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The Protection of Minorities

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Strasbourg, 1994 CDL-STD(1994)009 Or. Engl. Science and technique of democracy No. 9 EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION) The Protection of Minorities Collected texts of the European Commission for Democracy through Law TABLE OF CONTENTS 1. Introduction by Mr. Franz MATSCHER........................................................ 2 II. The protection of minorities at the international level:a European Project ...... 4 Proposal for a european convention for the protection of minorities........................................ 4 Explanatory report ................................................................................................................ 16 III. The protection of minorities at the National level:diversity of legal models .. 31 Report on the replies to the questionnaire on the rights of minorities..................................... 31 Questionnaire ........................................................................................................................ 60 Replies .................................................................................................................................. 64 IV. The protection of minorities in federal and regional states ........................ 275 The protection of minorities in federal and regional states: consolidated report based upon studies carried out in relation to Austria, Belgium, Canada, Germany, Italy, Spain and Switzerland ......................................................................................................................... 275 National reports: ................................................................................................................. 284 Austria ............................................................................................................................ 285 Belgium .......................................................................................................................... 288 Canada ............................................................................................................................ 302 Germany ......................................................................................................................... 326 Italy................................................................................................................................. 330 Spain ............................................................................................................................... 336 Switzerland ..................................................................................................................... 357 1. Introduction by Mr. Franz MATSCHER Although European States have been aware - to a varying degree - of the problem of protection of minorties, this subject only began to be of particular increasing interest in Europe at the end of the First World War. After a period of stagnation during and after the Second World War, the Council of Europe, set up in 1949, resumed discussion of this subject. However, until 1990, these were only isolated initiatives, which were not conclusive. It is only since 1990 that the protection of minorities has become one of the major points of interest and preoccupation of the Council of Europe, a European International Organisation which upholds the principles of democracy, respect for human rights and preeminence of law. The European Commission for Democracy through Law - the Venice Commission - was, right from its creation in 1990, one of the first institutions to begin work on the considerable task of preparing an instrument guaranteeing minority rights at European level. It was an urgent choice : violent ethnic conflicts were beginning to rise up in several places on the new European map. Its proposal for a European Convention for the Protection of Minorities, made public in 1991, represents an attempt to strike a fair balance between those minimum rights which should be granted to minorities and those duties which are incumbent on them. A system of control of the respect for the obligations undertaken by Contracting States under the proposed Convention was instituted: this was founded on three means of control, of which the first - periodical reports - was obligatory, while the two others - inter-State petition and individual petition - were optional. European States very quickly recognised the need for an international instrument setting out the principles of effective protection of national minorities. At their Summit in Vienna on 8 and 9 October 1993, the Heads of States and Government of European States agreed to instruct the Committee of Ministers of the Council of Europe to "draft with minimum delay a framework Convention specifying the principles which contracting States commit themselves to respect, in order to assure the protection of national minorities" and to "begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities". The first phase of this important work has just been accomplished by the adoption of the "Framework Convention for the Protection of National Minorities", on 8 November 1994. The Venice Commission has been closely associated with the process of the first pan-European instrument regulating the explosive question of national minorities. It participated in the work of the Ad Hoc Committee for the Protection of National Minorities (CAHMIN) established by the Committee of Ministers to draw up the Framework Convention for the protection of national minorities. It also participated in the activities in the Project Group "Human Rights and Genuine Democracy" (CAHDD), within the framework of which it presented, amongst others, two reports on the protection of minorities. This publication aims to make the Venice Commission's work in the field of protection of minorities more available to the public. It includes, on the one hand, the Proposal for a European Convention on the protection of minorities, as a reply to the heartfelt need for protection of minorities at the European level. The proposal and its explanatory report appear in the first chapter of the publication. This publication includes, in addition, firstly the report on the protection of minorities at domestic law level which was drawn up within the framework of the Venice Commission and secondly the report concerning the special protection of which minorities can take advantage in States with a Federal or Regional structure. The first of these reports, without being a study in comparative law, shows the extraordinary variety of models of protection adopted by European States, and also reveals - and this is an important point - that there are certain common aspects to this domestic protection and that these, accordingly, could serve to form a common basis for international and European protection of minorities. The report in question was established on the basis of replies provided by representatives of several European and non-European States to a questionnaire drawn up by the Commission ; the questionnaire, together with the replies, appears in an Appendix to the report. Perusal of the replies given by representatives of different States to the same question allows for a rapid appraisal of the solutions adopted in national laws to identical problems of protection of minorities. The second summary report concerns the protection of minorities in federal and regional States ; it is followed by individual reports drawn up by members and Associate members of the Commission from Council of Europe member States which have a federal or regional structure, as well as a report from Canada. The European Commission for Democracy through Law considers the question of the protection of minorities to be one of the most important fields of its activity. This publication is a modest contribution to the evolution of this protection which, nowadays, is considered as a particular but essential component of the protection of human rights as well as of democracy. Franz MATSCHER Chairman of the Sub-Commission on the Protection of Minorities II. The protection of minorities at the international level:a European Project Proposal for a european convention for the protection of minorities PREAMBLE The member States of the Council of Europe and the other States, signatory hereto, Considering that the aim of the Council of Europe is to achieve greater unity between its members, for the purpose of safeguarding and realising the ideals and principles which are their common heritage; Considering that the dignity and equal worth of every human being constitute fundamental elements of these principles; Considering that minorities exist in member States of the Council of Europe and in Central and Eastern European States; Considering that minorities contribute to the pluriformity and cultural diversity within European States; Having regard to the work carried out within the CSCE and in particular to the Declaration adopted during the Copenhagen meeting in June 1990, as well as the Charter of Paris for a new Europe, of 21 November 1990; Having regard to Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms and to Article 27 of the International Covenant on Civil and Political Rights; Considering that an adequate solution to the problem of minorities in Europe is an essential factor for democracy, justice, stability and peace; Being
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