Does Slovakia need a law on minorities? If yes, why and what kind of law should it be?

Does Slovakia need a law on minorities? If yes, why and what kind of law should it be?

Svetlusa Surova Minority Policy 2020/01

Does Slovakia need a law on minorities? If yes, why and what kind of law should it be? 

Introduction

The right to expression and the right to preservation and development of the identity of national minorities are generally understood to be the rights of national minorities. The question is how to best ensure these rights for members of national minorities. Are the basic principles of liberal democracy and human and civil rights enough or do minority rights require a specific legislation and introduction of separate collective rights? 

The rights of national minorities and their protection gained significance as a key issue for stability, democracy, security and peace in the early 1990s.1 The assumption was that by granting separate set of rights to national minorities, potential destabilizing effects triggered by dissatisfaction of national minorities with territorial organization and their aspirations for secession or irredentism would be reduced. The UN holds a view that promotion and protection of the rights of persons belonging to national or ethnic, religious and linguistic minorities contributes to political and social stability of states where such minorities live and that it also strengthens friendship and co-operation among nations and states.2 Such perception of minorities belongs in the so-called security discourse, which sees national minorities as a threat to state security, sovereignty and territorial integrity. In the history of Europe, different minorities were long seen as an obstacle in the development of states and nations and they are still sometimes perceived as a threat to social cohesion and public good of social states.3 

At the international level, however, the idea that a pluralistic and truly democratic society should not only respect the identity of members of national minorities, but also create adequate conditions for its expression, preservation and development has been promoted.4 In the Council of Europe, minority rights are considered a part of human rights. The prevailing view is that by granting specific rights to persons belonging to national minorities their full participation and equality in the society, as well as their protection against assimilation is ensured.

The liberal theory of minority rights implies that granting separate rights to minorities is an issue of justice.5 According to Kymlicka, national and ethnic groups can also claim collective rights such as the right to self-governance, polyethnic rights and separate rights for representation.6 

In Slovakia, the current debate evolves around the question whether a separate legislation treating minority rights is at all necessary. While the Plenipotentiary for National Minorities, László Bukovszky, and representatives of individual minorities are in favour of a separate law on minorities, the Ministry of Foreign and European Affairs (hereinafter „MFA SR“) and the Minister,  Miroslav Lajčák, are against it. 

Debate context

The Office of the Plenipotentiary for National Minorities of the Slovak Republic and representatives of national minorities want to enforce a separate law that will unify the current disintegrated legal regulations on minorities and will define the rights of national minorities in a complex way. They began drafting the law in 2019.7 

At the beginning of this year, on 23rd January 2020, the Committee for National Minorities and Ethnic Groups (hereinafter „the Committee“) adopted a significant resolution on the proposed legislation on national minorities (hereinafter „proposed legislation“).  After the proposal for a separate law had been approved, the Committee recommended the Government Council for Human Rights, National Minorities and Gender Equality of the Slovak Republic to submit it to the Government of the Slovak Republic.8 This happened despite the dissenting opinion of MFA SR on the proposed legislation. The proposed legislation is to be submitted to the Government on 2nd October.

A representative of MFA SR, Barbara Illková, Director General of the Directorate General of International Legal, Consular Affairs and Crisis Management conveyed the opinion of the Minister of Foreign and European Affairs, Miroslav Lajčák, during a session of the Committee. In his letter to the Plenipotentiary for National Minorities, the Minister contested the fact that the proposed legislation introduced collective rights of minorities and self-governing bodies in areas such as education, culture, language use, and economic and social life. He also objected to the terminology used in the proposed legislation, specifically to the term „rights of national minorities“ which, the Minister argued, was neither used by international organisations such as the Council of Europe, the European Union and the Organization for Security and Co-operation in Europe nor was it used in the Constitution of the Slovak Republic, which uses the term  „rights of the citizens belonging to national minorities“ instead. 

At the end of January this year, MFA SR issued its official media statement to the proposed separate law on national minorities reiterating the main objections of the Minister of Foreign and European Affairs. The Ministry further stated the Constitution did not stipulate that the rights of national minorities should be regulated by separate national legislation.9 

The presenters of the proposed draft law on national minorities argue the opposite is true. In their substantiation of the proposed legislation, the presenters claim the Constitution of the Slovak Republic presupposes a separate minority act. They also give other reasons for a separate law on national minorities such as disintegrated legal regulations on the rights of national minorities being an obstacle in exercising the rights or the need for a complex and concise law that would best serve members of national minorities.10 

The new Government plans to adopt a separate law on national minorities as “a guarantee of rights arising from the Constitution”.11 The new law should specify minority rights guaranteed by the Constitution, enable their application and prevent assimilation of minorities.

So, what is the reality? Does Slovakia need a separate law on national minorities? In order to answer the question, it is necessary to: first, examine how the national legal system regulates the rights of national minorities; secondly, what the international obligations of Slovakia in the area of minority rights protection are and, finally, whether the national legislation and international treaties Slovakia is a state party to presuppose adoption of a separate minority legislation. 

Regulation of national minorities rights in the current Slovak legislation

The rights of national minorities in Slovakia are regulated by the Constitution of the Slovak Republic (hereinafter „the Constitution“)12, international treaties such the Framework Convention on the Protection of National Minorities (hereinafter „the Framework Convention“ or „the Convention“) and the European Charter for Regional or Minority Languages (hereinafter „the Charter)13 that Slovakia is bound by, as well as by individual acts14 and Government decrees.15 

The Constitution regulates the rights of national minorities and ethnic groups in Articles no. 33 and 34. It guarantees minority rights only to the citizens of the Slovak Republic who belong to national minorities and ethnic groups. The right to universal development, particularly the development of their own culture; linguistic rights and the right to disseminate and receive information in their mother tongues; the right to associate in national minority associations or to establish and maintain educational and cultural institutions are among minority rights. 

The Constitution explicitly guarantees the right to be educated in their mother tongue, use their language in official communications and certain participatory rights to the citizens of Slovakia – members of national minorities. This means the citizens belonging to national or ethnic groups have the right to participate in decision making in matters affecting them. Details of these rights and the conditions under which such rights are to be exercised should be, according to the Constitution, laid down by law.   

Participatory rights guaranteed to members of national minorities and ethnic groups by the Constitution are not regulated by a legal norm. The Constitution guarantees such rights to the citizens of national minorities, but it does not specify the rightsholders. Do all members of national and ethnic minorities have these rights? If yes, how can they exercise them? Can they exercise the rights directly or through some elected or nominated representatives? If it is through their representatives, how are the representatives elected; whose interests do they protect and who should they be accountable to? The Constitution does not stipulate what decision making and in what matters minorities have the right to participate in. 

An analysis of the national Slovak legislation shows that there are only two specific laws regulating the rights of the citizens of national minorities. One is Act no. 184/1999 Coll. on the use of languages of national minorities and Act no. 138/2017 Coll. on the Fund for the promotion of national minorities culture as amended. Other laws such as the anti-discrimination law, the education act, the birth registries act, the name and surname act or the electoral legislation among others contain provisions referring also to national minorities, but they do not regulate minority rights as such.16

International treaties and their status in the Slovak legal system

Let us now examine which international treaties on the rights of national minorities has the Slovak Republic acceded to, what their status in the Slovak legal system is and what relation there is between the treaties and the national legislation. Before doing so, however, it is important to stress the international community began showing interest in the issue of national minorities again after 1990.17 The development of a minimum standard for the protection of the rights of national minorities by international organisations such as the United Nations (UN), the Council of Europe (CoE), the Organisation for Security and Co-operation in Europe (OSCE) and even by the European Union (EU) initiative brought about perception of national minorities as an issue of international relations. It marks a significant change since the end of the Cold War, during which the issue of minorities was primarily seen as an internal affair of individual states.  

In the 1990s, the Slovak Republic adopted and ratified the Framework Convention for the Protection of National Minorities, which became effective in its territory in 1998. The treaty adopted by the Council of Europe in 1995 is considered the most important document regulating the status and the protection of the rights of national minorities. The Convention’s significance lies in the fact that it is legally binding. While the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities of 1992 is a politically binding document, the Framework Convention is an international-legal treaty. The Convention aims to develop an international standard for the protection of the rights of national minorities.

Slovakia has also acceded to another Council of Europe document – the European Charter for Regional or Minority Languages. The Charter was adopted by the Council of Europe before the Framework Convention of 1992. This document emphasises cultural diversity and preservation of cultural heritage. 

The Framework Convention and the Charter both represent international-legal treaties that are binding for the Slovak Republic. What is their status within the Slovak legal system? In accordance with Article 7, paragraph 5 of the Constitution of the Slovak Republic, international treaties on human rights and fundamental freedoms and international treaties for exercise of which a separate law is not necessary, and international treaties which directly confer rights or impose duties on natural persons or legal entities and which were ratified and promulgated in the way laid down by law have precedence over national laws.18 

This article of the Constitution was adopted as an amendment to the Constitution in 2001 and became effective on 1st Jul 2001.19 The amendment stipulates in Article 154c that all international treaties on human rights and fundamental freedoms ratified by Slovakia before the amendment had become effective shall remain a part of Slovak legal system and shall have precedence over national laws only if they ensure a broader scope of constitutional rights. Such a provision causes a problem of creating a double standard in the area of human rights legal treaties, especially in relation to the Framework Convention and the Charter. As for other international treaties ratified before the constitutional amendment had become effective, they are a part of the Slovak legal system only if laid down by law.20 

This means that the Framework Convention, which came into effect in 1998, has precedence over the national law only if it ensures a broader scope of rights than the rights guaranteed by the Constitution or if it is laid down by a separate law. It is unclear, which of the two options is the correct one. Several questions arise regarding the relation between the international and national law: does the Framework Convention ensure a broader scope of rights to members of national minorities than the Slovak Constitution? Does the Convention have precedence over the national laws? The Charter became effective at the end of 2001 after the constitutional amendment had become effective, which means it does have precedence over the Slovak laws. Nevertheless, the question remains whether international legal treaties on human rights and fundamental freedoms adopted and ratified after 1st July 2001 also have precedence over the Constitution of the Slovak Republic. It is also unclear how they should be implemented. All these questions cause legal insecurity in terms of the standing and the status of the Framework Convention and the Charter in the Slovak legal system. 

Next, we will examine what obligations arise for Slovakia from the two legally binding international-legal treaties in the field of the protection of minority rights. 

International legal obligations in the field of the protection of minority rights

Slovakia has specific obligations to protect the rights of national minorities particularly regarding two international treaties it has acceded to. Both are the Council of Europe treaties: The Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. 

One of the arguments MFA SR used in its dissenting opinion on the proposed draft legislation on national minorities was that the current legislation concerning the rights of national minorities was in line with the international obligations Slovakia is bound by. 

The Slovak Republic was the second country, right after Romania, to ratify the Framework Convention in 1995.21 As mentioned above, it is a legally binding treaty dealing with the protection of the rights of national minorities. The obligatory character of the Framework Convention lies in the fact that the state parties are obliged to adopt adequate legal measures for the protection of the rights of national minorities living in their territory. The Convention does not confer rights on individuals or groups. 

According to the Commentary to the Framework Convention, the provisions of the Convention are not directly applicable in practice.22 It means that the individual articles of the Convention need to be laid down by national legislation in order to be implemented in practice. According to the Framework Convention Preamble, all state parties undertake to implement the principles stipulated by the Convention by adopting national legislation and specific government policies. 

The fact is that Slovakia has not adopted a general law for the protection of national minorities yet. Therefore, the application of the individual principles laid down by the Convention in practice seems to be rather problematic. Most provisions in the Framework Convention are non-self-executing. The Convention includes principles in the area of minority rights defined very broadly and vaguely. Some provisions concerning the universal human rights in the Convention such as the right to equality, the right to freedom of speech or the right to associate with others can be self-executing. Most other provisions regarding minority rights laid down by the Convention require their incorporation into the national legislation. The framework nature of the Convention calls for additional legal instruments at the national level to render the provisions of the Convention fully effective.23

An analysis of the European Charter for Regional or Minority Languages shows that the Charter aims to protect and promote regional and minority languages, not linguistic minorities. The Charter does not intend to confer the rights on ethnic and/or cultural groups, but it wants to protect and promote regional or minority languages as such. According to the Charter, minority languages are a common European cultural heritage and have the same value regardless of a legal regime. In other words, even though there are official languages, they should not be in any way given precedence over minority languages.24 The existence of a national language that is given precedence over minority languages can limit the exercise of not only minority rights, but also civil rights.

Similarly, the Charter contains the basic principles necessary for developing an adequate framework for the preservation of minority or regional languages. The state parties should develop their policies and legislation based on these principles. Many provisions in the Charter list different kinds of legal regulations the state parties can choose from in order to transpose the Charter provisions into their national legislations. 

First, the state parties establish which languages the individual provisions will apply to.25 Then, they can choose at least thirty-five out of the proposed sixty-eight specific measures that promote the use of regional or minority languages in seven areas of public life: education, courts of justice, administration, media, culture, economic and social life, and cross-border co-operation.26 

Conclusion

The Constitution of the Slovak Republic regulates the rights of citizens of national minorities at a very general level and in a narrow scope. However, the Constitution is unambiguous about the obligation to lay down by a separate law the nature and the exercise of these rights.

Only linguistic rights and funding of the culture of national minorities are currently regulated by two separate laws. Other laws do not establish minority rights as such even though they address some of the rights of national minorities. 

The Slovak Republic has acceded to two international treaties and has obligations under both in the area of the protection of the rights of national minorities and minority languages. In order to implement the provisions and principles of these treaties, it is necessary to adopt legal norms at the national level. Most provisions in these two treaties dealing with the status and the rights of national minorities require their incorporation into the Slovak national legal system. Legislative incorporation of international rules is considered the best way of implementing the international law. 

The current legislation regulating minority rights is ambiguous and insufficient. New legislation is not only needed, but it is essential. Slovakia needs legislation to regulate the status and the protection of the rights of members of national minorities and ethnic groups. In order to implement the specific rights guaranteed by the Constitution of the Slovak Republic and to meet the international obligations the Slovak Republic has in the area of minority rights; adoption of new legislation is necessary. It can be done by means of adopting one separate law or several different legal norms. 

Apart from the legal arguments, there are other reasons for adopting legislation on minorities. The rights of national minorities are a part of human rights and enable the minorities to survive, preserve and develop their identities and to be protected against assimilation. Moreover, they enable them to fully realize their potential, to make decisions about matters affecting them and about their lives, as well as to pursue freedom and happiness. National, ethnic, cultural, linguistic and religious diversity should be perceived as a positive value in each society. 

The debate on new legislation needs to be open, transparent and inclusive. Representatives of individual minorities, general and professional public and representatives of the state and the public administration should take part in the debate. At the same time, it is important to note that the way minority rights are implemented can influence their exercise in practice. Therefore, the new legislative measures need to be specific, clear and unambiguous. The new legislation should be primarily designed to meet the needs of national minorities and ethnic groups. 

The rights of national minorities are crucial as they help preserve the identity of their members in terms of freedom everyone should have to decide about their identity, as well as to preserve and develop their identity. To achieve this goal, adequate constitutional protection of the rights of national minorities seems to be the minimum requirement. The relationship between the majority population and minorities is also important. Their co-existence needs to be based on mutual acceptance, respect and tolerance.

LITERATURE

  1. Preamble of the Framework Convention for the Protection of National Minorities no. 160/1998 Coll.
  2. United Nations (1993), General Assembly Resolution and Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, International Legal Materials, 32(3), 911-916. doi:10.1017/S0020782900016363
  3. Malloy, T.H. (2013), Minority issues in Europe: Rights, concepts, policy. Berlin, Frank and Timme.
  4. Preamble of the Framework Convention for the Protection of National Minorities no. 160/1998 Coll.
  5. Kymlicka, W. (1996), Multicultural Citizenship, New York, Oxford University Press; Laden, A.S. & Owen, D. (2007),  Multiculturalism and political theory, Cambridge, Cambridge University Press.
  6. Kymlicka, W. (1996), Multicultural Citizenship, New York, Oxford University Press.
  7. Bukovszky, L. (2020), ´Opening of an Event, Panel discussion: What law does Slovakia need to ensure full exercise of the rights of national minorities?´ and ´Final conclusions from discussion´, Bratislava, Conference on Legislative Models for the Protection of the Rights of National Minorities, 18.2.2020, available at: https://vimeo.com/392461748
  8. Committee for National Minorities and Ethnic Groups (2020), Fundamental Position Paper of the Committee for National Minorities and Ethnic Groups no. 4 of 23 January 2020 concerning the whole Committee to the Proposed legislation on national minorities,  Bratislava, Committee for National Minorities and Ethnic Groups, Annex 4 to the minutes from the XXXVI session of the Committee, available at: https://www.narodnostnemensiny.gov.sk//vybor-pre-narodnostne-mensiny-a-etnicke-skupiny/
  9. TASR (2020), ´Ministry of Foreign Affairs: a separate law on national minorities is not needed´, Teraz.sk, 31 January 2020, available at https://www.teraz.sk/slovensko/-samostatny-zakon-o-narodnostnych-m/443824-clanok.html
  10. Committee for National Minorities and Ethnic Groups (2020), Proposed legislation on national minorities. Substantiation for drafting a new law: Act on national minorities, available at: https://www.narodnostnemensiny.gov.sk//spravy-a-koncepcne-materialy/
  11. Government of the Slovak Republic (2020), Programme Manifesto, available at https://www.vlada.gov.sk//clenovia-vlady/ 
  12. Constitution of the Slovak Republic no. 460/1992 Coll.
  13. Framework Convention for Protection of National Minorities no. 160/1998 Coll.; European Charter for Regional or Minority Languages no. 588/2001 Coll.
  14. Act no. 184/1999 Coll. on the use of languages of national minorities; Act no. 138/2017 Coll. on the Fund for promotion of culture of national minorities and on amendments to specific laws.
  15. Ordinance of the Government of the Slovak Republic no. 534/2011 Coll. – the new current and effective list of the names of municipalities in the languages of national minorities; Ordinance of the Government of the Slovak Republic no. 535/2011 Coll. implementing some provisions of Act no. 184/1999 Coll. on the use of languages of national minorities as amended.
  16. Act no. 365/2004 Coll. on equal treatment in some areas and on the protection against discrimination and on amendments to specific laws;  Act no.  245/2008 Coll. on education and on amendments to specific laws; Act no.  154/1994 Coll. on birth registries;  Act no. 300/1993 Coll. on name and surname; Act no. 46/1999 Coll. on the manner in which the President of the Slovak Republic is elected, on electoral vote, on its revocation and on amendments to specific laws; Act no. 303/2001 Coll. on the elections to the bodies of self-governing regions and on the amendment to the Code of Civil Procedure; Act no. 331/2003 Coll. on the elections to the European Parliament; and Act no. 333/2004 Coll. on the elections to the National Council of the Slovak Republic.
  17. Jackson-Preece, J. (1998), National minorities and the European nation-state System, New York, Oxford University Press.
  18. Article 7 para. 5 of the Constitution of the Slovak Republic no. 460/1992 Coll.
  19. Constitutional Act no. 460/1992 Coll. of 23rd February 2001 amending the Constitution of the Slovak Republic  as amended.
  20. According to Article 154c of the constitutional amendment (1) International treaties on human rights and fundamental freedoms ratified by Slovakia and promulgated in the way laid down by law before this amendment had become effective shall remain a part of Slovak legal system and shall have precedence over national laws only if they ensure a broader scope of constitutional rights. (2) Other international treaties ratified by Slovakia and promulgated in the way laid down by law before this constitutional law had become effective shall be a part of the national legislation if laid down by law.”
  21. Council of Europe (2020), ´State parties to the Framework Convention for the Protection of National Minorities´, available at: https://www.coe.int/en/web/minorities/etats-partie
  22. Council of Europe (2020), ´Text of the Framework Convention for the Protection of National Minorities´, Comment 29, available at: https://www.coe.int/en/web/minorities/text-of-the-convention
  23. The Framework Convention: a key tool to managing diversity through minority rights. Thematic commentary No4. The scope of application of the Framework Convention for the Protection of National Minorities. Adopted on 27 May 2016. Council of Europe, available at: https://rm.coe.int/16806a8fe8, pp.7
  24. Council of Europe (2020), ´Text of the European Charter for Regional or Minority Languages´, available at: https://bit.ly/30qg57k
  25. According to Article 3 para. 1 of the Charter, there are the following „regional or minority languages” in the Slovak Republic: Bulgarian, Czech, Croatian, Hungarian, German, Polish, Roma, Ruthenian and Ukrainian; According to Article 2 para 1, Slovakia recognizes Russian and Serbian as minority languages for the purposes of Part 2 of the Charter, available at: https://bit.ly/30mjzI5
  26. Part 3, Article 8 to 14 European Charter for Regional or Minority Languages, available at: https://bit.ly/30nzQfR