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5 May 1993
Doc. 6823
1403-4/5/93-2-E
OPINION
on the application of the Republic of Slovenia
for membership of the Council of Europe1
(Rapporteur: Mr HÖRCSIK,
Hungary, Democratic Forum)
Introduction
As Rapporteur of the Committee on Legal Affairs and Human Rights, I visited Slovenia from 2 to 5 March 1993. The first two days of my visit I used for talks and discussions in the capital city, Ljubljana. On the last day I went to the Lendava region in the north-east. During these three days, I concentrated on those items which are of particular interest to the Committee on Legal Affairs and Human Rights such as the functioning of parliamentary democracy, including local government, human rights including the rights of minorities, and the rule of law. My task was considerably facilitated by the efficient assistance I received from the Slovenian guest delegation, by the documentary material provided to me and by some excellent Council of Europe reports I already had at my disposal2. Rather than repeating what is already in these papers, I shall highlight some of the points which are of particular interest to the Committee on Legal Affairs and Human Rights.
1. Parliamentary democracy
In accordance with the new Constitution of the Republic of Slovenia, which was adopted exactly a year after its independence, that is on 23 December 1991, Slovenia has now two houses of parliament. They replace the former Assembly of 240.
The National Assembly has ninety members and is elected by general, equal, direct and secret elections in accordance with Article 18 of the Constitution. A short description of the electoral system can be found in the report by Mr Probst on the elections of 6 December last. Membership of the National Assembly is considered to be a full-time occupation and members are being paid as such.
In addition to the National Assembly, there is the National Council which has forty members. Eighteen of its members are representatives of national interest groups (employers, employees, farmers, craftsmen, independent professions and non-economic activities) and twenty-two of its members represent local authorities. The National Council has a suspensive vote that may be overruled by a second vote in the National Assembly. In addition, the National Council may propose laws itself, demand the calling of a referendum and demand investigations of matters of public interest (Article 97 of the Constitution). As it is only recently that the National Assembly and the National Council started their activities, it is too early to say how the system will function and how the equilibrium to be established between these two houses of parliament will look like.
The exchange of views I had with the Foreign Relations Committee of the National Assembly enabled me to get a better insight into the functioning of parliamentary democracy in Slovenia. It was decided that the Chairman of the Parliamentary Committee on the Intelligence Service would be a member of the opposition and this shows the true democratic spirit in which parliament seems to be operating.
After the elections, it took nearly two months to form a coalition government between the Liberal Democratic Party, the Christian Democrats, the United List and the Social Democratic Party. In addition, there is a Minister of the Green Party in the Cabinet although that party is officially not one of the coalition partners. For the time being, it is too early to say how stable this coalition will be.
On 6 December, there were also Presidential elections. Mr Milan Kucan was elected with 63,9% of the votes cast.
The legislative assignments of government and parliament are enormous. The change towards a free market economy, the installation or confirmation of the rule of law, in addition to a large number of laws required by the Constitution, as well as the consequences of Slovenia's independence require a huge amount of new legislation.
In my opinion, it is not possible to speak about a viable parliamentary democracy unless there is also democracy at local level. In Slovenia, there have been free elections for the local authorities in 1990. In each community, there are three elected bodies but this system is to be replaced by a single municipal council in accordance with legislation which is under way, which will also reduce the size of the municipalities.
2. The Rule of Law
Perhaps one of the most important, but also most difficult parts of our assignment is to consider whether, and to what extent, a state respects the rule of law and whether a state may be considered what is called the "Rechtstaat" in German (literally the "Law State"). This comprises many different elements such as the independence of the judiciary (how are judges appointed, on what grounds and in which way they be dismissed, are they reasonably paid? etc.), the access of the public to the Courts (are there adequate legal remedies, enough courts, a sufficient number of qualified advocates, absence of financial or administrative obstacles? etc.), adequate checks and balances between the state's legislature, executive and judicial powers, the quality of the legislation, the accountability of the police, ways and means to redress injustice, an independent, critical and responsible press, adequate protection of minorities, the way taxes are imposed and collected etc.
These and other matters have been the subject of my conversations with members of the government (Ministers of Justice and of the Interior), members of both houses of parliament, judges (Supreme Court and Constitutional Court), advocates, the Archbishop and the Protestant Church, representatives of local government, journalists, minority groups etc. My impression is that Slovenia scores high in all respects. It has a modern legislation on civil and penal law — and in many other fields — and modern institutions, some of which do not (yet) exist in all Council of Europe member states (Constitutional Court, Ombudsmen and special representatives of minorities in elected bodies).
It is a well-known fact that the crime rate is high in countries with great social and economic tensions. I was very favourably impressed by the fact that the prison population in Slovenia was so low (about 700 out of a population of 2 million) and that the maximum penalty was fifteen years (in exceptional cases, twenty years). Moreover, 90% of the prisoners are released before the end of their prison sentence. Unfortunately, the number of crimes committed is on the increase, as is unemployment.
3. Human rights
What I said above on the rule of law may be repeated in respect of the protection of human rights. In fact, it is very difficult to assess how a country respects fundamental rights and freedoms but, in my opinion, there are no major problems in this field. I got this conviction during numerous talks I had with judges of the Supreme and of the Constitutional Courts, the President of the Council for the Protection of Human Rights and Fundamental Freedoms, advocates, the Archbishop and representatives of the Protestant Church, representatives of minorities, etc.
It thus appears that relations between the Churches and the State are very good and that freedom of religion is guaranteed. A problem still to be solved is the restitution of former church property but this forms part of the general problem of restitution of property confiscated and expropriated after 1945. Admittedly, it is extremely difficult to find fair and workable solutions for this tricky problem.
The journalists I met were generally satisfied with the way the freedom of the press is respected in Slovenia but they expressed the hope that soon a good law on freedom of information (Glasnost) may be adopted by parliament.
I have been told that there are several trade unions in Slovenia and that they are active. In fact, there was a demonstration going on, organised by the trade union movement the day of my first visit to the parliament. I regret, however, that there was no time to meet the trade unions. The difficult economic situation of Slovenia has led to social tensions (inflation and unemployment) and in such a situation, social rights are an important part of the overall human rights picture.
One knows that the problems of citizenship are considerable in some of the other applicant states and may be an obstacle to their speedy accession to the Council of Europe. Upon its independence in 1991, Slovenia wisely granted its nationality to citizens of other republics of former Yugoslavia residing on its territory. Thus, 40 000 Croatians and 30 000 Serbs obtained Slovenian citizenship. However, no Slovenian citizenship is granted to the numerous refugees from Bosnia-Herzegovina who are to return to their country when the war is over.
Very important for the protection of human rights will be the appointment of an ombudsman who is to replace the Council for the Protection on Human Rights.
Legislation in this field is now in preparation.
The rights of minorities will be dealt with in Chapter 5.
4. The European Convention on Human Rights
Ratification of the Human Rights Convention is nowadays considered a condition for membership of the Council of Europe. New member states are expected to ratify within a year or so after their adhesion to the Council of Europe and to accept the Convention's optional clauses (Article 25: Right to individual application and Article 46: Compulsory jurisdiction of the Court). I am happy to state that the Ministers of Justice and of Foreign Affairs confirmed to me that Slovenia has the firm intention of complying with this condition.
Article 8 of the Slovenian Constitution provides for the supremacy of international over national law. National law in Slovenia will therefore have to be in accordance with the Convention's provisions which will be directly enforceable. The Constitution already contains a very long and detailed catalogue of human rights (some fifty articles!) which includes the rights of special categories such as minorities and foreigners. The overwhelming majority of rights covered by the Convention are listed in this catalogue and little legislative reform may be needed to adapt Slovenian law to the Convention. In fact, the Constitutional Court already applies the Convention (for instance its Article 6). From the jurist's point of view, there is here an argument for admitting Slovenia to the Council of Europe as soon as possible: the sooner it becomes a member state, the sooner it may ratify the Convention and the sooner the Convention's organs may start their work on alleged violations of the Convention. In fact, experience has shown that the Commission and Court of Human Rights are the only effective and objective means for examining the compatibility of a country's law with the provisions of the Convention.
Finally, it may be mentioned that the death penalty has not been applied since the late 1950s and has now been abolished (Article 17 of the Constitution). Slovenia may therefore easily accede to the Convention's 6th Protocol on the abolition of the death penalty.
5. The rights of minorities
Today, the protection of the rights of minorities must be considered as one of the conditions for membership of the Council of Europe. The Assembly itself, in its proposal for an additional Protocol on the rights of minorities to the European Convention on Human Rights3, gives clear guidelines as to what is to be understood by an adequate protection of these rights, whereas minority languages are to be protected in accordance with the Council of Europe's Charter for Regional or Minority Languages which was concluded and opened for signature and ratification in 1992.
The Slovenian Constitution, in its Article 64, mentions the Italian and Hungarian national communities. Each of these communities has the right to elect one member of the National Assembly. They are also entitled to representation in local councils. In the Lendava region, which I visited, there was a special council of the Hungarian minority. In addition, the Italian and Hungarian minorities have the right to education and schooling in their own languages and the right to foster relations with their Italian and Hungarian counterparts outside Slovenia.
Under these circumstances, it must be said that both communities are rather privileged. They are, grosso modo, satisfied with their situation. Of course, improvements may always be made. For instance, the Italian community drew my attention to legislation which prohibits the acquisition of real property near the borders, a provision clearly detrimental to them.
When the Committee on Legal Affairs and Human Rights, at its meeting from 26 to 28 April 1993, considered Slovenia's application for membership, it was informed of a motion for a resolution on the unity and respect for the rights of the Italian minority in Slovenia and Croatia (Doc. 6795) and of a memorandum submitted by the Slovenian guest delegation on this subject. It then considered that, grosso modo, the requirements formulated in the motion were met by Slovenia and that the motion did not require any further action.
Hungary and Slovenia concluded, in November 1992, a convention to guarantee the rights of the national Slovenian minority in Hungary and of the national Hungarian minority in Slovenia. This convention may certainly serve as a model for other European states and a similar treaty might also be concluded between Italy and Slovenia. In fact, it appears that there is a considerable Slovenian minority living in northern Italy.
I also studied the situation of the German-speaking community in Slovenia, which was the subject of a motion for a resolution of our Assembly4. It appears to me that the figures given in that motion are too high and that the real German-speaking minority in Slovenia comprises not more than 1 500 persons who are scattered all over the country. They claim for special recognition under the Constitution like the Italians and Hungarians, but, given their numbers and geographical situation, this claim seems to be doubtful. Article 1 of the draft Protocol adopted by our Assembly on the Rights of Minorities requires that a national minority must be sufficiently representative in order to qualify for the rights listed.
The Constitution, in its Article 65, provides that the position and special rights of Romany communities, who live in Slovenia, shall be governed by law. It is estimated that there are 6 000 to 7 000 Romanies resident in Slovenia and I met some of their representatives. As long as legislation and Article 65 of the Constitution is not yet adopted, it will be difficult to state whether the position of the Romanies is to be considered satisfactory but they themselves expressed the wish to be represented at national and local parliamentary bodies and to be able to acquire some real property. Otherwise they did not require specific rights for themselves.
Having said this, it may perhaps be observed that the largest minorities in Slovenia are the Serbs and the Croats who were resident in the country in 1991 and consequently obtained Slovenian citizenship.
6. Conclusions
The committee's conclusions confirm the findings of other Council of Europe reports. Slovenia, nowadays, fits well into the category of parliamentary democracies which make up the members of our Organisation. The country is preparing itself for membership with the same enthusiasm it acceded to independence in 1990 and 1991. In fact, all the numerous persons I spoke to during my visit declared themselves in favour of Slovenia's membership. Slovenia, in our opinion, fully respects the rule of law and fundamental rights and freedoms. The way it protects the rights of minorities is a model and an example for many other European states (both east and west).
Fortunately, Slovenia is able to build on many long-standing traditions and changes have come much smoother and less abrupt than in other central and eastern European states. In conclusion, the Committee on Legal Affairs and Human Rights therefore wholly supports the draft opinion submitted by the Political Affairs Committee and expresses the hope that Slovenia may soon be listed as one of the member states of the Council of Europe.
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Reporting committee: Political Affairs Committee (Doc. 6786).
Committee for opinion: Committee on Legal Affairs and Human Rights.
Reference to committee: Doc. 6588 and Reference No. 1782 of 4 May 1992.
Opinion approved by the committee on 27 April 1993.
2 2 2. For example, the report on the legislation of the Republic of Slovenia by Professor Matscher, Judge of the European Court and Sir Basil Hall, member of the European Commission of Human Rights (AS/Bur (44) 40), the information report on the elections of 6 December 1992 (Rapporteur: Mr Probst; Addendum III to Doc. 6724) and the report by the Political Affairs Committee (Rapporteur: Mr Baumel; Doc. 6786).
3 1 1. See Recommendation 1201 (1993).
4 2 2. Document 6693 of 5 October 1992.