By Sarah Wasserman

September 2002

The purpose of this report is to compare the legislation that various Central European countries have enacted for the purpose of protecting and promoting the interests of their ethnic minority populations, to analyze their effectiveness and to suggest what future innovations might entail. We will look at the constitutions and relevant laws in Croatia, the Czech Republic, Hungary, Poland, Romania, Slovenia and the Ukraine, and will focus primarily on the structure of the bodies set up to promote minority rights and on the laws governing minority education. Of great interest is the level of autonomy granted to minority communities, both in organizational/political and educational structures. We find that while similar rights are guaranteed in the different constitutions, there is great variety in legislative implementation of those rights. Thus rights are made dependant on governmental interpretation, detracting from their dependability and making them political. The legislation, while a clear step forward in minority-rights, to a large extent only changes the image of the countries, without providing stability and enforcement for the rights the constitutions purport to guarantee. That can add tension from majority groups who feel threatened by the minority while not giving the minority populations the sense of protection they seek.

The laws we examine conform to a paradigm that reflects the essence of the tension between majority populations and national minorities. In an area where nationality is considered more descriptive than citizenship, majority populations fear irredentism while ethnic minorities want to protect themselves as much as possible from the effects of overt discrimination, or from the possibility of future, forced assimilation. Unfortunately, legislation based on this paradigm only serves to codify those fears; this leads to isolation of the minority, which may precipitate greater misunderstandings in the future. While it may not yet be time to implement a different vision of statehood, it seems that after almost a century of grappling with tensions clouded by nationalism, it is time to ask what a new vision might be. Is there a legal structure that draws on the strengths of multi-culturalism, rather than isolating communities from each other? Our analysis leaves us with a practical assessment of the laws, but only begins to raise these questions which will shape the future of minority law in Central Europe.

The Croatian constitution guarantees equal rights to ethnic minorities living there, along with the freedom to express nationality and the right of association. Like all of the countries we look at, fundamental rights are guaranteed, but law dictates the method of protection. This allows for innovation, but also for abuse, depending on the political climate of the country. According to the constitution, the national language is Croatian; however, minority languages may also be used in an official capacity, as governed by law. The language of the Constitution does not give this the status of a guaranteed right.

Croatia ratified the Council of Europe Framework Convention on the Protection of National Minorities at the end of 1997, and therefore has a duty to implement its terms. As a result of the convention, there is an Ombudsman for minority issues; however, he has only the power to record complaints by citizens and report them to Parliament. Parliament contains a Committee for Human Rights and the Rights of Ethnic and National Communities or Minorities, but it remains relatively inactive, as does the separate Council for National Minorities.

Croatian education law states that minority education is regulated by state pedagogical and educational standards, and allows for other laws (as yet not implemented) to further shape minority programs. Educational programs are implemented by government ministers, who have historically been against minority education; direct or advisory influence on the educational process is in no way reserved for the ethnic minority community.

The Polish constitution declares Polish to be the national language, but allows that to come second to any international treaty rights. Equality before the law is guaranteed, as is freedom of association to institutions that are constitutional. Thus, any groups that are considered nationalist, fascist or communist are denied the right, as are any groups whose membership is secret. This provision is clearly not intended to target the members of ethnic minority groups; however, it detracts from the absolute nature of the right, and is thus worth mentioning.

There is no structure set up for the furtherance of ethnic minority culture, nor is there a method for voicing complaints. Poland only ratified the Council of Europe Framework Convention on the Protection of National Minorities in 2001.

The education law states that ethnic minorities will be allowed to learn their languages and cultural histories in the public schools. Implementation is left to the Minister of education, including the decision of how many minority students are necessary to implement a minority education program. There is no possibility for minority input included in the law, and it makes very clear that the Minister of education has complete power over the requirements.

The Ukrainian constitution states that minority rights and language use are guaranteed by the constitution, but determined by law. It is hard to see what security is given by guaranteeing the existence of rights in the constitution while only determining what those rights are by legislative means. This seems to actually guarantee much less than the other constitutions.

In all fairness, however, the minority law is substantial. It guarantees the right to learn one’s mother tongue in state schools, as well as the right to free development for ethnic minorities. The law also sets up a political structure to deal with minority issues. This includes minority committees in the central government, and possibly on a local level as well. The Ukraine ratified the Council of Europe Framework Convention on the Protection of National Minorities in 1998. A presidential decree formed the Council of Representatives of Public Organizations of National Minorities of Ukraine. Initially, council membership was subject to presidential approval; after this initial time, however, the Chairperson of the Council is able to change the membership. The Council is advisory in nature, with the powers of investigation into complaints, assessment of situations, proposal of new plans and issuance of advice. While establishment of the Council is a clear step towards giving a voice to minority concerns, it is still without any power of enforcement, and is closely connected to and limited by the government.

The stated purpose of the education law is to promote fundamental human values, such as multiculturalism. Free education is guaranteed to all, regardless of ethnicity. However, the language of education is determined by the constitution and the law on languages in the Ukrainian Soviet Socialist Republic, as amended in 1995. Currently, about 67% of schools are taught in Ukrainian, while the rest are mostly Russian, but there are also schools that teach in Romanian, Hungarian, Moldavian, Crimean Tatar and Polish.

The Romanian Constitution guarantees one deputy seat in government to each minority group if they have won nothing else in an election. The right to be educated in one’s mother tongue is also guaranteed, though law governs the execution of this right.

In 1997, the Department for the Protection of National Minorities was formed by a government decree. The Department is subordinate to the Prime Minister, who also chooses the head of the Department. The function of the Department is similar to that in the Ukraine: it monitors problems, submits legislative proposals and investigates complains. The Decree also defines the functions of the Council for National Minorities, a body that was initially established as solely advisory in 1993. The Council is given responsibility for distributing government funds to different organizations that promote the interests of ethnic minority communities. Romania ratified the Council of Europe Framework Convention on the Protection of National Minorities in 1998.

The 2000 Ordinance on Preventing and Punishing all forms of Discrimination sets out a list of universal rights (economic, social, political and civic), and defines the offenses that are considered as threatening those rights; in particular, it defines denial of a right based on ethnicity as an offense. It allows for trials to be conducted and sanctions awarded by the National Council for the Prevention of Discrimination. Unfortunately, the Council has not been active.

The Minister of National Education is responsible for all educational programs, including those for national minorities. This has caused some problems: leaving discretion to government officials means that in some circumstances, schooling in the mother tongue is simply refused, leading to greater tensions.

Though the structure is fairly complex and carefully defined, the protection of ethnic minorities in Romania is still tied very closely to the government, rather than existing as a fundamental and immutable structure. This cuts both ways, as the flexibility allows for positive changes, while, from a protectionist viewpoint, there is nothing to guarantee that the recommendations of the Department and the Council will actually be effective.

Czech minority law is governed by the international treaties they have signed. Primarily, minority law is dictated by the Framework Convention for the Protection of National Minorities, which was ratified by the Czech government in 1997. The law the government passed resembled sections of the Convention closesly. Among other things, they have set up a Council for National Minorities of the government of the Czech Republic. This is a consultive and initiative body, the head of which is a member of government. It is competent to prepare measures, express opinions, prepare reports and propose financial distributions. However, like the other bodies we have seen set up, the Council has no financial autonomy, and is therefore at the mercy of the political climate.

Furthermore, the government failed to implement sections of the Convention that guaranteed protection of basic rights to minorities. This has contributed to the continued abuse of Roma in the Czech Republic.

Education law in the Czech Republic gives the Ministry of Culture and Ministry of Education responsibility for the budgets allotted to different minority groups. These ministries implement educational programs for the minorities, along with adding minority history units to the curricula.

Both Hungary and Slovenia are farther along on the spectrum towards granting group rights in an effort to ease tensions with ethnic minorities. Far from the early, post World War II paradigm of individual, human rights, these countries go beyond the solution of granting group rights, and encourage formation of self-governing minority groups to monitor the assurance of those rights, with autonomy over enumerated decisions.

The Hungarian Constitution provides for a Parliamentary Ombudsman for Civil Rights and for the Rights of National and Ethnic Minorities, who after a recommendation from the President must be elected by a two-thirds majority vote in parliament. It furthermore ensures collective political participation to ethnic minority groups.

Hungary ratified the Framework Convention for the Protection of National Minorities in 1998. The 1993 minority law emphasizes the importance of establishing minority self-governments. The system is structured based on the number of minority representatives in a municipality. Therefore, a municipal government is a “minority government” if more than half of the representatives are from a minority party. The governments are responsible for minority education in their areas, and have autonomy over budget decisions. However, their budget is determined by the state, and thus these governments are not wholly autonomous. In practice, this has presented a problem. Funding for the minority governments has not been forthcoming, and so despite the possibilities for the advancement of minority causes, it has been difficult to achieve.

Neither the Ombudsman nor the minority governments have the power to seek legal redress on behalf of minorities for discrimination. This shows that while progressive laws that benefit minorities may ultimately bring solutions, more traditional laws that protect minority populations cannot yet be abandoned.

Autonomy is further limited by the fact that the national curriculum decides what will be taught and government ministries decide the budget; this means that minority governments are left with the responsibility for problems, but they neither have money to fix them, nor true autonomy to determine educational policy.

The Slovene constitution allows for Italian and Hungarian to supplement Slovene as national languages in “ethnic areas,” determined by statute. It also guarantees the right of Italians and Hungarians to be educated in their mother tongues, as well as the right to develop their own curricula. This is unique among the countries we have examined. The constitution also pledges money to ensure this educational right. Notably missing as recipients of these rights is the Roma community. Their rights are ensured in the constitution, and should be determined by statute. However, the government has not passed any such statute in the ten years since the constitution was written. Also missing in the constitution is protection for other ethnic minorities in Slovenia, some of which are more numerous than the Italian and Hungarian minorities. The Italian and Hungarian minorities are also guaranteed at least one Deputy each in the National Assembly. Slovenia ratified the Framework Convention for the Protection of National Minorities in 1998.

The 1994 Law on Self-governing Communities suggests the establishment of self-governing, ethnic communities (again limited to the Italian and Hungarian minorities). These governments are implemented at the municipal level. In the central government, the Council of the Self-governing Ethnic Communities is decided by direct election among the minority communities. The council can adopt statutes and regulations for the self-governing ethic communities, and can also develop a financial plan for them. It is the State government, however, that determines financing. Similarly, financing for self-governing ethnic communities is determined by the local communities. The self-governing ethnic communities are charged with communication with self-governing local communities. Thus they are able to submit proposals, initiatives and opinions to the local communities, who are obliged to take a stand towards the proposals. A parallel advisory system exists between the Council of Self-governing ethnic communities and the central government of Slovenia. The obligation that the majority governments have to address the issues raised is also new, and ensures at least that the issues cannot be ignored, though it does not ensure any action on them.

The education law in Slovenia is unique in that it imposes bilingual schools on both minority and majority populations living in ethnically mixed areas. In Slovakia, there was a general uproar when then Prime Minister Mečiar pushed for an “alternative education” plan for ethnic minority students. It was an attempt at forcing assimilation on the Hungarian minority by insisting on bilingual education and allowing only ethnic Slovak teachers to teach certain subjects. However, this Slovene law shows a true desire to work towards multi-culturalism by supporting the value of cultural exchange between groups of different ethnicities. In ethnically mixed areas, there may be schools in the majority language, bilingual schools, or schools taught in the minority language. It is not clear how well this has been implemented, or how many minority and majority students elect to be bilingually educated. Regardless of the language of tuition, however, all students in an ethnically mixed area must learn both the majority and minority languages. One possible problem with this provision is that each municipality can define, by statute, what constitutes an “ethnically mixed” area, and because of the afore-mentioned problem of simply not recognizing certain minorities.

An analysis of regional minority-protection/promotion legislation reveals two weaknesses: a lack of autonomy in implementation and an omission of basic protections in countries with more progressive laws such as the Czech Republic, Hungary and Slovenia. Implementation and budgets suffer from the lack of autonomy, while the benefits promised under progressive laws are meaningless when open discrimination is not being combated.

Lack of autonomy in the implementation of minority programs exists in many of the states we have examined. Most countries guarantee collective rights, but cannot determine what constitutes an ethnic minority population. Determination is then left to local officials. In theory, this makes some sense: defining “ethnic minority” is difficult and problematic, and local officials know their areas better than national officials would. In practice, however, local officials have the same prejudices that these laws try to combat, and these prejudices affect their decisions. To ensure the rights of minority communities, a baseline number should be set in these countries: a percentage minority population above which an “ethnically mixed” community is said to exist, and below which discretion by local officials is allowed. This allows for positive innovation while ensuring a basic level of community rights. The impossibility of defining terms does not mean that an attempt need not be made.

In countries that have ratified the Framework Convention for the Protection of National Minorities, the position of parliamentary Ombudsman and/or a Council for National Minorities has generally been established. None of these, however, have any legal power, however. (The exception is in Romania where the Council can hear lawsuits on minority issues; as I said, however, the Council has been inactive.) In Slovenia, there is a duty to take a stand on reports submitted by the Council and its municipal counterpart. This carries more weight, as it insures that the issues will at least be raised, forcing the government to state its position on them. This allows for accountability, both to voters and the international community. Without any such requirement, the implementation of solutions entirely depends on the will of the government.

In all cases, the minority programs are dependent on the state budget. This allows for flexibility and some level of accountability from minority groups; it also allows for the effective destruction of such programs from lack of funding. Furthermore, there is insufficient accountability: once minority organizations are set up with responsibility for their programs, the government is seen as less responsible, even if a lack of funding causes the failure of the programs. This is especially problematic in countries like Hungary and Slovenia which set up self-governing ethnic communities. They are at the mercy of state budgets but are given autonomy over the programming. This grant of “autonomy” without sufficient funding is more destructive for ethnic communities, as it appears that their leaders are not implementing effective programs. A sufficient budget must be prepared and autonomy over its distribution secured for these programs to work.

In Croatia, Poland, Ukraine, Romania, the Czech Republic and Hungary, minority education exists, but the national curriculum determines what is taught. In some countries, such as the Czech Republic, minority history is included in this curriculum as well, but this depends on the Minister of Education’s discretion. Slovenia’s system is theoretically the most forward-looking. The value of multi-culturalism that is professed in so many constitutions is implemented here: cultural exchange and understanding is valued, and therefore majority and minority cultures alike are meant to be bilingually educated. In practice, there are some problems with Slovene law; however, the wording does the most towards protecting minority rights, promoting their interests and working to build a community that does not have to rely on such protections.

Lastly, there is the problem that minority law must build on itself before it can move forward. Therefore, when the legal paradigm shifted from protecting individual human rights to collective human rights, it was necessary to keep the former body of laws rather than reformulate them in the language of collective rights. In the same way, as we move from a mentality of protectionism to one of cultural promotion, we must add to the old body of laws, rather than only implement a new paradigm. For example, while Hungary promotes self-government in its minority communities, the lack of power of the Ombudsman means that basic protection is not ensured. Slovenia also has laws that promote minority cultures, but it sacrifices universality by determining minority status (only naming the Italian and Hungarian communities as ethnic communities). This is open discrimination in the laws themselves, which no amount of separate, progressive legislation can legitimate. It is for this reason that we must emphasize the importance of ensuring all levels of legislation are in force: individual protections, collective protection and cultural, group promotion.

The states of Central Europe are aware of the tensions between different ethnic communities living within them, and are seeking solutions. These solutions are shifting to allow for the actual recognition and promotion of cultural diversity. However, forming a Council or appointing an Ombudsman is not enough. Accountability must be assigned where it belongs; if these institutions are simply advisory, the government has not relinquished accountability for the issues. Furthermore, to ensure that minority concerns are addressed, the government has a duty (that must be codified) to address and issue statements on the reports they receive. Also, to ensure that the laws are applied in the spirit that is meant, a baseline definition must be developed for what constitutes an ethnic minority community warranting an implementation of collective rights. A baseline budgetary commitment must also be made. In both cases, this would allow for innovation in implementation while ensuring protection from under-enforcement.

Minority law must fill obligations of the past and present, and thus both protect ethnic minority populations and promote their cultures and autonomy. However, as we formulate the minority law for this generation, we must look ahead to the future and ask what the next stage of minority law will be, and what values it will show. Rather than allow ethnic tensions to perpetuate from generation to generation, there is an opportunity to begin a new notion of state-hood that considers multi-culturalism an asset. There is an opportunity in law to anticipate and help shape this notion.