Re: Query: Minority related legislation in Slovenia?
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Date: Tue, 4 May 1999 10:03:23 +0300 (EET DST)
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Subject: Re: Query: Minority related legislation in Slovenia?
From: MINELRES moderator <[email protected]>
Original sender: William McKinney <[email protected]>
Re: Query: Minority related legislation in Slovenia?
Dear Natalie Belitser,
I quote from:
Ethnic Minorities in Slovenia. Ljubljana: Institute for Ethnic
Studies, 1994, p. 18 ff.
"1. Ethnic Communities
Following a very common world practice, the Constitution of the
Republic of Slovenia (1991) guarantees special rights and protection
only to those autochthonous ethnic minorities who traditionally lived
in a specific territory.
In this context, an ethnic minority can be defined as (1) a part of a
specific nation that as (2) a specific, distinct, and formed ethnic
community (group) (3) lives in a common territory outside the borders
of the nation state of its nation, usually as (4) the consequence of
specific historical (social, political, military, administrative,
etc.) developments. Members of ethnic minorities are nationals
(citizens) of the state where they reside. Beside these four elements
that formulate the basic common definition of ethnic minorities, which
are generally used in various international documents dealing with or
regulating these questions, a fifth element is often mentioned as an
additional criterion in theory as well as in political and legal
practice: (5) the autochthonous settlement of a specific ethnic
minority in a specific territory within a specific multi-ethnic
community.
The terminology used by the Constitution in the context of ethnic
minorities also needs explanation. Rather than the term 'ethnic
(national) minority,' the term 'ethnic community' is strictly used in
the text of the Constitution. The decision to use this term has a
theoretical and political background. The term 'minority' as usually
used in everyday life and political practice has certain, mostly
negative connotations linked with not only quantitative but also
qualitative characteristics of this social phenomenon; to avoid the
possible negative connotations of the term "minority" in connection
with ethnic minorities, the more politically neutral term "ethnic
community" was chosen for use in the Constitution. This move was
initiated by the representatives of the ethnic minorities on the
Constitutional Commission.
2. The positive concept of protection of ethnic minorities
There were various concepts of protection of minorities present in
discussions in the process of drafting the new Slovene Constitution.
Ultimately, the consensus was reached that the level of protection of
ethnic minorities should not be lower than the level of protection
guaranteed ethnic minorities by the Constitution of the (Socialist)
Republic of Slovenia (1974, as later amended). This was also in
accordance with the statements and assurances of Slovene politicians
before the referendum on Slovenia's independence in December 1990.
Concerning the role of the state in realizing the special rights of
ethnic minorities and their members, this meant that the so-called
"positive concept of protection of ethnic minorities and their
members" was accepted. The "positive concept of protection of ethnic
minorities and their members" requires a specific and active role of a
state in the field of protection of ethnic minorities. This goes far
beyond the classic concept which guarantees rights only for every
individual member of ethnic (national) minorities and for some
organizations of minorities to sue anyone who violates any of these
rights. In some cases there might also be an obligation for a state to
preven the violation of special rights of minorities (and all other
human rights) that are provided by the constitutional and legal
system. Human rights, including the rights of minorities, are
understood in this context largely if not exclusively as individual
rights. Specifically, the special obligations of a state shall be
provided by its constitutional and legal system in order to assure the
realization of the special rights of minorities. These obligations of
a state to act in order to realize the special rights of minorities
shall be established by its constitutional and legal system alone; no
petitions by minorities and/or their members shall be required. The
very fact that a state does not act in such a case comprises a
violation of the law by the state and establishes its moral and legal
responsibility for the (possible) consequences.
This concept was largely developed as a theoretical concept and has
only been fragmentarily introduced in the legal systems and practices
of a few states.
2.1 Dual nature of the rights of ethnic minorities
The rights of ethnic minorities and their members are simultaneously
collective and individual rights. As collective rights, they belong to
a specific ethnic minority as a distinct community; as individual
rights, they belong to every member of a specific ethnic minority.
Concerning their nature, some rights are realized mainly as collective
rights while others are realized mainly as individual rights. Based on
the recognition of the dual nature of minority rights and the
implementation of the "positive concept of protection of minorities,"
the Constitution of the Republic of Slovenia establishes an obligation
on the state to act to assure the realization of these rights in their
complexity both as individual and collective rights.
2.2 Constitutional protection of ethnic communities
The special rights of the Italian and Hungarian ethnic communities
(minorities) are provided for and regulated by Article 64 of the
Constitution of the Republic of Slovenia...Their realization is
morally and materially supported by the state, which should also
assure their participation in the political system at all levels, from
the local level to the Republic level in the National Assembly. The
Constitution further provides that:
'Statutes, regulations and other legislative enactments whixh
exclusively affect the exercise of specific rights enjoyed by the
Italian or Hungarian ethnic communities under this Constitution, or
affecting the status of these communities, may not be enacted without
the consent of the representatives of the ethnic community or
communities affected.'
'...The rights of both ethnic communities and of their members shall
be guaranteed without regard for the numerical strength of either
community."
The Constitution guarantees that these two ethnic communities shall
always be represented directly by one deputy each in the National
Assembly, the House (or Chamber) of Representatives of the Parliament
of Slovenia.
The status and special rights of Romany ethnic communities in Slovenia
are guaranteed by Article 65 of the Constitution ans shall be
determined by special statute. In this context it is important to
stress that Romany ethnic communities are considered one of the
autochthonous ethnic communities in Slovenia (although they do not
have a mother state with which they can exercise special connections).
They have yet to develop common autonomous ethnic organizations or
bodies and their common ethnic identity.
With the direct participation of representatives of Romany communities
in Slovenia, the statute shall establish such protection for Romany
minorities that will correspond to their actual situation, interests,
need and wishes."
The Human Rights Ombudsman of the Republic of Slovenia at
http://www.varuh-rs.si/index-eng.htm
noted in 1998:
"We have not observed serious problems relating to the respecting of
rights of the constitutionally defined national minorities. The reason
for this is undoubtedly their direct representation in representative
bodies a the national and local level and the provisions on the
cooperation of the national communities in decision-making on their
rights and position. The position of the Gypsy community is
considerably poorer, since the law envisaged in the constitution to
regularize the position and special rights of this community has still
not been passed."
The Constitution of the Republic of Slovenia (1991) can be found at
http://www.sigov.si/us/eus-usta.html
Best regards,
William McKinney
*********************************************
European Centre for Minority Issues
William McKinney
Librarian
Schiffbruecke 12
D-24939 Flensburg, Germany
e-mail: [email protected]
http://www.ecmi.de
Tel: +49 461 1414970
Fax: +49 461 1414969
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