HC/4/96

His Excellency

Mr Juraj Schenk

Minister for Foreign Affairs

of the Slovak Republic

Stromová 1

833 36 BRATISLAVA

Slovak Republic

The Hague 26 February 1996

Reference: No 414/96/L

Dear Mr Minister,

May I thank you first of all for all the help your Ministry has provided once again to the team of experts and to me when we visited Slovakia on 8-10 January. This greatly facilitated our task.

After having received the report of the experts, I take the liberty to submit to your Government, as I did before, a number of comments and recommendations. I might add some more at a later date if new legislation relating to minority issues would be submitted to the National Council.

Permit me to begin with some suggestions regarding linguistic issues. The Law on the State Language adopted on 15 November 1995 states (article 1, para. 4) that the usage of languages of national minorities and ethnic groups will be dealt with in separate legislation. On the other hand, however, article 12 of the Law states that Law 428/1990 on the Official Language of the Slovak Republic is null and void, including section 6 of that law which stipulated that, if persons belonging to a national minority constitute at least 20% of the population of a town or village, they have the right to use their language in such towns and villages in official communications. However, the right to use a minority language in official communications has been laid down in article 34, para. 2, sub. b, of the Slovak Constitution "under provisions fixed by law". As long as new legislation on this subject is not yet in force, there is, therefore, a legal vacuum. To my mind, it would also be wrong to conclude that mere accession to the European Charter for Regional or Minority Languages would fill this vacuum; domestic legislation on the basis of provisions of the Charter would in any case be necessary. Against this background, I welcome the assurances given by a number of governmental interlocutors during my visit that new legislation on this issue is being prepared and that, in the meantime, persons belonging to national minorities can count on the protection of the relevant article in the Constitution and that their rights would not be affected in practice.

As far as the new legislation regarding the use of minority languages in official communications is concerned, I would recommend not to use the formula favoured by one of my governmental interlocutors, consisting of the abolition of any percentage on the one hand and, on the other hand, the obligation to add a translation in the State language to a communication in the minority language. Allowing the minority language for official communications, while requiring the State language as a parallel language, robs article 34, para. 2, sub. b, of its meaning. This view is shared by three constitutional experts whom I consulted on this question: Prof. Constance Grewe of the Faculty of Law of the University of Caen, Prof. Martin Scheinin, Professor of Law (Constitutional Law) at the University of Helsinki, and Prof. Rüdiger Wolfrum, Director of the Max Planck Institute of Comparative Public and International Law. They each, independently of one another, came to the conclusion that such a formula would not be compatible with the said article of the Constitution.

I would also recommend to allow the use of the minority language in official communications when persons belonging to a national minority constitute at least 20% of the population of a municipality, the same percentage, therefore, as was used in the old law on the official language. Increasing this percentage would lead to a curtailment of the rights of persons belonging to national minorities in Slovakia which would in my view be difficult to justify.

During my recent visit to your country I was struck by the intensity of the debate on the question of territorial autonomy on an ethnic basis. Much of the discussion was concentrated on article 5, para. 4, of the treaty on good neighbourliness and friendly cooperation between the Slovak Republic and the Republic of Hungary which states, i.a., that both parties will apply as legal obligations the norms and political commitments enshrined in Recommendation 1201(1993) of the Parliamentary Assembly of the Council of Europe with respect to individual and human rights, including the rights of persons belonging to national minorities. Attention has been especially concentrated on article 11 of the recommendation, which states: "In the regions where they are in a majority the persons belonging to a minority shall have the right to have at their disposal appropriate local or autonomous authorities or to have a special status, matching the specific historical and territorial situation and in accordance with the domestic legislation of the state". In my view, there is no doubt that this article, which mentions various options, cannot be interpreted as imposing a legal obligation on Slovakia to introduce territorial autonomy on an ethnic basis. Article 12 of the recommendation clearly refers to states where collective rights do exist, which is not the case in Slovakia. It does not impose a legal obligation on Slovakia to recognise collective rights.

On the other hand, I would recommend that the legislation which your Government is now preparing on the protection of the state will be formulated in such a way that it does not make propaganda for such an autonomy a punishable act. In this respect, I refer to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms to which Slovakia has acceded. Article 10, para. 1, of that Convention states that everyone has the right of freedom of expression, a right which includes freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. Para. 2 of article 10 makes it clear that some restrictions of this basic right are allowed, i.a. in the interest of national security, but only if prescribed by law and if necessary in a democratic society. Generally speaking, it seems to me difficult to maintain that making use of the right of freedom of expression in order to promote the concept of territorial autonomy would constitute a threat to the security of the State. Even more so, because the OSCE Copenhagen Document on the Human Dimension, while emphasizing territorial integrity (para. 37), does mention territorial autonomy as a possible option (para. 35) and, therefore, while not entailing a commitment to introduce territorial autonomy, clearly takes the view that territorial autonomy and territorial integrity are not incompatible.

Fears that persons belonging to the Hungarian minority might cause damage to the interests of the State also seem to have inspired the following sentence in the explanatory memorandum on the law on the State language: "The spirit of disloyalty towards Slovak statehood also dominate the Hungarian language press published in Slovakia ...." Permit me to make the following comments. It goes without saying that citizens belonging to national minorities, just like the other citizens of Slovakia, have the duty to obey the laws of the country and are only allowed to try to change existing legislation by legal means. On the other hand, I would expect that your Government will agree that it would be undesirable to amend the penal code in such a way that articles in the press and statements before electronic media which are perceived to show disloyalty towards the State will be made a punishable act. Given that it is virtually impossible to define where criticism ends and where disloyalty begins, the danger would be great that new formulations of the law would go beyond the restrictions on the freedom of expression permitted under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

On the question of the forthcoming legislation on the protection of the State in general, I have no doubt that your Government will keep in mind article 11of the Slovak Constitution which states "international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements shall take precedence on national laws provided that the international treaties and agreements guarantee greater constitutional rights and freedoms".

Finally I should like to make some comments on the "Report on Regional and Nationality Culture" which the Ministry of Culture published in 1995. In the paragraphs on the periodical press, it is mentioned that "in 1994, financial resources were allocated to 24 nationality periodicals". But mention is also made of the fact that in contracts concluded between the Ministry of Culture and legal subjects issuing periodicals, a clause will be added which allows the Ministry to stop a subsidy "when articles have an exclusively political character or cause tensions amongst citizens" (p 23). Furthermore, in the so-called "Draft of Measures" one of the aims mentioned is "to provide support to minority culture and to support especially activities with a prevailing tolerance to the majority culture, with the final positive relation to our state" (p 27).

In my view the formulations quoted above could easily lead to arbitrary decisions which could greatly damage the interests of minority periodicals and minority cultural organisations. In a democratic State, there are constantly lively debates on a great number of issues, including cultural ones, and this can sometimes lead to certain tensions between protagonists and opponents of a specific view. Would a minority periodical have to abstain from participating in such debates out of fear of losing its State subsidy? How would it be decided whether a play written by a minority playwright and performed by a minority cultural organisation demonstrates "a prevailing tolerance to the majority culture"? I would recommend that these criteria be revised, and that steps will be taken to assure a greater transparency of the system of allocation of public funds, especially by not only making allocations public, but also the motives which have led to a positive or a negative decision. Finally, it would be important to ensure that persons who play a leading role in the cultural life of the minorities will be adequately represented in organs which decide on cultural subsidies.

These were the recommendations and suggestions I wanted to submit to you, Mr Minister. I am looking forward with great interest to your reply.

Yours sincerely,

M. van der Stoel

OSCE High Commissioner on National Minorities