EJM Band 12 | 2019 | Heft 1-2 | S. 83–112
Europäisches Journal
für Minderheitenfragen
Minority Cultural Autonomy
in Slovenia, Croatia and Serbia:
A Real Opportunity for Cultural Survival
or a Right Void of Substance?
Athanasios Yupsanis
Abstract: The minority cultural autonomy model, as firstly theorized by the eminent Austro Marxists Karl Renner and Otto Bauer, is said to guarantee, if properly implemented,
minority protection and state stability. For a variety of reasons this model is clearly overrepresented in the region of the former “Socialist Federal Republic of Yugoslavia”, mostly in
Slovenia, Croatia and Serbia. Its effectiveness, however, in minority protection in the area
is under question. In some cases the right to self-proclamation in order to be registered in
minority electoral catalogues is compromised (Slovenia e. g.) or partly violated (Serbia e. g.), in
others the minority councils merely have a decorative ‘advisory’ role (Croatia, e. g.) and enjoy
but an insufficient legitimacy due to their partial indirect election (Serbia e. g.), while in all
cases they have no legislative or taxing powers and enjoy inadequate state funding. In such
circumstances, if the model is to make any significant contribution to minority protection it
has to be improved in the direction the Austro-Marxists proposed and the Advisory Committee of the Framework Convention for the Protection of National Minorities has recently
opined. Otherwise, it would be better to abandon the term as an analytical tool since in its
present forms it offers autonomy only by euphemism, serving more as a state strategy for
minority patronage than as an effective device for minority protection.
Keywords minorities; cultural autonomy; Slovenia; Croatia; Serbia.
Athanasios Yupsanis, LL.M, PhD., Aristotle University of Thessaloniki, University Campus 54124 Thessaloniki.
Contact: thayup2@gmail.com
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Athanasios Yupsanis
1. Introduction
The concept, content, history, and pros and cons of non-territorial cultural autonomy arrangements for minorities have been at the focus of a slowly but steadily growing number of academic publications the last fifteen years.1 At the same time a number of states
from the former U. S. S. R. (Estonia, Latvia, the Russian Federation, Ukraine e. g.)2, Central
(Hungary e. g.) and Southeastern Europe (Slovenia, Croatia, Serbia e. g.) have adopted in
their constitutions and in their ordinary national legislation specific regulations granting
cultural autonomy to all or some of their minorities.3 Also, state officials, civic activists and
minority experts increasingly refer to this model, while monitoring bodies, such as the Advisory Committee (ACFC) of the Framework Convention for the Protection of National
Minorities (FCNM), positively respond to the emerging agenda in their commentaries.4 In
legal and political theory studies this interest is attributed to the potential benefits that the
non-territorial cultural autonomy arrangements are held to have on the one hand in facilitating the cultural survival of minorities in the larger society and on the other in ensuring
state stability.5 In this context, the non-territorial cultural autonomy model is alleged to have
some advantages over the various forms of territorial autonomy, leading scholars, like Smith
and Cordell, to argue that it “merits far greater attention than it has received hitherto, especially as regards the practicalities of implementing this novel scheme.”6
The cultural autonomy idea, as this was first elaborated in comprehensive fashion by the
eminent Austro-Marxists Karl Renner and Otto Bauer at the turn of the 20th century, was
not unknown to the leading elites of the former “Socialist Federal Republic of Yugoslavia”
(SFRY).7 Indeed, the 1974 Federal Constitution, which has been praised for making, at least
in theory, “the Yugoslav national minorities some of the most emancipated minorities in
Europe, as far as their constitutional, cultural, language, economic and political rights were
concerned”,8 was formulated to a large extent by the ex Vice President of the Federation and distinguished jurist, Edvard Kardelj, who drew on the traditions of Leninism and
Austro-Marxism, combining elements of the principle of territoriality and the principle of
personality.9 In such a light, Articles 245–246 of the Constitution proclaimed the equality
of all ten nationalities [i. e. national minorities], Albanians, Bulgarians, Czechs, Hungarians
1
2
3
4
5
6
7
8
9
See for example Nimni 2005; Roach 2005; Smith/Cordell 2008; Nimni/Osipov/Smith 2013; Malloy/Palermo 2015; Malloy/Osipov/Vizi 2015.
See Yupsanis 2016.
See Smith 2013, 27–28, 49 (note 2).
See Osipov 2010, 28 (notes 3 and 4).
Prina 2013, 1–2.
Smith/Cordell 2007, 342.
Layton 1995, 125.
Gasinski 1980, 31. For a totally opposite view arguing that the minority constitutional guarantees were “empty propaganda slogans” see Arday 1996, 473.
König 2001, 6.
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Italians, Romanians, Ruthenians, Slovaks, Turks and Ukrainians [and practically of the two
ethnic groups, the Vlachs and the Romani], with the six constituent nations, Croatians,
Macedonians, Montenegrins, Moslems [in a national sense since 1968], Serbs and Slovenes,
as well as the equality of their languages and scripts.10According to Article 247 each nationality had the right to use freely its language and alphabet, to develop its culture and to set up
organizations to do so.11 On the individual level the 1974 Federal Constitution recognized
a right to self-identification by stating in Article 170 that citizens would be guaranteed the
right to opt for a nation or a nationality and to express their national culture, and also the
right to the free use of their language, culture and alphabet.12 Especially as regards as the
members of nationalities, Article 171 granted them the right to use their language and script
in proceedings before state agencies and organizations exercising public powers, as well as
the right to instruction in their own language.13 In an analogous spirit the republics adopted
their own constitutions, which resembled the federal one in many respects as far national
minority rights are concerned, with additional detail tailored to each republic’s specific situation.14
Following the disintegration of the SFRY it came as no surprise that some of the successor Yugoslavian states, namely Slovenia, Croatia and Serbia,15 have adopted several ele10
11
12
13
14
15
Szerbhorváth 2015, 59.
Dimitrijević 1991, 81.
Várady 1993, 373.
Várady 1997, 18.
Tollefson 1980, 508.
As regards as the rest of the successor states of the former SFRY, while the FYR of Macedonia and Kosovo
have adopted some elements of non-territorial minority protection in their national legal order, these do not
resemble in any sense the original Austro-Marxist model and thus will not be examined. See Andeva 2013a,
203–204, who observes that the cultural autonomy model can not “be found as such in the case of Macedonia”, for inter alia the established commissions for relations between the different ethnic communities do
not constitute autonomous, sovereign corporations/minority councils as the original Austro-Marxist idea
required. As far as Kosovo is concerned, Malloy 2009, 668 comments that although its Constitution entails
extensive community rights it “offers little in terms of NTA” (non-territorial autonomy). In fact, the armed
conflicts that took place in these two countries led their minorities to concentrate geographically, thus minority policies focus on decentralization by empowering the municipal level of governance rather than on cultural
autonomy arrangements, see Mihailović 2017, 62. Next, concerning the case of Montenegro, while article 33
of its 2006 Law on Minority Rights and Freedoms stipulates the establishment of minority councils, these are
composed to a significant degree of ex-officio members, lack work programs and financial plans, and merely
have an exclusively consultative role, since they can only “submit proposals” and “deliver opinions”; they are
thus considered even by their members to be non-governmental organizations with no real decision-making
powers, see ACFC/OP/II(2013)002, paras. 11, 193–194. Finally, the same observations hold true to an even
greater extent for the State of Bosnia and Herzegovina (BiH). Although its 2003 Law on the Protection of
National Minorities provides in articles 21–22 for the establishment of a Council of National Minorities and
also in article 23 for the setting of analogous national minority councils as advisory bodies to the parliaments
of the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS), these bodies totally lack
legitimization because their members are not directly elected but are appointed through inadequately transpar-
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ments on paper and some in practice of the cultural autonomy model. The purpose then
is to explore the scheme’s functionality as a tool of minority cultural identity protection in
the area and evaluate its practical contribution to the accommodation of ethnic diversity. To
this end the features of the concept are firstly described in order to obtain as precise a picture of its core elements as possible. Next, given that there is no right to cultural autonomy
for minorities in international law16 and consequently there is hardly any case law17 on the
issue to be used as a reference point, the analysis is based on the study of the relevant constitutional and ordinary law provisions of the national legal orders of the aforementioned
states, which are systematically then compared to the previously described features of the
ideal Austro-Marxist model. In this vein, states’ reports and practice, monitoring bodies’
concluding observations, especially the opinions of the ACFC, on the implementation of
the norms are also examined.
The overall assessment illustrates that with the partial exception of Slovenia’s minority
cultural autonomy settlement, which however faces practical limits and is granted only to
its ‘autochthonous’ Italian and Hungarian communities but not to the rest of its minorities, the minority cultural autonomy arrangements in the examined countries are somehow
connected by a common thread: they are far from the original Austro-Marxist conception.
In general, their democratic legitimacy is under question, they do not enjoy clear public
legal status, they lack decisional powers, have no exclusive jurisdiction on minority cultural
affairs, their competencies are at best vague, they are not empowered with legislative powers
in the area of their duties, they cannot levy taxes on their members and have but inadequate
funding from the concerned states. In this light, if the relevant cultural autonomy regimes
are to be of any meaningful value to the minorities concerned they have to be advanced in
the direction that the ACFC suggests, that is they must acquire clear legal public status, role
and competences, decisive authority in their field and sustainable state funding. Otherwise, it
would be preferable to abandon the term as an analytical tool, since the relevant regimes in
the area offer autonomy only by euphemism. As Alfredsson correctly points out “we should
call the rights offered by their correct names and not try to advance their image by doubtful
labeling.”18 After all, as Osipov notes, it is possible to do without the specific notion and
16
17
18
ent processes by the legislative bodies of BiH, FBiH and SR, which do not comprise minority representatives.
Furthermore, they have no decisive jurisdiction on minority cultural affairs at all and their funding is at best
insufficient. In this context, “[a]ll councils have failed to provide any comments or input into draft laws, nor
have been asked by the governmental authorities to do so. The councils have never given any opinions, advice
and proposals on any legislative acts to the parliaments and other governmental bodies” (Corni 2016, 67–68;
71–72; 78–81).
Kymlika 2007, 381.
Osipov 2011, 397, 409.
Alfredsson 1993, 54.
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87
articulate arguments for minority protection with tools that are already in place,19 as for
example the ordinary minority cultural associations or the local self-administration bodies.
2. The Concept of Cultural Autonomy
Although there is no officially adopted legal definition of the notion of ‘cultural autonomy’,
a working one given by Eide and reproduced by several scholars describes it “as the right
to self-rule, by a culturally defined group, in regard to matters which affect the maintenance
and reproduction of its culture”.20 Under a more specific prism, Osipov observes that there
exist two main approaches to the theoretical understanding of the concept that do not
contradict each other and do partly overlap. The first one conceives it as a general principle
according to which an ethnic group enjoys (or should enjoy) a certain degree of freedom
in handling its cultural affairs through a variety of institutional settings (power sharing or
consociational models e. g.), while the second interprets it as “a specific form of self-governing ethnicity-based organization endowed with certain public functions and entitled to
public resources.”21
The latter, more comprehensive scheme owns its origins to the relative ideas of the
Austro-Marxist school of thought of the late 19th century, which tried to de-politicize and
de-territorialize the national question. As Renner put it: “An Austria can be created in which
all nationalities govern and administer themselves, in which they deal with their nationally
specific affairs alone and their common affairs together.”22 In essence, Renner proposed
that by treating the various nationalities living in a common polity as corporate entities
regardless of where their members resided, the struggle for control over territory could be
disposed of and the different ethnic groups could peacefully share the same geographical
space, while at the same time they could have some degree of control over matters that
affect their culture, language and traditions.23
His proposal was based on the personality principle, according to which all members
of a minority have the right to self-identify or not with their perceived group when they
reach voting age.24 This self-proclamation takes place through registration to special minority lists,25 that constitute the basis for the elections of Cultural Councils. Thus, the model
presupposes a democratic setting as it is based on individual consent to belong and internal
19
20
21
22
23
24
25
Osipov 2013a, 9.
Eide/Greni/Lundberg 1998, 252.
Osipov 2013b, 9. It should be noted that Osipov prefers the term ‘non-territorial autonomy’ as being the
broadest and more neutral.
Renner 2005, 20.
De Villers 2014, 107.
Roach 2004, 99.
Poláčková 2015, 53.
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Athanasios Yupsanis
democracy.26 Indeed, as Nimni observes, this is a significant differential element from past
non-territorial patterns of diversity management, like the millet system of the Ottoman
Empire, which lacked democratic legitimization.27 The councils are officially recognized as
legal persons bearing legal personality, as collective juridical subjects in the constitutional
order,28 a significant fact that differentiates them from other associations of private nature
(NGOs e. g.),29 and are considered representative organs of the cultural communities. Their
jurisdiction is non-territorial, meaning that it extends to all persons registered as belonging
to the minority regardless their place of residence in the state territory.30 In this context,
they are endowed with exclusive governmental powers over the issues of minority “education, culture, use of minority language, religion and other matters, forms of cultural expression”31 and can impose taxes on the minority members, while they also have the right to
ask for financial support from the central authorities.32 Indeed, state financial support is of
crucial importance since the lack or inadequacy of it makes cultural autonomies “inherently
weak, if [not] non-existent”.33 In all, the core features of the cultural autonomy model are:
a) the right of individuals to ethnic self-identification upon voting age (personality principle),
b) the establishment of a special minority register in which the self-proclaimed members
voluntarily enter their names and which are then used as a basis for electing the cultural
councils,
c) the election and establishment of minority cultural councils and cultural self-governments,
d) the organization and recognition of the aforementioned institutions as non territorial
public law corporations endowed with collective rights and segmental sovereignty over
the minority cultural affairs,
e) the entitlement of the cultural autonomy bodies with legislative powers in their field
of their responsibility as well as with tax-raising capabilities over their members for the
backing of the cultural institutions and services, and
f) the provision for state funding for the sustainability of the cultural autonomy regimes.
Having thus identified the constituent elements of this ethnic diversity accommodation
scheme, it is easier to compare it with the cultural autonomy regimes enacted in the examined countries in order to assess the extent of their compliance with it as well as their real
effectiveness in the protection and promotion of minorities’ cultural life.
26
27
28
29
30
31
32
33
Chouinard 2014, 143.
Nimni 2008, 14.
Bowring 2005, 162.
Quer 2013, 87.
Coakley 1994, 300.
See The Lund Recommendations 2000, 50 (Chap. III, para. 18). See also ACFC/44DOC(2012)001rev., para. 90.
Papagianni 2006, 53.
Malloy 2015, 8.
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3. Slovenia
Slovenia was the first country in Southeastern Europe to introduce constitutional and ordinary law legislation, namely the “Law on Self-Governing Ethnic Communities” of 5 October 199434 and subsequently some ninety other legal acts and regulations, on minority rights,
that entail elements of cultural autonomy,35 though the specific term is nowhere to be found
in the relative norms. The beneficiaries of the Slovenian type of autonomy model are, according to Article 64 of the 1991 Constitution, the members of the ‘traditional’/‘historical’
Italian and Hungarian “autochthonous national communities”, numbering according to the
2002 census 6243 and 2258 persons respectively. 36 Special provision has also been made in
Article 65 of the Constitution for the rights of the Romani community, numbering according to the aforementioned census 3246 individuals, although officially it “does not enjoy the
status of a national minority” but that of “an ethnic community or a minority with special
ethnic characteristics”.37 This differentiation means in practice that the ethnic Roma have
lesser rights than the ethnic Hungarians and Italians:38 for example, they do not enjoy direct
representation in the National Assembly. Besides these three constitutionally recognized
communities there exist the more numerous so-called ‘new minorities’, namely groups from
former Yugoslavia, such as the Serbs (38,964), the Croatians (35,642), the Bosniaks (21,542),
the ‘Muslims’ (10,467), the Albanians (6186), the Macedonians (3972) and the Montenegrins
(2667), who do not enjoy any official status as minorities.39 Moreover, there are smaller
groups, such as the Germans (499), who seek legal recognition as an ‘autochthonous’ national minority in order to have their language and culture better protected.40
The preferential treatment of the Hungarian and Italian communities has its reasoning
both in a historical background of mutually undertaken minority obligations through bilateral agreements between Slovenia with Hungary and Italy respectively and in an expectation
on the part of the Slovenian state and society for an analogous reciprocal treatment of the
Slovenian minorities in the neighboring states which are kin states to Slovenia’s autochthonous national communities.41 In this context, the special position of the latter is well
established in several constitutional stipulations. Thus, Article 64 provides inter alia that, in
34
35
36
37
38
39
40
41
The Law is reproduced in English in the first report of Slovenia to the ACFC, see, ACFC/SR(2000)004, 90–94.
Bebler 1996, 152.
The data of the census are reproduced in English in the second report of Slovenia to the Human Rights
Committee (HRC) of the International Covenant on Civil and Political Rights (ICCPR), see, UN Doc.
CCPR/C/SVN/2004/2, para. 279. For newer data see Pan/Pfeil/Videsott 2018, 162–163.
See ACFC, GVT/COM/INF/OP/ I(2005)002, 2, 5.
Zorn 2009, 211. According to the state official position “the Italian and Hungarian national communities enjoy special rights, [while] the Romany community is partly specially protected”, UN Doc. CCPR/C/
SVN/2004/2, para. 272.
UN Doc. CCPR/C/SVN/2004/2, para. 280.
ACFC/OP/III(2011)003, paras. 29, 31.
Smejkalová 2008, 9.
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order to exercise their rights, the members of these communities are granted the right to
set up their own self-governing communities in the geographic areas where they live. On
the proposal of these self-governing national communities, the state may authorize them
to perform certain functions under national jurisdiction, and shall provide funds for the
performing of such functions.42
In implementation of the aforementioned constitutional guarantee, the Slovenian State
adopted the 1994 Law on Self-Governing Ethnic Communities. According to Article 1 of
the Law, the members of the Italian and Hungarian minorities have the right “to establish,
in regions of their autochthonous settlement, self-governing ethnic communities”, while in
ethnically mixed areas they have the right to found municipal self-governing ethnic communities (art. 6), that integrate into Italian or Hungarian self-governing ethnic communities respectively (art. 9). Individual statutes of municipalities define the relevant ethnically
mixed areas composed of those settlements in municipalities where members of the Italian
and Hungarian live autochthonously. Hungarian settlements exist in the municipalities of
Hodoš/Hodos, Šalovci, Dobrovnik/Dobrovnak, Lendava/Lendva and Moravske Toplice,
and Italian in the municipalities of Koper/Capodistria, Izola/Isola, Piran/Pirano, and in the
newly established municipality of Ankaran/Ankarano. In all these settlements, the Hungarian and Italian minorities have formed municipal self-governing ethnic communities.43 These
communities are public legal persons (article 2) – which according to a certain view means that
they “have the status of a “government” and their decisions are legally enforceable under
public law, and not as a mere contract under private law”44 – performing inter alia (art. 3) the
tasks of a) deciding autonomously on all matters within their competence, b) giving consent to matters concerning the protection of the rights of the minorities, and c) submitting
proposals to competent bodies.45 Also, they can incite and organize cultural research, set up
organizations and public institutions and participate in the preparing of educational programs (art. 4).46 The highest body of the municipal self-governing ethnic communities is the
(municipal) Council of the self-governing ethnic community (art. 7), while at the national
level the highest body of the self-governing ethnic community is the (pan-national) Council
of the self-governing ethnic community (art. 9). In the first case the members of the Council are elected by the citizens – minority members who are registered in a special municipal
register (art. 8) and vote in direct elections that are held simultaneously with the elections
for the bodies of self-governing local communities.47 Regarding the criteria for entry into
the special voting register, the Constitutional Court opined that the individual’s self-procla42
43
44
45
46
47
Naamat/Osin/Porat 2012, 422.
Komac/Roter 2015, 101–102.
De Villiers 2012, 178. For a less enthusiastic presentation of the situation arguing that in reality, these institutions have little political power to materialize their opinions and suggestions to the State see Komac 2002, 25.
Lipott 2013, 74–75.
Mlinar 2011, 13.
See Petričušić 2004, 6.
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mation as a member of the autochthonous Italian or Hungarian ethnic community cannot
be decisive. Instead, the Court ruled, the membership issue is a matter to be determined by
the community itself – namely by a three member commission that represents it – on the
basis of objective legal criteria48 (long-lasting ties with the community, concern for the preservation of the relevant minority identity, family relations with a person belonging to the
community e. g.).49 This is argued to restrict the free choice of identity and leave space for
arbitrariness, since the committee can exclude certain individuals without solid grounds.50 In
the case of the pan-national Councils, these are established indirectly by the members of the
municipal councils. The Councils are competent at municipal and national level respectively
to adopt the statute and other regulations of the self-governing ethnic community, as well
as the financial plan and the final accounts, to nominate the officials of the self-governing
ethnic communities and perform any other task arising from the statute (art. 10).51 Finally,
regarding the crucial matter of funding, Article 18 stipulates that the financial means for the
activities of municipal self-governing bodies are provided by the municipal budget, while
for those of the self-governing ethnic communities by the state budget.52
A very important aspect of this autonomy model is the recognition of a broad range
of minority participatory rights. Firstly, as Article 15 of the 1994 Law requires, state bodies are obliged to acquire the preliminary opinion of the governing bodies of the national
communities on matters concerning the status of their members.53 Further, in accordance
with Article 64 of the Constitution, the “[l]aws, regulations and other general acts that
concern the exercise of the constitutionally provided rights and the position of the national
communities exclusively, may not be adopted without the consent of representatives of
these national communities.”54 This provision, in combination with both Article 80 of the
Constitution providing for a reserved seat in the National Assembly for each of the Italian
and Hungarian national communities and Article 39 of the 1994 Law establishing at least
one reserved seat in the municipal councils for the aforementioned communities in the
ethnically mixed areas, gives the representatives of the specific communities the right, on
paper at least, to veto all decisions of the legislator (from local to state level) in matters that
relate to their special rights.55
The Slovenian minority protection system in general has been positively commented by
several scholars, who have noted that, taking into account the protection provided to the
Hungarian and Italian communities and compared to the other Council of Europe and EU
48
49
50
51
52
53
54
55
ACFC/SR(2000)004, paras. 41–43; Komac/Roter 2015, 106–107.
Salat 2015, 256.
Korhecz 2002, 177–178, 181.
Korhecz 2002, 176–177; Komac/Roter 2015, 101.
Andeva 2012, 7.
ACFC, GVT/COM/INF/OP/II(2005)005, 16, 28.
Mancini/De Witte 2008, 255.
Šabec 2006, 132.
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member states, Slovenia “could be considered a strongly multicultural state”56 that has enacted “very broad minority protection.”57 This is also confirmed by a recent survey concerning the Hungarian minority in which three out of five Hungarians defined the Slovenian minority protection regime as very good or even excellent and stated that they feel overall well
protected.58 On the other hand, one should keep in mind that these far-ranging provisions
are only guaranteed for the two communities and not for the other minorities.59 The Roma,
for instance, continue to face, despite the several positive measures taken to the contrary,
prejudice and discrimination in many fields, including access to housing and health services,
employment and education.60 Regarding the specific regime of self-governing communities,
the ACFC has noted in its first opinion that it allows for a high level of participation, giving
wide powers to the Italian and Hungarian communities in the spheres of culture, education, research, publishing and economic life, while it also provides for substantial funding.61
However, representatives of the Hungarian and Italian communities have claimed that their
voices are insufficiently heard in public affairs, since the constitutional right to veto can
be invoked only in relation to legal acts that concern exclusively their rights, while their
influence on other, somewhat fragmented and dispersed among various texts, provisions
likely to affect their rights is limited, given that their opinions are, in such cases, of advisory
character only.62 The ACFC has echoed these allegations in its third opinion, observing that
despite the fact that the Hungarian and Italian minorities continue to have good possibilities for participation in public affairs at local level in the “ethnically-mixed areas”, “their
involvement in policy-making at central level remains insufficient…”63 According to Salat
the arrangement is deemed unsatisfactory by the two communities concerned, since their
participation in decision making is rather symbolic and the indicators of bilingualism continue to diminish.64 Under a similar prism, Komac and Roter note that these two “minorities
are increasingly disappointed with how this ambitious model works in practice”,65 since their
participation in public affairs tends to be more declaratory, and not very effective.66 On the
other hand, the same critical scholars do not deny that the “autonomy arrangement has
enabled these two minorities to organize politically and to develop in meaningful actors that
56
57
58
59
60
61
62
63
64
65
66
Sardelić 2012, 105.
Klemenčič 2006, 339.
Lipott 2013, 85.
Gál 2000, 8 ; Salat 2015, 252,
UN Doc. CCPR/CO/84/SVN, para. 17; UN Doc. E/C.12/SVN/CO/1, para. 11; UN Doc. E/C.12/SVN/
CO/2, para. 11.
ACFC/INF/OP/I(2005)002, paras. 33, 69–72, 102.
ACFC/INF/OP/II(2005)005, para. 167.
ACFC/OP/III(2011)003, para. 125.
Salat 2015, 263.
Komac/Roter 2015, 97, 111.
Komac/Roter 2015, 113.
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co-decide on significant issues to them and their local environment preserving thus their
cultural and linguistic identity amidst their decreasing numbers and ageing population.”67
Concluding, minority protection in Slovenia contains several aspects of the cultural autonomy idea, such as the recognition of the Hungarian and Italian ethnic communities as
public legal persons endowed with collective rights and decisional powers up to the level
of consent on the cultural field and the establishment of minority electoral registers and
lists of minority candidates for the election of the municipal Councils of the self-governing
ethnic communities as well as provision for state funding, which offer to minority members
considerable safeguards for the enjoyment of their cultural rights. Still, some crucial ingredients of the original Austro-Marxist recipe are absent, since the core element of the right
of minority members to their self-identification has been compromised, while the self-governing communities seem to lack any law-making and tax-raising powers. In practice, then,
Slovenia accords a less cohesive cultural autonomy arrangement than the original proposal,
which is, however, even in this form, comparatively stronger than the similar settlements
established in the area and examined below.
4. Croatia
Croatia along with Slovenia pioneered in adopting, since the very early 1990 s, legislation explicitly referring to the notion of cultural autonomy. Specifically, under the almost identical
wording of the common Article 15 of both the 1990 and the amended 2010 Constitution,
the members of minorities are “guaranteed freedom to express their nationality, freedom
to use their language and script, and cultural autonomy”.68 The Preamble of the 2010 Constitution specifies the minorities whose members are entitled to the aforementioned rights
by declaring the Republic of Croatia as “the nation state of the Croatian nation and the
state of the members of its national minorities: Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians, Ruthenians, Bosniaks, Slovenians, Montenegrins,
Macedonians, Russians, Bulgarians, Poles, Roma, Romanians, Turks, Vlachs, Albanians and
others…”69
In implementation of Article 15 of the Constitution and in fulfillment of the commitments undertaken by the Croatian State in the framework of the Stabilisation and Associa67
68
69
Komac/Roter 2015, 107–108.
MIN-LANG/PR (99) 3, 5.
Horvat 2013, 51. According to the last (2011) census the demographic size of the minorities comes as follows: Serbs, 186,633, 4,36 %, Bosniaks, 31,479, 0.73 %, Italians, 17,807, 0.42 %, Albanians, 17,513, 0.41 %,
Roma, 16,975, 0.40 %, Hungarians, 14,048, 0.33 %, Slovenians, 10,517, 0.25 %, Czechs, 9641, 0.22 %, Slovaks,
4753, 0.11 %, Montenegrins, 4517, 0.11 %, Macedonians, 4138, 0.10 %, Germans, 2695, 0.07 %, Ruthenians,
1936, 0.05 %, Ukrainians, 1878, 0.04 %, Russians, 1279, 0.03 %, Poles, 672, 0.02 %, Jews, 509, 0.01 %, Romanians, 435, 0.01 %, Turks, 367, 0.01 %, Bulgarians, 350, 0.01 %, Austrians, 297, 0.01 % and Vlachs, 29. See
Hoh 2015, 77–78 and Pan/Pfeil/Videsott 2018, 69–70.
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tion Agreement with the EU, the government passed the Constitutional Law on the Rights
of National Minorities in the Republic of Croatia of 13 December 200270 that replaced
the previous 1991 Constitutional Law on Human Rights and Freedoms and the Rights of
Ethnic and National Communities or Minorities. Article 7 of the Law grants these groups a
broad range of rights including inter alia “cultural autonomy by means of keeping, developing and expressing their own culture, and preserving and protecting their cultural material
heritage and tradition”.71 As the Croatian government stated in its first report to the ACFC,
the minorities’ right to cultural autonomy implies “the preservation of the characteristic
values in the field of culture and the media, as well as the right to education, free use of
their language in private and public life, and the official use of minority languages under
certain circumstances”.72
In this context, the Law introduces through Article 23 two institutions that are familiar
to the cultural autonomy model, the national minority councils and minority representatives
in the self-government units. The criteria whereby a minority can exercise the right to elect
councils or representatives are stipulated in Article 24 of the Law. Thus, the right to elect
national minority councils is exercised in self-government units in which members of a
national minority account for no less than 1.5 % of the total population or in which over
200 members of an individual national minority live in local units, or in which over 500
members of an individual national minority live in regional self-government units.73 If none
of the aforementioned criteria are met in the territory of a self-government unit, and no
fewer than 100 members of a given minority live in such unit, then they are entitled to elect
a representative who has the same rights and obligations as the national minority councils
(art. 34).74 Article 24 further determines that the right to nominate candidates for council
membership or for national minority representative is exercised by national minority associations or not fewer than 20 members of a national minority in the territory of a municipality, 30 in the territory of a town/city and 50 in the territory of a county.75 Members of
councils of minorities and representatives of minorities are chosen directly by secret ballot
for a period of four years.76 The voting right (either to vote or to be elected) is recognized
to those Croatian citizens who are registered in a special electoral register according to their
self-identification as members of national minorities at the state administration offices in
the county where they reside.77 As the Croatian government has stated in its third report
70
71
72
73
74
75
76
77
The Law is available in English at <http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__
Constitutional-Law-on-the-Rights-NM.pdf >.
Tatalović 2004, 121.
ACFC/SR(1999)005, 50.
UN Doc. CCPR/C/HRV/2, para. 600.
ACFC/SR/IV(2014)012, 101.
ACFC/SR/II(2004)002, 16.
Berat 2012, 139.
Petričušić 2015, 59.
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to the ACFC, the opportunity to nominate candidates for councils was taken by 14 minorities, Albanians, Bosniaks, Czechs, Germans, Hungarians, Italians, Macedonians, Montenegrins, Roma, Ruthenians, Serbs, Slovaks, Slovenians and Ukrainians, while the opportunity
to nominate candidates for representatives was taken by a total of 18 minorities: Albanians,
Bosniaks, Bulgarians, Czechs, Germans, Hungarians, Italians, Jews, Macedonians, Montenegrins, Poles, Roma, Russians, Ruthenians, Serbs, Slovaks, Slovenians and Ukrainians.78 Up to
the end of 2013, a total of 243 national minority councils, 145 national minority representatives and 8 co-ordinating bodies – that is joint bodies of two or more minority councils
united for the purpose of harmonization and promotion of their interests (art. 33) – were
registered and issued with decisions on their registration.79
According to Article 31 the rights recognized to these minority councils and representatives are to: a) propose measures to self-government bodies to improve the status of
national minorities in the country or in a specific region, including draft general regulations
governing issues of importance to national minorities to the bodies authorized to enact
them, b) nominate candidates for duties in state administrative bodies of self-government
bodies, c) be informed of any matter to be deliberated by a working body of a self-government representative body concerning the status of minorities and d) provide opinions and
suggestions for broadcasts on local and regional radio and television stations intended for
minorities or broadcasts pertaining to minority issues.80 Furthermore, Article 32 requires
that in drafting its by-laws the administration of the self-government units seek the opinions and proposals of the minority councils regarding issues regulating their rights and
freedoms.81 As one can note, the councils/representatives are purely advisory bodies to the
self-government units, having merely a consultative role as non-profit legal entities; their autonomy is therefore inherently limited.82 Besides their narrow mandate, their funding is left
to self-government units’ and state bodies’ absolute discretionary power, since according
to Article 28 the former “may also ensure funds” and the latter “can also provide”, but the
wording does not suggest that they are obliged to do so.
Attempting an evaluation of the Croatian cultural autonomy model, the verdict seems to
be rather critical. First and foremost, the main inherent weakness of the Law – as the Venice
Commission had very early pointed out – and consequently of the whole established system
is “the absolute lack of governing power of the councils”.83 As Petričušić also observes, the
councils are not “governing bodies which bear autonomous public functions and competences, but are merely endowed with the right to provide opinions and proposals”, and thus
78
79
80
81
82
83
ACFC/SR/III(2009)009, 72.
UN Doc. CCPR/C/HRV/3, para. 232.
See Petričušić 2002–2003, 622; UN Doc. CCPR/C/HRV/2, para. 604; ACFC/SR/II(2004)002, 17.
Dicosola 2017, 91.
Caspersen 2003, 20.
Venice Commission, CDL-AD(2003)9, para. 29.
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their role in the realization of cultural autonomy is marginal.84 In this light, the minority
councils are “rather an example of symbolic representation than a model of participation in
decision making or a realistic form of non-territorial autonomy.”85
Secondly, the lack of substantial financial support from the state and regional and local
self-government authorities undermines the minority councils’ functions.86 As the Venice
Commission had observed, while several articles of the Law provide for financial support to
minorities in order to effectively exercise their rights, they make the entitlement to funding
dependent on the exercise of the State and the local and regional self-government units’
discretion.87 The ACFC also commented in its third opinion that in practice the funding of
the councils, which should be secured through the local self-government units and the state
budget, is inadequate, thus seriously limiting their capacity to operate effectively.88
Thirdly, it is repeatedly mentioned that in many self-government units cooperation between minority councils and local authorities is lacking and that the former are not even
informed of planned discussions and decisions affecting minority interests.89 The ACFC,
commenting on this situation, has noted that “such lack of respect for the councils of minorities on the part of local authorities demonstrates serious disregard for the law, but also
undermines the legitimacy of the councils within their respective minority constituencies.”90
Fourthly, as a result inter alia of the very limited powers given to the minority councils
and consequently of their weak capacities to support the minority cultural needs, minority
members have little interest in taking part in their activities.91 Thus, in all four successive
elections (2003, 2007, 2011, 2015) held for the minority councils, only a very small proportion (between 8 % and 18 %) of persons eligible to vote cast their ballots, a reality that
undermines the democratic legitimacy of the electoral process and of the councils themselves.92
In sum, the Croatian cultural autonomy model resembles the Austro-Marxist proposal
only a little. It does recognize a right to self-identification to minority members, an element
which is partially lacking in the respective Slovenian arrangement, as well as collective minority rights, and provides for the establishment of minority electoral registers and lists of
candidates for the election of minority cultural councils, as the Slovenian model does. How84
85
86
87
88
89
90
91
92
Petričušić 2015, 53, 56, 60.
Petričušić 2015, 67.
Salat 2015, 262.
Venice Commission, CDL-AD(2003)9, para. 28.
ACFC/OP/III(2010)005, paras. 187, 206.
As Petričušić observes, the typical official justification for the non-implementation of the 2002 Law’s provisions is the lack of financial resources or the absence of political will on the part of regional and local
officials, Petričušić 2006, 83.
ACFC/OP/III(2010)005, paras. 28, 188.
Dobos 2013, 167.
Koprić/Klarić 2015, 396–397; ACFC/OP/III(2010)005, paras. 187, 206; Petričušić 2015, 63–64; Dicosola
2017, 92; Salat 2015, 262.
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ever, Croatia’s minority councils have no public law enforcement powers, not to mention
law-making and tax-raising powers, but have merely an advisory role in their field of competence. Plus, their funding is at best inadequate. Thus, Croatia’s minority cultural autonomy
regime has several deficiencies, making it hard to properly satisfy minority cultural interests.
In this context it has been inter alia suggested either radically amending it by endowing the
minority councils/representatives with actual governmental powers in the fields of culture
and education and by securing them real fiscal autonomy, or abolishing them and transferring
their competences to the minority representatives in local and regional self-governing units.93
5. Serbia
The Republic of Serbia is a multiethnic and multilingual country with several minorities,
which differ in size, spatial distribution, cultural and educational characteristics as well as degree of national emancipation.94 According to the 2011 census, in a population of 7,186,162
people, 5,988,150 citizens declared themselves of Serbian ethnicity (83.32 %), 160,346 declined to state any ethnicity, while the rest, approximately 15 % of the population, identified
itself with one of 28 different ethnic identities, namely in order of size, Hungarian, 253,899,
Roma, 147,604, Bosniak, 145,278, Croat, 57,900, Slovak, 52,750, Montengrin, 38,527, Vlach,
35,330, Romanian, 29,332, Yugoslavian, 23,303, Macedonian, 22,755, Muslim, 22,301, Bulgarian, 18,543, Bunjevac, 16,706, Ruthenian, 14,246, Gorani, 7767, Albanian, 5809, Ukrainian,
4903, German, 4064, Slovenian, 4033, Russian, 3247, Egyptian, 1834, Czech, 1824, Askali,
997, Jewish, 787, Greek, 725 Turkish, 647, Shokci, 607 and Tzintzar, 243.95
Moving to the cultural autonomy issue, Serbia has introduced its own form of minority
diversity management based mainly on two legislative pillars, the Law on the Protection of
the Rights and Freedoms of National Minorities (2002)96 and the Law on National Councils
of National Minorities (2009).97 The first was initially enacted as a federal law of the then
Federal Republic of Yugoslavia and became Serbian state law after the dissolution of the
state union of Serbia and Montenegro (2006), and the second was adopted with considerable delay as a necessary supplement for the proper implementation of the former. Accordingly, one can discern two phases in the functioning of the Serbian cultural autonomy
regime, one from 2002 to 2009 and the other from 2009 onwards.
93
94
95
96
97
Petričušić 2015, 66, 68.
Lakcevic/Vukojicic Sevo/Jovanovic 2016, 68.
ACFC/SR/III(2013)001, 13–14; Pan/Pfeil/Videsott 2018, 154–155.
The Law is annexed in the first Report of the then Federal Republic of Yugoslavia to the ACFC, ACFC/SR/
(2002)003, 154–162.
The Law is available in English at <http://www.seio.gov.rs/upload/documents/ekspertske%20misije/protection_of_minorities/law_on_national_councils.pdf>.
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Regarding the first phase there seems to exist an agreement that, despite some positive
elements,98 the national minority councils (NMCs) foreseen and established according to
the stipulations of the 2002 Law proved to be, just as in the Croatian paradigm, nothing
more than “symbolic institutions”.99 The reasons for this verdict are several. To name some
of these, the NMCs were not directly elected but were formed through assemblies of electors.100 This fact undermined their legitimacy.101 Next, the exact status, role and range of
competences of the NMCs were far from clear.102 Furthermore, there has been no stable
and systematic funding by the state, as the establishment of the Fund for National Minorities, which was provided for by the Law, has not taken place.103 For these and other reasons
it has been suggested that the 2002 Law was a “dead letter on the blank paper”.104
Some of the aforementioned deficiencies were satisfactorily confronted by the Law on
National Councils of National Minorities (2009), which signaled the second phase in the
NMCs’ function. In conformity with Article 75, para. 3 of the new Constitution of the
Republic of Serbia (2006) proclaiming that “persons belonging to national minorities may
elect their national councils in order to exercise the right to self-governance”,105 the 2009
Law governs the competences of the NMCs with regard to culture, education, information,
official use of language and script, electoral procedures for the NMCs and their funding, as
well as other issues concerning them (art. 1).106 The Law defines the councils as representative organs of the respective minorities in the fields of culture, education, information in
the language of the minorities as well as in the official use of language and script and endows them with the powers to participate in the decision making processes or decide on the
issues related to these fields and establish educational institutions (art. 11 para. 1), cultural
institutions (art. 16 para. 1), institutions to perform the activities of newspaper-publishing
and radio-television broadcasting, printing and reproduction of the recorded media (art. 19
para. 1), associations, funds, business companies and other organizations in the aforementioned areas (arts. 2 para. 2, 10 para. 6).107
The Law further accords a broad range of rights to the NMCs. In the field of public
education, for example, besides setting up their own institutions, the NMCs can also participate at all levels, from preschool to post-secondary, in the management of schools through
providing proposals, recommendations and opinions to the Ministry and other competent
98
99
100
101
102
103
104
105
106
107
See ACFC/OP/II(2009)001, paras. 90, 191, 184, 274.
Korhecz 2015, 77.
Novaković 2013, 19.
Beretka 2014, 264.
Beretka/Székely 2016, 10; ACFC/INF/OP/I(2004)002, paras. 107, 167; ACFC/OP/II(2009)001, para. 244.
Belic 2012, 67; ACFC/INF/OP/I(2004)002, para. 49; ACFC/OP/II(2009)001, para. 91.
Belic 2012, 69.
Jovanovic 2012, 139.
ACFC/OP/III(2013)006, para. 189; ACFC/SR/III(2013)001, 349.
Surová 2015, 27–28, 34.
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state organs, nominations to school boards and principals as well as syllabi related to minority history, culture, language and textbooks (arts. 12–13).108 Until 2014, the NMCs even
had the right to prior approval concerning the director of schools where in the majority of
classes teaching took place in the minority language (art. 12, para. 5).109 A decision, however,
of the Constitutional Court in 2014 found this provision to be unconstitutional.110
In the cultural sphere, the NMCs can inter alia submit proposals on national symbols,
emblems and holidays of national minorities (art. 10, para. 5), determine the institutions,
manifestations, movable and immovable cultural goods of particular importance for each
respective minority (art 18, paras. 1 and 3), and make suggestions for undertaking measures
for the preservation, recovery and reconstruction of cultural goods (art. 18, para. 5) etc.111
In a more general context and until 2014, the Law gave to the NMCs the opportunity to
submit proposals, initiatives and opinions regarding the issues under their jurisdiction to the
National Assembly, the Government and other state bodies and special organizations, while
the organs referred to had the obligation to ask the NMCs’ opinion112 before considering and
adopting decisions on the issues in the fields of the NMCs’ jurisdiction (art. 25 paras. 1 and 2)
and “conscientiously consider” them, though there was no legal sanction if they did not. Furthermore, the councils had even stronger rights as regards as the bodies of the autonomous
province of Vojvodina and the local self government units, which were obliged to consider
the suggestions, initiatives and opinions of the councils and undertake adequate measures
(art. 26 paras. 1 and 2). The Constitutional Court, however, declared in 2014 these provisions
unconstitutional on the reasoning in the first case that they conditioned and restricted the
autonomy of the parliament and the government in their jurisdiction and work deriving from
the constitution and the laws, and in the latter that they limited the autonomy guaranteed to
the organs of the autonomous province and organs of the self-government units.113
Next, the 2009 Law filled a significant gap as regards as the electoral procedures for the
establishment of the NMCs enhancing at the same time their legitimacy by additionally providing, besides the already established model of their indirect election through assemblies
of electors in conformity with the 2002 Law, for their direct election by individuals who
self-identify with the minority in question (art. 29 para. 1) leaving to minorities the decision
which model to follow (art. 29, para. 2).114 In order for the direct elections to be materialized
the Law provides for the establishment by the competent Ministry of a special minority
electoral register (art. 44, para. 1), which is kept separately for each minority (art 47 para. 3),
where any minority member who is eligible to vote under the Constitution and the relative
108
109
110
111
112
113
114
Purger 2012, 7.
Belic 2012, 16.
Tóth 2017, 234.
Đurić 2012, 148–150.
Smith 2015, 3.
Belgrade Centre of Human Rights 2015, 56, 305; Surová 2015, 35–38, 43.
Zuber/Muś 2013, 55.
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legislation (art. 32 para. 1) may opt voluntarily for registration on it (arts. 32 para. 2, 45,
para. 2, 47 para. 2 and 52 para. 2). Each minority individual may request to be entered into
only one special register (art 47 para. 4). It should be noted, however, that the Law does
not entail a control mechanism for verifying the authenticity of the declarations of the
self-proclaimed minority members. Direct elections, then, of national councils are held if
more than 50 % of the total number of the members of a national minority according to the
latest census are entered in the special electoral list of a national minority before the date of
election schedule, reduced by 20 % (art. 29 para. 3).115 Candidates must be nominated on an
electoral list made by organizations, associations of citizens and political organizations [parties] of the minority concerned (art. 71, para. 1). The list must be supported by the signatures of at least 1 % of minority registered voters and in any case not fewer than 50 of them
(art. 71, para. 2).116 If a national minority is not able to fulfill the conditions concerning
direct elections, as prescribed above, then it can elect a council through an assembly of electors (art. 100, para. 1), an opportunity provided for already in the 2002 Law. In that case the
electors are minority individuals who are nominated by organizations or associations of the
respective minority (art. 101, para. 1), they self-identify as members of the specific minority
and have the support of at least 100 members of that minority (art. 102, paras. 3 and 5).117
Coming to the central issue of the NMCs’ funding, the 2009 Law states that the financial
resources for their activities are provided from the budget of the Republic of Serbia, the
budget of the Autonomous Province of Vojvodina and the budget of local self-government units, donations and other sources (art. 114).118
In the first elections that took place in June 2010, a total of 237,792 citizens voted,
that is 54.5 % of the enrolled minority members (436,344).119 Sixteen minorities, the Albanian, Ashkali, Bosniak, Bulgarian, Bunyevtsi, Vlach, Greek, Egyptian, Hungarian, German, Roma, Romanian, Ruthenian, Slovak, Ukrainian and Czech established their councils
through direct elections, while three others, the Croat, Slovenian and Macedonian, formed
theirs through electoral assemblies.120 In the second elections, which were held in late October 2014, sixteen minorities directly elected their councils, while the Croatians, Macedonians
and Montenegrins formed theirs via electoral assemblies. According to the report of Republican Election Commission, out of the 456,444 registered voters, only 171,799 (37.63 %)
took part in the elections, an admittedly low turnout, which has been mainly, though not
115
116
117
118
119
120
Kókai 2010, 1; ACFC/SR/III(2013)001, 30–31.
Manovich 2014, 21–22.
Novaković/Đurđević 2015, 42.
ACFC/SR/III(2013)001, 352.
ACFC/SR/III(2013)001, 32; Purger 2012, 6.
The National Councils of the Ashkali, Bunjevci and Slovenian national minorities that were elected in 2010
were subsequently dissolved due to their failure to carry out certain basic activities provided for by law,
ACFC/OP/III(2013)006, para. 193.
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exclusively, attributed to the fact that many minority members – as in the case of Croatia
e. g. – do not recognize the NMCs as their representatives.121
The 2009 Law and its regulations for the NMCs contributed, to a degree, positively to
the satisfaction of the cultural needs of the minorities. In this regard, the ACFC welcomed
the enactment of the Law,122 acknowledging that overall it sets up a generous system in
favour of national NMCs, granting them “wide-ranging competences in the fields in which
national minorities may exercise their constitutional rights of self-government, namely culture, education, information in national minority languages and official use of language and
script, as well as establishing electoral procedures for national minority councils and the latters’ funding.”123 The Committee found also that “there is now greater clarity in the funding
available for minority activities. In addition, the level of funding earmarked for the activities
of national minorities has increased.”124
However, the Committee found also a number of flaws in the drafting and conception
of the Law that have led to problems regarding its implementation in practice.125 Firstly,
regarding the election procedure, it commented that sensitive personal data on ethnicity was
reported to have been processed by unauthorized persons and applications for enrolment in
special electoral registers to have been lodged on behalf of third parties without their consent, in breach of the principle of free self-identification.126 Secondly, the Committee noted
that the State Fund for National Minorities was still not operative (as of 2013), suggesting
that this lack may have a disproportionate impact on the manner in which national minorities’
cultural activities are supported.127 Thirdly, the Advisory Committee noticed that the Law
permits only a single NMC per minority giving this institution “an overwhelmingly dominant
role in the realisation of minority rights in Serbia, having in effect become the main channel
of participation for national minorities”.128 This situation, combined with the domination of
some NMCs by minority political parties, poses for the Committee the danger that it may
encourage some political parties “to seek to consolidate their political power through the
national minority councils, rather than focusing their work within national minority councils
primarily on the concerns that these councils are designed to protect.”129
121
122
123
124
125
126
127
128
129
See Belgrade Centre of Human Rights 2015, 50–51, 306; Beretka/Székely 2016, 25, comment that the sharp
decrease might signal the disillusionment of the minority members after the first optimism from the first elections. For a different view arguing that “the number of individuals who have voluntarily enrolled on the separate
minority voting registers indicates that national minorities see the advantages of national councils as forms of
self-governments”, see Salat 2015, 262.
ACFC/OP/III(2013)006, para 189.
ACFC/OP/III(2013)006, paras. 15, 190.
ACFC/OP/III(2013)006, paras. 22, 85.
ACFC/OP/III(2013)006, paras. 15, 190.
ACFC/OP/III(2013)006, para. 191.
ACFC/OP/III(2013)006, paras. 22, 87.
ACFC/OP/III(2013)006, para. 196.
ACFC/OP/III(2013)006, para. 198.
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Concluding, notwithstanding the fact that the 2009 Law clarified to a certain degree
the competences of the NMCs as well as the terms of their funding and enhanced their
legitimacy by providing for the establishment of minority electoral registers for their direct
election,130 it still has several inherent shortcomings and faces difficulties in its implementation. Firstly, the Serbian form of cultural autonomy, though it accords collective minority
rights and provides for minority cultural councils as legal entities, is remote from the original
Austro-Marxist model in a similar way to the Croatian one, that is the minority councils
have no legislative or taxation powers and no decisive authority in the areas of their jurisdiction, since they can only “suggest”, “propose”, “recommend”, “give an opinion” to state
organs in the fields of education, culture, public-service media and use of language.131 They
are merely advisory/consultative organs, with “no real opportunity to influence the decision-making process”.132 Their weak powers were reduced even further after the 2014 decision of the Constitutional Court which declared as unconstitutional a number of the 2009
Law’s provisions, significantly narrowing the NMCs’ competencies in general and partially
in the area of relations with state authorities.133 Secondly, the lack of a procedure to certify
the truthfulness of the self-identification declarations is said to increase the opportunities
for ethno-business, for there is no limit for re-registration in different electoral rolls during
several electoral cycles and also because the registration of minority members was carried
out by the activists of the minority political parties, sometimes without the knowledge or
express consent of the individuals concerned.134 Thus, the Austro-Marxist personality principle is compromised to some degree. Thirdly, the greater ability of minority political parties than unorganized minority members to set lists of candidates for the elections of the
NMCs has politicized the elections, turning them into an additional arena of intra-ethnic
outbidding (“whoever gets to control the national council will be controlling the community”).135 This intra-ethnic competition coupled with the fact that only one NMC is permitted
per minority led to internal divisions within the minorities. Thus, among 19 national councils
ballots in 2010, only one had a single list (the Czechs, “Czechs Together”), while all others
had two or more lists (two for the Albanian, Greek, Egyptian and German NMCs, three
for the Bosnian and Ashkali, five for the Hungarian and Slovak, six for the Ruthenian and
Romanian, seven for the Ukrainian, Bulgarian and Bunjevac, nine for the Vlach and ten
for the Roma).136 This fragmentation is claimed to ease group control, since internally conflicted groups are “obviously less influential politically and internationally and more prone
130
131
132
133
134
135
136
Center for Euro-Atlantic Studies (CEAS) 2013, 10; Beretka/Székely 2016, 11–12.
Purger 2012, 5; Surová 2015, 34–35.
Andeva 2013b, 86.
Tóth 2017, 232, 242–243; Surová 2015, 43.
Beretka/Székely 2016, 23–25; Novaković/Đurđević 2015, 10, 74.
Forum of Ethnic Relations 2014, 12–13; Zuber/Muś 2013, 57–58, 61,63.
Purger 2012, 6–7; Zuber/Muś 2013, 56.
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to be influenced by other actors, including relevant state authorities.”137 Furthermore, the
politicization of the NMCs’ elections may result in the creation of a political climate precluding the exercise of minority rights.138 For example, out of the 35 members of the Roma
Council in 2014, only one was not a party member. This situation led Romani experts to
refuse to work for the Council, while it was reported that Roma community members too
rejected the Council,139 as inter alia the dramatic drop in turnout among in the Roma in the
2014 elections suggests, where only 17,500 voters participated instead of the 30,800 persons
voting in 2010.140 Lastly, the recent reduction of the NMCs’ competencies by the Constitutional Court combined with the strong opposition towards advanced minority protection
by parts of the state’s administration reveals a lack of a holistic strategic approach on the
behalf of the Serbian state regarding the accommodation of ethnic diversity.141 Under this
prism minority representatives, although finding the 2009 Law to be a significant step for
the advancement of minority cultural rights, also argue that its improper implementation
weakens its efficacy.142 Thus, in the present circumstances it seems hard to argue that the
Serbian cultural autonomy regime can, as it stands, successfully guarantee the protection and
preservation of all minority cultural identities.
6. Concluding Observations
Minority cultural autonomy arrangements in Southeastern Europe are to be found exclusively in some of the successor states of the former SFRY. This particularity may be due to
the fact that the right of individual ethnic self-identification and the notion of collective cultural rights, which constitute inherent elements of the cultural autonomy idea, were incorporated into the constitutions of both the former SFRY and its federal constitutive parts.143
From this point of view the post-Yugoslav states were more flexible in adopting this model
compared to other countries of the region (Albania, Bulgaria, Greece e. g.), which do not
accord cultural autonomy to their minorities.144 At the same time this choice is attributed to
the “autonomy-phobia” that exists in the region, especially after the bloody Yugoslav wars,
meaning that this model is preferable to some states because it eases their fears of secession
since it does not touch their territorial set-up as for example territorial forms of autonomy
do.145 Additional factors such as the international community’s pressures for enhanced mi137
138
139
140
141
142
143
144
145
Muś/Korzeniewska – Wiszniewska 2013, 81, 87.
Belgrade Center of Human Rights 2015, 51, 307.
Belic 2012, 97.
Beretka/Székely 2016, 25–26.
Beretka/Székely 2016, 28.
Tóth 2017, 242.
Stanovčić 1992, 371.
Székely/Horváth 2014, 431–432.
Arraiza 2015, 10.
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nority protection146 as a prerequisite for the recognition of these new states’ statehood and
their acceptance in international and regional organizations, their rich ethnic composition,
which calls for an effective ethnic diversity management mechanism,147 and the region’s
historical heritage of the Austro-Marxist legacy may also explain most post-Yugoslav states’
tendency to adopt elements of this model.
Furthermore, the differences found in the existing cultural autonomies in the states
examined could be attributed to the specific historical background of each former constitutive part of ex-Yugoslavia in combination with factors such as the intensity of the recent
ethnic conflict and their present inter-state relations with the kin states of their minorities.
For example, Slovenia’s small-scale ethnic conflict at the beginning of the dissolution of
Yugoslavia, its relatively good relations with Italy and Hungary, and the small size of its
two respective minorities which are thus not considered a threat to its territorial integrity,
can explain the establishment of a slightly stronger cultural autonomy regime. On the other
hand, the bloody war between Serbs, Croats and Bosniaks, the existence of politically conscious compact minorities such as the Serbs in Croatia or the Albanians in Serbia e. g. can
shed light on Croatia’s and Serbia’s preference for toothless cultural autonomy regulations
and implementation defaults.
In this context one can observe that all the cultural autonomy regulations examined
“bear only superficial resemblance” to Renner’s and Bauer’s original concept.148 Contrary to
the Austro-Marxists’ proposal, the existing minority cultural councils in the former SFRY
have no clear legal status and competencies and no decisive authority on their field (cultural
affairs) – Slovenia being to a slight degree and exclusively for its two so-called autochthonous
minorities (Italians and Hungarians) the only exception to the canon in these two respects –
no law-making and tax-raising capabilities and insufficient financial backing. Furthermore,
they lack legitimization either because the right to self-identification is compromised (as for
example in the Slovenian and in some respects in the Serbian case) or because the cultural
councils of some minorities are not directly elected (as in the case of Serbia). Moreover,
their merely symbolic and advisory role is further undermined by serious implementation
problems. All these deficiencies and inconsistencies illustrate that the states are not really
willing to devolve governmental powers and provide for adequate financial assistance to
their minorities in order to make their cultural autonomy truly operational. This conclusion
endorses Osipov’s verdict, drawn on the examination of the minority cultural autonomies in
the Russian Federation, that the rhetoric of collective rights and cultural autonomy is used
by the leading state elites as part of a specific type of minority policy aiming at convincing
146
147
148
Dobos/Tóth/Vizi 2017, 255.
Dobos/Tóth/Vizi 2017, 247.
Smith 2013, 49 (note 2).
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certain target audiences by adopting legislation which accords a symbolic status to minority
organizations but has limited practical value (“systemic hypocrisy”).149
In order then to improve the functionality of the existing cultural autonomy settlements
in the region a reasonable suggestion would be to seek a more comprehensive application
of the original Austro-Marxist model. Indeed, this is what the ACFC opines, without explicitly referring in its wording to the Austro-Marxists but reflecting in substance their ideas.
Specifically, the ACFC has recommended that
[w]here State Parties provide for such cultural autonomy arrangements, the corresponding constitutional and
legislative provisions should clearly specify the nature and scope of the autonomy system and the competencies of the autonomous bodies. In addition, their legal status, the relations between them and other relevant
institutions as well as the funding of the envisaged autonomy system, should be clarified in the respective
legislation.150
Besides appropriate legal standing, clear competences and adequate funding, additional factors recommended for the enhancement of legitimacy, sustainability and effectiveness of
cultural autonomies are the existence of bottom-up activism of minority members, strong
guarantees for democratic and transparent elections, and the elaboration of targeted policy
measures in order to help the ethnic majority understand the necessity of the arrangements.151
Concluding, if one accepts that cultural autonomy, besides its ambiguities, shortcomings
and inadequacies, brings a ‘symbolic recognition’ of the minority cultural identities together
with the enjoyment of some cultural goods,152 it would then be reasonable to suggest that a
better functioning of this model in the aforementioned context and in a spirit of goodwill
on the part of governments would satisfy to a degree the minority cultural needs, contributing at the same time to state and regional stability. If, however, no meaningful change in
this direction is made, as inter alia ACFC has recommended, then it would be preferable to
abandon the rhetoric of the cultural autonomy idea, since in its current form it offers but
an illusionary autonomy serving more as a state policy of minority patronage than a useful
device of minority protection.
Abbreviations
ACFC: Advisory Committee of the Framework Convention for the Protection of National Minorities
ICCPR: International Covenant on Civil and Political Rights
CESCR: Committee on Economic, Social and Cultural Rights
ICESCR: International Covenant on Economic, Social and Cultural Rights
FCNM: Framework Convention for the Protection of National Minorities
FSRY: Federal Socialist Republic of Yugoslavia
HRC: Human Rights Committee
149
150
151
152
See Osipov 2012, 425–442.
ACFC/31DOC(2008)001, para. 136, ACFC/44DOC(2012)001rev, para. 90.
Salat 2015, 270, 273.
Coakley 2016, 182.
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