1 Researcher at the European Academy of Bolzano/Bozen, Italy. The author wishes to thank her colleagues Emma Lantschner, Francesco Palermo and Jens Woelk for their useful comments to a draft of this article.
I Constitutional Law on the Rights of National Minorities in the Republic of Croatia in Croatian language can be found in the Narodne \ovine (hereinafter'Official Gazette') 155/2002. 2 The Republic of Croatia joined the CoE on 6 November 1996. For the text of the Law, see the Minority Rights Information System (\IRIS) at http://www.eurac.edu/miris. 3 Croatia signed the Stabilization and Association Agreement (SAA) with the European Union on 29 Octo- ber 2000. This policy combines the development of privileged political and economic relations with the countries in the region, supported by substantial financial assistance. 4 Report adopted by the Venice Commission at its 47th Plenary Meeting (Venice, 6-7 July 2001) CDL-INF (2001) 14, at http://www.venice.coe.int/.
5 The official data of the Croatian Government Office for Expellees and Refugees. See http://www.vlada.hr/.
6 According to the official results of the 2001 census, Croatia has a total population of 4.437,460 represent- ing a 6% decrease of the total population since 1991. Ethnic Croats represent approximately 90% of the total population in comparison to 72% ten years ago. The total number of persons belonging to national minorities was announced at 7.47%, half of the 1991 total number. The most drastic reduction in this regard was seen within the Serb minority, which now only represents 4.54% of the total population, rep- resenting a two-thirds decline since 1991. Many people of mixed Serbo-Croauan marriages now prefer to register themselves as Croats, which may be another reason for a sharp drop of their numbers since the last census. The results of the census are available on the website of the Croatian Bureau of Statistics, at http://www.dzs.hr/. 7 The Constitution of the Republic of Croatia has been amended on several occasions. Official Gazette 56/1990, 135/1997, 8/1998,113/2000,124/2000, 28/2001, 41/2001, 55/2001. For example, the Constitutional Law on Amendments to the Constitution of the Republic of Croatia (Official Gazette, Not. 135/1997) acknowledges the existence of'autochthonous national minorities'instead of `other nations and minorities'. The latter term was introduced in the first Constitution of the Republic of Croatia (Official Gazette 56/1990). 8 Constitution of the Republic of Croatia, Article 43(1). 9 Ibid Article 44. 10 Ibid Article 12.
11 Constitutional Law on Human Rights and Freedoms and the Rights of Ethnic and National Communities or Minorities in the Republic of Croatia, Official Gazette 65/1991, 70/1991, 27/1992, 34/1992, 68/1995, 105/2000. The Croatian Constitutional Court ruled in one of its decisions that 'one of the important auxil- iary functions of the Constitutional Law was to incorporate the European Convention on Human Rights into Croatia's legal system in 1991, six years prior to Croatia's ratification of the European Convention for Human Rights.' Decision of the Constitutional Court of the Republic of Croatia, U-I-745/1999, 8 Novem- ber 2000. 12 Charter on the Rights of Serbs and Other Nationalities in the Republic of Croatia, Official Gazette 31/ 1991. 13 The General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement) signed by Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia on 13 November 1995, brought an end to the conflict in the region and provided for the reestablishing of Croatian sovereignty over the region of Eastern Slavonia that was integrated in 1998. 14 Resolution no. 1185 (1999) honouring of obligations and commitments by Croatia, April 1999, at http://www.coe.int/. For further reference see also `Background Report on Constitutional Law on National Minorities of the OSCE Mission to Croatia, 20 August 2002, at http://www.osce.org/croatia/.
15 Opinion on the Croatian Constitutional Law Amending the Constitutional Law of 1991, adopted by the Venice Commission at its 43rd Plenary Meeting (Venice, 16 June 2000) CDL-INF (2000) 10, at http: //www.venice.coe.int/. 16 'The other laws which elaborate the constitutionally-defined human rights and fundamental freedoms, as well as laws that prescribe the electoral system, the organization, authority and operation of government bodies and the organization and authority of local and regional self-government shall be passed by the Croatian Parliament by a simple majority vote of all representatives'. Article 82(2) of the Constitution. I7 This provision derives from Articles 14 and 17(3) of the Constitution of the Republic of Croatia. 18 The Constitutional Court of the Republic of Croatia in one of its rulings decided on the principle of equality related to national minorities in Croatia. Relying on both the Constitution and the FCNM, the Constitutional Court stated that 'it is evident that the application of the principle of equality does not always provide for sufficient protection. If the principle of equality was immediately applied alone, ... the special characteristics and specific interests of the minority national and ethnic communities in the society would be neglected, which might, in certain cases, lead to discrimination. Therefore, the exclusive individual protection, limited to the protection of classic fundamental rights of individuals, is no longer considered
sufficient. In accordance with that, the application of the principle of positive discrimination contained in Article 15, Paragraph 3 of the Constitution, points at the detachment from the strictly individual concept of the protection of minority members in Croatian society, i.e., at the acceptance of the constitutional and legal concept of minority rights as the collective rights of minority communities.' Ruling Constitutional Court of the Republic of Croatia, 12 April 2001. U-I-732/1998. 19 See Background Report of the OSCE Mission to Croatia on Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/.
20 Supra note 7. 21 Draft opinion on the Amendments of 9 November 2002 and 28 March to the Constitution of Croatia, adopted by the Venice Commission on 29 June 2001,CDL (2001) 69, at http://www.venice.coe.int/. 22 For more information see Arie Bloed and Peter van Dijk, Protectian of Minorities through Bilateral Treaties. The Case of Central and Eastern Europe (The Hague, Boston, London, 1999).
23 Law on Registries of Births, Deaths and Marriages, Official Gazette, 47/1990, 39/1992. 24 Law on the Use of Languages and Scripts of National Minorities, Official Gazette 51/2000. 25 Law on Education in the Language and Script of National Minorities, Official Gazette 51/2000. 26 These two laws were passed only after moderate political establishment gained power in January 2000. One of the first declarations after the election was the promise that the country will accept the return of ethnic- Serb refugees who were driven out of their homes in 1995. 27 Article 8 of the Law on Education in the Language and Script of National Minorities.
28 See para. 43 of the opinion of the ACFC, adopted on 6 April 2001, at http://www.coe.int/t/e/human_ rights/Minorities/. 29 Article 3 of the Law on holidays, memorial days and days off in Republic of Croatia stipulates that Citizens of Republic of Croatia who celebrate Christmas on January 7, those of Islamic religious affiliation during
the days of Ramazan bayram and Kurban bayram as well as those of Jewish religious affiliation in a days of Rosh Hashanah and Yom Kippur have the right to be absent from work. However, this Law does not prescribe the right to be absent from work for the non-Muslim, and non-Jewish population in Croatia and therefore does not treat equally all minority groups living in Croatia. Law on Holidays, Memorial Days and Days off in Republic of Croatia. Official Gazette 33/1996, 96/2001,13/2002. 30 Law on Associations, Official Gazette 70/1997, 88/2001. 31 Compare for example similar provisions in Article 6 of the Law on Protection of Rights and Freedoms of National Minorities of the Serbia and Montenegro and Article 3(2)(a) of the Constitution of Bosnia and Herzegovina. Existing norms prescribing the right to interact with compatriots constitute an adequate framework for the maintenance of relations between minorities and kin-states in the region.
32 In practice implemented this legislative provision has been implemented by a weekly one-hour information program for national minorities 'Prizma', that is broadcast on Sundays in the national television. The pro- gram is produced in minority languages with subtitles in Croatian. However, coverage of minority issues still not a regular component of news programmes, as reported recently in a monitoring programme conducted by the Croatian Helsinki Committee for Human Rights (HHO). See 'Politics in HTV Programming,' at http://www.hho.hr/english/politicsonhtv.htm. HTV has, recently informed the OSCE Mission in Croatia that it envisions having regional studios broadcast programmes in minority languages by the latter half of 2003. See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/. 33 Law on Croatian Radio-Television, Official Gazette 25/2003. 34 'OSCE sees progress in draft law on Croatian Radio TV', 18 December 2002, at http://www.osce.org/ croatia/. 35 Ibid.
36 In accordance with the Law on Elections for the Representatives in the Parliament of Republic of Croatia (Official Gazette 22/1992) members of national minorities who constituted more than 8% of the population of the Republic of Croatia on the basis of the 1991 census, had the right to be represented in parliament in accordance with their share of the total population. Those rights, together with Serb minority self-govern- ment, originally granted by the 1992 Electoral Law in the areas where Serbs formed majority of the popula- tion (those administrative units were called kotarevi, and there were two of them: Glina and ICnin) were annulled in September 1995. Amendments to the Electoral Law made in October 1995 provided for a total of eight minority representatives in the parliament. (Official Gazette 68/1995). In October 1999 amend- ments to the Electoral Law (Official Gazette 116/1999) specified that the five representatives (for minorities constituting less than 8% of population) would be distributed as follows: Italians, Hungarians, and Serbs each entitled to elect one, Czechs and Slovaks together are entitled to one, and Ukrainians, Ruthenians, Jews, Germans, and Austrians together are entitled to one. This scheme for minority representation was implemented in the 2000 parliamentary elections and shaped the current assembly. The 2000 Electoral Law reintroduced proportional representation in parliament, government and supreme judicial bodies for minorities that account for more than 8% of the population. However, the law provided that implementa- tion of this provision would be suspended until after the official results of the 2001 census and therefore had neither concrete effects on the formation of the assembly, nor on the formation of other official bodies. 37 Minorities were guaranteed political participation by the former Constitutional Law on Minorities passed in 1991, and by later Electoral Laws. For further information see Snezana Trifunovska (ed.), Minorities in Europe. Croatia, Estonia and Slovakia (The Hague,1999), 21-63. 38 The amended law regulating the election of representatives to the Croatian Parliament did include the requirements put forward by the Constitutional Law on Minorities regarding their right to political repre- sentation. It was passed on 2 April 2003, published in the Official Gazette 53/2003. 39 The exact reason the extreme rightist parties denied their support to the amended Electoral Law centers around the fact that Serbs are given the right to have three political representatives. The rightist parties
claimed that Serbs should be given a right to elect one representative to parliament, while eventually, in accordance with the turnout; they would have a chance to elect additional representatives. If this proposal was accepted, the so called non-fixed quota system would be applied for the election of Serb representatives. The number of additional minority representatives elected would be determined through the following for- mula : the number of voters of the Serb national minority that participated in the election would be divided by the average number of voters required to elect one member to parliament. 40 Although the earlier versions of the draft of the Constitutional Law contained an option which provided a dual vote for minorities for the election of minority representatives to parliament, the draft submitted by the government to parliamentary procedure in July 2002 eliminated this dual voting option. 41 Units of local and regional self-government have the constitutional right (Article 135 of the Constitution), within the limits provided by law, to regulate autonomously by their statutes the internal organization and jurisdiction of their bodies and accommodate them to local needs and potentials. In performing the affairs within their jurisdiction, units of local and regional self-government are subjected only to the review of their constitutionality and legality by the authorized governmental bodies (Article 136 of the Constitution). The system of regionalization of Croatia is set by the Law on Local and Regional Self-government, Official Gazette 33/2001. This law prescribes that cities and municipalities are local self-government units, while counties (zupanije) are regional self-government units. There are twenty self-government urrits and the capital of Croatia is also given the status of one.
42 See para. 27 of the opinion adopted by the Venice Commission on 6 November 2002, CDL-AD (2002)30, at http://www.venice.coe.int/. 43 See para. 20 of the opinion of the ACFC, adopted on 6 April 2001, at http://www.coe.indt/e/human_ rights/Minorities/. 44 Law on Election of the Members of Representative Bodies of Local and Regional Self-government Units, Official Gazette 33/2001. The Constitutional Law has prescribed in article 20(6) that the nomination and election of minority members of the representative body of the local and regional self-government units should be done in accordance with this by-law. 45 Consolidated Opinion on the Law on the Election of Members of Local and Regional Self Government Units of Croatia, adopted by the Venice Commission at its 50th Plenary Meeting in Venice 8-9 March 2002, published on 12 March 2002. A serious failing of this Law is that, while it provides, under Article 9, that the statutes of local and regional authorities shall determine the number of seats to be held by 'Croatian citizens, members of ethnic and national communities or minorities, in accordance with the proportional share of their members in the total population of the unit', there is a remarkable absence of clear provisions governing how such a composition of the relevant bodies is actually to be achieved.'
46 See para. 8 of the report adopted by the Venice Commission on 3 July 2000,CDL (2001) i-l. 47 Ibid See also supra note 31. 48 Similar institutions have been already introduced in the neighbouring countries. For example, self-govern- ing ethnic communities for the members of Italian and Hungarian minorities have been established by the Slovenian Law on Self-governing Ethnic Communities. The National Councils of National Minorities, with the purpose of exercising rights of self-government regarding the use of language and script, educa- tion, information and culture whose establishment was prescribed by the Law on Protection of Rights and Freedoms of National Minorities of the Serbia and Montenegro (Article 19).
49 In May 1997, the Government agreed with the Venice Commission to establish a Council of Ethnic and National Communities or Minorities in the Republic of Croatia, with the purpose of creating a counselling body in which minority representatives could regularly meet with the government. The first Council was con- stituted on January 23,1998. In the first years of its existence it has been very passive in the implementation and promotion of minoriy rights. The Council for National Minorities can be considered as its successor. 50 Similar competences are conferred in Serbia and Montenegro to the Federal Fund for National Minorities that allocates financing activities from the budget related to the improvement of the status and develop- ment of cultural creative work of national minorities. See Law on Protection of Rights and Freedoms of National Minorities of the Serbia and Montenegro, Article 20 (2). 51 This lack of governing power of the National Minorities'Committee was criticized by the OSCE HCNM and the Venice Commission. See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http//: www.osce.org/croatia/. Also see Opinion on the Constitutional Law on the Rights of National Minorities of Croatia, adopted by the Venice Commission at its 54th Plenary Session (Venice 14-15 March 2003), CDL-AD (2003) 9, at http://www.venice.coe.int/.
52 Decree on the Expert Office of the National Minorities' Committee. Official Gazette 77/2003. 53 The Office for National Minorities served as a consultative body of the Government of Croatia with the principal role of providing expertise regarding policy undertaken in respect of national minorities. This was established by government decree in December 1990, prior to Croatia's international recognition as an independent state. It is remarkable that representatives of minorities were not involved in the concrete work of the Office, even though the Office dealt with minority issues. This was corrected in the new Con- stitutional Law, and although the members are about to be elected, it was prescribed that the president of the National Minorities' Committee shall also be the Head of the Expert Office. Decree on the Office for National Minorities, Official Gazette 70/2001.
54 The OSCE Mission was concerned about low voter turnout at minority elections in Croatia, 19 May 2003, at http://www.osce.org/croatia/. 55 See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/. 56 Minority organizations, religious communities and members of national minorities propose candidates that are distinguished in cultural, scientific, professional or, religious spheres. From this group the govern- ment has appointed following individuals, members of respective minorities: Aleksandar Tolnauer ( Jewish), Sinisa Tatalovic (Serb), Zef Mirdita (Albanian), Sead Berberovic (Bosniak), Dragutin Lalovic (Montene- grin). In addition, the Government appointed the following minority representatives in the Parliament as members of the Council: Zdenka Cuhnil (Czech); Milan Djukic (Serb); Borislav Graljuk (Ukrainian), Furio Radin (Italian), Tibor Santo (Hungarian). Pronouncement on the Appointment of the Members of the National Minorities' Committee. Official Gazette 52/2003.
57 The Committee on Human Rights and the Rights of Ethnic and National Communities or Minorities is a parliamentary body that proposes laws concerning human rights issues, monitors the implementation of ratified international legal acts which stipulate the protection of human rights, and promotes the realiza- tion of human rights entitled to minorities established by the Constitution and laws. This parliamentary body should propose measures for the realization of minority rights, should assist in signing bilateral and multilateral treaties and programmes of international cultural, educational and other cooperation when this is of special interest to a particular minority. 58 Each constitutional complaint should be submitted in compliance with the provisions of the Constitutional Law on the Constitutional Court of the Republic of Croatia, Official Gazette 99/1999, 29/2002, 49/2002. 59 See OSCE Mission to Croatia Background Report Implementation of the Constitutional Law on the Rights of National Minorities (CLNM) and Related Legislation, at http://www.osce.org/croatia/.
60 The provision that was abolished does not modify any of the acquired rights to use the language of a national minority. It was simply eliminated because it had implication for the previous Constitutional Law on National Minorities that ceased to be valid with the promulgation of the new Constitutional Law, in accordance with the principle lex posteriar derogat legi priori. 61 The abolished provision stipulated that the number of members of the representative body from among the ranks of the members of national minorities shall be determined by the statutes of self-government units, in compliance with their proportional share in the total population of the self-government unit. 62 This removed article stipulated the proportional representation of the minority members in the units of self-government units. This provision is laid down in detail by the provisions contained in the new Consti- tutional Law in the Article 20. 63 It is still however unclear what methodology will be used and which body will be responsible to adjust the 2001 census results to the voters' lists (citizens 18 and older have passive and active voting right). The amend- ments to the Local Election Law did not provide any clarification on this issue.
64 The former High Commissioner on National Minorities Max van der Stoel pointed out that 'the right of return to one's place of origin and home, both voluntarily and in conditions of safety, is of fundamental importance.The primary responsibility lies with the state of origin to create and ensure conditions of return. The right of return also has a bearing on regional peace and security since the prolonged displacement of large numbers of persons can be destabilizing. Of course, conditions of return also imply respect for all other human rights in order to integrate societies and avoid the recurrence of displacement.' Max van der Stoel, 'Minority Rights, Participation and Bilateral Agreements', Address to an international seminar on Legal Aspects of Minority Rights: Participation in Decision-Making Processes and Bilateral Agreements on Minority Rights, 4 December, 2000. http://www.osce.org/hcnm/. 65 See para. 70 of the opinion of the ACFC, adopted on 6 April 2001, at http://www.coe.int/t/e/human_rights/ Minorities/. 66 Ibid.