rights
to elect and be elected a delegate of the Italian or Hungarian national
community) excludes exercise of general voting
rights.
31. ZVDZ determines a special procedure for the election of delegates of
national communities. The delegate of a national community is elected in an
electoral unit which is formed in regions in which members of these
communities live (sixth paragraph of article 200).
32. ZEVP regulates the records of voting
rights such that records of citizens
who have the right to elect and be
elected a delegate of the Italian or Hungarian national community are
maintained individually. The special electoral roll for each election is composed
by a commission of the self-governing national community. Electoral rolls are
prepared, and (then) confirmed by the administrative organ of jurisdiction
(administrative unit).
33. Members of national communities who are inscribed in the general and
special electoral rolls may cast two votes at elections to the National
Assembly - one for the election of the delegate of the national community and
the second for the election of other delegates. These persons thus have double voting
rights - general and special.
34. The special voting right signifies a departure from the
principle of the equality of voting rights. The principle of equality of voting rights
requires that each elector has the same number of votes and that these votes
have the same value.
Electors who have in addition to general also special voting rights have
available two votes; their will is respected twice: in the distribution of
the mandates of the delegates of the national communities and in the
distribution of the mandates of other delegates. The right of members of the national communities to elect their
own delegate irrespective of their numbers already signifies a departure from
the principle of the equality of voting
rights. Double
voting signifies an additional
departure from this principle.
35. The special voting rights of members of the national
communities is an expression of the constitutionally guaranteed protection of
these communities or their members. Although it is a departure from the
principle of equality of voting rights, such "positive
discrimination" is not constitutionally impermissible, but quite the
contrary - the Constitution requires of the legislator that he implement such
measures in the legislation. In view of the fact that the Constitution itself
envisages or requires departure from the principle of equality of voting rights
("positive discrimination") it was not necessary for the
Constitutional Court to weigh the seriousness of the infringement of the
equality of voting rights and the seriousness of the constitutional
value which such an infringement achieves.
36. The Constitutional Court studied the question of whether the legislator
could have realised the constitutional provisions on direct representation of
the national communities or on election of one delegate each of the Italian
and Hungarian national communities to the National Assembly also otherwise -
in a way which would not give to members of the national communities double voting
rights. If the law gave only one vote
to members of the national communities and enabled them to choose between
exercising general and special voting
rights (between voting at elections for a delegate of the
national community and at elections for remaining delegates) this would take
from these persons one of the two constitutional rights. In view of the fact that the Constitution does not
limit the general voting rights of members of the national
communities, and at the same time gives them the right to elect a delegate of the national community,
legislating the right to only one
vote with the opportunity of choice (option) would cause members of the
national communities to be forced to choose between two constitutional rights; the general voting right and the right to direct representation. By deciding
on one of these two rights, they
would automatically be denied the other. Such an arrangement would be in
conflict with the Constitution, since members of the national communities
would be deprived of one or the other right
- in relation to their own choice.
37. The right of members of the two
autochthonous national communities to vote at elections for a delegate of the
national community and at elections for other delegates, derives from the
Constitution itself, so the legislator behaved in conformity with the
Constitution when he constructed the electoral system.
The high level of protection of autochthonous national communities which the
Constitution guarantees, does indeed represent a dual departure from the
principle of equality of voting rights, but this departure is envisaged and
required by the Constitution itself as a form of so-called positive
discrimination.
B. - IV.
38. The Constitution determines in the third paragraph of article 64 that the
national communities shall be directly represented also on representative
organs of local government.
In relation to the right of members
of the national communities to cast two votes at elections of members of a
municipal council, similarly as the analogous arrangement under ZVDZ, it
applies that it is not in conflict with the Constitution. The reasons for
this finding are the same as have been cited for the arrangement under ZVDZ -
only this statutory mechanism enables the realisation of the constitutional
command that the national communities shall be directly represented on
representative organs of local communities.
B. - V.
39. The special voting right of members of the national
communities is recorded on a special electoral roll which is composed by the
self-governing national community, and confirmed by the organ of jurisdiction
(fourth paragraph of article 2 ZEVP). The electoral roll of citizens, members
of the national communities in the regions in which these communities live,
is composed by a commission of the appropriate self-governing national
community. A special electoral roll is composed for each polling station
(article 19). The electoral roll is then confirmed by the organ of
jurisdiction (administrative unit).
The impugned article 22 determines that citizens, members of the Italian or
Hungarian national community, who do not have permanent residence in regions
in which these communities live, shall be inscribed in this special electoral
roll on their written demand to the appropriate self-governing national
community.
40. Special constitutional rights
(including the special voting right) are guaranteed only to members of
the autochthonous Italian and Hungarian national communities. The concept of
autochthonous is not precisely defined in the Constitution, and similarly is
not defined in the law. More precise measures for establishing which electors
have special voting rights are not found in ZEVP nor in any
other law. In practice, at elections of delegates to the National Assembly in
1992 and 1996 the commissions of the self-governing national communities
carried out inscription in the special electoral roll without statutory
measures.
41, The Constitution determines in the second paragraph of article 121 that
self-governing communities may obtain public authority by law for conducting
some functions of the state administration. In the second paragraph of
article 64 of the Constitution, it is in particular envisaged that the self-
governing national communities shall obtain public authority for performing
specific tasks within the jurisdiction of the state.
42. The principle of a state governed by law (article 2 of the Constitution),
the principle of the division of power (second paragraph of article 3 of the
Constitution) and the principle of legality of operation of the administration
(second paragraph of article 120 of the Constitution) sets the requirement
that holders of public authority must, in view of the principle of legality,
be equated with organs of state administration in the exercise of these
authorities. In exercising public authority in individual cases, they must
have a foundation in law. This also applies for the self-governing national
communities when they execute tasks under public authority - especially if in
this they reach decisions on the rights
of individuals.
43. In view of the fact that the special voting
right is recorded by inscription in
the special electoral roll of members of the autochthonous Italian and
Hungarian national communities, and that this voting
right is proved at voting at polling stations precisely by
inscription in this electoral roll, measures should have been defined
according to which the commissions of the self-governing national communities
shall compose these electoral rolls or decide on inscription of individual
voters in these electoral rolls. Membership of the autochthonous Italian or
Hungarian national communities is a status to which the Constitution (and in
conformity with it the law) attaches specific rights
(especially the special voting right). So the measures according to which
it is established whether a citizen belongs to the autochthonous Italian or
Hungarian national community should have been statutorily determined. By
determining these measures, the law would not infringe constitutional rights under article 61, according to which
everyone has the right freely to
express affiliation to his own nation or national community. Each person has
the right freely to express
affiliation to any nation or national community. In deciding to whom special rights belong, which accrue according to
the Constitution only to members of the autochthonous Italian and Hungarian
national communities, it is not decisive only the will of the individual, but
there must be statutory measures established for this decision.
44. Autochthony is recognised by the Constitution for the Italian and
Hungarian national communities. All special rights
with which the Constitution protects the national communities relate only to
members of the autochthonous Italian and Hungarian national communities -
thus not to all persons who define themselves as Italian or Hungarian. In
view of this, for the exercise of special rights
(especially special voting rights) it is not sufficient that the
person defines himself as Italian or Hungarian. An arrangement whereby the
commission of the self-governing national community would have to inscribe
any citizen of full age and business capacity who declared that he considered
himself a member of the autochthonous Italian or Hungarian national
community, in the special electoral roll would be constitutionally
impermissible. Actual membership of the autochthonous Italian or Hungarian
national community, namely, is not only a matter of the individual's will but
also a matter of this national community, which in conformity with statutory
measures also itself considers such an individual to be its member and
inscribes him in the special electoral roll.
An arrangement whereby inscription in the special electoral roll would be
guaranteed to anyone who defined himself as a member of the autochthonous
Italian or Hungarian national community would not increase the protection of
the national community but would enable unrestricted abuse, either with
exclusively electoral intention or with the intention of undermining the real
will of this national community in its operations, in electing its own organs
and similar. Such an arrangement would nullify the special rights of members of the autochthonous
Italian and Hungarian national communities.
45. The legislator should have determined measures according to which
membership of the autochthonous Italian and Hungarian national communities is
determined. The lack of such measures enables completely arbitrary decision
making, which is in conflict with the principle of a state ruled by law, the principle
of the division of power and the principle of the legal workings of the
administration. The Constitutional Court found this legal void in connection
with the regulation of inscription in the special electoral roll under ZEVP.
It imposed on the legislator that he fill this anti-constitutional void by
the time of the next elections to the National Assembly. The Constitutional
Court decided on a relatively long time limit because of the professional and
political complexity and the sensitivity of the matter; the legislator must,
namely, take especial care that he fills this legal void such that it does
not threaten the constitutional rights
of the national communities and other constitutional rights or freedoms.
45. In a judgement of whether it is in conformity with the Constitution that
special voting rights can also be exercised by persons who
have permanent residence outside the regions in which the autochthonous
Italian and Hungarian national communities live, the Constitutional Court had
to interpret the concept of autochthony. It considered that it is not
constitutionally impermissible that persons who live outside the nationally
mixed regions should be considered members of the autochthonous Italian or
Hungarian national community. In this it respected above all the provisions
of the fourth paragraph of article 64 of the Constitution, according to which
"the law shall regulate those rights
which members of the national communities exercise outside regions in which
the national communities live". It did not decide in this on the
question of whether it would be anticonstitutional if the legislator, at the
time of filling the anticonstitutional void - thus at the time of defining
the measures of affiliation to the autochthonous Italian or Hungarian national
communities - as one of the measures were to set also permanent residence in
a region in which the autochthonous national communities live.
B. - VI.
47. The initiators impugn the provisions of article 134 of the Statute which
awards the status of legal person to local communities. The Constitutional
Court found with decision no. U- I-274/95 (OdlUS V, 119) that it was not in
conflict with the Constitution that the then valid article 19 ZLS by
mandatory interpretation enabled municipalities to award legal subjectivity
to their narrower parts. It found that there is an anticonstitutional legal
void in ZLS and imposed on the legislator that he arrange the basic
characteristics of the status in law of the narrower parts of municipalities
which have legal subjectivity. The National Assembly adopted on 30 October
1997 the Amending and Supplementing ZLS ACT (Official Gazette RS, no. 70/97).
The Amending ZLS determines in the first paragraph of article 19 that
narrower parts of a municipality may have the status of legal person. The
statutory provision which gives local communities the status of a legal
person is thus not in conflict with the Constitution and law.
48. The impugned provision of the second paragraph of article 140 of the
State determines the direct representation of the national communities on
councils of the local communities. The initiators believe that the special
provisions on the rights of national
communities do not enter into consideration for a local community because it
is not a self-governing local community. It is true that a local community is
not a self-governing local community, but part of the decision making on
public affairs can take place in it if a municipality transfers by statute
specific tasks for implementation by the local community. These are matters
which relate to basic public needs, connected to the narrower local region -
local roads, premises for cultural activities, public services in the
narrower region, local performances, care for the appearance of the locality.
The Constitution commands the direct representation of the autochthonous
Italian and Hungarian communities in the National Assembly and representative
organs of local government (municipalities), and does not forbid direct
representation on representative bodies of narrower parts of a municipality.
In view of the fact that the Constitution commands so-called positive
discrimination in the form of special voting
rights at elections to the National
Assembly and to municipal councils, a statutory arrangement which also
guarantees such special rights to
members of the autochthonous Italian national community at elections to the
councils of local communities is not in conflict with the Constitution and
law, although it is a departure from the principle of equality of voting rights.
49. The fourth paragraph of article 53 of the Statute determines that the
deputy mayor must be a member of the Italian nationality if the mayor is not
a member of the Italian nationality. The initiators believe that this is a
discriminatory restriction of passive voting
rights. The deputy mayor is not
elected at direct elections but is appointed by the municipal council. The
impugned provision therefore cannot represent an infringement of the equality
of voting rights.
However, it could represent an infringement of equality before the law
(second paragraph of article 14) - discrimination against persons who are not
of the Italian nationality but who wish to candidate as deputy mayor. The
principle of equality before the law forbids the legislator or
representatives of organs of local communities to envisage without material
grounds different legal consequences for material circumstances which are in
essential elements the same. The restriction of the possibility of election
to the function of deputy mayor, which places in a worse position persons who
are not of Italian nationality, is materially grounded and thus not
constitutionally impermissible. It is based on the already described
intention of so-called positive discrimination or the special protection of
the national communities. Also this provision of the Statute, which gives
specific priority to members of the autochthonous Italian national community
was adopted with at least a two thirds majority on the municipal council.
This means that this right of members
of this national community has been recognised by the majority nation through
its representatives on the municipal council; for this reason, too, it is not
possible to consider it to be impermissible discrimination.
C.
50. The Constitutional Court adopted this decision on the basis of articles
21, 25 and 48 of the Constitutional Court Act (Official Gazette RS, no.
15/94), composed of: president Dr. Lovro Šturm and judges Dr. Miroslava
Geč-Korošec, Dr. Peter Jambrek, Dr. Tone Jerovšek, Mag. Matevž Krivic,
Mag. Janez Snoj, Franc Testen and Dr Lojze Ude. The first, second, third and
fifth points of the judgement proper were adopted unanimously.
The fourth and sixth points of the judgement proper were adopted by seven
votes against one. Judge Ude voted against. Judge Ude gave a dissenting
opinion, judges Jerovšek and Krivic a concurring separate opinion. Judge
Jambrek announced a separate opinion.
Notes:
1. A more detailed survey of statutory arrangements: - In the Danish parliament
(Folketing) two minorities (Faroes and Greenland) are each guaranteed two
places.
- Germany: at a federal level and in some federal regions
(Schleswieg-Holstein, Saar) the electoral threshold does not apply for
minorities. Members of minorities may by voting
for national parties achieve representation of the minority in parliament. In
voting, they are faced with an
"actual option" - to vote for a minority party or for one of the
parties from the traditional political spectrum.
- Finland: The inhabitants of the Aaland islands are guaranteed a seat in
parliament such that the region of the islands represents an independent
electoral unit in which one delegate is elected. This delegate has the same rights and duties as all other delegates.
He is normally included in the delegate group of the Swedish People's Party,
although he is not a member of that party.
- Croatia: The Constitutional Act on Human Rights
and the Rights of Ethnic and National
Communities or Minorities in the Republic of Croatia (Narodne novine, no.
34/92 - expl. text) determines that members of minorities which amount to
more than 8% of the total population - this is the Serbian minority - have
the right to elect five
representatives to the house of representatives of the Sabora, and members of
other minorities together five representatives. In the third paragraph of
article 18 it is determined that the delegates of these minorities (with less
than 8% of the total population) are "representatives of all ethnic and
national communities or minorities who have elected them and must protect
their interests".
The electoral law of 1992 (Zakon o izborina zastupnika u Sabor RH, Narodne
novine, 22/92) contains identical provisions in relation to the election of
representatives of minorities. Four of the five representatives "of
minorities below 8%" shall be elected in four special electoral units
according to a majority system. They are elected by members of the
minorities. The nationality of electors is also inscribed in the electoral
roll (Zakon o popisima birača, Narodne novice, no. 19/92).
Nationality is also cited with candidates in the procedure of candidating
(article 15 of the electoral law).
In the original text, the law determined that the number of members of parliament
shall be increased if the guaranteed representation of minorities is not
achieved at elections; those candidates are elected on state lists (60
delegates are elected under this law in proportional elections on the basis
of state lists) of appropriate nationalities, who have not been elected, in
relation to the share on individual state lists. If in this way it has not
been possible to reach the required number of delegates of appropriate
nationalities, under the law supplementary elections shall be carried out.
The electoral threshold (3%) applied under the law for all state lists, but
the Constitutional Court (U-VII-233/92, Narodne novine, no. 50/92) decided
that this voting threshold shall not
be used for national minority parties.
The amending electoral law (Narodne novine, no. 68/93) brought changes to the
voting system. 80 delegates are
elected under the proportional system, and 32 by majority. Of these 32, 28
are elected in "ordinary" electoral units under the principle that
approximately the same number of electors elect one delegate each. 12
delegates are elected by the diaspora (Croatian citizens throughout the
world) on special lists. Three delegates are elected by citizens of Serbian
nationality by the majority system on the state level as a single electoral
unit. Four delegates (as previously) are elected by members of minorities in
four special electoral units (Italians elect a delegate in the first,
Hungarians in the second, Czechs and Slovaks in the third, and Russini,
Ukranians, Germans and Austrians in the fourth).
Members of minorities have an option available in casting a vote at elections
in small electoral units in which mandates are distributed according to the
majority system. In mandatory instructions of the State electoral commission
(Obavezne upute broj XII, Narodne novine, no. 82/95) it is stated that the rights of minorities to elect their own
representatives is only a right and
not an obligation. It is determined that members of minorities may not vote
twice for a candidate in electoral units in which are elected one or three
delegates. Members of minorities who wish to vote a "general"
delegate must obtain attestation at the polling station that they have not
voted at special elections for a representative of minorities. On the basis
of this attestation, they may cast a vote for a candidate in the
"ordinary" uninominal electoral unit.
The mandate of "minority" delegates is not restricted (see Standing
Orders of the Sabora RH, Narodne novine, no. 59/92 and 89/92). Croatian law
does not recognise the institute of minority consent (veto).
- Rumania: the second paragraph of article 59 of the Rumanian Constitution
determines that minority organisations have a guaranteed place in
representative bodies even in a case in which they do not collect a
sufficient number of votes. A minority may only be represented by one
organisation. The electoral law determines in article 4 that the right to one representative belongs to all
minority organisations of a single minority together, if on a state level
they collect at least 5% of votes which were on average required for the
election of one delegate. The number of members of the representative body is
suitably increased because of the direct representation of minorities.
- Hungary: representation of minorities in the parliament is guaranteed with
a reduction in the number of votes required for the election of a delegate -
representative of the minority (articles 49 and 50 of the electoral law).
- Italy: in the South Tyrol (region of Trentino - Alto Adige), the Laden
language group has a representative guaranteed on the regional council. If
from the list in electoral units (the region is divided into two electoral
units - Bolzano and South Tyrol, and voting
is by a proportional system with preferential votes), no member of the Laden
language group were to be elected under the general rules, the candidate is
elected who obtained the largest number of preferential votes. The
representative of the minority so elected replaces the last of the candidates
from their list who was elected under general rules (in relation to the
number of preferential votes).
P r e s i d e n t:
Dr. Lovro Šturm
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