THE CONSTITUTIONAL COURT OF
THE REPUBLIC OF CROATIA
No. U-I-1203/1999
Zagreb, 3 February 2000
The Constitutional Court of The Republic of Croatia, composed of Smiljko
Sokol, President of the Court, and Judges Velimir Belajec, Marijan Hranjski, Petar
Klarić, Jurica Malčić, Ivan Matija, Ivan Mrkonjić, Jasna Omejec, Emilija Rajić, Vice
Vukojević and Milan Vuković, acting on the proposal of the Italian Union from Rijeka,
represented by Rudolf Frančula, attorney-at-law from Pula, to institute proceedings to
review conformity with the Constitution of the Election of Members of the Croatian
National Parliament Act, at its session on 3 February 2000, rendered the following
RULING
I.
The proposal to institute proceedings to review conformity with the
Constitution of Article 17/5 of the Election of Members of the Croatian National
Parliament Act (Narodne novine, No. 116/99) is hereby not accepted.
II.
This ruling shall be published in Narodne novine.
Statement of reasons
The Italian Union Rijeka submitted, through its representative Rudolf Frančula,
attorney-at-law from Pula, a proposal to institute proceedings to review conformity
with the Constitution of Article 17/5 of the Election of Members of the Croatian
National Parliament Act (Official Gazette of the Republic of Croatia, Narodne novine,
No. 116/99 – hereinafter: Elections Act), because it deems that it has violated the
constitutional guarantees provided in Articles 15 and 45 of the Constitution, the
Constitutional Act on Human Rights and Freedoms and on the Rights of Ethnic and
National Communities or Minorities in the Republic of Croatia (Narodne novine, No.
65/91 - hereinafter: Constitutional Act), and the Agreement on Minority Rights signed
between the Republic of Croatia and the Italian Republic (Narodne novine, No.
15/97, International Agreements - hereinafter: International Agreement) in the way in
which it interprets acquired rights concerning the way iln which minority members
vote – as will be described in more detail below.
They allege that the disputed provision violates the cited provisions of the
Constitution because it does not grant the members of indigenous national minorities
the right to two votes, which they enjoyed by previous regulations, and that this right
emerges from the cited provisions of the Constitutional Act and the International
Agreement.
2
They point out that by the earlier Election of Members of the Parliament of the
Republic of Croatia Act (of 1992), the members of indigenous minorities could vote
both as citizens of the Republic of Croatia and as national minority members, which
means that they were guaranteed so-called positive discrimination in the right to two
votes, one for a candidate who was of a national minority member, and another for a
candidate from party or independent lists.
They consider that they can realize their electoral rights as minority members
and as Croatian citizens in general elections only through “positive discrimination”.
The applicants consider that they have now been put in the position of having
to choose between their civil and political right to vote, and their minority or national
right to representation in the Croatian National Parliament, and are thus prevented
from expressing their political stands and their ethnic affiliation.
They furthermore consider that the Constitution of the Republic of Croatian, in
Articles 15 and 45, guarantees members of indigenous national minorities the right to
two votes.
Furthermore, they add that the Constitutional Act on Human Rights and
Freedoms and on the Rights of Ethnic and National Communities or Minorities in the
Republic of Croatia (Narodne novine, No. 65/91) provides for the above rights.
The applicants also deem that they have the right to two votes on the grounds
of acquired rights, because they enjoyed this right in the Electoral Act that is no
longer in force, and that the right had emerged from the Constitution, the above
Constitutional Act and international agreements, so it should not have been omitted
in the new act.
The proposal is not well founded.
The disputed provision of Article 17/5 reads:
“In accordance with the constitutional principle of equal voting rights, the
members of indigenous national minorities may vote either for a member of
parliament who is a national minority member and who is elected in special
constituencies, or participate in elections on the basis of lists in constituencies.”
Article 15 of the Constitution provides:
“Members of all national minorities shall have equal rights in the Republic of
Croatia.
Members of all national minorities shall be guaranteed freedom to express
their nationality, freedom to use their language and script, and cultural autonomy.”
Article 45/1 of the Constitution provides:
“All Croatian citizens of the Republic of Croatia who have reached the age of
eighteen years shall have universal and equal suffrage. This right shall be exercised
through direct elections by secret ballot.”
3
The Constitutional Act and the International Agreement have no provisions
specifying how to regulate the suffrage of indigenous minority members in order to
protect their minority interests.
Contrary to the applicants’ allegations, the disputed provision of Article 17/5 of
the Electoral Act is not unconstitutional because it is grounded on Article 45/1 of the
Constitution, whereby all Croatian citizens who have reached the age of eighteen are
guaranteed equal suffrage.
This means that the legislator must design an electoral system providing all
Croatian citizens who have the right to vote with one or more votes, depending on
the will of the legislator and the accepted electoral system, but all Croatian citizens
must always have the same number of votes.
The above rule is the result of the constitutional concept whereby the Republic
of Croatia is a multi-party, parliamentary, democratic state founded on the principles
of the sovereignty of the people and representational government (Article 1 of the
Constitution). In accordance with the principle of the sovereignty of the people –
which is accepted in all democratic constitutions, including the Croatian one – all
power in the state derives from the people and belongs to the people. In
constitutional law, the people are the totality or community of all the free and equal
citizens, regardless of national, ethnic and other differences. The people as a
community of citizens realize their power by electing their representatives by general
and equal suffrage. Thus an elected representative of the people is considered to
represent all the citizens of the Republic of Croatia, not only the votes who elected
him/her.
This constitutional concept does not preclude the legislator from passing an
organic law (in the specific case the Constitutional Act on Human Rights and
Freedoms and on the Rights of Ethnic and National Communities or Minorities)
stipulating that minorities shall have a specific number of seats in the House of
Representatives of the Croatian National Parliament. This is the concept of
parliamentary seats reserved in advance and it means that that minorities enjoy
special representation in the national parliament, secured in advance. As a rule
minorities cannot elect their representatives at regular elections, so the election of
minority representatives is separated from the general electoral system. This positive
discrimination for minorities is necessary to protect their minority interests in political
decision-making, regardless of the number of their members, and to allow them to
participate in political power through their special representatives.
In deciding not to accept the proposal to review the constitutionality of the
disputed provision, the Court started from the view that special parliamentary
representation for national minorities can never be achieved through general and
equal suffrage, but always only through special and unequal suffrage for minority
members. However, since the Constitution explicitly prescribes general and equal
suffrage for all Croatian citizens, the principle of positive discrimination in the
Croatian legal system must be kept within the framework given by the Constitution.
In view of the applicants’ allegation that the Electoral Act from 1992 enabled
national minority members to vote both as citizens of the Republic of Croatia and as
4
national minority members, that is, that they had the right to two votes, the facts are
as follows:
National minority members did have the right to two votes in accordance with
this Act, but because of the mixed electoral system then in force (relatively majority
and proportional electoral system), so did all other Croatian voters as well.
Croatian voters who did not declare themselves members of any of the
national minorities with the right to elect members of parliament, cast one vote by the
proportional system for the proposed state lists, and another vote by the relative
majority system for one member of parliament in their constituency according to
place of residence.
National minority members also had the right to two votes, one for any of the
proposed state lists, and another for the proposed national-minority candidate for
member of parliament.
Therefore, the fact that national minority members could dispose of two votes
in 1992 and in 1995 was not founded on the principle of positive discrimination but
emerged from the nature of the electoral system in which all other Croatian voters
also disposed of two votes in elections for the House of Representatives of the
Croatian National Parliament.
Therefore, there are no grounds for the applicants’ allegations that the
disputed Article 17/5 of the Electoral Act violates the acquired rights of national
minorities.
The Constitutional Court of the Republic of Croatia has pursuant to the above
found that the disputed provision does not violate the mentioned provisions of the
Constitution, Constitutional Act and International Agreement, and it has thus ruled as
in the dictum, in accordance with Article 41 of the Constitutional Act on the
Constitutional Court of the Republic of Croatia (Narodne novine, No. 99/99).
The publication of this ruling is grounded on Article 28 of the Constitutional Act
on the Constitutional Court of the Republic of Croatia.
PRESIDENT
Smiljko Sokol, LLD, m. p.