By Center for Legal Analyses-Kalligram Foundation, www.cla.sk

Bratislava, November 30, 2002

The Center for Legal Analyses-Kalligram Foundation compared the annotation of the Slovak government to the Hungarian Status Law with the relevant passages of the international law respectively with other valid status laws. The objections of raised by the Slovak government are printed in bold.

The Venice Commission in its analysis released on October 22, 2001 evaluated the Hungarian law as an acceptable legal instrument fostering ethnic minorities, but it considers the best those mechanisms protecting minorities, which are based on bilateral agreement between the two relevant countries. “Kin-States, however, have shown their wish to intervene more significantly, and directly, i.e. parallel to the fora provided in the framework of international co-operation in this field, in favor of their kin minorities (The Venice Commission’s Report on Preferential Treatment of National Minorities by Their Kin-State).”

Many European countries have laws on preferential treatment of kin-minorities, not confining these benefits to their own territory. The report of the Venice Commission mentions several such laws. According to the Commission, the fact that persons included in the scope of a law are foreign citizens does not mean violating the principle of the sovereignty of home-states. While the Act on Expatriate Slovaks (hereinafter Slovak Law) provides benefits and assistance to the benefited persons belonging to the Slovak kin-minority on the territory of the Slovak Republic, the Hungarian law aims fostering the development of the Hungarian minority through providing assistance in their homeland. Both Slovakia and Hungary justify the adoption of the laws on kin minorities in a different way. This difference, among others, is based on the typological differences between the Slovak and Hungarian minorities living outside the borders of their kin-states.

It is important to divide the Hungarian Law into two parts and note the difference between the benefit and assistance. While the benefits are provided to the holders of the Hungarian Certificate on the territory of the Hungarian State, the assistance on the territory of the Slovak Republic (the home-state) could be applied for on the basis of projects. It means that the obtaining of the Hungarian Certificate is not linked automatically with providing assistance. The Hungarian law-making authorities this way adopted the commonly acknowledged application through submitting projects as a basis for providing assistance.

There exists no such international law setting out the features of the benefits and naturally the providing of the benefits is subject to the legislation of the state granting the benefit. The Slovak law, however, does not regulate the types of assistance (benefits).

The Venice Commission analyzing the features of the benefits mentions in the valid status laws cultural and travel benefits, benefits in providing work permissions, support in application for visa, exemption from obligation to apply for permission for permanent residence, benefits in acquiring properties and facilitating granting of citizenship. We have no information on that the assistance (granted by another state, state foundation or foundation) arriving to the Slovak Republic were subject to prior permission or intergovernmental treaty.

“In the Venice Commission’s view, a role of these organizations cannot be excluded, if they are only required by the kin-States to provide information on precise, legally determined facts, in the absence of other supporting documents or material or if they are only entrusted with giving a non-binding informal recommendation for the consular authorities of the kin-State.” If we take a look at the 5^th paragraph of Article 2 of the Slovak Law stipulating that is an applicant cannot prove its national background in accordance with the 4^th paragraph, it can be proven by a written testimony of a Slovak countryman organization in his/her homeland. And the Slovak Law does not stipulate at all that this form of proof could be accepted only exceptionally.

Though, according to the Venice Commission “no quasi-official function may be assigned by a State to non-governmental associations registered in another State”, different associations may inform on these criteria in absence of official documents supporting these facts. As it has been already mentioned, the Slovak Law has similar regulations concerning this issue. The right of embassies and consular representations to obtain such information. Taking these facts into consideration, there are no legal obstacles to that the Hungarian Ministry of Foreign Affairs may establish the list of those civil organisations with which the Hungarian diplomatic/consular missions/representations may co-operate.

The Certificate, in line with the recommendation of the Venice Commission, could contain only the strictly necessary personal data and its cannot substitute for personal ID or travel document. The amended Law meets the requirements of the Venice Commission. For the sake of comparison, it is worth checking the content of the Expatriate Card issued on the basis of the Slovak Law, mainly its resemblance to the Slovak identity card. The most crucial problem is the indication of the date of birth included also by the Slovak Expatriate Card (Article 4, Section 1).

The Hungarian Certificate can serve as mere proof of entitlement to the benefits provided for under the Law and when applying for future assistance, thus its is not effective in Slovakia.

The provision on the personal scope of the amended Law explicitly sets out that family members – i.e. spouses and minor children – who are not of Hungarian nationality may fall within the scope of the Law only in case international treaty does not provide otherwise.

According to the conclusions of the Venice Commission, “ preferential treatment may be granted to persons belonging to kin-minorities in the fields of education and culture, insofar as it pursues the legitimate aim of fostering cultural links and is proportionate to that aim.” It is questionable to what extent is a travel benefit connected to cultural objectives. The amended Law justifies the travel benefit by fostering of cultural and family contacts between the persons falling within the scope of the Law, and the Republic of Hungary and its citizens. The benefit is provided exclusively on the territory of the Hungary. The Slovak Law provides travel benefits for invalid pensioners and for elderly over 70 years.

According to the report of the Venice Commission, “preferential treatment can not be granted in fields other than education and culture, save in exceptional cases and if it is shown to pursue a legitimate aim and to be proportionate to that aim.” The declared aim of the Hungarian Law is “ensuring the well-being of the Hungarians living in neighboring states in their respective home-lands,” but the point 2.f of the Article 18 differs due to the cultural and education objectives of the benefits. The report also mentions that in this case benefits should be available to other foreign citizens who do not have the national background of the kin-state. Since the new amendments of the Hungarian Law do not provide any specific argumentation for legitimate aim of these supports, the Slovak observation concerning the amended Law is relevant.

If these organizations had not been designed for these purposes, the Slovak Ministry of Interior could not have registered them. If these organizations breach the law during their operations, there are effective legal remedies to treat this problem to be applied by the home-state.

In line with the international unwritten law it is accepted that a State should grant scholarships to foreign students belonging to national minority, in order to pursue their studies in the language of the kin-state at educational facilities abroad. According to the 2^nd paragraph of Article 2 of the European Cultural Convention: “ Each Contracting Party shall, insofar as may be possible, endeavor to promote the study of its language or languages, history and civilization in the territory of the other Contracting Parties and grant facilities to the nationals of those Parties to pursue such studies in its territory.” The international law, however, does not limit the granting of scholarships, so the Slovak comment on this point is uncommon in the case of two countries having good neighborly relations.

In the Czechoslovak Republic between the two world wars, the term nationality referred only to citizenship. It was reflected also in the constitution of the first Czechoslovak Republic, the Article 6 of its constitution titled Protection of National, Religious and Racial Minorities („Ochrana menšín národních, náboženských a rasových“). In the course of the 20^th century this issue appeared on national and international level as well, most recently when creating the Framework Convention for the Protection of National Minorities, when the experts could not reach an agreement over the definition, so the definition is also missing in the frame convention of the European Council. In Slovakia neither the constitution nor any other law defines the notion of minority. A resolution of the Slovak government from 1991 enumerates the 11 minorities living on the territory of Slovakia.

The amended Law provides comparison of benefits for ethnic Hungarians students and teachers in the territory of Hungary and benefits of students and teachers of Hungary. Since in the comments the Slovak experts did not provide more legal reasons, it is hard to argue why the comparison is problematic.