Doc. 9744 rev.

13 May 2003

Preferential treatment of national minorities by the kin-state: the case of the Hungarian law of 19 June 2001 on Hungarians living in neighbouring countries ("Magyars"1)

Report

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

Summary

On 19 June 2001, the Hungarian Parliament passed a law concerning persons of Hungarian identity who are citizens of neighbouring states of Hungary: Croatia, Serbia and Montenegro, Romania, Slovenia, Slovakia and Ukraine.

This law, which grants preferential treatment to those citizens, has been criticised by some of the countries concerned. The main objection to it concerns the unilateral approach adopted.

The Venice Commission, which was asked for its opinion on the law, considers that states must adopt a bilateral approach to protecting kin-minorities and that any laws on the matter must be based on four principles: territorial sovereignty, pacta sunt servanda, friendly good-neighbourly relations, and respect for human rights and fundamental freedoms, including the prohibition of discrimination. The Assembly agrees with this opinion.

The Assembly therefore asks the government and Parliament of Hungary to find ways to amend the law of 19 June 2001 in order to respect these principles.

I.       Draft resolution

1.        The Assembly, in principle, welcomes assistance given by kin-states to kin-minorities in other states in order to help these kin-minorities to preserve their cultural, linguistic and ethnic identity. However, the Assembly wishes to stress that such kin-states must be careful that the form and substance of the assistance given is also accepted by the states of which the members of the kin-minorities are citizens, and to which the basic rules contained in the Framework Convention on National Minorities are applicable.

2.        The Assembly considers that responsibility for minority protection lies primarily with the home-states. The Assembly stipulates that the existing multilateral and bilateral framework of minority protection, including European norms, must be held as a priority. Kin-states can also play a legitimate and important role in the protection and preservation of kin-minorities, aimed at ensuring that their genuine linguistic and cultural links remain strong. The emergence of new and original forms of minority protection, particularly by the kin-states, constitutes a positive trend insofar as they can contribute to the realisation of this goal within the framework of international cooperation.

3.        On 19 June 2001, the Hungarian Parliament passed a law which has the aim to give such assistance, in this case to people of Hungarian identity who are citizens of neighbouring countries and who consider themselves as persons belonging to the Hungarian "national" cultural and linguistic community.

4.        Under the law, preferential treatment is granted to citizens of Magyar “nationality” living in the following neighbouring countries: Croatia, Serbia and Montenegro, Romania, Slovenia, Slovakia and Ukraine. Magyars living in Austria are excluded from the scope of the law.

5.        Several of these member states of the Council of Europe have previously adopted legislation based on the principle of preferential treatment of national minorities by the kin-state.

6.        On 22 December 2001, in light of the report by the Venice Commission on the preferential treatment of national minorities by the kin-state, the governments of Hungary and Romania did sign a memorandum of understanding which – inter alia - extends the conditions and treatment applicable in Hungary in respect of employment to all Romanian citizens, irrespective of their "national" identity.

7.        Preferential treatment is subject to possession of a certificate which can be issued only by a Hungarian public authority, as concluded in the opinion of the Venice Commission.

8.        On the basis of the aforementioned report by the Venice Commission, the Assembly considers that states must adopt a bilateral, not unilateral approach to protecting kin-minorities and that any laws on the matter must be based on four principles: territorial sovereignty, pacta sunt servanda, friendly good-neighbourly relations, and respect for human rights and fundamental freedoms, including the prohibition of discrimination.

9.        The Assembly notes that some neighbouring countries have criticised the Hungarian law for failing to respect these principles. Their main objection to it concerns the unilateral approach adopted.

10.        Furthermore, there is a feeling that the definition of the concept of "nation" in the preamble to the law could under certain circumstances be interpreted – though this interpretation is not correct - as non-acceptance of the state borders which divide the members of the "nation", notwithstanding the fact that Hungary ratified several multi- and bilateral instruments containing the principle of respect for territorial integrity of states, in particular the basic treaties entered into force between Hungary and Romania and Slovakia. The Assembly notes that up to now there is no common European legal definition of the concept of "nation".

11.        The Assembly is convinced that the other points at issue, namely the inclusion in the scope of the law of family members who are not of Magyar identity, the exclusion of other citizens from neighbouring countries from access to economic and social privileges, and the role played by minority organisations in implementing the law, could possibly have been accepted or modified had they been preceded by bilateral discussions and agreements, such as the Memorandum of Understanding between Hungary and Romania.

12.        The Assembly refers also to the statement made by the OSCE High Commissioner on National Minorities on 26 October 2001, in which he expressed his general concern that laws of the nature of the Hungarian law called into question earlier advances in the protection of minorities and allowed for discriminatory treatment of the majority in that state, a situation that could have a negative effect on the position of the minority itself, and on inter-state relations across Europe. The Assembly welcomes several consultations held between the Hungarian Government and the OSCE High Commissioner on National Minorities.

13.        The Assembly therefore urges the government and parliament of Hungary to find ways to amend the law of 19 June 2001 on the preferential treatment of kin-minorities in such a way that it is based on bilateral discussions and agreements with the neighbouring countries and meets the proposals of the Venice Commission and the criticism of the existing law by the OSCE High Commissioner on National Minorities and by the Parliamentary Assembly itself. Furthermore, the Assembly calls on all governments concerned to enter into or to continue substantial negotiations.

TABLE OF CONTENTS:

Explanatory memorandum .………..……………………………………………………………..5

APPENDIX I:

Act … 2001 on Hungarians living in neighbouring countries………………………………...12

APPENDIX II:

Programme of the visit of Mr Erik Jurgens to Budapest and Bratislava

on 11-13 March 2002 ……………………………………………………………………………24

APPENDIX III:

Programme of the visit of Mr Erik Jurgens to Bratislava, Budapest and Bucharest

on 4-6 December 2002 ………………………………………………………………………….25

APPENDIX IV:

Report of the Venice Commission on the preferential treatment of national

minorities by their kin-state ……………………………………………………………………..27

APPENDIX V:

Memorandum of Understanding between the Government of the Republic of Hungary

and the Government of Romania concerning the Law on Hungarians living in

Neighbouring Countries and issues of bilateral cooperation……………..…………………46

APPENDIX VI:

Sovereignty, responsibility, and national minorities: statement of 26 October 2001

by Rolf Ekéus, OSCE High Commissioner on National Minorities ………………………...49

APPENDIX VII:

Preferential treatment of national minorities by the kin-state: the case of the

Hungarian Status Law of 19 June 2001 on ethnic Hungarians living in

neighbouring countries …………………………………………………………………..…… 50

II.       Explanatory memorandum

      by Mr Jurgens, Rapporteur

A.       Introduction

1.        The motion for resolution was tabled on 28 June 2001 on the law regarding the (ethnic) Hungarians (whom I will consistently call “Magyars” in this report, because the noun “Hungarian” in English and French means “citizen of Hungary”, and the adjective means “pertaining to the state of Hungary”) living in neighbouring countries, adopted on 19 June 2001 (hereafter "the Law") (see Appendix I) by the Hungarian Parliament.

2.        This motion, tabled by Mr Prisăcaru and others (Doc 9153), and the motion for a resolution of 3 July 2001 on trans-frontier co-operation in preserving the identity of national minorities, tabled by Mr Van der Linden and others (Doc 9163), both, under different titles, asked the Assembly to pronounce itself on trans-frontier cooperation preserving the identity of national minorities in general, and the Hungarian Law on Magyar minorities in neighbouring states in particular. For the title of my report I have adopted the more general phrasing used by the Venice Commission. This enables me to take the report of the Venice Commission of that title of 22 October 2001 (168/2001) as my basis, and to then apply it to the case of the Hungarian law, a law to which at least two neighbouring states, Romania and Slovakia, have taken exception. I first visited Budapest on 11-12 March 2002 and Bratislava on 12-13 March 2002. At the request of the Legal Committee – which had been confronted with statements that amendments to the law were being prepared - I again visited Bratislava and Budapest, and now also Bucharest, on 4-6 December 2002. The programmes of these visits are reproduced in Appendix II.

3.        The report of the Venice Commission is reproduced in Appendix IV to this report. It would be doubling the excellent work done by the Venice Commission if I were to again explain which principles of international public law and custom apply to the relation between neighbouring states, when a minority in one state is a majority in the other. The Venice Commission has used the term “national minority” as it is known and used especially in the Framework Convention of that name. It has coined the term “kin-state”, so as to indicate the country where the identity of that national minority is that of the dominant culture. The word “kin” is clearly more neutral than the word “mother-state” which is common in some texts, but suggests wrongly that such a state has formal relations with citizens of other states.

4.        It is important to note that there are big differences in the way the word “nation” is employed in different parts of Europe and in different European languages. The word nation in many countries and languages denotes a state, or the totality of the citizens of a state. The word nationality is used as a synonym for “citizenship of a state”.

5.        In many countries the word nation is however used in a completely different way. The original meaning of the word is derived from the Latin word “nation”, which means “the entity into which one is born”. Historically the word was used to denote groups of which the members identify themselves as culturally, ethnically or linguistically as belonging to that group (i.e. the Franks, the Germans, the Italians). This was in an era when states, as we know them since the 19th and 20th century, did not yet exist. There existed only territories which were bound together by the fact that they had the same lord, prince or king. The members of a nation were often dispersed among a plurality of territories. The German “empire” before 1806, the Holy Roman Empire of the German Nation (das Heilige Römische Reich Deutscher Nation), was an expression of this situation. The drive that lead to the unification of Germany, and of Italy, in 1870/1 was based on this concept of nation. It has an old tradition and is a reality in many parts of Europe. In the 19th and in the first half of the 20th century, especially in Western Europe, governments tried to make the “nation” coincide with the state, hence the fact that these words have become synonymous. In English and French, the official languages of the Council of Europe, the word “nation” has now to be put between inverted commas if the old meaning is meant. Hence the linguistic problems involved when writing on this subject!

6.        There are, therefore, situations where the existence of different “nations” or “nationalities” within a state is recognized as a positive contribution to that society (Spain and Russia for example). Then again, some “nations” which lived together within the same borders were broken up during the 19th and 20th centuries, but the feeling of “nationhood” has remained strong, even if the members of that nation regard themselves as loyal citizens of the states in which they are a “national” minority, i.e. a minority composed of a different “nation” than that of the majority (such as the Magyar “nation”). This report deals with a specific case in this category. Thirdly there is a group of states that do not give any legal effect to the older concept of nationhood. Indeed, they formally do not even know this concept (such as France, Britain, the Netherlands).

7.        The feeling of identity as a member of a “nation”, as opposed to identity as citizen of a state, is a normal and wide spread phenomenon in Europe. In many countries it has found recognition in the constitution of the state and is seen as a positive contribution to a pluri-cultural and tolerant society. It can however also be the cause of fundamental conflicts and frustrations within a state if insufficiently recognized in constitutions of states, or if exacerbated by populism and nationalistic rhetoric (here I use the word nationalistic in both the older and the newer the new meaning!). This can also be the case if the members of a “nation” live separated by state boundaries and are the citizens of different states. Because of this, kin-states need to be careful in which way they lend cultural and linguistic support to kin-minorities in neighbouring states. This should preferably be done on the basis of bi-lateral agreements, and not on the basis of unilateral acts.

8.        The terminology used to cover the phenomenon of ethnic, linguistic and cultural ties between groups of citizens within separate states can therefore be very important. The use of the word “nation” in official documents of kin-states especially, such as constitutions or laws, should be carefully screened so as to avoid possibly wrong impression or possible misuse.

9.        The terminology “kin-minority” and “kin-state” is more neutral2. It does no more than state a fact, i.e. that of ethnic, linguistic and cultural ties. It does not evoke deeper-lying, historically or politically motivated feelings that are often associated with the word “nation”, and with the political aim of creating a “nation state” within the boundaries of which the whole nation is brought together, as happened in Germany and Italy in the 1870’s – but which is not consistent with modern ideas about relations between civilized states.

10.        If the terminology “kin-state” and “kin-minority” is used consistently, the policy of a kin-state that aims at no more than helping a kin-minority to preserve its identity can more easily be seen for what it is, i.e. not motivated by deeper lying nationalistic or irredentist objectives.

11.        The Venice Commission – after giving an historical background - describes the obligation on states to approach minority protection in a bilateral way. It also analyses the present domestic legislation of some European states as to protection of kin-minorities. In chapter D, it then formulates the four principles on which such domestic legislation should be based, i.e:

a.       territorial sovereignty and non-intervention

b.       pacta sunt servanda

c.        friendly relations with neighbouring states

d.       respect of human rights, especially non-discrimination.

12.        The Venice Commission argues these principles forcefully, and ends its report by enumerating six criteria along which domestic legislation about kin-minorities in another state should be measured.

13.        Without committing myself to exact wording, or to the supposition that these are the only possible criteria, I can concur with these conclusions. Thus, for the general analysis I may refer to the report of the Venice Commission itself. This allows me, in this report, to concentrate on the following question: Is the Hungarian Law of 19 June 2001 compatible with the general principles and with the criteria outlined by the Venice Commission?

B .       Points of criticism

14.        It is clear that if there are strong protests from neighbouring states, there must be a problem with at least the principle mentioned under c) above. I have thus chosen to list the complaints made by Slovakia and Romania, under the surmise that probably this list will cover all the elements of the Hungarian law which could possibly not measure up to the criteria formulated by the Venice Commission.

15.        These complaints are:

a.       Existing bi-lateral cooperation agreements have not been utilized, and the law has been unilaterally proclaimed by the kin-state.

b.       The concept of “nation” in the preamble of the law is based on too broad a definition of that term.

c.       The reduction of the application of the law to kin-minorities in neighbouring countries (with the exception of Austria), and therefore not to all Magyars suggests deeper lying motives of territorial aggrandizement of the kin-state.

d.        Spouses and children of members of the kin-minority who have no Magyar kinship are included.

e.       Privileges in the social and economic field (working permits, participation in social security benefits) within Hungary for the kin-minority are discriminatory, because other citizens of the neighbouring country, not belonging to the kin-minority are excluded.

f.       In neighbouring states organisations of kin-minorities are, by the law of the kin-state, involved – thus giving an unacceptable extra-territorial element in the law of the kin-state.

C.       Comments on the points of criticism

a.        Unilateral procedures

16.        Basically this is the strongest point of criticism. It is based on the principle of good neighbourly relations. In theory the other five points may have been acceptable, with modifications, if they had been the result of bi-lateral discussions and agreements. This is especially the case if these had been held within the framework of existing treaties, such as the “Treaty on Good Neighbourly Relations and Friendly Cooperation” of 1995 agreed upon between Hungary and Slovakia. Spokesmen on the Hungarian side recalled the position of the Venice Commission that – when a kin-state takes unilateral measures on the preferential treatment of its kin-minorities in a particular home-state, the latter may presume the consent of the said kin-states to similar measures concerning its citizens. My comment was that this of course only holds until home-states have taken a contrary position.

17.        When I publicly commented on the Hungarian Law during my visit to Budapest on 12 March that I regard the non-bilateral way in which the law had been enacted to be “unwise”, it is clear that I meant that much of the present conflict about the law could have been prevented.

18.        The Memorandum of Understanding signed between Hungary and Romania on 23 December 2001 (see Appendix V) has belatedly but wisely tried to correct this procedure. The Memorandum in fact accepts that the points of criticism under the points d) to f) above should lead to some sort of correction of the Law. My Hungarian contacts differed of opinion as to how these corrections would come about. In fact, as of yet, they have not led to changes in the law, only to rulings that bring the implementation of the law into conformity with the Memorandum of Understanding. Besides this, the Memorandum of Understanding was concluded already year ago, and also no such agreement with Slovakia has been made.

b.       The concept of “nation”

19.        As described above, the concept of "nation" can in its consequences sometimes be positive and sometimes relatively innocuous. But it can on the other side carry a suggestion of non-acceptation of those state borders which in fact divide the members of the “nation”. This suggestion can have a negative effect if it causes unrest in the states in which the kin-minorities live, negative also for the position in that state of the kin-minorities concerned. Thus the Law provoked reactions in Slovakia during March 2002 directed against the now entrenched position of the Magyar minority in Slovakia. This works clearly to the detriment of that minority and to harmonious relations within the state.

20.        This is the reason why the first paragraph in the Preamble of the Law is in my view hardly reassuring:

21.        This part of the Preamble seems to be in contradiction with other parts of the Preamble which rightly stress rules of international law and of European integration. Besides, the membership of the Magyar “nation” as a whole does not restrict itself to inhabitants of Hungary and its neighbouring states.

22.        The Council of Europe should in my view take a further look at the concept of “nation” as it is employed in many parts of Europe on the basis of traditions that precede the 19th century concept of the nation-state. The Council of Europe, and public international law in general, is based on the concept of "state" and '"citizenship". This leaves no room for the concept of "nation". This was done on purpose after World War II, because nationalist ideologies were root causes of that war (nationalist here used both in the sense of excessive state patriotism, and in the sense of proclaiming one's own "nation" to be superior). Where claims are made on the citizens of other states by virtually “enrolling” them as members of that “nation” which the kin-state seeks to bring together and to represent, this nation-concept which is too strong could endanger the traditions of the Council of Europe.

23.        Thus the Council of Europe should be willing to speak out against such misuse of the concept of nationhood. The position of the Council of Europe in favour of the protection of minorities has as its corollary the rejection of forms of support to kin-minorities that are in fact (disguised) claims to territories outside the kin-state where the kin-minorities are a majority.

24.        On the other hand we have seen that the concept of "nation" can also have very positive elements, which in the present tradition of the Council of Europe are maybe insufficiently recognised. We do not have to abide by the concepts created in the past that now do not – in a Europe united by the principles of the Council of Europe – always fit into the consciousness of the peoples of Europe and into the de facto situation in some parts of Europe.3 In a paper for the Centre for Russian and East European Studies of the University of Birmingham (United Kingdom), Ms Brigid Fowler argues that “in a broad European context … notions and practices of citizenship, sovereignty and territoriality are in a state of flux…The status law and similar legislation (institutionalise) a relationship between states and individuals who are neither their citizens nor their residents. Inasmuch as status-law-type legislation creates rights claimable by particular individuals against specific states, it creates a form of citizenship, but a form of ‘fuzzy citizenship’, since it is not a full citizenship, it does not coincide with any existing relationship between states and individuals, and its terms are often unclear.”

25.        The paper explores this hypothesis and concludes that “the conceptual separation of state and nation in Central and Eastern Europe opens the way at least implicitly to kin-state relationships which challenge ‘modern’ principles of both territoriality and citizenship, and which admit ‘post-modern’ notions of multiple identities, non-citizen relationships between states and individuals, and attenuated state sovereignty”.

26.        If this is the case – and within the European Union this is clearly so, as national sovereignty is being pooled together in the EU, and a citizenship of the EU is being developed – then it obliges the Council of Europe to recognize this fact, to make an in-depth study of this phenomenon, and to formulate new principles governing it. This calls for a further report to the

Assembly. In no way, however, would this put aside the necessity of good neighbourly relations between states and of regulating possible ‘fuzzy citizenship’ on the basis of bi-lateral or multi-lateral (Council of Europe) agreements, and not unilaterally.

27.        Even if the concept of fuzzy citizenship would go too far, yet some sort of answer must be given to them who regard themselves in the first place as part of a “nation”, and only in the second place as a loyal citizen of the country where they are living. Neglect of such basic feelings can lead to political strife.

28.        For example: if Holland plays football against Turkey, a large part of the immigrant Turkish ethnic minority in Holland makes it quite clear that it wants Turkey to win. In this case Turkish Dutchmen have to choose between their two identities. Would Holland be playing against any other country than Turkey, they would hope Holland wins.

29.        In my discussions with the Slovak authorities I pointed out that Slovakia also gives rise to concern about the way it describes itself and its citizens in constitutional texts, i.e. “We, the Slovak people, together with the members of the national minorities and ethnic groups” and also “We, the citizens of the Slovak Republic”. These texts stress that members of the national minorities do not belong to “the Slovak people”, although they are Slovak citizens. Thus a division is made between “Slovaks” and other citizens which is discriminatory and can fuel the same sort of nationalistic sentiments that I described above when speaking of the concept of the "Hungarian nation”. Similar citations could be made from Romanian texts.

c.       The exclusion of Austria

30.        It is not consistent that the law excludes ethnic Hungarians living in neighbouring Austria. However this does recognize the fact that Austria is a member of the European Union and therefore cannot accept preferential treatment of some of its citizens above others. Conversely, neither can Hungary treat some Austrian citizens differently from others, considering its association agreement with the EU. Hungary will therefore have to change this discriminatory element in its Law as soon as it accedes to the European Union. During my discussions in Hungary it was suggested that the exclusion of Austria had to do with the fact that the Magyar community in that country is small and that Hungarians living in Austria are not covered by the law, due to the fact that the overwhelming majority of them preserved their Hungarian citizenship. But if this is the case, why was Slovenia not also excluded?

31.        This leads to a further question: why is the Hungarian law limited to Magyars living in neighbouring states? If it is a law that aims at no more than strengthening the cultural identity of Magyars abroad, why does it not apply to all Magyars, wherever they live? Such a larger scope could certainly help taking away suspicions, in the neighbouring countries – however unjustified they may be - that the law has a deeper layer of an irredentist nature.

d.       The inclusion within the working of the Law of family members having no Magyar kinship

32.        This argument for such an inclusion can be found in the aim of keeping families together by not discriminating between family members of mixed ethnic background. But it is clear that it can also be regarded as a form of proselytising non-Hungarian family members, an aim which the neighbouring state could well regard as unfriendly (certain Hungarian politicians did indeed suggest that such proselytising was one of the aims of the law). Thus this provision needs careful consideration, and should be based on total agreement about the matter with the neighbouring states.

e.       The exclusion of other citizens of the neighbouring states as regards privileges of a social and economic nature

33.        This also runs contrary to the principle of non-discrimination which the EU applies. Besides, these privileges (working permits, inclusion in the system of social security) cannot reasonably be regarded only as a form of assistance to a kin-minority to preserve its identity. It is a form of selection of workers from a foreign country which clearly serves the preferential social-economic treatment of co-members of the “nation”. This form of claim on non-citizens belonging to the nation of the kin-state can be very detrimental to good neighbourly relations, as has been shown in the case of the Hungarian law.

34.        This has turned out to be an especially sensitive matter. The Venice Commission singles it out as an example of extra-territorial application of the Law which infringes the sovereignty of the neighbouring state. The Hungarian-Romanian understanding of 23 December 2001 solves the matter by giving only diplomatic representatives of Hungary the role of registering nationals of the neighbouring state who wish to be regarded as Magyars, and who wish to make use of the possibilities extended to them by the Law. This solution precludes that organisations of Magyars in neighbouring states themselves coordinate the registration of citizens who wish to apply. That would make them agents of the kin-state and this would infringe the sovereignty of the neighbouring state

35.        It can of course not be reasonably forbidden that these diplomatic representatives, when in dubio over the question whether or not a citizen is a Magyar also ask the opinion of organisations of such ethnic Hungarians. But that is something different than giving the organisations an executive role in the matter.

36.        The problem is exacerbated by the appearance of the certificate which Magyars in neighbouring countries can receive, and which gives the bearer the rights enunciated in the Law. The certificate is a booklet of stiff pages bearing the crown of Hungary on the outside, with the personal data of the person concerned on the first page, making it look somewhat like a passport.

37.        The Hungarian delegation has put forward arguments that many of the points of criticism have already been met. It points especially to the agreement reached on 23 December 2001 between the governments of Romania and Hungary (see Appendix V), and that the new government of Hungary – which was installed after the elections of April 2002 - is implementing the provisions of this agreement. Indeed, some of the points of criticism have been met, although it is not clear if this has led to changes in the law itself, or only to delegated legislation which implements the law by interpreting it in a way that conforms with the Memorandum of Understanding (these rulings therefore are contra legem). It would seem that a change of the law itself is indicated.

38.        Furthermore, discussions with the Slovak side have not yet led to an agreement comparable with the Romanian-Hungarian understanding. Perhaps that agreement has been postponed because of the imminence of the recent elections in Slovakia. It would seem that now, even considering the paper from the Slovak delegation4, an understanding should be expected on the basis of the existing treaty of co-operation between the two countries.

39.        During my visit on 4, 5 and 6 December 2002 to Bratislava, Budapest and Bucharest I received assurances that amendments to the Law were being prepared by Hungary. But I also heard that these amendments, although forming – in the view of the Rumanians and the Slovaks - a positive development, did not yet meet all the points of criticism put forward by these governments. Meanwhile the law has already been in force for a year. A half-a-million certificates have been issued, and the ongoing discussion between the three governments has a tendency to force the three governments into uncomfortable public positions after each round of bi-lateral talks between Hungary and its two critical neighbours. At the same time I was assured that, apart from this problem, the relations between the three states were excellent.

40.        I have postponed presenting my definite report to the Legal Committee from June, via September and December 2002 and the part-session of the Assembly in January 2003 to 3 March 2003, although interim reports were debated in the committee in the meanwhile. I have done this because a solution arrived at by the three governments concerned would give a positive accent to this report. On the other hand, the continuing procrastination in the matter of the drafting of amendments now makes it necessary for the Council of Europe to take a position, like the European Union has done, and like the OSCE High Commissioner is doing. I do not think that a further postponement would be beneficial.

41.        If however, draft amendments are introduced in the Hungarian parliament before the present report is presented to the Assembly, I will add a chapter to this report commenting those amendments in the light of this report.

D.        Conclusions

42.        Criticism of the Hungarian Law has not only been voiced by two neighbouring states, i.e. Romania and Slovakia. The OSCE High Commissioner on National Minorities, Rolf Ekeus, has also voiced a general concern about laws of this nature. His statement of 26 October 2001 is reproduced in Appendix VI to this report.

43.        It is clear that I, as your Rapporteur, would think it wise if the new Hungarian government would see fit to make such amendments to the Law, that the new text will be based on bi-lateral discussions with all neighbouring states, including Austria, and will leave out or modify such elements of the existing Law as have been criticised by the Venice Commission, by the OSCE and, if this report is accepted, by the Parliamentary Assembly of the Council of Europe.

44.        This would clear the air between Hungary and its neighbours after the unilateral way the Hungarian law was introduced, and would make room for an effort to look more deeply into the underlying problems. For nobody would wish to gainsay that it is in the interest of national minorities if an existing kin-state helps citizens belonging to those minorities to be conscious of their identity and to develop it, within the national identity of the state of which they are citizens.

45.        But a clash is in some cases clearly possible between the existing rules of public international law – which are based on concepts such as “state”, “territoriality”, “citizen” and “national minority” on the one hand, and the time-honoured use – at the same time – of the word “nation” by some member states of the Council of Europe, denoting ethnic, cultural or linguistic groups which transcend state frontiers.

46.        So as to counter possible developments of a negative “nationalistic” or “irredentist” nature in the relations between States based on a specific concept of “nation”, the Council of Europe could – in the study envisaged in paragraph 22 above - consider the possibility of trying to incorporate a positive concept of “nation” into the traditional concepts of public international law mentioned above, by accepting – under strict conditions of sovereignty and statehood - the formulation of a sort of part-citizenship which Ms Brigid Fowler’s report, mentioned under paragraph 21, has coined “fuzzy citizenship”. The outcome could also be that the existing situation – where “national” communities can freely be formed and maintained within our open societies – in fact gives enough possibilities.”

47.        This report on the Hungarian law of 19 June 2001 tries to contribute to the solution of a specific issue round a specific Law. The general concept of “nation” underlying this issue should therefore be elaborated on in a separate report tackling the question put forward in a more general way in the Motion for Resolution tabled by Mr Van der Linden and others on “Trans-frontier co-operation in preserving the identity of national minorities”, Doc 9163 of 3 July 2001.

APPENDIX I

ACT . . . 2001 ON HUNGARIANS

LIVING IN NEIGHBOURING COUNTRIES

submitted by

Dr János Martonyi

Minister of Foreign Affairs of Hungary

Parliament

• In order to comply with its responsibilities for Hungarians living abroad and to promote the

      preservation and development of their manifold relations with Hungary prescribed in paragraph (3) of Article 6 of the Constitution of the Republic of Hungary,

• Considering the European integration endeavours of the Republic of Hungary and in keeping with the basic principles espoused by international organisations, and in particular by the Council of Europe and by the European Union, regarding the respect of human rights and the protection of minority rights;

• Having regard to the generally recognised rules of international law, as well as to the obligations of the Republic of Hungary assumed under international law;

• Having regard to the development of bilateral and multilateral relations of good neighbourhood and regional Co-operation in the Central European area and to the strengthening of the stabilising role of Hungary;

• In order to ensure that Hungarians living in neighbouring countries form part of the Hungarian nation as a whole and to promote and preserve their well-being and awareness of national identity within their home country;

• Based on the initiative and proposals of the Hungarian Standing Conference, a co-ordinating body functioning in order to preserve and reinforce the awareness of national self-identity of Hungarian communities living in neighbouring countries;

• Without prejudice to the benefits and assistance provided by law for persons of Hungarian

      nationality5 living outside the Hungarian borders in other parts of the world;

Herewith adopts the following Act:

CHAPTER 1

GENERAL PROVISIONS

Scope of the Act

Article 1

(1) This Act shall apply to persons declaring themselves to be of Hungarian nationality who are not

Hungarian citizens and who have their residence in the Republic of Croatia, the Federal Republic

of Yugoslavia, Romania, the Republic of Slovenia, the Slovak Republic or the Ukraine, and who

a) have lost their Hungarian citizenship for reasons other than voluntary renunciation, and

b) are not in possession of a permit for permanent stay in Hungary.

(2) This Act shall also apply to the spouse living together with the person identified in paragraph (1) and to the children of minor age being raised in their common household even if these persons are not of Hungarian nationality.

(3) This Act shall also apply to co-operation with, and assistance to organisations specified in

Articles 13, 17, 18 and 25.

Article 2

(1) Persons falling within the scope of this Act shall be entitled, under the conditions laid down in

this Act, to benefits and assistance on the territory of the Republic of Hungary, as well as in their

place of residence in the neighbouring countries on the basis of the Certificate specified in Article 19.

(2) The provisions of this Act shall be applied without prejudice to the obligations of the Republic of

Hungary undertaken in international agreements.

(3) The benefits and assistance claimable under this Act shall not affect other existing benefits and

assistance ensured by legislation in force for non-Hungarian citizens of Hungarian nationality living

in other parts of the world.

Article 3

The Republic of Hungary, in order to

a) ensure the maintenance of permanent contacts,

b) provide for the accessibility of benefits and assistance contained in this Act,

c) ensure undisturbed cultural, economic and family relations,

d) ensure the free movement of persons and the free flow of ideas,

and taking into account its international legal obligations, shall provide for the most favoured

treatment possible with regard to the entry and stay on its territory for the persons falling within the

scope of this Act.

CHAPTER II

BENEFITS AND ASSISTANCE AVAILABLE FOR PERSONS FALLING WITHIN THE

SCOPE OF THIS ACT

Education, Culture, Science

Article 4

(1) In the field of culture, persons falling within the scope of this Act shall be entitled in Hungary to

rights identical to those of Hungarian citizens. Accordingly, the Republic of Hungary shall ensure for them in particular:

a) the right to use public cultural institutions and the opportunity to use the services they offer,

b) access to cultural goods for the public and for research,

c) access to monuments of historic value and the related documentation,

d) the research for scientific purposes of archive materials containing protected personal data, if the neighbouring state where the Hungarian individual living outside the borders bas a permanent

residence is a party to the international convention on the protection of personal data.6

(2) Persons falling within the scope of this Act shall be entitled to use the services of any state-run

public library, and to the free of charge use of the following basic services:

a) visit of the library,

b) on-the-spot use of certain collections determined by the library,

c) use of stock-exploring instruments,

d) information on the services of the library and of the library system,

e) in the case of registration, borrowing of printed library material in accordance with the regulations of the library.

(3) Further benefits with respect to the availability of services offered by state-run museums and

public cultural institutions to persons falling within the scope of this Act shall be laid down in a

separate legal rule.

Article 5

Hungarian scientists falling within the scope of this Act may become external or regular members of the Hungarian Academy of Sciences.

Distinctions and Scholarships

Article 6

(1) The Republic of Hungary shall ensure that persons falling within the scope of this Act, in

recognition of their outstanding activities in the service of the Hungarian nation as a whole and in

enriching Hungarian and universal human values, may be awarded distinctions of the Republic of

Hungary and may receive titles, prizes or honorary diplomas founded by its Ministers.

(2) In the process of determining conditions for state scholarships, the possibility to receive such

scholarships shall be ensured for persons falling within the scope of this Act.

Social Security Provisions and Health Services

Article 7

(1) Persons falling within the scope of this Act who, under Article 15, work on the basis of any type

of contract for employment in the territory of the Republic of Hungary shall pay, unless otherwise

provided for by international agreements, health insurance and pension contribution of an amount

equal to that laid down in the relevant Hungarian social security legislation to the authority

designated for this purpose in a separate legal rule. Those contributions shall entitle such persons to health and pension provision specified by a separate legal rule.

(2) Persons falling within the scope of this Act who are not obliged to pay health insurance and

pension contributions as stipulated in paragraph (1) shall have the right to apply for reimbursement

of the costs of self-pay health care services in advance. Applications shall be submitted to the public benefit organisation established for this purpose.

(3) In cases requiring immediate medical assistance, persons falling within the scope of this Act shall be entitled to such assistance in Hungary according to the provisions of bilateral social security (social policy) agreements.

Travel benefits

Article 8

(1) Persons falling within the scope of this Act shall be entitled to travel benefits in Hungary on

scheduled internal local and long-distance lines of public transport. With regard to railways, such

benefits shall apply to 2nd class fares.

(2) An unlimited number of journeys shall be provided free of charge for:

a) children up to six years of age,

b) persons over sixty-five years of age.

(3) A 90% travel discount shall be provided on means of internal long-distance public transport for:

a) persons identified in paragraph (1) four times a year,

b) a group of at least ten persons under eighteen years of age travelling as a group and falling

within the scope of this Act, and two accompanying adults once a year.

(4) The detailed rules of travel benefits shall be laid down in a separate legal rule.

Education

Article 9

(1) Persons falling within the scope of this Act, in accordance with the relevant provisions of Act

LXXX of 1993 on Higher Education applicable to Hungarian citizens, shall be entitled to

participate, according to the conditions specified in this Article, in the following programmes of

higher education institutions in the Republic of Hungary:

a) undergraduate level college or university education,

b) supplementary undergraduate education,

c) non-degree programmes,

d) Doctor of Philosophy (PhD) or DLA programmes,

e) general and specialised further training,

f) accredited higher education level vocational training in a school-type system.

(2) Students participating in state-financed full-time training programmes specified in paragraph (l),

shall be entitled to formula funding on the one hand, and financial and other benefits in kind on the

other, both being part of the appropriations of budgetary expenditure for students, as well as to the

reimbursement of detailed health insurance contributions provided by Act LXXX of 1993 on Higher

Education. The detailed conditions of these forms of assistance and further benefits shall be

regulated by the Minister of Education in a separate legal rule.

(3) Persons falling within the scope of this Act may pursue studies in the higher education

institutions of the Republic of Hungary in the framework of state-financed training in a fixed number to be determined annually by the Minister of Education.

(4) Students from neighbouring countries participating in education programmes not financed by the state may apply for the partial or full reimbursement of their costs of stay and education in Hungary to the public benefit organisation established to this end.

Student Benefits

Article 10

(1) Registered students of a public education institution in a neighbouring country who are pursuing their studies in Hungarian language, or students of any higher education institution who are subject to this Act are entitled to benefits available under the relevant regulations to Hungarian citizens with student identification documents.

(2) Entitlement to benefits specified in paragraph (1) shall be recorded in the Appendix of the

Certificate (Article 19) serving for this purpose. The detailed rules of access to these benefits shall

be laid down in a separate legal rule.

Further Training for Hungarian Teachers Living Abroad

Article 11

(1) Hungarian teachers living abroad, teaching in Hungarian in neighbouring countries and falling

within the scope of this Act (hereinafter referred to as “Hungarian teachers living abroad”) shall be

entitled to participate in regular further training in Hungary, as well as to receive the benefits

specified in paragraph (2). Further training and the benefits shall be applicable to a fixed number of teachers determined actually by the Minister of Education.

(2) For the duration of further training and to the extent stipulated by a separate legal rule, persons

identified in paragraph (1) shall be entitled to request the Hungarian educational institution providing further training to

a) reimburse accommodation costs,

b) reimburse travel expenses, and

c) contribute to the costs of registration.

(3) The detailed rules of further training for Hungarian teachers living abroad shall be regulated by a separate legal rule.

Article 12

(1) Hungarian teachers living abroad, falling within the scope of this Act and those teaching in

higher education institutions in neighbouring countries (hereinafter referred to as “Hungarian

instructors living abroad”) shall be entitled to special benefits.

(2) Benefits available to Hungarian teachers and instructors living abroad shall be identical with the benefits related to Teacher Identity Cards issued to teachers of Hungarian citizenship on the basis of legislation in force.

(3) Entitlement to benefits specified in paragraph (1) shall be recorded in the Appendix of the

“Certificate of Hungarian Nationality” serving for this purpose. The detailed rules of access to these

benefits shall be regulated in a separate legal rule.

Education Abroad in Affiliated Departments

Article 13

(1) The Republic of Hungary shall promote the preservation of the mother tongue, culture and

national identity of Hungarians living abroad also by supporting the establishment, organisation and operation of affiliated Departments of accredited Hungarian higher education institutions in

neighbouring countries.

The Financial resources necessary for the realisation of these goals shall be set out as targeted

appropriations in the budget of the Republic of Hungary. The Minister of Education shall decide on

the allocation of the available resources according to a separate legal rule.

(2) The Republic of Hungary supports the establishment, operation and development of higher

education institutions (faculties, study programmes, etc.) teaching in Hungarian and seeking

accreditation in neighbouring countries. Financial resources required for the realisation of these

goals may be applied for at the public benefit organisation established for this purpose.

Educational Assistance Available in the Native Country

Article 14

(1) Parents falling within the scope of this Act and bringing up at least two children of minor age in

their own household may apply for educational assistance for each of their children if:

a) the Child attends an education institution according to his/her age and receives training or

education in Hungarian, and

b) the education institution specified in point a) is in the neighbouring country of residence of the

parents.

(2) Parents falling within the scope of this Act may receive assistance for books and learning

materials (hereinafter referred to as “assistance for learning materials”) if the child of minor age

living in their own household attends an educational institution in the neighbouring country of

residence of the parents and receives education in Hungarian.

(3) Applications for assistance for education and learning materials may be submitted to the public

benefit organisation established for this purpose. In the process of evaluating the applications, the

public benefit organisation shall request the position, formulated with the consent of the Hungarian

Minister of Education, of the recommending body (Article 20) in the neighbouring country concerned whether instruction and education in Hungarian are ensured in the education institution in question.

(4) Persons falling within the scope of this Act may apply for assistance for their studies at the

higher education institutions of neighbouring countries from the public benefit organisation

established for this purpose.

Employment

Article 15

(1) Persons falling within the scope of this Act may be employed in the territory of the Republic of Hungary on the basis of a permit. Work permits shall be issued under the general provisions on the authorisation of employment of foreign nationals in Hungary, with the exception that the work permit can be issued for a maximum of three months per calendar year without the prior assessment of the situation in the labour market. A separate legal rule may allow for the issuing of work permits for longer periods of time under the same conditions.

Article 16

(1) The persons concerned may apply to the public benefit organisation established for this purpose for the reimbursement of expenses related to the fulfilment of the legal conditions for employment. These expenses include, in particular, the costs of proceedings for the prior certification of the necessary level of education, of specialised training and of compliance with occupational health requirements.

(2) The detailed rules of the proceedings for the issuing of work permits and the registration shall be regulated by a separate legal rule.

Duties of the Public Service Media

Article 17

(1) Public service media in Hungary shall provide, on a regular basis, for the gathering and

transmission of information on Hungarians living abroad and shall transmit information on Hungary

and the Hungarian nation to Hungarians living abroad. The purpose of this information shall be:

a) the transmission of Hungarian and universal spiritual and cultural values,

b) the forming of an unbiased picture of the world, of Hungary and of the Hungarian nation,

c) the preservation of the awareness of national identity, of the mother tongue and culture of the

Hungarian minority communities.

(2) The Republic of Hungary shall provide for the production and broadcasting of public service

television programmes for the Hungarian communities living abroad through the establishment and

operation of an organisation devoted to such purposes. The financial resources necessary for such programmes shall be provided by the state budget.

Assistance to Organisations Operating Abroad

Article 18

(1) The Republic of Hungary shall support organisations operating in neighbouring countries and

promoting the goals of the Hungarian national communities living in neighbouring countries.

(2) The organisations specified in paragraph (1) may apply to the public benefit organisation

established for this purpose and operating in a lawful manner if their goals include, in particular, the following:

a) the preservation, furtherance and research of Hungarian national traditions,

b) the preservation and fostering of the Hungarian language, literature, culture and folk arts,

c) the promotion of higher education of Hungarians living abroad by facilitating the work of

instructors from Hungary as visiting lecturers,

d) the restoration and maintenance of monuments belonging to the Hungarian cultural heritage,

e) the enhancement of the capacity of disadvantaged settlements in areas inhabited by Hungarian

national communities living abroad to improve their ability to preserve their population and to

develop rural tourism,

f) the establishment and improvement of conditions of infrastructure for maintaining contacts with

the Republic of Hungary

g) the pursuance of other activities promoting the goals specified in paragraph (1).

CHAPTER III

RULES OF PROCEDURE OF APPLICATION FOR BENEFITS AND ASSISTANCE

“Certificate of Hungarian Nationality” aud “Certificate for Dependants of Persons of

Hungarian Nationality”

Article 19

(1) Benefits and assistance specified in this Act may be received by presenting either the “Certificate of Hungarian Nationality or the “Certificate for Dependants of Persons of Hungarian Nationality”, both of which may be issued under the conditions specified in Article 20 at the request of persons of both Hungarian and non-Hungarian nationality.

(2) From the Hungarian central public administration body (hereinafter referred to as “the evaluating authority”) designated by the Government of the Republic of Hungary for this purpose:

a) persons of Hungarian nationality falling within the scope of this Act may request a “Certificate

of Hungarian Nationality” with a photo,

b) a “Certificate for Dependants of Persons of Hungarian Nationality” with a photo may be

requested by spouses of non-Hungarian nationality living together with persons specified in point

a) and children of minor age being brought up in the same household, provided that:

the applicant meets the requirements set out in points a) and b) of paragraph (1) of Article 1 and the recommending authority specified in Article 20 has issued the recommendation; and neither an expulsion order nor a prohibition of entry or stay, issued by the competent Hungarian authorities on the basis of grounds determined in a separate Act, is in effect against the applicant in Hungary; and no criminal proceedings have been instituted against the applicant in Hungary for intentional criminal offence.

(3) In addition to the requirements specified in paragraph (2), the “Certificate for Dependants of Persons of Hungarian Nationality ” shall also be conditional upon whether the person of Hungarian nationality entitling the dependants in question to submit an application for the “Certificate for Dependants of Persons of Hungarian Nationality” is already in the possession of, or entitled to, a “Certificate of Hungarian Nationality”. The withdrawal of the “Certificate of Hungarian Nationality” shall entail the withdrawal of the “Certificate for Dependants of Persons of Hungarian Nationality “.

Article 20

(1) The evaluating authority shall issue the “Certificate of Hungarian Nationality” if the applicant is in the possession of a recommendation which has been issued by a recommending organisation representing the Hungarian national community in the neighbouring country concerned, and being recognised by the Government of the Republic of Hungary as a recommending organisation, and which:

a) certifies, on the basis of a declaration made by the applicant (or in the case of a minor by his/her

statutory agent), that the applicant is of Hungarian nationality,

b) certifies the authenticity of the signature of the applicant and

c) includes the following:

(2) The recommendation required for the issuing of the “Certificate for Dependants of Persons of Hungarian Nationality” shall certify, instead of the information specified in paragraph (1) point a), the family relationship between the applicant and the person of Hungarian nationality falling within the scope of this Act.

(3) The Government of the Republic of Hungary shall recognise an organisation representing the Hungarian community in the given neighbouring country as a recommending organisation if it is capable of:

a) representing the Hungarian community living in the given country in its entirety,

b) providing for the organisational and personnel conditions for receiving and evaluating

applications for recommendation.

Article 21

(1) The period of validity of the Certificate

a) shall expire on the day of the eighteenth birthday in the case of minors,

b) shall be five years in the case of persons between 18 and 60 years of age,

c) hall be indefinite in the case of persons over 60 years of age.

(2) If the period of validity of the Certificate expires, the proceedings specified in Articles 19-20

shall be repeated upon request.

(3) The Certificate shall be withdrawn by the evaluating authority if

a) the recommending organisation has withdrawn its recommendation due to the submission of false data by the bearer of the Certificate in the application process,

b) its bearer has been granted an immigration or permanent residence permit,

c) its bearer bas acquired Hungarian citizenship,

d) its bearer has been recognised as a refugee or temporarily protected person by the authorities responsible for refugee matters,

e) its bearer has been expelled from the territory of the Republic of Hungary, or a prohibition of

entry or stay bas been issued against him/her,

f) criminal proceedings have been instituted against the bearer in Hungary,

g) the Certificate bas been used in an unauthorised way or bas been forged,

h) the family relationship entitling the bearer to use the Certificate for Dependants bas ceased to

exist,

i) upon request by the bearer of the Certificate.

(4) The recommending organisation shall also be notified of the final decision on the withdrawal of

the Certificate.

(5) The Certificate shall contain the following data of the entitled person:

a) family and given name (also the maiden family and given name in the case of women) as it is

used officially in the neighbouring country of residence (in Latin script), and in the case of

persons of Hungarian nationality in Hungarian as well,

b) name of the place of birth as it is used officially in the neighbouring country and in Hungarian,

c) date of birth and gender,

d) mother’s name as it is officially used in the neighbouring country of residence (in Latin script)

and in the case of persons of Hungarian nationality in Hungarian as well,

e) passport photo, citizenship or reference to stateless status,

f) signature in the entitled person’s own hand, and

g) date of issue, period of validity and number of the document.

(6) Notes and certifications required for access to benefits and assistance available under this Act

shall be recorded in the Appendix to the Certificate.

(7) In order to ensure the authenticity of the Certificate and to supervise the granting of benefits, the evaluating authority (for the purpose of the application of these provisions: the data handling organ) shall keep records of the data of the Certificates, the identification marks in the Appendices, the foreign address of the bearers, the family relationship entitling the bearer to the document, the number and period of validity of the permit entitling to stay as well as the data specified in paragraph (3). The data contained in the records may be handled by the data handling organ until the withdrawal or the expiry of the period of validity of the Certificate. The data contained in the records may be forwarded to the Hungarian Central Statistical Office (KSH) for statistical purposes. Bodies responsible for providing and keeping records of benefits and assistance may also receive those data for the purpose of verifying entitlement and preventing abuse, and so may Courts in charge of criminal proceedings, law enforcement bodies, national security services and the alien policing authority.

(8) For the purpose of evaluating applications and examining the existence of reasons for the withdrawal of the Certificate, the evaluating authority may request information from the following organs:

a) the Central Registry of Aliens on whether the applicant is subject to proceedings under the law on aliens, or on any order of expulsion or prohibition on entry to and stay in Hungary against the applicant, as well as on the details of the residence permit entitling the applicant to stay in Hungary,

b) organs responsible for naturalisation on issues related to the acquisition of Hungarian citizenship,

c) the Central Registry of Refugees on recognition as a refugee or temporarily protected person,

d) the Criminal Records Office on criminal proceedings in process.

Article 22

(1) Proceedings of the evaluating authority shall be governed by the provisions of Act IV of 1957 on the General Rules of Public Administration Procedures. The costs of public administration

procedures shall be covered by the State.

(2) The applicant may institute proceedings in Court against a final administrative decision on the appeal against the first instance decision regarding the issue or withdrawal of a Certificate by the evaluating authority. The Court may alter the administrative decision and its proceedings shall be governed by the provisions of the Code of Civil Procedure.

(3) The detailed rules of procedure of the evaluating authority and the order of registration of the issued Certificates, as well as the data content and form of the Certificates, shall be regulated by a separate legal rule.

Use of Benefits on the Territory of the Republic of Hungary

Article 23

(1) Hungarian persons living abroad shall be entitled to use the benefits set out in Article 4, paragraph (1) of Article 7, Article 8, Article 10, paragraph (2) of Article 11 and Article 12 – under the conditions determined in the aforementioned Articles - by presenting their Certificates (Article 19) during their lawful stay in the Republic of Hungary.

(2) The state-run organisations and institutions granting the benefits specified in paragraph (1) and economic organisations providing travel benefits shall receive the financial resources necessary for granting these benefits out of the central state budget.

Application Procedures for Assistance Available in the Republic of Hungary

Article 24

(ď) The Government shall establish public benefit organisation(s) in order to evaluate the applications of and distribute assistance for persons (organisations) filling within the scope of this Act.

(2) The founding document of the public benefit organisation, taking into account the provisions of Act CLVI of 1997 on Public Benefit Organisations, shall contain the goals of the activities and the range of applications to be evaluated by it and shall determine its main decision-making body as well.

(3) Applications for publicly advertised assistance under this Act may be submitted to the respective public benefit organisation competent according to their subject matter.

(4) Data and documents required in the advertisement by the respective public benefit organisation shall be attached to the applications.

(5) In the case of a favourable decision, the applicant and the public benefit organisation shall conclude a civil law contract containing the conditions of assistance and the amount thereof, as well as determining the purpose of the use of assistance and the rules of rendering accounts thereof.

(6) The financial resources required for the activities of such public benefit organisation(s) shall be provided, on an annual basis, in a separate group of appropriations of the central state budget.

Application Procedures for Assistance Available in Neighbouring Countries

Article 25

(1) Requests (applications) for assistance regulated in this Act may be submitted by persons (organisations) falling within the scope of this Act to lawfully operating non-profit organisations established in the neighbouring country of their permanent residence (registered office) for this purpose (hereinafter referred to as “foreign public benefit organisations”).

(2) The civil law contract concluded between the public benefit organisation established in Hungary and the foreign public benefit organisation established for the evaluation of applications and the granting of assistance shall contain the required range of data, which are to be supported by documents, declarations, planning or documentation, etc.

(3) The public benefit organisations operating in Hungary shall evaluate the application based on the data specified in the civil law contract as laid down in paragraph (2) and on the opinion of the foreign public benefit organisation.

(4) Assistance shall be granted to applicants by the Hungarian public benefit organisation on the basis of a civil law contract. This contract shall determine the conditions of the assistance and the amount thereof as well as the purpose of the use of such assistance and the rules of rendering accounts thereof.

Central Registration of Assistance

Article 26

(1) For the purpose of co-ordinating the entire system of assistance, a central registry of applications for assistance and the relevant decisions made by public benefit organisations established for their evaluation shall be set up.

(2) The Government shall designate the central public administration organ responsible for managing the records.

(3) The organ managing the records shall handle the following data:

a) name, permanent address (registered office) and document number of those submitting applications for assistance,

b) the type of assistance sought,

c) the amount of assistance granted.

(4) Data specified in paragraph (3) may be handled by the organ managing the records for ten years from the date of the granting of assistance.

(5) Data from the records shall be made available to public benefit organisations established in Hungary and in the neighbouring countries for the purpose of evaluating applications for assistance, as well as to the central public administration organs of Hungary responsible for providing the financial resources for assistance.

CHAPTER IV

FINAL PROVISIONS

Article 27

(1) This Act shall enter into force on 1 January 2002.

(2) From the date of accession of the Republic of Hungary to the European Union, the provisions of this Act shall be applied in accordance with the treaty of accession of the Republic of Hungary and with the law of the European Communities.

Article 28

(1) The Government shall be empowered to regulate by decree:

a) the provisions on the assignment of the national public administration organ entitled to issue, withdraw and register the Certificates, as well as on the assignment of its superior organ, on the definition of their competencies and on the rules of procedure of the issuing, replacement, withdrawal and registration of such Certificates,

b) the detailed rules of travel benefits for persons falling within the scope of this Act,

c) the detailed rules related to the provision and use of student benefits for persons specified in paragraph (1) of Article 10 of this Act.

(2) The Government shall ensure the establishment of Hungarian public benefit organisation(s) evaluating applications and allocating assistance under this Act. The Government shall also ensure the co-ordination of the activities of public benefit organisations already operating for this purpose, the appropriate modification of their founding documents and the reallocation of resources in this framework.

Article 29

1) The Minister of the Interior and the Minister of Foreign Affairs shall determine in a joint decree, with respect to educational assistance with the consent of the Minister of Education, the detailed rules on registering the Certificates, as well as the requirements of the content and form of the Certificates.

(2) The Minister of Economic Affairs shall:

a) determine, in a joint decree with the Minister for Foreign Affairs, the rules of procedure and registration related to work permits for Hungarians living abroad and designate the public administration organ responsible for carrying out these duties,

b) be empowered to regulate by decree the conditions for issuing work permits for a period longer than the one specified in Article 15 of this Act with regard to employees falling within the scope of this Act, or for a particular group of employees, in consensus with the Minister for Youth and Sports Affairs in cases involving professional sportspersons.

(3) The Minister of Foreign Affairs shall be empowered to substitute his own declaration for the recommendation specified in Article 20 of this Act in cases deserving exceptional treatment on grounds of equity in the course of proceedings of the evaluating authority designated in Article 19, and furthermore in cases where the proceedings specified in paragraph (1) of Article 20 are impeded, to ensure the smooth conduct of administrative proceedings.

(4) The Minister of National Cultural Heritage shall determine by decree the detailed rules of benefits available to Hungarians living abroad with respect to the use of the services provided by museums and public cultural institutions.

(5) The Minister of Education, with the consent of the Minister of Foreign Affairs, shall determine by decree the detailed rules on further training for Hungarian teachers living abroad, as well as detailed rules on the benefits set out in Article 9, Articles 11 and 12, paragraph (1) of Article 13 and Article 14 of this Act, including the extent of such assistance.

APPENDIX II

PROGRAMME

of the visit of Mr Erik Jurgens to Budapest and Bratislava

11-13 March 2002

Monday 11 March 2002:

12.30 Working lunch with the members of the members of the Hungarian delegation to PACE, hosted by Mr Laszlo Surjan, Chairman of the Hungarian delegation

17.00       Meeting with Mr János Báthory, Head of the Office for National and
Ethnic Minorities

Tuesday 12 March 2002:

8.30 Meeting with Dr János Martonyi, Minister on Foreign Affairs

10.00        Meeting with Mr László Kovács, President of the Hungarian Socialist Party

11.00        Meeting with Mr Zsolt Németh, Vice-President of the FIDESZ-Hungarian Civic Party

12.00        Meeting with Dr Kinga Gál, Deputy Head of the Government Office of Hungarian Minorities Abroad

13.00       Working lunch with the leaders of Self-Governments of German, Romanian, Slovakian and Roma minorities living in Hungary

15.00       Meeting with Dr Szent-Iványi, Chairman of the Committee on Foreign
Affairs, and fraction leader of the Alliance of Free Democrats

17.53 Departure by train to Bratislava

Wednesday 13 March 2002

10.00       Meeting with Mr Jaroslav Chlebo, State Secretary of the Ministry of Foreign Affairs of the Slovak Republic

11.45 Departure to National Council of the Slovak Republic

12.00       Working lunch given by Mr Peter Weiss, Chairman of the Slovak Delegation to the Parliamentary Assembly of the Council of Europe

14.00       Meeting with Mr Laszló Nagy, Chairman of the Committee on Human Rights and Minorities of the National Council of the Slovak Republic

15.30       Meeting with Mr Eduard Kukan, Minister of Foreign Affairs of the Slovak Republic

Evening:       Departure by train to Vienna

APPENDIX III

PROGRAMME

of the visit of Mr Erik Jurgens to Bratislava, Budapest and Bucharest

4-6 December 2002

Wednesday 4 December 2002

10 h       Arrival of Mr Jurgens at Vienna Airport

12 h        Meeting with Mr Mikuláš Dzurinda, Prime Minister of Slovakia,

13 h 45       Lunch with the Parliamentary Delegation of Slovakia

15 h 30       Meeting with Mr Eduard Kukan, Minister of Foreign Affairs of Slovakia,

16 h 30       Meeting with representatives of the Hungarian minority:

Mr Béla Bugár, Vice-Chairman of the National Council of the Slovak Republic

Mr Gyula Bárdos, Fraction Chairman of the Hungarian Coaltion Party

20 h 50       Departure of Mr Jurgens from Vienna

21 h 40       Arrival in Budapest

Thursday 5 December 2002

8 h 30       Breakfast with Dr Csaba Tabajdi, Chairperson of the Parliamentary Delegation of Hungary to PACE

10 h       Meeting with Mr László Kovács, Minister for Foreign Affairs

11 h       Meeting with Mr Vilmos Szabó, Political Secretary of State, responsible for minority affairs

12 h 30 –       Meeting with Dr Katalin Szili, Speaker of the Hungarian National Assembly

12 h 50

13 h        Working lunch with the Hungarian parliamentary delegation to PACE

14 h 30       Meeting with Mr József Bálint-Pataki, President of the Office for Hungarians Living Abroad

17 h 20       Departure of Mr Jurgens from Budapest

19 h 40       Arrival in Bucharest

20 h 30       Official dinner hosted by the President of the Romanian Parliamentary Delegation to PACE

Friday 6 December 2002

10 h       Meeting with Mr Adrian Năstase, Prime Minister of Romania

11 h       Meeting with the members of the Romanian Parliamentary Delegation to the PACE under the chairmanship of Mr Ionel Olteanu

12 h       Meeting with the leaders of Democratic Union of the Hungarians living in Romania, Mr Bela Mercu and Mr Uno Kelemen

13 h 15       Luncheon hosted by the leadership of the Ministry for Foreign Affairs

APPENDIX IV

Strasbourg, 22 October 2001       Restricted

<cdl\doc\2001\cdl-inf\019-e>       CDL-INF (2001) 19

168 / 2001

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW

(VENICE COMMISSION)

REPORT ON THE

PREFERENTIAL TREATMENT

OF NATIONAL MINORITIES

BY THEIR KIN-STATE

adopted by the Venice Commission

at its 48th Plenary Meeting,

(Venice, 19-20 October 2001)

Introduction

On 21 June 2001, Romania’s Prime Minister, Mr A. Nastase, requested the Venice Commission to examine the compatibility of the Act on Hungarians living in neighbouring countries, adopted by the Hungarian Parliament on 19 June 2001, with the European standards and the norms and principles of contemporary public international law.

On 2 July 2001, the Hungarian Minister of Foreign Affairs, Mr J Martonyi, requested the Venice Commission to carry out a comparative study of the recent tendencies of the legislations in Europe concerning the preferential treatment of persons belonging to national minorities living outside the borders of their country of citizenship.

At its plenary session of 6-7 July 2001, the Venice Commission decided to undertake a study, based on the legislation and practice of certain member States of the Council of Europe, on the preferential treatment by a State of its kin-minorities abroad. The aim of the study would be to establish whether such treatment could be said to be compatible with the standards of the Council of Europe and with the principles of international law.

A working group was thereafter formed, consisting of Messrs Franz Matscher, François Luchaire, Giorgio Malinverni and Pieter Van Dijk. A meeting was held in Paris on 18 September 2001. The Rapporteurs met with representatives of the Romanian and the Hungarian Governments respectively, in order to obtain certain clarifications following the information, which both parties had submitted, at the Commission’s request, in August.

The present report was prepared on the basis of comments by Messrs. Matscher, Luchaire, Malinverni and Van Dijk; it was discussed within the Sub-Commission for the Protection of Minorities on 18 October 2001, and was subsequently adopted by the Commission at its 48th Plenary Meeting held in Venice on 19-20 October 2001.

The concern of the “kin-States” for the fate of the persons belonging to their national communities8 (hereinafter referred to as “kin-minorities”) who are citizens of other countries (“the home-States”) and reside abroad is not a new phenomenon in international law.

Besides some few general principles of customary international law, the pertinent international agreements entrust home-States with the task of securing to everybody within their jurisdiction the enjoyment of fundamental human rights, including minority rights, and assign to the international community as a whole a role of supervision of the home-States’ obligations9. Kin-States, however, have shown their wish to intervene more significantly, and directly, i.e. parallel to the fora provided in the framework of international co-operation in this field10, in favour of their kin-minorities.

The main tool which kin-States dispose of in this respect is the negotiation of multilateral or bilateral agreements aiming at the protection of their kin-minority, with the relevant home-States.

The bilateral approach to minority protection was first attempted after the collapse of the Russian, Austro-Hungarian and Ottoman empires after the First World War, under the aegis of the League of Nations11. It was adopted again after World War II. The experience of South Tyrol is particularly interesting. Following the peace treaty of Saint-Germain en Laye (1919), South Tyrol had been annexed to Italy against the will of the local population (a few thousands Italians and 280,000 South-Tyrolese – the latter acquired Italian citizenship). No protection had been afforded to this minority during the fascist years. In 1945, the South-Tyrolese claimed a right to self-determination. As a measure of compensation, the Allies urged Italy and Austria to find a solution through a bilateral agreement, which was reached on 4 September 1946 (the Gruber-de Gasperi Agreement, later annexed to the Peace Treaty between the Allied Powers and Italy of 10 February 1947). The region was thereby given limited autonomy. After the Vienna Treaty of 15 May 1955 re-establishing the full independence of Austria, the latter sought a better implementation of the Agreement, and requested further bilateral negotiations, which Italy, between 1958 and 1961, refused. In 1959, Austria brought the case before the General Assembly of the United Nations, which, through two resolutions of 1960 and 1961 respectively, prompted Italy and Austria to engage in negotiations, thus ratifying implicitly the right of Austria to care for the fate of the South-Tyrolese on the basis of the Treaty of Paris. The conflict escalated into terrorist attacks. In 1969, the “package agreements” (“pacchetto”) in favour of the South-Tyrolese minority were agreed upon. In summer 1992 the Austrian Government issued a statement that the Italian Government had finally implemented the package. In 1996, Austria and Italy informed the United Nations that a mutually satisfactory solution had been found. Nowadays, Austria continues to supervise the implementation of the “package”, and, in the light of the good relations which now exist between the two countries, Italy does not challenge Austria’s right to do so.

In the 1990s, subsequent to the end of the Cold War and the collapse of communism, the issue of the protection of minorities became a prominent one, and the wish of the countries of Central and Eastern Europe to play a decisive role in the protection of their kin-minorities became even more apparent12.

Provisions to the extent that the kin-State cares for its kin-minorities abroad and fosters its links with them were indeed included in a number of new Constitutions dating back to those years.

For example, Article 6 of the Hungarian Constitution (revised in 1989) provides:

Article 7 of the Romanian Constitution (1991) reads:

Article 5 of the Slovenian Constitution (1991) provides, inter alia, that:

Article 49 of the Constitution of the “Former Yugoslav Republic of Macedonia” (1991) stipulates that:

Article 10 of the Croatian Constitution (1991) provides that:

Article 12 of the Ukrainian Constitution (1996) similarly provides that

Article 6 of the 1997 Polish Constitution provides:

“The Republic of Poland shall provide assistance to Poles living abroad to maintain their links with the national cultural heritage.”

Article 7a of the Slovak Constitution (amended in 2001) provides:

In the same period, the treaty approach to minority protection re-emerged – and on a large scale. Germany, in order to secure its borders and to afford protection to its kin-minorities which after World War II had been placed under the rule of central and eastern European states, concluded

agreements on friendly co-operation and partnership, notably with Poland, Bulgaria, Hungary and Romania13. Hungary concluded similar agreements with three of its neighbouring countries: Ukraine, Croatia and Slovenia14.

The potentialities of bilateral treaties in respect of reducing tensions between kin-states and home-states appeared to be significant, to the extent that they can procure specified commitments on sensitive issues, while multilateral agreements can only provide for an indirect approach to those issues15. Furthermore, they allow for the specific characteristics and needs of each national minority as well as of the peculiar historical, political and social context to be taken into direct consideration.

Thus, the European Union regarded bilateral treaties as an attractive tool for guaranteeing stability in Central and Eastern Europe. In 1993, it endorsed and launched a French initiative (“the Balladur initiative”) towards concluding a Pact on Stability in Europe. It aimed at achieving “stability through the promotion of good neighbourly relations, including questions related to frontiers and minorities, as well as regional co-operation and the strengthening of democratic institutions through co-operation arrangements to be established in the different fields that can contribute to the objective”16. The Pact, which was signed by 52 States and was adopted in 1995, concerned Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia, all of which had expressed an interest in joining the European Union. These States were called upon “intensifying their good-neighbourly relations in all their aspects, including those related to the rights of persons belonging to national minorities”; this intensification was deemed to require the effective implementation of the principles of sovereign equality, respect of the rights inherent in sovereignty, refraining from the threat or use of force, inviolability of frontiers, peaceful settlement of disputes, non-intervention in internal affairs, respect for human rights, including the rights of persons belonging to national minorities, and fundamental freedoms, including freedom of thought, conscience, religion or belief, equal rights and self-determination of peoples, cooperation amongst States and fulfilment in good faith of obligations under international law17.

About a hundred new and existing bilateral and regional co-operation agreements on, inter alia, minority protection were included in the Pact.

The States participating in the Pact committed themselves, in the Final Declaration, to compliance with the principles of the OSCE. In the event of problems over observance of the agreements, they would rely on the existing OSCE institutions and procedures for preventing conflict and settling disputes peacefully. These include the possibility of consulting the High Commissioner on National

Minorities (Article 15 of the Final Declaration) and that of referring disputes concerning the interpretation or implementation of the treaties to the International Conciliation and Arbitration Court (Article 16 of the Final Declaration).

Under the auspices of the Pact, two further bilateral treaties on cooperation were signed, between Hungary and Slovakia (1995) and between Hungary and Romania (1996) respectively18.

Stability and peace, it is well known, cannot be achieved without a satisfactory protection of national minorities. Thus, all the bilateral treaties on friendly relations in question contain provisions on the protection of the (respective19) minorities20. In the context of these bilateral agreements, kin-States attempt to secure a high level of protection to their minorities , whereas home-States aim at achieving an equal treatment and integration of the minorities within their borders, thus preserving the integrity of the latter.

In certain cases, the friendship treaties refer to pre-existing bilateral instruments specifically concerning minorities (for example, the co-operation Treaty between Hungary and Slovenia follows 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 of 6 November 1992, and the Treaty between Hungary and Ukraine on the Foundations of Good Neighbourly Relations and Co-operation follows the Declaration on the principles of co-operation between the Republic of Hungary and the Ukrainian Soviet Socialist Republic in guaranteeing the rights of national minorities of 31 May 1991.)

In other cases, a specific instrument on minorities follows in time the bilateral treaty; the Treaty between Hungary and Croatia on Friendly Relations and Cooperation, for instance, was later complemented by a Convention on the protection of the Hungarian minority in the Republic of Croatia and the Croatian minority in the Republic of Hungary (5 April 1995). Similarly, the Declaration on the principles guiding the co-operation between the Republic of Hungary and the Russian Federation regarding the guarantee of the rights of national minorities of 11 November 1992 follows and refers to the Treaty between the Republic of Hungary and the Russian Soviet Federative Socialist Republic on friendly relations and co-operation of 6 December 1991.

These treaties and conventions usually contain mutual commitments to respect international norms and principles regarding national minorities. They often incorporate soft law provisions, such as the Council of Europe’s Parliamentary Assembly’s Recommendation no. 1201 (1993) and the CSCE Copenhagen Document (1990), and, by doing so, give them binding effect in their mutual relations.

A detailed comparative analysis of the content of these treaties goes far beyond the object of the present document. It is sufficient for our purposes to point out that they provide for certain “classic” core rights (right to identity; linguistic rights; cultural rights; education rights; rights related to the use of the media; freedom of expression and association; freedom of religion; right to participate in decision-making processes). Sometimes, more rarely, other rights such as that to trans-frontier contacts and preservation of the architectural heritage, are included. Certain treaties grant collective rights or certain forms of autonomy. Further, some of them emphasise the duties of the persons belonging to the minorities in respect of their home-States.

These treaties are, to a greater or lesser degree, framework treaties: they need to be implemented through specific pieces of legislation or through intergovernmental agreements on specific matters.

The implementation of the treaties involves two distinct questions: on the one hand, the parties must respect the obligations which they have reciprocally undertaken; on the other hand, they must pursue bilateral talks on the matters which are the object of the treaties with a view to committing themselves to new or different obligations. The effective and correct implementation of the treaties, however, is generally not subjected to any legal control: indeed, none of these treaties sets up a jurisdictional or legal mechanism of control21. Their implementation is rather vested in joint intergovernmental commissions (normally, representatives of the minorities sit in each governmental delegation, but they do not have a veto power). These commissions are to be convened at regular intervals, or whenever it is deemed necessary, and are normally empowered with making recommendations to their respective governments as regards the execution or even the modification of the treaties.

There is no explicit sanction for the failure by one Party to co-operate in implementing a treaty.

Insofar as most of these treaties have been included in the Pact on Stability, any State could apply to the International Conciliation and Arbitration Court, seeking the solution to a dispute or the interpretation of a provision of the bilateral treaty in question. In practice, however, this has never been attempted. Furthermore, the assistance of the OSCE High Commissioner on National Minorities could be sought in pursuance of Article 15 of the Final Declaration of the Pact on Stability, but never was.

In addition, inasmuch as the treaties in question embody provisions of the Framework Convention, their implementation falls, if only indirectly, within the scope of competence of the relevant Advisory Committee and of the Committee of Ministers of the Council of Europe; indeed, States have submitted, though only indirectly, detailed information on these matters in their reports.

As regards domestic remedies, the theoretical possibility, in countries whose constitutional system allows treaty rules to be directly applicable in domestic law, of bringing before a domestic court the matter of the failure to respect a self-executing treaty has not been used so far (and does not appear very likely, due in particular to the little awareness of this possibility amongst the legal practitioners).

It follows that, as things stand nowadays, if a party refuses to participate in bilateral talks on the implementation of a treaty, only political pressure coming from either the other party or the international community can persuade it to do so.

Yet, this refusal would be in breach not only of the specific obligation, undertaken in the treaty, to conduct negotiations on the measures of implementation of the said treaty (a breach, therefore, of the principle pacta sunt servanda), but also of the general principle of international law according to which “in their mutual relations, States shall act in accordance with the principles and rules of friendly neighbourly relations which must guide their action at international level, particularly in the local and regional context”22.

In addition to the bilateral agreements and to the domestic legislation and regulations implementing them, a number of European States have enacted specific pieces of legislation or regulations, conferring special benefits, thus a preferential treatment, to the persons belonging to their kin-minorities24.

The following laws are worth remembering in this context:

The following are also worth noticing:

The Romanian and Italian laws confine themselves to referring to their “communities” or “minorities” living outside of their respective territories. The other laws under examination, instead, set out in detail the criteria that are to be met in order for an individual to fall within their ambit of application. These criteria are as follows:

This criterion flows from the very same ratio of these laws and is therefore common to them all (with the partial exception of the Russian one). It is not always explicitly set out (see the already mentioned Romanian and Italian laws; the Bulgarian law does not specify this in its Article 2, but it does so in the second chapter). The Hungarian act specifies that Hungarian nationality must have been lost for reasons other that by voluntary renunciation.

While the Italian and Romanian laws do not explicitly set out any criteria for establishing the national background, the other laws do, in greater or lesser detail.

Under the Slovak law, the Slovak “ethnic origin” derives from a “direct ancestor up to the third generation” (article 2 § 3 SL). For the Bulgarian law, it is necessary to have at least one ascendant of Bulgarian origin (article 2 BL). Under the Hungarian law, it is a Hungarian “national” he or she who so declares (article 1 HL). For the Russians, the compatriots are “those who share a common language, religion, culture, traditions and customs, as well as their direct descendants” (article 1 RuL).

As to the proof of the national background, the Slovak law requires a “supporting document” which may consist of a birth certificate, a baptism certificate, a statement by the registry office, a “proof of nationality” or a permanent residence permit; failing these, a written testimony of a Slovak countryman organisation abroad or the testimony of at least two fellow Slovak expatriates is required (article 2 § 4 SL). The Bulgarian law requires a document issued by a foreign authority or by an association of Bulgarians abroad or by the Bulgarian Orthodox Church; failing this, the Bulgarian background can be proved through judicial means (article 3 BL). The Russian law requires, besides the “free choice” of the individual, “supporting documents” of the previous Soviet or Russian citizenship or of the previous residence on the territory of Russia/URSS/RSFSR/FdR, or of the direct descent from immigrants (article 4 RuL).

The proof of the Hungarian background is more complex; if the wording of Article 1 § 1 of the Hungarian law seems to suggest that the mere declaration by the applicant suffices, it appears26 that the organisations representing the Hungarian national community in the neighbouring countries will have to investigate the applicant’s national background before issuing - or refusing – the relevant recommendation. However, it is not specified in the law what criteria they will be applying.

The Bulgarian and the Russian laws require that the person concerned reside on the territory of a foreign country (Articles 2 and 1 respectively), as does the Romanian law (Article 1). The Hungarian law prescribes that only those who reside in one of its neighbouring countries (with the exception of Austria) are entitled to the benefits in question (Article 1 § 1 HL). The Italian law is limited to the Italian minorities in Croatia and Slovenia27.

This requirement is contained in the Hungarian Law (Article 1 § 1). In fact, the obtainment of a permit of permanent stay in Hungary constitutes a ground for withdrawing the “Certificate of Hungarian Nationality” (Article 21 § 3 (b) HL). The Slovak law, instead, encourages expatriates to apply for permanent residence in Slovakia (Article 5 § 3 SL). The Greek special identity card amounts to a permit of stay of three years (Article 3 GMD).

Under the Slovak law, the “expatriate” must have at least a passive knowledge of the Slovak language, which must be certified by the results of his/her activities, or by the testimony of the Slovak organisation of his/her place of residence or the testimony of at least two fellow expatriates (article 2 §§ 6, 7 SL).

The Slovak law requires a basic knowledge of the Slovak culture, to be proved in the same way as the linguistic knowledge (see above). The Bulgarian law requires a “Bulgarian national awareness” (article 2 BL).

Under the Hungarian law, cohabiting spouses and minor children are entitled to receive the benefits under the Act (Article 1 § 2 HL). The Greek ministerial decision extends the benefits for the Albanians of Greek origin to their spouses and descendants who can prove their kinship through official documents (Article 1 § 2 GMD). The benefits under the Slovak law are extended to the Expatriate’s children under the age of 15 who are mentioned in the Expatriate Card (Article 4 § 1 SL)

The Hungarian, Slovak and Russian laws subordinate entitlement to specific benefits to the holding of a particular document. So does the Greek ministerial decision.

The nature of this document is not always the same.

Under the Greek regulation, it is (and is called) an identity card (bearing a photograph and the fingerprints of its holder), issued for a period of three years (renewable); it also functions as a permit of stay and a work permit (see the relevant statement/circular of the Greek Ministry of Public Order).

The Slovak “Expatriate Card”, which is issued for an indefinite period of time, contains the personal data of the holder, as well as his permanent address (the data of minor children can also be included, at the request of the person concerned, insofar as this is compatible with the applicable international treaties). This card does not amount to an identity card in that it is only valid when used together with a valid identification document (Article 4 § 2 SL) issued in the home-State. The holder of the card, however, is admitted to the Slovak territory without written invitation, visa and permit of stay.

The “Certificate of Hungarian Nationality” – which is issued for a period of five years or until the holder turns 18, or for an indefinite time if the holder is over sixty - bears a photograph of its holder and contains all his personal data (article 21 § 5 HL).

The Russian law prescribes that belonging to the category of “compatriots” can be proved – as well as through a Russian passport for Russian citizens or those holding a double nationality - through a certificate issued by the diplomatic or consular representations of the Russian Federation or by the Russian competent authorities (article 3 RuL). This certificate, unaccompanied by a photograph of its holder, does not amount to an identity card.

As regards the procedure for issuing the documents in question, they are issued by the authorities of the kin-State: a “central public administration body designated by the Hungarian Government (article 19 § 2 HL; the Slovak Ministry of Foreign Affairs (article 3 § 1 SL); the “competent authorities” or the Russian diplomatic missions or consulates abroad (article 3 RuL); the police department responsible for foreigners (article 1 GMD).

The kin-States’ consulates or embassies on the territories of the home-States may have a role in the procedure. Under article 1 of the Slovak law, the Slovak missions or consular offices may receive applications for the Expatriate Card, which they forward to the Ministry of Foreign Affairs for decision. Russian diplomatic missions or consulates can issue the certificate proving Russian origin (article 3 RuL). The Greek consular authorities do not and cannot play any role, given that the Greek special identity card can only be delivered to those who find themselves on the Greek territory (article 1 § 1 GMD).

The Hungarian law does not assign any role to the Hungarian consulates or diplomatic missions, but provides for a constitutive role of the organisations of Hungarians abroad in the procedure. The Certificate of Hungarian Nationality, in fact, is issued by the Hungarian authorities if the applicant has been “recommended” by one of these organisations, which have to verify the declaration made by the applicant about his/her belonging to the Hungarian minority, to certify the authenticity of his/her signature and provide, inter alia, the applicant’s photograph and personal data (article 20 § 1 HL). In the absence of such recommendation, the certificate cannot be issued28; no remedy is available against the refusal by an organisation to provide the recommendation. It has been noted above that the criteria, which the organisations are to use, are unclear.

A quite different role is assigned to such organisations under the Slovak law. Pursuant to article 2 § 5 SL, they can testify that an individual belongs to the Slovak minority in case he or she cannot provide the formal documents listed in article 2 § 4 SL. It must be remembered in this context that the Slovak law provides for a clear criterion for assessing national origin. Similarly, the Bulgarian law (article 3 BL) provides for the possibility of proving one’s Bulgarian origin through a statement of an association of Bulgarians abroad; the law, however, specifies what needs to be proved, i.e. to have at least on Bulgarian ascendant.

These benefits usually consist of: scholarships to students for the pursuit of their studies in the kin-State; reduction or exemption from fees for the use of cultural and educational facilities (such as museums, libraries and archives); support to educational institutions teaching in the kin-language in the home-States; training for teachers in the kin-language in the home-States (article 6 § 1 SL; article 17 RuL; articles 9 and 10 BL; article 7 BL; articles 4 and 9-14 HL), mutual recognition of academic diplomas (see the numerous agreements between Austria and Italy); access to academic career (articles 2 and 4 § 2 AL).

Article 10 § 1 of the Hungarian Law further provides for the granting of scholarships to students belonging to the kin-minority pursuing any kind of studies in institutions for higher education – irrespective of the language or curriculum - in the home-States.

Article 18 of the Hungarian Law sets out the bases for the assistance by Hungary of organisations operating abroad and promoting the knowledge and preservation of the Hungarian language, literature and cultural heritage.

Under Article 7 of the Hungarian Law, workers holding the Certificate of Hungarian Nationality are allowed to contribute to the health insurance and pension schemes. They are also entitled to immediate medical assistance in Hungary on the basis of bilateral social security agreements. Article 2 of the Romanian law refers to the possibility for members of Romanian communities to receive individual aid in special medical cases. Slovak expatriates may request exemption from Social Security payments abroad if they meet the conditions for receiving their rights on Slovak territory (article 6 § 1 (d)).

They consist of special rates for those who travel to or within the territory of the kin-State (see article 8 HL; see also article 6 § 3 SL which provides for special rates for retired, disabled or elderly expatriates).

Under the Slovak law, job-seekers holding a Slovak Expatriate Card are not required to apply for a work permit or for permanent residence in Slovakia (article 6 (b) SL). Under the Hungarian law, work permits can exceptionally be granted to kin-foreigners for a duration of three months without prior assessment of the needs of the labour market (article 15 HL). More, kin-foreigners may apply for reimbursement of the costs incurred for meeting the legal conditions for employment (article 16 HL).

Under the Slovak law, holders of an Expatriate Card wishing to enter the territory of Slovakia do not need any visa or invitation, insofar as this is possible under the applicable international agreements (article 5 § 1 SL). Under Article 5 of the Austrian Law, South Tyroleans as defined in the law do not need visas in order to stay in Austria.

Slovak expatriates are admitted to stay for a long period on Slovak territory by virtue of their Expatriate Cards (article 5 § 2 SL). The Greek Special Identity Card amounts to a permit of stay for the duration of its validity (up to three years, renewable) (articles 1 and 3 GMD).

Bulgarians are entitled to a special regime of costs relating to their stay or settling down on the Bulgarian territory (article 6 § 2 BL). The Romanian law provides the possibility for students wishing to pursue their studies in Romania to benefit from free accommodation in student hostels for the duration of their stay (other forms of support may be granted from the Government) (article 9 RL).

Under Article 6 § 2 of the Slovak law, expatriates have the right to own and acquire real estate. Under the Bulgarian Law, kin-foreigners can participate in privatisation, be reinstated in their property, inherit real estate (article 8 BL).

Under the Russian law (article 11 RuL), “compatriots” may be promptly granted Russian citizenship upon a simple request. Under the Slovak law, “expatriates” may apply for Slovak citizenship for outstanding personality reasons (article 6 § 1 c) SL).

Benefits are normally granted to kin-foreigners when they find themselves on the territory of the kin-State.

Under the Hungarian law, certain benefits are available in the home-State (see article 10 HL on benefits for students of public education institutions teaching in Hungarian in the neighbouring countries or of “any higher education institution”; article 12 HL on benefits to Hungarian teachers living abroad; article 13 HL: Education abroad in affiliated departments”; article 14 HL on “Educational assistance available in the native country”; article 18 HL on assistance to organisations operating abroad).

The paramount importance of an adequate and effective protection of national minorities as a particular aspect of the protection of human rights and fundamental freedoms and also in order to promote stability, democratic security and peace in Europe has been repeatedly underlined and emphasised. The full implementation of the international agreements on this matter – in primis the Framework Convention for the Protection of National Minorities, and also the Charter for Regional or Minority Languages as well as, be it less specifically, the European Convention on Human Rights – has become a priority for all the member States of the Council of Europe.

Against this background, the emerging of new and original forms of minority protection, particularly by the kin-States, constitutes a positive trend insofar as they can contribute to the realisation of this goal.

The practice of stipulating bilateral treaties on friendly co-operation or on minority protection is already the object of encouragement and assistance as well as of close scrutiny by the international community.

The more recent tendency of kin-States to enact domestic legislation or regulations conferring special rights to their kin-minorities had not, until very recently, attracted particular attention, nor aroused much, if any at all, interest in the international community. No supervision or co-ordination of the laws and regulations in question has so far been sought or attempted. Yet, the campaign surrounding the adoption of the Hungarian Act on Hungarians living in neighbouring countries shows the impellent necessity of addressing the question of the compatibility of such laws and regulations with international law and with the European standards on minority protection.

In the Commission’s opinion, the possibility for States to adopt unilateral measures on the protection of their kin-minorities, irrespective of whether they live in neighbouring or in other countries, is conditional upon the respect of the following principles: a) the territorial sovereignty of States; b) pacta sunt servanda; c) friendly relations amongst States, and d) the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination.

a.       The principle of territorial sovereignty of States

States enjoy exclusive sovereignty, hence jurisdiction, over their national territory30 This implies, in principle, jurisdiction over all persons, property and activities in their territory, and in their internal waters, territorial sea and the air space above their national territory. No other State or international organisation can exercise jurisdiction in the territory of a State without the latter’s consent. Public international law however confers specific powers to States as regards laws related to their embassies, ships or nationals abroad.

Legislative and administrative acts (as well as judicial ones) are emanations of that sovereign jurisdiction: their natural addressees are therefore the relevant inhabitants, and the natural place of application is the national territory.

A first question arises in this context: can the mere adoption of legislation with extraterritorial effects, per se, be seen as an interference with the internal affairs of the other State or States concerned and therefore an infringement of the principle of territorial sovereignty of states?

In order to provide an exhaustive answer, it is necessary to make a distinction, as regards the meaning of “extraterritoriality”, between the effects of a State’s legislation on foreign citizens, within that State’s territory or abroad, and the exercise of a State’s powers outside that State’s borders.

i.        The effects of a State’s legislation on foreign citizens

The mere fact that the addressees of a piece of legislation are foreign citizens does not, in the Commission’s opinion, constitute an infringement of the principle of territorial sovereignty. Indeed, there are numerous examples of legislative acts which consider foreign citizenship, not of a specific State but in general (for instance in private international law, regarding the penal jurisdiction of the State etc.), as “connecting points”. All these acts are in conformity with the general principles of international law.

A State can legitimately issue laws or regulations concerning foreign citizens without seeking the prior consent of the relevant States of citizenship, as long as the effects of these laws or regulations are to take place within its borders only. For example, a State can unilaterally decide to grant a certain number of scholarships to meritorious foreign students who wish to pursue their studies in the universities of that State.

When the law specifically aims at deploying its effects on foreign citizens in a foreign country, its legitimacy is not so straightforward. It is not conceivable, in fact, that the home-State of the individuals concerned should not have a word to say on the matter.

In certain fields such as education and culture, certain practices, which pursue obvious cultural aims31, have developed and have been followed by numerous States. It is mostly accepted, for instance, at least between States, which have friendly relations, that States grant scholarships to foreign students of their kin-minorities for their studies in the kin-language in educational institutions abroad. These institutions, on the other hand, are often financed by the kin-States. Similarly, it is common for States to promote the study of their language and culture also through incentives to be granted to foreign students, independently of their national background.

In these fields, if there exists an international custom, the consent of the home-State can be presumed and kin-States may take unilateral administrative or legislative measures32. Further, when a kin-State takes unilateral measures on the preferential treatment of its kin-minorities in a particular home-State, the latter may presume the consent of the said kin-State to similar measures concerning its citizens.

In fields, which are not covered by treaties or international customs, instead, the consent of the home-States affected by the kin-State’s measures should be explicit. So, to cite an example, if a State unilaterally decided to grant scholarships to foreign students of its kin-minorities irrespective of the link of their studies with the kin-State itself, this decision might be considered as interfering with the relevant home-States’ internal affairs (their educational policies, for example).

ii.       The exercise of State powers outside the national borders

In the absence of a permissive rule to the contrary – either an international custom33 or a convention - a State cannot exercise its powers, in any form, on the territory of other States34.

The grant by a State of administrative, quasi-official functions to non-governmental associations registered in another country constitutes an indirect form of state power: as such, it is not permissible unless specifically allowed.

This grant appears to be particularly problematic when these functions are neither allowed nor regulated under the law of the home-State. Under these circumstances, in fact, in performing them the associations in question would not be subjected to any effective legal control: the authorities of the home-State would have jurisdiction but might not recognise the bases for these acts, for the above-stated reason that the latter are not foreseen in that legal system; the kin-State, despite having provided for the bases for issuing the acts in question, would lack jurisdiction thereover, given that the associations are registered and operate abroad. This is even more applicable, when the conditions and limits of the exercise of this power are not clearly enunciated in the originating law.

Should a kin-State require any kind of certification in situ, in the Commission’s opinion the natural “actors” would be the consular authorities: which are duly authorised by the home-State, in conformity with international law35, to perform official acts on its territory. It is understood that these official acts must be of an ordinary nature, and the consulates must not be vested with tasks going beyond what is generally practiced and admitted.

In the latter respect, and with reference to the need expressed in various of the laws under examination to obtain proof of the national background of foreigners seeking access to the benefits provided to kin-minorities, the Commission considers that it is preferable (even if it is not required by international law) that the relevant legislation set out the exact criteria that must be employed in the assessment of the national background. This indication, in fact, would prevent consulates from being given discretionary power that, being exempted from any substantial, not merely formal judicial review, would risk becoming arbitrary. In this respect, the Commission wishes to refer, mutatis mutandis, to the Framework Convention, which, while enshrining the principle of the individual’s free choice as to affiliation to a minority, does not prevent States from requiring the fulfilment of certain criteria when it comes to granting privileges to the persons belonging to that minority. In other words, the personal choice of the individual is a necessary element, but not a sufficient one for entitlement to specific privileges.

Similar considerations pertain as concerns the associations of kin-minorities abroad. In the Commission’s view, a role of these associations cannot be excluded, if they are only required by the kin-States to provide information on precise, legally determined facts, in the absence of other supporting documents or material or if they are only entrusted with giving a non-binding informal recommendation for the consular authorities of the kin-State. For example, they may provide a statement about the circumstance that the grandfather of an individual was a citizen of the kin-State, in a case where any formal documents were missing.

b.       The principle that pacta sunt servanda

Treaties must be respected and performed in good faith36. When a State is party to bilateral treaties concerning, or containing provisions, on minority protection37, it must duly fulfil all the obligations contained therein, including that of pursuing bilateral talks with a view to assessing the state of implementation of the treaty and to addressing the possible enlargement or modification of the rights granted to the respective minorities.

Should possible difficulties in holding these bilateral talks lead to alternative, unilateral forms of intervention in the matters pre-empted by the treaty, this would be in breach of the obligation to perform treaties in good faith, at least unless all the existing procedures for settling the dispute

(including requests for intervention of the OSCE High Commissioner for National Minorities and of the International Conciliation and Arbitration Court) had been used in good faith38, and had proved ineffective.

Legislation or regulations on the preferential treatment of kin-minorities should therefore not touch upon areas demonstrably pre-empted by existing bilateral treaties, unless of course the home-State concerned had been consulted and had approved of this step or had implicitly – but unambiguously - accepted it, by not raising objections.

Similar considerations are valid in the case that a given area is not covered by specific rules of an existing treaty.

c.        The principle of friendly neighbourly relations

The framework of bilateral treaties connecting Central and Eastern European States draws from the principle of good neighbourliness and holds it as the main purpose of the treaties themselves.

The obligation for States to work towards the achievement of friendly inter-state relations derives also from a more general principle; Article 2 of the Framework Convention promotes the principles of good neighbourliness, friendly relations and co-operation among States. Friendly inter-state relations are indeed nowadays unanimously considered as a precondition for peace and stability in Europe.

States should accordingly abstain from taking unilateral measures, which would risk compromising the climate of co-operation with other States.

The legislation under examination touches upon sensitive areas for the reasons analysed above. One specific aspect thereof raises issues that deserve close examination: the issuing by the kin-State of a document that proves that its holder belongs to the kin-minority, and, in particular, the modalities of the issuing of the relevant documents.

This document, in its different forms (see above), has been justified by the States that have introduced it as a means to simplify of the administrative steps that the individual needs to take in order to have access to the benefits provided for by the legislation concerned.

To the extent that it allows easier access to these benefits, the Commission finds that this document can prove useful. However, it observes that in a number of countries this document has the characteristics of an identity document: it contains a photograph of its holder and all of his/her personal data. It makes reference to the national background of its holder. It is highly likely that the holders of these documents will use them as identity cards at least on the territory of the kin-State.

In such form, this document therefore creates a political bond between these foreigners and their kin-State. Such a bond has been an understandable cause of concern for the home-States, which, in the Commission’s opinion, should have been consulted prior to the adoption of any measure aimed at creating the documents in question.


In order to be used solely as a tool of administrative simplification, the Commission considers that the document should be a mere proof of entitlement to the services provided for under a specified law or regulation. It should not aim at establishing a political bond between its holder and the kin-State and should not substitute for an identity document issued by the authorities of the home-State.

d.       The respect of human rights and fundamental freedoms. The prohibition of discrimination.

States are bound to respect the international agreements on human rights to which they are parties. Accordingly, in exercising their powers, they must at all times respect human rights and fundamental freedoms. Amongst these, the prohibition of discrimination, provided for, inter alia, by the UN Charter, by the Universal Declaration of Human Rights39, by the International Covenant on Civil and Political rights40 and by the Framework Convention41.

In particular, States that are parties to the European Convention on Human Rights (hereinafter “the Convention” or ECHR) must secure the non-discriminatory enjoyment of the rights enshrined therein to everyone who is within their jurisdiction42. A State is held accountable under Article 1 of the Convention also for its acts with extraterritorial effects: all the individuals affected thereby, be they foreigners or nationals, may fall within the jurisdiction of that State.

The legislation and regulations that are the object of the present study aim at conferring a preferential treatment to certain individuals, i.e. foreign citizens with a specific national background. They thus create a difference in treatment (between these individuals and the citizens of the kin-State; between them and the other citizens of the home-State; between them and foreigners belonging to other minorities), which could constitute discrimination – based on essentially ethnic reasons - and be in breach of the principle of non-discrimination outlined above.

The discrimination must be invoked in relation to a right guaranteed by the Convention. Not all the benefits granted by the legislation under consideration refer, at least prima facie, to guaranteed rights. Some ECHR provisions could be pertinent: in primis Article 2 of the First Protocol; possibly, Article 8 of the Convention and Article 1 of the First Protocol.

The Strasbourg established case-law43 shows that different treatment of persons in similar situations44 is not always forbidden: this is not the case when the difference in treatment can be objectively and reasonably justified having regard to the applicable margin of appreciation. The existence of a justification must be assessed in relation to the aims pursued (which must be legitimate) and the effects that the measure in question causes, regard being had to the general principles prevailing in democratic societies (there must be a reasonable relation of proportionality between the legitimate aim pursued and the means employed to obtain it).

Article 14 prohibits discrimination between individuals based on their personal status; it contains an open-ended list of examples of banned grounds for discrimination, which includes language, religion, and national origin. As regards the basis for the difference in treatment under the laws and regulations in question, in the Commission’s opinion the circumstance that part of the population is given a less favourable treatment on the basis of their not belonging to a specific ethnic group is not, of itself, discriminatory, nor contrary to the principles of international law45. Indeed, the ethnic targeting is commonly done, for example, in laws on citizenship46. The acceptability of this criterion will depend of course on the aim pursued.

In this respect, the Commission finds it appropriate to distinguish, as regards the nature of the benefits granted by the legislation in question, between those relating to education and culture and the others.

Insofar as the first are concerned, the differential treatment they engender may be justified by the legitimate aim of fostering the cultural links of the targeted population with population of the kin-State. However, in order to be acceptable, the preferences accorded must be genuinely linked with the culture of the State, and proportionate. In the Commission’s view, for instance, the justification of a grant of educational benefits on the basis of purely ethnic criteria, independent of the nature of the studies pursued by the individual in question, would not be straightforward.

In fields other than education and culture, the Commission considers that preferential treatment might be granted only in exceptional cases, and when it is shown to pursue the genuine aim of maintaining the links with the kin-States and to be proportionate to that aim (for example, when the preference concerns access to benefits which are at any rate available to other foreign citizens who do not have the national background of the kin-State).

E.       Conclusions

Responsibility for minority protection lies primarily with the home-States. The Commission notes that kin-States also play a role in the protection and preservation of their kin-minorities, aiming at ensuring that their genuine linguistic and cultural links remain strong. Europe has developed as a cultural unity based on a diversity of interconnected languages and cultural traditions; cultural diversity constitutes a richness, and acceptance of this diversity is a precondition to peace and stability in Europe.

The Commission considers, however, that respect for the existing framework of minority protection must be held as a priority. In this field, multilateral and bilateral treaties have been stipulated under the umbrella of European initiatives. The effectiveness of the treaty approach could be undermined, if these treaties were not interpreted and implemented in good faith in the light of the principle of good neighbourly relations between States.

The adoption by States of unilateral measures granting benefits to the persons belonging to their kin-minorities, which in the Commission's opinion does not have sufficient diuturnitas to have become an international custom, is only legitimate if the principles of territorial sovereignty of States, pacta sunt servanda, friendly relations amongst States and the respect of human rights and fundamental freedoms, in particular the prohibition of discrimination, are respected.

Respect for these principles would seem to require that certain features of the measures in question be respected, in particular:

INDEX

A.       Historical background

B.       The bilateral approach to minority protection

C.       Domestic legislation on the protection of kin-minorities: analysis

D.       Assessment of the compatibility of the domestic legislation on the preferential treatment of kin-minorities with the European standards and with the norms and principles of international law

E.       Conclusions

APPENDIX V

V

APPENDIX VI

Sovereignty, responsibility, and national minorities:

statement by OSCE minorities commissioner

THE HAGUE, 26 October 2001 (OSCE) -- The following statement was issued today by Rolf Ekéus, OSCE High Commissioner on National Minorities:

"Violent inter-ethnic conflicts of the past decade, indeed the last century, have demonstrated the danger of extreme nationalism. National minorities have frequently suffered in these conflicts. The lessons of the past have underlined the necessity of respect for the rights of persons belonging to national minorities freely to express, preserve and develop their cultural, linguistic or religious identity free of any attempts at assimilation. While maintaining their identity, a minority should be integrated in harmony with others within a State as part of society at large. This is fundamental to international peace, security and prosperity.

"Protection of minority rights is the obligation of the State where the minority resides. History shows that when States take unilateral steps on the basis of national kinship to protect national minorities living outside of the jurisdiction of the State, this sometimes leads to tensions and frictions, even violent conflict. I am therefore obliged to focus special attention on situations where similar steps, without the consent of the State of residence, are contemplated.

"Since the Second World War, a legal regime has been developed following the principle that protection of human rights and fundamental freedoms, including for persons belonging to national minorities, is the responsibility of the State having jurisdiction with regard to the persons concerned. This is not only a cornerstone of contemporary international law and a requisite for peace, it is necessary for good governance, particularly in multi-ethnic States.

"National and State boundaries seldom overlap; in fact there are few pure 'nation-States'. National groups are therefore often divided by borders. It is a basic principle of international law that the State can act only within its jurisdiction which extends to its territory and citizenry. Although a State with a titular majority population may have an interest in persons of the same ethnicity living abroad, this does not entitle or imply, in any way, a right under international law to exercise jurisdiction over these persons. At the same time it does not preclude a State from granting certain preferences within its jurisdiction, on a non-discriminatory basis. Nor does it preclude persons belonging to a national minority from maintaining unimpeded contacts across frontiers with citizens of other States with whom they share common ethnic or national origins.

"Within the last decade there has been substantial progress by OSCE participating States in protecting persons belonging to national minorities. Through multilateral instruments norms have been developed and mechanisms created in support of the implementation of international standards relating to minorities.

"Bilateral treaties can serve a useful function in respect of national minorities in the sense that they offer a vehicle through which States can legitimately share information and concerns, pursue interests and ideas, and further protect particular minorities on the basis of the consent of the state in whose jurisdiction the minority falls. However, the bilateral approach should not undercut the fundamental principles laid down in multilateral instruments. In addition, States should be careful not to create such privileges for particular groups which could have disintegrative effects in the States where they live.

"In order to prevent conflict, protect minorities, integrate ethnic diversity and foster friendly relations between States, we must not erode the principles, standards and mechanisms that have been carefully developed in the past half-century. Indeed, States should not only ensure that policy and practice guarantee the minimum of minority rights, but they should promote full and effective equality between persons belonging to national minorities and those belonging to the majority." 

APPENDIX VII

Preferential treatment of national minorities by their kin-state: the case of the Hungarian Status Law of 19 June 2001 on ethnic Hungarians living in neighbouring countries

Documents

   

AS/Jur (2002) 35

Arguments and comments presented by Mr Ionel Olteanu (Romania, SOC) regarding the first version of the Report submitted by Mr Erik Jurgens, Rapporteur (AS/Jur (2002) 25 rev of 19 June 2001) and in connection with the Observations forwarded by the Hungarian Delegation regarding this report

(17 July 2002)

AS/Jur (2002) 40

Letter of 29 July 2002 from Mr Czaba Tabajdi, Member of the Hungarian Delegation to the Parliamentary Assembly of the Council of Europe, to Mr Erik Jurgens, Rapporteur

AS/Jur (2002) 38

Position of the Delegation of the Slovak Republic regarding the draft report prepared by the Rapporteur (AS/Jur (2002) 25) (26 August 2002)

AS/Jur (2002) 39

Memorandum by the Rapporteur (29 August 2002)

AS/Jur (2002) 58

Letter of 15 November 2002 from Mr Zoltán Taubner, Permanent Representative of Hungary to the Council of Europe

AS/Jur (2002) 25 rev 3

******

Draft report (11 June 2002)

Draft report revised (19 June 2002)

Draft report revised 2 (24 June 2002)

Draft report revised 3 (18 November 2002)

    Appendix I:

    Law of 19 June 2001 on Hungarians living in neighbouring countries

Appendix II

    Programme of the visit to Budapest and Bratislava on 11-13 March 2002

    Appendix III:

    Report of the Venice Commission on the preferential treatment of national minorities by their kin-state (CDL-INF(2001)19)

    Appendix IV:

    Memorandum of understanding between the Government of the Republic of Hungary and the Government of Romania

    Appendix V:

    Statement by the OSCE High Commissioner on National Minorities: Sovereignty, responsibility and national minorities

CLD (2001) 82

Act … 2001 on Hungarians living in neighbouring countries

CDL/Inf (2001) 19

Report of the Venice Commission on the preferential treatment of national minorities by their kin-State (adopted on 19-20 October 2001)

Reporting committee: Committee on Legal Affairs and Human Rights

Reference to committee: Docs 9153 and 9163, Reference 2634 of 25 September 2001

Draft resolution adopted by the Committee on 3 March 2003 with 3 abstentions

Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr G. Aliyev (alternate: Mr R. Huseynov), Mrs Arifi, Mr Arzilli, Mr Attard Montalto, Mr Barquero Vázquez, Mr Berisha, Mr Bindig, Mr Brecj, Mr Bruce, Mr Chaklein, Mrs Christmas-Mřller (alternate: Mrs Auken), Mr Cilevics, Clerfayt, Mr Contestabile, Mr Daly, Mr Davis, Mr Dees (alternate: Mr Janssen van Raaij), Mr Dimas, Mrs Domingues, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mrs Frimansdóttir, Mr Frunda, Mr Galchenko (alternate: Mr Shishlov), Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty (alternate: Mr Shybko), Mr Jansson, Mr Kelber, Mr Kelemen (alternate: Mr Németh), Mr Kontogiannopoulos, Mr S. Kovalev, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Livaneli, Mr Manzella, Mr Martins, Mr Mas Torres, Mr Masson (alternate: Mr Hunault), Mr McNamara, Mr Meelak, Mrs Nabholz-Haidegger, Mr Nachbar, Mr Olteanu, Mrs Pasternak, Mr Pehrson, Mr Pellicini (alternate: Mr Ianuzzi), Mr Pentchev (alternate: Mr Arabajdiev), Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Skrabalo, Mr Solé Tura (alternate: Mrs Lopez Gonzales), Mr Spindelegger, Mr Stankevic (alternate: Mr Lydeka), Mr Stoica (alternate: Mr Coifan) Mr Symonenko, Mr Tabajdi, Mrs Tevdoradze, Mr Toshev, Mr Vanoost, Mr Wilkinson, Mrs Wohlwend

N.B. The names of those members who were present at the meeting are printed in italics.

Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Ćupina, Mr Milner


1 People of Hungarian identity (i.e. citizens of the countries concerned who consider themselves as persons belonging to the Hungarian "national" cultural and linguistic community).

2 It would be preferable that a similarly neutral term could be coined in the French language, the other official language of the Council of Europe. At present “kin-state” is translated as “état parent”, and “kin-minority’ as “minorité ethnique”. The use of the word “parent” is loaded with the wrong sort of meaning, and the reduction of the description of a minority to an ethnic one is incorrect (linguistic and cultural should be included). In other languages we should also seek to use neutral terms such as “kin-”, which denotes ties of relationship in general.

3 B. Fowler, ‘Fuzzing citizenship, nationalising political space: A framework for interpreting the Hungarian ‘status law’ as a new form of kin-state policy in Central and Eastern Europe’, ONE Europe or Several? Working Paper 40/02. Falmer, Brighton: One Europe or Several? Programme at the Sussex European Institute, University of Sussex, 2002.

4 See document AS/Jur (2002) 38.

5 Remark of the translator: "nationality" does not equal "citizenship".

6 Act VI of 1998 on the promulgation of the Convention on the Protection of Individuals with Regard to Automatic Processing of Personal Data, signed on 28 January 1981 in Strasbourg.

7        For full reference, see: J. Marko, E. Lantschner and R. Medda, Protection of National Minorities through Bilateral Agreements in South-Eastern Europe, 2001.

8 In the pieces of legislation that will be examined hereinafter, the term “nationality” is at times found with the meaning of “citizenship”. For the purposes of this study, however, “nationality” means the legal bond between a person and the State and does not indicate the person’s ethnic origin (see Article 2 of the European Convention on Nationality).

9        See Article 1 of the Framework Convention for the Protection of National Minorities (hereinafter: “the Framework Convention”).

10        There are various procedures for minority protection in Europe. In primis, the mechanism foreseen by the European Convention on Human Rights (individual as well as inter-state applications). Further, the monitoring of the Framework Convention by the Committee of Ministers of the Council of Europe and by the Advisory Committee on the basis of reports by the States concerned. The activities of the OSCE High Commissioner on National Minorities and of the United Nations Working Group on Minorities must also be recalled.

11        The settlement of the Aland Islands dispute in 1920 was a success, while the main minority problems originating from the Peace treaties remained unresolved.

12 The present report deals primarily with the protection of minorities in the context of Central and Eastern Europe in the last decade. Indeed, there are numerous other examples (the protection of the Slovenian and the Croatian minorities in Austria by virtue of Article 7 of the Austrian State Treaty of 1955) that can be relevant for its conclusions.

13        Treaty between the Federal Republic of Germany and the Republic of Poland on Good Neighbourly Relations and Friendly Co-operation (17 June 1991); Treaty between the Federal Republic of Germany and Bulgaria on Friendly Relations and Partnership in Europe (9 October 1991); Treaty between the Federal Republic of Germany and Hungary concerning Friendly Co-operation and Partnership in Europe (6 February 1992); Treaty between the Federal Republic of Germany and Romania concerning Friendly Co-operation and Partnership in Europe (21 April 1992).

14        Treaty between the Republic of Hungary and Ukraine on the Foundations of Good Neighbourly Relations and Co-operation (6 December 1991); Treaty between the Republic of Hungary and Slovenia on Friendship and Co-operation (1 December 1992); Treaty between the Republic of Hungary and Croatia on Friendly Relations and Co-operation (16 December 1992).

15        The signature of bilateral agreements on the protection of minorities “in order to promote tolerance, prosperity, stability and peace” (see the Explanatory Report to the Framework Convention) is foreseen in Article 18 § 1 of the Framework Convention, according to which States “endeavour to conclude, where necessary, bilateral and multilateral agreements with other States, in particular neighbouring States, in order to ensure the protection of persons belonging to the national minorities concerned”. The same is encouraged under the Stability Pact for South Eastern Europe (1999). The United Nations also promotes the stipulation of bilateral and multilateral treaties: see resolution of the Human Rights Commission of 22 February 1995, UN Doc. E/CN.4/1995 L. 32

16        See the “Concluding document of the inaugural conference for a Pact on Stability in Europe” in 94/367/CFSP: Council Decision of 14 June 1994 on the continuation of the joint action adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the inaugural conference on the Stability Pact.

17        See the Final Declaration of the Pact on Stability, §§ 6 and 7.

18        Treaty between the Republic of Hungary and Slovakia on Good Neighbourliness and Friendly Co-operation (19 March 1995); Treaty between the Republic of Hungary and Romania on Understanding, Co-operation and Good-neighbourly Relations (16 September 1996).

19        When both parties are at the same time home- and kin-States, the relevant treaty contains mutual obligations; otherwise, the treaty contains obligations for the home-State only (see, as an example of the latter, the German-Polish Treaty on Good Neighbourly Relations and Friendly Co-operation of 1991).

20        It is common practice for States to sign bilateral agreements on cultural co-operation where certain provisions are specifically devoted to the training of and other assistance to teachers involved in the education of national minorities. These agreements are normally implemented and complemented by inter-ministerial agreements.

21        See, however, the Agreement between Austria and Italy of 17 July 1971 (concluded in accordance with the “operational time-table”- “calendario operativo” of 1969) submitting disputes concerning the implementation of the Gruber-de Gasperi agreement of 1947 to the mechanism provided for by the European Convention of 29 April 1957 on the Pacific Settlement of Disputes.

22        See European Commission for Democracy through Law, Law and foreign policy, Collection “Science and technique of democracy”, No. 24, p.14. See Article 2 of the Framework Convention.

23        This analysis is based on the material that has been brought to the attention of the Commission Secretariat.

24        Sometimes, certain benefits, concerning matters that are not directly envisaged by the bilateral agreements, e.g. concerning health care or other questions, are regulated by informal (private law) agreements between the regional bodies of the kin-State and the home-State. The beneficiaries of such preferential treatment are not necessarily the members of the minority but all the persons residing in the region where the minority is settled (see, e.g., the relations between Tyrol and South-Tyrol).

25        This law was amended by a regulation of the Austrian Minister for Science and Traffic in 1997 (see the Bundesgesetzblatt der Republik Österreich 1. August 1997, Teil I). Nowadays, South Tyroleans may enrol in Austrian universities if they have attended a German-speaking high school, and not any more if they belong to the German or Ladin linguistic minorities.

26        The wording of Article 20 of the Law does not clarify the role of the recommending organisations; the Hungarian Ministry of Foreign Affairs, however, has pointed out in its submissions of 14 September 2001 (CDL (2001) 93) that they will be entrusted with the task of verifying the existence of the objective criteria as to belonging to the Hungarian minority.

27        In this respect, it is worth noticing that the provisions in the Slovenian and Macedonian Constitutions concerning the wish of those countries to be concerned with the fate of their kin-minorities, refer to national minorities “in neighbouring countries” (see above, Articles 5 and 49 of the Slovenian and Macedonian Constitution respectively).

28        Pursuant to article 29 § 2(3) of the Hungarian Law, however, the Minister of Foreign Affairs may substitute his own declaration for the recommendation of the organisations "in cases deserving exceptional treatment on ground of equity" and "in cases where the proceedings … are impeded to ensure the smooth conduct of administrative proceedings".

29        Further to the European Parliament’s resolution of 5 September 2001 (Resolution on Hungary’s application for membership of the European Union and the state of negotiations (COM(2000) 705–C5-0605/2000-1997/2175 (COS)), an evaluation by the European Commission of the compatibility of the legislation on special regulations and privileges granted to persons belonging to national minorities by their kin-States with the acquis communautaire as well as with the spirit of good neighbourhood and co-operation amongst EU Member States is currently in progress. For this reason, it will not be the object of the present study.

30        This principle of international law has been codified, in particular, in Article 21 of the Framework Convention.

31        See Article 2 § 2 of the Cultural Convention reads: “Each Contracting Party shall, insofar as may be possible, (…) endeavour to promote the study of its language or languages, history and civilisation in the territory of the other Contracting Parties and grant facilities to the nationals of those Parties to pursue such studies in its territories”

The Cultural Convention was ratified, inter alia, by Bulgaria on 2 September 1991; by Greece on 10 January 1962; by Hungary on 16 November 1989; by Italy on 15 May 1957; by Romania on 19 December 1991; by Russia on 21 February 1991; by Slovakia on 10 May 1990 and by Slovenia on 2 July 1992.

32        However, these measures are often taken within the framework of intergovernmental agreements.

33        See, for example, the common consular conventions.

34        In this respect, the extraterritorial jurisdiction in civil matters even on foreign citizens residing in their home-country or elsewhere exercised by the United States is largely controversial.

35        See for instance Article 5 of the Vienna Convention of 1963 on consular relations.

36        See article 26 of the 1969 Vienna Convention on the Law of Treaties.

37        It has to be stressed that the adoption of preferential treatment rules is not necessarily conditioned by the existence of a bilateral agreement between the States concerned. However, if such an agreement exists, the measures in question and the procedure of their application must be in conformity with that agreement.

38        See article 31 of the Vienna Convention, according to which “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose.”

39        Article 7 of the Universal Declaration of Human Rights reads: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against discrimination in violation of this Declaration and against any incitement to such discrimination.”

40        Article 26 ICCPR reads: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

41        Article 4 of the Framework Convention provides: “(1) The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. (2) The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. (3) The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.

42        See Article 1 and Article 14 ECHR. The latter reads as follows: “The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”. If Article 14 prohibits discrimination only in respect of the rights and freedoms set out elsewhere in the Convention, a Protocol thereto, the twelfth, containing a general clause against discrimination, has been drafted and opened to signature on 4 November 2000.

43        See the leading case on the meaning of “discrimination” within the meaning of Article 14 of the Convention: European Court of Human Rights, Belgian linguistics judgment of 9 February 1967, Series A no. 6.

44        A claim of discrimination is meaningful only where the applicant seeks to compare his situation to that of those who are in the same or analogous, or “relevantly similar” situation.

45        See, in particular, paragraph 3 of Article 4 of the Framework Convention.

46        See Article 116 of the German Grundgesetz, which provides: “Unless otherwise provided by Statute, a German within the meaning of this Constitution is a person who possesses German citizenship or who has been admitted to the territory of the German Reich within the frontiers of 31 December 1937 as a refugee or expellee of German ethnic origin or as the spouse or descendent of such person. (2) Former German citizens who, between 30 January 1933 and 8 May 1945 were deprived of their citizenship on political, racial or religious grounds, and their descendants, are re-granted German citizenship on application. They are considered as not having been deprived of their German citizenship where they have established their residence in Germany after 8 May 1945 and have not expressed a contrary intention.”