Memorandum: Law on Minorities

Center for Legal Analyses – Kalligram Foundation

January 2003

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Introduction:

The aim of the memorandum is to point out the weaknesses of the minority legislation and to outline the principles of drafting the so-called Law on Minorities in Slovakia.

I. Constitutional Framework of the Protection of National Minority Rights:

The rights of the national minorities in Slovakia are guaranteed mainly by Article 33 and 34 of the Constitution of the Slovak Constitution (no. 460/1992 Coll.; hereinafter referred to only as “Constitution”). The international agreements of basic human rights and freedoms, ratified and published before July 2001 guaranteeing wider range of rights and freedoms than Slovak law and international agreements on human rights ratified and declared after July 1, 2002, have a legal force lower than the Constitution but higher than a law. This is the basic framework within which the legal framework of the protection of rights of national minorities (i.e. laws and legal norms with a lower level of authority than law relating to the rights of national minorities) is being formed and this legal framework must comply with the requirements posed by the Constitution and international obligations. This section shall examine the framework of minority rights as set out in the Constitution.

Chapter two, Section 4 (Articles 33 and 34) of the Constitution guarantees to Slovak citizens, who belong to national minorities and ethnic groups the following rights:

·        Right guaranteeing that belonging to national minority or ethnic group shall not be detrimental to anyone;

·        Right for general development, mainly right to develop one’s own culture, communicate and receive information in their mother tongue, the right of association, the right to establish and maintain educational and cultural institutions within the framework laid down by law;

·        Right to learn the official language of their home country;

·        Right for education in their mother tongue;

·        Right to use their language in official communication;

·        Right to participate in the administration of public affairs related to national minorities and ethnic groups.

As it follows from the quoted regulations, the Constitution assumes that for the purpose of the actual enjoyment of some rights of the national minorities (concretely the right for general development), it will be necessary to enact laws regulating the details of the given laws. On the other hand also regarding the exercise of the rights to use the mother tongue of the national minorities in official communication, where the Constitution does not expressly state the need to adopt a specific law, the Constitutional Court decided that the National Assembly of the Slovak Republic must adopt a special law on the language of national minorities, in order to guarantee this right effectively. It can be also pointed out in general that the rights of national minorities as they are stipulated in the Constitution do not give a definition of the scope and contents of these rights that would be sufficiently clear and exact to facilitate their implementation without executive laws. It can be concluded therefore that the adoption of a special law on the rights of the national minorities is, according to the Constitution, partly an obligation of the lawmaking authorities, but it is also desirable for the effective application of the right of national minorities in other cases.

II. International Obligations Relating to National Minority Rights:

We take as a departure point the Council of Europe Framework Convention for the Protection of National Minorities, ratified by the President of the Slovak Republic on July 15, 1995 and proclaimed in the Collection of Law under No. 160/1998, since it is the most significant binding document of international law adopted in the recent past. One has to bear in mind that, as it has been mentioned above, also in cases when the Framework Convention guarantees a wider range of rights than the Slovak laws do, it does not overrule the Constitution, so in such cases one can only state the eventual deficiencies that can only be remedied by a Constitutional amendment, and it is not possible to suggest a realistic legislative solution of the given problem, i.e. a solution not assuming the amendment to the Constitution.

The following points are those, which can be considered as rights guaranteed by the international law, but not the Slovak legislation:

·        The anchoring of the exercise of rights of national minorities in community with others in the sense of Article 3 of the Framework Convention: "Persons belonging to national minorities may exercise the rights and enjoy the freedoms (...) individually as well as in community with others." [1]

·        The possibility of positive discrimination -- Article 4(2) and (3) of the Framework Convention: "The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.” However, the Constitution expressly prohibits positive discrimination (Article 12(2).

·        Minorities have a right for access to media under non-discriminatory conditions and the government binds itself to facilitate the national minorities access to media in an appropriate way – Article 9 of the Framework Convention.

III. Deficiencies of the Current Legal Framework of Minority Protection in Slovakia

This section is based on the results of an overall survey on the situation of minority legislation carried out by the CLA-Kalligram and emphasis is laid on pointing out the weaknesses of the current legal framework.

Language rights

In principle, ratifying the Charter of European Regional and Minority Languages has strengthened the rights for language usage. However, this overall positive effect is sometimes overshadowed by the fact that the version of the Charter ratified by the Slovak Parliament is in conflict with some other laws in force. Apart from these more conceptual problems, the poor public awareness about the contents of these rights is a factor that sometimes leads to their inappropriate application.

One problem is that minority language usage is not consequently guaranteed according to the general 20% (i.e. the minority has to represent at least 20% of the overall population of a certain municipality) threshold, as regional authorities do not necessarily apply the minority language law. The possibly arising problems are well demonstrated by the decision of the regional parliament in Trnava, which did not grant the Hungarian minority permission to use their language in the regional assembly despite the fact that the rate of ethnic Hungarians is 23% in the region, but in the town of Trnava (which the law uses as criterion) it is less than 20%, so the law is inapplicable in the town itself, where the seat of the assembly is situated. The same problem arises in case of other procedures which start in Hungarian language at the district level but continue at a higher level, e.g. at a regional center, where the rate of ethnic Hungarians is below 20%, so as a consequence, the decision of the second degree cannot be required in Hungarian.

On the other hand, this and similar shortcomings of the law should not necessarily put obstacles in the way of wider application of these minority rights, so it can be stated that - as the above mentioned example shows - the usage of minority languages is also being impeded by the lack of political culture just as well as the minority language law.

Educational rights 

The legal situation of the public education is well demonstrated by the Department of Minority Education of the Ministry of Education. The Department was established by the declaration of the program of the Slovak government and has got neither own budget, nor decision-making powers. According to officials, ’putting out fire’ (blocking measures against Hungarian schools and negative discrimination in the subsidy system) was the department’s most important role in the last four years. 

· Primary education: there is lack of independent financial decision making and independent syllabus design in the Hungarian primary school system. In the course of decentralization both remained at the level of centralized public administration (Ministry of Education).

· Secondary education: there is lack of independent financial decision-making and syllabus design in the Hungarian secondary school system. Both remained at the level of centralized public administration in the course of decentralization (Ministry of Education).

· Higher education: financial and structural outlines of the Hungarian university.

Culture:

The Section for Minority Cultures of the Ministry of Culture was also established by a declaration of the Slovak government and in the same way the next government can dismiss it. A more stable method should be found for the centralized distribution of public funds and for the coordination of funds used by regional authorities and regional governmental bodies for cultural purposes.

Financing of minority cultures:

The Center for Legal Analyses-Kalligram Foundation prepared three variants of the bill on financing minority cultures in 2001. The aims of the bill were the followings:

· Setting up a central distributive mechanism and at the same time trying to avoid disturbing the competences of county and district offices.

· Decentralization means handing over the competences of governmental bodies to regional authorities.) [2]

The financial framework for the de-centralized tasks is regulated on a year by year basis in the state budget; for the year 2002 is the budget for the year 2002 – law no. 586/2001, Article 13 (2). The share of resources that were originally in the hand of state administration and have to be transferred to the regional self-governments is determined according to the so-called "delimitation protocols", which set out in details the institutions, property and funds transferred to the regional self-governments. The regional self-governments will be subsidized from the state budget on the basis of this division of tasks, institutions and property. For this reason the bill prepared by the Kalligram does not/cannot interfere with the budget of regional self-governments, so the foundation proposes the establishment of a central fund, which would support the minority culture on a project-oriented basis.

Media:

The Acts on the Slovak Television and Slovak Radio regulate the possibilities of the minorities in the media. Regarding the Hungarian broadcast of the Slovak television, there is lack of allocated budgetary funds (the same stands for other minority TV programs too) and private competent decision making (program structure etc.), which is valid for the Patria Radio as well. There is no need for a completely new act to make up for the shortcomings, as making modifications to the act would serve the purpose too.

Minority institutional network:

The existing minority institutional network was set up by a declaration of the Slovak government in 1998. According to this program, the institutional network has no legal basis as its existence always depends on the current political power and will. Another hindering factor is that neither the Department for Minority Culture nor the Department for Minority Education has the right to independent decision-making and/or neither of them has its own budget. So there is no statutory guarantee for implementing minority decisions, and the most important task of minority officials is to enforce minority interests through personal relations or political coercion.

It is hard to imagine that law should reinforce the existing institutional network, as entering the inner structure of the Ministry (as the executive branch) through a separate law is very complicated. In case of the institutional minority network the issue of introducing minority authorities could be considered based on the Hungarian model. Further solution could be the reinforcement of the current minority institutional network by law.

IV. Principles of Law on National Minorities 

1. Alternative:

The law on rights of national minorities should focus on the more exact specifying of the following rights:

·        Cultural rights

·        Media rights (right to receive and communicate information in mother language)

·        Right for education in mother language

·        Right to participate in management of issues concerning national minorities and ethnic groups.

·        Strengthening the minority institutional network and making it independent and apolitical

·        Making the financing of minority education and the preparations of the syllabus independent

Ad 2: amend special regulations:

·        Law on press

·        Law on the public Slovak Television

·        Law of the public Slovak Radio

·        Law on broadcast and retransmission

Assigning a frequency for a commercial radio station broadcasting in language of minorities- create conditions enabling broadcast in language of a national minority. A law on free access to information - websites of government offices in languages of minorities. There exists no permanent concept on supporting minority media, mainly as for Roma media.

Ad 3: Secure respecting the rights of national minorities at the level of regional governments, to amend the relevant regulations.

There are two alternatives:

A.     A procedural solution- proposal of a procedural proceeding that would guarantee that there couldn’t be any resolution opposed by representatives of a minority.

·        Guarantee certain right of veto for minority local governments .i.e. newly established bodies representing minorities

·        Guarantee right of veto for existing legitimate representatives of minorities in existing bodies of local governments

·        Qualified majority

·        Set up so-called minority councils at regional level; these minority councils could delegate members into central minority council. This council could operate so that it could give stances before the cabinet resolutions which should be submitted to the cabinet meeting discussing minority-related issues

·        In local elections elect representatives into the minority council of higher territorial units (VUC) , who would cooperate with VUC in minority-related issues

Obstacles/Problems:

·        How to determine legitimate representatives of a minority?

·        Who and how will decide whether an issue is minority-related?

·        Is it possible to determine issues, which should be treated in a special regime?

·        The Hungarian law stipulates: local school system, local media, culture and maintenance of traditions, collective language rights.

·        Is it possible at a central level to develop such solution which would guarantee that a central body competent in national minority issues will decide on legislative and other plans, which have influence on national minorities?

B.     Material and Legal Solution- establishing certain minimal standards for some fields by law, which should be binding for local governments.

2. Alternative

Declarative summary of existing rights of national minorities. Example: the Law on Minorities adopted by the Parliament of Czech Republic.