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Concepts of National and Constitutional Identity in Croatian Constitutional Law

Jurij Toplak University of Maribor, Faculty of Law, Maribor, Slovenia Alma Mater Europaea ECM, Maribor, Slovenia ;

Djordje Gardasevic University of Zagreb, Faculty of Law, Zagreb, Croatia

Abstract

The Croatian Constitutional Court recently rendered two important decisions con- cerning two national minorities’ rights: the right to vote in parliamentary elections; and the right to use minority language. In both decisions, the Court relied on a newly developed concept of Croatian national identity. This article explores and critically explains the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. In addition, it evaluates the potential effects this new constitutional concept may have for future developments in Croatia’s political and constitutional system. This article also compares Croatian and Slovenian solutions to certain questions as the Slovenian Constitutional Court has ruled on strikingly similar issues, but arrived at different conclusions.

Keywords national identity – minority representation – minority protection – right to vote – ­language – constitutional court

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264 Toplak and Gardasevic

1 Introduction

The implementation of European standards of minority protection in Croatia has been a strenuous effort.1 In that connection, in 2011 and 2014, the Croatian Constitutional Court delivered two important decisions on two national mi- norities’ rights: the right to vote in parliamentary elections; and the right to use a minority language. The controversy in the first case, set out in a decision dated 29 July 2011, arose from amendments to the Constitutional Act on the Rights of National Minorities and the Act on Parliamentary Elections, which introduced a new voting model for national minorities. According to this new model, persons belonging to certain minorities were given ‘dual’ voting rights, while other mi- norities were guaranteed ‘reserved’ seats in the parliament within the wider scheme of a general right to vote granted to all citizens. The Court struck down the amendments and explained that this new voting model violated the prin- ciples of equality and a democratic multiparty system. In addition, the Court ruled that the disproportional representation of various national minorities was not justified. The second case, set out in a decision dated 12 August 2014, dealt with the popular referendum initiative, which sought to amend this same Act by pre- scribing that minority languages in local units could be used officially only where minorities made up at least half of the population. The Court declared the initiative unconstitutional and explained that the Constitution was not a value-neutral document, but was rather based on principles of national equal- ity, non-discrimination, and respect for human rights and the rule of law. It also explained that a democracy based on the rule of law and on the protection of human rights represents the only political model recognized by the Con- stitution; that pluralism requires respect for diversities and particular identi- ties, as well as dialogue and search for a balance which negates any abuse of a dominant position. The Constitutional Court ruled that national minorities’ languages must be qualified as universal and constant values which determine the identity of the Croatian constitutional state. Consequently, according to the Court, any increase of the threshold required to activate the collective rights of minorities must be rationally justified, must have a clearly expressed

1 For more detail on the difficulties in implementation of international minority-rights law in Croatia and other Western Balkan states, see Alice Engl and Benedikt Harzl, “The Inter- relationship between International and National Minority-Rights Law in Selected Western Balkan States”, 34(4) Review of Central and East European Law (2009), 307–355.

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Concepts of National and Constitutional Identity 265 legitimate aim that is in the public interest, and must be necessary in a demo- cratic society. Most notably, in these two decisions the Court offered and referred to a newly emerged ‘benchmark’ tool of constitutional interpretation – the idea of ‘constitutional identity’. Arguing that it stems from the various provisions and principles of Croatia’s founding document, including its Preamble, the Court not only generally implied that the concept may not be abrogated, but that it should be used as the most stringent means of scrutinizing governmental or popular legal initiatives. The aim of this article is to explore and critically explain the wider social, political and legal context that has produced the emergence of the idea of a constitutional identity in Croatian constitutional jurisprudence. Furthermore, the article evaluates the potential effects this new constitutional concept may have for future developments in Croatian constitutional law. It first describes the two cases and compares them to the case law of the Slovenian Constitu- tional Court. The Slovenian Court ruled on strikingly similar issues, but some- times came to different conclusions. The article then presents and discusses the wider implications of such constitutional-law concepts as Croatian nation- al and constitutional identity.

2 Representation of Minorities in the Parliament

2.1 Parliamentary Representation of Minorities in Croatia Numerous authors have stressed the importance of including minorities in decision-making processes at both the local and national level. Lijphart called for coalition governments in which “all significant segments of the plural society”2 are represented through a proportionality system, a mutual veto, and other measures, which enhance power sharing. Later on, he developed his ar- gument further and showed that ‘consensus democracies’ are far better than ‘majoritarian’ ones, as they have numerous advantages for divided societies.3 However, there is less consensus in both academia as well as in societies that live together, with regard to how their interrelationships should be organized. Marko, after examining models for integration, assimilation, autonomy and segregation, and after demonstrating that both the ‘multinational state with territorial delimitation’ as well as the ‘neutral-civic-state-nation’ concepts are

2 Arend Lijpjart, Democracy in Plural Societies: A Comparative Exploration (Yale University Press, New Haven, 1977), 25. 3 Arend Lijphart, Patterns of Democracy (Yale University Press, New Haven, 1999).

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266 Toplak and Gardasevic unsuccessful, presents and suggests a ‘Unity in Diversity’ model.4 Other au- thors have focused on the economic effects of ethnic diversity and the inclu- sion of minorities.5 Whereas each country is different, there is still much to be learned from a selection of good examples.6 The current Croatian electoral system was defined in 1999 by the Act on the Elections of Representatives in the Croatian Parliament.7 This Act established three categories of voters. First of all, Croatian citizens vote in ten ‘general’ electoral units, with each unit providing fourteen representatives. The second group consists of citizens who reside outside of the state, the so-called ‘diaspo- ra’. They elect their special representatives in the eleventh electoral unit. Sub- sequent to the 2010 amendments to Croatia’s Constitution, the diaspora voters can now, through a fixed quota model, elect three representatives in total. Finally, citizens who are of other nationalities elect eight representatives in the twelfth electoral unit in accordance with a special formula: Serbs elect three representatives; Italians and Hungarians elect one representative each; Czechs and Slovaks elect one representative together; Albanians, Bosnians, Montenegrins, Macedonians and Slovenians also elect one representative to- gether; and all other minorities also elect one parliamentary representative. Therefore, the Croatian Parliament has one hundred and fifty-one representa- tives. Authors have stressed that this particular scheme provokes the greatest number of problems in cases where minorities together elect one parliamenta- ry representative.8 Apart from that, the Croatian Constitution, as amended in

4 Joseph Marko, “United in Diversity: Problems of State-and-Nation-Building in Post-Conflict Situations: The Case of Bosnia-Herzegovina”, 30(3) Vermont Law Review (2006), 503–550. 5 See primarily Alberto Alesina and Eliana La Ferrara, “Ethnic diversity and economic perfor- mance”, 43(3) Journal of Economic Literature (2005), 762–800. While most of the literature shows the benefits of the inclusion of minorities, opposite views also exist. Nikolov and Bro- sio, for example, argue that the ethnic diversity of Macedonia’s local authorities has a nega- tive impact on the efficiency of municipalities. Marjan Nikolov and Giorgio Brosio, “Efficient Delivery of Local Public Services in Ethnically Fragmented Municipalities”, 13(3) Lex Localis (2015), 299–319. 6 South Tirol is usually mentioned as a model. See Joseph Marko, “Is There a South Tyrolean ‘Model’ of Conflict Resolution to Be Exported?”, in Jens Woelk, Joseph Marko and Francesco Palermo (eds.), Tolerance through Law: Self Governance and Group Rights in South Tyrol (Mar- tinus Nijhoff Publishers, Boston, Leiden, 2008), 371–388. 7 For an overview of minority representation before 1999, see Snezana Trifunovska, “Minority Rights in Croatia”, 6(4) International Journal on Minority and Group Rights (1999), 463–482. 8 Actual disproportions can be quite disturbing. For instance, in 2007, the candidate elected for the most populous group from those groups mentioned above acquired no more than 351 (12.76 percent) of all the votes in this special electoral unit. The same observations have also been made in reference to other minority groups defined in the same manner and the

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Concepts of National and Constitutional Identity 267

2000, prescribes that “Besides the general right to vote, the special right of the members of national minorities to elect their representatives into the Croatian Parliament may be provided by law.”9 In June 2010, the Croatian Parliament enacted amendments to the Consti- tutional Act on the Rights of National Minorities, which, among other things, envisaged a new scheme for the election of the parliamentary representatives of national minorities. According to that new scheme, two new categories of national minorities were defined. On one hand, the Constitutional Act pre- scribed that those national minorities that exceeded one and a half percent of the population on the day of entry into force of the Act were guaranteed at least three seats in the Croatian Parliament. Such representation was to be achieved on the basis of the general right to vote in general electoral units for party lists of such minorities or for lists proposed by voters of national minori- ties, in accordance with the law organizing parliamentary elections. On the other hand, national minorities that constituted less than one and a half per- cent of the general population were given dual voting rights: apart from having a right to vote for general electoral lists in general electoral units, they were also given a special right to elect at least five of their minority parliamentary representatives in special electoral units. In its explanation for introducing the new model, the Croatian government, which had proposed the amendments to the Constitutional Act, put forward that it wanted to pursue two special models of positive discrimination for its national minorities’ right to parliamentary representation. The government based this claim on other provisions of the Constitutional Act that prescribed that the rights and freedoms of national minorities, as fundamental rights and freedoms, make up an inseparable part of the democratic system of the Repub- lic of Croatia. Thus, national minorities are given special support and protec- tion, including passing positive measures in their favor.10 The realization of certain rights and freedoms of national minorities was possible as it was to be

phenomenon seems to be an ongoing problem. See Robert Podolnjak, “Hrvatsko izborno zakonodavstvo: moguce i nužne promjene” [Croatian Electoral Legislation: Possible and Necessary Changes], 45(2) Zbornik radova Pravnog fakulteta u Splitu (2008), 305–343, at 327. Moreover, it seems that such a situation amounts to both an “active manipulation” of electorates, i.e., a situation “…when the distribution of seats leads to unequal repre- sentation from the first time it is applied” and a “passive” one, i.e., “…when it results from maintaining the distribution of seats across the territory unchanged for a long time. See Council of Europe, Electoral Law (Council of Europe Publishing, Strasbourg, 2008), 65. 9 Art.15/3 of the Croatian Constitution. For the text of the Constitution of the Republic of Croatia in English, see: . 10 Art.3/1 of the Constitutional Act.

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268 Toplak and Gardasevic determined on the basis of the numerical participation of national minorities in the state or in some of its parts and on the basis of the already ‘acquired’ rights of national minorities.11 Eventually, the amendments to the Constitu- tional Act were enacted by the required two-thirds parliamentary majority. However, shortly after their enactment, the new electoral rules provoked multiple attacks by several organizations and individual applicants who sought constitutional review of the amendments to the Constitutional Act. The objec- tions of those applicants were based on various arguments. A first argument consisted of the idea that the new model discriminated against the most popu- lous Serbian minority, which was the only one that exceeded the one and a half percent threshold, because those belonging to all other minorities were given dual voting rights. The second argument offered a mathematical calcula- tion which showed an imbalance in the relative weights of votes required by different categories of voters in order to elect parliamentary representatives.12 According to the third argument, the new model was unconstitutional because it favored the largest national minority. In the view of the applicants, this was due to the fact that its candidates were to be elected in general electoral units along with the candidates of the general population, however, unlike the lat- ter group, such candidates could never lose the elections because their right of representation in the Parliament was assured. In addition, the applicants argued that, in order to be constitutionally acceptable, the Constitutional Act would have to either abolish the dual voting right completely or extend it to all national minorities. Following these motions for constitutional review, in July 2011, the Croatian Constitutional Court struck down the new electoral rules.13 In its review, the Court examined three issues that it found to be of crucial importance: First, whether it was constitutionally acceptable to provide for reserved parliamenta- ry seats for national minorities within the scope of the general electoral system based on the equal and general right to vote. Second, whether it was generally acceptable to grant national minorities rights to dual voting. Third, whether it was acceptable to introduce dual voting rights as belonging to some and not

11 Art.4/6 of the Constitutional Act. 12 One of the applicants divided the total number of registered voters in general electoral units, as well as the total number of Serbian minority voters and other national minori- ties’ voters with the number of representatives each one of these categories had a right to elect (140, 3 and 5). He argued that, while 28,408 votes were needed to elect one out of 140 representatives for general parliamentary mandates, the Serbian minority was required to collect 67,210 votes for one mandate and other national minorities 25,950 votes for the same purpose. 13 Constitutional Court of the Republic of Croatia, Decision U-i-3597/2010 of 29 July 2011.

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Concepts of National and Constitutional Identity 269 all national minorities. The Court’s interpretive approach started with a com- prehensive proposition on the very nature of the Croatian Constitution as the document that is not a ‘value-neutral’ source of law. The Court stressed that:

The Constitution is a single whole. It cannot be approached by pulling one provision out from the entirety of the relations that it constitutes and then interpreting it separately and mechanically, independently of all the other values that are enshrined in the Constitution. If it is viewed as unity, the Constitution reflects some all-encompassing principles and basic decisions in connection with which all its individual provisions must be interpreted. Thus no constitutional provision may be pulled out of context and interpreted independently. In other words, each particular constitutional provision must always be interpreted in accordance with the highest values of the constitutional order which are the grounds for interpreting the Constitution itself.14

After establishing that such a ‘structural unity’ of the Croatian Constitution also presupposes the existence of a kind of ‘objective order of values’ embed- ded in the document which the Court is obliged to protect, the Court proceed- ed to examine the first of the above-mentioned issues. The centerpiece of the Court’s argument was grounded in the constitutional vision of the concept of ‘the People’, which was found to be based on several constitutional definitions. The Court first stressed that the Preamble to the Constitution contained the concept of the ‘Constitutional Identity of the Republic of Croatia’. The specific part of the Preamble to which the Court referred provides as follows:

… the Republic of Croatia is hereby established as the nation state of the Croatian nation and the state of the members of its national minorities: Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians, Rusyns, Bosniaks, Slovenians, Montenegrins, Macedonians, Russians, Bulgarians, Poles, Roma, Romanians, Turks, Vlachs, Albanians and others who are its citizens and who are guaranteed equality with citi- zens of Croatian nationality and the exercise of their national rights in compliance with the democratic norms of the United Nations and the countries of the free world.15

14 Ibid. Where a Court decision is not available in English, all translations are by the authors, unless otherwise stated. 15 The Preamble of the Croatian Constitution (Section 2).

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270 Toplak and Gardasevic

In addition, the Court referred to several other constitutional provisions which prescribe that the Republic of Croatia is a democratic state in which power derives from the people and rests with the people as a community of free and equal citizens, and that the people exercise this power, apart from direct-­ decision making, through the election of its representatives.16 These principles also stipulate that equality in general and national equality – together with the model of a multiparty democratic system – represent the highest values of the constitutional order and as such serve as a basis for interpretation of the Constitution. Hence, all constitutional values must be realized without any discrimination on any basis.17 The Court, finally, pointed out that, according to the Constitution, those Croatian citizens who have reached eighteen years of age were entitled to universal and equal suffrage in elections for the Parlia- ment, in accordance with the law, and that the Parliament can have no less than 100, and no more than 160, representatives elected on the basis of direct, universal and equal suffrage by secret ballot.18 On the basis of these provisions, the Court proceeded to state that the con- cept of ‘the People’ as it was envisaged in the Constitution, and which emerged from the ‘civil concept of the State’, was to be understood as a community of all of Croatia’s citizens, who are free and equal, regardless of their strict national origin. Consequently, the Court concluded that the Constitution forbade any law securing reserved parliamentary seats, in advance and within the general electoral system, for any type of social minorities, including national minori- ties. According to the Court, the Constitutional Act, by distinguishing one mi- nority group on the basis of its national origin, divided the concept of ‘the People’ in a constitutionally unacceptable manner. Moreover, in the Court’s view, the law violated the principle of equal voting rights. On the other hand, the Court stressed that its previous conclusions neither prevented national minorities from having their reserved parliamentary seats outside of the general electoral units nor forbade the possibility that several other types of positive measures for those minorities could be designed. Such measures included the possibility that national minorities’ political parties could participate in elections based on general and equal suffrage, the setting up of a different electoral threshold for minorities’ parties, or the changing of electoral district boundaries with the intention of benefitting the participation of minorities in elections.19

16 Art.1 of the Croatian Constitution. 17 Arts.3 and 14 of the Croatian Constitution. 18 Arts.45 and 72 of the Croatian Constitution. 19 For various options, the Court referred to the reports of the Council of Europe’s Venice Commission. See Venice Commission Report on electoral rules and affirmative action for

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Concepts of National and Constitutional Identity 271

With regard to whether it was acceptable to give national minorities the right to dual voting, the Court principally focused on the interpretation of Ar- ticle 15/3 of the Croatian Constitution and its formulation regarding the ‘spe- cial right’ of the members of national minorities to elect their representatives to the Croatian Parliament. Here, the Court first, quite rightly, stated that such a concept of a ‘special right’ could indeed include the right to dual voting, but that, alternatively, it might also be expressed in other ways. Even though the Court did not expressly specify what such other ways of further defining the ‘special right to vote’ could be, one can infer that those would probably include all ranges of measures aimed at some kind of acceptable positive discrimina- tion for national minorities.20 On the other hand, the Court went on to link the right to the ‘second’ vote to the very nature of the mandate of national minorities’ parliamentary repre- sentatives, who were elected on the basis of such a second vote. The Court con- cluded that the mandates of these representatives needed to be distinguished from those of representatives elected in the general electoral units because they would be elected exclusively on the basis of these ‘second’ votes of mi- nority voters. As such, their election would not be the result of the will of the People in general. The Court also pointed out that, prior to the activation of the ‘second vote’ model, a special law of strictly constitutional legal force needed to be enacted in order to work out the details defining such special mandates. In other words, Members of the Parliament who would hold these special mandates might or might not have the same powers as other representatives. Consequently, since the contested Constitutional Act was on the level of the Constitution within the legal hierarchy, the Court concluded that the dual vote model was unconstitutional.21 Apart from that, the Court examined the Constitutional Act from the point of view of its rational basis, justification and conformity with the principle of

national minorities’ participation in decision-making process in European countries, cdl- ad(2005)009, 11–12 March 2005, § 68. 20 A range of measures mentioned by the Court could be applied, including the concept of reserved parliamentary seats. Lublin and Wright see reserved seats as a highly plausible method of minority representation. See David Lublin and Matthew Wright, “Engineering inclusion: Assessing the effects of pro-minority representation policies”, 32(4) Electoral Studies (2013), 746–755. 21 Despite its formal title, the Constitutional Act on the Rights of National Minorities in the Croatian Constitutional System has a legal value of so-called “organic law” because, even though it must be adopted by a two-thirds “constitutional” majority of the Parliament, it is enacted by ordinary legislative procedure. Art.83 of the Croatian Constitution.

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272 Toplak and Gardasevic proportionality. In this part of its decision, the Court referred to the Report of the Venice Commission on dual voting of national minorities.22 It concluded that the Constitutional Act was objectionable for several reasons: the govern- ment, when proposing the Act, did not specify whether some alternative and less restrictive measures in terms of equality of voting rights in general were actually possible; it did not particularly justify the introduction of the dual vote model as indispensable, along with the scheme of the ‘reserved’ parlia- mentary seats for national minorities; it did not explain the sustainability of the measure itself which could have been applied only as a measure of transi- tory character; and the proposed measure of dual voting was not proportional to the objective sought because it had not been proved that it could guarantee better integration of minorities than the concept of ‘reserved seats’. On the third issue – whether it was acceptable to introduce dual voting rights as belonging to some and not all national minorities – the Court said that such a solution could be constitutional under the condition that it did not provoke a clear discrimination against those minorities that have not been granted a right to dual voting. In other words, the emphasis here was given to the consequences of the dual voting measure and the Court found that the largest national minority, as opposed to all other minorities, in fact was not discriminated against because its candidates could run for parliamentary elec- tions in general electoral units. Accordingly, since they could have received votes of all the voters in those general electoral units, and not just of those belonging to national minorities, they had greater chances to be elected than candidates of other minorities who would run in special electoral units. The Constitutional Court provided a reasonable and substantiated explana- tion for its decision on dual voting rights and properly applied the standard tests for reviewing the constitutionality of laws as related to the requirements of equality and proportionality. The constitutional formulation of the ‘special right’ of members of national minorities to elect their representatives in the Croatian Parliament is in itself a wide legal standard that allows for various interpretations, but it seems that its extension to dual voting rights indeed was unjustified. The same conclusion was also stressed in some doctrinal commen- taries made at the time when the proposals to amend the Constitutional Act were revealed. Kostadinov made a comparison with four European countries, compa- rable to Croatia in terms of significant national minorities residing in their

22 Venice Commission, Report on Dual Voting for Persons Belonging to National Minorities, Study No.387/2006, cdl-ad(2008)013, Strasbourg, 16 June 2008.

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Concepts of National and Constitutional Identity 273

­territories, and found that only Slovenia provided for special dual voting rights of ­autochthonous Italian and Hungarian minorities. Romania adopted the system of reserved parliamentary seats for national minorities, while both ­Hungary and the Czech Republic focused their positive measures for the pro- tection of the rights and interests of national minorities either on securing their representation at local levels or on creating special state offices for that pur- pose, rather than on defining rights of special parliamentary representation.23 The Croatian Court paid very little attention to the applicant’s arguments which offered a calculation revealing a significant disproportion between the relative weights of votes belonging to particular minorities and the votes of all other voters. Even though the election rules were declared unconstitutional for other reasons, the Court could have nevertheless insisted that an appropriate proportion was needed. It would have been consistent with the Court’s propo- sition that “introduction of a more representative electoral system” within the positive measures designed for minorities’ electoral rights would be beneficial. Moreover, this could foster a debate on the problems arising from cases where several minorities elect a common representative. The problem of inequality, as related to the relative weights of voting rights of certain categories of voters, has burdened the Croatian system of parlia- mentary elections for a long time. For example, several authors have written about the violations of the equal voting right principle in the 1990 elections,24 and after the 1995 and 1997 elections;25 and, furthermore, the current electoral system also violates the ‘one person one vote’ principle.26 Throughout Europe,

23 Biljana Kostadinov, “O zastupnickom prijedlogu promjene clanka 15. stavak 3. Ustava Re- publike Hrvatske” [On the Parliamentary Motion to Amend Article 15 paragraph 3 of the Constitution of the Republic of Croatia], 5818 Informator (2009), 7–9. 24 Voting inequality in the 1990 elections was measured at 1:3.7. Mirjana Kasapovic, “Politicki ucinci hrvatskog izbornog sustava” [Political Effects of the Croatian Electoral System], 23(3) Politicka misao (1991), 59–83, at 64. 25 Mirjana Kasapovic, “Demokratska konsolidacija i izborna politika u Hrvatskoj 1990–2000” [Democratic Consolidation and Electoral Politics in Croatia 1990–2000], in Mirjana Kasapovic, Hrvatska politika 1990–2000 [Croatian Politics 1990–2000] (Fakultet politickih znanosti u Zagrebu, Zagreb, 2001), 21–24 and 33; Srdjan Vrcan, “Izbori u Hrvatskoj 1995. i 1997” [Elections in Croatia in 1995 and 1997], in Srdjan Vrcan et al., Pakiranje vlasti [Pack- ing the Power] (Alinea, Zagreb, 1999), 60–73. 26 Ten general electoral units, each of them electing the same number of representatives, have very unequal populations. The legislation allows population deviations of up to five percent, which is not followed, as noted by the Constitutional Court. Constitutional Court of Croatia, The Report of the Constitutional Court of the Republic of Croatia, U-x-6472/2010, 8 December 2010.

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274 Toplak and Gardasevic districting is a widely accepted method for arranging for the fair representa- tion of racial, ethnic, religious, or other groups.27 In its reasoning, the Court invoked some general constitutional elements which it used to interpret the concept of ‘the People’: namely, ‘constitutional identity’, the ‘structural unity’ of the Constitution, and the assessment that the Constitution was not a ‘value-neutral’ document. This, quite rightly, led the Court to the conclusion that the scheme introduced within the Constitutional Act of 2010 produced an unacceptable division of the concept of ‘the People’, at least where special rights are granted to voters who cast their votes in general electoral units. However, ‘the People’ is divided in any event whenever special electoral rights are granted to special groups in special electoral units. From that point of view, it seems that the Court could have provided further nor- mative clarifications as to the exact extent to which such particular divisions could be sustainable. There are numerous options available for minority representation at both the national and local levels.28 In addition to, or instead of, granting minorities representation, some states also employ a so-called policy formation model. Here, the state establishes a body (or bodies) that develops, implements, and evaluates policies on issues that are important for the minority. Studies have shown, however, that at least with regard to some minorities, a system of di- rect representation in local municipality councils performed more effectively than under the policy formation model.29 In particular with regard to the local level, direct representation in elected bodies is effective because of the inti- mate ties between local minority groups and their elected representatives. At a local level, a vote for a candidate is usually based “on pre-existing relationships formed as a result of familial, religious, ethnic, professional and other social institutions, often spanning a generation or more. In these smaller communi- ties, voters often develop an intimate knowledge of first-time candidates from their previous experiences in a non-political environment”.30 Thus, the party affiliation of the candidate is less relevant to the relationship. This results in

27 On election district delimitation procedures in the United States, Great Britain, Germany, France and Slovenia, see Jurij Toplak, Comparative Redistricting: A Comparative Study of Election District Delimitation (Lambert, Saarbrücken, 2011). 28 Lublin and Wright analyzed minority representation in over 80 democracies. See Lublin and Wright, op.cit. note 20. See also David Lublin, Minority Rules: Electoral Systems, Decen- tralization, and Ethnoregional Party Success (Oxford University Press, Oxford, 2014). 29 Irena Baclija and Miro Hacek, “Minority Political Participation at the Local Level: The Roma”, 19(1) International Journal on Minority and Group Rights (2012), 53–68. 30 Gary Aguiar, “Party Coalitions in Local Legislatures in Slovenia and South Dakota: A Re- search Note”, 5(1) Journal of Comparative Politics (2012), 24–37, at 35.

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Concepts of National and Constitutional Identity 275 the more probable reelection of local candidates regardless of changes in their own political stance.31

2.2 Parliamentary Representation of Minorities in Slovenia In 1998, the Slovenian Constitutional Court was faced with questions similar to those discussed above.32 While Slovenia is usually praised for its inclusion of Italian and Hungarian minorities in public affairs,33 it has been criticized by international organizations for its treatment of these same minorities in elections, most recently by the Organization for Security and Co-operation in Europe (osce) in 2011. It was, however, criticized for granting minorities in elections more than what they were entitled to. The Slovenian Constitution protects only the Italian and Hungarian ethnic minorities, which are two of the smaller minorities.34 They are protected only because they are autochthonous, i.e., their members have been living in Slo- venia’s nationally mixed regions for centuries. Therefore, immigrants, new-era ethnic minorities, as well as those Italians and Hungarians who moved to Slo- venia at a later point are not constitutionally protected. The Slovenian Consti- tution states that Slovenia’s legislation should determine the “special rights” of “Roma society”, but it does not declare these rights or grant the Roma a minor- ity status.35

31 Ibid. 32 This article is limited to Croatia and Slovenia. For a wider overview and an analysis of case law on minority rights in various democracies, see Joseph Marko, “Effective Participation of National Minorities in Public Affairs in Light of National Case Law”, 16(4) International Journal on Minority and Group Rights (2009), 621–642. 33 Marko calls it “a good example of a possible accumulation of individual and group rights”, where “groups are no longer conceived as ‘objects’ of protection, but when they become bearers of subjective rights or entitlements themselves.” See Marko, op.cit. note 4, at 548. 34 Because the largest ethnic groups are not protected, and the smallest are, Ribicic calls Slovenian constitutional protection of minorities “asymmetric”. Ciril Ribicic, “Constitu- tional Protection of the Rights of Minorities/Ustavnopravno varstvo manjsinskih narod- nih skupnosti v Sloveniji”, 2(2) Revus (2004), 29–43. 35 Art.65 of the Constitution of Slovenia. In 2001, the Constitutional Court ruled that in each municipality where Roma groups are “autochthonal”, one local council seat should be reserved for a Roma representative. See Constitutional Court of Slovenia, Decision U-i- 416/98 of 22 March 2001. It later ruled that this right cannot be extended to Roma groups that are not autochthonal. See Constitutional Court of Slovenia, Decision U-i-176/08 of 7 October 2010. On Roma councilors, see Irena Baclija and Miro Hacek, “Limited opportuni- ties for political participation: A case-study of Roma local councillors in Slovenia”, 17(2) Romani Studies (2007), 155–179.

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The Slovenian Constitution specifically states that “one deputy of the Italian and one deputy of the Hungarian national communities shall always be elect- ed to the National Assembly” and that the two minorities have to be directly represented in the Parliament.36 Voters who declare themselves as belonging to either of the two autochthonous minorities cast two separate votes. In ad- dition to voting for the minority representative, they also have a vote for one of the 88 ‘ordinary’ Members of Parliament.37 Moreover, the minority repre- sentatives are elected by significantly fewer voters than the average Member of Parliament. While each Member of the National Assembly proportionally represents over 18,000 voters, in a 2002 census there were 2,258 people who declared themselves Italian and 6,243 who declared themselves Hungarian.38 The Constitutional Court of Slovenia acknowledged that the principle of an equal right to vote is not followed in Slovenia. It also acknowledged that the Slovenian Constitution encourages “positive discrimination” for minorities. After balancing these two conflicting principles, the Slovenian Court ruled that the scheme guaranteeing seats for the two ethnic minorities regardless of their populations is constitutional. It also ruled that the dual voting right for the members of the minorities likewise does not breach the Constitution. According to Slovenia’s Constitutional Court, it is impossible to follow the con- stitutional provision, according to which minorities are assured parliamentary representation, without granting minority members more rights than the rest of the population.39 Thus, affirmative action in favor of the Italian and Hungar- ian minorities permits a deviation from the principle of equality of all votes. In this same decision, the Constitutional Court of Slovenia declared the provi- sion, according to which the legislation sets no criteria for assessing an indi- vidual’s inclusion in the minority, unconstitutional. In Slovenian nationally mixed areas any person can call himself or herself a member of an autochthonous minority and consequently be given two ballots in the elections for the national legislature. Some observers have criticized the Slovenian Court’s decision and the foreseen change of the rules, under which the legislature should set criteria determining how a person can ­become a

36 Art.64, para.3, and Art.80, para.3 of the Slovenian Constitution. 37 The minority representatives are elected by Borda Count, which is used only in Nauru and Slovenia. On the system of electing minority representatives in Slovenia, see Jurij To- plak, “Parliamentary Elections in Slovenia, October 2004”, 25(4) Electoral Studies (2006), 825–831. 38 The 2002 census data is the latest available. Statistical Office of the Republic of Slovenia, Population Census Results (2002), available at . 39 Constitutional Court of Slovenia, Decision U-i-283/94 of 12 February 1998.

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Concepts of National and Constitutional Identity 277 member of a national minority. They favor absolute freedom of identity, in which “anybody can be a candidate of any ethnic minority at minority self- government elections, and also everybody can vote in these elections, even without a mere declaration of his/her ethnic identity”.40 Nineteen years have passed since the Court’s decision and this violation of the Constitution remains without rectification. Therefore, it represents the oldest non-implemented de- cision of the Slovenian Constitutional Court. While international organizations more often evaluate and criticize govern- ments for violating rights of minorities,41 Slovenian laws were denounced as being unfair to the majority. The osce critically assessed the Slovenian dual voting right scheme as diverging from the principle of equality of the vote.42 It relied on the Council of Europe’s Venice Commission opinion on dual voting rights for minorities,43 which outlines three conditions under which dual vot- ing rights might be an acceptable exception to the principle of equality of the vote: “… the objective of dual voting (i.e., representation of minorities) is not achievable by other means, … it is a transitional solution, and … it concerns a small minority.”44 The osce report stressed that “the current dual voting rights for the Italian and Hungarian communities are not foreseen in law as transitional, nor has there been a recent review to examine whether the objective of representation might be obtained by other means which would not infringe as directly on the principle of equality of the vote.” Indeed, there are numerous options avail- able, which could protect minorities and at the same time not violate basic voting principles.45

40 Tamas Korhecz, “Democratic Legitimacy and Election Rules of National Ethnic Minority Bodies and Representatives – Reflections on Legal Solutions in Hungary and Slovenia”, 9(2) International Journal on Minority and Group Rights (2002), 161–181. 41 For European minority protection standards, as well as for a critical assessment of these standards, see Melina Grizo, Jovan Ananiev and Zaneta Poposka, “The Right of the Minor- ities to Participate in the Public Life on Local Level: The Case of Republic of Macedonia in the Framework of the eu Policy of ‘Regional Approach’”, 13(3) Lex Localis (2015), 879–895. 42 osce Office for Democratic Institutions and Human Rights, Republic of Slovenia: Early Elections of the National Assembly, 4 December 2011. Election Assessment Mission Final Re- port (Warsaw, 2012). 43 Venice Commission, op.cit. note 22. 44 Ibid., at 13. 45 The most thorough study of the world’s countless schemes of minority representation is Lublin’s book, Minority Rules. David Lublin, Minority Rules: Electoral Systems, Decentral- ization, and Ethnoregional Party Success (Oxford University Press, Oxford, 2014).

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3 The Right to Use a Minority Language

3.1 The 2014 Croatian Referendum on Minority Language Rights European minimum standards of protection of language rights emerged in the 1990s. They mainly developed from European conventions, such as the Council of Europe’s Framework Convention for the Protection of National Minorities of 1995, and from monitoring activities. Commentators agree that “three areas of the use of languages – education, administrative affairs and the ­media – are determinant for the survival of minority languages.”46 In line with these standards, Croatia has been gradually improving the position of minority languages over the past two decades. According to the Constitutional Act on the Rights of National Minorities, equal official use of a national minority language and script can be imple- mented in territories of local self-government, state administration and judi- cial units where the members of a national minority make up at least one-third of the units’ population.47 In 2013, the government planned to fully implement the legal provisions on the use of minority languages and scripts and intended to place bilingual plaques on public institution buildings. This triggered strong resistance in Vukovar, a town that was particularly devastated during the Croatian War of Independence. In December 2013, the ­popular initiative called “Headquarters for the Defense of the Croatian ­Vukovar” submitted a request to the Croatian Parliament to call for a referen- dum. It was suggested that the threshold for the equal official use of a national minority language and script would be raised from one-third to one-half of the population. The organizers of the initiative claimed that the Cyrillic script amongst the population in war torn areas was still seen as a symbol of suf- fering and suggested that Cyrillic plaques should be introduced only after a certain delay.48 In July 2014, the Croatian Parliament asked the Constitutional Court to rule on the constitutionality of the referendum question. The Court first stated that the Constitution was not value-neutral, but rather a document which defines the Republic of Croatia as a democratic state, based on, among other things, national equality, respect for human rights and rule of law principles, all of which must be realized without discrimination. It added certain additional

46 Iryna Ulasiuk, “Language Rights in Relations with Public Administration: European Per- spectives”, 18(1) International Journal on Minority and Group Rights (2011), 93–113. 47 Art.12/1 of the Constitutional Act on the Rights of National Minorities. 48 For a description of the reasons that led to the initiative, see Constitutional Court of Croa- tia, Decision U-viir-4640/2014 of 12 August 2014, paras.27–29.

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Concepts of National and Constitutional Identity 279 precepts: that democracy based on the rule of law and protection of human rights represents the only political model recognized by the Constitution; that pluralism, as a central feature of a democratic society, requires respect for di- versities and particular identities, as well as dialogue and a search for balance which negates any abuse of a dominant position. Furthermore, it held that languages and scripts of national minorities must be qualified as universal and constant values, which determine the identity of the Croatian constitutional state.49 Consequently, according to the Court, any increase of the threshold re- quired to activate the collective right of minorities regarding the official use of languages and scripts must be rationally justified and grounded exclusively on reasons which emerge from a democratic society based on the rule of law and the protection of human rights. Moreover, any increase of the threshold must have a clearly expressed legitimate aim that is in the public interest, and that, in addition, must be necessary in a democratic society or “strictly pro- portional” to the specific legitimate aim. Consequently, the Court declared the referendum unconstitutional on the grounds of a lack of rational basis and legitimate aim being pursued by the legal change sought.50 The Court acknowledged that the proposed referendum initiative was di- rected at the Serbian minority, and that if the referendum were successful, the “…legal obligation to secure official use of language and script … for that minority, in a number of municipalities and towns, including the town of Vuk- ovar, would cease to exist.” The Court concluded that the referendum proposal failed to pursue a legitimate aim: “In the proposed referendum question, con- sidering its content and the way it was formulated, in a legal sense there exists a concealed aim which, as such, cannot be assessed as a legitimate one.”51 The Court also stated that “…to require a call of referendum with the message that the Cyrillic script in the town of Vukovar was ‘seen as a symbol of suf- fering’ is a deeply disturbing act which attacks script as the universal civiliza- tion heritage of mankind that determines the very identity of the Croatian constitutional state. From that message emerges irrationality which must be pointed at.”52 In the last part of its decision, the Court ordered not to implement, by co- ercive means, the Act on the Official Use of Languages and Scripts of Nation- al Minorities on the territory of the town of Vukovar until that Act had been

49 Art.12/2 of the Croatian Constitution. 50 Op.cit. note 48. 51 Ibid. 52 Ibid.

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280 Toplak and Gardasevic amended to secure a legal mechanism for cases where representative bodies in local self-government units fail to fulfill the obligations stemming from the Act or where they obstruct its application. In addition, the Court ordered the Vukovar town council to regulate in the local statute, within one year, the indi- vidual rights of the national minorities’ members concerning the official use of their languages and scripts, as well as that use as it relates to the public law ob- ligations of state and public institutions. In particular, these institutions must consider that the Act on the Official Use of Languages and Scripts of National Minorities prescribed the possibility that these rights could be recognized only in a part of a local territory or in a limited scope, by way of an exception.53 The Court concluded that an increase of the threshold for activating lan- guage and script rights must not be reviewed as to whether it actually harms certain collective rights. Rather, according to the Court, it must be examined as to whether it contributes to those rights or improves them; that the actual number of members of a minority may determine some of their rights; that a possible increase of the threshold to more than a half of the whole popula- tion in a local unit cannot lead to the conclusion that a minority is required to become a majority; that actually not only an ordinary but the “strict pro- portionality” standard and the “compelling social need” proof are required for increasing the threshold; that the fact that in the prior Constitutional Act which regulated the rights of national minorities the threshold was already (once) defined as a requirement for an absolute majority in local units does not inevitably presuppose the constitutionality of its increase in the present circumstances; and that the present case dealt primarily with the collective rights of national minorities, and not so much with their individual rights.54 The Court put forward a framework, properly balancing between major- ity and minority legitimate constitutional interests. This balance and the

53 Ibid. 54 Art.12 of the Croatian Constitution prescribes: “(1) The Croatian language and the Latin script shall be in official use in the Republic of Croatia. (2) In individual local units, an- other language and the Cyrillic or some other script may be introduced into official use along with the Croatian language and the Latin script under conditions specified by law.” Art.15 of the same document prescribes: “(1) Members of all national minorities shall have equal rights in the Republic of Croatia. (2) Equality and protection of the rights of national minorities shall be regulated by the Constitutional Act which shall be adopted in the procedure provided for the organic law. (3) Besides the general electoral right, the special right of the members of national minorities to elect their representatives into the Croatian Parliament may be provided by law. (4) Members of all national minorities shall be guaranteed freedom to express their nationality, freedom to use their language and script, and cultural autonomy.”

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Concepts of National and Constitutional Identity 281

­declaration that the respect for minority languages forms part of the Croatian constitutional identity are definitely the most prominent features of the case.55 Like Croatia, many other European democracies allow minority languages to be used in certain regions. Others, however, allow the use of minority lan- guages throughout the entire state territory.56 Slovenian courts, for example, operate only in the Slovenian language, but proceedings may also be conduct- ed in Italian or Hungarian in specifically designated areas where there are Ital- ian and Hungarian minorities. In parts of Spain, similarly, participants in court proceedings can use Catalan, Basque or Galician. In Finland, however, the lan- guage of the proceedings does not depend on the region where the court is located, but on the parties’ mother language, of which Finnish, Swedish, or in some cases Sami, are officially recognized. As Drnovsek emphasizes, “[i]f the party’s native language is one of these official languages but not the same as the language of the proceedings, the court is responsible for ensuring transla- tion without additional costs to the party.”57

3.2 Minority Languages in Slovenian Constitutional Jurisprudence The official language in Slovenia is Slovenian. In those municipalities where Italian or Hungarian national communities reside, Italian and Hungarian are also official languages.58 Italian and Hungarian are therefore official languag- es, but only in a limited number of territories. In these territories government bodies, local government bodies, and others executing public authority need to conduct communications in both Slovenian and the language of the mi- nority.59 When persons belonging to the Italian or Hungarian minorities are outside the borders of those bilingual territories, they may communicate in

55 For a more extensive review of this case, as well as the Court’s other referendum deci- sions, see Djordje Gardasevic, “Constitutional Interpretations of Direct Democracy in Croatia”, 7(12) Iustinianus Primus Law Review (2015), 1–50. 56 With regard to the various solutions for the use of minority languages in courts in Eu- rope, see Katja Drnovsek, “Language Obstacles in the Search for Effective and Fair Fact- Finding”, in Vesna Rijavec, Tjasa Ivanc and Tomaz Kerestes (eds.), Dimensions of Evidence in European Civil Procedure (Kluwer, Alphen aan den Rijn, 2015), 237–264. 57 Ibid., at 244. 58 Art.11 of the Slovenian Constitution. 59 A person belonging to the Italian minority agreed to court proceedings in the Slovenian language, agreed that he be questioned in the Slovenian language and that he respond in the Slovenian language, but later appealed the decision claiming that the proceeds should have been conducted in the Italian language because he did not fully understand Slovenian. The Constitutional Court dismissed his appeal by seven votes to two. Constitu- tional Court of Slovenia, Decision Up-404/05 of 21 June 2007.

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282 Toplak and Gardasevic the Italian or Hungarian language, but the government or public authority will communicate with them in the Slovenian language.60 In 1996, the Slovenian Parliament enacted legislation, according to which all schools and kindergartens in certain nationally mixed areas had to become bilingual. All children, including those belonging to Hungarian or Italian mi- norities, as well as those Slovenian children who did not belong to the minori- ties, had to attend bilingual school and kindergartens. Applicants, who did not agree that children who did not belong to the Hungarian ethnic minority should also learn the Hungarian language, asked for judicial review of the leg- islation. The Constitutional Court of Slovenia ruled that the legislation was in line with the Constitution.61 Additional legislation extended the need to communicate and conduct business in Italian and Hungarian languages to private entities. Thus, in na- tionally mixed areas, companies need to conduct customer service in both official languages. In 2006, the Slovenian Constitutional Court reviewed this legislation and ruled that the legislation was in line with the Constitution. While the Court acknowledged that the legislation burdens the freedom to conduct business, it ruled that such an infringement of that particular freedom is permitted.62 Private associations of citizens were once required to hold a Slovenian name or, in cases of a name in a foreign language, when conducting business they were required to use both the foreign name and the Slovenian translation. The Constitutional Court struck this requirement down as unconstitutional. Since Italian and Hungarian are now official languages in parts of Slovenia, the names of societies, associations, or organizations in these languages do not need to be translated into Slovenian.63

4 The Croatian ‘Constitutional Identity’ Concept in a Wider Context

The Croatian Constitutional Court invoked the concepts of Croatian ‘consti- tutional identity’ and ‘national identity’ in three other decisions. The first case dealt with the 2013 popular referendum initiative, which sought to amend the Constitution in order to prescribe a new definition of marriage. According to the Croatian Constitution, in cases where popular referendum initiatives are

60 Art.62, para.5 of the General Administrative Procedure Act, Official Gazette 24/06. 61 Constitutional Court of Slovenia, Decision U-i-94/96 of 22 November 1998. 62 Constitutional Court of Slovenia, Decision U-i-218/04 of 20 April 2006. 63 Constitutional Court of Slovenia, Decision U-i-380/06 of 11 September 2008.

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Concepts of National and Constitutional Identity 283 successfully organized, the Parliament is obliged to formally call a referendum. The only procedural mechanism to prevent calling a referendum is when Par- liament asks the Constitutional Court to review the referendum initiative. The Court verifies whether organizers of an initiative have collected enough signa- tures of voters in support of the initiative, whether the referendum question is one that generally may be put to a referendum vote and whether in its content the referendum question is in accordance with the Constitution.64 With the aforementioned marriage referendum proposal, the Court signifi- cantly extended its review powers. In a Statement made during the delibera- tion of the case, the Court put forward the following explanation:

On the basis of Article 125 al. 9 of the Constitution and articles 2 par. 1 and 87 al. 2 of the Constitutional Act, the Constitutional Court possesses the general constitutional duty to guarantee respect for the Constitution and to supervise constitutionality of a state referendum, right until the formal end of the referendum procedure. Accordingly, after the Croatian parliament decides on calling a referendum on the basis of a popular constitutional initiative, without before acting upon the Article 95 par. 1 of the Constitutional Act, the Constitutional Court does not lose its gen- eral control powers over constitutionality of such a referendum. How- ever, taking into account the constitution-making power of the Croatian parliament as the highest law-making and representative body in the State, the Constitutional Court assesses that it can use general control powers in such a situation only exceptionally, when it determines such a formal or substantial unconstitutionality of a referendum question or such a grave procedural error which threaten to undermine the structur- al features of the Croatian constitutional state, its constitutional identity, including the highest values of the constitutional order of the Republic of Croatia (articles 1 and 3 of the Constitution65). Primary protection of these values does not exclude the power of the constitution-maker to

64 Art.87/3 of the Croatian Constitution and Art.95 of the Constitutional Act on the Consti- tutional Court of the Republic of Croatia. 65 Art.1 of the Croatian Constitution states: “(1) The Republic of Croatia is a unitary and indivisible democratic and social state. (2) Power in the Republic of Croatia derives from the people and belongs to the people as a community of free and equal citizens. (3) The people shall exercise this power through the election of representatives and through di- rect decision-making.” On the other hand, Art.3 of the Croatian Constitution states: “Free- dom, equal rights, national equality and equality of genders, love of peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the en- vironment, the rule of law, and a democratic multiparty system are the highest values of

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284 Toplak and Gardasevic

­expressly exclude some other issues from the range of permitted referen- dum questions.66

The provisions of the Constitution and the Constitutional Act which the Court invoked in the Statement indicate that the Court has the power to “supervise [the] constitutionality and legality of elections and national referendums, and to decide on the electoral disputes which are not within the jurisdiction of courts”. Moreover, they provide that the Court “guarantees respect for and application of the Constitution and bases its actions on the provisions of the Constitution and Constitutional Act on the Constitutional Court”, and that it has a general power to “supervise the constitutionality and legality of a state referendum”.67 Those provisions, as already specified, were used by the Court to overcome procedural restraints imposed upon it by the Constitutional Act, according to which the Court could act only if requested by the Parliament. However, this specific part of the Court’s explanation that is related principally to procedural matters is beyond the interest of this article. What is of utmost importance here is the Court’s reference to the substantive concept of “…the structural fea- tures of the Croatian constitutional state” or “… its constitutional identity”. For purposes of comparison, the Slovenian Constitutional Court has had to deal with referendum initiatives much more often than the Croatian Court has and it has dealt with the same-sex marriage issue as well. On many occa- sions, the Constitutional Court of Slovenia had to decide whether to prevent a referendum due to the unconstitutionality of the referendum question or be- cause the referendum’s results would lead to unconstitutional consequences. The Court blocked referendums by referring to the principle of constitutional democracy, under which even majoritarian beliefs are limited by the Constitu- tion. Based on the constitutional democracy principle, the Court prevented referendums on the deprivation of citizenship, on the redress of injustice in- flicted upon “Erased persons”, on the construction of a mosque, and on raising judges’ salaries.68 It did, however, permit, by five votes to four, a referendum on

the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.” 66 The Statement on the Popular Constitutional Referendum on the Definition of Marriage, SuS-1/2013, 14 November 2013 [Priopcenje o narodnom ustavotvornom referendumu o definiciji braka, Broj: SuS-1/2013, 14. studenoga 2013]. 67 Art.125 al. 9 of the Croatian Constitution; Art.2, para.1, and Art.87. al. 2 of the Constitu- tional Act. 68 For more detail, see Ciril Ribicic and Igor Kaucic, “Constitutional Limits of Legislative Referendum: The Case of Slovenia”, 12(4) Lex Localis (2014), 899–928. The “Erased” is the

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Concepts of National and Constitutional Identity 285 the Family Code.69 The Family Code provisions that attracted the most public attention were those that introduced same-sex marriage. In turn, voters re- jected the Family Code. Three years later, the Parliament again tried to enact same-sex marriage and the right of same-sex couples to adopt children. The Constitutional Court, by five votes to four, again permitted the referendum.70 Voters, once again, rejected increased rights for same-sex couples. In April 2015, the Constitutional Court of Croatia delivered two opinions concerning referendum initiatives on economic issues, in which it relied on the ‘Croatian constitutional identity’ concept. In December 2013, the Croatian gov- ernment announced that it would outsource “complementary and ­non-basic services” in state and public institutions and bodies to private entities. As a response, several trade unions organized a referendum initiative and proposed new legislation, which would prohibit the outsourcing of services. The Consti- tutional Court declared the proposed Act contrary to the Constitution.71 The Court first deduced that “…direct democracy is, by the Constitution, permissible and legitimate, but not [the] primary and ordinary, way of decid- ing on the regulation of economic, legal and political relations in the Republic of Croatia”. It then argued that the adoption of laws on a referendum was not allowed when those laws would either not be in accordance with the legal sys- tem as a whole or when the laws would be directed to regulating issues that, explicitly or from the entirety of the Constitution, fell within the exclusive competence of the bodies of representative democracy. In addition to these general statements, the Court further added that the proposed Act was uncon- stitutional because it encroached upon the powers of the Government “…to propose the state budget and annual accounts” and “…to direct and control the operation of the state administration, to direct performance and development of the public services, and to take care of the economic development of the country”, as well as encroaching upon the exclusive power of the Parliament to “adopt the state budget”. The case was resolved on the basis of rather technical interpretations, but it must be noted that the Court once again referred to the concept of constitu- tional identity. The reference was quite short and it was used only to recall that

name used for a group of people, who remained without a legal status after Slovenian independence in 1991. The European Court of Human Rights ruled that Slovenia vio- lated their human rights (ECtHR, Kuric and Others v. Slovenia (Grand Chamber), Appl. No.26828/06, Decision of 26 June 2012). 69 Constitutional Court of Slovenia, Decision U-ii-3/11 of 8 December 2011. 70 Constitutional Court of Slovenia, Decision U-ii-1/15 of 19 October 2015. 71 Constitutional Court of Croatia, Decision U-viir-1159/2015 of 8 April 2015.

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286 Toplak and Gardasevic the Court had a general power to review the constitutionality of referendums – including the category of referendums that aimed to change the Constitution itself – whenever such referendums would infringe upon the structural fea- tures of the Croatian constitutional state or, in other words, its ‘constitutional identity’.72 The other Croatian Constitutional Court decision concerned a popular refer- endum initiative that sought the adoption of a law that would prohibit the gov- ernmental plan to allow private entities to administer public roads in Croatia. The Court’s reasoning mainly followed the argumentation of the ‘outsourcing’ decision. In addition, the Court found that the “blanket legal prohibition” fore- seen by the proposed law (described by the Court as an “a priori”, “­automatic”, “unselective” and “more permanent” measure) would not only be contrary to the constitutional power of the government to “take care of the economic de- velopment of the country”, but it would also infringe upon the Entrepreneur- ial Freedom and Market Freedom clause of the Constitution. The Court also qualified this clause as embodying one of the “structural constitutional prin- ciples” on which the “…identity of the Croatian constitutional state” is built. The Court further added that Article 49/1 must always be observed in its rela- tion to Article 3 of the Constitution as well as with regard to the concept of “fundamental rights” as they are generally protected by the same document.73 Several conclusions can be reached regarding these decisions of the Croatian Constitutional Court that invoke the concept of ‘constitutional identity’. So far, the concept has been used quite rarely, therefore, only in the most exceptional situations and, contrary to prevalent comparative trends, exclusively for do- mestic purposes.74 All of these cases dealt with issues of high significance for Croatian society as a whole: the organization of parliamentary r­epresentation

72 Ibid. 73 Constitutional Court of Croatia, Decision U-viir-1158/2015 of 21 April 2015. 74 It seems that, in recent years, the European debate on the concept of constitutional iden- tity has been heavily preoccupied with interpretations of that concept in terms of rela- tionships between various national constitutional orders and the eu legal system, and especially with regard to the relationship between the Court of Justice of the European Union and domestic constitutional courts. In this context, for instance, see Leonard F.M. Besselink, “National and constitutional identity before and after Lisbon”, 6(3) Utrecht Law Review (2010), 36–49; Denis Preshova, “Battleground or Meeting Point? Respect for ­National Identities in the European Union – Article 4(2) of the Treaty on European Union”, 8 Croatian Yearbook of European Law and Policy (2012), 267–298; Jan Komárek, “The Place of Constitutional Courts in the eu”, 9(3) European Constitutional Law Review (2013), 420–450; Branko Smerdel, “In Quest of a Doctrine: Croatian Constitutional Iden- tity in the ­European Union”, 64(4) Zbornik Pravnog fakulteta u Zagrebu (2014), 513–534.

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Concepts of National and Constitutional Identity 287 through electoral legislation; an understanding of certain cultural and social rights and freedoms, such as marriage or the right to use one’s minority lan- guage and script; or the definition of various other social and economic rights of employees and entrepreneurs. In addition, the majority of the cases were on popular referendum initiatives. Moreover, the concept of ‘constitutional iden- tity’ has undoubtedly found its place in the debate concerning certain specific rights of national minorities, but its application by no means has been exclu- sively restricted to that. The Court used the concept to strengthen its argu- ments in a variety of cases dealing with quite different issues. On the other hand, in the majority of cases, the Court invoked the concept of the ‘constitutional identity’ in order to evaluate whether either popular – in the case of referendums – or parliamentary – in the case of electoral legislation – decision-making unacceptably encroached upon certain rights. There may be no substantive objection to the Court’s stance because it was performing its intended constitutional role of reviewing existing or proposed legislation for- mulated by those who have the constitutional powers to enact laws. The only addendum the Court made here was the introduction of a new tool of constitutional interpretation. In the case of the referendum on the constitu- tional definition of marriage, the concept of ‘constitutional identity’ was used exclusively in order to construe the Court’s own powers. In fact, after having es- tablished that it had additional review powers, the Court proceeded to provide its own view on the referendum question and actually accepted that marriage could be defined as a “community between a man and a woman”. However, the ‘constitutional identity’ concept as stipulated in its 2013 Statement was never used. In other words, this means that the concept of ‘constitutional identity’ here was not used in order to delineate prerogatives of other constitutional actors but rather to define those of the Court itself. The Court probably did this be- cause it was concerned with its own position within the Croatian legal system. In fact, the constitutional amendments of 2010 prescribed that justices of the Constitutional Court needed to be elected by a two-thirds majority of all of the parliamentary representatives. However, due to the inability of the two major political parties to agree on whom exactly to elect to the Court, such a majority was finally achieved only early in the summer of 2016. As a result of this crisis, for several years the Court was acting with less than thirteen justices as required by the Constitution. Prior to the 2016 switch, when ten justices in total were elected or reelected, there were serious concerns that the Court would be unable to perform its constitutional tasks. In addition, due to the expansive activist approach that the Court has been demonstrating in recent years and which obviously has not met with the full sympathy of all, in

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288 Toplak and Gardasevic the same period certain signals appeared as conveyed by several politicians that the Constitutional Court perhaps was not an indispensable institution and that its role could be transferred to the Supreme Court. It seems that such con- cerns were the Court’s primary motives in interpreting its powers and eventu- ally invoking the concept of ‘constitutional identity’ as a form of ‘self-defense’. Finally, even though it has been used as the first-class reference of consti- tutional interpretation, the precise definition of the ‘constitutional identity’ concept in the case law of the Croatian Constitutional Court has remained somewhat dispersed. As seen before, in the case dealing with national minori- ties’ electoral rights, the ‘constitutional identity’ concept was derived from the Preamble to the Constitution; in other decisions, various other clauses served as a basis for this concept. One could argue that the complete list of constitu- tional provisions that could possibly be relevant in interpreting the notion of ‘constitutional identity’ is far from being closed. This inevitably leads to defi- nitional confusion. However, we believe that some reliance on a systemic ap- proach in this respect can be detected or, at least can be implied. In an attempt to prove that, we will now focus on several points, which, hopefully, will also be useful for rethinking the ways in which the specific Croatian concept of ‘constitutional identity’ might develop in the future.

5 The Croatian ‘Constitutional Identity’ – An Agenda for the Future?

A sampling of the relationship between ‘national’ and ‘constitutional’ identi- ties is quite visible in the Preamble and Article 1 of the Croatian Constitution. The Preamble, establishing Croatia as “…the nation state of the Croatian na- tion” but also as “…the state of the members of its national minorities … who are its citizens and who are guaranteed equality with citizens of Croatian na- tionality…” distinctively emphasizes the ‘national’ concept. On the other hand, Article 1 is concerned with the broader definition of the ‘People’, which in itself includes the overall “…community of free and equal citizens.” That being so, one may conclude that the Croatian Constitution provides for both the con- cept of ‘ethnos’ and that of ‘demos’ and that it equally draws inspiration from the classic German and French constitutional models.75 One may ask whether one of the concepts has prevalence over the other. By now, both concepts have become part of the broader idea of ‘­constitutional identity’. Despite the fact that the Preamble to Croatia’s Constitution specifically

75 Michel Rosenfeld, The Identity of the Constitutional Subject: Selfhood, Citizenship, Culture, and Community (Routledge, London, New York, 2010), 152–158.

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Concepts of National and Constitutional Identity 289 uses an element of distinction based on nationality, both the Preamble itself and Article 1 of the Constitution are also qualified by the category of ‘equal citizens’. Consequently, the equality of citizens, whatever their national origin, thus becomes the underlying principle of utmost importance for both consti- tutional clauses, which must guide any further evaluation of this matter. For the same reason, this leads to the conclusion that, in the Croatian constitutional scheme, the ‘demos’ concept prevails over the ‘ethnos’ model. Moreover, two other important considerations support such a claim. First, preambles in general are distinguished from the so-called ‘normative parts’ of constitutions: their role is usually seen as a descriptive one, rather than as one conferring specific rights, liberties, duties or powers in the strict sense of those words.76 The Croatian Constitution may also serve as a good example in this con- text. It describes the origins and historical developments of Croatian state- hood which preceded the adoption of the Constitution and which it uses to emphasize “…the historical right of the Croatian nation to full sovereignty”.

76 The u.s. Supreme Court also made a similar point in the case of Jacobson v. Massachu- setts: “Although that Preamble indicates the general purposes for which the people or- dained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Con- stitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some ex- press delegation of power or in some power to be properly implied therefrom.” Jacobson v. Massachusetts, 197 u.s. 11, 22 (1905). The same understanding can be found in the words of Joseph Story: “The preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the constitution.” Joseph Story, Commentaries on the Constitution of the United States (Hilliard, Gray and Company and Brown, Shattuck and Co., Boston and Cambridge, 1833), 164. On the other hand, the French approach in interpreting constitutional preambles is somewhat different. The Preamble to the 1946 French Constitution is now taken as part of the so-called ‘block of constitutionality’, meaning that it has an equal value to other con- stitutional sources that may serve as grounds for reviewing the constitutionality of laws. In other words, the 1946 Preamble is not merely a declaratory text; it must also be stressed that it specifically enumerates certain rights and freedoms or political, economic and so- cial principles. See .

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290 Toplak and Gardasevic

Apart from that, the Preamble proceeds to stress “… the inalienable and indi- visible, non-transferable and non-exhaustible right of the Croatian nation to self-determination and state sovereignty, including its fully maintained right to secession and association, as basic provisions for peace and stability of the international order…”. It concludes that, upon both the historical facts and the right to self-determination, “…the Republic of Croatia is hereby established as the nation state of the Croatian nation and the state of the members of its na- tional minorities … who are its citizens and who are guaranteed equality with citizens of Croatian nationality…”. Hence, there are two respective rights mentioned in the Preamble, which are the right to full state sovereignty and the right to self-determination, both of which have been fulfilled with the adoption of the Constitution and sub- sequent Proclamation of Independence in 1991, save for the specific right to secession and association which may possibly be used in the future as well. Finally, it should be noted that the Preamble in its last paragraph states that “…the Republic of Croatia is hereby founded and shall develop as a sover- eign and democratic state in which equality, freedoms and human rights are ­guaranteed and ensured, and their economic and cultural progress and social welfare promoted.” In sum, it seems that the Croatian constitutional Preamble, unlike the French constitutional Preamble (and apart from what has been al- ready stated above), offers no specific rights that can be used for further con- stitutional interpretation beyond the principles or rights already enshrined in the normative part of the Constitution. Contrary to its Preamble, the normative part of the Croatian Constitution is primarily based on the concept of citizenship, rather than on national origin. Although in the Croatian constitutional system the concept of constitutional identity based on citizenship significantly prevails over the concept arising from the nation, all of this would not necessarily mean that the national com- ponent of the definition of state should not be attributed some weight. That, after all, seems to have been the exact message that the Croatian Constitu- tional Court, among other things, wanted to convey in its 2011 Decision on the Parliamentary Electoral Legislation. Therefore, any prospective invocation of a discourse on national identity, as presented by the Preamble to the Croatian Constitution, should inevitably take into account the underlying principle of the equality of all citizens, regardless of their national origin. So far, this has been applied in the case dealing with one national minority, but the same logic should also apply to potential future cases involving other national minorities or the Croatian majority. The second crucial relationship between national and constitutional identi- ties in the Croatian constitutional scheme, in our view, is to be found within

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Concepts of National and Constitutional Identity 291 the provisions of the Constitution which define ‘fundamental’ constitutional rights and freedoms. As indicated above, Article 3 provides a list of the “…high- est values of the constitutional order of the Republic of Croatia”. They serve as “…the ground for interpretation of the Constitution” and among which are also found the principles of “national equality” and “respect for human rights”. At the same time, the Constitutional Court has also considered the list of fun- damental constitutional rights as embodying the provisions pertaining to the constitutional identity concept, both in general and in reference to some par- ticular rights. So far, however, this concept has been used only with regard to two specific rights: the right to use majority and minority languages and scripts in official matters; and entrepreneurial and market freedom. It is hard to predict which other rights the Court may interpret in the light of ‘constitutional’ or ‘national identity’. The Croatian constitutional order represents, in a manner similar to that of other nations in southeastern Europe, a sort of hybrid system that has emerged from the adaptation of an ‘imported’ political model to the political culture in the region.77 In 2017, the Slovenian Constitutional Court delivered an opinion in which it relied on a Preamble and in which it also touched on the issue of national identity. Although the written opinion was very short, it was deliberated for three years, which is an exceptionally long period of deliberation for the Slove- nian Court. The background to the case is as follows. A Slovenian citizen, prob- ably of Bosnian origin and of Muslim religion, requested the Court to review the constitutionality of Christmas and other Catholic holidays being work-free days, while the holidays of other religions are not work-free days in Slovenia. He claimed that the ‘separation of church and state’ clause was being violated. The Court dismissed his appeal.78 It stressed that certain days, which are work-free days, indeed coincide with Catholic holidays, but that they are not holidays. They are just work-free days. According to the Court, the legislature can make any day a work-free day. It added that “individuals are free to en- joy these days as they wish. The state has nothing to do with it.” The Court stated that legislation concerning work-free days “does not touch the area of human rights or the equality and discrimination clauses” of the Constitution. The Court did, however, hold that the legislature is free to define work-free days “as a representation of identity of persons, who historically live in the area

77 Cirila Toplak, “Hybridization of Democracy in Central and Eastern Europe: Between ‘Imported’ Democratic Model and Inherent Political Culture”, 4(1) Journal of Comparative Politics (2011), 76–90. 78 Constitutional Court of Slovenia, Decision U-i-67/14 of 19 January 2017.

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292 Toplak and Gardasevic of the present State and are connected by European tradition.” In other words, the Court relied on national, Christian, and European tradition and identity. The Court continued by emphasizing that “national identity is, in line with the Preamble to the Constitution, one of the sources of the establishment of the fundamental rules of social coexistence.”79 The Croatian case law concerning the interpretation of the concept of ‘constitutional identity’, as it has evolved from invoking the general clauses of Article 3 on one hand and the provisions of other constitutional articles that provide for specific rights and freedoms on the other hand, seems to unveil one particular general trend: the so-called ‘process of incorporation’ of rights and freedoms. This means, in other words, that the Court has potentially started a line of cases in which constitutional identity would first be proclaimed as being intertwined with basic constitutional principles in general, and then would be made far more specific through the ‘incorporation’ into it of spe- cific rights in each particular case. It must be stressed here that such interpre- tive approaches, by which some rights are being labeled as ‘fundamental’ and are granted special positions for special purposes, is by no means unknown in comparative constitutional law.80 A collection of quite comparable examples can be found in French or American constitutional history. The experiences of the United States surely deserve primacy because the process of the development of ‘fundamental’ rights first started in that country. The American example is somewhat specific because the original version of the u.s. Constitution contained only a few guar- antees of individual rights and freedoms (prohibitions on the bill of attainder, ex post facto laws, laws impairing the obligation of contracts, suspension of habeas corpus).81 The real process of creation of fundamental rights followed shortly thereafter with the enactment of the Bill of Rights in 1791 and the intro- duction of the mechanism of judicial review.82 However, the decisive historical point of the development of fundamental rights in the United States consisted of the period after the Civil War and the enactment of the Fourteenth Amend- ment to the u.s. Constitution.83

79 Ibid. 80 An explanation of the notion of ‘fundamental’ was first offered in Gitlow v. New York, 260 u.s. 652 (1925). 81 John E. Nowak, Ronald D. Rotunda and J. Nelson Young, Constitutional Law (West Publish- ing, St. Paul, Minn., 1986, 3rd ed.), 314–315. 82 Marbury v. Madison, 5 u.s. (Cranch 1) 137 (1803). 83 Milton R. Konvitz, Fundamental Rights – History of Constitutional Doctrine (Transaction Publishers/Rutgers University, New Brunswick, London, 2001), 11–13; Nowak, Rotunda and Young, op.cit. note 81, 361–372; Geoffrey R. Stone, Louis M. Seidman, Cass R. Sunstein and

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Concepts of National and Constitutional Identity 293

The role of the French Constitutional Council in recognizing fundamental, constitutionally protected rights is quite comparable to that performed by the u.s. Supreme Court. It can be seen in the gradual extension of the sources of the ‘constitution’ binding the legislator, which are called the ‘block of con- stitutionality’ (‘Bloc de constitutionnalité’) and which, to a significant extent, also cover particular rights and freedoms. Therefore, the development of the ‘block of constitutionality’ might be seen as a certain French counterpart to the American ‘incorporation’ scheme.84 The highest constitutional bodies in both France and the United States have used such ‘incorporation’ techniques exclusively to point to such rights that were deemed to be of utmost constitu- tional importance. This might also serve as guidance for further interpretation of the Croatian ‘constitutional identity’ concept.

Mark V. Tushnet, Constitutional Law (Aspen Law & Business, New York, 2001, 4th ed.), 702–710; Kathleen M. Sullivan and Gerald Gunther, Constitutional Law (Foundation Press, New York, 2001, 14th ed.), 433–450. 84 Louis Favoreu and Loïc Philip, Les grandes décisions du Conseil constitutionnel (Dalloz, Paris, 2005, 13th ed.), 241–259 and 276–298; Dominique Rousseau, Droit de contentieux constitutionnel (lgdj – Lextenso éditions, Paris, 2013, 10th ed.), 95–117; John Bell, French Constitutional Law (Oxford University Press, Oxford, 2001), 149–152; Francis Hamon and Michel Troper, Droit constitutionnel (Librairie Générale de Droit et de Jurisprudence, Paris, 2007), 847–851; Louis Favoreu et al., Droit constitutionnel (Dalloz, Paris, 2014, 16th ed.), 129–145.

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