Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities: Review of the Opinions of the Advisory Committee Regarding Article 15 of the Council of Europe Framework Convention for the Protection of National Minorities

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  • 1 Ph.D Researcher, Law Department, European University Institute, Florence, Italy.

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  • 1 See also Heinrich Klebes, 'The Council of Europe Framework Convention for the Protection of National Minorities', 16(1-3) HRLJ (1995), 92-8, at 93 and Giorgio Malinvemi, 'La Convention-Cadre du Conseil de I'Europe pour Ia protection des minorites nationals', 5 Schweizerische Zeitscbriftfir internationals und europ6iisches Recht (1995), 521-46, at 531. 2 See for example, in a rather harsh way, Gudmundur Alfredsson, 'A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures', 7(4) IJMGR (2000), 291-304. 3 See Giorgio Malinverni,'La Convention-Cadre ...�, 5-t3-4; Gerd Oberleitner, '�lonitoring Minority Rights under the Council of Europe's Framework Convention', in P. Cumper and S. Wheatley (eds.), Minority Rights in the 'New' Europe (The Hague, Boston, 1999), 71-88, at 83; Gaetano Pentassuglia, 'Monitoring Minority Rights in Europe: The Implementation Machinery of the Framework Convention for the Protec-

  • tion of National Minorities - With Special Reference to the Role of the Advisory Committee', 6 IJMGR (1999), 417-61, at 417. See also Maria Amor Martin Estebanez and Kinga Gal, 'Implementing the Frame- work Convention for the Protection of National Minorities', European Centre for Minority Issues, ECMI Report #3, August 1999, at http://www.ecmi.de/doc/download/report_3.pdf, at 9 and Minority Rights Group International, 'The Council of Europe's Framework Convention for the Protection of National Minorities. Analysis and Observations on the Monitoring Mechanism', March 1998, at http://www.riga.lv/ minelres/coe/FC_MRG1998.htm, at 2. 4 See for this: Synthesis of the replies to the questionnaire on participation of minorities in decision-making processes, CoE, Doc. DH-MIN (99) 2, April 2000. For an analysis and typology, see Jochen Abr. Frowein and Roland Bank, 'The Participation of Minorities in Decision-Making Processes', 61(1) ZaöRV (2001), 3-28. See also the State Reports submitted to the ACFC on the Implementation of the FCNM, to be consulted online at http://www.coe.int/'T/E/human_rights/minorities/. 5 See, for example, Gudmundur Alfredsson, A Frame with an Incomplete Painting ...', 296 and 302; Giorgio Malinverni,'La Convention-Cadre ...',545 and Heinrich HIebes,'Zhe Council of Europe Framework Con- vention ...', 94. 6 This article deals with the ACFC opinions made public as of 15 March 2003, i.e. the opinions on Denmark (adopted on 22 September 2000), Finland (adopted on 22 September 2000), Hungary (adopted on 22 Sep- tember 2000), Slovakia (adopted on 22 September 2000), Liechtenstein (adopted on 30 November 2000), Malta (adopted on 30 November 2000), San Marino (adopted on 30 November 2000), Croatia (adopted on 6 April 2001), Cyprus (adopted on 6 April 2001), the Czech Republic (adopted on 6 April 2001), Romania (adopted on 6 April 2001), Estonia (adopted on 14 September 2001), Italy (adopted on 14 September 2001), the United Kingdom (adopted on 30 November 2001), Ukraine (adopted on 1 March 2002), Moldova (adopted on 1 March 2001), Germany (adopted on 1 March 2002), Austria (adopted on 16 May 2002), Armenia (adopted on 16 May 2002), Albania (adopted on 12 September 2002) and Norway (adopted on 12 September 2002), at http://www.coe.int/T/e/human%5Frights/Minorities/.

  • 7 Jochen Abr. Frowein and Roland Bank,'The Participation of Minorities ...'. 8 Paragraph 35 CSCE Copenhagen Document states: The participating States will respect the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and pro- motion of the identity of such minorities. The participating states note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations cor- responding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the State concerned. Articles 2.2 and 2.3 UNDeclMin read: 2. Persons belonging to minorities have the right to participate effectively in cultural, religious, social, economic and public life. 3. Persons belonging to minorities have the right to participate effectively in decisions on the national, and where appropriate, regional level concerning the minority to which they belong or the regions in which they live, in a manner not incompatible with national legislation. 9 '[P]ersons belonging to national minorities shall have the right to take part effectively at the national, and where appropriate, at the regional level, in the decisions affecting the minorities or the regions inhabited by the minorities, in the manner which is not incompatible with domestic legislation,' (Treaty on Good Neigh- bourly Relations and Friendly Co-operation between the Republic of Hungary and the Slovak Republic, 1995, Article 15, 2f, at http://www.htmh.hu/dokumentumok/asz-sk-e.htm)

  • 10 'The Contracting Parties shall ensure the right of persons belonging to the minorities to effectively partici- pate, individually or through their parties or organizations, in the political, economic, social and cultural life and, through their representatives elected to central and local public authorities and administrations, in the settlement of issues representing national or local interests. Both Contracting Parties shall, in the process of decision-making concerning questions related to the protection and enforcement of the national identity of these persons, consult the organization, political parties or associations of these persons according to democratic decision-making procedures as provided by the law.' (Treaty between the Republic of Hungary and Romania on Understanding, Cooperation and Good Neighbourhood, 1996, Article 15, para. 5, at http: //www.htmh.hu/dokumentumok/asz-ro-e.htm) 11 In the treaties between Germany and Poland (1991), between Russia and Kazakhstan (1992), between Poland and Belarus (1992) and between Poland and Lithuania (1994). See Appendix to Kinga Gal, `Bilat- eral Agreements in Central and Eastern Europe: A New Interstate Framework for Minority Protection?', ECMI Working Paper #4, May 1999, at http://www.ecmi.de/doc/download/working_paper_4.pdf. Also in the Hungarian-Slovenian and Hungarian-Croatian Conventions of 1992. See Emma Lantschner and Roberta Medda, 'Protection of National Minorities through Bilateral Agreements in South-Eastern Europe', European Academy of Bozen/Bolzano, Draft Report (Bozen, 2001), at 18. A revised version of the report was published in 1 European Yearbook ofMinority Issues ( 2001/2), 535-65. 12 See Emma Lantschner and Roberta Medda, 'Protection of National Minorities ...',19. For the few histori- cal examples, see Florence Benoit-Rohmer and Hilde Hardeman, `The Representation of Minorities in the Parliaments of Central and Eastern Europe', 2lnternationalJournal ofGroup Rights (1994), 91-111, at 94. 13 See at http://www.osce.org/hcnm/documents/recommendations/lund/index.php3. See also John Packer, 'The origin and nature of the Lund Recommendations on the Effective Participation of National Minori- ties in Public Life', 4 Helsinki Monitor (2000), 29-45. 14 Guidelines to Assist National Minority Participation in the Electoral Process, ODIHR, Warsaw, January 2001, at http://www.osce.org/odihr/documents/guidelines/gl nmpa_eng.pdf.

  • 15 Questionnaire of Participation of Members of Minorities in Public Life, CDL-MIN(1996)001e-restr and CDL-MIN(199.�002e-rev-restr, at http//www.venice.cae.intlsite!interface!english.htrn. 16 'Electoral Law and National Minorities', 25 January 2000, CDL-I\F (2000) 4 and 'Summary Report of Participation of Members of Minorities in Public Life', 27 February 1998, CDL-MIN(1998)001e-rev-restr, at http://www.venice.coe.int/site/interface/english.htm. Also based on the replies to the questionnaire: Jochen Abr. Frowein and Roland Bank, `The Participation of Minorities ...', 3-28. 17 Proposals of the ECMI Seminar 'Towards Effective Participation of Minorities', Flensburg, Germany, 30 April to 2 May 1999, at http://www.ecmi.de/doc/projects_recomm.btml#05. The overall objective of the seminar was to arrive at 'concrete proposals on ways in which Governments could give effect to Articles 2.2 and 2.3 of the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic \linorities, Article 15 of the Council of Europe Framework Convention for the Protection of National Minorities and Article 35 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE.'The proposals are subdivided in representation into legislative, administrative and advisory bodies, citizenship issues and electoral rights, participation at deci- sion-making level, further conditions for participation and participation of Roma. 18 Question II.7 in Questionnaire of Participation of Memhers ....

  • 19 Article 3 FCNM reads: 1. Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice. 2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others. 20 See opinion on Croatia (2001), para. 13 (which refers to Article 15). The preamble to the Croatian Consti- tution, as amended on 12 December 1997, contained a more limited listing than the Constitutional Law of Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities, as amended in May 2000. This more limited listing is reflected in the Law on Elections of Representatives to the Croatian National Parliament, adopted on 29 October 1999, as the guarantees for representation in the House of Representatives do not extend, for example, to the Roma or Slovenian minorities, which are not explicitly mentioned in the preamble of the constitution. 21 See for an overview of the different types of declarations, Jochen Abr. Frowein and Roland Bank, 'The Effect of Member States' Declarations Defining'National Minorities' upon Signature or Ratification of the Council of Europe Framework Convention for the Protection of National Minorities', 59 ZaoRV (1999), 649-75, at 650-3. See further on the issue of reservations, also Maria Amor Martin Estebanez and Kinga Gal, 'Implementing the Framework Convention ...', 21-3. 22 Maria Amor Martin Estebanez and Kinga Gal, 'Implementing the Framework Convention ...', 3.

  • 23 Rainer Hofmann, 'Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities',1 EYMI (2001/2), 435-60, at 448. 24 The ACFC has added the specifier 'as appropriate' to its demands for inclusion of other groups in all its opinions adopted as of 1 May 2002 (Ukraine, Moldova. Germany, Austria, Armenia, Albania and Norway), whereas prior to that date only the opinions on Croatia and the Czech Republic contained it. This could mean that the ACFC has become more cautious in its approach to this issue, after criticism from several countries in their comments on the opinions. 25 Opinion on Croatia (2001), para. 19, opinion on the Czech Republic (2001), para. 23, opinion on Romania (2001), para. 17, opinion on Estonia (2001), para. 18, opinion on Ukraine (2002), para. 18, opinion on Ger- many (2002), para. 18, opinion on Austria (2002), para. 20, opinion on Armenia (2002), para. 21 and opinion on Norway (2002), para. 20. 26 See for example, Slovakia, which considers Russians to constitute a 'newly developing national minorin' in its first country report. Opinion on Slovakia (2000), para. 12. 27 Comments of the Government of Denmark on the opinion of the ACFC on the Report on the Implemen- tation of the FCNM in Denmark, published 31 October 2001, p3 and Comments of the Government of Germany on the opinion of the ACFC on the Report on the Implementation of the FCNM in Germany, published 12 September 2002, p5. 28 See opinion on Denmark (2000), para. 17 (the ACFC criticized Denmark for a priori excluding citizens of Greenland and the Faeroe Islands, because they are indigenous people), opinion on Ukraine (2002), para. 19 and opinion on Norway (2002), paras. 9 and 19.

  • 29 Opinion on Norway (2002), para. 19. And the ACFC further encouraged the Norwegian authorities to continue their dialogue with the Sami Parliament and others concerned on this issue, 'with a view to ensur- ing that the Framework Convention and the treaties designed for indigenous people are not construed as mutually exclusive regimes and that the Sami can continue to rely on a wide range of international norms.' 30 See for example, Comments of the Government of Germany on the opinion of the ACFC on the Report on the Implementation of the FCNM in Germany, published 12 September 2002, at 38, comment by the Sinti Allianz Deutschland. Incidentally, these comments on the opinion of the ACFC are the only ones which, apart from the comments by the government, included comments by national minority organizations. 31 See opinion on Finland (2000), para. 17 (regarding the Finnish-speaking population on the Aland Islands) and opinion on Denmark (2000), para. 20 (the ACFC criticized Denmark for a priori excluding persons of ethnic Danish origin living in the home rule areas ). 32 Regarding a minority-in-a-minority which does not belong to the majority population of the entire country, see the opinion on Italy (2001), para. 12. The ACFC refers to the state report in which is indicated that the Ladins and the Walsers are a minority-in-a-minority No further comments are made. 33 See also opinion on Germany (2002), para. 16 (The ACFC welcomes the fact that members of a national minority who live outside the minority's traditional settlement area are also entitled in principal to pro- tection under the FCNM), opinion on Austria (2002), para. 17 (The ACFC encourages the Austrian authorities to keep following their more inclusive approach in practice, rather than what is suggested by the declaration upon ratifying the FCNM, as far as the criterion of autochthonous settlement area is concerned) and opinion on Albania (2002), para. 24 (the ACFC is concerned that, although officially national minori- ties are recognized and protected throughout the territory of the Republic of Albania without reference to any geographical criteria, the application of'minority zones'. which existed both during and before the former communist regime, covering areas where minorities tradi- tionally hved, continues to have a certain currency).

  • 34 On the geographical limitation in the Danish declaration, see also Jochen Abr. Frowein and Roland Bank, 'The Effect of Member States' Declarations ...', 668-9. 35 Opinion on Denmark (2000), para. 17. 36 Opinion on Italy (2001), paras. 23 and 28-33. 37 See also Isil Gachet, `The Issue of Ethnic Data Collection from the Perspective of Some Council of Europe Activities', in Andrea Krizsan (ed.), Ethnic Monitoring and Data. 1he Council ofEurope (Budapest, 2001), 45- 61, at 58. 38 Opinion on the Slovak Republic (2000), paras. 14-6, opinion on Croatia (2001), para. 18, opinion on Ger- many (2002), paras.19-21 and opinion on Ukraine (2002), para. 23. 39 Opinion on Estonia (2001), para. 19. 40 Opinion on Cyprus (2001), para. 18. 41 Opinion on Italy (2001), paras. 19-21. The statistical census of the Ladin, German-speaking and Italian communities in Bolzano province is used in particular to ensure equitable distribution of political mandates

  • and public sector posts between these three communities. When completing the general census form, resi- dents of Bolzano province must also fill in an individual declaration of linguistic affiliation. The declaration has a category labelled `other' in addition to the Ladin, German- and Italian-speaking groups. However, anyone choosing 'other', e.g. multilingual citizens, must also be affiliated to one of the three aforementioned groups in order to be eligible for a public service post or to stand as a candidate in an election. 42 See opinion on Hungary (2000), para. 17, opinion on the Slovak Republic (2000), para. 21, opinion on Croatia (2001), para. 29 and the opinion on Italy (2001), para. 27. 43 The ACFC increasingly points to the need of reliable statistics, also regarding the effective participation in public life. See for example, opinion on Albania (2002), para. 75 and opinion on Norway (2002), para. 62. 44 Opinion on Hungary (2000), para. 17; opinion on Cyprus (2001), para. 27; opinion on the Czech Republic (2001), para. 28; opinion on Romania (2001), para. 26, the opinion on Italy (2001), para. 27 and the opinion on Germany (2002), paras. 23-4. 45 Comments of the Government of the Slovak Republic on the opinion of the ACFC on the Report on the Implementation of the FCNM in the Slovak Republic, published 6 July 2001, para. 4. 46 Opinion on the Slovak Republic (2000), para. 13. 47 Opinion on Romania (2001), paras. 20-1 and opinion on the UK (2001), para. 18. 48 As the preliminary results of the February-March 2001 census showed a significant drop in declaration of affiliation with a national minority, experts were asked to correct the census results and make them cor- respond to real numbers of persons belonging to a national minority in order to attain reliable statistics.

  • However, the drop in declaration of affiliation could signify that many persons belonging to a national minority do not want to identify with their group anymore. Correcting the results violates the principle of free affiliation with a national minority. See Comments of the Government of the Czech Republic on the opinion of the ACFC on the Report on the Implementation of the FCNM in the Czech Republic, published 25 January 2001, at 7. 49 Opinion on Italy (2001), pua. 66. 50 Opinion on Italy (2001), puas.19-21. 51 See also Frank Steketee, 'The Framework Convention: A Piece of Art or a Tool for Action?', 8 IJMGR (2001),1-15, at 10. 52 See for example, opinion on Romania (2001), paras. 20-1 (Article 3). 53 See for example, opinion on Norway (2002), para. 31 (Article 5). 54 See opinion on Moldova (2002), para. 95 (Article 16).

  • 55 C. Hillgruber and M. Jestaedt, The European Convention on Human Rights and the Protection of National Minorities (Koln,1994), 53. 56 For cultural autonomies (Article 5) in Estonia, see Section III.A. For the asymmetric federalism in Italy (amongst others under Article 5), see Ill.1. For cross-references to Article 4 and 6 regarding civil servants, see III.C.2.

  • 57 Sometimes also with regard to cultural and political life. See opinion on Armenia (2002), para. 23 and opinion on Ukraine (2002), para. 29. 58 Other minority groups mentioned are the Irish Travellers, the African and African-Caribbean, Pakistani and Bangladeshi communities (opinion on the United Kingdom (2001), paras. 29 and 32-3) and Crimean Tatars (opinion on Ukraine (2002), para. 29). 59 Opinion on Ukraine (2002), para. 30. See also opinion on the Czech Republic (2001), para. 29; opinion on Romania (2001), paras. 27-9; opinion on Italy (2001), para. 24; opinion on the United Kingdom (2001), paras. 29 and 32-3; opinion on Moldova (2002), paras. 34-35; opinion on Germany (2001), para. 24; opinion on Austria (2002), para. 23; opinion on Albania (2002), para. 30 and opinion on Norway (2002), para. 28. 60 Opinion on Cyprus (2001), para. 25 (under Article 4) and 40 (under Article 15), which refers to Article 4. 61 Opinion on Italy (2001), paras. 23 (under Article 4) and 28-33 (under Article 5).

  • 62 Opinion on Ukraine (2002), para. 27. 63 Opinion on Armenia (2002), para. 77. 64 Comments of the Government of the Republic of Armenia on the opinion of the ACFC on the Implemen- tation of the FCNM in the Republic of Armenia, 16 May 2002, 4. 65 Opinion on Germany (2002), para. 40. 66 Opinion on Estonia (2001), para. 26 (under Article 4).

  • 67 Opinion on Croatia (2001), para. 27 (under Article 4), opinion on the Czech Republic (2001), para. 31 (under Article 4), opinion on Italy (2001), para. 26 and opinion on Germany (2002), para. 40 (under Article 6, with reference to related comments under Articles 3, para. 18). 68 Opinion on Moldovan (2002), para. 49. 69 Opinion on Albania (2002), para. 42 70 Compare to the definition of national minorities, see Section ILA. 7I Opinion on Hungary (2000), paras. 48-9. 72 See Hans-Joachim Heintze, `On the Legal Understanding of Autonomy', in Markku Suksi (ed.),..1utonomy: Applications and Implications (The Hague, London, Boston,1998), 7-32.

  • 73 Heinrich Klebes,'The Council of Europe Framework Convention ...', 96. See also Giorgio Malinverni, `La Convention-Cadre ...', 542-3. 74 John Packer, "Ihe Origin and Nature of the Lund Recommendations ...',38 and 40. 75 The various forms of territorial autonomy have in common that they establish regional executive institu- tions and elected representations of the people(s) for the purpose of linking the political activities within the regional unit with the will of its inhabitants. Powers transferred to an autonomous region may range from a decentralization in administrative matters to far-reaching self-government with certain legislative powers, or to a virtually independent administrative, legislative and judicial system. (see Jochen Abr. Frowein and Roland Bank, The Participation of Minorities ...',20). 76 Opinion on Finland (2000), para. 47. 77 Opinion on Denmark (2000), para. 36. 78 See Section II.A.1. Definition of National Minorities, for the ACFC's inclusive approach, regarding indig- enous people and the territorial application of the FCNM. 79 Opinion on Moldova (2002), para. 92. 80 Opinion on Italy (2001), para. 61 and opinion on the UK (2001), para. 93.

  • 81 Personal autonomy is granted collectively to all members of a minority irrespective of their belonging to a certain territorial or administrative unit. This may include providing them with their own representa- tive legislative body and an executive competent to act with regard to areas such as culture, language and education. See Jochen Abr. Frowein and Roland Bank, 'The Participation of Minorities ...', 22. There is a third type of autonomy, distinguished by Frowein and Bank, which is functional autonomy. This type of autonomy pertains to the devolution of certain powers concerning culture, education, religious issues or media to minority organizations constituted as legal persons under private law. In contrast to personal autonomy not all members of the minority are subjected to the jurisdiction of the empowered body but only those who are members of the respective minority organization. The example they give is the Danish Schooling Association in Germany, which is running a number of schools at all levels which may be visited by children of members of that association, see ibid., 24. 82 See opinion on Finland (2000), para. 50 (Sami Parliament), opinion on Norway (2002), para. 60 (Sami Parliament), opinion on Hungary (2000), paras. 46-51 (minority self-governments) and opinion on Estonia (2001), para. 29 (cultural autonomy). 83 Opinion on Hungary (2000), para. 46. 84 Ibid., para. 50. 85 Ibid., para. 51. 86 Opinion on Estonia (2001), para. 29.

  • 87 Opinion on Romania (2001), para. 65. 88 Opinion on Hungary (2000), para. 49. 89 See Maria Amor Martin Estebanez and Kinga Gal, 'Implementing the Framework Convention ...', 17-8. The UNWG was referred to as an example. 90 See, for example, opinion on Croatia (2001), paras. 60-1 (parliamentary committee and reserved seats), opinion on Ukraine (2002), paras. 69-70 (adapted constituency boundaries and reserved seats), opinion on Germany (2002), para. 63 (lower threshold and consultative committee for Danes to offset the lack of direct parliamentary representation), opinion on Italy (2001), para. 64 (technical committee including minorities set up in framing the implementing provisions for Law No.482 of 15 December 1999) and opinion on Estonia (2001), para. 55 (possibility for non-citizens to vote in local government elections). 91 Opinion on Romania (2001), para. 65 and opinion on Croatia (2001), para. 60. 92 Florence Benoit-Rohmer and Hilde Hardeman, `The representation of minorities ...', 96.

  • 93 See criticism on a judgment of the German Federal Constitutional Court of 23 January 1957, upholding a lowered threshold for minority parties by referring to international law. The criticism entailed that excep- tions to the equality of votes privileging national minorities are only admissible in as far as the protection of national minorities is guaranteed in the constitution, since only such constitutional reference would provide a sufficient justification for differentiation. Abr. Frowein and Roland Bank, 'The Participation of Minorities ...',10, footnote 30. 94 Opinion on Hungary (2000), paras. 48-9, opinion on the Czech Republic (2001), para. 67 and opinion on Ukraine (2002), para. 69. 95 Opinion on Hungary (2000), para. 49. 96 Opinion on Estonia (2001), para. 55 (language proficiency requirements that the Law on Parliament Elec- tions of 1994 and the Law on Local Government Council Elections of 1996 stipulate for candidates in the respective elections) and para. 56 (Article 23 of the Estonian Language Act, concerning the requirement to provide information in Estonian, which has been interpreted in practice as prohibiting electoral advertise- ment posted in a language of a national minority). 97 Opinion on the Czech Republic (2001), para. 70 and opinion on the UK (2001), para. 94. 98 Opinion on Armenia (2002), para. 77. 99 'The Advisory Committee appreciates the various institutional arrangements in aid of effective participation in all areas, public affairs especially, for persons belonging to the German-speaking and Ladin minorities resident in the Trentino-Alto Adige autonomous region. It especially welcomes the recent changes made by Constitutional Law No.2 of 31 January 2001 which improves representation of Ladins in the legislative and executive bodies of both the region and the province.' Opinion on Italy, adopted on 14 September 2001, para. 62. 100 Opinion on Ukraine (2002), para. 70 and opinion on Moldova, adopted on 1 March 2002, para. 90.

  • 101 Opinion on Albania (2002), para. 72. 102 Opinion on Croatia (2001), paras. 58-62. Following the suspension by the Parliament of Croatia of the rele- vant provisions of the 1991 Constitutional Law of Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities, the issue of guaranteed representation of national minorities in the House of Representatives is currently regulated in detail only through the Law on Elections of Representa- tives to the Croatian National Parliament, adopted on 29 October 1999. Pursuant to Article 17 of this law, the seats guaranteed for representatives of the Serb minority were reduced from three to one. Furthermore, in May 2000, the parliament decided to delete most of the provisions affected by the aforementioned 1995 suspension. The deleted provisions largely pertained to decision-making processes at the local level. Croatia is in the process of adopting a new constitutional law on national minorities in consultation with the European Commission for Democracy through Law (Venice Commission). The new law has, inter alia, the aim of improving guarantees for the representation of persons belonging to national minorities in the decision-making processes at the local and regional level. In the context of the drafting of this new consti- tutional law and the subsequent changes to its electoral laws, the ACFC 'finds it important that Croatia ... seeks to improve further its legislation and practice concerning the parliamentary representation of national minorities and to eliminate any imbalance and undue limitations that persist in this respect'. Thus, in respect to representation in decision-making processes both at parliamentary, regional and local level, the ACFC adopts a position critical of any reduction of level of protection. 103 Opinion on Ukraine (2002), paras. 69-70. The ACFC finds it regrettable that the rules aimed at protecting national minorities in the context of the drawing of constituency boundaries, provided for in the Law on Elections of People's Deputies of 1997, were not retained in the new Law on Elections, adopted in 2001. 'This constitutes a setback in the normative protection of national minorities in Ukraine. The Advisory Committee expects that the idea reflected in these previously applicable provisions is kept in mind in the administrative practice and that its re-introduction in the legislation is considered by the authorities.'More- over, whereas in 1994 the Crimean Tatars had reserved seats in the legislature of the Autonomous Republic of Crimea, at present the legislation provides no such guarantees and as a consequence their presence has been drastically reduced. The ACFC finds the resulting situation regrettable and is pleased to note that the question of improving the representation of Crimean Tatars is currently being examined.

  • 104 Committee on Economic, Social and Cultural Rights, General Comment \0.3 (1990), LTN Doc. E/1991/23, Annex III, para. 9. 105 Opinion on Armenia (2002), para. 10 and opinion on Albania (2002), para. 6. 106 See opinion on Cyprus (2001), opinion on Estonia (2001) and opinion on Croatia (2001). 107 Opinion on Cyprus (2001), para. 41. 108 Comments of the Government of Cyprus on the opinion of the ACFC on the Report on the Implementa- tion of the FCNM in Cyprus, published 21 February 2002,4.

  • 109 Will Kymlicka, Multicultural Citizenship: /I Liberal Theory ofminority Rights (Oxford, 1995), at 138. 110 Opinion on Hungary (2000), para. 52. 111 See for example, Will Kymlicka, Multicultural Citizenship...,139-40; Anne Phillips,'Democracy and Dif ference : Some Problems for Feminist 'Iheory', 63(1) Political Quarterly (1992), 79-90, at 85 and Melissa Williams, Voice, Trust and Memory: Marginalized Groups and the Failings ofLiberal Representation (Princeton, 1998), at 80 (describing the point of view from the theory of liberal representation). Jane Mansbridge is aware of the costs of mirror representation but argues that it might be useful in two contexts, namely, first, in a situation in which the vertical communication between constituent and representative is impaired by distrust and, second, when interests are relatively uncrystallized in the horizontally organized deliberative ' process at the legislative level. Jane Mansbridge,'What does a Representative Do? Descriptive Representa- tion in Communicative Settings of Distrust, Uncrystallized Interests, and Historically Denigrated Status', in Will Kymlicka and Wayne Norman (eds.), Citizenship in Diverse Societies (Oxford, 2000), 99-123. See also Melissa Williams, Voice, TrustandMemory...,238, summarizing her alternative to liberal representation as 'descriptive representation with a difference'.

  • 112 Opinion on Germany (2002), para. 65. 113 Comments of the Government of Germany (2002), p.18. However, the Domowina - Federation of Lusa- tian Sorbs - does not seem to follow the position of the German government. It states on p.37 of the com- ments that policy matters should not be settled by the Foundation's governing board itself, but outside the board by means of political activities of the Sorbs. Ten years of activity within the foundation's governing board seem not to have reached satisfactory results for the Sorbian people. 114 See for example Melissa Williams, Voice, Trust and Memory..., 7. 115 Jochen Abr. Frowein and Roland Bank, 'The Participation of Minorities ...',10-1. 116 See Section IILBS, Mirror Representation. Opinion on Germany (2002), para. 65. 117 See opinion on Albania (2002), para. 68. The post was created and then abolished again.

  • 118 See opinion on Albania (2002), para. 67 and opinion on Croatia (2001), para. 63. 119 See opinion on Moldova (2002), para. 86. 120 See opinion on Cyprus (2001), para. 42. 121 See opinion on Romania (2001), para. 65. 122 See opinion on Italy (2001), para. 63. 123 See opinion on Germany (2002), para. 64. A Commissioner has been appointed for the border region of the Land of Schleswig-Holstein, who gives advice to the Minister-President of the Land on all matters relating to the Danish minority, the Frisians and the Roma/Sinti. 124 See opinion on Moldova (2002), para. 86 and opinion on Germany (2002), para. 64. 125 See opinion on Albania (2002), para. 67. 126 See opinion on Cyprus (2001), para. 42. The scope of the mandate of the Presidential Commissioner is limited to some minorities only: the Maronite, Armenian and Latin communities. 127 Opinion on Croatia (2001), paras. 63-4. For similar comments, see opinion on Ukraine (2002), para. 71, opinion on Armenia (2002), para. 81 and opinion on Albania (2002), para. 67.

  • 128 Opinion on Moldova (2002), para. 87. 129 Opinion on Albania (2002), para. 68. 130 Opinion on Austria (2002), para. 68. 131 See opinion on the UK (2001), paras. 96-9, opinion on Romania (2001), para. 71 and opinion on Albania (2002), paras. 75-76. 132 Opinion on Croatia (2001), paras. W -7. ï. 133 The :1CFC notes that in the province of Bolzano, the system of allocating the posts strictly according to the size of the Italian-speaking, German-speaking and Ladin communities has helped to make the participation of these minorities more effective, since each group's representation in the civil senice now approximates to its demographic profile (opinion on Italy (2001), para. 66). This contrasts with the ACFC's criticism of the system of compulsory declaration of one's belonging to one of the three communities in the province of Bolzano, the means through which the quota are calculated. (See also Section II.A.2 Data Collection and Reliable Statistics ad Odds with the Freedom of Choice to Declare Oneself a Members of a National Minority.) In the same paragraph of its opinion on Italy, the ACFC is concerned about the fact

  • that other minorities, not residing in the province of Bolzano or the Aosta Valley, especially the Slovene minorities, do not benefit from special arrangements for access to public sector posts. The ACFC is of the opinion that the Italian authorities should carry out a review of the situation, and, should the result prove to be unsatisfactory, adopt the necessary measures to promote a fair representation of minorities in the civil service (opinion on Italy (2001), para. 66). 134 See opinion on Cyprus (2001), para. 43 (differentiation in language requirements for access to civil service introduced for applicants belonging to religious groups). 135 Opinion on Moldova (2002), para. 91. 136 Opinion on the Slovak Republic (2000), para. 48. 137 See opinion on Romania (2001), para. 71 (the ACFC refers to its comments under Article 4 regarding the situation of the Roma), opinion on Cyprus (2001), para. 28 (with reference to its comments under Article 15, para. 43) and opinion on Croatia (2001), para. 57 (with reference to comments under Article 4). 138 Opinion on Finland (2000), para. 27 (regarding recruitment of persons belonging to minorities to serve as police officers). 139 See opinion on the Czech Republic (2001), para. 68. 140 The Slovak Republic has been acknowledged in this respect. See opinion on the Slovak Republic (2000), para. 46. 141 See opinion on the UK (2001), para. 100 (Race Relations Forum established by the Home Secretary does not include some groups, like the Roma/Gypsy, the Irish Traveller groups, ethnic minority groups in North- ern Ireland and certain religious groups. The ACFC sees merit in wider representation on the forum, and suggests a rotation system of persons from different communities on this forum) and opinion on Austria (2002), para. 69 (the Advisory Councils are nor representative enough of the persons belonging to national minorities, the government has not yet implemented its agreement in principle of February 1998 to increase the number of members of the Advisory Council for the Slovene minority in order to allow the Slovenes of Styria to be represented and the ACFC recommends to extend the composition of the advisory councils beyond the persons belonging to autochthonous national minorities).

  • 142 Opinion on Moldova (2002), para. 88 (not only culture and education) and opinion on Austria (2002), para. 69. 143 See opinion on Finland (2000), para. 49 and Comments of the Government of Finland (2001),17; opinion on Cyprus (2002), para. 42 and Comments of the Government of Cyprus (2002), 2 and opinion on Albania (2002), para. 69 and Comments of the Government of Albania (2003), 8. 144 Opinion on Norway (2002), para. 61. 145 Opinion on Cyprus (2001), para. �12; opinion on Estonia (2001), para. 58; opinion on Italy (2001), para. 64 and opinion on Norway (2002), para. 61. 146 Opinion on Albania (2002), para. 69. 147 Opinion on Moldova (2002), para. 89. 148 Opinion on Finland (2000), para. 50, opinion on Hungary (2000), para. 47 and opinion on Armenia (2002), para. 78. 149 The Slovak Republic is commended in this respect, see opinion on the Slovak Republic (2000), para. 46. See otherwise, opinion on Romania (2001), para. 66 and opinion on Estonia (2001), para. 57. 150 Opinion on Romania (2001), para. 66. 151 See opinion on Finland (2000), para. 50 and opinion on Hungary (2000), para. 47.

  • 152 See, for example, opinion on Norway (2002), para. 62. 153 See, for example, opinion on Albania (2002), paras. 75-6. 154 See ACFC opinions on Finland (2000), para. 48; Hungary (2000), para. 54; the Slovak Republic (2000), para. 47; Croatia (2001), para. 65 and Italy (2001), para. 65. 155 See ACFC opinion on the Czech Republic (2001), para. 71; Romania (2001), paras. 69-70 and Germany (2002), para. 66. 156 See opinion on the Czech Republic (2001), para. 29; opinion on Romania (2001), paras. 27-9; opinion on Italy (2001), para. 24; opinion on the United Kingdom (2001), paras. 29 and 32-3; opinion on Ukraine (2002), para. 30; opinion on Moldova (2002), paras. 34-5; opinion on Germany (2001), para. 24; opinion on Austria (2002), para. 23; opinion on Albania (2002), para. 30 and opinion on Norway (2002), para. 28. 157 See opinion on the Czech Republic (2001), paras. 33-4. 158 See opinion on Romania (2001), para. 38. 159 Comments of the Government of Hungary on the opinion of the ACFC on the Report on the Implemen- tation of the FCNM in Hungary, published 14 September 2001,14-40 and Comments of the Government of Romania on the opinion of the ACFC on the Report on the Implementation of the FCNM in Romania, published 10 January 2002, Appendix I,12-50.

  • 160 See for example opinion on Ukraine (2002), para. 73. 161 See for example opinion on Ukraine (2002), para. 73 and opinion on the UK (2001), para. 95. The ACFC recalls its comments made under Article 4 (para. 32-3). 162 For example, opinion on Estonia (2001), paras. 59-60 and opinion on Ukraine (2002), para. 73 (region of Transcarpathia). 163 Opinion on Croatia (2001), paras. 54-6. 164 See opinion on Estonia (2001), paras. 59-60. The Government decree on the mandatory Estonian language proficiencv levels for employees in the private sphere adopted on 15 May 2001, contains a provision requir- ing an intermediate level of Estonian language proficiency for service and sales employees whose duties include providing information on the qualities, prices, origin or conditions for the use of goods or services offered. 165 Opinion on Ukraine (2002), para. 74. 166 Opinion on Norway (2002), para. 63. 167 Opinion on Ukraine (2002), para. 75.

  • 168 Opinion on Norway (2002), para. 64. 169 Opinion on Hungary (2000), para. 53. 170 Opinion on Germany (2002), para. 65. Reference is made to the comments under Article 5, paras. 25- 32. Regarding the Sorbian representation on the Foundation governing board, see Section III.B.6. The Presence/Influence Distinction.

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