Nation-building, European conditionality and minority rights in the former Yugoslavia.
The role of Constitutional and supranational Courts
Maria Dicosola
FIRST DRAFT
Summary: 1. Introduction. – 2. Multiculturalism vs. nationalism in the countries of Former
Yugoslavia. – 2.b. The national States. – 2.c. The multicultural states: an ideal more than a reality. 3. The process of European integration and minority rights. – 3.a. European conditionality and
minority protection in Slovenia. – 3.b. European conditionality and minority protection in Croatia. –
3.c. European conditionality and minority protection in Serbia. – 3.d. European conditionality and
minority protection in Montenegro. – 3.e. European conditionality and minority protection in
Kosovo. – 3.f. European conditionality and minority protection in Bosnia and Herzegovina. – 3.g.
European conditionality and minority protection in the Former Yugoslav Republic of Macedonia. –
4. Final Remarks.
1. Introduction
In the States that emerged from the break-up of former Yugoslavia, two simultaneous and opposite
processes are open: nation-building and European integration. As a consequence, a number of
problematic issues are arising. In particular, minority rights are a matter of special concern. Their
legal protection, in fact, is usually formally recognized in order to fulfill the standards required by
European conditionality, but opposite nationalistic policies are able to limit their effective
implementation. Could these opposite processes be reconciled by constitutional means?
Constitutional and supranational courts seem to be crucial in this regard.
In my paper, I will analyze cases of conflict between nationalism and EU-oriented minority
legislation, with special reference to political rights, in the countries of former Yugoslavia, focusing
on the role of Constitutional and supranational Courts as possible arbiters and watchdogs of
European and global constitutional values.
2. Multiculturalism vs. nationalism in the countries of Former Yugoslavia
The constitutional history of the countries of former Yugoslavia has always been characterized by
an inherent tension between multiculturalism and nationalism. This led to conflicts based on ethnic
reasons, which Constitutions have tried to solve, with the adoption of institutional solutions with the
aim of accommodating diversity.
In this framework, the ambivalent effects of ethnic federalism, a peculiar form of state that finds in
former Yugoslavia one of the most known examples, are very well known.
The formula of ethnic federalism was introduced in the 1946 Federal People’s Republic of
Yugoslavia. According to this Constitution, Yugoslavia was a federation composed by six republics
– Slovenia, Croatia, Bosnia-Herzegovina, Serbia, Montenegro and Macedonia – and two
autonomous provinces – Kosovo and Vojvodina.

Assistant Professor of Comparative Public Law, University of Bari, “A. Moro”, Italy. maria.dicosola@uniba.it.
1
The federation that was established according to this Constitution was however based on a model
far from those offered by the Western experience of federal states. While, in fact, Western
federations, at that time, were mainly mononational, the case of Yugoslavia was more similar to the
model of the Soviet Union, a pluri-national federation, where «internal boundaries» were «drawn
and powers distributed in such a way as to ensure that each national group» was «able to mantain
itself as a distinct and self governing society and culture»1.
In this system, according to the “Tito formula”, the inhabitants of Yugoslavia were divided into
three groups: nations (narodi), nationalities (narodnosti) and “other nationalities and ethnic
groups”2. The nations were the dominant groups in each republic; nationalities were the groups
which, being a minority in one or more republics, were the majority in another republic or
neighbour State; finally, other nationalities and ethnic groups were minority groups who were not
the majority in any Yugoslav republic or neighbour State. The equality of all the nations,
nationalities and ethnic groups was guaranteed by linguistic and political rights3. With reference to
the first ones, the Constitution provided five official languages – Serbo-Croatian with Cyrillic
scripts, Croatian with Latin scripts, Ljekov Serbo-Croatian, Macedonian and Slovenian – and two
languages in official use, Albanian and Hungarian: all the laws, resolutions and other normative
acts adopted by the Federal Assembly had to be translated into the five official languages. As to the
political rights, all the nations and nationalities were equally represented at the Federal Presidency.
The system was particularly detailed, but it suffered of a lack of implementation: in fact, the citizens
did not have the right to complain before any Court in case of violation of linguistic or political
rights and, due to Tito’s leadership and the prominent role of the League of Communists of
Yugoslavia, it was only formally, but not substantially decentralized. This contradiction emerged as
the system’s worst weakness when Tito died.
2.b. The national States
The weaknesses and the contradictions of ethnic federalism were not able to resist to the death of
Tito. On the contrary, the end of this authoritarian regime proved to be a “Pandora box” of new and
conflicting nationalisms. This led, as it is very well known, to one of the bloodiest conflicts of the
European history, which ended with the political fragmentation of Yugoslavia.
After the end of the Balkan Wars, five new States were established. The Federal Republic of
Yugoslavia, comprising Serbia and Montenegro – under the leadership of Milošević until the 2000
elections – Croatia, Slovenia, Macedonia and Bosnia-Herzegovina4. In 2003, following Milošević
defeat, the Federal Republic of Yugoslavia was replaced by the Union of Serbia and Montenegro.
1
W. Kymlicka, Multi-nation Federalism, 2007.
On the system for the protection of minorities in the Federal People’s Republic of Yugoslavia, see H. POULTON,
Linguistic Minorities in the Balkans (Albania, Greece and the Former Yugoslavia), in C. BRATT PAULSTON, D. PECKAM
(edt.), Linguistic Minorities in Central and Eastern Europe, Clevedon – Philadelphia – Toronto – Sydney –
Johannesburg, Multilingual Matters Ltd., 1998, p. 41-44; A. LIEBICH, Les minorités nationales en Europe centrale et
orientale, Chêne-Bourg/Genève, Georg Editeur, 1997, p. 93-96; J. KRULIC, Le devenir des peuples de la Yougoslavie et
es Balkans, in, Les minorités de l’Est européen. A la lumière des récents changements de régimes et leur impact sur
l’immigration en Europe. Actes du colloque organisé par le « Groupment pour les droits des minorités » des
Communautés européennes les 25 et 26 mars 1992, p. 86-89; L. COHEN, P. WORWICK, Political Cohesion in a Fragile
Mosaic. The Yugoslav Experience, Boulder, Colorado, Westview Press, p. 163-166 (Appendix A: The Ethnic
Composition of Yugoslavia); M. PAUNOVIĆ, Nationalities and Minorities in the Yugoslav Federation and in Serbia, in J.
PACKER, K. MYNTTI (edt.), The protection of Ethnic and Linguistic Minorities in Europe, Institute for Human Rights,
Åbo Akademi University, 1993, p. 145-165.
3
In particular, on language rights, see S. DEVETAK, Equal Rights of Languages and Scripts in the Work of Yugoslav
Federal Agencies, in T. VEITER (edt.), Féderalisme, Régionalisme et Droits des Groupes Ethniques en Europe, Wien,
Wilhelm Bramüller, 1989, p. 74-89; V. KLOPCIC, Le droit des langues dans l’ex-Yougoslavie, in H. GIORDAN (edt.), Les
droits des minorités en Europe. Droits linguistiques et droits de l’homme, Paris, Kimé, 1992, p. 325-341.
4
On the constitutional organisation of the new States of Former Yugoslavia, see P. NIKOLIC, I sistemi costituzionali dei
nuovi Stati della ex Jugoslavia, Torino, Giappichelli, 2002.
2
2
The Constitutional Charter provided for a confederation, where the secession of the two republics
was not allowed for the following three years. As soon as the deadline established by the
Constitutional Charter expired, in 2006, Montenegro proclaimed independence 5 . In Kosovo, in
1999, the UN established an international protectorate, intended to be a temporary solution before
reaching an agreement on the province’s final status. On February 17, 2008, given the failure of the
negotiations in order to define the institutional position of Kosovo, the Assembly of the province
proclaimed independence. Nevertheless, it is very problematic to identify Kosovo as an independent
and sovereign State, since so far a number of States, among which, first of all, Serbia, have refused
to recognise it.
Today, in a still open nation-building process, Slovenia, Croatia, Serbia and Montenegro are
strongly strengthening their sovereignty: this emerges clearly from the definitions enshrined in the
Constitutions, usually defining them as national states.
The preamble of the 1990 Croatian Constitution, for example, explicitly defines Croatia as a
national state, stating: «The millenary identity of the Croatia nation and the continuity of its
statehood, confirmed by the course of its entire historical experience within different forms of states
and by the preservation and growth of the idea of a national state, founded on the historical right of
the Croatian nation to full sovereignty […]» 6 . History, therefore, is considered as the main
identification factor of the Croatian nation: the preamble of the Constitution, in fact, is called
Izvorišne osove (historical foundations). Furthermore, the same text summarizes the main historical
facts supporting, in the VII century, the determination of the people to found Croatia «as a
sovereign and democratic state in which equality, freedoms and human rights are guaranteed and
ensured, and their economic and cultural progress and social welfare promoted»7. On these basis,
Croatia is defined as the «national state of the Croatian nation and the state of the members of
autochthonous national minorities»8. Even though minorities are recalled in the preamble of the
Constitution, only the citizens are considered members of the nation, as it is confirmed by art. 1 of
the Constitution, which states: «Power in the Republic of Croatia derives from the people and
belongs to the people as a community of free and equal citizens»9. The 2006 Serbian Constitution
refers also to the historical foundation of the nation, affirming in the preamble the existence of «the
state tradition of the Serbian people»10.
The 1991 Slovene Constitution and the 2007 Montenegrin Constitution do not consider
history as a factor of national identity: nevertheless, they strongly emphasise the idea of national
state as well. In fact, the preamble of the Slovenian Constitution recalls «the will of the Slovene
nation»11 and explicitly refers to the «fundamental human rights and freedoms, and the fundamental
and permanent right of the Slovene nation to self-determination; and […] the historical fact that in a
centuries-long struggle for national liberation we Slovenes have established our national identity
and asserted our statehood»12. The Montenegrin Constitution refers to «the decision of the citizens
5
On Montenegro’s secession, see J.O. FROSINI, F. RINALDI, L’avverarsi della “condizione sospensiva” costituzionale
per l’esercizio dello ius secessionis in Serbia-Montenegro, Diritto pubblico comparato ed europeo, 2006, n. 4, p. 14951508.
6
Preamble, 1st sentence.
7
Preamble, 3rd paragraph: «Hrvatski je narod iskazao svoju odlučnost i spremnost za uspostavu i očuvanje Republike
Hrvatske kao samostalne i nezavisne, suverene i demokratske države»
8
Preamble, 2nd paragraph: «Republika Hrvatska ustanovljuje se kao nacionalna država hrvatskog naroda i država
pripadnika autohtonih nacionalnih manjina».
9
Art. 1 par. 2: «U Republici Hrvatskoj vlast proizlazi iz naroda i pripada narodu kao zajednici slobodnih I ravnopravnih
državljana».
10
Preamble, 1st paragraph: «Polazeći od državne tradicije srpskog naroda i ravnopravnosti svih građana i etničkih
zajednica u Srbiji […]».
11
Preamble, 1st paragraph: «Izhajajoč iz Temeljne ustavne listine o samostojnosti in neodvisnosti Republike Slovenije
[…]»
12
Preambe, art. V.
3
of Montenegro to live in an independent and sovereign state»13 and, according to art. 2, sovereignty
belongs only to Montenegrin citizens14.
2.c. The multicultural states: an ideal more than a reality
The cases of Former Yugoslav Republic of Macedonia, Bosnia-Herzegovina and Kosovo are
peculiar. In fact, in Macedonia and Bosnia and Herzegovina, it has been impossible to identify
clearly a dominant nation, while with reference to Kosovo a dispute on the national identity of its
people led to a huge conflict with Serbia. The ethnic conflict in those regions, therefore, proved to
be worst than in the rest of the territory of former Yugoslavia and only the intervention of the
international community was able to stop the hostilities.
Due to these reasons, the Constitutions which today are in force in these countries do not
define these states as national states.
In fact, the preamble of the 1991 Macedonian Constitution referred to history as an element
of national identity, recalling «the historical, cultural, spiritual and statehood heritage of the
Macedonian people and their struggle over centuries for national and social freedom as well as for
the creation of their own state, and particularly the traditions of statehood and legality of the
Krushevo Republic and the historic decisions of the Anti-Fascist Assembly of the People's
Liberation of Macedonia». On this basis, it established Macedonia as the «national state of the
Macedonian people»15. However, after the adoption of the Ohrid Agreement, in order to solve the
ethnic conflict between Macedonians and Albanians, the text of the Constitution has been amended,
by removing all the references to the idea of the Macedonian national State.
Bosnia-Herzegovina, since the end of the conflict in the nineties, has not adopted a proper
Constitution: in fact, the basic law of the State is Annex 4 to the Dayton Agreements, which, being
an international agreement, cannot be considered expression of national sovereignty. In this
constitutional act, all the references to the idea of nation have been avoided and replaced by the
expression “people”: in particular, the Serbians, the Croats and the Bosniaks are considered as
“constituent peoples” 16 and, at least formally, they all benefit of equal rights17.
Finally, in 2008, Kosovo proclaimed independence: the Constitution, adopted the same year,
defines the country as a multicultural State18.
However, in all the mentioned case, multiculturalism proved to be more an ideal then reality.
In fact, Macedonia should be considered, more than a multicultural, a bi-national State, composed
by Macedonians and Albanians. In Bosnia and Herzegovina a complex system of ethnic federalism
was put in place, which, however, led to the transformation of its society in one dominated by three
main ethnic groups, with the exclusion of national minorities. With reference to Kosovo, besides the
problems concerning its independence and the recognition of its Constitution as the legitimate
13
Preamble, 1st paragraph: « Polazeći od: odluke građana Crne Gore da žive u nezavisnoj i suverenoj državi Crnoj Gori,
donesenoj na referendumu od 21. maja 2006. godine […]».
14
Art. 2, cl. 1: «Nosilac suverenosti je građanin koji ima crnogorsko državljanstvo» (Bearer of sovereignty is the
citizen with Montenegrin citizenship).
15
Preamble, paragraph 1.
16
The last paragraph of the preamble of Annex 4 states: «Bosniacs, Croats, and Serbs, as constituent peoples (along
with Others), and citizens of Bosnia-Herzegovina hereby determine that the Constitution of Bosnia-Herzegovina is as
follows […]».
17
The principle of equality of the constituent peoples has been introduced by the Constitutional Court, by decision U
5/98, issued on 1/7/2000.
18
See, for example, art. 3 Const: «1. Republika Kosovo je multietničko društvo, koje se sastoji od Albanaca i ostalih
zajednica, kojom se upravlja na demokratski način, poštujući vladavinu zakona, preko zakonodavnih, izvršnih i
pravosudnih
institucija.
2. Sprovođenje javne vlasti u Republici Kosovo se zasniva na načelu jednakosti svih građana pred zakonom i
poštovanju međunarodno priznatih prava i osnovnih sloboda, kao i zaštiti prava i učešća svih zajednica i njihovih
pripadnika».
4
expression of the sovereignty of a people, the reality shows a very nationalistic attitude, emerging,
in particular, by the recurring violation of Serbian community’s rights.
3. The process of European integration and minority rights
As already mentioned in the introduction, together with nation-building, the countries of
former Yugoslavia have been experiencing also the process of European integration.
In fact, Slovenia has been admitted to EU in 2004 and Croatia in 20013; Serbia, Montenegro and
the former Yugoslav Republic of Macedonia are candidates to the European Union, while Bosnia
and Herzegovina and Kosovo19 are potential candidates20.
The process of European integration might be considered as opposite to nation-building in the
complex constitutional and democratic transition that have been taking place in the countries of
former Yugoslavia since the Nineties.
The perspective of European integration, in fact, forced the countries of former Yugoslavia to
reform their constitutional system as to provide a wide protection of minority rights, thus
strengthening the principles of multiculturalism instead of reinforcing nation-building.
This is due to the effects of the principle of European conditionality, imposing, among the standards
to be guaranteed for the admission to the European Union, the protection of minority rights. This
standard proved to be crucial in the complex legal and political landscape of former Yugoslavia.
3.a. European conditionality and minority protection in Slovenia
In Slovenia, during the negotiations in order to join the EU, as well as in the previous phase of preaccession, minority rights’ protection has been always monitored by the European Commission,
with particular reference to the Roma community21.
Slovenia has usually been mentioned as one of the best products of European conditionality with
reference to minority rights. The detailed minority rights system that has been introduced since the
Nineties, in fact, has usually be considered as a model, not only for the countries of Central and
Eastern Europe.
In fact, in Slovenia, the protection of linguistic minority rights is very detailed, especially with
reference to the Italian and the Hungarian communities, which are considered historical minorities:
in fact, art. 11 of the Constitution declares that, in the municipalities where Italians and Hungarians
reside, their languages are official along with Slovenian; furthermore, art. 62 of the same text
recognizes the right to use minority languages before public authorities.
The law establishes detailed rules on the use of minority languages before public offices 22. With
reference to the rules for the recruitment of public officers, a number of laws require also the
knowledge of Italian and/or Hungarian 23 . When requested, certificates and documents must be
19
The case of Kosovo is peculiar, considering that, before starting the negotiations for the admission to the EU, the
most urgent problem to be solved is the status issue. Nevertheless, the EU is involved in constitutional transitions in this
country and Kosovo is listed as potential candidate country.
20
For more information, see http://ec.europa.eu/enlargement.
21
2001 Regular Report on Slovenia’s Progress toward Accession, Brussels, 13.11.2001, SEC(2001) 1755, p. 21; 2002
Regular Report on Slovenia’s Progress toward Accession, Brussels, 9.10.2002, SEC(2002) 1411, p. 26-28.
22
Law on Public Administration, in Off. Journ. n. 67/94.
23
Law on Public Office, in Off. Journ. n. 15/90; with reference to the appointment of judges, Law on Tribunals, in Off.
Journ. n. 17/95.
5
issued not only in Slovenian but also in minority languages 24 . With reference to names, it is
protected the right to keep unchanged the names of persons and places in minority languages 25.
The right to learn and to education in minority languages is strongly guaranteed by art. 64 of the
Constitution and the law: in particular, the law establishes where education must be bilingual26.
The right to information in minority languages is protected by the laws on broadcasting and
minorities’ programmes are promoted and supported27.
With reference to cultural rights, the historical communities have the right to use their signs and
symbols28.
In Slovenia, the rules on the right to representation of Italian and Hungarian communities are very
detailed. In particular, this is the only legal system in the Western Balkans recognising to the
members of national minorities the double voting right: every citizen belonging to the Italian or
Hungarian community, in fact, has the right to vote for two candidates, one of them representing the
interests of the minority. For the adoption of the Acts involving the interests of historical
communities, the law requires the consent of the minority representative 29 . The double voting
system has been considered constitutional by the Constitutional Court, with decisions issued on 12
February and 28 January 1999. The right to political representation of the Italian and Hungarian
communities is guaranteed also at local level, in the municipal councils. At the same level, even
Roma have the right to political representation 30. In addition, the members of Italian and Hungarian
communities have the right to establish self-governing ethnic communities, special representative
bodies performing mainly advisory and promotional tasks and cooperating with the other national
and local authorities31.The right to representation is protected also under the law on radio-television,
stating that two members of the RTV council are appointed by the Italian and the Hungarian
communities and providing for the institution of programme councils for ethnic programmes32.
Therefore, in Slovenia, European conditionality seems to be a positive and useful process for
the protection of minority rights. Nevertheless, a deeper analysis shows that minority rights’ system
is still incomplete: in particular, European conditionality has not been able to guarantee proper
protection to those who moved from other Yugoslav republics to Slovenia before the war of the
nineties – representing thus “new minorities” – and have been erased by the registries of the
permanent residences. In fact, during the eighties, a number of people moved from the other
Yugoslav Republics to Slovenia as worker immigrants. At the time when Slovenia declared
independence, under the new citizenship law, they were recognized the right to obtain the status of
Slovenian citizens, but only by submitting an application within a six months’ deadline 33. As a
consequence, the immigrants who failed to submit the application on time, were erased by the
registry of the permanent residents of Slovenia. Following the cancellation, they lost the status of
citizen and every possibility to benefit of all the basic human and minority rights. Notwithstanding
the Constitutional Court declared unconstitutional with two decisions the laws on citizenship and
24
Law on the books of birth, death and family, in Off. Journ. n. 2/87; Law on personal identity cards, in Off. Journ. n.
75/97; Law on passports, in Off. Journ. n. 1/91; Law on notarial deeds, in Off. Journ. n. 13-48/94.
25
Art. 3 Law on personal names, in Off. Journ. n. 2/87; art. 8 Law on the names of places, streets and buildings, in Off.
Journ. n. 5/80.
26
Law on the organization and founding of education, Law on primary schools, Law on gymnasium, in Off. Journ. n.
12/96.
27
Law on broadcasting, in Off. Journ. n. 18/94.
28
Law on coat of arms, flag and anthem of the Republic of Slovenia, in Off. Journ. n. 67/94.
29
Law on the elections of National Assembly, in Off. Journ. N. 44/92. For a comment, see C. CASONATO, La
rappresentanza politica della comunità italiana in Slovenia e in Croazia, in V. PIERGIGLI (edt.), L’autoctonia divisa. La
tutela giuridica della minoranza italiana in Istria, Fiume e Dalmazia, Milano, Cedam, 2005, p. 315, 329-334.
30
Law on local self-government, in Off. Journ. n. 72/93.
31
Law on self-governing ethnic communities, in Off. Journ. n. 65/94.
32
Law on Radio Television Slovenia, in Off. Journ. n. 66/95.
33
As stated by art. 1 of the citizenship law, in Off. Journ. 61/99.
6
the law on foreigners34, the issue of erased people remained unsolved for a very long time 35. When
considering this problematic issue, it is evident that, in the Slovenian case, conditionality has not
been always able to face the opposite pressure of policies which, in order to support nationbuilding, caused the infringement of a number of human and minority rights36.
The erased saga was finally closed with a decision adopted by the European Court of Human
Rights, on 13th July 2010, in the case of Kurić and Others v. Slovenia37. In the decision, the Court
declared inconsistent with the Convention the legislation regulating the status of citizens and
foreigners adopted in 1992 in Slovenia, because, by the application of these laws, a number of
citizens of the former Socialist Federal Republic of Yugoslavia have been deprived of their right to
legally reside in Slovenia, thus losing all their fundamental rights. In both cases, the Court required
the national Legislators to modify the domestic laws, in order to make them consistent with the
European Convention on Human Rights and the other international standards on the protection of
minority rights.
Moreover, while the case was pending before the Europan Court, a new law, granting to the
“erased” the right to obtain citizenship, was adopted.
Although adopted too many years after the beginning of erasure in Slovenia, the law proved
to be however a good example of dialogue among the legislator, national and supranational courts.
3.b. European conditionality and minority protection in Croatia
In Croatia, the principle of conditionality worked in particular with reference to the constitutional
law on national minorities. In fact, the first constitutional law on the rights of minorities was
adopted in 1991, in the aftermath of the declaration of independence. In 1995, during the war, the
law was suspended. Four years later, the Parliamentary Assembly of the Council of Europe
requested, by a resolution, to amend the 1991 suspended law: following the resolution, in 2000, the
law was amended; furthermore, in 2002, a new constitutional law on minorities was adopted 38.
More recently, in 2010, the law was again amended, with the aim of the final adaptation to the EU
standards.
In its various versions, the Croatian constitutional laws aims at protecting linguistic, cultural and
political rights of minorities.
The right to use minority languages is protected by the constitutional law on the rights of
national minorities, dealing, in particular, with the use of names of persons and places, the language
of documents and certificates and the right to education. At local level, in the units of selfgovernment where at least one third of the population belongs to a national minority, the right to use
minority languages is guaranteed by the Statute.
With reference to cultural rights, national minorities have the right to use their own signs
and symbols, to celebrate their national holidays 39 and to found associations with the aim to
preserve, develop, promote and express their own identity40. National minorities’ cultural rights are
also protected in TV and radio programmes, as it is stated at art. 18 of the constitutional law.
With reference to the right to participation to public life, the 2002 constitutional law
established very detailed rules, reserving to the members of national minorities some seats in
34
Decision U-I-284/94, issued on 4-2-1999 and decision U-I-246/02, issued on 3-4-2003.
For more details on this issue, see J. DEDIĆ, The Erasure: “Eleven Years Later”, Public Lecture Organized by the
Association of the Erased Residents of the Republic of Slovenia, Faculty for Social Work, 27 febbraio 2003.
36
See, in this sense, J. ZORN, The Politics of Exclusion during the Formation of the Slovenian State, in J. DEDIĆ, V.
JALUŠIĆ, J. ZORN (edts.), The Erased. Organised Innocence and the Politics of Exclusion, Ljubliana, Peace Institute –
Institute for Contemporary Social and Political Studies, 2003, p. 93-152.
37
European Court of Human Rights, case of Kurić and Others v. Slovenia, 13-7-2010, appl. no. 26828/06.
38
Const. Law n. 155, 19 December 2002. For a comment, see A. PETRIČUŠIĆ, Constitutional Law on the Rights of
National Minorities in the Republic of Croatia, European Yearbook of Minority Issues, 2002/3, vol. 2, p. 607-629.
39
Art. 14 Const. Law on the rights of national minorities; law on holidays, in Off. Journ. n. 70/1996, 96/2001, 13/2002.
40
Art. 43 Const.; Law on associations, in Off. Journ. n. 70/1997, 88/2001.
35
7
Parliament41, local councils42 and local executive bodies43. As in Slovenia, the right to minorities’
participation to public life was also guaranteed by representative bodies with advisory and
promotional tasks: in particular the constitutional law provides for national minority councils,
which may be elected in the units of local self-governments where national minorities represent at
least 1,5% of the total population or are more than 200. The units of local self-government must
consider the opinion of national minority councils in the procedure for the adoption of laws
concerning their rights and freedoms44. Finally, among the measures with the aim to foster the right
to participation to public life, the Government appoints the National Minority Committee, a body
performing advisory tasks45.
In 2010, in the context of the accession to the European Union, the constitutional law was amended
and additional political rights were recognised to national minorities. In particular, it was introduced
the right to double vote in favour of the smallest minorities, representing less than 1.5% of the
population. The declared aim of the reform was to strengthen the protection of minority rights, in
compliance with the European standards. However, when considering the concrete implementation
of the law, some relevant matters of concern arose, such as, in particular, the exclusion of the
Serbians from the minorities entitled to exercise this right. By the political point of view, this
reform seemed to be the expression of the nationalistic aspirations of the Croatian nation. By the
legal point of view, the principle of equality seemed to be challenged. For these reason, the
Constitutional Court, on 29 July 2011, declared the law unconstitutional, arguing that minority
legislation, although necessary in order to respect European standards, cannot have the effect of
limiting the fundamental principles of national as well as European constitutionalism, including,
firstly, the principle of proportionality.
3.c. European conditionality and minority protection in Serbia
With reference to Serbia, the European standards have been taken into great consideration in
the process for the adoption of the 2006 Constitution. In particular, the constitutional text was
adopted with the assistance of the Venice Commission and was assessed by the European
Commission. In particular, the Venice Commission complained that the definition of Serbia as «the
state of Serbian people and all citizens who live in it», enshrined in the first part of art. 1, by
emphasizing the ethnical definition of nation, was in contrast with the second part of the same
article46, as well as the second chapter of the Constitution, deserving high protection to national
minority right47. On the contrary, with reference to rights’ implementation, the Venice Commission
stated that the 1990 Constitution, compared with the new one, provided for a wider protection of
linguistic minorities48. Furthermore, the Venice Commission, the High Commissioner on National
Minorities and the European Commission were all concerned with the right to political participation
41
Art. 19 Const. Law, which reserves 1 to 3 seats to the members of national minorities representing at least 1,5% of
the total population of Croatia.
42
Art. 20 Const. Law, which reserves some seats to national minorities representing more than 5% and less than 15% of
the total population of a local self-government unit.
43
Art. 22 Const. Law.
44
Art. 32 Const. Law.
45
Art. 35 Const. Law. For a more detailed overview on minority rights in Croatia, see A. PETRIČUŠIĆ, Croatia, in E.
LANTSCHER, J. MARKO, A. PETRIČUŠIĆ (edts.), European Integration and its Effects on Minority Protection in Europe,
Nomos, Baden-Baden, 2008, p. 167-187.
46
Stating that Republic of Serbia is «based on the rule of law and social justice, principles of civil democracy, human
and minority rights and freedoms, and commitment to European principles and values».
47
Nevertheless, the Commission excluded that this contradiction might raise any relevant practical consequence.
European Commission for Democracy through Law (Venice Commission), Opinion on the Constitution of Serbia,
Opinion No. 405/2006, CDL-AD(2007)004.
48
European Commission for Democracy through Law (Venice Commission), Opinion on the Constitution of Serbia,
point 12.
8
of national minorities to public life, with reference, in particular, to the implementation of the
constitutional provisions on the national minorities’ councils. Even if the law for the
implementation has been lacking for a long time49 it was adopted on August 2009.
3.d. European conditionality and minority rights in Montenegro
In Montenegro, the adoption of the new 2007 Constitution, following the declaration of
independence, has been strongly influenced by the opinions of the Venice Commission, with
particular reference to minority rights 50 . In fact, while the 1992 Constitution provided for a
catalogue of minority rights, in the 2007 draft Constitution only one article51 referred to this issue,
stating that the State shall protect the national and cultural heritage of Montenegro, thus restricting
the level of protection. The Venice Commission, recalling that, in drafting the new Constitution,
Montenegro declared that the existing level of rights had to be guaranteed, suggested to introduce
even in the new text a catalogue of minority rights, on the model of the 1991 Constitution. In the
final Constitution, following the opinion of the Venice Commission, a new section, called “minority
rights” has been introduced: this section comprises only two articles, but they are so detailed that
they can be considered as a proper catalogue of rights. Furthermore, minority protection has been
declared as one of the priorities to be fulfilled by Montenegro in the process of European
integration, as it emerges from the declaration issued by the European Council on January 17, 2007,
on the principles, priorities and conditions in the Association and Stabilization Agreement with
Montenegro. Nevertheless, when looking not only at the “law in the books”, but also at “law in
action”, it has to be underlined that the protection of minority rights in Montenegro is
unsatisfactory. In fact, linguistic rights, de facto, are provided only to the Albanian minority,
because, according to a constitutional convention, only the Albanian language is considered “non
mutually understandable” and deserves normative protection. With reference to the right to
participation to public life, following the decision of the Constitutional Court issued on July 17,
2007, which declared unconstitutional articles 22-23 of the law on minority rights, so far, no
legislative act reintroducing the possibility for minorities to be politically represented trough
reserved seats has been adopted.
3.e. European conditionality and minority rights in Kosovo
It is impossible to deny the impact of international and European conditionality in the
adoption of the 2008 Constitution of Kosovo, considering that this document does not introduce any
new disposition but it only reproduces the provisions of the Constitutional Framework for
Provisional Self-Government, adopted in cooperation with the international community and the
European Union.
49
On this issue, see High Commissioner on National Minorities, Comments on the Serbian Draft Law on the Election
and Powers of National Councils of National Minorities, The Hague, 31-5-2007; Commission of the European
Communities, Commission Staff Working Document, Serbia 2007 Progress Report, Brussels, 6-11-2007, SEC(2007)
1435, in part. p. 14-15; Commission of the European Communities, Commission Staff Working Document, Serbia 2008
Progress Report, Brussels, 5-11-2008, SEC(2008)2698 final, in part. p. 14.
50
See European Commission for democracy trough Law (Venice Commission), Expert Meeting on the Constitutional
Reform of the Republic of Montenegro, Strasbourg, 7 December 2006, CDL(2006)106; Interim Opinion on the Draft
Constitution of Montenegro, Strasbourg, 5 June 2007, CDL-AD(2007)017; Opinion on the Constitution of Montenegro,
Strasbourg,
20
December
2007,
CDL-AD(2007)047,
available
at
http://www.venice.coe.int/site/dynamics/N_Opinion_ef.asp?L=E&OID=392.
51
Art. 7 draft Constitution.
9
In fact, the Constitution, by accepting all the proposals laid down in the Athissari Plan, introduces
a number of disposition on the protection of ethnic communities’ rights52.
As to linguistic rights, Albanian and Serbian are considered as official languages; in addition,
Turkish, Bosnian and Romani are official at local level.
The right to minorities’ participation to public life is very strongly protected by the Constitution,
providing for their representation in the Legislative Assembly53, the Government54, the Constitutional
Court55 and the Central Electoral Commission56. Furthermore, as already stated in the Athissari Plan, civil
servants’ should be selected taking into account the ethnic composition of the population57. The right to
communities’ participation is guaranteed even in the legislative process: in fact, art. 78 Const. provides for
the Parliamentary Commission on Communities’ Rights and Interests and the President of the Republic;
furthermore, the legislation on vital interests – concerning municipalities, the rights of communities, the
use of languages, local elections, the protection of cultural heritage, religious freedom, education and the
use of symbols – shall require for its adoption, amendment or repeal the majority of the Assembly
deputies holding seats reserved or guaranteed for representatives of Communities that are not in the
majority 58 ; finally, the President of the Republic has the right to return adopted laws for reconsideration, when he/she considers them to be harmful to one or more Communities 59 . The
constitutional norms are implemented by the Law on the Promotion and Protection of Rights of
Communities and their Members in the Republic of Kosovo, adopted on March, 13, 2008.
3.f. European conditionality and minority rights in Bosnia and Herzegovina
Bosnia-Herzegovina represents a peculiar case: still lacking a proper Constitution,
expression of constituent power, all the legislative acts are conditional on the international and
European standards. Nevertheless, looking at the implementation of the normative framework, the
protection of national minorities in this country is still far to be satisfying.
The 1995 Dayton Agreements, in fact, introduced a complex institutional framework based
on the model of ethnic federalism, with three constituent peoples (the Bosniacs, the Serbs and the
Croats) and two entities (the Republika Srpska and the Federation of Bosnia and Herzegovina).
According to the Constitution, all the institutions are intended to represent the three peoples.
The House of Peoples, the first Parliamentary Chamber, therefore, is composed by 15 Delegates,
two-thirds appointed by the Federation (including five Croats and five Bosniacs) and one-third in
the Republika Srpska (five Serbs). The second Chamber, the House of Representatives, is composed
by 42 Members, two-thirds elected from the territory of the Federation, one-third from the territory
of the Republika Srpska. Also the Presidency consist of three Members: one Bosniac and one Croat,
each directly elected from the territory of the Federation, and one Serb directly elected from the
territory of the Republika Srpska. Equal representation to the constituent peoples is recognized also
in the Constitutional Court.
Following the 2000 decision of the Constitutional Court of Bosnia and Herzegovina, which
declared that the constituent peoples are equal 60 , veto powers were recognized to the three
52
For a more detailed overview on minority rights in Kosovo, see A. HAJRULLAHU, Kosovo, in E. LANTSCHER, J.
MARKO, A. PETRIČUŠIĆ (edts.), European Integration and its Effects on Minority Protection in Europe, Nomos, BadenBaden, 2008, p. 341-358.
53
Art. 64 Const.
54
Art. 96 Const.
55
Art. 114 Const.
56
Art. 139 Const.
57
Art. 101 Const.
58
Art. 81 Const.
59
Art. 84 cl. 6 Const.
60
The Constitutional Court declared that art. 1 of the Constitution and 1, 2 and 3 of the Preamble of the Constitution of
Republika Srpska, defining RS as the “State of the Serbian people”, were unconstitutional. Accordingly, also Art. I.1 of
10
constituent peoples. In particular, veto powers were granted in the following matters: exercise of the
rights of constituent peoples to be adequately represented in legislative, executive and judicial
bodies; identity of one constituent people; constitutional amendments; organisation of public
authorities; equal rights of constituent peoples in the process of decision-making; education,
religion, language, promotion of culture, tradition and cultural heritage; territorial organization;
public information system61.
However, the interaction between the division of the population in three constituent peoples
and the exercise of veto powers transformed, de facto, a system based on the equal representation of
ethnic groups, into a system detrimental to the rights of national minorities, the so called “Others”.
In fact, even though the rights of minorities are protected under the 2003 law62, the electoral system
do not provide for any form of political participation of national minorities. In particular, with
reference to the electoral system for the Presidency, according to annex 4 to the Dayton Agreements
and the electoral law 63 , the constituent peoples are all equally represented, while the citizens
belonging to different ethnic groups are totally excluded from the office.
These were the reasons that led Dervo Sejdić and Jakob Finci, both citizens of Bosnia and
Herzegovina, belonging to the Roma and Jewish minorities, to submit an appeal to the European
Court of Human Rights against the electoral law of Bosnia and Herzegovina. In particular, they
argued that they were prevented by the Constitution of Bosnia and Herzegovina, and the
corresponding provisions of the Election Act 2001, from being candidates for the Presidency and
the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins.ù
The European Court upheld the appeal, on 22 december 2009. According to the Court, in fact, the
system of ethnic federalism, put in place at a time when a fragile ceasefire had been accepted by all
the parties to the inter-ethnic conflict that had deeply affected the country, pursued the legitimate
aim of restoring peace. However, the situation had improved considerably since the Dayton Peace
Agreement and the adoption of the Constitution. For these reasons, The applicants’ continued
ineligibility to stand for election lacked an objective and reasonable justification and had therefore
breached Article 14 taken in conjunction with Article 3 of Protocol No. 1.
The decision of the European Court, however, has been, so far not implemented, thus putting new
obstacles on the road of the accession of Bosnia and Herzegovina to the European Union. In fact, as
the European Commission stated in 2012, «The authorities and political parties from Bosnia and
Herzegovina took note of the deadlines and agreed: to ensure a political agreement on the SejdićFinci ruling and to change the Constitution by November. Progress on these issues remains
necessary before Bosnia and Herzegovina can expect to progress towards EU accession
negotiations»64.
3.g. European conditionality and minority rights in the Former Yugoslav Republic of
Macedonia
The case of the Former Yugoslav Republic of Macedonia is particularly interesting because
– as already mentioned – the preamble of the 1991 Constitution, adopted just after the declaration of
independence, clearly defined Macedonia as a national State. Following the Ohirid Agreement,
which was signed with the cooperation of the international community, this text was replaced by a
the Constitution of the Federation of Bosnia and Herzegovina, referring only to Bosniacs and Croats as constituent
peoples, were considered unconstitutional.
61
On the basis of the Agreement on the implementation of the “constituent people case”.
62
In Off. Journ. n. 12/03. On the law and, in general, on the legislative framework on national minority rights in
Bosnia-Herzegovina, see S. MILIKIĆ, in E. LANTSCHER, J. MARKO, A. PETRIČUŠIĆ (edts.), European Integration and its
Effects on Minority Protection in Europe, Nomos, Baden-Baden, 2008, p. 297-340.
63
In Off. Journ. 23/2001.
64
European Commission, Joint Conclusions from the High Level Dialogue on the Accession Process with Bosnia and
Herzegovina and the Road Map for BiH´s EU membership application, 2012.
11
new one, where all the references to the idea of national State were deleted and all the ethnic groups
were defined as “peoples”, with the aim to establish in Macedonia a multicultural State. In line with
the constitutional amendment, a number of laws on the rights of “communities” have been
introduced, with the strong cooperation of the international and European institutions. This was
evident, in particular, in the process for the adoption of the 2008 law on the languages of minority
communities, whose adoption was requested by the Advisory Committee on the Framework
Convention for the Protection of Minority Rights65. Comments on the law were delivered also by
the High Commissioner on National Minorities and the European Commission. Nevertheless, this
law, as well as almost all the normative acts on minorities are applicable only to the groups
representing more than 20% of the population: considering that only the Albanian community
reaches this threshold, at present, the Macedonian legal system has to be considered a bi-national
instead of a multicultural one.
4. Final Remarks
In conclusion, in all the new States of former Yugoslavia the legislative framework on national
minorities is extremely detailed: this is due, on one side, to the multicultural character of the
society, requiring specific normative tools and, on the other, to the political will to join the
European Union, which, at present, is supporting a wide process of legal reforms concerning also
minority rights. Either the introduction of legal acts on minority groups and the pressure exercised
by the European and international institutions for the adoption of legislation in line with the
generally recognized standards can be considered as factors limiting the sovereignty of the State, by
replacing the model of national State with the multicultural State and limiting the freedom of
national legislators on the ways to be chosen in order to establish it. With reference to the
theoretical framework supporting these reforms, it is possible to state that the civic concept of
nation seems to replace the ethnic one. Nevertheless, when looking not only at the “law in the
books” but also at the “law in action”, it clearly emerges that, often, the legislative framework does
not correspond to the reality: as it has been described in the previous paragraph, often,
notwithstanding the adoption of very detailed legal texts, national minorities are still discriminated
and, in several cases, their rights are denied in favor of the affirmation of the idea of national state
inspired by the theory of the ethnic nation. Finding a balance between nation-building and the
protection of the rights of minority groups is very difficult: this is particular true if we consider that
the countries of former Yugoslavia have been denied for a very long time the right to express their
national identity.
How to reconcile these opposite processes? A proper interaction Constitutional and supranational
Courts seem to be able to play a crucial role, as the case of Slovenia and Croatia demonstrates.
However, has happened in Bosnia and Herzegovina, jurisprudence risks to remain meaningless,
without a fair cooperation with the Parliament.
A proper cooperation among the Parliaments and the Courts, both at the national and at the
supranational level, therefore, is the only possible way in order to manage possible conflicts
between the perspective of European integration and the defense of national sovereignty in the
ongoing nation-building processes.
65
See Advisory Committee on the Framework Convention for the Protection of National Minorities, Second Opinion on
the “Former Yugoslav Republic of Macedonia” Adopted on 23 February 2007, ACFC/OP/II(2007)002.
12