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