The Protection of Minority Rights in the Works of the European Commission for Democracy through Law: July 2003 ― June 2004

In: European Yearbook of Minority Issues Online
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  • 1 Administrator at the Secretariat of the European Commission for Democracy through Law of the Council of Europe (hereinafter "the Venice Commission").
  • 2 Head of the Constitutional Co-operation Division of the Venice Commission. The opinions expressed are solely those of the authors.

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  • 1 CDL-AD(2004)026, Opinion on the Revised Draft Law on the Exercise of the Rights and Freedoms of National and Ethnic Minorities in Montenegro, adopted on 18-19 June 2004. 2 CDL-AD(2004)020, Opinion on the Draft Law concerning the support to Romanians living abroad of the Republic of Romania, adopted on 18-19 June 2004. 3 CDL-AD(2004)013, Opinion on the Two Draft Laws amending the Law on National Minori- ties in Ukraine, adopted on 12-13 March 2004; CDL-AD(2004)021, Opinion on the Draft Law on the Conception of the State Ethnic Policy of Ukraine adopted on 18-19 June 2004; CDL- AD(2004)022, Opinion on latest version of the Draft Law amending Law on National Minori- ties in Ukraine, adopted on 18-19 June 2004.

  • 4 See CDL-AD (2004)021, para. 8; CDL-AD (2004)026, para. 21 and CDL-AD (2004)013, para. 15. 5 See CDL-AD (2004)013, para. 15. 6 See CDL-AD (2004)026, para. 21. 7 Its "Proposal for a European Convention for the Protection of Minorities" of 1991 contained the following definition of 'minority': "a group which is smaller in number than the rest of the population of a State, whose members, who are nationals of that State, have ethnical, religious or linguistic features different from those of the rest of the population, and are guided by the will to

  • safeguard their culture, traditions, religion or language" (see Article 2 of the proposal). See also Article 1 of Recommendation 1201/1993 of the Council of Europe's Parliamentary Assembly and Article 1 of the European Charter for Regional and Minority Languages. 8 See, for example, CDL(1995)014, Comments on the Draft Law of the Republic of Moldova on the Rights of Persons belonging to National Minorities. 9 In 1994, the Human Rights Committee of the United Nations, pointed out that Article 27 of the International Covenant on Civil and Political Rights, setting out the minority rights, is not limited to citizens: "The terms used in article 27 indicate that the persons designed to be pro- tected are those who belong to a group and who share in common a culture, a religion and/or a language. Those terms also indicate that the individuals designed to be protected need not be citi- zens of the State party. In this regard, the obligations deriving from article 2.1 are also relevant, since a State party is required under that article to ensure that the rights protected under the Covenant are available to all individuals within its territory and subject to its jurisdiction, except rights which are expressly made to apply to citizens, for example, political rights under article 25. A State party may not, therefore, restrict the rights under article 27 to its citizens alone." General Comment No. 23 of 8 April 1994, § 5. 10 The Advisory Committee has expressed the view that it is important to address the issue of citi- zenship on an article-by-article basis rather than making it a general requirement for the appli- cation of laws on national minorities (see for example opinion on Germany, Article 3, para.18; opinion on Serbia and Montenegro, Article 3, paras. 23-4). 11 See the explanatory memorandum attached to Recommendation 1623(2003) on the rights of National Minorities, adopted on 29 September 2003. 12 See, for example, CDL (2001)074, Opinion on the Constitutional Law on the Rights of National Minorities in Croatia, para. 4; CDL (2001)071 rev., Opinion on the Draft Law on Rights of National Minorities of Bosnia and Herzegovina, para. 4. 13 CDL-AD (2004)013, para. 19.

  • 14 CDL-AD (2004)013, paras.16-22. 15 CDL-AD (2004)026, para. 36. 16 CDL-AD (2004)026, para. 64.

  • 17 CDL-INF(2001)019. is CDL-AD(2004)020. 19 CDL-AD(2004)021.

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