C Explanatory
memorandum, by Mr Cilevičs, rapporteur
1 Introduction
1.1 My mandate
1. The present report stems from a motion for a recommendation
on minority protection in Europe: best practices and deficiencies
in implementation of common standards (
Doc. 11261 rev.) which I tabled with other members of the Assembly.
On 27 June 2007, the Committee on Legal Affairs and Human Rights
appointed me as rapporteur.
2. In the framework of this broad mandate I intend to study a
number of cases, including long-standing issues of contention. Some
of them have already been mentioned in the motion referred to above;
others have been raised in other motions referred to the Committee
on Legal Affairs and Human Rights in the meantime.
Note
3. Nevertheless, in this context, I should also specify that
I will not deal extensively with issues currently covered by other
reports dealt with by the committee, namely:
- “The European Charter for Regional or Minority Languages”
(rapporteur: Mr Berényi, Slovak Republic, EPP/CD);
- “The Freedom of religion and other human rights for non-Muslim
minorities in Turkey and for the Muslim minority in Thrace (Western
Greece)” (rapporteur: Mr Hunault, France, EDG); and
- “The situation of Roma in Europe” (rapporteur: Mr Berényi,
Slovak Republic, EPP/CD).
4. Consequently, my report focuses on the implementation of principles
of the Framework Convention for the Protection of National Minorities
rather than on the European Charter for Regional or Minority Languages.
1.2 Aim of this report
5. Most recent Assembly reports concerning national
minorities focused on the standards pertaining to minority protection
in Europe,
Note and more particularly on the Council
of Europe’s two main instruments in this respect: the Framework
Convention for the Protection of National Minorities and the European
Charter for Regional or Minority Languages. Although very different
in nature, these two mutually complementary instruments are crucial
for building a Europe based on universal values: substantive equality
and non-discrimination on the one hand, and preservation and promotion
of cultural and linguistic diversity on the other. The Framework
Convention has become the first ever legally binding instrument
on minority rights, and the European charter has become the first
ever legal instrument to protect languages. Other relevant standards set,
in particular, by the European Convention on Human Rights and the
case law of the European Court of Human Rights, will be referred
to in the chapters below.
6. The period of standard setting is probably over for a while,
so emphasis now needs to be placed on proper implementation of existing
standards. Both the Framework Convention and the European charter provide
for a review mechanism of their implementation, involving independent
bodies: the advisory committee for the Framework Convention and
the committee of experts for the European charter.
Note
7. On 11 March 2008, I represented the Assembly at the international
conference entitled “Ten years of protecting national minorities
and regional or minority languages: institutions and impact” which
was organised under the auspices of the Slovak Presidency of the
Council of Europe Committee of Ministers to mark the 10th anniversary
of the entry into force of the Framework Convention and the European
charter, on 1 February and 1 March 1998, respectively. On this occasion,
I stressed that, on the one hand, a lot has been achieved in terms of
minority protection in Europe, and on the other that amazing creativity
has been demonstrated across Europe to avoid fair implementation
of the principles of minority protection, and even to avoid undertaking
any clear-cut legal obligations in this respect.
8. However, in general, the acceptance of international scrutiny
of minority policies and practices has become more widespread, with
the Framework Convention affirming its position as the main legal
yardstick in Europe. Most countries today recognise the positive
contribution of national minorities to their societies and the value
of the Framework Convention as an objective legal standard and a
tool for countering extremist positions, although anti-minority
rhetoric still remains all too common in Europe, especially around
election time.
9. Over the years, the monitoring procedures conducted by the
advisory committee and the committee of experts have produced a
broad array of valuable data on practical successes and issues for
concern.
10. For the Assembly, the political aspect of these data is of
particular interest. Indeed, for parliamentarians it is essential
to single out the most essential decisions of a political nature
which have a crucial impact on the implementation of minority standards.
11. Therefore, this is not meant to be a monitoring report, as
it does not aim to evaluate minority situations in particular countries,
but rather strives to determine, through, inter
alia, a “case study”, the most crucial and potentially
controversial areas of political decision-making affecting the implementation
of the standards of minority protection.
12. Four areas in particular can be singled out:
- obligations of the local and
regional authorities under the Framework Convention (taking into
account the autonomy of the local and regional authorities, particularly
in federal states);
- the continuity of minority policies following a change
of government;
- the scope of application of the Framework Convention;
- the effective participation of persons belonging to national
minorities in cultural, social and economic life and public affairs.
13. On 10 March 2009 in Monaco, the Sub-Committee on Rights of
Minorities held an exchange of views with Mr Asbjørn Eide, former
president of the advisory committee, and with Mrs Snjezana Bokulic,
Minority Rights Group Europe (Budapest). I am most grateful for
the information provided by the experts on the four areas mentioned
above, which also highlights issues of concern and further challenges,
in these fields, as well as successes and best practices which could
offer guidance to other member states and further improve the protection
of minorities in Europe.
2 Obligations
of the local and regional authorities under the Framework Convention
2.1 Overview of the
situation across Europe
14. The obligations resulting from the Framework Convention
are binding on every state party as a whole. Actions or omissions
of all branches of government (executive, legislative and judicial)
and other state authorities, irrespective of their level (national,
regional or local), may engage the responsibility of the state party.
15. According to Article 27 of the Vienna Convention on the Law
of Treaties,
Note a
state party “may not invoke the provisions of its internal law as
justification for its failure to perform a treaty …”. Therefore,
the executive branch, which usually represents state parties at
international fora (including before the advisory committee and
the Committee of Ministers), may not validly argue that an action
incompatible with the provisions of the Framework Convention has
been carried out by another branch of government as a means of seeking
to relieve the state party from its responsibility for the action
and hence its incompatibility with the Framework Convention. The
provisions of the Framework Convention are binding on all authorities,
irrespective of the constitutional order of the state party as a
federal or centralised state, without limitations or exceptions.
16. Local and regional authorities are therefore obliged to implement
the Framework Convention, like any other legally binding international
instrument.
17. On some occasions, however, the advisory committee has observed
that whereas appropriate measures had been taken at the national
level, local authorities sometimes failed to act properly.
18. Decentralisation is often considered as a solution for solving
several problems related to the protection of minorities. Indeed,
in a number of cases it has had a positive impact. However, the
advisory committee has also observed that in practice decentralisation
does not always entail an improvement of the situation of minorities.
Very often a shift of competences in the field of minority protection
towards local authorities has resulted in weaker protection of minority
groups and increased their difficulties.
19. Three types of issue have been identified by the advisory
committee with regard to the role of local authorities:
- Implementation of the Framework
Convention provisions in federal states, in which most competences (for
instance education, culture, media) in the field of minority protection
lie with regional authorities and/or cases where the division of
competencies between the central and sub-national authorities is
not clear enough (for instance in the Russian Federation, and to
a lesser extent in Germany). In some cases, the norms applied by
federal and regional/local authorities may even be contradictory.
Moreover, in certain states, such as Bosnia and Herzegovina, the
central authorities have almost no competencies in the field of
minority protection and the sub-national authorities (both entities
and the cantons of the Federation) have all the competencies. However,
in the majority of cases, local authorities are not aware of the obligations
stemming from the Framework Convention and/or lack the political
will to implement them.
- Decentralisation leading to non-implementation of the
Framework Convention by the local authorities: the most current
and illustrative example is that of local authorities not allocating
funds to the implementation of national strategies for minorities
at the local level, or not having enough funds to implement such
strategies because of insufficient financial transfers from the
central budget (for example the difficulties faced by minority self-governments
in Hungary, which very much depend on the good will and co-operation
of local self-governments and their readiness to allocate funds
for the activities of minority self-governments). The lack of financial
means is sometimes coupled with the local authorities’ lack of political
will. In many state parties, notably those of central and eastern
Europe, the gaps in the implementation of the Framework Convention,
or in certain cases the lack of its implementation (including, for
instance, the absence of strategies for Roma), result from decisions
taken at national level.
- Local authorities taking decisions which are not compatible
with the principles of the Framework Convention: for example building
walls around Roma districts (for example in Usti-nad-Labem in the Czech
Republic, where the advisory committee found that the state failed
to guarantee respect for the rights of national minoritiesNote),
not erecting or destroying bilingual signs in minority languages
(for instance in Carinthia, where the decisions of the Austrian
Constitutional Court are still not implemented – see the case study
below), or housing segregation (Roma in numerous countries, for
example). Other examples include hate speech by local politicians
against persons belonging to minorities, school segregation, and
obstacles faced by representatives of national minorities in participating
in public affairs and decision-making at the local level.
20. There are also examples of positive actions taken by local
authorities: the system of self-government in Hungary has had a
number of positive consequences for the empowerment of minorities
and increasing their role in society as a whole, although its impact
is still limited by a number of drawbacks. The setting up of institutions
to deal with minority issues at the sub-national level, for example
the Ombudsperson for minorities in Schleswig-Holstein in Germany,
may also be a useful tool in practice. Another positive example
of the German authorities’ actions: in the Rhineland Palatinate,
the Land Government decided
to recognise the Roma (Sinti) as a national minority at the Land level, which afforded them
not only official recognition, but also more opportunities to develop
their activities. Furthermore, in Spain, the Government of Andalusia
has long been active in promoting equal opportunities for Roma,
making it a forerunner in minority protection issues before the
central authorities. In the Russian Federation, some of the subjects
of the Federation have enacted additional legal guarantees to strengthen
minority groups’ protection.
21. In its recommendations made during the first and second cycles
of monitoring, the advisory committee consistently reminded the
state parties (i.e. their central authorities) that they were accountable
for the implementation by the local/regional authorities of the
provisions of the Framework Convention. The advisory committee also
reiterated that, as a consequence, they should take all the necessary
measures to ensure proper implementation of the Framework Convention.
Moreover, it stressed the regulatory role of the state in implementing
policies and measures to protect minorities, especially by ensuring
consistency in the legislation and implementation of policies throughout
the territory. It also recalled the necessity of providing equal opportunities
for all persons belonging to minorities, irrespective of their place
of residence. The advisory committee also called for more clarity
in the division of competences between the central and local authorities in
areas affecting national minorities.
22. In her report on Greece, the United Nations independent expert
on minority issues considered that “[t]he government must ensure
that national policies are not subverted or defied by local authorities
who find it more convenient to be responsive to local prejudices.
With respect to international legal obligations including rights of
non-discrimination and equality, domestic constitutional arrangements
such as decentralised authority or devolution of powers, do not
mitigate state responsibility for violations of human rights. The
government should consider models which recognise the principle
of national government pre-emption of local authority in matters of
compelling state interest such as fundamental rights. Alternative
models deny funding to non-compliant localities. The European Commission
against Racism and Intolerance (ECRI) has recommended sanctions
“on municipal councillors who make racist remarks or do not comply
with the regulations and decisions that bind them”.
Note The government
must display a stern political will that localities have no option
other than to comply with positive national policies. National ministries
must then effectively monitor implementation on the local level
Note (see also
details of the case study on Greece below).
2.2 Case study: Austria
(Carinthia)
23. The legislative framework for the protection of minority
rights is well developed in Austria. As stressed by the advisory
committee and the Council of Europe’s Committee of Ministers,
Note since
2004 Austria has significantly strengthened its anti-discrimination
legislation at both federal and
Länder level,
and the new legal guarantees are reinforced by the setting up of
a new institutional framework to tackle discrimination, including on
grounds of ethnicity. Further efforts have been made to improve
community relations, promote the integration of immigrants and expand
intercultural dialogue in society. Measures have also been taken
to enhance the preservation and development of the cultural heritage
and identity of persons belonging to the Slovene minority in Styria,
and to further improve the system of bilingual education in Carinthia
and Burgenland. Finally, the new Austrian Broadcasting Corporation
Act (ORF) has widened possibilities for broadcasting in the national
minority languages, and valuable initiatives regarding cross-border
co-operation on issues related to national minorities continue to
be developed.
24. However, the advisory committee noted shortcomings in the
implementation of this legislation, at both federal and local level,
in particular with respect to the use of minority languages in relation
to the administrative authorities and bilingual topographical signs.
Note
25. On 9 and 10 June 2008, I carried out a fact-finding visit
to Austria (Vienna and Klagenfurt in Carinthia; see Appendix I)
focusing on the issue of bilingual (i.e. in German and Slovenian)
topographical road signs in the federal province of Carinthia, which
affect the Slovene minority. Regrettably, despite several requests, there
was no meeting with representatives of the regional government during
this visit.
26. As already stressed both by the advisory committee and the
Council of Europe’s Commissioner for Human Rights in their respective
recent reports on Austria,
Note bilingual
topographical signs have been a bone of contention in Austria for
some years.
27. In a decision of 13 December 2001, confirmed by later judgments,
the Constitutional Court ruled that the Slovene minority would be
entitled to display bilingual topographical signs in municipalities
where the minority represented at least 10% of the population over
a long period. The recently deceased Governor of Carinthia criticised
the decision and, to date, the decision of the Constitutional Court
of 13 December 2001 has yet to be implemented.
28. I raised this issue with a representative of the Constitutional
Court in Vienna during my visit. The non-implementation of the decision
of the Constitutional Court has been denounced on several occasions
by various Council of Europe bodies, most recently by the Committee
of Ministers on 11 June 2008 (see below). Nevertheless, during my
meeting at the Chancellery, my interlocutors argued that every single
decision had been implemented.
29. Here, it should be explained that each decision of the Constitutional
Court concerned a specific road sign in a specific village; nevertheless
the decision should apply, mutatis mutandis,
to all other villages concerned, which was not the case.
30. This also illustrates that the debate is not about the principle
of whether or not there should be bilingual signs, but about the
number of bilingual signs to be displayed (about 200 villages according
to the Slovene minority).
31. Although the non-implementation of Constitutional Court decisions
by the Carinthian authorities raises serious concerns regarding
the rule of law, a number of my interlocutors stressed that it was
also clearly a political issue – strongly connected with the personality
of the (late) Governor of the Province – occasionally exploited
by a few politicians, and that there was a lack of political will
at all levels to solve this issue once and for all.
32. Nevertheless, this situation also illustrates the difficulties
that might arise in a federal structure with a very complex distribution
of competencies when stumbling blocks at regional level have not
been overcome at the federal level for years.
33. Most recently, on 11 June 2008, just after my visit, the Council
of Europe’s Committee of Ministers adopted Resolution ResCMN(2008)3
on Austria which,
inter alia,
refers to this issue as follows:
“The
Constitutional Court’s decision of 13 December 2001 on bilingual
topographical signs hasstill
to be implemented. The unresolved conflict around bilingual signs
in Carinthia is creating an atmosphere that is not conducive to
harmonious relations and may hamper the effective implementation
of other rights of persons belonging to national minorities. The
full implementation of the legislation on the use of minority languages
in relations with the authorities continues to face obstacles in
Carinthia and Burgenland.”
34. In this context, it should also be stressed that Austria has
been a state party to the Framework Convention (and the European
Charter) since 1998. Accordingly, it shall apply the provisions
of the Framework Convention in good faith, in a spirit of understanding
and tolerance and in conformity with the principles of good neighbourliness,
friendly relations and co-operation between states (Article 2 of
the Framework Convention).
35. This issue should be solved as soon as possible to the benefit
of all concerned. Some interlocutors believed that it should be
achieved by the adoption of a specific law indicating where and
how the bilingual road signs should be placed.
36. Notwithstanding the difficulties described above in Carinthia,
a number of interlocutors, as well as the Committee of Ministers,
have praised and called for the further development of the unique
system of bilingual education in Carinthia and Burgenland, which
reportedly even attracts an increasing number of pupils from the linguistic
majority. This illustrates again the fact that both difficulties
and best practices can be found in the same country or region.
3 Continuity of minority
policies following a change of government/ruling parties
3.1 General remarks
37. The advisory committee has touched upon this issue
in different contexts.
38. Firstly, it noted that in some state parties the commitments
taken by previous governments in the field of minority protection
had not been upheld or fulfilled, for instance concerning the adoption
of new legislation in this area. Furthermore, in some cases the
financial support for the protection of minorities and/or the political will
in this respect weakened following changes in governments at the
central or local level (for example the drastic reduction of funding
of minority self-government in Hungary following the 2002 elections).
39. Secondly, in a number of state parties the advisory committee
also regretted the lack of continuity and consistency in the conduct
of policies on minorities. In many cases this problem was manifested
by shifts in such policies, and sometimes also in the change of
the relevant institutions, which affected the effectiveness and
capacity of these institutions (see, for instance, the second advisory
committee’s opinion on Sweden
Note). Therefore, the advisory committee
recommended more streamlining and consistency, irrespective of changes in
government.
40. Furthermore, the advisory committee noted with concern a weakening
of the efforts made to promote the implementation of the Framework
Convention by some state parties, notably those that had recently
joined the European Union. In such cases, the advisory committee
could but invite the states concerned to pursue and enhance their
efforts.
41. Lastly, some state parties had made commitments in the field
of minority protection when they joined the Council of Europe, but
have not yet implemented them, because of, inter
alia, shifts in their policies. Such was notably the
case of Azerbaijan, whose authorities, upon accession to the Council
of Europe, had committed themselves to adopting additional legislation
on the protection of national minorities. However, there has been no
progress in this respect for the last few years.
3.2 Case study: The
Slovak Republic
42. A change of government might represent a challenge
for the continuity of policies related to minority protection.
43. In the context of this study, I decided to examine the case
of the Slovak Republic. On 11 June 2008, I visited Bratislava and
Šamorin (see the programme of the visit in Appendix II), where I
had a number of meetings with, inter
alia, representatives of the Hungarian minority in the
country. The Hungarians, who represent almost 10% of the state’s
population, form the largest minority in the Slovak Republic.
44. During my visit, a number of interlocutors of the Hungarian
minority stressed that 1998 represented a turning point for minority
protection in the country, when representatives of the Hungarian
minority entered the ruling coalition. Since then a number of initiatives
have been taken with respect to minorities, among which was the
setting up of different bodies dealing with minorities – for example
the Ombudsman institution, the Council for National Minorities and
Ethnic Groups, the plenipotentiary of the government for Roma issues
– as well as the setting up of the state-run Selye Janos University
in Komarno.
45. An agreement concluded in December 2003 between the Slovak
Government and the Government of Hungary on mutual support for national
minorities in the field of education and culture has further strengthened the
protection of the Hungarian minority in the Slovak Republic.
46. In recent years, the Slovak Republic has been praised for
having markedly improved its anti-discrimination and institutional
framework,
Note by,
inter alia, having adopted the 2004
Anti-Discrimination and Equal Treatment Law.
Note
47. In addition, minority-related issues were high on the agenda
of the recent Slovak Presidency of the Council of Europe’s Committee
of Ministers, which marked the 10th anniversary of the entry into
force of the Framework Convention and the European Charter.
48. Nevertheless, during my visit, my interlocutors were concerned
that there were no safeguards to guarantee the continuity of these
policies in case of a change of the ruling coalition. Indeed, relations
with the Hungarian minority have reportedly become more tense since
the 2006 parliamentary elections and the setting up of a coalition
between the
Smer – sociálna demokracia party
(Direction – Social Democracy) and the Slovak National Party (
Slovenská národná strana – SNS).
During my visit, representatives of the Hungarian minority expressed
concern about what they called “hate speech” by politicians against
the Hungarian minority, which, according to them, had increased
after the change of government in 2006. This problem has been also
noted by ECRI, which, in its last report, urged the Slovak authorities
to take a more robust stance against negative political discourse
against ethnic minorities, including in particular the Hungarian
one. ECRI has recommended among others to ensure the implementation
of the relevant provisions of the Criminal Code against incitement to
racial hatred with regard to politicians who make racist statements
or speeches.
Note
49. Nevertheless, on several occasions the Slovak authorities,
including Mr Kubis, the Foreign Affairs Minister in Strasbourg in
January 2008 (in response to a question I had put to him), indicated
that they would preserve the status quo regarding minority policies.
Note However, during my visit, a number
of representatives of minorities claimed that they had to “fight”
to preserve this status quo, which, in the absence of proactive measures,
meant stagnation in the short term and regression in the long term.
50. During my visit, representatives of the Hungarian minority
also mentioned two issues which, in their eyes, represented retrograde
steps in terms of minority protection: the issue of geographical
names (toponyms), which were published only in the Slovak language
in schoolbooks, and the proposed reduction in the number of hours
of Hungarian language courses in school, following the adoption
of the new Schools Act. The problem of toponyms has been also pointed
out by ECRI in its recent report. ECRI noted, however, that a bill
had been adopted by the parliament which envisaged indicating in
school textbooks toponyms both in minority languages and in Slovak.
51. However, with respect to the proposed population census foreseen
for 2011, representatives of minorities believed that the possibility
of using questionnaires in the languages of national minorities
was guaranteed in the new legislation, which was seen as a positive
measure.
52. Furthermore, the representatives of the Hungarian minority
considered it very positive that the Ministry of Culture of the
Slovak Republic has solved the financial problems concerning Slovak
Radio’s broadcasts in the Hungarian language.
53. As concerns the budget allocated to minority cultures, I was
informed that it had decreased in 2007, following the change of
government in 2006 (80 million SKK in 2007 compared to 160 million
SKK in 2006). However, in 2008, the budget had been on the increase
(100 million SKK).
54. In this context, I should also mention that minority representatives
alleged that the ruling coalition was not prepared to implement
the last resolution of the Council of Europe’s Committee of Ministers
on the implementation of the Framework Convention and recommendation
of the Committee of Ministers on the application of the European
Charter.
NoteInter alia, these called for efforts
to complete the legislative framework pertaining to national minorities,
including in the fields of culture and education, to review the
mechanisms aimed at ensuring participation of persons belonging
to national minorities in order to render it more effective, and
also to focus on Roma issues.
55. Regarding Roma, serious concerns were expressed regarding
access to housing, education, health and employment. The authorities
appeared nevertheless to have multiplied their efforts to improve
this situation, particularly in the field of education.
56. In its recent report on Slovakia, ECRI welcomed the recent
positive developments, including the adoption of a Medium-term Concept
for the Development of the Roma National Minority of the Roma National Minority
in the Slovak Republic for 2008–2013, which proposes solutions in
the fields of education, health, health care and the media, among
others. However, according to ECRI, some issues continue to give
rise to concern: a de facto segregation of Roma children in schools
through their disproportionate representation in special elementary
schools for disabled children, poor housing conditions, a high unemployment
rate in the Roma population, allegations of sterilisations of Roma
woman without their consent, and an increase in racially motivated
violence against Roma. Therefore, ECRI commended the Slovak authorities
for making issues pertaining to Roma a horizontal priority and urged
them, in particular, to increase the capacity of the Office of the
Plenipotentiary for Roma to manage funds allocated to that end,
and to combat the de facto segregation of Roma children.
57. Furthermore, on 30 June 2009, the Slovak Parliament adopted
an amendment to the State Language Law, which entered into force
on 1 September 2009. The intention of this amendment is to strengthen
the protection of Slovak as the state language. Certain provisions
of this law, including those on supervision and sanctions, cause
concerns in minority groups, in particular the Hungarian one.
Note In his opinion of 22 July 2009 the
OSCE High Commissioner on National Minorities stated that the amendment
pursued a legitimate aim and was in line with international standards.
Note However, he found that some elements
of this law raise or – depending on the implementation – might raise
issues of compatibility with international norms and with the constitutional
principles of the Slovak Republic.
NoteNote He therefore asked the Slovak authorities
to implement the law carefully. On 25 September 2009, the Slovak
authorities asked the European Commission for Democracy through
Law (Venice Commission) to deliver a legal opinion on the Act on
the State Language of the Slovak Republic.
58. It is also noteworthy that in the above opinion the OSCE High
Commissioner pinpointed the lack of comprehensive legislation on
the rights of national minorities. He remarked that “Now that a
further step has been taken to protect and promote the state language,
a reform of the National Minority Language Law should be considered,
with a view to strengthening the rights of national minorities and
to make them feel entirely at home in Slovakia. In this regard,
the continued absence of a comprehensive law on the rights of persons belonging
to national minorities should again be addressed. Such a law could
make the balance between the different – and both legitimate – aims
more visible and would have an important reassuring effect on members of
national minorities”.
Note
59. Against this background, it should be recalled that the state
authorities, irrespective of any changes of government, are bound
by international obligations already undertaken upon ratification
of the relevant instruments.
4 Limits to the application
of the Framework Convention in Europe
4.1 Scope of application
of the Framework Convention
60. First and foremost, there is no generally recognised
legal definition of the term “national minority” in international
law, and the Framework Convention itself does not determine the
right-holders of the protection it envisages.
61. Consequently, the scope of application of the Framework Convention
remains one of the most controversial issues related to its implementation.
Basically, each state party can itself determine which groups are
covered by the Framework Convention.
62. The advisory committee recognises that state parties have
a margin of appreciation in the determination of the scope of application
of the Framework Convention. However, such decisions “must be exercised
in accordance with general principles of international law and the
fundamental principles set out in Article 3 of the Framework Convention.
In addition, it stresses that the implementation of the Framework
Convention should not be a source of arbitrary or unjustified distinctions”.
Note
63. In fact, the advisory committee, the Committee of Ministers
and the Assembly do not consider that state parties have an unconditional
right to decide which groups within their territory qualify as national
minorities in the sense of the Framework Convention. As stressed
by the Assembly in its
Recommendation
1623 (2003), any decision of the kind must respect the principle
of non-discrimination and comply with the letter and spirit of the
Framework Convention.
64. In this context, the advisory committee considered that it
was its duty to examine thoroughly the scope of application of the
Framework Convention by the states. The implementation of the Framework
Convention by state parties is characterised by different approaches,
ranging from minimalist (for example limiting the scope of application
to the so-called “historical minorities” or to some selected minorities
while arbitrarily denying recognition to others) to more inclusive
and generous.
65. In a number of state parties, the advisory committee found
that the scope of application as interpreted by the states was problematic.
Firstly, most state parties have introduced the criterion of citizenship.
The advisory committee (backed in this respect by the Venice Commission)
is of the opinion that the citizenship criterion can be a legitimate
requirement in relation to certain measures taken in accordance
with the principles of the Framework Convention. This can be the
case as regards certain political rights that persons belonging to
national minorities enjoy. A generally applicable citizenship criterion
is, nevertheless, problematic in relation to several other guarantees
enshrined in the Framework Convention, such as those in Article
4 (anti-discrimination) and Article 6 (tolerance and intercultural
dialogue).
66. The criterion of citizenship is an issue that is often raised
in the context of debates on the application of the Framework Convention
to “new minorities”. One should bear in mind that some states have
opted for a very open approach in this respect (for instance the
United Kingdom, which does not apply the citizenship criterion). Other
states, such as Germany, have opted for restricting the scope of
the application of the Framework Convention to its citizens only
and, in general, to persons belonging to “traditional” minorities,
that is to say those resulting from changes of borders and not from
changes of residence of individuals (such as immigration).
67. However, the problem persists in state parties in which a
substantial number of persons belonging to national minorities do
not have the citizenship of the state party concerned. This happens
mainly because of the dissolution of former states (for instance
the Federal Republic of Yugoslavia and the Soviet Union) and the emergence
(or restoration) of new ones, and is sometimes coupled with restrictive
conditions for accessing citizenship, resulting from the law itself
or from the authorities’ practice (for instance Russians in Estonia
and Latvia). This problem may be illustrated by the situation of
numerous Roma who live in countries of South-Eastern Europe and
remain without citizenship. Therefore, they do not enjoy the protection
resulting from the provisions of the Framework Convention. Another
example may be that of formerly deported people who returned to
their state of origin and afterwards faced obstacles in acquiring
the latter’s citizenship. Ukraine has found an effective solution
regarding the Crimean Tatar, but a similar issue concerning the
Meskhetians has yet to be resolved by Georgia.
68. In such cases, the advisory committee recommended removing
all obstacles to the acquisition of citizenship and taking measures
to remedy the remaining problems of statelessness. Moreover, it
called upon the states’ authorities to adopt a flexible approach
as regards the personal scope of application of the Framework Convention,
and to avoid using the criterion of citizenship when deciding on
who should benefit from its protection.
69. Certain state parties have excluded some ethnic groups from
the protection resulting from the Framework Convention by defining
a very narrow personal and territorial scope of its application
(see, for example, the advisory committee’s first
Note and
second opinions on Denmark
Note).
70. In other states a distinction between “autochthonous” and
other minorities has been introduced. For instance, this has been
the case with regard to Roma in some states in which “autochthonous”
Roma fall under the protection resulting from the provisions of
the Framework Convention, whereas Roma who had come from other countries,
even a long time ago, do not (for example in Germany).
71. The advisory committee criticised these a
priori exclusions from the personal scope of application
of the Framework Convention. Therefore, it encouraged the relevant
authorities to continue their dialogue with the groups concerned
on a possible extension of the personal scope of application of
the Framework Convention, possibly on an article-by-article basis.
72. The advisory committee has consistently echoed this position
to a number of state parties. In so doing, it has emphasised the
need to be flexible and open. Since the situation of minority groups
and their needs evolve over time, one should be practical and make
use of the provisions of the Framework Convention, if need be. This
does not imply that ethnic groups should always be recognised as
national minorities in the domestic legal order (bearing in mind
that some state parties historically do not recognise such a concept
in law) but that, if appropriate, they should benefit from the protection
resulting from specific provisions of the Framework Convention.
The Framework Convention is meant to be a pragmatic tool that can
be implemented in very different contexts. This may be illustrated
by the fact that, in respect of a few states, the advisory committee concluded
that it was relevant for persons belonging to the state-wide majority
population but finding themselves in a minority situation in their
region to benefit from the protection guaranteed by the Framework Convention
(for instance Finns on the Åland Island in Finland, Constituent
Peoples in Bosnia and Herzegovina).
73. The Assembly has also asked state parties to the Framework
Convention to revoke their reservations and declarations. However,
no declarations have so far been revoked by any state party.
4.2 Non-ratification
of the Framework Convention
74. The Framework Convention has been ratified by 39
of the Council of Europe’s 47 member states
75. To date, four states – Belgium, Greece, Iceland and Luxembourg
– have signed but not ratified the Framework Convention, and four
others – Andorra, France, Monaco and Turkey – have neither signed
nor ratified.
76. That said, the Framework Convention is not without relevance
for these states since they participate, within the Committee of
Ministers, in the convention's monitoring mechanism. Furthermore,
the relevance of the Framework Convention for these states is discernible
in that they are also bound by political commitments on minority
standards of the OSCE, notably the Copenhagen Document of 1990.
It is important because the latter constituted the basis for drafting
the Framework Convention. For its part, the High Commissioner on National
Minorities refers to the Copenhagen catalogue of minority commitments,
and to case law generated under the Framework Convention in regard
to non-members of the Council of Europe but participating states of
the OSCE (e.g. states of Central Asia). Moreover, they are bound
by other Council of Europe’s instruments (see part iv below).
4.2.1 Case study: Greece
77. Because the monitoring procedures set up under the
Framework Convention and the European charter do not formally apply
to states that have not ratified them, these states escape scrutiny
by the advisory committee (but they are monitored by other Council
of Europe bodies). It is nevertheless most interesting to examine
how these countries accommodate diversity, whether through minority
policies with respect to recognised minorities or through a "non-discrimination"
approach when minorities are not recognised, or by combining both
approaches. In the context of this report, I therefore decided to
visit one of these countries, namely Greece, which recognises only
one minority on its territory. From 26 to 28 February 2009 I had
a number of meetings in Athens, Thessaloniki and Florina (see the
programme of the visit in Appendix III).
78. In its 2004 report on Greece, ECRI noted, “persons wishing
to express their Macedonian, Turkish or other identity incur the
hostility of the population. They are targets of prejudices and
stereotypes, and sometimes face discrimination, especially in the
labour market”.
Note In its 2009 report on Greece,
Note ECRI expressed
concern about the situation of Roma, which suffer discrimination
in particular in education, housing and employment.
Note It
also noted that the problem of the recognition of the identity of
Macedonians and ethnic Turks, and in particular their right to freedom
of association, remains.
Note
79. Given that other reports of the Parliamentary Assembly’s Committee
on Legal Affairs and Human Rights address the issue of the Muslim
minority in Thrace (Eastern Greece), as well as the situation of
Roma in Europe,
Note I
limited my focus to the contentious issue of the Macedonian community
in Greece, which has,
inter alia,
also been recently dealt with, to various extents, by the Council
of Europe’s Human Rights Commissioner and the United Nations independent
expert on minority issues, Ms Gay McDougall. The latter also visited Florina
in September 2008.
Note
4.2.1.1 The approach of
the Greek Government
80. The Greek authorities recognise only one minority
in Greece, namely the “Muslim” minority in Western Thrace, by virtue
of the Lausanne Peace Treaty of 24 July 1923. In this context, Greece
was recently commended by various bodies, including the Parliamentary
Assembly’s Committee on Legal Affairs and Human Rights,
Note for a number of measures
it had taken to enhance the rights of the Muslim minority in Greece. As
regards others, Greece favours the approach to non-discrimination
defined by European Union instruments.
Note
81. The Greek authorities have repeatedly denied the existence
of any Macedonian minority in Greece and repeatedly referred to
the hijacking of local culture by persons and groups which pursue
political aims.
82. Despite the non-recognition of any other national or linguistic
minority, the Greek authorities have acknowledged that in northern
Greece there exist “a small number of persons who … use, without
restrictions, in addition to the Greek language, Slavic oral idioms,
confined to family or colloquial use”.
Note
83. During my visit, the Greek authorities stressed that Greek
citizens who claim Macedonian identity are fully represented by
a political party, which is free to participate in elections in
Greece.
4.2.1.2 Claims of representatives
of the Macedonian community
84. First and foremost, I should stress that there has
been no ethnic violence in the Florina area. Greek society is pluralistic
and open to diversity. Nevertheless, it seems that still today,
persons who express and actively claim a Macedonian identity often
come up against the resentment and even hostility of the authorities.
85. Members of the Macedonian community recognised that their
situation had improved in the last 15 years, though they were still
allegedly subject to individual acts of harassment and intimidation
(at work, to obtain Greek citizenship, when crossing the border
with the neighbouring country, for recognition of diplomas, for property
issues or in religious matters). They ask the authorities to recognise
their right to self-identification as well as the existence of a
Macedonian national minority in Greece.
86. During my visit, I focused on the non-execution of the Sidiropoulos
and others judgment of 1998
Note and the
situation of persons deprived of their Greek citizenship.
4.2.1.3 The case of Sidiropoulos
and others v. Greece (freedom of association and right to self-identification)
87. The Sidiropoulos and others case concerns the refusal
of the Greek authorities, even after the judgment of the European
Court of Human Rights of 1998, to register “The Home of Macedonian
Civilisation”, a non profit-making association that a number of
Greek citizens who identify themselves as belonging to an ethnic Macedonian
minority wanted to establish in Florina. The Strasbourg Court found
a violation by Greece of the right to freedom of association (Article
11 of the European Convention on Human Rights). The authorities denied
registration arguing,
inter alia,
that “‘the promotion of the idea that there is a Macedonian minority
in Greece … is contrary to the country’s national interest and consequently
contrary to law’”. In this case, it is most interesting to stress
in the context of the present report, that the Court, in its judgment,
in effect, agreed with the applicant
that
“territorial integrity, national security and public order were
not threatened by the activities of an association whose aim was
to promote a region’s culture, even supposing that it also aimed
partly to promote the culture of a minority; the existence of minorities
and different cultures in a country was a historical fact that a
‘democratic society’ had to tolerate and even protect and support
according to the principles of international law”.
Note
88. During my visit I reiterated that Greece should comply fully
with the judgment of the Court, as well as with other judgments
concerning the Turkish community, in which the European Court found
violations of the right to freedom of assembly and association.
Note Moreover, this issue has been addressed
in ECRI’s 2009 report on Greece,
Note in which it recommended that the Greek authorities
“take measures to recognise the rights of the members of the different
groups living in Greece, including to freedom of association, in
full compliance with the relevant judgments of the European Court
of Human Rights”.
89. As stressed by the Council of Europe’s Commissioner for Human
Rights in his report on Greece:
Note
“… it
is to be noted that the UN Human Rights Committee has clarified
that under … the ICCPRNote a state party
‘is under an obligation to ensure that the existence and the exercise
of [the above right] are protected against their denial or violation’.
The UN Human Rights Committee has stressed that ‘[a]lthough the
rights protected under Article 27 are individual rights, they depend
in turn on the ability of the minority group to maintain its culture,
language or religion. Accordingly, positive measures by states may
also be necessary to protect the identity of a minority and the
rights of its members to enjoy and develop their culture and language
and to practise their religion, in community with the other members of
the group’. Similar provisions are found in the Framework Convention
for the Protection of National Minorities (see, for example, Article
5), which was signed by Greece on 22 September 1997 but has not as
yet been ratified.
Indeed, the right to freedom of association is one of
the fundamental prerequisites for the harmonious functioning of
European democratic societies which are characterised by inherent
pluralism that, in turn, should always be accompanied by tolerance
and broadmindedness. The essential contribution made by non-profit-making
associations, such as non-governmental organisations, to the development
and realisation of democracy and human rights was recently highlighted
also by the Committee of Ministers in its Recommendation Rec(2007)14
on the legal status of non-governmental organisations in Europe.”
90. It should be deplored that the application for recognition
of the “Home of Macedonian Civilisation”, lodged on 24 July 2003,
was again rejected by the Greek courts. This decision became final
after the Supreme Court rejected its cassation appeal by judgment
No. 1448/2009, published on 11 June 2009.
Note
4.2.1.4 Persons deprived
of their Greek citizenship (those living in Greece and those living abroad),
and in this context, the differentiation in Greek law between people
of Greek and non-Greek origin
91. Former Article 19 of the Greek Citizenship Code provided
that Greek citizens who were not ethnically Greek could have their
citizenship revoked if they left the country and the Greek authorities
believed that they did not intend to return. As a consequence of
this provision, applied from 1955 to 1998, there were approximately
60 000 Greek citizens, including minors, who lost their nationality.
The majority of these persons were of Turkish ethnic origin. However,
the repeal of Article 19 does not have a retroactive effect. Although
the Ministry of the Interior issued instructions to local authorities
to accelerate the procedure for naturalising stateless Muslims in
Western Thrace and a number of other persons have re-acquired their
Greek citizenship, it seems, according to ECRI,
Note that no other measures have been taken to
tackle the situation of persons who lost their Greek citizenship
under Article 19 of the Citizenship Code, including those who are
currently residing abroad and/or have acquired the citizenship of
another state. This issue has been addressed by the Council of Europe
Commissioner for Human Rights in his report and I fully concur with
his analysis and recommendations. During my visit, my interlocutors
recognised that this was a problem and I also had the impression
that the authorities were determined to step up efforts to solve
it.
92. Moreover, in its recent judgment
Zeïbek
v. Greece, the European Court of Human Rights also dealt
with the situation of a Muslim Greek applicant, who had fallen under
Article 19 of the Citizenship Code.
Note The Court found that she had
been discriminated against with regard to her right to retirement
pension (violations of Article 1 of Protocol No. 1 alone and in
conjunction with Article 14 of the Convention).
93. Furthermore, I would like to express concern about the provisions
of the Greek law that appear to affect mainly ethnic Macedonians.
Indeed, during the civil war in Greece (1946-49), thousands of political
refugees, ethnic Macedonians and others, left the country. Reportedly,
at least 28 000 child refugees, mostly ethnic Macedonians, were
also evacuated from areas of heavy fighting and relocated to countries
such as Yugoslavia, Czechoslovakia, Poland, Hungary, etc. Greece
subsequently confiscated the properties of these exiles and deprived
them of their Greek citizenship. Finally, in 1982, a provision (Decision
106841/29-12-1982 on the “free repatriation and restoration of Greek
Citizenship to political refugees”) permitted the return to Greece
of people having fled the country during the civil war, together
with their families, provided they were Greek “by genus” (that is
to say of Greek origin), thereby excluding persons of non-Greek,
and particularly Macedonian, origin who had nonetheless left Greece
under the same conditions. In 1985, a law (No. 1540) provided for
the return of confiscated properties of political refugees, again
limited to Greeks “by genus”.
94. Reportedly, most of the ethnic Macedonians affected by these
laws are over the age of 70 and now reside in various European countries,
Australia, Canada, etc. Representatives of the Macedonian community consider
that these laws are discriminatory, targeting Macedonian political
refugees, many of whom would now like to return to their birthplace.
During my visit, it was alleged that those claiming Macedonian identity experience
difficulty in obtaining visas to attend funerals or visit relatives
in Greece. ECRI addressed this issue in 2004 and “strongly recommended
to the Greek authorities to reconsider the foundations and the implications of
their policy in this respect”.
Note In
its last report on Greece in 2009, it noted that the Ministerial
Decision No. 106841 of 1982 and Law No. 1540 of 1985 continued to
apply only to ethnic Greeks.
Note Therefore it recommended again
that “the Greek authorities take steps to apply, in a non-discriminatory
manner, the measures of reconciliation taken for all those who fled
the civil war”.
Note Concerning denationalised persons
who have remained abroad and are not willing to return, the Human
Rights Commissioner called upon the authorities “to consider the
possibility of providing them, or their descendants, with satisfaction,
in accordance with the general principles of international law”.
Note Concerning
the remaining stateless persons who now reside in Greece, the Greek
authorities have reportedly expressed their determination to proceed
promptly to the restoration of their nationality. The situation
of persons of Macedonian origin compelled to leave Greece in the civil
war when most were only children, who wish to return, even for a
short time, nevertheless needs further attention. Further gestures,
such as the opening of the border for a few days in 2003 for ethnic
Macedonian refugees, should be considered.
4.2.1.5 The issue of the
ratification of the Framework Convention for the Protection of National Minorities
(signed by Greece in 1997)
95. As in 2005, the authorities reiterated that the Greek
constitutional and legislative framework is fully in conformity
with the fundamental principles set forth in international instruments,
including the Framework Convention. The scope of application of
the Framework Convention would certainly be controversial, though not
an obstacle. Nevertheless, during my visit, no timeframe was given
for ratification. In its 2009 report on Greece, ECRI once called
upon the Greek authorities to ratify the Framework Convention as
soon as possible.
Note With respect to the European charter,
the situation appears more difficult and I was not given the impression
that there were any prospects for progress in the near future.
4.2.1.6 A few remarks as
rapporteur
96. Albeit fully aware of the sensitive international
context in which these issues should be considered, as rapporteur
on minority protection in Europe I am concerned by the rights to
self-identification, freedom of expression and freedom of association
of minority groups in Europe.
97. As already stressed on several occasions by our Assembly and
other Council of Europe bodies, cultural diversity should be perceived
not as a threat but as a source of enrichment, and any attempt to
impose an identity on a person or group of persons is unacceptable.
98. I note that in February 2009, the Council of Europe Commissioner
for Human Rights expressed his deep concern about “the persistent
denial by Greek authorities of the existence on Greece’s territory
of minorities other than the tripartite ‘Muslim’ one in Western
Thrace, despite the recommendations made so far notably by ECRI,
the UN Committee on Economic, Social and Cultural Rights and the
UN Human Rights Committee”. He also recalled that freedom of ethnic
self-identification is a major principle in which democratic pluralistic societies
should be grounded and should be effectively applied to all minority
groups, be they national, religious or linguistic.
Note I fully share this view.
99. I also fully support the call of the Commissioner upon the
Greek Government to create a consultative mechanism, at national,
regional and local levels, which would ensure an institutionalised,
open, sincere and continuous dialogue with representatives of different
minorities and/or representatives of individual minority groups.
During my visit, I also stressed the role of local authorities in
accommodating cultural diversity.
100. The Greek authorities should also closely examine allegations
of discrimination and intolerant acts against those who claim to
have a Macedonian identity and take appropriate measures to punish
any such acts.
101. As described below, obligations of Council of Europe member
states relating to minority protection do not only derive from the
Framework Convention and the European Charter for Regional or Minority
Languages (for details, see Part V below).
102. Finally, the Assembly should again pursue its efforts to promote
the Framework Convention as a truly pan-European instrument and
invite Greece and those Council of Europe member states which have
not yet done so to ratify it without any further delay.
4.3 Other cases
103. The issue of the Armâns
Note has been already dealt
with on several occasions by the Assembly. In 1997, the Assembly
adopted
Recommendation
1333 (1997), in which it expressed concern “about the critical situation
of the Aromanian culture and language, which have existed for over
two thousand years in the Balkan peninsula”.
Note At present,
representatives of the Council of Armâns still stress the “critical”
situation of the Armân (Macedonian Romanian) culture and language.
4.4 Obligations of
Council of Europe member states which are not Parties to the Council
of Europe minority instruments
104. A number of Council of Europe instruments or mechanisms
establish the principles of equality and respect for diversity in
terms of minority protection and entail obligations for Council
of Europe member states which are not Parties to the Framework Convention
and the European charter.
105. The European Convention on Human Rights is clearly relevant
and, although it does not confer specific rights on minorities,
it allows persons belonging to minorities to assert their rights
even where the state concerned has failed to recognise a minority's
existence. The Convention guarantees,
inter
alia, essential rights for persons belonging to minorities:
freedom of expression, and freedom of thought, conscience and religion,
as well as freedom of association. In its steady case law the European
Court of Human Rights observes “… that there may be said to be an
emerging international consensus amongst the Contracting States of
the Council of Europe recognising the special needs of minorities
and an obligation to protect their security, identity and lifestyle
…, not only for the purpose of safeguarding the interests of the
minorities themselves but to preserve a cultural diversity of value
to the whole community”.
Note
106. On several occasions the European Court has taken a stance
on the right to freedom of association of persons belonging to national
minorities and their involvement in political life.
Note In
its opinion, territorial integrity, national security and public
order are not threatened by the activities of an association whose
aim was to promote a region’s culture, even supposing that it also
aims partly to promote the culture of a minority. The existence
of minorities and different cultures in a country is “a historical
fact that a “democratic society” had to tolerate and even protect
and support according to the principles of international law”.
Note Concerning political activities
of minority groups, the Court stressed that “the mere fact that
a political party calls for autonomy or even requests secession
of part of the country’s territory is not a sufficient basis to
justify its dissolution on national security grounds. In a democratic
society based on the rule of law, political ideas which challenge
the existing order without putting into question the tenets of democracy,
and whose realisation is advocated by peaceful means must be afforded
a proper opportunity of expression through,
inter
alia, participation in the political process”.
Note
107. The development of the Court’s case law concerning discrimination
is also very important for minorities. It is worth noting that this
case law, especially that relating to indirect discrimination, shows
that the European Court of Human Rights has reversed the burden
of proof so that it is now for the government to show that it does
not discriminate.
Note The
development of the Court’s case law on non-discrimination on a ground
of “association with a national minority”, as well as the ratification
of Protocol No. 12 to the European Convention on Human Rights, could
certainly contribute to the strengthening of national minority protection.
108. The Council of Europe European Social Charter, which complements
the Convention in the field of economic and social rights, is also
relevant in this context, since often policy towards minorities
is connected with social rights. The European Committee of Social
Rights, which is responsible for assessing the conformity of national
law and practice with the European Social Charter, may assess the
situation of the minorities, both in the framework of the reporting
system and in the context of the collective complaints procedure.
Note For instance,
in its decision of 8 December 2004,
Note the
European Committee of Social Rights held that Greece’s policies
with respect to housing and accommodation of Roma infringed Article
16 of the European Social Charter due to, in particular, the systemic
eviction of Roma from sites and dwellings unlawfully occupied by them.
Note
109. Finally, the monitoring mechanism of the European Commission
against Racism and Intolerance (ECRI) and the monitoring work of
the Council of Europe’s Commissioner for Human Rights, are also
relevant in this context, since they apply to all Council of Europe
member states. The substantial contribution of the Venice Commission
to the protection of national of minorities at national and European
levels should also be emphasised.
110. Nevertheless, the Framework Convention will always retain
an added value, particularly with regard to linguistic rights or
the right to effective participation.
111. Moreover, Council of Europe member states also have obligations
under United Nations and OSCE instruments (see the case study of
Greece, above). In this context one should also stress the specific contribution
of the OSCE High Commissioner on National Minorities in strengthening
the supervisory role of the advisory committee of the Framework
Convention by promoting its wide ratification, in discouraging reservations
or declarations thereto, in encouraging their withdrawal, and in
requesting interpretations of the Framework Convention with the
advisory committee.
5 Effective participation
of persons belonging to national minorities in cultural, social
and economic life and public affairs
5.1 Second thematic
commentary of the advisory committeeNote
112. Article 15 of the Framework Convention requires state
parties “to create the conditions necessary for the effective participation
of persons belonging to national minorities in cultural, social
and economic life and in public affairs, in particular those affecting
them”. It aims above all to encourage real equality between persons belonging
to national minorities and those forming part of the majority.
113. Article 15 of the Framework Convention is indeed a key provision
of this convention and is closely related to its various other provisions.
First and foremost, it is complementary to Article 4 (establishing
the principle of equality and non-discrimination) and Article 5
(concerning the right to preserve and develop minorities’ cultural heritage
and the prohibition of assimilation). Obviously, it also draws on
other provisions, such as Article 6 (encouraging tolerance and mutual
understanding), Article 9 (concerning, inter
alia, the right to be represented in mainstream media
and to set up minority media) and the provisions on education (Articles
12-14).
114. Participation has been a key concern of the advisory committee
in its country-by-country work since 1998. Therefore, the advisory
committee decided to devote its second thematic commentary to this
issue: the Commentary on participation of persons belonging to national
minorities in social, economic and cultural life and in public affairs,
was adopted in February 2008.
Note
115. In this commentary the advisory committee has explored further
the multi-faceted dimensions of participation, not only in public
affairs, but also in social and economic life. Participation in
cultural life has not been explored in depth and might still be
the object of further work of the advisory committee.
116. In its country-by-country work over the last ten years, the
advisory committee has put more emphasis on participation in public
affairs, in the elected bodies as well as in the executive ones
and the civil service. Its country-by-country opinions also contain
substantial reflections on the consultation bodies of national minorities.
117. The innovative aspect of the advisory committee’s commentary
lies in its increased emphasis on participation in socio-economic
life. It should be noted that this dimension has not yet been explored
at length. On the basis of the commentary, the advisory committee
should now further explore this issue in the framework of its subsequent
monitoring activities.
118. The area of social and economic life is a wide-ranging one,
since it covers such issues as employment, housing, access to social
benefits and health care. Furthermore, in its reflection on the
participation of minority groups in each of these areas, the advisory
committee shed particular light on the meaning of its effectiveness. It
considered that, to be effective, such participation implies not
only equal access to employment, housing and/or health care, but
also a possibility to share in the benefits and material results
of economic and social life.
119. The commentary requires that remedies be available in cases
of discrimination and it also addresses possible forms of exclusion
resulting from privatisation processes, post-conflict arrangements
and regulation of the media sector.
120. The lack of participation in socio-economic life has been
raised in a number of the advisory committee’s country opinions,
notably with regard to the Roma, who face problems ranging from
their low participation in the labour market, lack of access to
healthcare and housing segregation. The lack of effective participation
in social and economic affairs is obviously closely related to the
lack of participation in public affairs, and vice versa. It should
be stressed once again that the situation of Roma in many countries
is a good illustration of how socio-economic exclusion may be coupled
with marginalisation from public affairs and the life of society in
general.
121. So far other issues have been less explored. This is notably
the case of property privatisation and restitution (for example
in post-war situations such as the Balkans), the linguistic and/or
residence requirements and their impact on access to employment,
the under-representation of minorities in the public services of
most state parties and the difficulties faced by persons belonging
to minorities as a result of living in economically depressed or
isolated areas (one particularly striking example is Georgia). All
these issues clearly have an impact on the effective participation
of minorities.
6 Concluding remarks
122. In conclusion:
- along
with numerous successes and progress throughout Europe, outstanding
problems persist;
- successful solutions for specific issues and serious problems
in the implementation of others can be observed in the same country;
- irrespective of change of government and of power structures
in a given state, state authorities are bound by Council of Europe
instruments which have already been ratified;
- freedom of ethnic self-identification is a major principle
in which democratic pluralistic societies should be grounded and
should be effectively applied to all minority groups, be they national,
religious or linguistic;
- even if state authorities have not ratified specific European
instruments on minority protection, a number of other Council of
Europe instruments and mechanisms establish the principles of equality
and respect for diversity;
- tolerance and open, sincere dialogue between authorities
and all minority groups should be nurtured and promoted as widely
as possible at all levels: national, regional and local;
- as noted by the European Court of Human Rights, “[t]he
role of the authorities is not to remove the cause of tension by
eliminating pluralism, but to ensure that the competing groups tolerate
each other”;Note
- the Parliamentary Assembly should again pursue its efforts
to promote the Framework Convention for the Protection of National
Minorities as a truly pan-European instrument and invite those Council
of Europe member states which have not yet done so to ratify it
without further delay.
