HC/12/96

His Excellency

Mr Juraj Schenk

Minister for Foreign Affairs of the Slovak Republic

Stromová 1

833 36 BRATISLAVA

Slovak Republic

The Hague

13 August 1996

Reference:

910/96/L

Dear Mr Minister,

Allow me first of all to express the thanks of the experts accompanying me and of myself for the help your ministry has once again provided in such an effective manner in arranging a great number of meetings during our visit to your country on 22-24 May 1996. This greatly helped us in our task of acquiring relevant information regarding the minorities in Slovakia. This was the last visit under the special arrangement between Slovakia and Hungary which provided for biannual visits of experts to study the situation of the Slovak minority in Hungary and of the Hungarian minority in Slovakia. Future visits to Hungary and Slovakia will be made by me without accompanying outside experts on the basis of article 11 C of my mandate as agreed upon by OSCE States in the 1992 Helsinki Document and in Chapter 3 of the decisions of the CSCE Stockholm Ministerial Council of 1992.

The report which the experts presented to me on the basis of their visit in May leads me once again to present to your Government, as well as to the Government of Hungary, a number of recommendations. But perhaps you will permit me first to react to the Aide Memoire you sent me regarding the Joint Declaration that was adopted at the Conference "Hungary and the Hungarians Abroad" which took place in Budapest on 4-5 July 1996. In making these comments, I have taken account of a later statement of the Hungarian Government which emphasises that no mention was made in the Joint Declaration of either territorial autonomy based on ethnic criteria or collective rights. Moreover, it is my understanding that article 10 of the Joint Declaration, which states that Hungarian communities abroad shall be entitled to receive a fixed percentage of the annual budget of Hungary, does not imply that Hungary will give financial support to Hungarian parties abroad. I have asked the Hungarian Government for some further clarifications in a letter containing some recommendations which I am sending today.

In my view, any discussion regarding minority questions in Slovakia or in Hungary has to be based on an analysis of the rights, and also the duties, of persons belonging to these minorities. As far as Slovakia is concerned, these rights have been laid down in articles 33 and 34 of the Slovak Constitution and in the various international instruments relevant for persons belonging to national minorities to which Slovakia is a party, especially the Framework Convention for the Protection of National Minorities, which is expected to come into force before the end of this year, and the norms and political commitments contained in the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, 9 June 1990, and the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UN General Assembly resolution 47/135) which, according to article 15 para 4 sub b of the Treaty on Good Neighbourliness and Friendly Cooperation between the Slovak Republic and the Republic of Hungary, shall be applied as legally binding, together with article 15 of that Treaty. It is also relevant to note that other international instruments to which Slovakia has acceded also contain articles of immediate relevance for persons belonging to national minorities. In this connection, the International Covenant on Civil and Political Rights, the European Convention on Human Rights and ILO Convention No. 111 which forbids any discrimination in employment or occupation i.a. because of the political opinion or the ethnicity of the person concerned. Finally it is important to recall that Slovakia has committed itself in article 11 of its Constitution to give precedence over national law to the international instruments on human rights and freedoms it has ratified when international treaties and agreements guarantee greater rights and freedoms.

On the other hand, persons belonging to national minorities have the duty, like all other citizens of the State, to obey the Laws of the States they are living in, though they also have the freedom, like all other citizens, to use all legal means and instruments at their disposal to get them changed.

In the Preamble of the Treaty on Good Neighbourliness and Friendly Cooperation between Hungary and Slovakia, the two States have laid down a number of other important principles regarding the position of minorities living in their countries. They agree that they "feel responsibility for granting protection to and promoting preservation and deepening of the national or ethnic, cultural, religious, and linguistic identity of the minorities living within their respective territories", and they recognise that "persons belonging to national minorities form an integral part of the society and of the State of the Contracting Party on whose territory they live". I attach great importance to this paragraph, which, while stressing the duty of the State to protect and even to promote the preservation and the deepening of the identity of the minority, does reject the notion that the minority can only maintain its identity by isolating itself as much as possible from the society surrounding it. It is my firm belief that only on the basis of respect by the State for the identity of the minority on the one hand, and of the willingness of the minority to consider itself an integral part of the State they are living in on the other hand, can harmonious inter-ethnic relations develop.

As your Aide Memoire makes clear, your Government is especially critical of the paragraph in the Joint Declaration which states that "the establishment of self-government and autonomy, in accordance with existing European practice and the spirit of international norms, represent the core issue of the preservation of the identity, the survival and the development as a community of Hungarians abroad and of maintaining their presence in their homeland". I should like to make the following comments. In the first place, it is in my view important to keep in mind that there are various forms of autonomy. Apart from territorial autonomy, there are also concepts like cultural autonomy and educational autonomy. Secondly, it has to be kept in mind that no international instrument commits or obliges a State to the acceptance of territorial autonomy. However, paragraph 35 of the 1990 Copenhagen CSCE Human Dimension Document states that "the Participating States note the efforts undertaken to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities by establishing, as one of the possible means to achieve these aims, appropriate local or autonomous administrations corresponding to the specific historical and territorial circumstances of such minorities and in accordance with the policies of the state concerned". The report of the 1991 Geneva CSCE Meeting of Experts on National Minorities, while stating that no single approach is necessarily generally applicable, lists a great number of possible approaches, including autonomy on a territorial basis, which, individually or in combination, could be helpful in improving the situation of national minorities. My third comment refers to the relationship between territorial integrity and territorial autonomy. Respect for territorial integrity is one of the leading principles of the OSCE. The mentioning, if only as a possible option, of territorial autonomy, makes it clear that territorial autonomy and territorial integrity have not been considered as mutually exclusive in the documents I have just quoted.

In your Aide Memoire you take the view that autonomy could be a direct instrument of the dissolution of the established democratic constitutional order of the Slovak Republic. This brings me back to the question of the amendments to the Penal Code which were discussed on several occasions during the visit of the group of experts and myself to Slovakia last May.

In your letter of 25 April 1996, you assured me that "a person belonging to the Hungarian or any other minority who promotes and disseminates their demand for territorial autonomy cannot be subject to criminal prosecution." However, you added "this, of course, holds true as long as the person concerned does not organise a public rally with the aim of disrupting the constitutional order of the Republic or its territorial integrity". I have re-read these comments against the background of an amendment of the Slovak Penal Code (article 92 b sub 1) which was adopted by the Slovak Parliament on 26 March 1996 and then sent back for renewed consideration by the President. This article states: "anyone who with the intention of harming the constitutional order, the integrity of the territory or the defence of the Republic or undermining its independence organises public meetings will be liable to a term of imprisonment of between 6 months and 3 years or a fine". In the discussion on this article it has been stated by the Prime Minister that such an intention would have to be proved during the criminal procedure.

Please allow me to make the following comments, taking into account especially the often expressed wish of Hungarian parties in Slovakia for territorial autonomy. It is of course obvious that it would be a flagrant violation of the Constitution and of the Laws of the Republic if proponents of autonomy would not try to achieve their aim by seeking to win over a majority of the Slovak Parliament for such a formula but would simply proclaim it, or would try to achieve autonomy by using violence. At the same time, it would in my view not be in conformity with article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which Slovakia has acceded, to make organisation of a peaceful public meeting aimed at supporting territorial autonomy a punishable act. Article 11 of the Convention, as far as it is relevant in this context, makes it clear that the freedom of peaceful assembly can only be restricted by law when this is "necessary in a democratic society in the interests of national security..." It is difficult to see that a peaceful meeting supporting territorial autonomy (which the relevant OSCE documents, as I have demonstrated above, do not consider as incompatible with territorial integrity) could constitute such a threat to national security.

Perhaps it is not the intention of the Government to use this article to make the organisation of such meetings a punishable act. But in that case I would still hope that, in order to avoid misunderstandings, the article would be reformulated in a restrictive way. I also make a plea for such a reformulation because especially the term "harming the constitutional order" lends itself to many interpretations, even to the interpretation that a party proposing certain changes in the Constitution through a normal legislative process has the intention of harming the established democratic constitutional order.

I also permit myself to draw your attention to the version of article 98 of the Penal Code as adopted by the Slovak Parliament on 26 March 1996 which provides: "any citizen of the Slovak Republic or any person not having this status but being domiciled on the territory of the Republic who intentionally disseminates false information abroad which harms the interest of the Republic will be liable to a term of imprisonment of 2 years or a fine". I should like to make the following comments. First, the concept "false information" is in my view difficult to apply without endangering the freedom of the media, also because the additional requirement of harm to the interest of the Republic will scarcely reduce its scope. It is a well known fact that the same events can be interpreted in quite different or even opposite ways by journalists who have not the slightest intention to mislead their public. According to his or her political views, one might for instance consider a certain governmental measure as a blessing for the country, while another might express fears for its disastrous effects. My second objection is that it is difficult to reconcile the article with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 10, where relevant in this context, states that the right to freedom of expression (which includes freedom to impart information and ideas without interference by public authority and regardless of frontiers) could only be restricted by law when necessary in a democratic society in the interest of national security. Possible harmful effects of "false information abroad" can in my view not be considered as a threat to national security.

Finally, my attention was drawn to the remarks in your Aide Memoire regarding the articles of the respective international instruments granting the right to persons belonging to national minorities to establish free and peaceful contacts. The Aide Memoire states: "These articles are related to the contacts with 'persons lawfully staying in other states' and not to the contacts with the governmental authorities of another country." My comments are the following. Paragraph 32.4 of the CSCE Copenhagen Document states that persons belonging to national minorities have the right "to establish and maintain independent contacts among themselves within their country as well as contacts across frontiers with citizens of other States with whom they share a common ethnic or national origin, cultural heritage or religious beliefs", while article 17.1 of the Framework Convention provides: "the Parties undertake not to interfere with the right of persons belonging to national minorities to establish and maintain free and peaceful contacts across frontiers with persons lawfully staying in other states, in particular those with whom they share an ethnic, cultural, linguistic or religious identity, or a common cultural heritage". In my view the only restriction regarding contacts across borders can be found in the Framework Convention which, in referring to "persons lawfully residing in other states" clearly intends to exclude contact with persons who reside illegally in a country. No restriction is put in either of the two instruments, or in any other international instruments, on contacts with governmental authorities across the border. Indeed, such contacts are also guaranteed by the generally applicable human rights to freedom of expression (with some permissible restrictions on content as noted above) and to freedom of movement.

Please permit me now, Mr Minister, to turn to a number of questions directly related to the Hungarian minority in Slovakia. In my view Prime Minister Meciar made an important statement regarding the intentions of the Government when he stressed in a meeting with me on 23 May 1996 that Slovakia was interested in the formation of electoral districts in which the Hungarian ethnic minority would be dominant, so that, as he put it, "its appropriate proportional representation in Parliament would be assured".

You have yourself, Mr Minister, indicated in your letter of 23 April last, that, regarding the constitutional right of citizens belonging to national minorities or ethnic groups to use a minority language in official communications, a new law is now being prepared and that there is no reason for the fear that the percentage of population necessary for the exercise of the right to use the minority language in official communications will be increased. The concern I expressed in my letter of 26 February 1996 was, however, not only that the new law would increase the percentage mentioned under Law 428/1990 on the Official Language of the Slovak Republic which has now been abolished, but especially that the percentage requirement would be abolished on the one hand, while on the other hand the obligation would be introduced to add a translation in the State language to a communication in the minority language. As communicated in my letter of 26 February 1996, it is the view of three constitutional experts I consulted on this question that such a formula would not be compatible with article 34 para 2 sub b of the Constitution of Slovakia.

I have understanding for the reluctance to repeat in a law on minority languages what has already been laid down in separate laws. In order to avoid any confusion on this question, it would, however, in my view be desirable to publish a complete list of all the laws and regulations (or relevant articles of these legal instruments) which contain provisions regarding the linguistic rights of minorities.

As regards the Law on the State Language which has now entered into force, I note that article 9 gives the Ministry of Culture the task to oversee compliance with responsibilities emanating from this Law. I would recommend that a report be submitted annually by this Ministry to the Parliament regarding its activities in this field.

Regarding educational questions, the Minister of Education, Mrs E. Slavkovska, has once again assured me that the system of alternative education she favours will not be forced upon parents and that the freedom of parental choice will be respected. She also emphasized that, contrary to some reports, she would consider as discriminatory the introduction of the requirement that teachers of the Slovak language in Hungarian language schools would have to be Slovaks or of the requirement that Hungarian teachers of the Slovak language would have to undergo a language test.

Regarding various other educational issues, I should like to make the following recommendations:

Finally I come to a question regarding cultural policy. At my request, the Ministry of Culture provided me with information about the financing of minority cultural activities in the years 1995 and 1996 (the period up to 13 June 1996). According to these data, Hungarian cultural organisations submitted 107 projects in the first half of 1996, only 14 of which were given financial support, amounting to 3,023,000 SK for the 14 projects together. The other minorities (Roma, Czech, Moravian, Ruthenian, Ukrainian, Polish, Bulgarian, German, Croatian and Jewish) submitted 273 projects in the first half of 1996, 204 of which were admitted; the financial support for these projects together amounted to 14,736,600 SK. These figures prompt me to make the following comments. While only slightly more than 13% of the projects submitted by Hungarian cultural organisations were approved, 74.7% of the projects submitted by other minorities were approved. Moreover, while persons of Hungarian nationality constitute, according to the census of 1991, 10.7% of the total population, and all the other minorities taken together about 3.6%, the other minorities received in the first half of 1996 nearly five times as much in subsidies than the Hungarian cultural organisations. No indication has been given in the documentation I received that this considerable imbalance will be restored in the second half of 1996. The motivation given for the refusal of applications was that they were not in conformity with the principles and criteria of the Fund Pro Slovakia.

My comments are the following. First, it is well-known that cultural organisations have to rely quite often on substantial governmental subsidies in order to survive. Reductions of such subsidies can in my view not be made without careful analysis of the question whether such a step can still be considered to be in conformity with article 5 of the Framework Convention which states i.a.: "the Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture..." and paragraph 33 of the 1990 CSCE Copenhagen Document which, as far as it is relevant in this connection, states that the participating States will protect the cultural identity of national minorities on their territory and create conditions for the promotion of that identity.

Secondly, the discrepancy in the support provided to the Hungarian minority compared with the support given to other minorities makes one wonder whether such a policy in compatible with article 4 of the Framework Convention which states that any discrimination based on belonging to a national minority shall be prohibited. There is in my view even more reason to raise this question because of the surprisingly large difference in approval rates of projects submitted by Hungarian cultural organisations compared with those submitted by the other minorities, notwithstanding the fact that the same principles and criteria are being used.

In my letter to you of 26 February 1996 I made a plea for a greater transparency of the system of allocation of public funds especially by not only making allocations public, but also indicating the motives which have led to a positive or a negative decision. In your reply of 23 April 1996 you state - correctly - that the information on the amount of funds allocated is available to all those interested. But you also added a hopeful note by stating that my suggestion concerning a greater transparency of the system of allocation of public funds may become subject to considerations leading to the improvement of this system. I take the liberty to appeal to your Government to take a number of immediate steps in this direction. In my view the following changes would be desirable. First of all Pro Slovakia could send to interested organisations the text of the principles and guidelines which it uses in judging applications. Secondly it could introduce a system under which, in case of a rejection, it would indicate which aspects of the application have led to a negative decision, and under which conditions the revision of such a negative decision could be undertaken. Finally I would hope that consultations will be opened with the Hungarian cultural organisations in order to seek ways for a distribution of funds during the second half of 1996 which could restore some balance in the distribution of funds between various national minorities. As far as the total amount of funds available for supporting minority cultural organisations is concerned, I recall your letter of 20 October 1995 in which you gave the assurance that measures related to the strengthening of the culture of Slovaks living in ethnically mixed territories will not be implemented by using financial resources dedicated to the development of minority cultures. I would recommend that such a policy will also not be financed by reducing the funds available for supporting the culture of the national minorities living in Slovakia.

These were the recommendations I wanted to submit to you, Mr Minister. I look forward with great interest to the reply of your Government.

Yours sincerely,

Max van der Stoel

OSCE High Commissioner

on National Minorities