In accordance with the prevailing conceptions of the international literature “the terms historical, traditional, and autochthonous minorities – the ‘old minorities’ – refer to com-munities whose members have a distinct language, culture, or religion as compared to the rest of the population and who have become minorities through the redrawing of international borders, having seen the sovereignty of their territories shift from one coun-try to another;”3 still ‘new minorities’ are defined as groups formed by individuals and families with migratory background, who have left their homeland because of economic or political reasons (refugees, migrants). On the other hand, there is a serious difference between the various categories of new minorities, especially when this notion is explored in a different context, in the light of developments in the Western Balkans since the early 1990s.
In the last three decades, countries in the region have, without exception, faced a number of challenges resulted by political, economic and social transformation since the break-up of socialist Yugoslavia. In addition to building break-up friendly bilateral relations among the newly constituted independent nation-states in the Balkans, the states had to make serious efforts to alleviate conflicts within their borders, which often arose as a necessary outcome of the changes in the ethnic-linguistic-religious structure of the respective state’s population. The former constituent peoples of the member states of the Socialist Federal Republic of Yugoslavia (Serbia, Croatia, Slovenia, Montenegro, Macedonia and Bosnia and Herzegovina) suddenly had found themselves in minority position with similar or the same status, rights and duties as traditional minority communities (namely, nationalities of the SFRY). Citizens who neither belong to national majority of the given country of the Western Balkans, nor held position of national minorities until the fall of the federal
1 PhD, associate professor at the Faculty of Legal and Business Studies “Dr Lazar Vrkatić” in Novi Sad, University UNION.
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. The original version of this paper in Serbian is going to be published in the Annul for Sociology, edited by the University of Niš, Faculty of Philosophy.
3 Roberta Medda-windisCher: Old and New Minorities: Diversity Governance and Social Cohesion from the Perspective of Minority Rights. In: Acta Universitatis Sapientiae, European and Regional Studies 2017/1, pp.
25–42 at pp. 26–27.
structure, also called new minorities.4 They have begun to improve their institutions only in recent times, or they are still in the phase of organization,5 in comparison with the traditional/old minorities who are much more effective in enforcement of their rights because of experience in long-lasting fights for them. Although there is an opinion that differentiation of these minority categories has sense only in context of political attitudes towards them and in reality, both kinds are treated equally,6 each state has sovereign right to categorize or not categorize its ethnic groups, and to make or not make difference re-garding the legal status of old and new minorities. For the sake of example, in Slovenia the Hungarian and the Italian national community are “autochthonous communities” by the Constitution itself, and whose rights are regulated in special law7,8 still the Roma peo-ple (the Roma community) enjoy wide range of rights by special law, as well, but without constitutionally recognized autochthonous status.9,10 The other minority groups, includ-ing new ones, have only limited rights: e.g. they can use their mother tongue in official communication only through interpreter. The constitutional categorization of minorities in this example is not the result of the size of a given minority population in Slovenia, but
“the length of their continuous coexistence with the majority Slovenian people in certain parts of today’s Slovenia throughout history, and probably their cultural and religious closeness to the majority people.”11
In the Republic of Croatia there is no legal differentiation between national minorities similar to the Slovenian model. In the historical foundations of the Constitution of the Republic of Croatia, Croatia is defined “as the national state of the Croatian nation and the state of the members of autochthonous national minorities: Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians and Ruthenians and the oth-ers who are citizens,”12 who are guaranteed equality both with other minorities and the national majority. The legal definition of national minority also does not divide minorities into separate groups: “a national minority […] shall be considered a group of Croatian citizens whose members have been traditionally inhabiting the territory of the Republic of
4 Dario kunTić: Minority Rights in Croatia. In: Croatian International Relations Review 9 2003/30-31, pp.
33−39, at 35.
5 Siniša TaTalović: Nacionalne manjine i hrvatska demokracija. [National minorities and the Croatian de-mocracy]. In: Politička misao 43 2006/2, pp. 159–174, at p. 172.
6 Nada raduški: Srbi od konstitutivnog naroda do nacionalne manjine. [Serbs from a constituent nation to a national minorty]. In: Srpska politička misao 36 2012/2, pp. 443−459, at p. 445.
7 Status and special rights of the Italian and Hungarian national community is regulated by the Law on Self-Governing National Communities. Zakon o samoupravnih narodnih skupnostih, Uradni list RS, št. 65/94 in 71/17.
8 Ustav Republike Slovenije (Constitution of the Republic of Slovenia), Uradni list Republike Slovenije, št.
33/91-I, 42/97 – UZS68, 66/00 – UZ80, 24/03 – UZ3a, 47, 68, 69/04 – UZ14, 69/04 – UZ43, 69/04 – UZ50, 68/06 – UZ121,140,143, 47/13 – UZ148, 47/13 – UZ90,97,99 in 75/16 – UZ70a, Art. 5 and 64.
9 Constitution of the Republic of Slovenia, Art. 65.
10 Status and special rights of the Roma community is regulated by the Law on the Roma Community in the Republic of Slovenia. Zakon o romski skupnosti v Republiki Sloveniji, Uradni list RS, št. 33/07.
11 Petar Teofilović: Praksa Ustavnog suda Slovenije u oblasti prava nacionalnih manjina. [Practice of the Constitutional Court of Slovenia in field of national minority rights]. In: Petar Teofilovic (ed.): Nation, Community, Minority, Identity: The Protective Role of Constitutional Courts. Innovariant, Szeged, 2020, p. 219.
12 Ustav Republike Hrvtaske (Constitution of the Republic of Croatia), Narodne novine, br. 56/90, 135/97, 113/00, 28/01, 76/10, 5/14, Historical foundation, Par. 2
Croatia and whose ethnic, linguistic, cultural and/ or religious characteristics differ from the rest of the population.”13
According to the population census held in 2011, 7.67% of the 4.284.889 registered inhab-itants is (was) a member of a national minority, but none of the minority groups crossed the threshold of 1%, except the Serbian national community that constitutes 4.36% of the total population in Croatia.14 Because of their specific political-historical position Serbs in the Croatian society are still between integration and assimilation, and towards whom members of the Croatian nation maintain the biggest social distance.15 Regardless of the formal protection of minority rights, including collective rights, provided for in various legal regulations, Serbs, due to their territorial dispersion, can rarely fully exercise them,16 especially in case of enforcement of language rights before public bodies. During the fifth monitoring cycle of the application of the European Charter for Regional or Minority Languages in Croatia,17 the Committee of Experts has highlighted that “difficulty us-ing Serbian and the Cyrillic script were identified as a particular problem” and “Serbian speakers often refrain from using the Cyrillic script because of fear of resentment.”18 This constatation of the Committee has been confirmed in the sixth, ongoing cycle as well, even though they added that the deficits in some fields have even worsened. The first and especially emphasized recommendation of the Committee was to extend equal and official use of Serbian and its script in regional and local authorities to additional munici-palities; but the importance of this field is underlined by the fact, too, that the further four recommendations (from the total six) referred to official use of languages as well (and one-one to information and education). It was recommended to take measures in order to promote submission of written applications, publication of official texts and forms in Serbian (Cyrillic script), to use Serbian in public services provided by administrative au-thorities and promote the use or adoption of place names in this language.19
In 1954, in Novi Sad (Serbia) the leading writers and linguists of the Serbo-Croatian, as the language was named in Serbia, and Croato-Serbian language, as it was named in Croatia – agreed on the unification of the terminologies of the Serbian and the Croatian language, and production of common orthography (the so-called Novi Sad Agreement) that was more than desirable for the newly formed community of friendly nations in the atmosphere of brotherhood-unity (Bugarski 2004, 28). But the common language stopped to officially exist by the breaking up of Yugoslavia: “A child of the Yugoslav idea from the very start, it shared its fate and was now buried, appropriately enough, in the same
13 Ustavni zakon o pravima nacionalnih manjina (Constitutional Law on The Rights of National Minorities), Narodne novine, br. 155/02, 47/10, 80/10, Art. 5.
14 Državni zavod za statistiku Republike Hrvatske: Popis 2011 jer zemlje čine ljudi ‒ Popis stanovništva, kućanstava i stanova 2011 ‒ Stanovništvo prema državljanstvu, narodnosti, vjeri i materinskom jeziku [Census 2011 because people make countries – Census of population, households and flats in 2011 – Population according to citizenship, ethnicity, religion and mother tongue]. Zagreb, Statistička izvešća, 2013, p. 11.
15 raduški 2012, p. 451.
16 Ibid. p. 452.
17 The Charter entered into force in Croatia on 1 March, 1998. Currently the sixth monitoring cycle is pend-ing, and the final recommendation of the Committee of Ministers is waiting for.
18 Committee of Experts, Report of the Committee of Experts presented to the Committee of Ministers of the Council of Europe in accordance with Article 16 of the Charter, Sixth Report. Croatia. Strasbourg, 10 March 2020. No. MIN-LANG (2019) 18, p. 16.
19 Ibid. pp. 47–48
tomb with the federation whose precarious unity it had symbolized and in part supported”
(Bugarski 2004, 30). That is why it is not surprising that the use of the Cyrillic alphabet, which is the only alphabet mentioned by name in the Constitution of the Republic of Ser-bia, and which is in official use on the territory of Serbia without the need for further legal elaboration (Constitution of the Republic of Serbia, Art. 10)20, has become the political symbol of identity politics of the Serbian nation both within the Serbian borders and in the diaspora. “Some Serbs and Montenegrins equalize the Cyrillic script with ethnicity, even with the orthodox religion, still the Latin script with something that is strange to their own culture, with something foreign, with the Catholicism” (Bagdasarov 2018, 51).
“The Croatian language and the Latin script shall be in official use in the Republic of Croatia,” but under conditions specified by law another language and its script may be introduced into official use in individual local units, as well.21 The fact that the Cyrillic script is distinctly named in the given constitutional provision – “another language and the Cyrillic or some other script may be introduced into official use” (Constitution of the Republic of Croatia, Art. 12, para. 2) – points out the relevance of this social-political theme not only in the Croatian society as such but at the level of the highest legal act, the constitution, too.
In the last times, regulation of the status of different languages in official communication has got more attention which is stipulated by two processes: 1) formation of new nation states in which the state power tries to homogenize otherwise heterogenous population by a common language (state language or official language), and 2) exchanged role and extended functions of states in almost every field of social life has increased the number of interactions between citizens and public authorities that might be more efficient and effective only in language.22 Having in mind that nation states have often emerged on multilingual, multicultural territories where people used different languages, it is under-standable that forcing use of one single, acceptable language – usually the language of national majority – on the rest of the population might cause resistance by other national-ities, both old and new national minorities. On the other side, these linguistic rights have the most (direct) contact with politics, and as such may more reliably reflect the actual political and social relations in the country.
Besides general presentation of legal regulation of nationalities’ linguistic rights in Cro-atia and basic competences and portfolio of the Constitutional Court’s practice in field of protection of these rights, the paper is searching for the answer to the question whether the Constitutional Court of Croatia succeeded to remain politically neutral in usually politically motivated or inspired processes when it had to make decision about right of minorities on use of their mother tongue and script in official use – especially in case of linguistic rights of the Serbian community living in Croatia. Or whether at least he was trying to be protective of national minorities.
20 Ustav Republike Srbije (Constitution of the Republic of Serbia), Službeni glasnik Republike Srbije, 98/2006.
21 Constitution of the Republic of Croatia, Art. 12.
22 Tamás korheCz: A hivatalos nyelvhasználat szabályozása Svájcban [Regulation of official use of langauge in Switzerland]. In: Létünk, 2013/special edition, pp. 92–112. at pp. 95–96.