Doc. 12109

20 January 2010

Minority protection in Europe: best practices and deficiencies in implementation of common standards

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Boriss CILEVIČS, Latvia, Socialist Group

Summary

Ensuring that minorities are treated fairly has been one of the Council of Europe’s key priorities, and it was hoped that its two pioneering treaties in this field, the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages, would quickly become universally accepted standards throughout Europe.

Yet eleven years after it came into force, eight member states of the Council of Europe have still not ratified the Framework Convention – and even in those that have, restrictive declarations and reservations sometimes hinder its operation.

The Committee on Legal Affairs and Human Rights believes it is time all member states signed up to these standards, yet even in those that have done so, problems persist: national authorities are sometimes failing to make sure local authorities do their duty; narrow definitions are used which exclude certain ethnic groups or discriminate between minorities; and policies change with the political winds.

States that have not yet ratified these two instruments should do so, and in any case should respect, in practice, the main principles stemming from these and other instruments of international law promoting tolerance and inclusiveness towards minorities. Those that have ratified the Framework Convention need to improve its application, clarifying the division of tasks between national and local levels, and adopting good practices where they can. Contented minorities, playing a full part in the life of the nation, are in the interest of all.

A.       Draft resolution

1.       The Parliamentary Assembly stresses the fundamental importance of the protection of persons belonging to national minorities, as an integral part of the international protection of human rights, for equality, justice, stability, democratic security and peace in Europe.

2.       The Assembly recalls its Recommendations 1492 (2001), 1623 (2003) and 1766 (2006), concerning the rights of national minorities and pays tribute to the fundamental role which the Framework Convention for the Protection of National Minorities (ETS No. 157) and the European Charter for Minority or Regional Languages (ETS No. 148) have played over the past few years in improving the protection of national minorities in Europe and promoting their rights.

3.       Unfortunately, these two instruments have not yet become universally accepted standards throughout Europe, as some Council of Europe member states have not yet ratified them.

4.       To date, four states – Belgium, Greece, Iceland and Luxembourg – have signed the Framework Convention but have still not ratified it, and four others – Andorra, France, Monaco and Turkey – have neither signed nor ratified it. The Assembly reiterates its call upon the above-mentioned states to sign and/or ratify the Framework Convention as soon as possible, without reservations or restrictive declarations, deploring the lack of progress in this respect since the adoption of its last recommendation in 2006.

5.       The Assembly also regrets that the reservations and restrictive declarations formulated by states which have already signed and/or ratified the Framework Convention have not been revoked and asks again those states to do so.

6.       The European Charter for Minority or Regional Languages has so far been ratified by 24 states. Another nine states have signed it, some of which are expected to ratify soon. But to date, almost half of the Council of Europe’s member states have not yet fully subscribed to this legal instrument.

7.       The Assembly recalls in this context that the principle of equality and non-discrimination constitutes a fundamental human right which has been enshrined in the Framework Convention (Article 4). The Assembly strongly deplores the fact that only 17 Council of Europe member states have ratified Protocol No. 12 to the European Convention on Human Rights (ETS No. 177) and only 20 have signed it. Significantly, two member states – France and Monaco – have not yet signed either the Framework Convention or Protocol No. 12. Therefore, the Assembly reiterates its call upon the states which have not yet done so to sign and/or ratify Protocol No. 12 as soon as possible.

8.       The Assembly reiterates its position that the protection of persons belonging to national minorities is essential to the guarantee of full and effective equality of all people, the preservation of social and political stability and democratic security, to the prevention of social tensions and the promotion of the diversity of cultures and languages in Europe.

9.       The Assembly welcomes the progress which has been accomplished in the protection of persons belonging to national minorities in the eleven years following the adoption of the Framework Convention, in those member states which have ratified it. It notes in this context that the Framework Convention is a “document of principles”, and practical methods of implementing these principles may vary widely from country to country. In the course of monitoring the compliance of state parties with the provisions of the Framework Convention, its advisory committee has accumulated an extensive array of relevant data.

10.       The Assembly considers that it would be useful to disseminate as broadly as possible best practices in implementing the Framework Convention by state parties in order to offer guidance to all member states wishing to overcome difficulties and to further improve the protection of persons belonging to national minorities and respect for diversity in their societies.

11.       That said, the Assembly notes that in some states which have ratified the Framework Convention the situation of national minorities is still very far from ideal. Although the implementation of the Framework Convention has entailed the adoption of new and effective solutions in this field, there have been many deficiencies and failures in ensuring adequate protection of persons belonging to national minorities. In some states the process of implementation of the Framework Convention has brought about not only good practices but also serious problems. In particular:

      11.2.       The state of implementation of the Framework Convention also varies from state to state according to the degree of decentralisation. In certain states the transfer of competences to local authorities in the field of minority protection has entailed the deterioration of the latter. The advisory committee of the Framework Convention has identified a number of problems in this area:

12.       On the other hand, the Assembly notes, following the findings of the advisory committee of the Framework Convention, that numerous state parties have provided good examples in implementing the latter. For instance:

13.       In this context, the Assembly recalls that, according to Article 27 of the Vienna Convention on the Law of Treaties, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Therefore, the Framework Convention provisions apply to all state bodies without limitations or exceptions, irrespective of the federal, centralised or decentralised structure of the state.

14.       The Assembly recalls, therefore, that state parties, and more precisely their central bodies, are accountable for the proper implementation of the Framework Convention by local and regional authorities, irrespective of the division of competences between them in national law.

15.       The Assembly also notes that the personal scope of application of the Framework Convention still raises serious problems. This is certainly due to the lack of definition of national minorities in the Framework Convention itself, which leaves a wide margin of appreciation to the state parties. However, this should not lead to arbitrary or discriminatory distinctions between individuals belonging to different minorities. The following issues arise in this respect:

16.       The Assembly also emphasises the importance of a state party’s obligation to create the conditions necessary for effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them (Article 15 of the Framework Convention). Especially, participation in public affairs should include not only participation in the elected bodies but also in the executive branch and the civil service. The lack of participation in this area is closely related to the lack of participation in socio-economic life and vice versa, which may be best illustrated by cases of socio-economic exclusion.

17.       Concerning member states which have not yet ratified the Framework Convention, the Assembly recalls that they are nevertheless bound by other instruments of international law, including the political commitments on minority standards of the Organisation for Security and Co-operation in Europe, in particular the Copenhagen Document of 1990, and other conventions of the Council of Europe (in particular the European Convention on Human Rights and the European Social Charter). However, practice shows that, even on this basis, the rights of persons belonging to national minorities are not always properly implemented.

18.       Consequently, the Assembly calls upon all member states to:

19.        Specifically concerning states which have ratified the Framework Convention for the Protection of National Minorities, the Assembly calls upon them to ensure its proper implementation in a spirit of understanding and tolerance, and in conformity with the principles of good neighbourliness, friendly relations and co-operation between states (Article 2 of the Framework Convention). Therefore it urges those states in particular to:

B. Draft recommendation

1. Referring to its Resolution ….(2010) the Parliamentary Assembly recommends that the Committee of Ministers:

2. Moreover, recalling the necessity of ensuring the proper implementation of the Framework Convention according to the principles enshrined in its Article 2, the Assembly recommends that the Committee of Ministers:

C.       Explanatory memorandum, by Mr Cilevičs, rapporteur

Contents:

Page

I.       Introduction       6

      i.       My mandate       6

      ii.       Aim of this report       7

II.       Obligations of the local and regional authorities under the Framework Convention       8

III.       Continuity of minority policies following a change of government/ruling parties        11

IV.       Limits to the application of the Framework Convention in Europe        14

V.       Effective participation of persons belonging to national minorities in cultural, social

      and economic life and public affairs       21

i.       Second thematic commentary of the advisory committee       21

VI.       Concluding remarks       22

Appendices        23

I.       Introduction

i.       My mandate

1. The present report stems from a motion for a recommendation on minority protection in Europe: best practices and deficiencies in implementation of common standards (Doc. 11261 rev.) which I tabled with other members of the Assembly. On 27 June 2007, the Committee on Legal Affairs and Human Rights appointed me as rapporteur.

2. In the framework of this broad mandate I intend to study a number of cases, including long-standing issues of contention. Some of them have already been mentioned in the motion referred to above; others have been raised in other motions referred to the Committee on Legal Affairs and Human Rights in the meantime.1

3. Nevertheless, in this context, I should also specify that I will not deal extensively with issues currently covered by other reports dealt with by the committee, namely:

– “The European Charter for Regional or Minority Languages” (rapporteur: Mr Berényi, Slovak Republic, EPP/CD);

–       “The Freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (Western Greece)” (rapporteur: Mr Hunault, France, EDG); and–

–       “The situation of Roma in Europe” (rapporteur: Mr Berényi, Slovak Republic, EPP/CD).4.

4. Consequently, my report focuses on the implementation of principles of the Framework Convention for the Protection of National Minorities rather than on the European Charter for Regional or Minority Languages.

ii.        Aim of this report

5. Most recent Assembly reports concerning national minorities focused on the standards pertaining to minority protection in Europe,2 and more particularly on the Council of Europe’s two main instruments in this respect: the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. Although very different in nature, these two mutually complementary instruments are crucial for building a Europe based on universal values: substantive equality and non-discrimination on the one hand, and preservation and promotion of cultural and linguistic diversity on the other. The Framework Convention has become the first ever legally binding instrument on minority rights, and the European charter has become the first ever legal instrument to protect languages. Other relevant standards set, in particular, by the European Convention on Human Rights and the case law of the European Court of Human Rights, will be referred to in the chapters below.

6. The period of standard setting is probably over for a while, so emphasis now needs to be placed on proper implementation of existing standards. Both the Framework Convention and the European charter provide for a review mechanism of their implementation, involving independent bodies: the advisory committee for the Framework Convention and the committee of experts for the European charter.3

7. On 11 March 2008, I represented the Assembly at the international conference entitled “Ten years of protecting national minorities and regional or minority languages: institutions and impact” which was organised under the auspices of the Slovak Presidency of the Council of Europe Committee of Ministers to mark the 10th anniversary of the entry into force of the Framework Convention and the European charter, on 1 February and 1 March 1998, respectively. On this occasion, I stressed that, on the one hand, a lot has been achieved in terms of minority protection in Europe, and on the other that amazing creativity has been demonstrated across Europe to avoid fair implementation of the principles of minority protection, and even to avoid undertaking any clear-cut legal obligations in this respect.

8. However, in general, the acceptance of international scrutiny of minority policies and practices has become more widespread, with the Framework Convention affirming its position as the main legal yardstick in Europe. Most countries today recognise the positive contribution of national minorities to their societies and the value of the Framework Convention as an objective legal standard and a tool for countering extremist positions, although anti-minority rhetoric still remains all too common in Europe, especially around election time.

9. Over the years, the monitoring procedures conducted by the advisory committee and the committee of experts have produced a broad array of valuable data on practical successes and issues for concern.

10. For the Assembly, the political aspect of these data is of particular interest. Indeed, for parliamentarians it is essential to single out the most essential decisions of a political nature which have a crucial impact on the implementation of minority standards.

11. Therefore, this is not meant to be a monitoring report, as it does not aim to evaluate minority situations in particular countries, but rather strives to determine, through, inter alia, a “case study”, the most crucial and potentially controversial areas of political decision-making affecting the implementation of the standards of minority protection.

12. Four areas in particular can be singled out:

• obligations of the local and regional authorities under the Framework Convention (taking into account the autonomy of the local and regional authorities, particularly in federal states);

• the continuity of minority policies following a change of government;

• the scope of application of the Framework Convention;

• the effective participation of persons belonging to national minorities in cultural, social and economic life and public affairs.

13. On 10 March 2009 in Monaco, the Sub-Committee on Rights of Minorities held an exchange of views with Mr Asbjřrn Eide, former president of the advisory committee, and with Mrs Snjezana Bokulic, Minority Rights Group Europe (Budapest). I am most grateful for the information provided by the experts on the four areas mentioned above, which also highlights issues of concern and further challenges, in these fields, as well as successes and best practices which could offer guidance to other member states and further improve the protection of minorities in Europe.

II.       Obligations of the local and regional authorities under the Framework Convention

i.       Overview of the situation across Europe

14. The obligations resulting from the Framework Convention are binding on every state party as a whole. Actions or omissions of all branches of government (executive, legislative and judicial) and other state authorities, irrespective of their level (national, regional or local), may engage the responsibility of the state party.

15. According to Article 27 of the Vienna Convention on the Law of Treaties,4 a state party “may not invoke the provisions of its internal law as justification for its failure to perform a treaty …”. Therefore, the executive branch, which usually represents state parties at international fora (including before the advisory committee and the Committee of Ministers), may not validly argue that an action incompatible with the provisions of the Framework Convention has been carried out by another branch of government as a means of seeking to relieve the state party from its responsibility for the action and hence its incompatibility with the Framework Convention. The provisions of the Framework Convention are binding on all authorities, irrespective of the constitutional order of the state party as a federal or centralised state, without limitations or exceptions.

16. Local and regional authorities are therefore obliged to implement the Framework Convention, like any other legally binding international instrument.

17. On some occasions, however, the advisory committee has observed that whereas appropriate measures had been taken at the national level, local authorities sometimes failed to act properly.

18. Decentralisation is often considered as a solution for solving several problems related to the protection of minorities. Indeed, in a number of cases it has had a positive impact. However, the advisory committee has also observed that in practice decentralisation does not always entail an improvement of the situation of minorities. Very often a shift of competences in the field of minority protection towards local authorities has resulted in weaker protection of minority groups and increased their difficulties.

19. Three types of issue have been identified by the advisory committee with regard to the role of local authorities:

20. There are also examples of positive actions taken by local authorities: the system of self-government in Hungary has had a number of positive consequences for the empowerment of minorities and increasing their role in society as a whole, although its impact is still limited by a number of drawbacks. The setting up of institutions to deal with minority issues at the sub-national level, for example the Ombudsperson for minorities in Schleswig-Holstein in Germany, may also be a useful tool in practice. Another positive example of the German authorities’ actions: in the Rhineland Palatinate, the Land Government decided to recognise the Roma (Sinti) as a national minority at the Land level, which afforded them not only official recognition, but also more opportunities to develop their activities. Furthermore, in Spain, the Government of Andalusia has long been active in promoting equal opportunities for Roma, making it a forerunner in minority protection issues before the central authorities. In the Russian Federation, some of the subjects of the Federation have enacted additional legal guarantees to strengthen minority groups’ protection.

21. In its recommendations made during the first and second cycles of monitoring, the advisory committee consistently reminded the state parties (i.e. their central authorities) that they were accountable for the implementation by the local/regional authorities of the provisions of the Framework Convention. The advisory committee also reiterated that, as a consequence, they should take all the necessary measures to ensure proper implementation of the Framework Convention. Moreover, it stressed the regulatory role of the state in implementing policies and measures to protect minorities, especially by ensuring consistency in the legislation and implementation of policies throughout the territory. It also recalled the necessity of providing equal opportunities for all persons belonging to minorities, irrespective of their place of residence. The advisory committee also called for more clarity in the division of competences between the central and local authorities in areas affecting national minorities.

22. In her report on Greece, the United Nations independent expert on minority issues considered that “[t]he government must ensure that national policies are not subverted or defied by local authorities who find it more convenient to be responsive to local prejudices. With respect to international legal obligations including rights of non-discrimination and equality, domestic constitutional arrangements such as decentralised authority or devolution of powers, do not mitigate state responsibility for violations of human rights. The government should consider models which recognise the principle of national government pre-emption of local authority in matters of compelling state interest such as fundamental rights. Alternative models deny funding to non-compliant localities. The European Commission against Racism and Intolerance (ECRI) has recommended sanctions “on municipal councillors who make racist remarks or do not comply with the regulations and decisions that bind them”.6 The government must display a stern political will that localities have no option other than to comply with positive national policies. National ministries must then effectively monitor implementation on the local level7 (see also details of the case study on Greece below).

ii.       Case study: Austria (Carinthia)

23. The legislative framework for the protection of minority rights is well developed in Austria. As stressed by the advisory committee and the Council of Europe’s Committee of Ministers,8 since 2004 Austria has significantly strengthened its anti-discrimination legislation at both federal and Länder level, and the new legal guarantees are reinforced by the setting up of a new institutional framework to tackle discrimination, including on grounds of ethnicity. Further efforts have been made to improve community relations, promote the integration of immigrants and expand intercultural dialogue in society. Measures have also been taken to enhance the preservation and development of the cultural heritage and identity of persons belonging to the Slovene minority in Styria, and to further improve the system of bilingual education in Carinthia and Burgenland. Finally, the new Austrian Broadcasting Corporation Act (ORF) has widened possibilities for broadcasting in the national minority languages, and valuable initiatives regarding cross-border co-operation on issues related to national minorities continue to be developed.

24. However, the advisory committee noted shortcomings in the implementation of this legislation, at both federal and local level, in particular with respect to the use of minority languages in relation to the administrative authorities and bilingual topographical signs.9

25. On 9 and 10 June 2008, I carried out a fact-finding visit to Austria (Vienna and Klagenfurt in Carinthia; see Appendix I) focusing on the issue of bilingual (i.e. in German and Slovenian) topographical road signs in the federal province of Carinthia, which affect the Slovene minority. Regrettably, despite several requests, there was no meeting with representatives of the regional government during this visit.

26. As already stressed both by the advisory committee and the Council of Europe’s Commissioner for Human Rights in their respective recent reports on Austria,10 bilingual topographical signs have been a bone of contention in Austria for some years.

27. In a decision of 13 December 2001, confirmed by later judgments, the Constitutional Court ruled that the Slovene minority would be entitled to display bilingual topographical signs in municipalities where the minority represented at least 10% of the population over a long period. The recently deceased Governor of Carinthia criticised the decision and, to date, the decision of the Constitutional Court of 13 December 2001 has yet to be implemented.

28. I raised this issue with a representative of the Constitutional Court in Vienna during my visit. The non-implementation of the decision of the Constitutional Court has been denounced on several occasions by various Council of Europe bodies, most recently by the Committee of Ministers on 11 June 2008 (see below). Nevertheless, during my meeting at the Chancellery, my interlocutors argued that every single decision had been implemented.

29. Here, it should be explained that each decision of the Constitutional Court concerned a specific road sign in a specific village; nevertheless the decision should apply, mutatis mutandis, to all other villages concerned, which was not the case.

30. This also illustrates that the debate is not about the principle of whether or not there should be bilingual signs, but about the number of bilingual signs to be displayed (about 200 villages according to the Slovene minority).

31. Although the non-implementation of Constitutional Court decisions by the Carinthian authorities raises serious concerns regarding the rule of law, a number of my interlocutors stressed that it was also clearly a political issue – strongly connected with the personality of the (late) Governor of the Province – occasionally exploited by a few politicians, and that there was a lack of political will at all levels to solve this issue once and for all.

32. Nevertheless, this situation also illustrates the difficulties that might arise in a federal structure with a very complex distribution of competencies when stumbling blocks at regional level have not been overcome at the federal level for years.

33. Most recently, on 11 June 2008, just after my visit, the Council of Europe’s Committee of Ministers adopted Resolution ResCMN(2008)3 on Austria which, inter alia, refers to this issue as follows:

34. In this context, it should also be stressed that Austria has been a state party to the Framework Convention (and the European Charter) since 1998. Accordingly, it shall apply the provisions of the Framework Convention in good faith, in a spirit of understanding and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-operation between states (Article 2 of the Framework Convention).

35. This issue should be solved as soon as possible to the benefit of all concerned. Some interlocutors believed that it should be achieved by the adoption of a specific law indicating where and how the bilingual road signs should be placed.

36. Notwithstanding the difficulties described above in Carinthia, a number of interlocutors, as well as the Committee of Ministers, have praised and called for the further development of the unique system of bilingual education in Carinthia and Burgenland, which reportedly even attracts an increasing number of pupils from the linguistic majority. This illustrates again the fact that both difficulties and best practices can be found in the same country or region.

III.       Continuity of minority policies following a change of government/ruling parties

i.       General remarks

37. The advisory committee has touched upon this issue in different contexts.

38. Firstly, it noted that in some state parties the commitments taken by previous governments in the field of minority protection had not been upheld or fulfilled, for instance concerning the adoption of new legislation in this area. Furthermore, in some cases the financial support for the protection of minorities and/or the political will in this respect weakened following changes in governments at the central or local level (for example the drastic reduction of funding of minority self-government in Hungary following the 2002 elections).

39. Secondly, in a number of state parties the advisory committee also regretted the lack of continuity and consistency in the conduct of policies on minorities. In many cases this problem was manifested by shifts in such policies, and sometimes also in the change of the relevant institutions, which affected the effectiveness and capacity of these institutions (see, for instance, the second advisory committee’s opinion on Sweden11). Therefore, the advisory committee recommended more streamlining and consistency, irrespective of changes in government.

40. Furthermore, the advisory committee noted with concern a weakening of the efforts made to promote the implementation of the Framework Convention by some state parties, notably those that had recently joined the European Union. In such cases, the advisory committee could but invite the states concerned to pursue and enhance their efforts.

41. Lastly, some state parties had made commitments in the field of minority protection when they joined the Council of Europe, but have not yet implemented them, because of, inter alia, shifts in their policies. Such was notably the case of Azerbaijan, whose authorities, upon accession to the Council of Europe, had committed themselves to adopting additional legislation on the protection of national minorities. However, there has been no progress in this respect for the last few years.

ii.       Case study: The Slovak Republic

42. A change of government might represent a challenge for the continuity of policies related to minority protection.

43. In the context of this study, I decided to examine the case of the Slovak Republic. On 11 June 2008, I visited Bratislava and Šamorin (see the programme of the visit in Appendix II), where I had a number of meetings with, inter alia, representatives of the Hungarian minority in the country. The Hungarians, who represent almost 10% of the state’s population, form the largest minority in the Slovak Republic.

44. During my visit, a number of interlocutors of the Hungarian minority stressed that 1998 represented a turning point for minority protection in the country, when representatives of the Hungarian minority entered the ruling coalition. Since then a number of initiatives have been taken with respect to minorities, among which was the setting up of different bodies dealing with minorities – for example the Ombudsman institution, the Council for National Minorities and Ethnic Groups, the plenipotentiary of the government for Roma issues – as well as the setting up of the state-run Selye Janos University in Komarno.

45. An agreement concluded in December 2003 between the Slovak Government and the Government of Hungary on mutual support for national minorities in the field of education and culture has further strengthened the protection of the Hungarian minority in the Slovak Republic.

46. In recent years, the Slovak Republic has been praised for having markedly improved its anti-discrimination and institutional framework,12 by, inter alia, having adopted the 2004 Anti-Discrimination and Equal Treatment Law.13

47. In addition, minority-related issues were high on the agenda of the recent Slovak Presidency of the Council of Europe’s Committee of Ministers, which marked the 10th anniversary of the entry into force of the Framework Convention and the European Charter.

48. Nevertheless, during my visit, my interlocutors were concerned that there were no safeguards to guarantee the continuity of these policies in case of a change of the ruling coalition. Indeed, relations with the Hungarian minority have reportedly become more tense since the 2006 parliamentary elections and the setting up of a coalition between the Smer – sociálna demokracia party (Direction – Social Democracy) and the Slovak National Party (Slovenská národná strana – SNS). During my visit, representatives of the Hungarian minority expressed concern about what they called “hate speech” by politicians against the Hungarian minority, which, according to them, had increased after the change of government in 2006. This problem has been also noted by ECRI, which, in its last report, urged the Slovak authorities to take a more robust stance against negative political discourse against ethnic minorities, including in particular the Hungarian one. ECRI has recommended among others to ensure the implementation of the relevant provisions of the Criminal Code against incitement to racial hatred with regard to politicians who make racist statements or speeches.14

49. Nevertheless, on several occasions the Slovak authorities, including Mr Kubis, the Foreign Affairs Minister in Strasbourg in January 2008 (in response to a question I had put to him), indicated that they would preserve the status quo regarding minority policies.15 However, during my visit, a number of representatives of minorities claimed that they had to “fight” to preserve this status quo, which, in the absence of proactive measures, meant stagnation in the short term and regression in the long term.

50. During my visit, representatives of the Hungarian minority also mentioned two issues which, in their eyes, represented retrograde steps in terms of minority protection: the issue of geographical names (toponyms), which were published only in the Slovak language in schoolbooks, and the proposed reduction in the number of hours of Hungarian language courses in school, following the adoption of the new Schools Act. The problem of toponyms has been also pointed out by ECRI in its recent report. ECRI noted, however, that a bill had been adopted by the parliament which envisaged indicating in school textbooks toponyms both in minority languages and in Slovak.

51. However, with respect to the proposed population census foreseen for 2011, representatives of minorities believed that the possibility of using questionnaires in the languages of national minorities was guaranteed in the new legislation, which was seen as a positive measure.

52. Furthermore, the representatives of the Hungarian minority considered it very positive that the Ministry of Culture of the Slovak Republic has solved the financial problems concerning Slovak Radio’s broadcasts in the Hungarian language.

53. As concerns the budget allocated to minority cultures, I was informed that it had decreased in 2007, following the change of government in 2006 (80 million SKK in 2007 compared to 160 million SKK in 2006). However, in 2008, the budget had been on the increase (100 million SKK).

54. In this context, I should also mention that minority representatives alleged that the ruling coalition was not prepared to implement the last resolution of the Council of Europe’s Committee of Ministers on the implementation of the Framework Convention and recommendation of the Committee of Ministers on the application of the European Charter.16 Inter alia, these called for efforts to complete the legislative framework pertaining to national minorities, including in the fields of culture and education, to review the mechanisms aimed at ensuring participation of persons belonging to national minorities in order to render it more effective, and also to focus on Roma issues.

55. Regarding Roma, serious concerns were expressed regarding access to housing, education, health and employment. The authorities appeared nevertheless to have multiplied their efforts to improve this situation, particularly in the field of education.

56. In its recent report on Slovakia, ECRI welcomed the recent positive developments, including the adoption of a Medium-term Concept for the Development of the Roma National Minority of the Roma National Minority in the Slovak Republic for 2008–2013, which proposes solutions in the fields of education, health, health care and the media, among others. However, according to ECRI, some issues continue to give rise to concern: a de facto segregation of Roma children in schools through their disproportionate representation in special elementary schools for disabled children, poor housing conditions, a high unemployment rate in the Roma population, allegations of sterilisations of Roma woman without their consent, and an increase in racially motivated violence against Roma. Therefore, ECRI commended the Slovak authorities for making issues pertaining to Roma a horizontal priority and urged them, in particular, to increase the capacity of the Office of the Plenipotentiary for Roma to manage funds allocated to that end, and to combat the de facto segregation of Roma children.

57. Furthermore, on 30 June 2009, the Slovak Parliament adopted an amendment to the State Language Law, which entered into force on 1 September 2009. The intention of this amendment is to strengthen the protection of Slovak as the state language. Certain provisions of this law, including those on supervision and sanctions, cause concerns in minority groups, in particular the Hungarian one.17 In his opinion of 22 July 2009 the OSCE High Commissioner on National Minorities stated that the amendment pursued a legitimate aim and was in line with international standards.18 However, he found that some elements of this law raise or – depending on the implementation – might raise issues of compatibility with international norms and with the constitutional principles of the Slovak Republic.19 He therefore asked the Slovak authorities to implement the law carefully. On 25 September 2009, the Slovak authorities asked the European Commission for Democracy through Law (Venice Commission) to deliver a legal opinion on the Act on the State Language of the Slovak Republic.

58. It is also noteworthy that in the above opinion the OSCE High Commissioner pinpointed the lack of comprehensive legislation on the rights of national minorities. He remarked that “Now that a further step has been taken to protect and promote the state language, a reform of the National Minority Language Law should be considered, with a view to strengthening the rights of national minorities and to make them feel entirely at home in Slovakia. In this regard, the continued absence of a comprehensive law on the rights of persons belonging to national minorities should again be addressed. Such a law could make the balance between the different – and both legitimate – aims more visible and would have an important reassuring effect on members of national minorities”.20

59. Against this background, it should be recalled that the state authorities, irrespective of any changes of government, are bound by international obligations already undertaken upon ratification of the relevant instruments.

IV.       Limits to the application of the Framework Convention in Europe

i.       Scope of application of the Framework Convention

60. First and foremost, there is no generally recognised legal definition of the term “national minority” in international law, and the Framework Convention itself does not determine the right-holders of the protection it envisages.

61. Consequently, the scope of application of the Framework Convention remains one of the most controversial issues related to its implementation. Basically, each state party can itself determine which groups are covered by the Framework Convention.

62. The advisory committee recognises that state parties have a margin of appreciation in the determination of the scope of application of the Framework Convention. However, such decisions “must be exercised in accordance with general principles of international law and the fundamental principles set out in Article 3 of the Framework Convention. In addition, it stresses that the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions”.21

63. In fact, the advisory committee, the Committee of Ministers and the Assembly do not consider that state parties have an unconditional right to decide which groups within their territory qualify as national minorities in the sense of the Framework Convention. As stressed by the Assembly in its Recommendation 1623 (2003), any decision of the kind must respect the principle of non-discrimination and comply with the letter and spirit of the Framework Convention.

64. In this context, the advisory committee considered that it was its duty to examine thoroughly the scope of application of the Framework Convention by the states. The implementation of the Framework Convention by state parties is characterised by different approaches, ranging from minimalist (for example limiting the scope of application to the so-called “historical minorities” or to some selected minorities while arbitrarily denying recognition to others) to more inclusive and generous.

65. In a number of state parties, the advisory committee found that the scope of application as interpreted by the states was problematic. Firstly, most state parties have introduced the criterion of citizenship. The advisory committee (backed in this respect by the Venice Commission) is of the opinion that the citizenship criterion can be a legitimate requirement in relation to certain measures taken in accordance with the principles of the Framework Convention. This can be the case as regards certain political rights that persons belonging to national minorities enjoy. A generally applicable citizenship criterion is, nevertheless, problematic in relation to several other guarantees enshrined in the Framework Convention, such as those in Article 4 (anti-discrimination) and Article 6 (tolerance and intercultural dialogue).

66. The criterion of citizenship is an issue that is often raised in the context of debates on the application of the Framework Convention to “new minorities”. One should bear in mind that some states have opted for a very open approach in this respect (for instance the United Kingdom, which does not apply the citizenship criterion). Other states, such as Germany, have opted for restricting the scope of the application of the Framework Convention to its citizens only and, in general, to persons belonging to “traditional” minorities, that is to say those resulting from changes of borders and not from changes of residence of individuals (such as immigration).

67. However, the problem persists in state parties in which a substantial number of persons belonging to national minorities do not have the citizenship of the state party concerned. This happens mainly because of the dissolution of former states (for instance the Federal Republic of Yugoslavia and the Soviet Union) and the emergence (or restoration) of new ones, and is sometimes coupled with restrictive conditions for accessing citizenship, resulting from the law itself or from the authorities’ practice (for instance Russians in Estonia and Latvia). This problem may be illustrated by the situation of numerous Roma who live in countries of South-Eastern Europe and remain without citizenship. Therefore, they do not enjoy the protection resulting from the provisions of the Framework Convention. Another example may be that of formerly deported people who returned to their state of origin and afterwards faced obstacles in acquiring the latter’s citizenship. Ukraine has found an effective solution regarding the Crimean Tatar, but a similar issue concerning the Meskhetians has yet to be resolved by Georgia.

68. In such cases, the advisory committee recommended removing all obstacles to the acquisition of citizenship and taking measures to remedy the remaining problems of statelessness. Moreover, it called upon the states’ authorities to adopt a flexible approach as regards the personal scope of application of the Framework Convention, and to avoid using the criterion of citizenship when deciding on who should benefit from its protection.

69. Certain state parties have excluded some ethnic groups from the protection resulting from the Framework Convention by defining a very narrow personal and territorial scope of its application (see, for example, the advisory committee’s first22 and second opinions on Denmark23).

70. In other states a distinction between “autochthonous” and other minorities has been introduced. For instance, this has been the case with regard to Roma in some states in which “autochthonous” Roma fall under the protection resulting from the provisions of the Framework Convention, whereas Roma who had come from other countries, even a long time ago, do not (for example in Germany).

71. The advisory committee criticised these a priori exclusions from the personal scope of application of the Framework Convention. Therefore, it encouraged the relevant authorities to continue their dialogue with the groups concerned on a possible extension of the personal scope of application of the Framework Convention, possibly on an article-by-article basis.

72. The advisory committee has consistently echoed this position to a number of state parties. In so doing, it has emphasised the need to be flexible and open. Since the situation of minority groups and their needs evolve over time, one should be practical and make use of the provisions of the Framework Convention, if need be. This does not imply that ethnic groups should always be recognised as national minorities in the domestic legal order (bearing in mind that some state parties historically do not recognise such a concept in law) but that, if appropriate, they should benefit from the protection resulting from specific provisions of the Framework Convention. The Framework Convention is meant to be a pragmatic tool that can be implemented in very different contexts. This may be illustrated by the fact that, in respect of a few states, the advisory committee concluded that it was relevant for persons belonging to the state-wide majority population but finding themselves in a minority situation in their region to benefit from the protection guaranteed by the Framework Convention (for instance Finns on the Ĺland Island in Finland, Constituent Peoples in Bosnia and Herzegovina).

73. The Assembly has also asked state parties to the Framework Convention to revoke their reservations and declarations. However, no declarations have so far been revoked by any state party.

ii.       Non-ratification of the Framework Convention

74. The Framework Convention has been ratified by 39 of the Council of Europe’s 47 member states

75. To date, four states – Belgium, Greece, Iceland and Luxembourg – have signed but not ratified the Framework Convention, and four others – Andorra, France, Monaco and Turkey – have neither signed nor ratified.

76. That said, the Framework Convention is not without relevance for these states since they participate, within the Committee of Ministers, in the convention's monitoring mechanism. Furthermore, the relevance of the Framework Convention for these states is discernible in that they are also bound by political commitments on minority standards of the OSCE, notably the Copenhagen Document of 1990. It is important because the latter constituted the basis for drafting the Framework Convention. For its part, the High Commissioner on National Minorities refers to the Copenhagen catalogue of minority commitments, and to case law generated under the Framework Convention in regard to non-members of the Council of Europe but participating states of the OSCE (e.g. states of Central Asia). Moreover, they are bound by other Council of Europe’s instruments (see part iv below).

Case study: Greece

77. Because the monitoring procedures set up under the Framework Convention and the European charter do not formally apply to states that have not ratified them, these states escape scrutiny by the advisory committee (but they are monitored by other Council of Europe bodies). It is nevertheless most interesting to examine how these countries accommodate diversity, whether through minority policies with respect to recognised minorities or through a "non-discrimination" approach when minorities are not recognised, or by combining both approaches. In the context of this report, I therefore decided to visit one of these countries, namely Greece, which recognises only one minority on its territory. From 26 to 28 February 2009 I had a number of meetings in Athens, Thessaloniki and Florina (see the programme of the visit in Appendix III).

78. In its 2004 report on Greece, ECRI noted, “persons wishing to express their Macedonian, Turkish or other identity incur the hostility of the population. They are targets of prejudices and stereotypes, and sometimes face discrimination, especially in the labour market”.24 In its 2009 report on Greece,25 ECRI expressed concern about the situation of Roma, which suffer discrimination in particular in education, housing and employment.26 It also noted that the problem of the recognition of the identity of Macedonians and ethnic Turks, and in particular their right to freedom of association, remains. 27

79. Given that other reports of the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights address the issue of the Muslim minority in Thrace (Eastern Greece), as well as the situation of Roma in Europe,28 I limited my focus to the contentious issue of the Macedonian community in Greece, which has, inter alia, also been recently dealt with, to various extents, by the Council of Europe’s Human Rights Commissioner and the United Nations independent expert on minority issues, Ms Gay McDougall. The latter also visited Florina in September 2008. 29

–        The approach of the Greek Government

80. The Greek authorities recognise only one minority in Greece, namely the “Muslim” minority in Western Thrace, by virtue of the Lausanne Peace Treaty of 24 July 1923. In this context, Greece was recently commended by various bodies, including the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights,30 for a number of measures it had taken to enhance the rights of the Muslim minority in Greece. As regards others, Greece favours the approach to non-discrimination defined by European Union instruments.31

81. The Greek authorities have repeatedly denied the existence of any Macedonian minority in Greece and repeatedly referred to the hijacking of local culture by persons and groups which pursue political aims.

82. Despite the non-recognition of any other national or linguistic minority, the Greek authorities have acknowledged that in northern Greece there exist “a small number of persons who … use, without restrictions, in addition to the Greek language, Slavic oral idioms, confined to family or colloquial use”.32

83. During my visit, the Greek authorities stressed that Greek citizens who claim Macedonian identity are fully represented by a political party, which is free to participate in elections in Greece.

–        Claims of representatives of the Macedonian community

84. First and foremost, I should stress that there has been no ethnic violence in the Florina area. Greek society is pluralistic and open to diversity. Nevertheless, it seems that still today, persons who express and actively claim a Macedonian identity often come up against the resentment and even hostility of the authorities.

85. Members of the Macedonian community recognised that their situation had improved in the last 15 years, though they were still allegedly subject to individual acts of harassment and intimidation (at work, to obtain Greek citizenship, when crossing the border with the neighbouring country, for recognition of diplomas, for property issues or in religious matters). They ask the authorities to recognise their right to self-identification as well as the existence of a Macedonian national minority in Greece.

86. During my visit, I focused on the non-execution of the Sidiropoulos and others judgment of 199833 and the situation of persons deprived of their Greek citizenship.

–        The case of Sidiropoulos and others v. Greece (freedom of association and right to self-identification)

87. The Sidiropoulos and others case concerns the refusal of the Greek authorities, even after the judgment of the European Court of Human Rights of 1998, to register “The Home of Macedonian Civilisation”, a non profit-making association that a number of Greek citizens who identify themselves as belonging to an ethnic Macedonian minority wanted to establish in Florina. The Strasbourg Court found a violation by Greece of the right to freedom of association (Article 11 of the European Convention on Human Rights). The authorities denied registration arguing, inter alia, that “‘the promotion of the idea that there is a Macedonian minority in Greece … is contrary to the country’s national interest and consequently contrary to law’”. In this case, it is most interesting to stress in the context of the present report, that the Court, in its judgment, in effect, agreed with the applicant that “territorial integrity, national security and public order were not threatened by the activities of an association whose aim was to promote a region’s culture, even supposing that it also aimed partly to promote the culture of a minority; the existence of minorities and different cultures in a country was a historical fact that a ‘democratic society’ had to tolerate and even protect and support according to the principles of international law”.34

88. During my visit I reiterated that Greece should comply fully with the judgment of the Court, as well as with other judgments concerning the Turkish community, in which the European Court found violations of the right to freedom of assembly and association.35 Moreover, this issue has been addressed in ECRI’s 2009 report on Greece,36 in which it recommended that the Greek authorities “take measures to recognise the rights of the members of the different groups living in Greece, including to freedom of association, in full compliance with the relevant judgments of the European Court of Human Rights”.

89. As stressed by the Council of Europe’s Commissioner for Human Rights in his report on Greece:37

90. It should be deplored that the application for recognition of the “Home of Macedonian Civilisation”, lodged on 24 July 2003, was again rejected by the Greek courts. This decision became final after the Supreme Court rejected its cassation appeal by judgment No. 1448/2009, published on 11 June 2009.39

–        Persons deprived of their Greek citizenship (those living in Greece and those living abroad), and in this context, the differentiation in Greek law between people of Greek and non-Greek origin

91. Former Article 19 of the Greek Citizenship Code provided that Greek citizens who were not ethnically Greek could have their citizenship revoked if they left the country and the Greek authorities believed that they did not intend to return. As a consequence of this provision, applied from 1955 to 1998, there were approximately 60 000 Greek citizens, including minors, who lost their nationality. The majority of these persons were of Turkish ethnic origin. However, the repeal of Article 19 does not have a retroactive effect. Although the Ministry of the Interior issued instructions to local authorities to accelerate the procedure for naturalising stateless Muslims in Western Thrace and a number of other persons have re-acquired their Greek citizenship, it seems, according to ECRI,40 that no other measures have been taken to tackle the situation of persons who lost their Greek citizenship under Article 19 of the Citizenship Code, including those who are currently residing abroad and/or have acquired the citizenship of another state. This issue has been addressed by the Council of Europe Commissioner for Human Rights in his report and I fully concur with his analysis and recommendations. During my visit, my interlocutors recognised that this was a problem and I also had the impression that the authorities were determined to step up efforts to solve it.

92. Moreover, in its recent judgment Zeďbek v. Greece, the European Court of Human Rights also dealt with the situation of a Muslim Greek applicant, who had fallen under Article 19 of the Citizenship Code.41 The Court found that she had been discriminated against with regard to her right to retirement pension (violations of Article 1 of Protocol No. 1 alone and in conjunction with Article 14 of the Convention).

93. Furthermore, I would like to express concern about the provisions of the Greek law that appear to affect mainly ethnic Macedonians. Indeed, during the civil war in Greece (1946-49), thousands of political refugees, ethnic Macedonians and others, left the country. Reportedly, at least 28 000 child refugees, mostly ethnic Macedonians, were also evacuated from areas of heavy fighting and relocated to countries such as Yugoslavia, Czechoslovakia, Poland, Hungary, etc. Greece subsequently confiscated the properties of these exiles and deprived them of their Greek citizenship. Finally, in 1982, a provision (Decision 106841/29-12-1982 on the “free repatriation and restoration of Greek Citizenship to political refugees”) permitted the return to Greece of people having fled the country during the civil war, together with their families, provided they were Greek “by genus” (that is to say of Greek origin), thereby excluding persons of non-Greek, and particularly Macedonian, origin who had nonetheless left Greece under the same conditions. In 1985, a law (No. 1540) provided for the return of confiscated properties of political refugees, again limited to Greeks “by genus”.

94. Reportedly, most of the ethnic Macedonians affected by these laws are over the age of 70 and now reside in various European countries, Australia, Canada, etc. Representatives of the Macedonian community consider that these laws are discriminatory, targeting Macedonian political refugees, many of whom would now like to return to their birthplace. During my visit, it was alleged that those claiming Macedonian identity experience difficulty in obtaining visas to attend funerals or visit relatives in Greece. ECRI addressed this issue in 2004 and “strongly recommended to the Greek authorities to reconsider the foundations and the implications of their policy in this respect”.42 In its last report on Greece in 2009, it noted that the Ministerial Decision No. 106841 of 1982 and Law No. 1540 of 1985 continued to apply only to ethnic Greeks.43 Therefore it recommended again that “the Greek authorities take steps to apply, in a non-discriminatory manner, the measures of reconciliation taken for all those who fled the civil war”.44 Concerning denationalised persons who have remained abroad and are not willing to return, the Human Rights Commissioner called upon the authorities “to consider the possibility of providing them, or their descendants, with satisfaction, in accordance with the general principles of international law”.45 Concerning the remaining stateless persons who now reside in Greece, the Greek authorities have reportedly expressed their determination to proceed promptly to the restoration of their nationality. The situation of persons of Macedonian origin compelled to leave Greece in the civil war when most were only children, who wish to return, even for a short time, nevertheless needs further attention. Further gestures, such as the opening of the border for a few days in 2003 for ethnic Macedonian refugees, should be considered.

–        The issue of the ratification of the Framework Convention for the Protection of National Minorities (signed by Greece in 1997)

95. As in 2005, the authorities reiterated that the Greek constitutional and legislative framework is fully in conformity with the fundamental principles set forth in international instruments, including the Framework Convention. The scope of application of the Framework Convention would certainly be controversial, though not an obstacle. Nevertheless, during my visit, no timeframe was given for ratification. In its 2009 report on Greece, ECRI once called upon the Greek authorities to ratify the Framework Convention as soon as possible.46 With respect to the European charter, the situation appears more difficult and I was not given the impression that there were any prospects for progress in the near future.

-       A few remarks as rapporteur

96. Albeit fully aware of the sensitive international context in which these issues should be considered, as rapporteur on minority protection in Europe I am concerned by the rights to self-identification, freedom of expression and freedom of association of minority groups in Europe.

97. As already stressed on several occasions by our Assembly and other Council of Europe bodies, cultural diversity should be perceived not as a threat but as a source of enrichment, and any attempt to impose an identity on a person or group of persons is unacceptable.

98. I note that in February 2009, the Council of Europe Commissioner for Human Rights expressed his deep concern about “the persistent denial by Greek authorities of the existence on Greece’s territory of minorities other than the tripartite ‘Muslim’ one in Western Thrace, despite the recommendations made so far notably by ECRI, the UN Committee on Economic, Social and Cultural Rights and the UN Human Rights Committee”. He also recalled that freedom of ethnic self-identification is a major principle in which democratic pluralistic societies should be grounded and should be effectively applied to all minority groups, be they national, religious or linguistic.47 I fully share this view.

99. I also fully support the call of the Commissioner upon the Greek Government to create a consultative mechanism, at national, regional and local levels, which would ensure an institutionalised, open, sincere and continuous dialogue with representatives of different minorities and/or representatives of individual minority groups. During my visit, I also stressed the role of local authorities in accommodating cultural diversity.

100. The Greek authorities should also closely examine allegations of discrimination and intolerant acts against those who claim to have a Macedonian identity and take appropriate measures to punish any such acts.

101. As described below, obligations of Council of Europe member states relating to minority protection do not only derive from the Framework Convention and the European Charter for Regional or Minority Languages (for details, see Part V below).

102. Finally, the Assembly should again pursue its efforts to promote the Framework Convention as a truly pan-European instrument and invite Greece and those Council of Europe member states which have not yet done so to ratify it without any further delay.

iii.       Other cases

103. The issue of the Armâns48 has been already dealt with on several occasions by the Assembly. In 1997, the Assembly adopted Recommendation 1333 (1997), in which it expressed concern “about the critical situation of the Aromanian culture and language, which have existed for over two thousand years in the Balkan peninsula”.49 At present, representatives of the Council of Armâns still stress the “critical” situation of the Armân (Macedonian Romanian) culture and language.

iv.       Obligations of Council of Europe member states which are not Parties to the Council of Europe minority instruments

104. A number of Council of Europe instruments or mechanisms establish the principles of equality and respect for diversity in terms of minority protection and entail obligations for Council of Europe member states which are not Parties to the Framework Convention and the European charter.

105. The European Convention on Human Rights is clearly relevant and, although it does not confer specific rights on minorities, it allows persons belonging to minorities to assert their rights even where the state concerned has failed to recognise a minority's existence. The Convention guarantees, inter alia, essential rights for persons belonging to minorities: freedom of expression, and freedom of thought, conscience and religion, as well as freedom of association. In its steady case law the European Court of Human Rights observes “… that there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle …, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community”.50

106. On several occasions the European Court has taken a stance on the right to freedom of association of persons belonging to national minorities and their involvement in political life.51 In its opinion, territorial integrity, national security and public order are not threatened by the activities of an association whose aim was to promote a region’s culture, even supposing that it also aims partly to promote the culture of a minority. The existence of minorities and different cultures in a country is “a historical fact that a “democratic society” had to tolerate and even protect and support according to the principles of international law”.52 Concerning political activities of minority groups, the Court stressed that “the mere fact that a political party calls for autonomy or even requests secession of part of the country’s territory is not a sufficient basis to justify its dissolution on national security grounds. In a democratic society based on the rule of law, political ideas which challenge the existing order without putting into question the tenets of democracy, and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression through, inter alia, participation in the political process”.53

107. The development of the Court’s case law concerning discrimination is also very important for minorities. It is worth noting that this case law, especially that relating to indirect discrimination, shows that the European Court of Human Rights has reversed the burden of proof so that it is now for the government to show that it does not discriminate.54 The development of the Court’s case law on non-discrimination on a ground of “association with a national minority”, as well as the ratification of Protocol No. 12 to the European Convention on Human Rights, could certainly contribute to the strengthening of national minority protection.

108. The Council of Europe European Social Charter, which complements the Convention in the field of economic and social rights, is also relevant in this context, since often policy towards minorities is connected with social rights. The European Committee of Social Rights, which is responsible for assessing the conformity of national law and practice with the European Social Charter, may assess the situation of the minorities, both in the framework of the reporting system and in the context of the collective complaints procedure.55 For instance, in its decision of 8 December 2004,56 the European Committee of Social Rights held that Greece’s policies with respect to housing and accommodation of Roma infringed Article 16 of the European Social Charter due to, in particular, the systemic eviction of Roma from sites and dwellings unlawfully occupied by them.57

109. Finally, the monitoring mechanism of the European Commission against Racism and Intolerance (ECRI) and the monitoring work of the Council of Europe’s Commissioner for Human Rights, are also relevant in this context, since they apply to all Council of Europe member states. The substantial contribution of the Venice Commission to the protection of national of minorities at national and European levels should also be emphasised.

110. Nevertheless, the Framework Convention will always retain an added value, particularly with regard to linguistic rights or the right to effective participation.

111. Moreover, Council of Europe member states also have obligations under United Nations and OSCE instruments (see the case study of Greece, above). In this context one should also stress the specific contribution of the OSCE High Commissioner on National Minorities in strengthening the supervisory role of the advisory committee of the Framework Convention by promoting its wide ratification, in discouraging reservations or declarations thereto, in encouraging their withdrawal, and in requesting interpretations of the Framework Convention with the advisory committee.

V.       Effective participation of persons belonging to national minorities in cultural, social and economic life and public affairs

i.       Second thematic commentary of the advisory committee58

112. Article 15 of the Framework Convention requires state parties “to create the conditions necessary for the effective participation of persons belonging to national minorities in cultural, social and economic life and in public affairs, in particular those affecting them”. It aims above all to encourage real equality between persons belonging to national minorities and those forming part of the majority.

113. Article 15 of the Framework Convention is indeed a key provision of this convention and is closely related to its various other provisions. First and foremost, it is complementary to Article 4 (establishing the principle of equality and non-discrimination) and Article 5 (concerning the right to preserve and develop minorities’ cultural heritage and the prohibition of assimilation). Obviously, it also draws on other provisions, such as Article 6 (encouraging tolerance and mutual understanding), Article 9 (concerning, inter alia, the right to be represented in mainstream media and to set up minority media) and the provisions on education (Articles 12-14).

114. Participation has been a key concern of the advisory committee in its country-by-country work since 1998. Therefore, the advisory committee decided to devote its second thematic commentary to this issue: the Commentary on participation of persons belonging to national minorities in social, economic and cultural life and in public affairs, was adopted in February 2008.59

115. In this commentary the advisory committee has explored further the multi-faceted dimensions of participation, not only in public affairs, but also in social and economic life. Participation in cultural life has not been explored in depth and might still be the object of further work of the advisory committee.

116. In its country-by-country work over the last ten years, the advisory committee has put more emphasis on participation in public affairs, in the elected bodies as well as in the executive ones and the civil service. Its country-by-country opinions also contain substantial reflections on the consultation bodies of national minorities.

117. The innovative aspect of the advisory committee’s commentary lies in its increased emphasis on participation in socio-economic life. It should be noted that this dimension has not yet been explored at length. On the basis of the commentary, the advisory committee should now further explore this issue in the framework of its subsequent monitoring activities.

118. The area of social and economic life is a wide-ranging one, since it covers such issues as employment, housing, access to social benefits and health care. Furthermore, in its reflection on the participation of minority groups in each of these areas, the advisory committee shed particular light on the meaning of its effectiveness. It considered that, to be effective, such participation implies not only equal access to employment, housing and/or health care, but also a possibility to share in the benefits and material results of economic and social life.

119. The commentary requires that remedies be available in cases of discrimination and it also addresses possible forms of exclusion resulting from privatisation processes, post-conflict arrangements and regulation of the media sector.

120. The lack of participation in socio-economic life has been raised in a number of the advisory committee’s country opinions, notably with regard to the Roma, who face problems ranging from their low participation in the labour market, lack of access to healthcare and housing segregation. The lack of effective participation in social and economic affairs is obviously closely related to the lack of participation in public affairs, and vice versa. It should be stressed once again that the situation of Roma in many countries is a good illustration of how socio-economic exclusion may be coupled with marginalisation from public affairs and the life of society in general.

121. So far other issues have been less explored. This is notably the case of property privatisation and restitution (for example in post-war situations such as the Balkans), the linguistic and/or residence requirements and their impact on access to employment, the under-representation of minorities in the public services of most state parties and the difficulties faced by persons belonging to minorities as a result of living in economically depressed or isolated areas (one particularly striking example is Georgia). All these issues clearly have an impact on the effective participation of minorities.

VI.       Concluding remarks

122. In conclusion:

–        along with numerous successes and progress throughout Europe, outstanding problems persist;

–       successful solutions for specific issues and serious problems in the implementation of others can be observed in the same country;

–        irrespective of change of government and of power structures in a given state, state authorities are bound by Council of Europe instruments which have already been ratified;

–        freedom of ethnic self-identification is a major principle in which democratic pluralistic societies should be grounded and should be effectively applied to all minority groups, be they national, religious or linguistic;

–        even if state authorities have not ratified specific European instruments on minority protection, a number of other Council of Europe instruments and mechanisms establish the principles of equality and respect for diversity;

–        tolerance and open, sincere dialogue between authorities and all minority groups should be nurtured and promoted as widely as possible at all levels: national, regional and local;

–        as noted by the European Court of Human Rights, “[t]he role of the authorities is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”;60

–        the Parliamentary Assembly should again pursue its efforts to promote the Framework Convention for the Protection of National Minorities as a truly pan-European instrument and invite those Council of Europe member states which have not yet done so to ratify it without further delay.

APPENDIX I

Programme of the visit of Mr Boriss Cilevičs to Klagenfurt and Vienna (Austria) on 9 and 10 June 2008

Monday 9 June 2008: Klagenfurt

11h30        Meeting with Mr Peter Kaiser, Group Leader of SPÖ and Ms Ana Blatnik, SPÖ

12h30-14h30        Meeting with representatives of organisations of the Slovene minority (Rat der Kärntner Slowenen: Mr Marjan Pipp; Zentralverband slowenischer Organisationen: Mr Marjan Sturm, Gemeinschaft der Kärntner SlowenInnen: Mr Joza Habernik, Einheitsliste: Mr Janko Kulmesch and Slowenisches Seelsorgeamt: Mr Anton Rosenzopf-Jank)

14h45-15h45       Meeting with Mr Rudi Vouk, Lawyer

[Despite several requests, there was no meeting with representatives of the regional government]

Tuesday 10 June 2008: Vienna

9h-13h        Meeting with representatives of minorities:

14h       Meeting with Mrs Brigitte Bierlein, Vice-President of the Constitutional Court

15h        Meeting with Mrs Terezija Stoisits, Ombudsperson

16h       Meeting with Dr Georg Lienbacher, University Professor and Head of Division, Constitutional Service of the Federal Chancellery, and Dr Christa Achleitner, Head of the Department dealing with issues relating to ethnic groups of the Federal Chancellery

17h30       Dinner with Mr Dieter Kolonovits and Mr Hannes Tretter, lawyers and        academics

APPENDIX II

Programme of the visit of Mr Boriss Cilevičs

to Bratislava and Šamorín (Slovak Republic) on 11 June 2008

Bratislava

9h-10h       Meeting with Mr Dušan Čaplovič, Vice-Chairman of the Government of the Slovak Republic, and Mrs Anina Botošová, Plenipotentiary of the Government for Roma issues

10h15 – 11h10       Meeting with Mrs Bibiána Obrimčáková, State Secretary of the Ministry of Education of the Slovak Republic, and Mr Ladislav Fízik, Advisor of Minister for Education of the Slovak Republic and Chairman of the “Roma Parliament”

11h20 – 12h20       Meeting with Mr László Nagy, Chairman of the Committee of the National Council of the Slovak Republic on Human Rights, Minorities and Women’s Position

Šamorín

15h – 16h30       Forum Minority Research Institute

Bratislava

18h – 19h       Meeting with representatives of the Ruthenian and Carpathian German minorities

APPENDIX III

Programme of the visit of Mr Boriss Cilevičs

to Athens, Thessaloniki and Florina (Greece) from 26 to 28 February 2009

Thursday 26 February 2009

21h       Working dinner with Mr Dimitras, Greek Helsinki Monitor, and Mrs Papanikolatos, Minority Rights Group, Greece

Friday 27 February 2009

Athens

10h       Meeting with Mr Pavlidis, Chairman of the Hellenic delegation to the Parliamentary Assembly of the Council of Europe, Mrs Benaki and Messrs Banias, Liaskos and Aivaliotis, members of the Parliamentary Assembly delegation

11h       Meeting with Mr Agathokles, Secretary General of the Ministry of Foreign Affairs, Ambassador Abatis, Directorate of the Ministry of Foreign Affairs for relations with the Council of Europe and the OSCE, and Mr Kappas, Director of the Office of the Secretary General of the Ministry of the Interior

12h30        Meeting with Mr Papaioannou, Chairman of the National Commission on Human Rights, Mrs Argyropoulou, Vice-President, and Mrs Spiliotopoulos, member

Thessaloniki

19h15       Meeting with Professor Takis, Deputy Ombudsman

Xino Nero

22h30       Working dinner with MM. Konstantinidis and Lianis, MPs (from Florina)

Saturday 28 February 2009

Florina

9h       Meeting with Professor Manos, University of Western Macedonia, Department of Balkan Studies

10h       Meeting with the Mayor of Florina, Mr Papanastasiou

11h       Meeting with the Prefect of Florina Mr Ioannis Voskopoulos

12h       Meeting with the Chairman of the Local Union of Municipalities and Communities, Mr Eliadis, and with Mr Aspridis (Municipality of Perasma), Mr Tsakmakis (Municipality of Meliti), Mr Theodoris (municipality of Amyntaio) and Mr Trasias (Community of Krystalopigi)

13h30 – 14h30        Meeting with Mr Parisis, President of the European Bureau of Less Used Languages (EBLUL), Mr Dede and Mr Bletsas, members of EBLUL

15h – 16h30       Meeting with Mr Pavlos Voskopoulos, “European Free Alliance (EFA) – Rainbow”, and other representatives of “EFA Rainbow”

17h – 18h45       Meeting with Presidents of cultural associations and other persons who claim to be of Macedonian ethnic origin

18h45       Meeting with persons deprived of their Greek citizenship (Niki border-crossing)

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Doc. 11261 rev., Reference 3355 of 25 June 2007

Draft resolution and draft recommendation unanimously adopted by the committee on 16 November and 16 December 2009 respectively

Members of the Committee: Mrs Herta Däubler-Gmelin (Chairperson), Mr Christos Pourgourides, Mr Pietro Marcenaro, Mr Rafael Huseynov (Vice-Chairpersons), Mr José Luis Arnaut, Mrs Meritxell Batet Lamańa, Mrs Marie-Louise Bemelmans-Videc, Mrs Anna Benaki-Psarouda (alternate: Mr Emmanouil Kefaloyiannis), Mr Petru Călian, Mr Erol Aslan Cebeci, Mrs Ingrida Circene, Mrs Ann Clwyd, Mrs Alma Čolo, Mr Joe Costello, Mrs Lydie Err, Mr Renato Farina, Mr Valeriy Fedorov, Mr Joseph Fenech Adami, Mrs Mirjana Ferić-Vac, Mr György Frunda, Mr Jean-Charles Gardetto, Mr József Gedei, Mrs Svetlana Goryacheva, Mr Neven Gosović, Mrs Carina Hägg, Mr Holger Haibach (alternate: Mr Jürgen Herrmann), Mrs Gultakin Hajibayli, Mr Serhiy Holovaty, Mr Johannes Hübner, Mr Michel Hunault, Mr Aliosman Imamov, Mr Kastriot Islami, Mr Želiko Ivanji, Mrs Kateřina Jacques, Mr András Kelemen, Mrs Kateřina Konečná, Mr Franz Eduard Kühnel, Mrs Darja Lavtižar-Bebler, Mrs Sabine Leutheusser-Schnarrenberger, Mr Aleksei Lotman (alternate: Mr Andres Herkel), Mr Humfrey Malins, Mr Alberto Martins, Mr Dick Marty, Mrs Ermira Mehmeti, Mr Morten Messerschmidt, Mr Akaki Minashvili, Mr Philippe Monfils, Mr Alejandro Muńoz Alonso (alternate: Mr Arcadio Díaz Tejera), Mr Felix Müri (alternate: Mr Andreas Gross), Mr Philippe Nachbar, Mr Adrian Năstase (alternate: Mr Tudor Panţiru), Ms Steinunn Valdís Óskarsdóttir, Mrs Elsa Papadimitriou (alternate: Mr Nikolaos Dendias), Mr Valery Parfenov (alternate: Mr Sergey Markov), Mr Peter Pelegrini (alternate: Mr József Berényi), Mrs Marietta de Pourbaix-Lundin, Mr Valeriy Pysarenko (alternate: Mr Hryhoriy Omelchenko), Mr Janusz Rachoń, Mrs Marie-Line Reynaud, Mr François Rochebloine, Mr Paul Rowen, Mr Armen Rustamyan (alternate: Mrs Zaruhi Postanjan), Mr Kimmo Sasi, Mr Yanaki Stoilov, Mr Fiorenzo Stolfi, Mr Christoph Strässer, Lord John Tomlinson, Mr Joan Torres Puig, Mr Tuğrul Türkeş, Mrs Özlem Türköne, Mr Viktor Tykhonov (alternate: Mr Ivan Popescu), Mr Řyvind Vaksdal, Mr Giuseppe Valentino (alternate: Mr Giacomo Santini), Mr Hugo Vandenberghe, Mr Egidijus Vareikis, Mr Luigi Vitali, Mr Klaas De Vries, Mrs Nataša Vučković, Mr Dimitry Vyatkin, Mr Marek Wikiński, Mrs Renate Wohlwend, Mr Jordi Xuclŕ i Costa

NB: The names of the members who took part in the meetings are printed in bold

Secretariat of the committee: Mr Drzemczewski, Mr Schirmer, Ms Szklanna, Ms Heurtin

1 . See Doc. 11249, motion for a resolution on the plight of the ethnic Macedonian national minority of northern Greece, referred to the Committee on Legal Affairs and Human Rights, for information, on 24 May 2007.

2 . Doc. 9862, 9 July 2003, Rights of national minorities, Assembly Recommendation 1623 (2003); Doc. 10961, 12 June 2006: Ratification of the Framework Convention for the Protection of National Minorities by the member states of the Council of Europe, Assembly Recommendation 1766 (2006); Doc. 11030, 22 September 2006: The 2003 guidelines on the use of minority languages in the broadcast media and the Council of Europe standards: need to enhance co-operation and synergy with the OSCE, Assembly Recommendation 1773 (2006).

3 . The Council of Europe’s Committee of Ministers then adopts a resolution/recommendation on the implementation of these instruments by state parties, on the basis of the evaluation by these independent bodies.

4 . United Nations, Treaty Series, Vol. 1155, p. 331.

5 . Opinion on the Czech Republic adopted on 6 April 2001, ACFC/INF/OP/I(2002)002.

6 . ECRI report on Greece (third monitoring cycle), CRI(2004)24, adopted on 5 December 2003, published on 8 June 2004, paragraph 73.

7 . Report of the United Nations independent expert on minority issues, mission to Greece, A/HRC/10/11/Add.3, 18 February 2009.

8 . See document CM(2007)132, 24 August 2007, second opinion of the advisory committee on Austria, adopted on 8 June 2007, and Resolution ResCMN(2008)3, adopted by the Committee of Ministers on 11 June 2008.

9 . Idem.

10 . Document CM(2007)132, 24 August 2007. CommDH(2007)26, 12 December 2007, report on the visit to Austria, 21-25 May 2007.

11 . See document ACFC/OP/II(2007)006, second opinion on Sweden, adopted in November 2007.

12 . See Committee of Ministers Resolution ResCMN(2006)8 of 21 June 2006 on the implementation of the Framework Convention; see also the report of the Council of Europe’s Commissioner for Human Rights on the Slovak Republic, dated 29 March 2006; ECRI report on Slovakia (fourth monitoring cycle), CRI(2009)20, adopted on 19 December 2008 and published on 26 May 2009.

13 . Act No. 365/2004 Coll. on equal treatment in certain areas and protection against discrimination.

14 . ECRI report on Slovakia (fourth monitoring cycle), see above.

15 . See http://assembly.coe.int/Main.asp?link=/Documents/Records/2008/E/0801221500E.htm.

16 . Resolution ResCMN(2006)8 on the implementation of the Framework Convention by the Slovak Republic, adopted by the Committee of Ministers on 21 June 2006; Recommendation RecChL(2007)1 on the application of the European Charter for Regional or Minority Languages by Slovakia, adopted by the Committee of Ministers on 21 February 2007.

17 . http://news.bbc.co.uk/2/hi/europe/8162643.stm.

18 . http://www.osce.org/documents/odihr/2009/10/40055_en.pdf.

19 . Opinion of the OSCE High Commissioner on National Minorities on amendments to the “Law on the State Language of the Slovak Republic”, p. 10. The text of this opinion may be found on the website:

http://www.hacusa.org/languagelaw/osce_opinion_072209.pdf.

20 . See above, p. 10.

21 . For details, see also my previous report on rights of national minorities, Doc. 9862.

22 . Opinion on Denmark, adopted on 22 September 2000, ACFC/INF/OP/I(2000)005.

23 . Opinion on Denmark, adopted on 9 December 2004, ACFC/INF/OP/II(2004)005.

24 . ECRI report on Greece (third monitoring cycle), CRI(2004)24, see above, paragraph 81.

25 . ECRI report on Greece (fourth monitoring cycle), CRI(2009)31, adopted on 2 April 2009, published on 15 September 2009.

26 . Ibid., paragraph 101.

27 . Ibid., paragraphs 111-115.

28 . Report on freedom of religion and other human rights for non-Muslim minorities in Turkey and for the Muslim minority in Thrace (Eastern Greece) (rapporteur: Mr Michel Hunault, France, EDG); The situation of Roma in Europe and relevant activities of the Council of Europe (rapporteur: Mr József Berényi, Slovak Republic, EPP/CD).

29 . See the report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Greece from 8 to 10 December 2008, Issue reviewed: Human rights of minorities; CommDH(2009)9, 19 February 2009; ECRI report on Greece (fourth monitoring cycle), CRI(2009)31, see above; and the report of the United Nations independent expert on minority issues, mission to Greece, A/HRC/10/11/Add.3, 18 February 2009.

30 . See Doc. 11860 (2009).

31 . See my previous report on the ratification of the Framework Convention by Council of Europe member states, Doc. 10961 (2006).

32 . See also the report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, paragraph 9.

33 . Sidiropoulos and others v. Greece, 10 July 1998, Application No. 26695/95.

34 . Ibid., paragraph 41.

35 . Tourkiki Enosi Xanthis and Others v. Greece, 27 March 2008, Application No. 26698/05, Emin and Others v. Greece, 27 March 2008, Application No. 34144/05 and Bekir-Ousta and Others v. Greece, 1 October 2007, Application No. 35151/05.

36 . See above, paragraph 115.

37 . See above, paragraphs 51-53.

38 . Under Article 27 of the International Covenant on Civil and Political Rights, which was ratified by Greece on 5 May 1997, in all state parties where “ethnic, religious or linguistic minorities exist”, members of such minorities may not be denied the right, in community with the other members of their group.

39 . See the website of the Greek Helsinki Monitor (GHM) and Minority Rights Group-Greece (MRG-G) http://cm.greekhelsinki.gr/. The judgment is available in Greek on line at:

http://cm.greekhelsinki.gr/uploads/2009_files/ap_d_politiko_stegi_mak_pol_1448-2009.pdf.

40 . See above, paragraph 11.

41 . Zeďbek v. Greece, judgment of 9 July 2009, Application No. 46368/06 (not yet final).

42 . ECRI report on Greece (third monitoring cycle), CRI(2004)24, see above.

43 . ECRI report on Greece (third monitoring cycle), CRI(2009)31, see above, paragraph 114

44 . Ibid., paragraph 116.

45 . Ibid., paragraph 58.

46 . Ibid., paragraph 8.

47 . See above, paragraphs 40 and 42.

48 . Also called “Aromanians” in certain documents.

49 . See Doc. 8438 (1999), paragraph 1.

50 . Beard v. United Kingdom, 18 January 2001, Application No. 24882/94, paragraph 104.

51 . For instance Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, 2 October 2001, Application No. 29221/95; 29225/95; The Socialist Party and others v. Turkey, 25 May 1998, Application No. 21237/93.

52 . Sidiropoulos v. Greece, see above, paragraph 41; Tourkiki Enosi Xanthis and Others v. Greece, see above, paragraph 51.

53 . United Macedonian Organisation Illinden – PIRIN and others v. Bulgaria, 20 October 2005, Application No. 59489/00, paragraph 61.

54 . D.H. v. the Czech Republic, 13 November 2007, Application No. 57325/00, paragraph 179.

55 . For more details concerning the assessment of Roma situation by the European Committee of Social Rights, see Introductory memorandum by Mr Berényi “The situation of Roma in Europe and relevant activities of the Council of Europe”, AS/Jur (2008) 29 rev., declassified.

56 . Decision on the merits, 8 December 2004, European Roma Rights Centre v. Greece, complaint No. 15/2003.

57 . The committee concluded by 8 votes to 2:

– that the insufficiency of permanent dwellings constitutes a violation of Article 16 of the European Social Charter;

– that the lack of temporary stopping facilities constitutes a violation of Article 16 of the European Social Charter;

– that the forced eviction and other sanctions of Roma constitutes a violation of Article 16 of the European Social Charter.

58 . Commentary on the effective participation of persons belonging to national minorities in cultural, social and economic life and public affairs, adopted on 27 February 2008, ACFC/31DOC(2008)001.

59 . See above.

60 . Serif v Greece, 14 December 1999, Application No. 38178/97, paragraph 53.