Project: Practice of Minority Protection in Central EuropeLegal-theoretical part

Comparative Legal Study

I. Introduction

The purpose of this comparative legal study is to provide an overview of how the

countries under consideration, namely Austria, Hungary, Italy, Romania, Slovak

Republic and Slovenia, protect their respective national minorities through legal

provisions. As the focus of the study is on the existing legislation, the author have in

general abstained from entering into an analysis of how successful the implementation of

the legislative solutions is. The question of which effect the legislation had (and has) on

the national minorities and their living together with the majority population is addressed

by the empirical research outlined in the following chapters of the book. This

comparative overview on domestic legislation is based on six country legal studies that

have been published online.1 After this short historical introduction it follows the

structure of the present volume as a cross-country study on the following key areas:

culture, media, education, language, economic participation and political participation.

The reader is invited to refer to the correlated chapters for more detailed information and

further sources.

The situation of national minorities in Central and Eastern Europe has become an

important issue on the international community’s agenda since the end of World War I.

The dissolution of the Austro-Hungarian Empire left disputed new borders between

Austria and Italy and Hungary and its neighbors and large national minorities living

outside their kin-state. The so-called “Minority Treaties” signed under the auspices of the

League of Nations were a first attempt to deal with the issue at international level. Not

only the problems were not resolved but World War II erupted with its tragic impact on

the situation of minorities in Central and Eastern Europe. New peace treaties and

1 See “Practice of Minority Protection in Central Europe“ at http://www.eurac.edu/mimi (visited in October 2010).

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international agreements were signed but it took decades to build an international

framework able to provide stability and security on the continent. Austria and Italy had to

find under the auspices of the United Nations a solution for the German speaking

minority living in South Tyrol. The direct negotiations that took place after the end of

World War II resulted in the so-called Guber-Degasperi Agreement of 1946 which was

annexed to the Paris Peace Treaty. The agreement represents the international basis for

the territorial autonomy of this province. In the 1960s Austria brought the question of

South Tyrol onto the agenda of the UN General Assembly which issued two resolutions

urging the two parties to negotiate and reach a compromise. The outcome of this process

was the Statute of Autonomy which entered into force in 1972. Twenty years later the

ambassadors of Austria and Italy handed over to the UN Secretary General the

documents declaring officially the settlement of the conflict. Also the situation of

Slovene minority in Italy and of Italian minority in Yugoslavia was “internationalized”

as the Special Statute annexed to the 1954 London Memorandum on the Free Territory of

Trieste granted to the two minorities equal rights and opportunities with the majority

populations and the protection of their linguistic, cultural and economic rights. The

implementation of these provisions was limited by the tense relations between Italy and

Yugoslavia. The Treaty of Osimo (1975) divided the Free Territory of Trieste between

the two states and afterwards there was hardly any positive development in the situation

of minorities until the breakup of Yugoslavia. In 1992, Italy has concluded a

memorandum of understanding with Slovenia and Croatia on the protection of Italian

minorities in the two former Yugoslav republics. Further negotiations between Italy and

Croatia led to the signature in Zagreb in 1998 of a treaty on the rights of minorities.

The fall of the Iron Curtain followed by the dissolution of the Soviet Union,

Czechoslovakia and Yugoslavia marked the end of an era and the start for development

of the European standards in the field of minority protection.

In mid 1990s all six countries under consideration have ratified the Council of Europe’s

Framework Convention for the Protection of National Minorities (hereinafter FCNM)

therefore its provisions are part of their domestic legal systems. The European Charter for

Regional or Minority Languages (hereinafter EChRML) was ratified by Austria,

Hungary, Romania, Slovakia and Slovenia but not by Italy. In order to join the Europeans

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Union, all four former communist countries had to comply with the 1993 Copenhagen

criteria including the respect for, and the protection of minorities. Hungary and Slovenia

had a clear interest to develop comprehensive systems for protection of the small national

minorities living on their territory in order to be in a better position to demand, by

appealing to the concept of reciprocity, the same degree of protection for their (much

larger) kin minorities living in the neighboring states. As a consequence there was no

need for the European Union to pressure them on minority rights issues as it did with

Romania and Slovakia. Bucharest and Bratislava followed a more or less similar path in

the 1990s. Both countries have large Hungarian and Roma minorities and both passed a

phase of nationalist parties in power after the fall of the communism. In mid 1990s each

of them signed with Hungary a bilateral treaty on friendship and cooperation and, at EU

request, started a process of legal and institutional reforms which included inter alia

protection of minority rights. In both countries the party representing Hungarian minority

became partner in the governmental coalitions. Few will dispute the claim that EU

conditionality brought positive changes in Romania and Slovakia when it met an

European-oriented agenda of political elites ready to look for solutions of minority issues

based on compromise and cooperation.

The six countries that are covered by the present comparative legal study are very

different in terms of constitutional construction. It is obvious that the specific features of

their constitutional systems shape the way these states regulate minority issues in key

areas like culture, education, political representation etc. To give an example, Austria is a

federal state in which the Länder have no competences in the field of education except

the kindergarten level. Italy has developed an asymmetric regional system which means

that certain regions/provinces with special status (e.g. South Tyrol) have their own

regulations regarding kindergarten, primary and secondary education for minorities while

in other so-called ordinary regions the authorities play a limited role in the field of

minority education. Romania is a national state with a strong tradition of centralism and

only recently it started a reform of the education system which aims inter alia to devolve

certain competences at local level.2 This diversity is reflected also by the different 2 According to the new Law on education no. 1/2011 on national education, the system is based on principle of decentralization (Art. 3 point e.) and the schools network is established by the local public administration authorities with the approval of the School Boards (Art. 61). National curricula is elaborated in accordance with the specific requirements for the personal development and the needs of the labor

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characteristics of minority rights arrangements adopted by these countries. On one hand,

Italy, Slovenia and, to some extent, also Austria have established asymmetric protection

mechanisms: they have special laws covering only certain minority groups therefore

some of their minorities enjoy maximum standards while others benefit less or, in some

cases, they are not even recognized.3 On the other hand, in Romania, Hungary and

Slovakia there is no difference among minorities when it comes to the legal framework

applicable to them so, in theory, their systems offer equal protection to everybody.

However, in practice the situation of national minorities is different also in these

countries because the small minorities cannot benefit from the existing laws to the same

extent as the large minority groups. All this goes to show the necessity to look first at the

norms and then at their effects on the ground in order to be able to assess their real impact

(on short and long term) on minority individuals and groups.

II. Culture

All central European countries under consideration acknowledge and protect their

cultural diversity through constitutional provisions.4 The field of culture is the one in

which the acceptance of a collective dimension is the most pronounced. In all countries

but Romania, the existing legal provisions indicate such a collective approach. The

Slovak Constitution, for example, provides that persons belonging to national minorities

or ethnic groups have the right to develop their own culture, “together with other

members of the minority or ethnic group”.5 The Austrian Constitution acknowledges that

the cultural diversity finds expression in the autochthonous ethnic groups, leaving away

market and each community, on the base of the subsidiarity principle (Art. 64). Therefore a school curricula contains the common curricula which is compulsory for all educational institutions and a specific optional curricula which is decided by the school and which may contain optional educational packages offered at national, regional and local levels or even only by the respective school. The Management Board of each educational institution decides upon the content of the specific optional curricula of the respective school following consultations with the pupils and the parents and taking into account the resources available (Art. 65 para. 5). 3 Roma in Italy, Serbs and Croats in Slovenia. 4 e.g. in Austria, Art. 8 (2) of the Federal Constitutional Act; in Hungary, Art. 68 (2) of the Constitution; in Romania, Art. 6 (1) of the Constitution; in Slovakia, Art. 34 (1) of the Constitution; in Slovenia, Art. 61 and Art. 64 of the Constitution.5 Art. 34 (1) of the Slovak Constitution.

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the normally so often used phrase of “persons belonging to …”.6 In the asymmetric

Italian system, the linguistic groups living in South Tyrol enjoy cultural autonomy7 and in

Hungary and Slovenia minority self-governments play a decisive role in the field of

culture.

All six countries provide for different mechanisms in financing the cultural development

and activities of the persons belonging to national minorities. While in Austria the

amount disbursed for each minority is not in relation to the size of the minority but to the

demands submitted by organizations of the respective minority, the Slovak system

foresees that the total amount available for minority culture is divided according to the

real size of the respective minorities, adequately raising however the amounts for the

smallest minorities.8 Also the Autonomy Statute of South Tyrol in Italy foresees that the

funding for cultural activities of the three linguistic groups (Italian, German, Ladin) is in

direct proportion to the size of the respective group. However, also the needs of the

different groups have to be taken into consideration.9 The decision on how much of the

overall South Tyrolean budget will be spent on cultural activities lies within the budget

autonomy of the South Tyrolean government. The funds from the state budget earmarked

for cultural activities of the Slovene minority in Friuli Venezia Giulia are determined on a

yearly basis. The region and the provinces can support as well with their budgets the

creation of cultural institutions. The annual Romanian budget laws ensure funds for

cultural activities of the organizations of national minorities represented in the Council of

National Minorities, excluding thereby those organizations of national minorities that do

not have the privilege of being represented in that Council.10 There are two ways to get

financial support from the state: firstly, through the budget allocated annually for

interethnic projects & programmes to the governmental Department for Interethnic

Relations; secondly, through the funds that Ministry of Culture spend for cultural

programmes. In both cases the system is based on Law no. 350/2005 on granting of non-

6 Art. 8 (2) of the Austrian Federal Constitutional Act.7 See Art. 2 of the Autonomy Statute of Trentino-Alto Adige/South Tyrol as well as the provisions on culture and education in Art. 15(2) and Art. 19. 8 See Kálmán Petőcz, “Participation of National Minorities in Decision-Making in Slovakia”, European Yearbook of Minority Issues, 7 (2007/2008), 731-754, at 752.9 Art. 15 (2) and (3) of the Autonomy Statute of Trentino-Alto Adige/South Tyrol.10 Government Decision no. 589/2001 on the establishment of the Council of National Minorities, stipulates in Art. 2 that the members of the Council of National Minorities are the organisation of national minorities represented in the parliament.

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reimbursable contracts from public funds and the procedure is similar. The authorities

receive the projects of minority organizations and they are evaluated by a jury which

decides about the allocation of the funds. In addition, minority organizations receive

money also from the county/local councils in the areas where large minority communities

are living. Within the framework of the funds for the Italian and Hungarian national

communities, the Slovene state budget finances public institutions founded by these

communities in order to meet their cultural needs. The state offers also financial support

for cultural programmes or projects aimed at the autochthonous Italian and Hungarian

minorities and the Roma community as well as at the cultural integration of minority

communities and immigrants if their cultural programmes/projects go beyond local

importance.11 Municipalities “support amateur cultural activities including those aimed at

the cultural integration of minority communities and immigrants”.12 Funds for amateur

cultural activities of the two autochthonous communities may also come from the Fund

for Amateur Cultural Activities of the Republic of Slovenia.13 For the conclusion of

contracts on cultural funding in the public interest, no public call for application is

necessary for programmes of the Hungarian or Italian national minorities. These contracts

can be concluded on the basis of a direct invitation.14

The institutions responsible for the disbursement of cultural funds vary from country to

country. In the case of Austria, this is a task of the federal chancellery while the Minority

Advisory Councils can only issue recommendations on the use of promotional funds. In

the Italian autonomous province of South Tyrol, the competent bodies are the cultural

departments of the three linguistic groups in the provincial administration. In Romania,

the government’s Department for Interethnic Relations stipulates protocols with each of

the minority organizations represented in the Council of National Minorities. These

organizations have full responsibility on how they spend the subsidies and the

Department for Interethnic Relations has the task to monitor the use of the funds.15 In the

Slovak Republic, the Ministry of Culture, in particular its Directorate for Minority and

11 Art. 31 and Art. 65 of the Exercising of the Public Interest in Culture Act. 12 Art. 66 of the Exercising of the Public Interest in Culture Act.13 Art. 5 of the Law on the Fund for Amateur Cultural Activities of the Republic of Slovenia.14 Arts. 59 and 93 of the Exercising of the Public Interest in Culture Act.15 Art. 3 (2) and (7) of the Government Decision no. 100/2010 regarding the way of distribution and use of the funds stipulated at points a) and b) of annex 3/13/02a of the Law no. 11/2010 regarding the 2010 state budget.

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Regional Cultures, is the main element of the government’s policy of support for regional

or minority languages.16 A Committee is established within the ministry with the task to

assess the applications for funding of various groups of speakers and adopts

“recommendations to the Minister on the amounts of subsidies to be granted”.17 The

Committee is composed by eleven members who are representatives of the minorities

concerned and are appointed by the Minister of Culture. “The Committee relies on the

work of sub-committees related to each minority”.18 Although the formal decision

remains with the Ministry of Culture, the minister almost never disregarded the

recommendations by the Committee.19 In Slovenia, the main institutions involved in

minority cultural matters are the Councils of the Self-governing Ethnic Communities.20

The financial means for the activity of self-governing ethnic communities are provided

by municipal budget for municipal self-governing ethnic communities and from the state

budget for the Hungarian and Italian self-governing ethnic communities.21 Also the

system in Hungary focuses on cultural autonomy of minorities. The national and local

self-governments of minorities may establish cultural institutions and co-ordinate their

activities22 and minority organisations, institutions and associations may submit

applications focusing on culture to state funding organizations under the same conditions

as local minority self-governments.23 A separate fund to support institutions established

16 Initial Monitoring Report of the Committee of Experts on the European Charter for Regional or Minority Languages on the application of the Charter in Slovakia, ECRML(2007)1, Council of Europe, Strasbourg, 21 February 2007, para. 167. 17 Ibid., para. 169. 18 Ibid., para. 171.19 This positive practice has, however, changed with the government that was in power from 2006 to 2010. See Kálmán Petőcz, “Participation of National Minorities in Decision-Making in Slovakia”, European Yearbook of Minority Issues, 7 (2007/2008), 731-754, at 752. After the 2010 election a new government was formed by a group of centre-right parties. The present coalition include the party Most–Híd which according to its statute is a “party of cooperation between Hungarians and Hungarians, Hungarians and Slovaks and between any other national minority”. Most probably the new Minister of Culture will not disregard the recommendations made by the Committee. 20 Arts. 4 and 9 of the Law on Self-governing Ethnic Communities. The Council adopts a statute and the financial plan (Art. 10). The statute defines the tasks and competences of self-governing ethnic community, its organization, mode of decision making and the procedure of elections into bodies of self-governing ethnic community (Art. 11). Self-governing ethnic communities are public legal persons (Art. 2). On matters within their competence they decide autonomously, whereas on matters concerning the protection of special rights of ethnic communities they give their consent. They submit proposals and initiatives to the competent bodies and stimulate and organize activities, contributing to the preservation of ethnic identity or members of Italian and Hungarian ethnic community (Art. 3).21 Art. 18 of the Law on Self-governing Ethnic Communities.22 Art. 36 of the Act LXXVII of 1993 on the Rights of National and Ethnic Minorities.23 Art. 30 (2) of the Act LXXVII of 1993 on the Rights of National and Ethnic Minorities.

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or taken over my minority self-governments is earmarked yearly in the state budget.24

County and local government may also support minority institutions from their own

resources mainly by grants. The state established the Public Foundation for Hungarian

National and Ethnic Minorities which annually opens a tender applications for financial

support of minority culture including events, publications, research. All minorities have

representatives in the Public Foundation who are involved in the decision-making

process.

The incorporation of the EChRML into the domestic law represents an important step

forward for the protection of minority cultures.. Romania pledged to apply the entire Art.

12 of the EChMRL (regarding cultural activities and facilities) to the ten minority

languages which enjoy the stronger protection under Part III of this international

instrument.25 In other words, the Romanian state undertook to foster access in other

languages to works produced in minority languages and vice versa26, to ensure that bodies

responsible for organizing or supporting cultural activities make appropriate allowance

for incorporating the knowledge and use of minority languages and cultures in their

undertakings27, to promote measures to ensure that such bodies have at their disposal staff

that has full command of the minority languages28, to encourage direct participation of

users of minority languages in providing facilities and planning cultural activities,29 to

encourage and/or facilitate the creation of bodies responsible for collecting and

presenting works produced in minority languages30 and to create and/or promote and

finance translation and terminological research services.31 Moreover, in territories other

than those in which the minority language is traditionally used, Romanian authorities

24 Hungary’s Third Cycle State Report on the Implementation of the European Charter for Regional or Minority Languages, MIN-LANG/PR (2005)6, Council of Europe, Strasbourg, 21 November 2005, 51.25 Article 5 the Romanian ratification law specifies both the minority languages for which Romania undertakes to apply Part III of the EChRML and the provisions chosen for each of these ten languages: Bulgarian, Czech, Croatian, German, Hungarian, Russian, Serbian, Slovak, Turkish and Ukrainian. It is worth noting that Romanian authorities decided not to include the Romani language among those listed in Article 5. According to the 2002 census, Romani is the second largest minority language therefore one may reasonably argue that it is unfair to put it on the list of minority languages covered only by Part II of the EChRML, while other minority languages spoken by only a few thousand people benefit the special protection of Part III. 26 Art. 12(1)(a-c) of the EChRML.27 Art. 12(1)(d) of the EChRML28 Art. 12(1)(e) of the EChRML29 Art. 12(1)(f) of the EChRML30 Art. 12(1)(g) of the EChRML31 Art. 12(1)(h) of the EChRML

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shall allow, encourage and/or provide appropriate cultural activities and facilities and

make appropriate provision, in pursuing their cultural policies abroad, for regional or

minority languages and the cultures they reflect.32 Slovakia has chosen for all its regional

or minority languages33 all paragraphs of Article 12 apart from the one regarding the

promotion and finance of translation and terminological research activities. Most of the

paragraphs of Art. 12 of the EChRML apply also to the stronger protected minority

languages of Hungary34 and to the Italian and Hungarian national communities in

Slovenia.35 Austria accepted the fewest undertakings in the field of culture for its

regional or minority languages.36

The field of culture is well regulated also through bilateral agreements. Hungary has

treaties on good neighborhood and cooperation with Romania (signed in 1996) and the

Slovak Republic (signed in 1995) and a convention on the protection of their respective

minorities with Slovenia (signed in 1992). Both neighborhood treaties contain general

provisions on the cooperation of the two countries in the field of culture.37 The one with

the Slovak Republic further adds that the state parties protect their respective cultural

heritage and strengthen the understanding between different cultures.38 Both treaties

contain one minority-specific provision which confirms the right of minorities to freely

express, preserve and develop their ethnic, cultural, linguistic and religious identity and

the right to establish their own cultural organizations. These provisions further lay down

an obligation to respect the cultural and historical heritage of national minorities and to

support the efforts to preserve it.39 The convention with Slovenia contains similar

provision and in addition stipulates that the parties “shall promote the sending for non-

commercial purpose (free of duty taxes) of books and periodicals, sound and video

32 Art. 12(2) and (3) of the EChRML33 The Slovak Republic recognized as "regional or minority languages" the following languages Bulgarian, Croatian, Czech, German, Hungarian, Polish, Roma, Ruthenian and Ukrainian.34 Art. 12(1)(a-c)(f-g), (2)(3) of the EChRML. Hungary applies these provisions to the Croatian, German, Romanian, Serbian, Slovak and Slovene languages. In addition to these provisions, the Romani and Beash languages enjoy also the protection under Art. 12(1)(d) of the EChRML. 35 Art. 12(1)(a)(d)(e)(f), (2) and (3) of the EChRML. 36 Austria only applies Art. 12 (1) (a) and (d) , (2) and (3) of the EChRML to the Burgenland Croatian and Hungarian, while for the Slovene language in Carinthia it further adds the sub-paragraph (f). 37 Art 12 of the treaty between Hungary and Romania; Art. 12 of the treaty between Hungary and the Slovak Republic. 38 Arts. 13 and 14 of the treaty between Hungary and the Slovak Republic. 39 Arts. 15(2) and (6) of the treaty between Hungary and Romania and 15 (2)(c) of the treaty between Hungary and the Slovak Republic.

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records, the publishing activity of the national minorities, guest plays of professional and

amateur artistic groups as well as the organisation of all cultural and artistic events which

may serve the enrichment of the culture and identity of the national minorities living in

both countries.”40 Slovenia has concluded an agreement with Austria on the cooperation

in the fields of culture, education and science,41 in which the parties support direct

cooperation of cultural organisations at national, regional and local levels42 and aim to

improve the knowledge about the culture of the other state.43 The agreement provides for

the establishment of a joint commission for the implementation of the agreement as well

as for the possibility for the responsible line-ministries to agree on joint working

programmes.44 The programmes agreed within the joint commission or between the

respective line-ministries regularly contain also projects related to the Slovene minority

in Austria and the German minority in Slovenia.45

III. Media

Among the six countries, only Austria, Slovakia and Slovenia have constitutional

provisions which deal explicitly with media and national minorities. The State Treaty of

Vienna provides for the right of Slovene and Croat minorities in Carinthia, Burgenland

and Styria to have press in their own languages.46 A similar proactive approach has the

Slovene Constitution which stipulates that the autochthonous Italian and Hungarian

national communities have the right to develop activities associated with public media

and publishing.47 According to the Slovak Constitution, the citizens representing national

40 Art. 3 of the Convention on providing special rights for the Slovenian minority living in the Republic of Hungary and for the Hungarian minority living in the Republic of Slovenia. 41 Agreement between the Government of Republic of Slovenia and the Government of Austria on cooperation in the field of culture, education, and science, signed on 30 April 2001.42 Ibid., Art. 1.43 Ibid., Art. 10.44 Ibid., Art. 20.45 Ibid., Art. 14 - 16.46 Art. 7(1) of the State Treaty of Vienna. According to Art. 7 (4) of the State Treaty of Vienna, the Slovene and Croat minorities in Carinthia, Burgenland and Styria shall participate in cultural institutions at the same conditions as other Austrian citizens. Under “cultural institutions” one can subsume also the media, in particular public broadcasting.47 Art. 64 (1) of the Slovene Constitution.

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minorities or ethnic groups have the right to disseminate and receive information in their

mother tongue.48

Domestic laws lay down the obligations of the public broadcaster with regard to

minorities in general and broadcasts in minority languages in particular. For example,

according to Hungarian legislation, it is a public duty to foster the culture and languages

of all officially recognized national and ethnic minorities.49 They shall be regularly

informed in their mother tongue by way of specific programmes aired by public service

media. Therefore, public service broadcasters shall fulfill this responsibility “via

nationwide or – in view of the specific geographic location of national or ethnic

minorities – via local media services by airing programmes answering the needs of the

national or ethnic minorities in question, or via audiovisual media services using

subtitling or broadcasting in multiple languages, as required.”50 It is worth noting here

that the new Hungarian media law51 raised a wave of harsh internal and international

criticism due to the extensive powers given to the Media Council of the National Media

and Communications Authority. Critics points out to the potential influence of the

government over this supervisory and control body. Moreover, under the new regulations

mass-media in Hungary may face heavy fines if the the Media Council deems their

coverage unbalanced. Slovene legislation stipulates that public broadcaster shall establish

radio and television channels for the autochthonous Italian and Hungarian national

communities, programmes for the Roma community and for the members of national

communities of the former Yugoslav republics (Albanians, Bosnians, Montenegrins,

Croats, Macedonians and Serbs) and other national and ethnic communities in the

Republic of Slovenia.52 Moreover, the public Radio and Television shall encourage the

liaison between autochthonous national communities in the Republic of Slovenia and

their nations of origin, as well as include cultural and other achievements of Italian and

Hungarian nations respectively and the Roma community into national and ethnic

community programmes and contents. They shall present “the social status as well as

48 Art. 34 (1) of the Slovak Constitution.49 Art. 43/M (2) (d) of Act LXXIV of 2007 on the Rules of Broadcasting and Digital Switchover.50 Art. 99 (1) and (2) of the Act CLXXXV of 2010 on media services and mass media.51 Act CLXXXV on media services and mass media was adopted by the Hungarian parliament in December 2010 and came into force on 1 January 2011. 52 Art. 4 (1) of the Radio and Television Corporation of Slovenia Act of 2010.

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cultural and other accomplishments of the members of national communities of former

Yugoslav and members of other national and ethnic communities in the Republic of

Slovenia into national and ethnic community channels.”53

Concerning the amount of time and resources to be dedicated to minority language

programmes, the laws of the six countries are similarly vague. The Law on the Austrian

Broadcasting Corporation (ORF) provides, for instance, that an appropriate share of the

programmes has to be reserved to programmes in minority language. The ORF can fulfill

this task also by cooperating with private broadcasters.54 It further foresees that the

amount of time dedicated to such minority language programmes has to be established

every year, after hearing the Audience Council. For that purpose the Council can hear

representatives of the Minority Advisory Councils.55 In Hungary the special regulation on

minorities stipulates that specific audiovisual legislation shall ensure that public

television and radio stations will produce and broadcast on a regular basis programmes

for national and ethnic minority.56 The national self-government bodies of national and

ethnic minorities, shall make their independent decision concerning the principles of

allocation of the transmission time made available to them by public service broadcasters.

The public service broadcaster shall abide by these principles, which may not affect the

contents and editorial principles of the programme.57 According to the Romanian audio-

visual legislation, “in localities where a national minority amounts to more than 20

percent of the population, the distributors shall ensure broadcasting services for those

programmes in the language of the respective minority which are free for re-

broadcasting.”58 Public TV and radio at national and local levels broadcast programmes

in the languages of the largest minorities, such as the Hungarian, Roma, German and

Ukrainian minorities. It needs to be mentioned that Romanian TV programmes broadcast

in a minority language have to be translated into Romanian by way of subtitles, dubbing

or simultaneous translation, except for music videos and educational programmes for

53 Art. 6 (1) of the Radio and Television Corporation of Slovenia Act of 2010.54 Art. 5 (1) and (2) of the Federal Law on the Austrian Broadcasting Corporation of 1984 (with the subsequent amendments).55 Art. 30 (1) point 5 of the Federal Law on the Austrian Broadcasting Corporation of 1984 (with the subsequent amendments).56 Article 18 of the Act LXXVII of 1993 on the Rights of National and Ethnic Minorities.57 Art. 99 (3) of the Act CLXXXV of 2010 on media services and mass media.58 Art. 82 (4) of the Audiovisual Law no. 504/2002.

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teaching foreign languages.59 In Italy, the national law on historic- linguistic minorities

provides that appropriate conditions for their protection in the areas where they live shall

be ensured through the agreement between the Ministry of Communication and the public

broadcasting company RAI. Regions on which territories a linguistic minority resides,

can also conclude separate conventions with the public broadcasting company concerning

broadcasts in minority language in the regional programmes60. Italian regions, provinces

and municipalities with minority population may support, within the limits of their

budgets, editorial, press and private broadcasting activities operating in a minority

language.61 In Slovakia, the broadcasters have the duty to ensure the use of the state

language and the languages of national minorities in the broadcasting of programmes and

other elements of the programme service,62 in accordance with the special provisions laid

down in the Art. 5 of the State Language Law no. 270/1995 (with subsequent

amendments) and Art. 2 of the Minority Languages Law no. 184/1999. The Slovak Radio

and Television shall broadcast programmes in the language of national minorities and

ethnic groups living on the territory of the Slovak Republic that are balanced in their

content and regional coverage. Slovak Television shall establish independent

organizational units to provide for the production and broadcasting of programmes for

national minorities and ethnic groups and shall provide space for the activities of

registered churches and religious societies in broadcasting.63 While the Slovene

legislation for the Roma community is equally vague by providing for radio and

television broadcasts for the Roma ethnic community, without specifying air time or

length, the same provision of the Radio and Television Corporation of Slovenia Act,

guarantees the creation of one radio and television channel each for broadcasting for the

autochthonous Italian and Hungarian ethnic communities.64 Those channels are part of

the public RTV Slovenia and must be broadcast in at least 90% of the area inhabited by

the respective community.65

59 Decision no. 14/1999 of the National Audiovisual Council.60 Art. 12 (1) and (2) of the Law no. 482/1999 on the protection of historic linguistic minorities.61 Art. 14 of the Law no. 482/1999 on the protection of historic linguistic minorities.62 Art. 16 (g) of Law no. 308/2000 on Broadcasting and Retransmission.63 Art. 5 (1) (d) (e) (g) of Law no. 619/2003 on Slovak Radio and Art. 5 (1) (e), (f), (h) of Law no. 16/2004 on Slovak Television.64 Art. 4 (1) of the Radio and Television Corporation of Slovenia Act of 2010.65 Art. 8 (1) of the Radio and Television Corporation of Slovenia Act of 2010.

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Only some of the countries have specific legal provisions concerning the representation

of minorities in media bodies and the tasks of these bodies with regard to minorities.

Slovenia has the strongest and most consistent regulations in this regard. The Council of

Radio Television (RTV) Slovenia is composed by 17 members, two of which shall be

appointed by the Hungarian and Italian ethnic community respectively.66 RTV Slovenia

has one Programme Committee for Italian ethnic community channel and another one for

Hungarian ethnic community channel.. Both these committee have five members and

three of them shall be appointed by the Italian and, respectively, Hungarian self-

governing ethnic communities in Slovenia. One member shall be elected from among

themselves by employees in the editorial offices of the radio and television channels for

the Italian and Hungarian ethnic communities respectively and one member shall be

appointed by the Council of RTV Slovenia. There is also a third Programme Committee

for programme content and services for the Roma ethnic community. It has five members

as well and three of them shall be appointed by Roma Community Council of the Republic

of Slovenia. The remaining two members are elected/appointed following the same procedure

as in the case of the committee for Italian and Hungarian communities.67 The law specifies

in details the competences and tasks of these committees and the mandate of their

members.68 The Director General of RTV Slovenia is assigned one assistant each for the

radio and television programmes for the Italian and Hungarian national communities,

respectively.69 In Austria, the election mechanism to the Audience Council of the

Austrian Broadcasting Corporation is such that at least one of the 35 members is a

representative of a national minority.70 As has been seen above, the Audience Council

must be heard when it comes to the definition of the length of programmes broadcast in

minority language. Hungarian legislation foresees in a rather vague manner that national

minority self-governments “may delegate members to the Public Service Board“.71 This

body of 14 members monitors the orientation of public service and exercises control over

public service broadcasters in relation to the implementation of the media legislation into

66 Art. 18 (2) and (4) of the Radio and Television Corporation of Slovenia Act of 2010. 67 Art. 27 (1), (4) and (5) of the Radio and Television Corporation of Slovenia Act of 2010. 68 See 27 (2), (3), (6) and (7) of the Radio and Television Corporation of Slovenia Act of 2010.69 Arts. 41 and 57-61of the Statute of RTV Slovenia of 2006.70 Art. 28 (4) and (11) of the Federal Law on the Austrian Broadcasting Corporation of 1984 (with the subsequent amendments).71 Annex no. 1 of the Act CLXXXV of 2010 on media services and mass media.

14

force.72 The Romanian National Audiovisual Council (NAC) is composed of eleven

members, one of which is a member of the Hungarian minority. It is worth noting that

minority representation in NAC is not requested by law. This good practice is a

consequence of the fact that Hungarian minority party plays a key role in the national

parliament and in the government since 1996.73 NAC has the task to ensure the protection

of the Romanian language and culture as well as of the languages and cultures of national

minorities. Further, it shall take appropriate measures for the correct use of the Romanian

language and the languages of national minorities.74 Slovakia offers an example of a

rather ambiguous legal framework in this field. The Council of Slovak Radio and the

Council of Slovak Television are formed of 15 members each who elected by the

parliament from candidates who are proposed to it by the relevant parliamentary

committee. The candidates for membership of the two Councils are proposed to the

relevant parliamentary committee by members of parliament or the other bodies which

are active in the fields of media, culture, science, education, the development and

protection of spiritual values, human rights and the environment, which represent or stand

for the interests of national minorities or ethnic groups, other minorities, or registered

churches and religious societies.75 The Audiovisual Law no. 343/200776 does not contain

specific provisions regarding national minorities. The rule is that all audiovisual works

distributed by transmission with an original language other than Slovak shall be

broadcasted with dubbing in Slovak language, or in the original language with Slovak

subtitles. This does not apply to “audiovisual works whose original language meets the

criteria for basic intelligibility from the viewpoint of the state language.”77

To various degrees, the domestic legislation in all states under consideration aims to

facilitate the publication of printed media in minority languages. The Austrian Press

72 Art. 97 of the Act CLXXXV of 2010 on media services and mass media.73 The main party representing the interests of Hungarian minority in Romania was a member of the ruling coalition from 1996 to 2000 and from 2004 to 2008, while in the period between 2000 and 2004 it supported the government in parliament on the base of annual protocols of collaboration. After the 2008 election, the party remained in the opposition until December 2009. Since then it is a again a formal partner in the Romanian government. 74 Art. 10(3)(f) and 17(1)(d) of the Romanian Audiovisual Law no. 504/2002.75 Art. 9 of both Law no. 619/2003 on Slovak Radio and Law no. 16/2004 on Slovak Television.76 Law no. 343/2007 on the Conditions of Registration, Public Distribution and Preservation of Audiovisual Works, Multimedia Works and Sound Recordings of Artistic Performances including Amendments and Supplements to some other Laws.77 Art. 17 (5) of the Audiovisual Law no. 343/2007.

15

Promotion Act, for instance, foresees that print media published in minority languages do

not need to sell a minimum number of papers in order to have access to federal funds in

support of their media.78 In the framework of the financial support for minorities, media

products in minority languages can get further financial assistance.79 In Hungary,

minority print media, which usually are bilingual, are nearly exclusively financed by the

state budget. The same goes for Romania as in particular the small minorities lack their

own resources. The Italian minority living in Slovenia cooperates with the Italian

minority from Croatia in the publication of printed media. The publishing house is co-

financed by the two states. Around 85% of the necessary resources for the publication of

a Hungarian-language weekly is provided by the state budget. A newspaper for the Roma

community is co-financed by the Slovene Ministry of Culture.80

All five countries that ratified the EChRML undertook to encourage and/or facilitate the

creation and/or maintenance of at least one newspaper in the minority languages.81 The

provisions selected in the ratification instruments to the EChRML reflect mostly the

situation of minority media on the ground. This is obvious especially when it comes to

the establishment of radio and TV channels or programmes as well as newspapers. With

regard to financing, only Hungary (for Croatian, German, Romanian, Serbian, Slovak and

Slovenian), Romania (for Hungarian and German) and the Slovak Republic (for

Hungarian), accepted to cover the additional costs of those media which use regional or

minority languages, wherever the law provides for financial assistance in general for the

media. Austria and Slovenia (and Romania and Slovakia for their other minority

languages protected under Part III) have only chosen “to apply existing measure for

financial assistance also to audiovisual productions in the regional or minority

languages.”82 Hungary and Romania undertook to support the training of journalists and

other staff for media using regional or minority languages.83 All countries but Austria

have accepted to ensure that the interest of the users of regional or minority languages are

represented or taken into consideration within bodies guaranteed the freedom and

78 Art. 1(2)(2) Federal Law on the Promotion of Press, BGBl. I Nr. 136/2003. 79 Art. 8-11 of the Austrian Minorities Act of 1976.80 First State Report submitted by the Republic of Slovenia pursuant to article 25, paragraph 1, of the FCNM, ACFC/SR(2000)004, paras. 81 and 83. 81 Art. 11(1) (e) (i) of the EChRML82 Art. 11(1)(f) of the EChRML.83 Art. 11(1)(g) of the EChRML.

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pluralism of the media.84 All six countries guarantee the freedom of direct reception of

radio and television broadcasting in minority languages from neighboring countries

through specific national regulations and/or the acceptance of the respective undertaking

from the EChRML.85

The issue of minority media has also been addressed through bilateral agreements. For

example, the treaties/convention between Hungary and Romania, Slovakia and Slovenia

provide for the right of minorities to have access, in their mother tongue, to information

in electronic and printed media, as well as to freely exchange and disseminate

information. The parties further grant the possibility to establish and operate their own

media.86 The agreement between Austria and Slovenia on cooperation in the field of

culture, education and science foresees more generally that the state parties encourage

cooperation in the area of publishing, radio and TV broadcasting, particularly through the

exchange of cultural programmes and authors.87

IV. Education

The right of (national88/ethnic89/linguistic90/autochthonous91) minorities to education in

their mother tongue is a constitutional principle in all six countries.92 This principle is

further implemented by national93, federal94 and regional95 laws according to the

constitutional structure of each state. In Austria, the main regulations in this field are

84 Art. 11(3) of the EChRML.85 Art. 11(2) of the EChRML86 See Art. 15(4) of the treaty between Hungary and Romania; Art. 15(2)(g) of the treaty between Hungary and the Slovak Republic; Art. 5 of the convention between Hungary and Slovenia. 87 Art. 9 of the Agreement between the Government of Republic of Slovenia and the Government of Austria on cooperation in the field of culture, education, and science, signed on 30 April 2001.88 In Hungary, Romania, Slovakia, Austria.89 In Hungary.90 In Italy.91 In Slovenia.92 Austria: Art. 68 of the State Treaty of Saint Germain and Art. 7(2) of the State Treaty of Vienna; Hungary: Art. 68(2) of the Constitution; Romania: Art. 32(3) of the Constitution; Slovakia: Art. 34(2) of the Constitution; Slovenia: Art. 64(1) of the Constitution. Italy: Art. 6 of the Italian Constitution contains a general provision on the protection of linguistic minorities. It is the base for the national and regional laws on minority rights. Art. 19 and Art. 102 (2) of the Autonomous Statute of Trentino-South Tyrol (which is a constitutional law) deal with education in minority languages (German and Ladin) in this region.93 In Hungary, Romania, Slovakia, Slovenia.94 In Austria.95 In Italy.

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contained in the laws on Minority Schools in Carinthia96 and Burgenland.97 In Italy, the

national framework law98 contains rather general and weak provisions regarding

education in minority languages. More effective are the specific regulation regarding the

education in Slovene language in the provinces of Gorizia, Trieste and Udine.99 The

strongest protection in the field of education is guaranteed for German and Ladin

languages through the Autonomy Statute of Trentino-South Tyrol. In Slovenia, the

parliament has adopted a specific law which deals with all aspects of education in the

case of two recognized minorities (Italians and Hungarians)100 while several provisions

regarding the education for Roma are included in the various general laws in this field.101

Hungary has in addition to the general norms on education102 also a special regulation on

national and ethnic minorities103 which contains a whole chapter on cultural and

educational autonomy. In Romania, all aspects of minority education from pre-school

until university level are specified in details in the recently approved national framework

law.104 Anti-segregation and affirmative action measures for students belonging to Roma

minority (e.g. reserved seats at universities) are implemented through orders of the

Minister of Education.105 In Slovakia, the framework law on education106 is

complemented by specific legislation on self-governance in the educational system107 and

96 BGBl. no. 101/1959 as amended. 97 BGBl. no. 641/1994 as amended. 98 Law no. 482/1999 on the protection of the linguistic-historical minorities.99 Law no. 1012/1961 concerning the regulation of school institutions in the Province of Gorizia and in the territory of Trieste, Law no. 932/1973 regarding the institution of schools with Slovene language of instruction in the Provinces of Trieste and Gorizia and Law no. 38/2001 on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia.100 Act on Special Rights of the Italian and the Hungarian National Communities in the Field of Education and Schooling of 25 April 2001.101 Preschool Institutions Act, Elementary School Act, Gymnasium Act, Organization and Financing of Education Act.102 Act LXXIX of 1993 on public education and Act CXXXIX of 2005 on higher education.103 Act LXXVII of 1993 on the rights of national and ethnic minorities. 104 Law no. 1/2011 on national education was approved the Romanian parliament on 5 January 2011 and came into force on 10 February 2011. 105 e.g. Ministry of Education Order no. 3699/2002 facilitating the access of Roma candidates to universities and colleges and Minister of Education Order no. 1540/2007 on the ban of school segregation of Roma children and the approval of the Methodology on preventing and eliminating school segregation of Roma children.106 Law no. 245/2008 on education and instruction.107 Law no. 596/2003 on state administration and self-governance in the educational system.

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on financial matters.108 Various decrees of Ministry of Education deal in detail with the

organization and function of the Slovak schools.109

In all six countries, persons belonging to minority groups have the possibility, in theory,

to study in their mother tongue in kindergarten, primary/elementary110 and secondary

schools while teaching of the official language is compulsory. However, the law requires

everywhere the fulfillment of certain requirements as a pre-condition for the

establishment of education in minority languages. For example, such schools may

function only in certain areas/municipalities.111 They shall be established according to a

proportional principle112 or the groups and classes shall be organized only “according to

the local needs and possibilities” if the authorities receive the minimum number of

requests specified by law.113 As a consequence, in practice, it is not uncommon that

persons belonging to a minority group cannot benefit the right to study in their mother

tongue. It is submitted that in such cases those minority pupils have at least the possibility

to study their mother tongue, culture and traditions as separate subjects in the local

schools with instruction in the official language.114 In general, the extra costs of the

108 Law no. 597/2003 on the financing of primary schools, secondary schools and school establishments.109 e.g. Ministry of Education Decree no. 137/2005 on school inspection, Ministry of Education Decree no. 306/2008 on kindergartens, Ministry of Education Decree no. 314/2008 on secondary schools and on the list of subjects that require the verification of special abilities, skills or talents, Ministry of Education Decree no. 320/2008 on primary schools, Ministry of Education Decree no. 322/2008 on special schools, Ministry of Education Decree no. 325/2008 on school facilities for educational counseling and prevention and Ministry of Education Decree no. 649/2008 on the purpose of the allowance for pupils from socially disadvantaged environments.110 We shall use the expression “primary education” for the first four grades. In various legal studies of some of the six countries the authors use the equivalent expression “elementary education”. For example in Austria this type of school (“Volksschule” in German) is called “elementary education” because this is the official English version in the Treaty of Saint Germain of 1920. 111 e.g. in Austria, the educational rights of Slovenes, Croats and Hungarians are in principle applicable on all territory of three Länder (Carinthia, Burgenland and Styria) but for Carinthia the Constitutional Court established a strengthened guarantee for the “autochthonous settlement area” meaning the places where bilingual schools existed at the beginning of the academic year 1958/59. In Italy, education in German and Ladin is provided only in the autonomous region of Trentino-South Tyrol. In Slovenia, the schools with tuition in Italian are established only in the ethnically mixed territories as defined by the Slovene law. 112 e.g in the case of Austria, according to the Art. 7 (2) of the State Treaty of Vienna the persons belonging to Slovene and Croatian minorities have a right to elementary school education in their mother tongue and to a “proportional number of their own secondary schools”. 113 e.g. in Hungary, Romania, Italy (for the recognized linguistic minorities that do not enjoy a special protection at regional level and therefore are covered only by national Law no. 482/1999 on the protection of the linguistic-historical minorities).114 e.g. in Romania, see Art 46 (7) of Law no. 1/2011 on national education; in Slovakia, see Art 12 (5) (b) of the Law no. 245/2008 on education and instruction; in Hungary, see Art 43 (2) (3) (4) and Art 45 (3) of Act LXXVII of 1993 on the rights of national and ethnic minorities.

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education in a minority language have to be covered by the state and/or regional and/or

local authorities.115

Incidentally, we must not omit to mention that in all the countries under scrutiny the

minorities enjoy the right to establish and run their own private educational institutions.116

As regards university education in minority languages, the six countries can be split in

two groups. In Hungary, Slovenia, Austria and Italy117 there is no university education in

the minority languages but it is possible the study of the minority languages. The

domestic laws do not forbid the establishment of minority education at university level.

For example, the Hungarian Higher Education Act of 2005 stipulates that universities may

be established by the Hungarian state, a local government or a national minority government

and by a religious legal entity registered in the Republic of Hungary.118 For various reasons

these countries have opted for an international students exchange mechanism. They have

concluded bilateral agreements119 that allow and encourage persons belonging to national

minorities to study in their kin-states’ universities. In some cases there are also historical

motivations behind120 but, in general, the study-abroad programmes are based on a

pragmatic approach because all these countries have small mutual minorities. The

situation is different in the case of Romania and Slovakia. Both have large Hungarian

minorities which strongly demand education in the mother tongue at all levels. Romanian

Law no. 1/2011 on education allows the establishment of state multicultural higher

education institutions with groups, sections, colleges and faculties with tuition in

115 e.g. in Slovenia: see Art. 29 of the Preschool Institutions Act and Arts. 26 and 27 of the Act on Special Rights of the Italian and the Hungarian National Communities in the Field of Education and Schooling; in Hungary: see Art. 44 of Act LXXVII of 1993 on the rights of national and ethnic minorities; in Romania: see Art. 45 (17) of Law no. 1/2011 on national education. There are also exceptions from this rule: for example, in Italy, according to Art. 4 and 5 of Law no. 482/1999 on the protection of the linguistic-historical minorities, the schools that offer education in a minority language other than those languages that enjoy a special protection (German, Ladin, French, Slovene) have to use mainly their available financial and human resources. The state shall support such projects at national and local level with 1 million Euro. 116 e.g. in Austria: see Art. 67 of the State Treaty of Saint Germain; in Hungary: see Art. 18 (3) of the Act LXXVII of 1993 on the Rights of National and Ethnic Minorities; in Romania: see Art. 45 (1) and 65 (1) of Law no. 1/2011 on national education.117 Only the Faculty of Pedagogy of the Free University of Bolzano in South Tyrol has three separate sections with instruction in German, Italian and Ladin. 118 Art. 7 (1) (a) (b) of the Higher Education Act. 119 e.g. Art. 2 of the Agreement between the government of Republic of Austria and the government of the Republic of Slovenia on cooperation in the field of culture, education and science, signed in Ljubljana on 30 April 2001. 120 For example, traditionally, German speaking South Tyroleans enroll in Austrian universities.

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minority languages.121 The Slovak Law no. 131/2002 on institutions of higher education

does not contain specific regulations on national minorities but it regulates the

organization and functioning of private higher education institutions.122 Both Romania

and Slovakia have state universities with faculties with instruction in Hungarian123 and

monolingual minority private educational institutions.124

The comparative analyze shows the different approaches from country to country as

regards the types of minority language education (monolingual and/or bilingual) available

in the public education system. A first striking observation is that in many cases pupils

belonging to a minority group cannot chose between a monolingual or a bilingual school.

This situation can be the consequence of the existing legal framework or, the opposite, of

a legislative vacuum. Firstly, there are countries where constitutional regulations provide

clearly for separate state education systems for certain minority groups as in the case of

German speaking South Tyroleans in Italy and Italians in Slovenia. The children

belonging to one of these minorities can have a bilingual education only in a private

bilingual school. In the public schools the only choice available is monolingual

instruction in the mother tongue with the compulsory learning of the state language. In

both Italy and Slovenia such system is established only in the case of a specific minority

group concentrated on certain territory. Indeed, it is worth noting that in these two

countries, other minority groups have only the option of a bilingual state education in the

areas where they live. This is the case, for example, of the Hungarians in Slovenia and of

the French speaking population in the Italian autonomous region of Valle D’Aosta.

Secondly, in some countries the existing legal framework does not provide explicitly for

the possibility to establish bilingual schools. For example, the domestic regulations in

Romania and Slovakia give the persons belonging to a national minority the right to study

either in schools/sections/classes with tuition in their mother tongue (with the compulsory 121 Art. 135 (1) (b) of Law no. 1/2011 on national education.122 For example, Law no. 465/2003 established the Hungarian language University of János Selye in Komárno/Komárom, with Faculties of Economy, Pedagogy and Reformed Theology. 123 In Romania the following state higher education institutions offer education in Hungarian: University Babes-Bolyai of Cluj-Napoca, University of Theatre Arts of Targu Mures and University of Medicine and Pharmacy of Targu Mures. In Slovakia the following state higher education institutions offer education in Hungarian: the Faculty of Philosophy at Comenius University in Bratislava; Faculty of Philology at Matej Bel University in Banská Bystrica and Faculty of Pedagogy at Constantine the Philosopher University in Nitra – Faculty of Central European Studies. 124 Sapientia University and Partium Christian University Romania and University of Janos Selye and Janos Calvin Theological Academy in Slovakia.

21

learning of the official language) or in schools/sections/classes with instruction in the

official language and the study of the minority language (and traditions, history) as a

separate subject/s.125 Finally, Austria and Hungary form a third category because in these

countries a person belonging to a minority group have the possibility to study both in a

bilingual and/or a monolingual school at different levels of education. In Austria, the

Minority School Acts of Carinthia and Burgenland give to Slovenes, Croatians and

Hungarians the possibility to attend mono or bilingual primary schools but the secondary

education is only monolingual: either in their mother tongue (with the compulsory study

of German) or in the official language (with the study of the minority language).126 In

Hungary, the special law on minorities and the framework regulation on public education

stipulate that the parents and/or the legal tutors can chose bilingual education for their

children in kindergartens and schools127 according to the local need and demand.

The five countries that have ratified the EChRML accepted those undertakings on

education which mirrored their existing domestic standards. Romania, Slovakia and

Austria have selected for each of minority language protected under part III of EChRML

a specific set of provisions. Such asymmetric protection takes into account the situation

of each of these languages in the respective countries. For example, Hungarian language

enjoys the strongest protection and promotion in the field of education in both Romania

and Slovakia. Bucharest and Bratislava undertook to make available education in

Hungarian at kindergarten, primary, secondary, vocational school and university levels.128

The level of protection is lower in the case of Bulgarian and Czech in Romania and

Ukrainian and Ruthenian in Slovakia. In kindergarten and primary school, a substantial

part of education shall be available in these minority languages, while in the case of

secondary education, the authorities shall only make available a substantial part in the

minority languages or shall provide for the teaching of them as an integral part of the

curriculum.129 For Russian in Romania and Bulgarian in Slovakia the level of protection

125 In Romania: see Art. 45 (1) (2) and Art. 46 (7) of Law. no. 1/2011 on education; in Slovakia: see Art. 12 (5) (a) and (b) of Law no. 245/2008 on education and instruction.126 Art. 12 and Art. 16(3) of the Minority School Act of Carinthia and Art. 3 and Art. 8 of the Minority School Act of Burgenland. 127 Art. 43 (2) and (3) of the Act LXXVII of 1993 on the rights of national and ethnic minorities and Art. 5 of the Act LXXIX of 1993 on public education. 128 Art. 8(1)(a)(i), (b)(i), (c)(i), (d)(i) and (e)(i), EChRML.129 Art. 8(1)(a)(ii), (b)(ii), (c) (ii) or (iii), EChRML

22

decreases even more. In pre-school education, the authorities shall take action when there

is demand and the minimum number of pupils requested by law is reached, while in both

primary and secondary schools, Russian and Bulgarian shall be taught as an integral part

of the curriculum.130 Hungary and Slovenia followed a different approach and have

chosen the same EChRML provisions on education for all (or most) of their minority

languages covered by Part III. The difference between these two countries is that

Slovenia opted for the strongest protection while Hungary has selected the minimum

standards in the field of education: to favor and/or encourage pre-school education in the

areas where the minority languages are used and to provide, when there is sufficient

request, for the teaching of the minority languages as an integral part of the curriculum or

to make available primary and secondary education (or a substantial part of it) in the

minority language.131

It should not be omitted that there are also special arrangements in the field of minority

education which do not necessarily fit into the classic models discussed above. Indeed,

some countries have established in the case of certain minority groups an education

system with very specific features. For example, the Ladins in South Tyrol study in their

mother tongue in kindergarten and primary schools but afterward they switch to a

bilingual education. The striking characteristic of the system is that their mother tongue

is not one of the language of instruction. Half of the subjects are studied in German and

the other half in Italian. The Ladin language is taught as a separate subject. Roma

minority represents also a special case and the approach in terms of regulations and

policies addressing this minority is quite different from state to state although the

problems seems to be the same everywhere. The Italian Law no. 482/1999 on the

protection of the linguistic-historical minorities does not even recognize Roma as a

minority group but the Italian government agreed that the FCNM protects also Roma.132

The Slovene Constitution provides in Art. 65 that special rights for the Roma shall be

130 Art. 8(1)(a)(iii), (b)(iii), (c)(iii), EChRML131 Art. 8 (1) (a) (iv), (b) (iv), (c) (iv), (d) (iv), EChRML. 132 „The Advisory Committee is of the opinion that, especially in view of their attested historical presence in Italy, the Roma should also be entitled to the protection afforded by the FCNM. The Committee therefore welcomes the clarification given when it visited Rome by the representatives of the Italian Government to the effect that the Roma, while not coming under Law No. 482 of 15 December 1999, are nonetheless protected by the Framework Convention.” Advisory Committee on the FCNM, Opinion on Italy adopted on 14 September 2001, 6.

23

determined by law. Although this provision is a clear empowerment to the legislator to grant

such special rights to the Roma minority, the Slovene legislative framework with regard to

education is rather weak.133 Romanian regulations on Roma education focus on anti-

segregation and affirmative action. The Slovak antidiscrimination legislation (as amended

in 2008) allows for temporary positive measures in the field of education for members of

disadvantaged groups.134 One of the main problems in the field of education in Slovakia is

the over-representation of Roma in the special schools for children with disabilities.135

Last but not least, this comparative overview confirms that many legal issues regarding

education in minority languages are contentious. Various domestic regulations in this

field have been challenged before the Constitutional Courts in the Central and Eastern

European countries.136

V. Use of Language

The right to use the minority languages in relation to national/federal and/or regional

and/or local authorities is stipulated by constitutional legislation in all six countries137. 133 The Preschool Institutions Act and the Elementary School Act simply provide, that education for Roma “shall be carried out according to this law and other regulations.” (Art. 7 of the Preschool Institutions Act and Art. 9 of the Elementary School Act.) The Organisation and Financing of Education Act provides for “additional education programs for Roma children (Art. 25), for the state budget funding for the “preparation … of textbooks and teaching materials for … Roma” (Art. 81) and for ”special criteria and standards” for the education of Roma children (Art. 84). The Roma Community in the Republic of Slovenia Act contains two provisions dedicated to Roma and education (Arts. 3 and 4) which focus not so much on the language of education but more on the integration of the Roma community into the system of education with the aim to improve the educational level of Roma community members.134 According to Article 8a (1) of Antidiscrimination Law, the aim of these measures is to ensure equal access in practice through targeted preparatory programs or through the dissemination of information about these programs or the opportunities to apply for places in the education system.135 The Ministry of Education Decree no. 322/2008 on Special Schools outlines the procedure for placing children in Special Elementary Schools on the base of the so-called Concept of Education and Training of Roma Children and Pupils, including the Development of Secondary and Tertiary Education that was adopted in 2008 by Slovak authorities.136 e.g. in Austria see Constitutional Court of Austria, Coll. 15759/2000. (the interpretation of the term “elementary instruction” and the application given to it in the Minority School Act of Carinthia) and Constitutional Court, Coll. 12245/1989 (territorial areas where members of Slovene and Croatian minorities are entitled to minority language schooling); in Italy, see Decision (Ordinanza) of the Constitutional Court of 6 December 2006 no. 430/2006 (the “anticipated” start of teaching of Italian in German language schools of South Tyrol); in Slovenia, see Constitutional Court decision U-I-94/96 (bilingual education for Hungarian minority); in Romania, see Decision no. 114 of 20 July 1999 (legal provisions regarding education in minority languages). 137 Austria: Art. 66(4) of the State Treaty of Saint Germain and Art. 7(3) of the State Treaty of Vienna; Hungary: Art. 68(2)of the Constitution; Romania: Art. 120(2) of the Constitution; Slovakia: Art. 34 of the Constitution; Slovenia: Art. 11 and 62 of the Constitution; Italy: Art. 6 of the Italian Constitution contains a

24

This principle is implemented in different ways through various national/federal/regional

laws. The main problem related to the use of languages regards the inconsistencies of the

existing domestic legislation in some of the countries. For example, according to

Hungarian legislation, the MPs belonging to national and ethnic minorities have the right

to use their mother tongue in the parliament138 but the country still has no law which

ensures the parliamentary representation of all recognized national and ethnic minorities.

In Slovakia, the penalties for failing to comply with the rules regarding the use of the

Slovak contained in Law no. 270/1995 on the State Language have been abrogated by

Law no. 184/1999 on the Use of Minority Languages. However, the fines have been

reintroduced after the controversial 2009 amendment of Law no. 270/1995 on the State

Language. The exact meaning and effects of this legislation139 still needs to be clarified

although in December 2009 the Slovak government made public the explanatory

principles for a unitary interpretation of the these norms and in December 2010 a new

amendment of Law no. 270/1995 on the State Language abolished some of the fines. The

European Commission for Democracy through Law “considers nevertheless that, for

reasons of legal certainty, the relations of the Slovak Language Act with other pieces of

legislation on minority protection as well as the legal status of the ‘Principles’ should be

clarified. Several ‘principles’ should be contained in the law.”140

Three key issues arise in relation to the use of minority languages: what is the scope of

application of the relevant regulations, what public authorities and institutions are

concerned and what linguistic rights are guaranteed?

A. The scope of application

general provision on the protection of linguistic minorities. It is the base for the national and regional laws on minority rights. The Autonomous Statute of Trentino-South Tyrol provides in Art. 99-102 for the right to use German in relation to judicial and administrative offices in the province and Ladin language in the Ladin valleys.138 Art. 52(1) of the Act LXXVII on the Rights of National and Ethnic Minorities.139 For example the Slovak authorities argue that these regulations affects only public and not private contacts but Art. 1 (5) specifies that the law applies not only to state and municipal authorities, but also to "legal persons, self-employed natural persons and private individuals".140 Opinion on the Act on the State Language of the Slovak Republic, adopted by the European Commission for Democracy through Law at 84th Plenary Session (Venice, 15-16 October 2010), CDL-AD(2010)035, Strasbourg, 21 October 2010, para. 135.

25

By comparing the relevant legislation of the six countries we can distinguish between the

following situations as regard the areas where minorities can enjoy their linguistic rights:

a) the domestic legislation mentions explicitly the territorial administrative units where a

person belonging to a minority group can address public administration and judicial

institutions in his/her mother tongue. This is the case in Slovenia where Italian and

Hungarian languages can be used only in the so-called “ethnically mixed territories”141 as

defined by the Slovene law. Another example is South Tyrol in Italy where the German

and Ladin speaking minorities enjoy their linguistic rights as stipulated by the Autonomy

Statute of Trentino-South Tyrol.

b) the domestic regulations specify a minority population threshold for the identification

of municipalities where persons belonging to national minorities can use their mother

tongue in relation to public authorities. For example, in Romania and Slovakia the rules

regarding the use of minority languages shall be applied in municipalities where a

minority represent at least 20% of the population.

c) the domestic laws use both the territorial delimitation of the areas where national

minorities can enjoy their linguistic rights and the minority population threshold. The

Italian legal framework provides that the Slovene language enjoys a special protection in

the municipalities of three provinces (Trieste, Gorizia, Udine) of the region Friuli-

Venezia Giulia where at least 15% of the population or 1/3 of the municipal councilors

have requested the application of the legislation on linguistic rights.142 It is worth noting

that not only the inhabitants belonging to a minority have the right to make such request

but all citizens living in the respective municipality. In Austria, the persons belonging to

Croatian, Slovenian and Hungarian minorities may use their mother tongue in relation to

public authorities only on the territory of three Länder: Carinthia, Burgenland and Styria.

Moreover, the Austrian relevant regulations shall be applied in the municipalities and

141 Municipalities of Lendava, Hodoš, Šalovci, Moravske Toplice and Dobrovni (for Hungarian minority) and municipalities of Koper, Izola and Piran (for Italian minority).142 Art. 4 of Law no. 38/2001 on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia. The same conditions are required for the use of the other minority languages officially recognized in Italy, as stipulated by Art. 3 of Law no. 482/1999 on the Protection of the Linguistic-Historical Minorities.

26

settlements where at least 10% of the population that lived there for a long period of time

belongs to a minority. 143

d) the domestic legislation establishes a different system which is based neither on

territorial delimitation nor on thresholds. Hungary is such a special case because of its

minority self-governments system established in 1993 (and amended in 2005). All

officially recognized national and ethnic minorities have the right to establish local,

regional, and national self-governments.144 They are elected bodies which function in

parallel to mainstream institutions and, most important, they have the right to make

decisions in the fields of minority education and language use in relation to public

authorities, as well as minority media and culture. Upon the request of the local minority

self-government or the regional minority self-government operating on the territory under

the competence of the municipal government, the latter is obliged to ensure the use of

minority language in relation to public authorities.145

B. The public authorities concerned

In general, the public bodies and institutions that have the obligation to ensure the use of

minority languages are those local/regional/federal/national authorities that are carrying

on their activities within the territorial administrative units that fall under the scope of

application of the relevant domestic legislation. There are also exceptions from this

territorial principle. For example, in Austria the federal and Länder authorities and

administrative offices located outside the mixed population areas (with at least 10%

minority inhabitants) shall allow the use of minority languages if their competences cover

these mixed population municipalities/settlements. The same is true in Italy in the case of

the Ladins living in South Tyrol. The rule is that they can use their mother tongue in

relation to the local and provincial authorities only in the Ladin municipalities.

Exceptionally, they can use Ladin also in relation to offices of public administration

143 The Advisory Committee on the FCNM welcomed the introduction of this low threshold but expressed concern for its lack of implementation. See Advisory Committee on the FCNM, First Opinion on Austria, ACFC/INF/OP/I(2002)009, Strasbourg, 16 May 2003, 3 and Second Opinion on Austria, ACFC/OP/II(2007)005, Strasbourg, 11 June 2008, 24. 144 Art. 21 of Act LXXVII of 1993 on the rights of national and ethnic minorities. The whole chapter 4 of Act LXXVII of 1993 (as amended in 2005) deals with self-governments of minorities and their establishment145 Art. 53 of Act LXXVII of 1993 on the rights of national and ethnic minorities. The whole chapter 7 of Act LXXVII of 1993 (as amended in 2005) deals with the use of minority languages.

27

located outside the Ladin valleys (e.g. in Bolzano, the capital of South Tyrol) if the

respective public institution has competences over issues of interest for this minority

group. In all six countries the use of minority languages is allowed in relation to the

public administration offices and judicial authorities.146 Positive examples are those

domestic regulations that are not only precise but extend the list of institutions that can be

addressed by the members of a recognized minority group in their mother tongue. For

instance, in the Italian autonomous province of South Tyrol, the German language can be

used not only in contacts with the provincial and regional public administration but also

with concessionaires that provide public services to the province.147 In Romania, a person

who belongs to a minority group has the right to use his/her mother tongue also in

relation to the organs subordinated to the public administration, with the deconcentrated

public services of the central bodies and with the various institutions subordinated to the

local councils.148 In ethnically mixed municipalities of Slovenia there should be

bilingualism not only in the local and national bodies but also in public enterprises and all

public agencies.149

C. The linguistic rights guaranteed

Some minority languages have an official status but only in certain areas of three of the

countries concerned. In all cases, such status is granted through a constitutional

provision. In Slovenia, the Italian and Hungarian languages are official in the ethnically

mixed territories.150 In Austria, the Slovene and Croatian language have official status in

three Länder (i.e. Carinthia, Burgenland and Styria)151 and Italy recognizes German as

official language in the autonomous region of Trentino-South Tyrol.152 In Slovakia and

Romania the only official language is the state language. Due to its specific system of

minority self-governments, Hungary represents, as already mentioned, a special case. 146 e.g. in Slovakia: see Art. 2(3) (4) of Law no. 184/1999 on the Use of Minority Languages; in Slovenia: see Art. 4(2) of the Public Administration Act of 2002 (with subsequent amendments); in Romania: see Art. 19 and 76(2) of Law no. 215/2001 on Local Public Administration (with subsequent amendments); in Italy: see Art. 100 of the Autonomy Statute of 1972 and Art. 7 of the Decree no. 574/1988; in Hungary: see Art. 51 (2) of Act LXXVII of 1993 on the rights of national and ethnic minorities. 147 Art. 100 (1) of the Autonomy Statute of 1972.148 Art. 19 and 76(2) of Law no. 215/2001 on Local Public Administration (with subsequent amendments).149 e.g. Art. 70 of the Statute of the Municipality of Lendava. 150 Art. 11 of the Slovene Constitution.151 Art. 7 (3) of the State Treaty of Vienna. 152 Art. 99 of the Autonomy Status of Trentino-South Tyrol.

28

Hungarian legislation on public administration allows the representative body of the

minority self-government or the body of the national minority self government to

determine the official language (beside the Hungarian) of the procedure falling under its

competence.153

Persons belonging to national minorities have the right to address the public authorities,

orally and in written, in their mother tongue and to receive the reply in the same

language. When an interpreter or a translator is needed the costs shall be covered by the

public authority. In general this is a guaranteed right everywhere but it has specific

features in different countries. A proportional quota system154 is applicable in the public

administration of the Italian autonomous province of South Tyrol with the aim “to create

and maintain an ethno-linguistic pluralism inside the South Tyrolean administration”.155

In Slovakia and Austria there is no right to be served in oral dealings by a civil servant

who speaks a minority language. In both countries there is no requirement to hire in

public administration people who have the command of these languages.156 An opposite

example we can find in Romania where the law requires the employment of civil servants

and policepersons able to speak minority languages.157 It is worth noting that in Slovenia

and Austria there are specific regulations providing for financial incentives for those civil

servants who speak minority languages.158 In general, all minorities are treated in the

same way but there are also exceptions. An illustrative example is Italy due to its

asymmetric protection of linguistic minorities. On one hand, in the autonomous province

of South Tyrol all civil servants must be bilingual (German and Italian) and the replies of

153 Art 9 (2) of Act CXL of 2004 on the General Rules of Official Procedure and Servicing in Public Administration.154 The public posts are allocated according to the numerical strength of the German, Italian and Ladin speaking groups. More about this special arrangement is to be found in the section on economic participation.155 Emma Lantschner and Giovanni Poggeschi, “Quota system, census and declaration of affiliation to a linguistic group” in J. Woelk, F. Palermo, J. Marko (eds), Tolerance through Law. Self Governance and Group Rights in South Tyrol, Martinus Nijhoff Publishers 2008, 220.156 In Austria this situation leads to a situation where there is a lack of civil servants being able to communicate in the minority languages. For details, see Advisory Committee on the FCNM, Second Opinion on Austria, ACFC/OP/II(2007)005, Strasbourg, 11 June 2008, paras. 119, 121 and 123. In Slovakia, according to Art 7 (1) of the Law no. 184/1999 on the Use of Minority Languages, the public authorities and their employees are not required to have command of the minority language.157 Art. 76 (3) of Law no. 215/2001 on local public administration (with subsequent amendments), Art. 91 of Law no. 188/1999 on the Status of the Public Servant (with subsequent amendments) and Art. 79 of the Law no. 360/2002 on the status of the policeperson.158 In the case of Austria, see Art. 23 of Minorities Act of 1976; in the case of Slovenia, see Art. 28 of the Slovene Salary System in the Public Sector Act of 2002.

29

the public administration must be in the language employed by the applicant or, in case of

documents issued on the initiative of the public authority, the assumed language of the

recipient.159 On the other hand, in the autonomous region of Valle D’Aosta, only the

municipal secretary (i.e. the highest administrative position in a municipality) must be

proficient in both Italian and French.160 Civil servants of the state administration in the

Valle D’Aosta shall “possibly” originate from the region or have command of the French

language. Similarly, when state civil servants are transferred to the Valle D’Aosta, they

should preferably originate from the region or speak French.161 Moreover, the law does not

provide for the right to receive an administrative act in French which means that a written

request in French could eventually be answered in Italian.162

All six countries have regulated the right to use minority languages before courts with the

help of interpreters and translators and without extra charges for parties.163 In general the

procedural papers and judicial decisions are drawn up only in the state language164 but

through the ratification of the EChRML , Austria, Hungary, Romania, Slovakia (only in

the case of Hungarian) and Slovenia undertook to not deny the validity of legal

documents drawn up within the state solely because they are drafted in a minority

language165 If a minority language has an official status as in Italy (i.e. German language

in South Tyrol) and Slovenia (i.e. Italian and Hungarian languages in ethnically mixed

territories) it is possible to conduct monolingual or bilingual judicial proceedings and the

documents of the court are drafted accordingly.166 The main difference between these two

cases regards the territorial scope of application of the specific domestic norms regarding

the use of minority languages. In Slovenia the bilingual proceedings started at a lower

159 Art. 100 (3) of Autonomy Statute of 1972 and Art. 7 of Decree no. 574/1988.160 Art. 55 of Law no. 196 of 16 May 1978, Implementation Norms of the Special Statute of the Valle D’Aosta. 161 Art. 52 of Law no. 196 of 16 May 1978, Implementation Norms of the Special Statute of the Valle D’Aosta. 162 Peter Hilpold, Minderheitenschutz in Italien: völkerrechtliche und verfassungsrechtliche Grundlagen 65(1-2) Europa Ethnica (2008), 3-18, 14.163 e.g., in Romania: see Art. 14 (2) and (3) of Law no. 304/2004 on Judicial Organization; in Hungary: see Art. 51(2) of the Act LXXVII on the Rights of National and Ethnic Minorities; in Austria: see Art. 7 (3) of the State Treaty of Vienna, in Slovakia: see Art. 2 (20) of the Criminal Procedure Code, Art. 18 and Art. 141 (2) of the Civil Procedure Code.164 See, for example, Art. 14 (5) of the Romanian Law no. 304/2004 on Judicial Organization.165 Art. 9 (2)(a), EChRML.166 In Italy: see Art. 14, 15, 20, 21 of Decree no. 574/1988 as amended by Decree no. 283/2001 and Decree no. 124/2005. In Slovenia: see Art. 5 of the Courts Act, Arts. 6, 7 and 9 of Criminal Procedure Act and Art. 60-69 of Court Rules (Official Gazette RS, No. 17/95).

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court in a minority populated municipality can be extended beyond the ethnically mixed

areas to a higher court. In Italy, the use of German in the proceedings of the Italian courts

is limited to the territory of the region Trentino-South Tyrol.

The right to use a minority language in the meetings of a local council/self government is

accepted, in principle, everywhere. In Austria the issue is still a matter of academic

debate.167 In Slovakia the legal guarantee is rather weak because local council may hold

proceedings in the language of the national minority if all present at the meeting agree.168

Sometimes the domestic legislation requires the fulfillment of certain conditions for the

exercise of this right. For instance, in Romania a minority language can be used in the

meeting of the local council if at least 1/5 of the councilors belong to the respective

minority.169

In all six countries the existing legal framework allows the public authorities to issue

documents of public interest, regulations and decisions taken in their procedures also in a

minority language. The text in the state language prevails whenever there is a matter of

interpretation. One may distinguish between two situations: compulsory bilingualism and

the use of the minority language only if there is a request in this sense. In the Italian

autonomous province of South Tyrol the rule is the separate use of Italian and German.

The exception is the so-called “joint use” of the languages and it regards the documents

intended for the general public, the documents issued to an individual but intended for

public use and the documents intended for more than one office.170 Moreover, all

provincial and regional laws and regulations have to be published in both languages.171 The

statutes of the ethnically mixed municipalities of Slovenia as well as their acts are made

167 Kolonovits makes a difference between the function of the municipal council as an administrative authority and as a representative body. For the first he considers the use of the minority language admissible while for the latter he is of the opinion that it falls in the area of “internal official language”, for which the use of the minority language is not foreseen according to Art. 13(5) of Minorities Act of 1976. Marko, on the other hand, argues that the exclusion of minority languages from the internal use is questionable from the constitutional point of view, particularly in light of the constitutional proclamation contained in Art. 8 (2) of the Federal Constitutional Act. For details, see Dieter Kolonovits, Sprachenrecht in Österreich: Das individuelle Recht auf Gebrauch der Volksgruppensprachen im Verkehr mit Verwaltungsbehörden und Gerichten, Manz, Wien, 1999, 157, fn 579 and Joseph Marko, “System des Österreichischen Volksgruppenrechts und Minderheitenschutzes”, in Gregor Heissl (ed.) Handbuch Menschenrechte, Facultas, Wien, 2009, 430. 168 Art. 3 (1) of Law no. 184/1999 on the Use of Minority Languages.169 Article 42 (2) of Law no. 215/2001 on local public administration (with subsequent amendments).170 Art. 100 (4) of the Autonomy Statute of 1972. 171 Art.57 (1) of the Autonomy Statute of 1972.

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public in a bilingual form.172 In Austria a decision issued only in a minority language has

no legal meaning therefore it has to be bilingual.173 The Italian special law on the

protection of Slovene linguistic minority stipulates that, upon request by the interested

person, the authorities shall draft the personal acts for public use both in Slovene and

Italian.174 Romanian law makes a distinction between the decisions of individual

character that shall be communicated, only at request, in the minority language and the

decisions of normative character that have to be published also in the minority language

in the municipalities where at least 20% of the population belongs to the respective

minority group.175 According to the Hungarian legislation, a local government must

publish its regulations and announcements in the language of the minority that lives in the

municipality if the minority self government so requests.176 Also the Slovak authorities

shall react upon request but they are obliged to offer only information on biding

regulations and “warning, protection and health notices”177 in the minority language as

well.

None of the six countries forbids the use of the minority language toponymy, street

names, signs on public bodies. However, certain cases show that some of the existing

legal frameworks are either incomplete or unsatisfactory for national minorities. To take

a paradoxical example, in the Italian autonomous province of South Tyrol only the Italian

place names are official although bilingual (or trilingual in the Ladins valleys) toponymy

is displayed everywhere. Despite decades of political and civic debates on this issue, the

use of minority languages place names remains a de facto and not de jure reality. The

political forces representing the two linguistic groups didn’t manage so far to reach an

agreement on a special law regarding toponymy in the province. In the autonomous

region of Valle D’Aosta the situation is different. With the exception of the capital city

which has a bilingual name, all other place names of Aosta’s municipalities are displayed

only French. In Romania and Slovakia there are municipalities with a significant minority

172 e.g. Art. 70 and 73 of the Statute of the Municipality of Lendava. 173 See on this Marko, “System des Österreichischen...”, 432, based on decisions of the Constitutional Court of Austria, Coll. 13850/1994 and of the Administrative Court, Coll. 11081 A/1983.174 Art. 8 of Law no. 38/2001 on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia.175 Art. 50 of Law no. 215/2001 on local public administration (with subsequent amendments).176 Art. 53 of Act LXXVII on the Rights of National and Ethnic Minorities.177 Art. 4 (2) and (3) of Law no. 184/1999 on the Use of Minority Languages.

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population but, however, below the 20% threshold therefore the authorities do not

implement the rules on bilingual toponymy.178 Sometimes even a lower threshold does

not help as the Austrian case shows. In the Land of Styria there is no

municipality/settlement with at least 10% Slovene inhabitants and as a consequence the

public authorities have never applied the legislation on the use of minority languages.

In none of the six countries the use of the minority languages family names is restricted

or forbidden. The same is true regarding official ceremonies, public events and

manifestations in minority languages.

As in the other fields, Slovenia has selected the strongest provisions of EChRML on the

use of languages for Italian and Hungarian.179 Austria and Hungary undertook, in general,

lower standards for their minority languages covered by Part III. As in the case of

education, Romania and Slovakia have not selected the same set of provisions for all

minority languages. Additional provisions were selected by both countries only for

Hungarian. However, there are also differences in their approaches: for instance,

Romania pledged to allow the administrative authorities to draft documents in this

minority languages and to make available administrative text and forms either bilingually

or in Hungarian180 while Slovakia did not chose these provisions.

VI. Economic Participation

Common to all countries under consideration is that legal provisions in the field of

economic participation of persons belonging to national minorities are quite scarce. The

Slovene Constitution contains a provision which grants the Hungarian and Italian

national communities the right to develop economic activities as well as the right to foster

relations with co-ethnics abroad and with their kin-states.181 In Italy, the Autonomy

178 We shall give as example the city of Cluj-Napoca (Kolozsvar) in Romania. According to the 2002 census, out of the total population, 18.86 % (meaning 60,287 persons) belong to Hungarian minority. In other words, thousands of people do not enjoy linguistic right in relation to public administration like bilingual toponymy. But 978 Hungarians who live 30 km away in the commune (municipality) of Căianu (Magyarkalyan) benefit from the existing legal framework because they amount to 39.08% of the total population of that commune. 179 e.g. Art. 9(1)(a)(b)(c)(d) and Art. 10(1)(a)(i), (b) and (c), EChRML 180 Art. 10(1)(b)(c), EChRML 181 Art. 64(1) of the Slovene Constitution.

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Statute of the region Trentino-South Tyrol – which has the rank of a constitutional law –

contains two provisions relevant for the field of economic participation of minorities. The

first foresees that the Italian Ministry of Industry, Commerce and Artisan Enterprise

assigns to the autonomous province of South Tyrol182 “quotas of the annual allocations

contained in the state budget for the implementation of state laws to finance increases in

industrial activity. The quotas shall be fixed following consultation with the Province and

take into account the sums allocated in the state budget and the needs of the population in

the Province concerned.”183 The second provision provides for the proportionate

representation of all linguistic groups in the public administration.184 Although the

Austrian constitutional legislation does not contain any explicit requirement of a

“preferential” treatment of persons belonging to national minorities in public

employment, such a requirement could be deduced from the combined reading of Art.

7(4) of the Vienna State Treaty185 and the constitutional value-judgment by the

constitutional legislature (Wertentscheidung des Verfassungsgesetzgebers) in favor of the

protection of minorities, which has been identified by the Constitutional Court: 186 it might

not be enough to treat members of minorities equally to members of other social groups,

but depending on the issue to be regulated, the protection of minorities might objectively

justify or even require privileging a minority in certain fields. In Romania, ordinary laws

require the employment of persons who speak minority languages in police forces and

public relations offices within the local public administration187 in the municipalities

where the minority population represents at least 20% of the total number of inhabitants.

Austrian and Slovenian legislation provides for financial incentives for civil servants

employed by public administration institutions responsible also for areas with minority

populations, who speak the respective minority language.188 In Italy, in the case of

182 The same rule applies also for the autonomous province of Trento. 183 Art. 15(1) of the Autonomy Statute of Trentino-South Tyrol.184 Art. 89 of the Autonomy Statute. 185 “Austrian nationals of the Slovene and Croat minorities in Carinthia, Burgenland and Styria shall participate in the cultural, administrative and judicial systems in these territories on equal terms with other Austrian nationals.”186 See VfSlg. 9224/1981. 187 Art. 79 of the Law no. 360/2002 on the status of the policeperson, Art. 76 (3) of Law no. 215/2001 on local public administration (with subsequent amendments) and Art. 91 of Law no. 188/1999 on the Status of the Public Servant (with subsequent amendments).188 See Art. 23 of the Austrian Minorities of 1976 and Art. 28 of the Slovene Salary System in the Public Sector Act of 2002.

34

Slovene minority, the legislator took into consideration the protection of historical-

cultural characteristics of a minority settlement area in the economic and urban

planning.189

In the field of private labor market, Slovenia offers a good example on how the economic

activity of a minority community can be fostered. By law it is foreseen that 2.5% of

proceeds coming from the transformation of company ownership shall be allocated to the

creation of the economic basis for the autochthonous ethnic communities. The money

thereby made available is used to give favorable loans to persons belonging to the

Hungarian and Italian national communities or legal entities in the majority ownership of

members of an autochthonous national community for investments in the development of farms, secondary activities on farms, co-operatives, small business, and for the investments in other production and service facilities in economy. The funds shall be proportionally divided between

the Hungarian and the Italian national community.190 One of the main aims of such

incentive for economic activities is to limit the emigration of members of ethnic

communities from ethnically mixed areas.191

All six countries have norms on non-discrimination, equal access to work, contracting

and conditions of employment.192 Such provisions are particularly relevant for the Roma

minority which in all Central and eastern Europe is severely affected by disadvantages

(also) in the field of economic participation. Hungary, Romania, Slovakia and Slovenia

have developed national strategies for Roma. As part of such strategy, usually the

authorities aim to implement specific programmes for the professional training of the

Roma people. Their plan of actions may include inter alia the support for young Roma

graduates in getting jobs and the curbing the unemployment rate of Roma by creating

incentives for entrepreneurs and enterprises that hire them.

189 Art. 21 of the Law no. 38/2001 on the Protection of the Slovene Linguistic Minority in the Region Friuli-Venezia Giulia.190 Art. 2 and 3 of the Regulation on Criteria, Conditions and Procedures of Allocating Funds for Creating the Economic Basis for the Autochthonous National Communities of 1997.191 First State Report submitted by the Republic of Slovenia pursuant to article 25, paragraph 1, of the FCNM, ACFC/SR(2000)004, para. 51.192 e.g. in Romania: see Ordinance no. 137/200 on preventing and sanctioning all forms of discrimination; in Hungary: see Act CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities; in Austria: see Equal Treatment Act BGBl. I no. 66/2004; in Slovakia: see Law no. 365/2004 on Equal Treatment in Certain Areas and Protection against Discrimination

35

For the ratification of EChRML, Austria and Slovenia followed different approaches

although both have comparatively small minorities. Whereas Austria undertook only to

facilitate and/or encourage the use of Croatian and Hungarian in Burgenland and Slovene

in Carinthia with regard to economic and social activities,193 Slovenia has accepted all

provisions under Article 13 of the EChRML for the Hungarian and Italian ethnic

communities. Hungary, Romania and Slovakia undertook to eliminate from their

legislation any provision prohibiting or limiting without justifiable reason the use of

regional or minority languages in documents relating to economic or social life (contracts

of employment, technical documents such as instructions for the use of products or

installation).194 Other specific provisions of Article 13 of the EChRML have been

accepted only by some of these three countries or with regard to only few of their

minority languages protected under Part III of the EChRML.195

Economic cooperation across the border can be fostered by the existence of kin-

minorities on both sides of the frontier. EU enlargement gave this phenomenon a new

dimension but even before the accession of Central and Easter Europe states to EU, the

cross-border cooperation was a matter of high interest in the region. These countries have

concluded bilateral agreements which inter alia aim to foster the economic development

of areas in which minorities live and to cooperate to that end. One of the most explicit

contractual provisions is the one contained in Article 7 of the Convention on Providing

Special Rights for the Slovenian Minority Living in the Republic of Hungary and for the

Hungarian Minority Living in the Republic of Slovenia,196 which stipulates that:

[t]he Contracting Parties undertake that, making plans on regional and

economic developments, they shall take into account the special interests of

the national minorities, and within the territories historically inhabited by

national minorities, they ensure economic and social development, that makes

possible the social and economic equality of national minorities.

193 Austria has only accepted Art. 13(1)(d), EChRML. 194 Art. 13(1)(a), EChRML.195 e.g. only Romania and Slovakia selected Art. 13(2) (c) EChRML and therefore undertook to ensure that social care facilities such as hospitals, retirement homes and hostels offer the possibility of receiving and treating in their own language persons using a regional or minority language. Romania selected this provision only for Hungarian and German languages. Slovakia selected this provision for all its minority languages protected under Part III of EChRML.196 The agreement was signed Ljubljana on 6 November 1992.

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The Contracting Parties in the interest of the national minorities shall support

all forms of trans-boundary co-operation, especially economic co-operation.

The Contracting Parties shall support such kind of regional economic

development which prevent the emigration of the inhabitants and the forcible

change of the ethnic composition of the population in territories historically

inhabited by national minorities.

The treaties on friendship and cooperation provide for economic cooperation in the

general provisions whereas in the minority specific provisions they foresee the right of

persons belonging to national minorities to effectively participate in economic life.197

The EChRML’s provisions on trans-frontier exchanges have been selected by all five

countries which ratified it.198

VII. Political Participation

There are different ways in which the participation of persons belonging to national

minorities in public affairs, in particular those affecting them, can be ensured. One

possibility is to provide for their representation in elected bodies, at national, regional

and/or local level, another one is to establish consultation mechanisms and a third one is

to provide for cultural or territorial autonomy. This comparative legal study shows which

approaches have been chosen by the states under consideration.

A. Minority representation in elected bodies

Only in the Slovak Republic and in Austria, there are no legal provisions that would

introduce a special mechanism to facilitate or ensure the representation of persons

belonging to minorities in elected bodies. In Slovakia, the large Hungarian minority

manages to obtain mandates in the parliament and in the elected bodies at local level

without such a mechanism. The other national minorities living in the Slovak Republic

are small and for them it is difficult to gain any representation. The situation is similar in

Austria, where minorities represent a small percentage of the population at national and

197 See, for instance, Art. 15(5) of the bilateral agreement between Hungary and Romania.198 Art. 14(a) and/or (b), EChRML.

37

Länder levels and where the legal system does not foresee any special right of persons

belonging to national minorities to be represented in elected bodies of the federation or of

the Länder.199 Hungarian Constitution foresees that the “laws of the Republic of Hungary

ensure representation for the national and ethnic minorities living in the territory of the

country”.200 This is further specified by the framework law on minorities which stipulates

that “[m]inorities have the right – as determined in a separate Act – to be represented in

the National Assembly.”201 This “separate act” has, however, never been adopted. The

Romanian legal system guarantees the representation of one organization per national

minority (the one which has obtained the largest amount of valid votes among the

organizations of the same minority) in the parliament as long as their share of the votes in

the elections is at least 10% of the average number of validly cast votes in the entire

country necessary for the election of a deputy (in local elections 5% of the total number

of valid votes expressed in the respective electoral district).202 The large Hungarian

national minority living in Romania doesn’t not need this special provisions.203 Minority

organizations that are not represented in parliament have to fulfil certain conditions in

order to have the right to participate in the electoral process.204 Although these conditions

may be seen as an attempt to stop the so-called “minority election business”, it can be

argued that they are too restrictive and in fact they create a disadvantage for organisations

of national minorities which are not already represented in the parliament. A specific

feature of the Romanian system is that only the minority organisation represented in

parliament receives the state funds allocated annually by the government to the respective

national minority. Therefore, these organizations which have parliamentary

representation are very seldom critical towards governmental policies and initiatives. In

addition, some of the MPs of small minorities do not really use efficiently their

parliamentary rights and are not active enough as representatives of their minority group

199 There is, however, a strong wish e.g. from within the Slovene minority living in Carinthia, to introduce a special mechanism that would allow for their representation in the assembly of Carinthia.200 Art. 68(3) of the Hungarian Constitution.201 Art. 20(1) of the Act LXXVII of 1993 on the rights of national and ethnic minorities. 202 Art. 62(2) of the Romanian Constitution; Art. 9 (1) and Art. 47 (4) of Law no. 35/2008 on the election of Chamber of Deputies and Senate; Art. 96 (1) and (4) of Law no. 67/2004 for election of the local public administrative authorities (as republished in 2007).203 The party representing the interests of Hungarian minority has won 31 parliamentary seats in the last elections held on 30 November 2008. 204 See Article 9 (3) and (4) of Law no. 35/2008 on the election of Chamber of Deputies and Senate.

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in the national legislative body.205 “The higher electoral thresholds introduced after 2000

had a negative impact on the number of minority representatives in the local councils,

and with the exception of Hungarians and Germans, the minorities disappeared from the

county councils.” The special regulation meant to ensure minority representation in local

elected bodies is far from being efficient. On the contrary, it is “unable to counteract the

underrepresentation of minorities” and “it can even deprive them of some seats they

would have obtained, had they been treated like the political parties.”206

In Italy, a similar conditioned guaranteed representation in the regional assembly of the

region of Friuli Giulia Venezia is foreseen for a party representing the Slovene minority.

Such a party that alone couldn’t make it to the assembly, can be represented in the

regional assembly under the condition a) that it makes a coalition with another party that

enters the assembly and b) that it receives at least 1% of the votes region-wide. The

Slovene party gets therefore an “exemption” from the higher thresholds required by other

parties.207 In the province of South Tyrol, the Autonomy Statute provides for a guaranteed

representation of the Ladin linguistic minority in the provincial assembly. Other legal

provisions further foresee that the composition of the Provincial Government must reflect

the numerical strength of the linguistic groups as represented in the Provincial Assembly.

The Ladin linguistic group may be given representation in the Provincial Government,

even derogating from proportional representation.208 A guaranteed representation in the

parliament is also foreseen for Hungarian and Italian ethnic group living in Slovenia (and

for Roma at local level). 209 A specific feature of the Slovenian system is that members of

these minority groups have a double voting right: one vote they cast for the election of

representatives equally to all other Slovene citizens, and one for the election of the

representative of their community. The procedure for the election of these minority 205 For details see Ciprian-Calin Alionescu, “Parliamentary representation of minorities in Romania”, 5(1) Southeast European Politics Online (June 2004), 69. The paper is available online at http://www.seep.ceu.hu/archives/issue51/alionescu.pdf (visited on 30 November 2010).206 Székely István Gergő, “The political representation of national minorities in Romania” in Working Papers in Romanian Minority Studies, no. 20/2009, Romanian Institute for Research on National Minorities, Cluj-Napoca, 2009, 3. The paper is available online at http://www.ispmn.gov.ro/uploads/szekely20.pdf (visited on 30 November 2010) 207 Regional Law no. 17/2007 on the definition of the form of government of the region Friuli Venezia Giulia and of the regional electoral system and Regional Law no. 28/2007 on rules of procedure for the election of the president of the region and the regional assembly.208 Art. 48(2) and Art. 50(2-3) of the Autonomy Statute of 1972.209 Art. 64(3) and Art. 80(3) of the Slovene Constitution; Art. 39(5) of the Law on Local Self-Government, Art. .

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representatives is regulated in detail in the National Assembly Elections Act.210 The double

voting right for members of the Hungarian and Italian national community has undergone the

scrutiny by the Constitutional Court with regard to its compatibility with the principle of

equality before the law. The Court came to the conclusion that based on the international

obligations that Slovenia has entered and in particular based on the provisions of the

Constitution, “such ‘positive discrimination’ is not constitutionally impermissible, but quite

the contrary – the Constitution requires of the legislator that he implement such measures in

the legislation”, even if this represents a “departure from the principle of equality of voting

rights.”211 Art. 64(5) of the Slovene Constitution contains the rule that no statute,

regulation or other legislative enactment, “which 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 … be enacted without the

consent of the representatives of the ethnic community or communities affected.”

Minority representatives have criticized this provision for providing the veto only for

those acts that “exclusively” affect ethnic communities but not for individual articles, if

they are part of more general laws.212 Others, instead, have criticized the fact that the

mandate of the two minority representative in the National Assembly has not been

restricted to deciding only on those questions which refer to the national communities.

The Constitutional Court was asked to examine this question and rejected the complaint

because it found that the extent of the mandate of minority representatives did “not

encroach directly on the rights, legal interests or legal position of the initiators”.213

B. Consultative mechanisms

If a minority is too small for representation in elected bodies or such representation is

impossible for other reasons, it is all the more important to provide for other mechanism

by which a minority can make its voice heard. One such possibility is the establishment

of a consultative mechanism. All countries under consideration have advisory bodies on

210 See Art. 8, Art. 17 (2), Art. 20 (3) and (6), Art. 23 (2), Art. 33(5), Art. 37 (3), Art. 39 (2), Art. 45, Art. 74., Art. 84 (2) of the National Assembly Elections Act. . 211 Decision of the Slovene Constitutional Court U-I-283/94, para. 35. 212 Maurizio Tremul, “I diritti della comunità nazionale italiana in Slovenia”, Presentation at the Conference on the Protection of Minorities, Trieste, 29-30 March 2001, 19. 213 Decision of the Slovene Constitutional Court U-I-283/94, para. 29.

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minority issues.214 They differ very much in terms of composition and mandate. While

some are composed by minority representatives only, most of them have also a strong

presence of governmental officials or are even established as a governmental office. They

all are involved to varying degrees in the proposal and commenting on legislative

initiatives and in the distribution of funds for activities of minority organizations. The

most influential amongst the one studied, is the so-called “Commission of Six”215

established in the Italian autonomous province of South Tyrol. Although being conceived

as a consultative body to the Italian government with regard to the implementation of the

Autonomy Statute of 1972, it developed more and more into the decision-making body.

As a matter of fact, the government has never overruled a position of this commission.

The issues of composition and mandate, together with the appropriate financing of these

bodies seem to be the most problematic issues that the majority of the consultative bodies

concerned have to deal with.

C. Cultural and territorial autonomy arrangements

Autonomy is an issue of great interest for various minority groups in all six countries

concerned. Its content, advantages and limits are debated not only where it is already

granted, either in the form of territorial autonomy (i.e. South Tyrol in Italy) or in the form

of cultural autonomy (e.g. in Hungary or Slovenia) but, in particular, in countries where

large and/or politically active national minorities aim to achieve it.

South Tyrol is perhaps the best known example of territorial autonomy. A complex

system of checks and balances makes sure that the German-speaking population, which is

in the majority in the province, is “forced” to share the power with the other two

linguistic groups living on the territory of the province. The three linguistic groups are

214 Minority Advisory Councils in Austria; Department of National and Ethnic Minorities within the Prime Minister’s Office as well as Minority Self-Governments in Hungary; Commission of Six in Italy (South Tyrol); Council of National Minorities in Romania; Council of National Minorities and Ethnic Groups in Slovakia; Minority Self-Governments in Slovenia. 215 The “Commission of Six” consists of three members that are nominated by the state – two belonging to Italian linguistic group and one belonging to the German linguistic group – and three members nominated by the Provincial Assembly – two belonging to German linguistic group and one to the Italian linguistic group. Therefore a double parity is reached in this body: between the two linguistic groups and between the state and the province. For more details on the Commission of Six see Francesco Palermo, “Implementation and Amendment of the Autonomy”, in Jens Woelk, Francesco Palermo and Joseph Marko, Tolerance through Law Tolerance through Law: Self Governance and Group Rights in South Tyrol, Martinus Nijhoff Publishers, Leiden, Boston, 2008, 143-159, at 144-152.

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given extensive rights in the field of language and education. As a result of the

autonomous status, the province has primary legislative and administrative competence in

such important fields such as town planning; protection of the countryside; artisanry;

housing; prevention and emergency measures in the event of public disasters; roads,

aqueducts and public works in the province; communications and transport; tourism and

the hotel industry; agriculture, forests and forestry personnel; public assistance and

welfare – to just name a few. To be able to fulfill its tasks, the province has a yearly

budget of about five billion Euro with total autonomy of expenditure.

The example of South Tyrol is often made by the proponents of territorial autonomy in

order to show that such constitutional arrangement does not necessarily lead to secession,

an argument which is very often used by those that oppose it. In Romania, the autonomy

is a very topical question and one of the few issues on which Romanian political actors

have the same opinion. Regardless their ideological orientation, all Romanian politicians

reject the idea of a territorial autonomy based on ethnic criteria. The debate on the

autonomy has led to a split within the Hungarian political elite in Romania. Part of it

advocates for territorial autonomy as the only solution for the problems of the Hungarian

minority in Szeklerland,216 while the other part is more moderate and tries to pursue an

approach which places other issues, such as language rights, education in the mother

tongue etc on top of the political agenda, without hiding, however, the aspiration for

territorial autonomy. In the last general elections of 2008 most of the ethnic Hungarian

electorate voted for the moderates. In Slovakia, the Hungarian minority proposed in the

mid 1990s the establishment of a Hungarian administrative region (or three regions out of

this one) in which Hungarians would have the majority but the Slovak political elite

rejected immediately the proposal. In the last years the debate on autonomy was

overshadowed by the harsh dispute on the use of minority (and state) language. In the

2010 elections many ethnic Hungarians voters abandoned the party that has represented

the minority since 1990s and sent in the parliament a newly established multi-ethnic

political force which aims to represent not only Hungarians from Slovakia but all citizens

of the country regardless their ethnicity.

216 Szekleland is a historical region in the center of Romania which covers the present-day Covasna/Kovászna, Harghita/Hargita and (partially) Mures/Maros counties.

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VIII. Conclusions

This comparative legal study confirms that despite their differences in terms of historical

development, constitutional construction and institutional arrangements, the Central and

Eastern European countries under consideration have encountered similar problems and

are facing common challenges when it comes to protection of their

national/ethnic/linguistic minorities. Most of European standards in this field emerged

after the fall of the Iron Curtain and few will dispute the claim that, especially in the

former communist states, they played an essential role in shaping the national legal

frameworks and public policies. The amount of existing domestic norms and regulations

dealing with minority rights in these six countries is impressive and a comparative

analysis covering the whole Central and Eastern Europe is a rather complex undertaking.

Such comprehensive legal studies on key areas like culture, education, use of minority

languages, participation are essential for the correct understanding of past, present and

future situation of minority groups at sub-national, national and supra-national levels. It

should be emphasized that our comparative analysis of domestic legislations is followed

by an in-depth evaluation of the implementation on the ground and its effects. In other

words, our approach is to look both at the letter and the spirit of the law. To sum up,

what are the main conclusions that can be drawn from this overview?

In the field of culture, each of the six countries under consideration have developed

specific mechanisms meant to support their national/ethnic/linguistic minorities and to

preserve and promote their distinct cultural identity. This is an area in which minorities

enjoy, in general, a broad autonomy and the main role of public authorities at

central/regional/local level is to provide the necessary financial resources. The public

institutions in charge are quite different from country to country but it is rather a common

rule that the allocation of funds to minority groups is proportional to their size. Important

aspects related to minority culture are regulated through bilateral treaties/agreements and

provisions of EChRML which became part of domestic legislation after ratification.

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Mass-media is an area in which there is definitely space for improvement of the national

legislative frameworks. Thinking about the controversial new Hungarian media law, one

might argue that such conclusion does not come as a surprise in the case of some of the

former communist states but, as a matter of fact, the comparative analysis shows also

certain problems common to all six countries. For example, their laws are similarly vague

concerning the amount of time and resources to be dedicated to minority language

programmes. Moreover, is it obvious that regulations regarding representation of

minorities in media supervision bodies are rather weak in all countries with the exception

of Slovenia. A positive aspect in this field is that all six countries support (to various

degrees) minority language printed media and encourage the cross-border cooperation

with media organizations from kin-states, as well as information and programmes

exchange.

Education is essential for preservation and development of national/ethnic/linguistic

identity and the right of persons belonging to minority groups to receive instruction in

their mother tongue or, at least, to study their own language, history and traditions

represents one of the pillars of any system of minority protection. All six Central and

Eastern European countries have developed broad and detailed packages of norms in this

field and the case-laws of their Constitutional Courts confirm that many legal issues

regarding minority education are still contentious. While instruction in private

schools/universities do not raise any particular problems in the region, the main issues of

concern regard the accommodation of minority needs by the public education system.

The comparative legal study shows that in certain circumstances children belonging to a

minority group cannot chose between a monolingual or a bilingual school. This may

happen because of the existing regulations or, on the contrary, due to a legislative

vacuum. As regards education at university level, four countries with small mutual

minorities have opted for specific bilateral mechanisms aiming to support members of the

respective minorities to study in their kin-states. State higher education institutions with

instruction in minority languages exist only in Romania and Slovakia. Education for

Roma minority represents a common matter of concern in Central and Eastern Europe but

from the point of view of national regulations and policies, the approaches followed by

these six states are quite diverse. It is hard not to overemphasize the negative example of

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Italy which did not officially recognized yet Roma minority. Of note are also the anti-

segregation and affirmative action measures adopted by some of the former communist

countries. However, one may argue that, in general, the domestic norms dealing with

Roma education are too dispersed in various laws and therefore they lack a

comprehensive perspective.

The use of minority languages in relation to public authorities is a constitutional principle

in all countries under consideration. The national/federal/regional/local regulations

determine the territorial scope of application and the authorities concerned, as well as the

linguistic rights guaranteed. This argument deserves particular consideration because the

“strength” of the domestic legal provisions varies from case to case. For instance, the

Slovak and Austrian norms do not require the employment in public administration of

civil servants who speak minority languages but Romanian law it does. Comparing the

autonomy statutes of Italian regions Trentino-South Tyrol and Valle D’Aosta, we see that

these different rules exist even within the same country. In general, the legislators in

Central and Eastern Europe have addressed very carefully the issues related to the use of

minority languages in relation to public authorities. However, problems still exist due to

legal inaccuracies, inconsistencies and/or lack of clear implementing laws. Illustrative

examples in this sense are the controversy over language legislation in Slovakia, the

unresolved issue of the official bilingual toponymy in the Italian autonomous province of

South Tyrol, the debates on the use of minority languages in Austria, the paradoxical

consequences of the 20% threshold in Romania.

In the field of economic participation, the legal provisions are quite scarce in all six states

under consideration. However, Slovenia is singled out by its regulations aiming to foster

the economic activities of minority communities. In addition, it is significant that

Slovenian (and Austrian) legislation provides for financial incentives for civil servants

who speak minority languages. The proportional representation of persons belonging to

minorities in public administration is legally guaranteed by the autonomy statute of

South Tyrol. All six countries have passed specific norms dealing with anti-

discrimination and equal access to work. They are particularly important for Roma

minority which in the four ex communist countries is supported also through the

economic participation component of national strategies aiming to improve the conditions

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of Roma people. National minorities with a kin-state may play an important role in the

development of trans-frontier economic activities. Some of these countries have

concluded bilateral agreements which aim inter alia to foster the economic cooperation in

the border areas where minorities live.

Political participation of national/ethnic/linguistic minorities is ensured mainly by

representation in elected bodies at national/regional/local level and/or establishment of

consultation mechanisms and/or cultural/territorial autonomy arrangements. Slovakia and

Austria are the only countries among those under consideration that have no legal

provisions that shall facilitate the representation of minorities in elected bodies.

Hungarian legislation proclaims the principle but it lacks the implementing regulation.

The cases of Romania and Slovenia show that two key elements of special mechanisms

which guarantee minority representation are the non-discriminatory character of their

legal conditions and their effectiveness. All six countries have established various types

of consultative bodies on minority issues. Their influence on shaping the minority

protection related domestic legal framework depends very much on the composition, the

mandate and the financing of these institutions. Cultural autonomy arrangements are

included in various national regulations into force in Central and Eastern Europe without

necessarily being called this way. Separate provisions are included in various laws

dealing with culture, education, media etc. The territorial autonomy is not an issue of

concern for those states which have only small minorities but it remains a controversial

concept in Romania and Slovakia. Due to historical reasons and present factors (e.g. the

size and the political strength of Hungarian minority) the debate on territorial autonomy

will remain quite high on the public agenda of these countries, especially in the context of

future constitutional reforms.

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