When it comes to the scope and content of the guaranteed rights of national minorities, even fine differences and nuances in formulations related to them sometimes produce very different interpretations in similar cases occurring in different countries, which may seriously affect their enjoyment and implementation in practice either to the detriment, or to the benefit of the members of national minorities. The same applies to measures of positive discrimination, such as certain improvements and/or privileges intentionally introduced to facilitate the enjoyment of certain rights to minorities and their members.
In this paper we have dealt with the interpretations of positive discrimination by the Constitutional Courts of Croatia and Slovenia in order to compare their approaches. Con-stitutions of both countries provide for measures of positive discrimination in respect of minorities. However, the wording of particular Articles, the elaboration of measures by relevant legal acts, some doctrinal concepts or the context (historical, political) in which they are to be applied in practice may strongly affect the interpretation of the scope and validity of measures of positive discrimination in different countries. A look into deci-sions of two constitutional courts in this area reveals differences between the two models of positive discrimination.
As Žagar notes, the positive concept of protection of autochthonous minorities devel-oped in Slovenia considers minorities as active subjects in the political process and re-quires the state to have an active role in securing conditions for the enjoyment of rights.87 The reasonings in the decisions of the Slovenian Constitutional Court show that it has consistently interpreted positive measures extensively, defining no strict limits for their appropriateness. Relying on relevant constitutional provisions it understands positive dis-crimination as constitutionally allowed means for securing guaranteed minority rights.
It construed positive measures as allowed and appropriate in most cases, and generally upheld legislation prescribing such measures. The aim of protecting autochthonous na-tional communities is in the center of its deliberations on the constituna-tionality of measures intended to improve or at least maintain their current social status. On these grounds the CCS has normally given priority to special rights of autochthonous national communities over certain general rights of citizens. As for controversies related to the autochthonous status of the Italian and Hungarian national communities, the CCS avoided any attempt to define the meaning of autochthonous so far, pointing out that the theory is yet to discuss on this matter, while it is up to the legislator to define it. According to the doctrine the CCS applies regarding positive discrimination, special rights of members of autochtho-nous national communities are necessary for securing their equality with others in all areas of life, and for creating favourable conditions for the preservation of their national identity; positive measures that pursue that end inevitably produce discrimination in fa-vour of a minority, but if they were reasonable and proportionate to the intended goal the Court consideres them justified. As such, positive measures do not constitute a form of prohibited discrimination. Interpreting positive discrimination widely, in some decisions in this area the CCS found that special rights were justified even where they contradicted
87 ŽaGar 2001, pp. 113-114. In contrast, within the “negative concept” of minority protection the state inter-venes upon a request of an actively legitimized applicant only in the case of concrete violation of an individual right guaranteed by the Constitution of legislation.
the general constitutional principle of equality of all citizens, or where they collided with some other constitutionally guaranteed rights such as the right to receive education in one’s own language. In its decisions in this area the CCS further developed and refined the concept of positive discrimination provided for in general terms by the Constitution, and its doctrinal positions are well grounded and argumented. Because of that, the CCS has also remarkably contributed to the implementation of this concept in practice, acting as a reliable protector of special rights of national communities so far.
As for Croatia, its constitutional and legislative approach to the protection of national minorities’ rights stands on different grounds and produces a different model of positive protection of minority rights. Under that model special minority rights are regarded vis-a-vis corresponding general rights and with respect of the needs of the majority. The Constitutional Court of Croatia comprehends positive discrimination much narrower than the Slovenian court. In some cases the CCC supported certain measures intended to se-cure the enjoyment of rights of national minorities under privileged circumstances and did not declare the challenged regulation as contrary to the Constitution. However, it did so restrictively, usually providing for various conditions for the application of such measures and upholding them within certain, sometimes rather strictly defined limits.
Relying on some of the constitutional provisions it found it acceptable to put constraints on this concept for various reasons, sometimes by upholding legislation that effectively delays the introduction of certain special rights of national minorities, in other cases by invoking the general principle of equality as subordinate to special rights. In other cases the CCC demonstrated an inclination to restrict the application of special measures, and in defending such a stand it sometimes even resorted to arguments that are rather political than legal. The CCC also stresses that special rights of national minorities are entailed by obligations of the state to secure their enjoyment, but its decisions show that it deems that the activities of the state in this respect should remain within certain limits. Unlike the Slovenian court, the CCC does not regard special rights of minorities as deserving a higher level of protection than others. When deliberating on whether those rights were transgressed, the CCC usually refrained from extensive interpretations of their scope and justifiability. More than once it found that they contradict the principle of equality of all citizens, although positive discrimination by definition produces inequality. In effect, such an approach sometimes reduces the possible reach of measures of positive discrimi-nation. This is not to say that positive discrimination is lacking in the practice of the CCC, but only that in the context of the Croatian legal system the acceptability and scope of positive measures are interpreted more restrictively.
Zsuzsa Szakály:
1Intertwined – The Notion of Nation and Identity in the Constitutions of the West Balkan
2“Considering that the promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contribute to the political and social stability of States
in which they live,”3
1 . Introduction
The aim of this paper is to analyze the concept of nation and identity in the constitutions of the Western Balkan. The issue of the interpretation of nation and identity connected to the understanding of sovereignty and national minorities, and the choice between cultural and political nation. The constitution is the highest law of a state, so the decisions regard-ing the above mentioned will be determinative to the law system.
This question earned special attention in the constitutions and legal systems of the former member states of Yugoslavia after the Yugoslav Wars. As the states of the Western Bal-kans move further with the negotiations of joining the EU, approaching the Copenhagen Criteria becomes more and more crucial. Some of these states are candidate countries – Albania, Montenegro, North Macedonia and Serbia – and some are potential candidates:
Kosovo and Bosnia and Hercegovina. The proper respect of the national minorities is part of the criteria. This must appear in the practice and in the written law as well. As I see, the wording of the constitution in the issue of nation, nationalities and identity is relevant as the source for the laws and judicial decisions of the state.
Firstly, I will examine the concept of nation, then the position of the citizens living abroad in this context. Afterwards, I would like to shed light on the issue of the source of sover-eignty in the constitutions of the Western Balkan states and the theory of nationality and identity. Then I will examine the minority rights and the EU enlargement negotiations in the constitutional texts. Finally, I will summarize my ideas and results.
The aim is to show the different paths the states took when they drafted the constitutions, albeit there were determining international factors during the adoption.
The first task is to define the scope of the examination. The term “states of the Western Balkans” will be used for the following states: Albania, Bosnia and Hercegovina, Croatia, Kosovo, Montenegro, North Macedonia, Serbia and Slovenia. Clearly, there could be
1 Assistant professor, International and Regional Studies Institute, University of Szeged
2 The research for this paper has been carried out within the program Nation, Community, Minority, Identity – The Role of National Constitutional Courts in the Protection of Constitutional Identity and Minority Rights as Constitutional Values as part of the programmes of the Ministry of Justice (of Hungary) enhancing the level of legal education.
3 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities Adopted by General Assembly resolution 47/135 of 18 December 1992, Preamble
different ways to define the territory of the analysis. Nonetheless, the member states of the former Yugoslavia have the common historical point of view in the question of con-stitution-making, as these constitutions were adopted after the Yugoslav Wars. Albania was included in the process as a result of the close connection with the other states. The
‘Balkans’ could mean other states as well, albeit their development differs from these countries, and the shared history and circumstances suggests this distinction.
The various ethnic, religious and political conflicts which caused the wars can be relat-ed to different roots.4 As the Kingdom of Serbs, Croats and Slovenes were formed in 1918, parts from the Austro-Hungarian Empire which had advanced economy and social structure in the time period were united with parts from the Ottoman Empire where the economic and social affairs were on quite a different state of development.5 The different religions and the awakening national movements also caused concern.6 The expression
“the powder keg of Europe” was in use for this part of Europe. After the dissolution of Yugoslavia, the presentiment proved true: the Balkan Wars showed that the forced union of different nations is dangerous.
In the aftermath of the war, new states emerged. The new states adopted new consti-tutions, and because of the new state borders, several people became minorities in the new states. If one examines the national populations, the following can be said: there are minorities in the states. The status of the minorities is defined in the constitutions. In my view, the constitution-makers aimed to create rights for the minorities after the Yugoslav Wars. As the tragedies of the Balkan Wars came to the light, the states whose predecessors were involved in the conflicts tried to protect the rights of the minorities in a wide scale.
The texts of the constitutions show this caring attitude towards the minorities. How the other provisions of these constitutions relate to these Articles? The notion of the nation and the source of sovereignty could also affect the position of the minorities as the prin-ciples are intertwined.