Constitutional and Legislative Framework of Minority Protection

constitutional provisions, as well as through numerous ratified international and bilateral agreements and various domestic legislative acts.²¹ The spectrum of minority rights in-cludes both individual and collective rights, the right to minority self-governance, special representation in elected assemblies, affirmative action and many rights requiring posi-tive state action, including additional budgetary funding. The formally high standards of minority rights originate mainly from two resources. First, they originate from the feder-alist legal tradition of the socifeder-alist federal Yugoslav state, which not only tried to create equality and balance between Yugoslav titular nations, but also guaranteed high standards of protection to so-called nationalities, primarily living in the multinational autonomous provinces of Kosovo and Metohia and Vojvodina.²² Despite the rigid one-party communist environment, which lacked democracy, the policy towards minorities, primarily language rights, was not merely a well-decorated display and mimicry – it indeed, at least partially, demonstrated genuine political desire and living practice. ²³ Secondly, present day high minority right standards are result of the fact that after the fall of Milosević, Serbia tried to demonstrate its separation from the bloody ethnic conflicts in the nineties of the 20^th century by accepting high standards of minority rights, showing considerable readiness towards the international community to accept some political demands of minorities.²⁴ Notwithstanding the formal high standards of minority protection in Serbia, critics have continued to point out the problems of overregulation and inconsistency of the normative

21 Advisory Committee on the Framework Convention for the Protection of National Minorities. Third Opin-ion on Serbia adopted on 28 November 2013, No. ACFC/OP/III(2013)006, p. 6.

22 Tamás korhecz: National Minority Councils in Serbia. In: Tove H. Malloy – Aelxander oSiPov – Balázs v^izi (eds.): Managing Diversity through Non-Territorial Autonomy: Assessing Advantages, Deficiencies and Risks. Oxford University Press, Oxford, 2015, p. 73.

23 Tamás korhecz: Official Language and Rule of Law: Official Language Legislation and Policy in Vo-jvodina Province, Serbia. In: International Journal on Minority and Group Rights, 2008/4, pp. 457-488, at 481, Tibor várady: Minorities, Majorities, Law, and Ethnicity: Reflections of the Yugoslav Case. In: Human Rights Quarterly, 1997/1, pp. 9-54, at 18.

24 Tamás korhecz: Evolving legal framework and history of national minority councils in Serbia. In: Inter-national Journal of Public Law and Policy, 2019/2, pp. 116-137, at 119.

framework, such as problems with the implementation and effective protection of minor-ity rights, and other human rights requiring positive state action.²⁵

All the constitutions of Serbia from 1947 and onwards have contained some positive mi-nority rights, including even the 1990 Constitution, which was criticized for its restriction of minority rights.²⁶ This continuity and consistency might serve as legitimate grounds for the bold claim that the recognition and guarantees for minority rights has become a part of the constitutional identity of Serbia.²⁷ The rights of national minorities and persons belonging to national minorities in Serbia were extensively incorporated into the 2006 Constitution of Serbia, welcomed by international bodies.²⁸ This constitution of the newly independent Serbia incorporated almost entirely the provisions on minority rights from the Charter of Human and Minority Rights of Serbia and Montenegro (2003), but also added some further provisions, in doing so adding many new, constitutionally protected minority rights compared to 1990 Serbian constitution.²⁹

Provisions explicitly mentioning minority rights, protecting ethnicity, persons belonging to national minorities and guaranteeing special minority rights are present in the Pre-amble of the Constitution, and in not less than 37 articles of the total 206 articles of the Constitution³⁰ Even the Preamble of the Constitution makes a reference to minorities, stipulating: “Considering the state tradition of the Serbian people and equality of all citizens and ethnic communities in Serbia… the citizens of Serbia adopt…”

In the normative part of the Constitution, protection of national minorities is guaranteed first in Section One, titled Constitutional Principles, in Article 14, titled Protection of national minorities, which stipulates that “The Republic of Serbia shall protect the rights of national minorities” and that it guarantees special protection “for the purpose of exer-cising full equality and preserving their identity.”³¹

25 Advisory Committee on the Framework Convention for the Protection of National Minorities. Third Opin-ion on Serbia adopted on 28 November 2013, No. ACFC/OP/III (2013)006, p. 6, 54 and 55. European Commis-sion for Democracy Through Law (Venice CommisCommis-sion) Opinion on the Constitution of Serbia, no. 405/2006 adopted on the 70th. Plenary Session of the Commission, Venice, 17-18 March 2007, p. 5, 10. [Hereinafter:

Venice Commission Opinion]

26 várady 1997, pp. 21-26. Aelksandar fira: Ustavno pravo Republike Srbije i Republike Crne Gore. [Con-stitutional Law of the Republic of Serbia and Republic of Montenegro]. Agencija MIR, Novi Sad, 1995, pp.

184-185.

27 Tamas korhecz: Ustavna revizija i manjinska prava – u kojoj meri je reviziona vlast slobodna da menja posebna prava manjina u Ustavu Republike Srbije? [Constitutional Amendments and Minority Rights – to Which Extent is the Amendment Power Free to Change Certain Minority Rights in the Constituion of the Re-public of Serbia?]. In: Edin Š^arčević – Darko s^iMović (eds.): Reviziona vlast u Srbiji – Proceduralni aspekti ustavnih promena. [Amendment Power in Serbia – Procedural Aspects of the Constitional Amendments]. Fon-dacija Centar za javno pravo, Sarajevo, 2017, p. 141.

28 Venice Commission Opinion, p. 10.

29 Ibid. p. 7.

30 Constitution of the Republic of Serbia Preamble and Articles 1, 3, 5, 14, 18, 19, 21, 22, 43, 44, 47, 48, 49, 50, 55, 75, 76, 77, 78, 79, 80, 81, 100, 105, 108, 114, 166, 170, 180, 183, 190, 192, 199, 200, 201, 202, 203.

31 This constitutional provision greatly resembles the objects of minority protection defined by the Perma-nent Court of International Justice in its famous advisory opinion: “The first is to ensure that nationals belonging to racial, religious or linguistic minorities shall be placed in every respect on the footing of perfect equality with the other nationals of the State. The second is to ensure for the minority elements suitable means for the preservation of their racial peculiarities, their traditions and their national characteristics.” Minority Schools in Albania, Advisory Opinion, Series A. IB, Fascicule No.64. p. 17.

Section Two of the Constitution, titled Human and Minority Rights and Freedoms, in its second chapter, titled Human Rights and Freedoms, contains two articles specially linked to minority rights. Article 47 guarantees freedom of national affiliation, including the freedom that “No person shall be obliged to declare his national affiliation,” while Article 48 stipulates that “the state shall promote understanding, recognition and respect of diversity arising from specific ethnic, cultural, linguistic or religious identity of its citi-zens through measures applied in education, culture and public information.”

The main and most specific provisions guaranteeing minority rights are concentrated in Section Two of the Constitution in the separate Chapter 3, titled Rights of Persons Be-longing to National Minorities, in Articles 75-81. Article 75, titled Basic Provision, guar-antees in its first paragraph “special individual or collective rights in addition to the rights guaranteed to all citizens by the Constitution.” Paragraph two guarantees that as a collec-tive right “Persons belonging to national minorities shall take part in decision-making or decide independently on certain issues related to their culture, education, information and official use of languages and script,” while paragraph three concretizes this right and stipulates that these persons “may elect their national councils in order to exercise the right to self-governance in the field of culture, education, information and official use of their language and script in accordance with the law.”

Article 76 prohibits the discrimination of persons belonging to national minorities and guarantees equality before the law, with the possibility of specific provisional measures in various areas “aimed at eliminating extremely unfavourable living conditions which particularly affect them.” Article 77 stipulates “the right to participate in administering public affairs and assume public positions, under the same conditions as other citizens,”

adding also a positive affirmative obligation for various public authorities and public ser-vices that in the course of employment “the ethnic structure of population and appropri-ate representation of members of national minorities shall be taken into consideration.”

Article 78 strictly “prohibits the forced assimilation of members of national minorities”

and also “undertaking measures, which would cause artificial changes in the ethnic struc-ture of population in areas where members of national minorities live traditionally and in large numbers”.

Article 79 deserves special attention because it contains a catalogue of individual rights related to the preservation of the specific identity of the members of national minorities.³² This article stipulates in paragraph 1 “that members of national minorities shall have a right to: expression preservation, fostering, developing and public expression of national, ethnic, cultural, religious specificity; use of their symbols in public places; use of their language and script; have proceedings also conducted in their languages before” various public authorities “in areas where they make a significant majority of population; educa-tion in their languages in public institueduca-tions, founding private educaeduca-tional institueduca-tions;

use of their name and family name in their language; traditional local names, names of streets, settlements and topographic names also written in their languages, in areas

32 These rights are usually called individual minority special rights, they are a step above a non-discrimina-tion guarantee and they usually require positive state acnon-discrimina-tion. See: Georg B^runner – Herbert k^üPPer: European Options of Autonomy: A Typology of Autonomy Models of Minority Self-Governance. In: Kinga gál (ed.):

Minority Governance in Europe. Open Society Institute, Budapest, 2002, pp. 17-18.

where they make a significant majority of population;” complete, timely and objective information in their language, “including the right to expression, receiving, sending and exchange of information and ideas; establishing their own mass media, in accordance with the Law.” The second paragraph stipulates that if empowered by Law “in accord-ance with the Constitution, additional rights of members of national minorities may be determined by provincial regulations.”

Article 80 stipulates the rights to “found educational and cultural associations”, to which the state shall “acknowledge a specific role” in their exercise of rights, and also “the right to undisturbed relations and cooperation with their compatriots outside the territory of the Republic of Serbia.”

Article 81 reformulates the obligation of the state already stipulated in Article 48: “In the field of education, culture and information, Serbia shall give impetus to the spirit of tolerance and intercultural dialogue to achieve mutual respect, understanding and coop-eration among all people living on its territory.”

The Constitution contains several provisions guaranteeing special representation of na-tional minorities in elected parliamentary bodies in all levels of governance, though these provisions are formulated as state obligations and guarantees, not as specific rights.³³ Ar-ticle 100, paragraph 2, stipulates that “in the National Assembly, equality and representa-tion of different genders and members of narepresenta-tional minorities shall be provided, in ac-cordance with the Law.” A similar guarantee is provided in Article 180, paragraph 4, for the provincial and local assemblies: “In those autonomous provinces and local self-gov-ernment units with the population of mixed nationalities, a proportional representation of national minorities in assemblies shall be provided for, in accordance with the Law.”

Beyond the above described provisions on minority rights in the referenced 12 Articles, the Constitution provides other kinds of recognition and protection of national minorities in 25 additional articles.³⁴