Identity card in the Serbian language and Cyrillic script

The Police Department of the Primorje-Gorski Kotar County rejected the request of the applicant of the constitutional complaint from Rijeka to get a bilingual, more preciously a trilingual ID card: in Croatian and English and Latin script, and in the Serbian language and the Cyrillic script. The applicant of the constitutional complaint appealed against the Police Department’s decision to the Ministry of Interior Affairs of the Republic of Croatia.

Because the Ministry did not act on the appeal, the applicant filed a lawsuit in the Admin-istrative Court of Croatia because of silence of the administration. In accordance with the Administrative Court’s order the Ministry finally adopted the second-distance decision that has confirmed the first-instance decision of the police department, namely rejected the request again to issue a bilingual/trilingual ID card, so, the applicant of the constitutional complaint has extended his claim, which was submitted to the Administrative Court, on the content of the second-instance decision. In the analyzed case, the proceeding before the Constitutional Court was initiated against the Administrative Court judgment No. Us-9774/03-11 of 14 October 2004 which rejected the lawsuit challenging the Ministry’s sec-ond-instance decision No. 511-01-72-UP/II-943/1-03 of 3 October 2003.

The applicant of the constitutional complaint has referred to his right from the Article 9, paragraph 2 of the Constitutional Law on minority rights that regulates the possibility to print and fill in the form of ID cards in language and script of a national minority, as well.

According to his words, right to bilingual document “belongs to each member of a nation-al minority who asks for it, anywhere in the Republic of Croatia; notwithstanding whether the respective local municipality where the person has his registered residence and has requested issuance of his ID card regulates equality of minority language and script in official use”⁸³. The applicant explained his position by the fact that the Constitutional Law in the provision on the right to bilingual identity card⁸⁴ does not mention the official status of the minority language at all, nor does it refer to another law.

In the Constitutional law bilingual ID card as such is specially mentioned. There is no word about other public documents or forms in the given legal provision, there is no need for further elaboration in other laws in order to realize this right, that is, otherwise, the case with the right to personal name regulated in the same provision. According to the Constitutional law, “members of national minorities shall have the right to use their family name and first name(s) in the language they use… , in accordance with current regulations of the Republic of Croatia”⁸⁵. On the other side, according to the sectorial law on ID cards the basic rule is that the form of an ID card should be printed in Croatian and English and Latin script, and to be filled in exclusively in the Croatian language. The form for needs of a concrete person – member of national minority may be printed in mi-nority language, as well, and to be filled in in the respective mimi-nority language and script, besides Croatian, if a special law or a treaty regulates so.⁸⁶ Law on use of languages that has character of special law in this case prescribes: if a minority language is introduced

83 Point 2 of the decision of the Constitutional Court of the Republic of Croatia No. U-III-4856/2004 of 12 March 2007.

84 Constitutional Law on The Rights of National Minorities, Art. 9. Par. 2.

85 Ibid. Art. 9, Par. 1.

86 Zakon o osobnoj iskaznici (Law on ID cards), Narodne novine, br. 11/2002, Art. 8.

into official use in the municipality, city or county, public documents shall be issued bilingually or multilingually and other official designation forms shall be also printed in more languages⁸⁷. Similar solution is accepted by the bilateral treaty concluded between Serbia and Croatia on mutual protection of national minorities: “the contracting parties commit themselves to granting official use of languages and script of national minorities in territories where members of national minority live, in accordance with the internal legislation and adopted international legal standards, as follows: … in case of issuance of notarial documents, verifications and certifications; … in use of bilingual forms of state authorities ”⁸⁸.

Because the Constitutional law unconditionally recognizes the right to bilingual ID card in the entire territory of the state, on the one side, and the Law on use of languages binds realization of this right to the official status of the respective minority language, on the other side, a typical example of collision between the two laws exists. However, the court did not enter into deeper analysis of this problem: on the contrary, it has interpreted the discussed Article 9, paragraph 2 of the Constitutional Law together with its Article 12, paragraph 3 that prescribes that detailed elements and mode of the official use of minority languages shall be regulated by the Law on use of languages and scripts of national mi-norities, notwithstanding that the Constitutional Law does not refer to the provisions of this legal act in the concrete Article. “Actually, the court has given priority to a sectorial law over the Constitutional Law when it decided the case and rejected the constitutional complaint⁸⁹, disregarding the fact that in this way it has denied enforcement of a linguistic right”⁹⁰.

Based on the Maxim lex specialis derogat legi generali, the special law (either the Law on use of minority languages, or the Law on ID card) should apply that corresponds to the Constitutional Court’s approach in this issue. But whether it is fair to apply an act, either of general, or special nature, that contains less rights? This question is especially interesting in light of the practice of the Constitutional Court, deciding about an electoral case in which it has adopted a reverse decision.⁹¹ According to the court’s explanation, the Constitutional law prescribes “that minimum of rights that members of national mi-norities must have in field of minority representation in representative bodies of local and

87 Law on the Use of Language and Script of National Minorities, Art. 9, para. 1.

88 Zakon o ratifikaciji sporazuma između Srbije i Crne Gore i Republike Hrvatske o zaštiti prava srpske i crnogorske manjine u Republici Hrvatskoj i hrvatske manjine u Srbiji i Crnoj Gori (Law on Ratifikacion of the Treaty between Serbia and Montenegro and the Republic of Croatia on the Protection of Right of the Serbian and the Montenegrin Minority in the Republic of Croatia and the Croatian Minority in Serbia and Montenegro), Službeni list SCG – Međunarodni ugovori, br. 3/2005, Art. 6, para. 2, point 4, 6.

89 Decision of the Constitutional Court of the Republic of Croatia No. U-III-4856/2004 of 12 March 2007.

90 Katinka BereTka: Ustavnosudska praksa u Republici Hrvatskoj u oblasti zaštite prava nacionalnih manjina. [Constitutional court practice in the Republic of Croatia in field of protection of national minority rights]. In: Petar Teofilovic (ed.): Nation, Community, Minority, Identity: The Protective Role of Constitutional Courts. Innovariant, Szeged, 2020, pp. 41–58. at p. 271.

91 In the Brod-Posavina County the members of the Serbian national minority did not get adequate rep-resentation in the county’s parliament, because the Croatian State Electoral Commission has based its deci-sion on the Article 20 of the Constitutional Law instead of the Article 104 paragraph 1 of the Law on local elections. The latter would guarantee one parliamentary seat for the Serbian community, still according to the Constitutional Law (that was applied in the respective case) they got zero mandate. The Constitutional Court has annulled to the electoral results (decision of the Constitutional Court of the Republic of Croatia No.

U-VII-3122/2013 of 4 June 2013).

regional municipalities (counties) (5% of the local population or right being regulated by the local/regional statute), still by a special law, in this case by the Law on local elections […] this right might be even extended”⁹². In this case the situation was converse than in the case on bilingual ID cards, because the Constitutional Law as lex generalis contain more rights than the lex specialis.

“According to the Croatian constitutional practice, the Constitutional Law seems to be lex generalis if it is in conflict with a special law, notwithstanding, whether it contains more rights for national minorities or not, in comparison with the sectorial law (lex special-is)”⁹³. The Constitutional Court did not discuss at all the opportunity of the issuance of ID cards in Serbian and Cyrillic script in a local municipality, in which territory the Serbian language did not have the status of equal official language because that was not regulated by special law; even though the court should be guided by principles that ensure “respect for the members of national minorities and other citizens of the Republic of Croatia to promoting understanding, solidarity, tolerance and dialogue among them”⁹⁴ in case of any doubt regarding the interpretation of the Constitutional Law’s provisions and other acts in field of minority rights.

In a hypothetic case of accepting the constitutional complaint, the Constitutional Court decision would create potential for issuing ID cards in the Serbian language and Cyrillic script in the entire territory of Croatia that was not the legislator’s goal in accordance with the court’s latent explanation. Such extensive interpretation of the legislator’s intention might be seemed even as court activism in the respective case: “Court activism arises when courts are concerned not only about adjudication of legal disputes, but their goal is to create social policies by which their capture much more people and interest than in deciding individual cases”⁹⁵.

On the other side, the applicant of the constitutional complaint has based its claim on the violation of constitutional rights guaranteed in the Article 14, paragraph 1 (prohibi-tion of discrimina(prohibi-tion), the Article 14, paragraph 2 (equality before law), the Article 15, paragraph 4 (freedom to use minority language and script), the Article 29, paragraph 1 (right to a fair trial) and Article 32 of the Constitution (liberty of movement and freedom to choose residence) which rights, according to the Constitutional Court’s analysis, were not violated by the refusal to issue a bilingual ID card; as it was already stated noticed in the previous chapter the court examines the possible violation of rights only within the reasons explicitly indicated in the constitutional complaint. The applicant of the constitu-tional complaint would probably have a better chance of “winning” if he invoked a breach of legal certainty due to a clear conflict between the regulations in the present case.

92 Point 3 of the decision of the Constitutional Court of the Republic of Croatia No. U-VIIA-3004/2013 of 26 May 2013.

93 BereTka 2020, pp. 272.

94 Constitutional Law on The Rights of National Minorities, Art. 8.

95 Arsen bačić: O sudskom aktivizmu ili o političkoj ulozi sudova. [On court activism or political role of courts] In: Politička misao –Croatian political science review, 2008/2, p. 106.