Croatia's request for membership of the Council of Europe[2]
Doc. 7533
23 April 1996OPINION[1]
Rapporteur: Mr JANSSON, Finland, Liberal, Democratic and Reformers' Group
Contents
I. Introduction
II. The rule of law and the legal order
A. General observations
B. The Judiciary - the Prosecutor's Office
a. The Constitutional Court
b. The independence of the judiciary
c. The Public Prosecutor's Office
III. Human Rights and Fundamental Freedoms
A. General observations
B. Freedom of the media
a. Electronic media: the status of the Croatian Radio and Television (HRT)
b. Recent developmentsC. Freedom of association
D.The situation in former UN sectors North and South ("Krajina")
E. The situation in Eastern Slavonia
F. Cooperation with the OSCE
IV. Minority rights
A. The protection
B. The suspension of certain provisions of the Constitutional Law of 1991
a. Substantive provisions under suspension
b. Procedural provisions under suspension: the provisional Court of Human Rights
V. Local and regional democracy
A.The dual function of the Zupan (Prefect and President of the Regional Council) and of the Mayor of Zagreb
B. The recent procedure for the election of the Mayor of Zagreb
C.Recommendations of the Congress of Local and Regional Authorities of Europe
D. Other issues
a. Transfrontier co-operation
b. Eastern Slavonia
VI. Conclusions
VII. Suggested amendments
Annex: Letter from the International Federation of Journalists to the President of the Republic of Croatia, dated 11 April 1996I. Introduction
1 The relationship between Croatia and the Council of Europe goes back to December 1991 when special guest status was requested by the Croatian Parliament (Sabor). It was granted by the Bureau of the Assembly five months later, on 4 May 1992. Croatia applied for full membership on 11 September 1992. The accession procedure was delayed due to Croatia's involvement in the war in Bosnia-Herzegovina. In fact, it was only two years after membership had been requested that, following the signing of the Washington agreements, the two eminent lawyers, Mr Matscher, Judge on the European Court of Human Rights, and Mrs Thune, Member of the European Commission of Human Rights, visited Croatia at the Bureau's request. Their report on Croatia's legislation was released by the Bureau in January 1995.[3]
2 Following a first visit to the country, in January 1995, of the Rapporteurs of the Political Affairs Committee and of the Committee on Relations with European Non-Member Countries (in which the then Rapporteur of our Committee, Mr Hadjidemetriou had not been able to participate), I visited Croatia on the occasion of the meeting of the Sub-Committee on Human Rights from 26 to 28 February 1995. Moreover, I participated in all subsequent joint visits of the Rapporteurs, on 13-15 June and on 7-10 December 1995, and most recently, on 28 February - 1 March 1996. On behalf of our Committee I wish to thank the Croatian authorities for the organisation of these visits and further cooperation in providing me with all information I requested.
3 The Political Affairs Committee adopted its favourable opinion on Croatia's application for membership at its meeting on 19 March 1996. At its meeting on the same day the Bureau of the Assembly decided to propose this question for inclusion in the Assembly's Order of Business for the April part-session. The Standing Committee adopted the proposed draft Order of Business the following day.
4 The Committee on Legal Affairs and Human Rights, at its meeting of 3 April 1996, considered the report of Mr van der Linden, Rapporteur of the Political Affairs Committee, including the draft Opinion, and instructed me to prepare a written opinion. My purpose is not to repeat what Mr van der Linden has already said in his explanatory memorandum and to which I largely adhere, but to complete his remarks with regard to legal issues as well as the state of local and regional democracy, taking into account also texts that were made available after the adoption of the Political Affairs Committee's report. My opinion is, moreover, drawn up in the light of the exchange of views that took place in the Committee and on the basis of numerous texts which have considerably facilitated my work.
II. The rule of law and the legal order
A. General observations
5 The eminent lawyers, in their report dated January 1995, had recognised "the considerable efforts made by the Croatian authorities to establish a domestic legal order following the break-up of the former Socialist Republic of Yugoslavia". They considered that the legislation, including the Constitution (adopted on 22 December 1990), was "essentially consistent with the principles of parliamentary democracy, protection of fundamental rights and rights of minorities and the rule of law" (see above, p. 35).
6 They noted, however, that while legislation was a necessary pre-condition, it was "not in itself sufficient to conclude that the legal order complied with the `rule of law' principle" (idem). The effective implementation of legal texts through institutions providing supervision and redress was further required. Certain shortcomings were still found as regards the implementation of basic human rights principles. It was on the conclusions to be drawn from these shortcomings that the two eminent lawyers expressed diverging views:
7 Mr Matscher considered the shortcomings in question "more or less directly related to, and a consequence of, the previous war in Croatia and the still unresolved conflicts in the region...". He thus concluded that "taking account of the general situation and even considering the various shortcomings mentioned above - without ignoring them, but also without overrating them - the legal order of the Republic of Croatia can be said to be in conformity with the standards of the Council of Europe" (idem).
8 Mrs Thune considered that, having regard to the shortcomings in the implementation of basic human rights principles[4] it was "difficult to conclude that the `rule of law' has been fully established in Croatia". In view of the fact that at the time of the drafting of the report (January 1995) there was still unresolved conflict in the area, the full enjoyment of fundamental rights would constantly be at risk and it would thus, in her opinion, be "premature to conclude that the appropriate human rights standard [was] presently met".
9 Since the completion of the eminent lawyers' report, the situation on the spot has considerably changed. The Dayton/Paris Agreement for Peace in Bosnia-Herzegovina and the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, as well as the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) established thereby, have opened the possibility for a definitive peaceful solution to the conflict. Moreover, most of the shortcomings pointed out by Mrs Thune relating to the war situation have been redressed, as will be shown below in the respective chapters. While problems still remain, in particular in the field of freedom of expression, the picture is different to that of fifteen months ago.
10 In this respect, it is important to refer to the very recent report "on the implementation of the Constitutional Law on Human Rights and Freedoms and on the Rights of Ethnic Communities and Minorities in the Republic of Croatia" drawn up at my requestby a group of rapporteurs (MM Matscher, Malinverni and Nicolas) of the European Commission for Democracy through Law (hereafter: "Venice Commission") and transmitted to the Assembly on 1 April 1996. With regard to the general constitutional situation in Croatia, the rapporteurs considered that, "apart from the regrettable incident" relating to the election of the Mayor of Zagreb (see below), "the system is functioning adequately, with due respect for the rule of law and democracy, and that the authorities apparently are making all possible efforts to lead the country out of its difficult situation due in particular to the period of conflict, and to bring Croatia to the level of the standards of the Council of Europe and to a rapid accession to the organisation."
11 It may thus be concluded that, although reform is still needed in the field of implementation of human rights standards, in the light of the current situation, overall the Croatian legal order complies with the "rule of law" principle.
B. The Judiciary - the Prosecutor's Office
a. The Constitutional Court
12 A major role as "watchdog" for the respect of the "rule of law" in Croatia is played by the Constitutional Court. The method of its constitution and the immunity of its members guarantee it considerable independence.[5]
13 The Court supervises the constitutionality of laws and regulations, decrees issued by the President of the Republic and the Government and "other regulations". It may hear appeals on alleged violations of human rights guaranteed under the Constitution (after ordinary legal remedies have been exhausted) and in this context it may even proceed to an ex officio control of constitutionality.
14 Individuals may directly seize the Court. The assistance of a lawyer is not mandatory. Applicants can be given free legal aid and the procedure before the court is free of charge.
15 Individual cases of alleged violations of human rights concern mainly citizenship, property, health insurance, criminal procedure and detention.
16 Finally, the role played by the Constitutional Court as guarantor of fairness and impartiality during the electoral campaign has to be underlined, in particular with regard to fair access to the media (see the report of the ad hoc committee on the elections, Addendum I to the Bureau's Progress Report, Doc. 7430, p. 6).
b. The independence of the judiciary
17 Reference is made to the eminent lawyers' report for details regarding the organisation and structure of the judiciary (see above, pp. 12-14). Nevertheless, I wish to put some emphasis on an issue as important for the respect of the rule of law and the good functioning of a democracy as the independence of the judiciary.
18 The Constitution provides for an autonomous and independent judiciary. According to the Constitution and a special law of 1993, a High Judiciary Council has been created with the exclusive competence to appoint, dismiss and carry out disciplinary supervision of judges and public prosecutors.
19 The High Judiciary Council is composed of 15 members elected for a term of eight years by the Chamber of Representatives at the proposal of the Chamber of Counties.
20 Mr van der Linden in his explanatory memorandum refers to the major criticism that had been expressed in relation to the first election of members of the High Judiciary Council in 1994 and its implications (see above, pp. 18-19). The eminent lawyers have also reported on this incident, noting that they were told that the procedure was not unlawful but was neither fair nor in conformity with the spirit of the law (see above, p. 13).
21 I fully share the concerns expressed by the eminent lawyers and Mr van der Linden in this respect, voiced also by members of the Committee at its meeting of 3 April 1996. It must be stressed that it was the concrete application of the law on the High Judiciary Council that was contested and not the law itself. Therefore, although there is already a commitment undertaken by the Croatian authorities to bring all legislation and practice into line with Council of Europe standards and principles, I propose an amendment in order to add a direct reference to this issue and make it clear that the Assembly expects Croatia to apply the Law on the High Judiciary Council in accordance with Council of Europe standards (see chapter VII below).
22 Finally, it must be pointed out that the Constitutional Court has twice annulled as unconstitutional decisions taken by the High Judiciary Council (on 15 February and on 29 March 1995). Thus the Constitutional Court showed that it can play the role of guarantor of independence of the judiciary even vis-�-vis the High Judiciary Council.
c. The Public Prosecutor's Office
23 Reference is made also on this issue to the eminent lawyer's report for details (see above, p.14).
24 I simply wish to stress that, according to the eminent lawyers, the organisational structures of the prosecuting authorities in Croatia "follow more or less the model of continental European States". The Public Prosecutor is a state authority of the judicial branch independent of both the executive and legislative powers. It receives no outside instructions. It exercises functions mainly in the field of criminal law, having no general supervision of legality since the Procuratura system of the Soviet type was abolished in former Yugoslavia already in 1954.
25 As a concluding remark, I wish to draw the Committee's attention to the comments of the members of the Croatian Bar Association with regard to the functioning of the judiciary in Croatia, since practising lawyers are normally best placed to assess it. In their view, "the Croatian judiciary does not work worse than elsewhere and even better than in certain European countries" (see the eminent lawyers' report, as above, p. 15).
III. Human Rights and Fundamental Freedoms
A. General observations
26 The Croatian constitutional order contains several sets of provisions relating to human rights and fundamental freedoms. Some of the Constitution's "Basic provisions" have a direct bearing on human rights. The Constitution contains a separate chapter on "Fundamental Freedoms and Rights of Man and Citizen". There is a special Constitutional Law on Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities, adopted in December 1991. Article 134 of the Constitution provides that international agreements ratified by Croatia shall be part of the internal legal order and shall have precedence over ordinary law, so that the provisions of international human rights treaties are thereby incorporated into the domestic legal order. In addition, the 1993 Constitutional Law on the Constitutional Court of Croatia contains a Chapter on the Protection of Constitutional Freedoms and Rights of Man and Citizen.
27 A detailed analysis is contained in the eminent lawyers' report and I cannot but recommend to read the relevant part (see above, pp. 17-28), taking into account the fact that the report is more than a year old. What follows is a selective presentation of the most problematic issues.
B. Freedom of the media
28 I fully share the concerns expressed by Mr van der Linden in his explanatory memorandum with regard to freedom of the media (pp. 17-18). Recent events give rise to new concerns. Since the Rapporteur of the Political Affairs Committee undertook a quite extensive analysis of the legal framework and the existing difficulties in the field of media, I will limit myself to adding some remarks concerning the status of Croatian Radio and Television, which is not dealt with by Mr van der Linden, and to recent events.
a. Electronic media: the status of the Croatian Radio and Television (HRT)
29 Croatian Radio and Television (HRT) was set up by a special Act of 1990 as a state-owned public enterprise with three TV and three radio channels. It is required to inform the public in a truthful, objective and prompt manner without representing the viewpoint of individual political parties. It has to respect the principles of ethics, pluralism, tolerance, privacy and other freedoms and personal rights.
30 The HRT has its own supervisory council, the Radio-Television Council, which consists of 35 members (15 nominated by the parliament proportionally to its party structure, 10 from various cultural institutions and religious communities and 10 from the programming units). Moreover, the HRT has an Administrative Council, a Director (appointed by the parliament), assisted by Heads of Departments (appointed by government), and Chief Editors (appointed by the Radio-Television Council). The bylaws of HRT are issued by the Administrative Council in agreement with the government and the Radio-Television Council and the programming orientation is determined by the Radio-Television Council.
31 The eminent lawyers, in their report (see above, pp. 24-25), considered questionable whether HRT, "being the most influential audiovisual media with little competition from other broadcasting stations, [was] sufficiently independent from the state, having regard to the manner of appointment of its various organs." Moreover, some independent experts of the Council of Europe, when considering the (then draft) legislation on Telecommunications, stressed the need to amend the most relevant provisions of the Act on Radio and Television, concerning the composition, mode of appointment of the director general and directors of HRT. No such amendments have been made.
32 Finally, I refer to the report of the ad hoc committee on the parliamentary elections of October 1995 (see above, pp. 5-6) with regard to the role played by the HRT during the electoral campaign (see, in particular, concerns about the list of standard questions which were put to each party, distribution of free time and paid advertising time) and fully share the recommendation therein to increase the independence of the HRT with regard to the government in order for the former to gain the confidence of the people (p. 9).
b. Recent developments
33 On 29 March 1996, the Law on Modifications and Amendments of the Criminal Code of the Republic of Croatia was adopted by the parliament. It was subsequently published in the Official Gazette "Narodne Novine" No. 28/96 of 12 April 1996, to come into effect as from 20 April 1996. These modifications and amendments concern the offence of defamation of high State officials (President of the Republic, Speaker of the Parliament, Presidents of the Supreme and the Constitutional Court) and the revealing of State or military secrets.
34 As to the former, the amendments relate to the manner in which criminal proceedings are initiated. Up until now, proceedings were initiated by the Public Prosecutor upon a proposal by the State official. According to the amendments, the State official concerned does not need to request prosecution, but only give its written consent for legal action undertaken by the Public Prosecutor. The initiative and responsibility now lies mainly with the latter. It would be much easier for a high State official to give consent for action already undertaken by the Public Prosecutor than to initiate proceedings himself. It is indicative that until now not a single action has been undertaken by high State officials on defamation. I have received information according to which public addresses made recently by high State officials show that they wish, on the basis of the amendments, to impose discipline upon the media by threatening them with criminal prosecution. Thus, the amendments are not legally essential, but are likely to stimulate self-censorship and to further limit freedom of expression.
35 As to the amendments concerning the revealing of State or military secrets, a new provision was added to the Criminal Code, according to which a person who publishes the contents (entirely or partly) of a document or data known to be a State or military secret may be prosecuted and punished by fine or imprisonment for up to three years.[6] A State or military secret is defined as a document or data which has or could have damaging consequences for the political, military and economic interests of the country. The very fact that a publication of a State or military secret is made a criminal act is not problematic in itself. What gives reason for concern is that no clear criteria are defined on what is secret, so that an unlimited list of information could be considered secret, while the mere risk that the information "could" have damaging consequences suffices for prosecution. Moreover, it is very doubtful that such far-reaching limitations of the freedom of expression for the protection of "political, economic and military interests of the State "are compatible with the stipulation of the Croatian Constitution which permits such restrictions only for the protection of "legal order" and even more with Article 10 of the European Convention on Human Rights (hereafter: "ECHR"). In fact, in a letter I received from the Co-ordinating Centre for Independent Media of the Balkan Region it is argued that the above-mentioned amendments are not only contrary to the ECHR but also to the Croatian Constitution.
36 I share the concerns of media representatives on the recent amendments to the Criminal Code which, it is worth noting, were passed after the adoption of Mr van der Linden' report by the Political Affairs Committee. The Croatian authorities should reconsider these amendments which reinforce the impression that freedom of the media is not sufficiently guaranteed in Croatia. The Constitutional Court could of course be seized in order to decide upon their constitutionality, while every ordinary court in Croatia could interpret and apply the new provisions in a restrictive manner offering to some extent the missing definitions and criteria.
37 Finally, another recent event of serious concern in the field of the media is related to the obligation imposed on Novi List, a leading independent newspaper, to pay backdated customs, duties and taxes amounting to 3.5 million DM. Information on this incident which threatens the very existence of the newspaper is contained in the letter addressed to President Tudjman on 11 April 1996 by the International Federation of Journalists with copy to the Council of Europe (see the Annex).
38 As a concluding remark, I wish to stress that concerns for the exercise of the freedom of the media in Croatia are serious. However, granting Croatia membershp of the Council of Europe would open the door of the Strasbourg human rights protection machinery to everyone under Croatia's jurisdiction, including those working in the media sector. Moreover, the field of the freedom of the media should be a priority with regard to both assistance and co-operation programmes between the Council of Europe and Croatia and the monitoring exercise under Assembly Order 508 (1995).
C. Freedom of association
39 I recently received serious complaints about a bill on associations, passed at first reading by parliament and currently under reconsideration by the Ministry of Administration which should submit the final text for second reading before parliament after examining the objections raised by the opposition as well as by non-governmental organisations directly affected by the proposed legislation.
40 The bill requires that all non-governmental associations be re-registered. Pending the registration procedure, the property of associations is placed under state control. Thus they would inevitably have to stop their activities in the meantime. The bill further allows for strict control by the State over the formation, activities and dissolution of associations. Moreover, criteria for dissolution of an association are vague and allow for abuses and arbitrariness. Thus, for instance, an association is dissolved if its statutory organs do not meet regularly, but it is unclear how the State will control the number of meetings held by these organs.
41 Moreover, the bill leaves unresolved questions such as state funding of associations, tax benefits for financing and the status of their staff.
42 The Rapporteur calls upon the Croatian authorities (competent Ministry and ultimately the parliamentary majority) to give due consideration to the objections raised by several associations and shared by the opposition.
D. The situation in former UN sectors North and South ("Krajina")
43 Reference is made here to the extensive analysis by Mr van der Linden of the situation in the region following Operation Storm of August 1995 which resulted to the departure of most of the Serb population living in the area and a series of killings, ill-treatment, burning and looting of houses of members of the fleeing Serbian population (see pp. 10-12 of Mr van der Linden's report). I will thus limit myself to referring to information received after the preparation of his report.
44 According to the latest report of the Special Rapporteur of the UN Commission on Human Rights, Mrs Elisabeth Rehn,[7] transmitted to the Assembly on 1 April 1996, the incidence of killings in the former sectors has been substantially reduced since her last report of November 1995 (referred to by Mr van der Linden, in pp. 10-12). Nevertheless, sporadic cases justify continuing serious concern.
45 Burning and looting of property is also reported to have significantly decreased, but cases of looting continue to be reported.
46 In this respect, Mr van der Linden had requested in his letter of 6 March 1996 addressed to Mr Granic, Foreign Minister of Croatia, that the names of persons charged with offences committed in the former UN sectors North and South be transmitted to the Rapporteurs. This transmission was considered to be a very important positive step since United Nations representatives in Zagreb had told us that they were not given the possibility to verify the assurances given by the Croatian authorities that offenders were brought to justice.
47 As it was announced in Mr Granic's reply of 15 March 1996, the list of the names in question was indeed handed to Mr van der Linden during the meeting of the Political Affairs Committee on 19 March 1996. In turn, Mr van der Linden handed it to me.
48 More specifically, the document contains the list of criminal proceedings that were initiated against perpetrators of criminal acts following the Operation Storm before:
the Military Courts of Karlovac (261 cases), of Zagreb (7 cases) and of Split (32 cases);
the District Courts of Zadar (17 cases), of Sibenic (34 cases), of Karlovac (29 cases) and of Sisak (35 cases);
the Municipal Courts of Knin (238 legal actions against 312 persons during 1995 and 275 legal actions against 412 persons until 14 March 1996), of Glina (100 cases), of Petrinja (193 cases), of Zadar (6 cases), of Benkovac (35 cases), of Biograd (18 cases), of Sinj (21 cases), of Karlovac (45 cases and 6 cases against juveniles), of Ogulin (58 cases), of Sisak (exact number not clear, but more than a hundred cases), of Kutina (1 case), of Hrrvatska Kostajnica (6 cases), of Dvor na Uni (2 cases), of Vojnic (2 cases).
49 The document indicates the name of the person charged, the charge in question and the actual stage of criminal proceedings (including acquittals). The charges include murder, personal injury, rape, robbery, theft, illegal possession of arms, illegal trafficking, forgery, and threats.
50 It is my strong conviction that international observers and, possibly, our Assembly should monitor these proceedings. The document in question, which could facilitate this monitoring, is available in original and in English translation at the Secretariat of the Committee on Legal Affairs and Human Rights.
51 With regard to the return of Croatian Serb refugees, I share Mr van der Linden's views (see pp. 11-12). In this respect, I would like to stress the importance of granting a general amnesty for former combatants, not suspected of war crimes. While amnesty was granted by Presidential decree, on 20 December 1995, to 451 Krajina Serbs accused of "armed rebellion" for their alleged military support of the so-called "Republic of Serb Krajina" ("RSK"), a general amnesty has not yet been decreed. It is, nevertheless, a condition sine qua non for the return of Croatian Serbs who will otherwise fear prosecution for having served in the army of "RSK" and this is why I propose an amendment in this respect (see below).
52 Furthermore, as far as humanitarian issues in the former sectors are concerned, Mrs Rehn notes in her latest report that some progress appears to have been made. Thus the Croatian Ministry of Labour and Social Welfare has opened reception centres for sick and elderly persons in Petrinja (former Sector North) and Knin (former Sector South). Financial assistance has been provided by the State Welfare Agency.
53 Some of the remaining problems for Croatian Serbs who stayed in the area concern the slow issue of identity documents in some locations and discrimination in employment. The UN Special Rapporteur refers to information which would indicate that Croatian Serbs have been denied their right to pension allowances, as well as to State assistance for home reconstruction. The Croatian authorities are urged to investigate any allegations in this respect and redress any shortcomings.
E. The situation in Eastern Slavonia
54 An analysis of the Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, signed on 12 November 1995 by the Croatian Government and representatives of the local Serb community, and its implications, as well as of the competence of the "United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES)" provided for thereby, is contained in extenso in Mr van der Linden's report and I refer to the relevant part (pp. 12-14). Here again I only wish to make some additional remarks concerning legal and human rights issues.
55 To start with, it is worth noting that according to the Basic Agreement "the highest levels of internationally recognised human rights and fundamental freedoms shall be respected in the Region". As a result of the very signing of the Basic Agreement, the general human rights situation in the region has been improved. A field office of the Centre for Human Rights opened at Erdut, Eastern Slavonia, on 1 February 1996.
56 One of the cornerstones of the implementation of the Basic Agreement is the Implementation Committee on Human Rights which will inter alia implement human rights, monitor and report on human rights violations and establish appropriate links with the Council of Europe's human rights bodies.
57 On 11-12 March 1996, a delegation of the UNTAES headed by Mr Klein, Transitional Administrator, visited the Council of Europe and had several discussions, including an exchange of views between the Ministers' Deputies and Mr Klein. During these discussions, Mr Klein requested the Council of Europe's assistance in several fields. With regard to human rights and other legal issues, Mr Klein has asked the Council of Europe to second a senior human rights expert to chair the Implementation Committee on Human Rights who would thus ensure proper liaison with the Council of Europe standards and practices in the field of human rights. Moreover, guidelines and information about the relevant Council of Europe human rights instruments (ECHR, Convention for the Prevention of Torture, Framework Convention for the Protection of National Minorities etc.) should be provided. UNTAES could further be assisted by the Council of Europe in the field of human rights education, human rights awareness and fight against intolerance, in supporting the local NGOs (virtually not-existent for the moment) and in the field of training the police on human rights standards.
58 The legislation in force in Eastern Slavonia at the present time is that of the "Srpska Krajina", a de facto revision of the old Yugoslav legislation of the Croatian Republic. Thus Mr Klein expressed the wish to be assisted by the Council of Europe in a general effort to gradually introduce Croatian legislation. In more specific terms, assistance could be given in monitoring the work of the first instance courts, training the judges and junior lawyers to be seconded to the courts in Beli Monastir and holding information campaigns on the legal institutions in Croatia in order to gain the confidence of the local population and raise their awareness of existing legal remedies.
59 It is worth noting that during a visit to Croatia of a Secretariat delegation on 18-20 February 1996, in order to establish the first contacts with UNTAES, Mr Granic had expressed strong support for involvement of the Council of Europe in the work of the Transitional Administration.
60 I fully share Mr van der Linden's view that the situation in Eastern Slavonia is "the acid test of relations between Zagreb and Belgrade" (p. 14). Concrete confidence- building measures are essential. Amnesty of former combatants, not suspected of war crimes, is also in the case of Eastern Slavonia an essential condition for restoring confidence. The Council of Europe's contribution in developments in Eastern Slavonia could be significant if the requests expressed by the Transitional Administrator, in particular in the legal and human rights field, were satisfied.
F. Co-operation with the OSCE
61 I consider it as a very positive sign that the establishment of an OSCE mission in Croatia was decided by the Permanent Council on 18 April 1996, after initial reservations by the Croatian side were removed and agreement was reached on the terms of the mission's mandate.
62 The mission will establish its headquarters in Zagreb and regional offices in Knin and Vukovar. It will provide assistance and expertise to the Croatian authorities at all levels, as well as to interested individuals, groups and organisations, in the field of the protection of human rights and of the rights of persons belonging to national minorities. In order to promote reconciliation, the rule of law and conformity with internationally recognised standards, the mission will further assist and advise on the full implementation of legislation and monitor the proper functioning and development of democratic institutions, processes and democratic mechanisms.
63 Reference to co-operation with other international organisations and institutions, including the Council of Europe, as well as close co-operation with UNTAES, is foreseen in the decision to establish the mission.
64 The presence of an OSCE mission on the territory of Croatia is of utmost importance as an additional guarantee for human rights protection. The Croatian authorities should actively assist the mission in its work. I propose an amendment for this purpose.
IV. Minority Rights
A. The protection
65 The Constitution of Croatia, in Article 15, guarantees the equality of all members of nations and minorities as well as their rights to freely express their identity and to freely use their own languages and scripts, and their right to cultural autonomy. In addition to this constitutional provision, the provisions in force of the Constitutional Law of 1991 on Human Rights and Freedoms and the Rights of National and Ethnic Communities or Minorities guarantee certain rights to "ethnic or national minorities or communities", such as the right to participate in public affairs (Article 6 d), the right to use freely their language and their alphabet in public or in private (Articles 7, 8 and 10), the right to use their national and ethic emblems and symbols (Article 9), the freedom to create cultural institutions with a view to preserving their national and cultural identity (Article 11), and the right to education in their mother tongue (Articles 14 to 17).
66 The group of rapporteurs of the Venice Commission, in their report on the implementation of the 1991 Constitutional Law, considered that the above provisions are compatible with international standards and in particular with the Framework Convention for the Protection of National Minorities and are also inspired by the principles set out in the European Charter for Regional or Minority Languages.
67 It is worth noting that protection of national minorities in Croatia is also based on international instruments. Thus Croatia signed in February 1996 the International Covenant on Civil and Political Rights and its Optional Protocol. Bilateral agreements are moreover concluded with Hungary, Slovenia and Romania which include provisions concerning the protection of minorities.
68 In this context, reference must nevertheless be made to a decree issued by the Minister of Education in July 1995, which seem to put in doubt the effective exercise of the right of non-speakers of a minority language, living in an area where the language is in use, to learn this language if they so wish. According to the decree in question, for children of Croatian parents to be able to attend schools where a minority language is taught, a decision of the Ministry of Education and Sport is necessary. Moreover, in this case, the decree stipulates that conditions have to be provided for teaching to be carried out in the Croatian language. It is thus doubtful whether children of Croatian parents could be taught the minority language if they so wish. This issue is of particular importance for the region of Istria.
B. The suspension of certain provisions of the Constitutional Law of 1991
69 Certain provisions of the 1991 Constitutional Law (Articles 13, 18 paragraphs 1 and 5, 21 to 51, 52 to 57, 58, 60 and 61) have been temporarily suspended by a Constitutional Law of 20 September 1995 until the next census is conducted. A distinction must be drawn between substantive and procedural provisions that have been suspended. The substantive provisions include the special status granted to districts where minority members represent the majority of the population, in accordance with the 1991 census, and the right to representation and participation in public institutions of minorities and communities which make up more than 8% of the population, also in accordance with the 1991 census. The procedural provisions refer to the international supervision of implementation of the law, including the provisional Court of Human Rights in Croatia (Article 60 of the law). It would be appropriate to deal separately with the two sets of provisions.
a. Substantive provisions under suspension
70 The suspension of the above substantive provisions concerned exclusively the Serb minority, the only one fulfilling the requirements of the law under the 1991 census. The first question to be raised is whether the suspension of the relevant provisions was indispensable.
71 The reason advanced by the Croatian authorities for the suspension was that the provisions were no longer pertinent since the number of Serbs had considerably decreased since 1991.
72 The answer given by the rapporteurs of the Venice Commission on this point, which I fully share, is clear (p. 3 of their report): "the suspension of the law was not indispensable. The provisions could validly have continued in force, although in that case they would not for the moment have any practical application because of the demographic changes that have occurred". I further share the concern of the Venice Commission rapporteurs about the discouraging psychological effect that the suspension certainly had on minorities and displaced persons who wished to return to Croatia.
73 In this respect, the rapporteurs of the Venice Commission do not simply recommend that the suspension of the provisions in question be lifted. They rather stress the need - and I fully share their conclusion - for revision of these provisions as soon as possible in order to guarantee that concentrated minorities will enjoy the right to regulate and manage an important part of public affairs, in line with the European Charter of Local Self-Government and Assembly Recommendation 1201 (1993), with particular emphasis on its Article 11. Thus, while it is for the Croatian legislature to determine its principal characteristics, a special status, adapted to the new situation, should be granted
to concentrated minorities making up a substantial number of the population, irrespective of the total percentage that such a minority represents at national level and thus irrespective of the results of the next census. This issue is of particular importance for Eastern Slavonia and displaced persons (see p. 5 of their report).
74 Finally, concerning the next census of the population, initially scheduled for April 1996 but subsequently postponed without any clear indication of when it will finally be held, the rapporteurs consider it "preferable to wait until the situation has calmed down on the territory of Croatia and for the conditions for the return and peaceful settlement of displaced populations to be plainly met before organising, in co-operation with the international community, the next census" (see p. 4 of their report).
b. Procedural provisions under suspension: the provisional Court of Human Rights
75 With regard to the question of the provisional Court of Human Rights provided for by Article 60 of the 1991 Constitutional Law, presently suspended, the rapporteurs of the Venice Commission, during their mission to Croatia, applied themselves to evaluating, after consultation with all persons they met, the present viability of the establishment of such a Court. Their considerations may be summarised as follows (for details see their report, pp. 5-9):
76 On the one hand, the idea of creating a Court of Human Rights for the Republics of the former Yugoslavia, which was at the origin of Article 60 of the 1991 Law, seems to have been abandoned. Moreover, its establishment would have a negative effect on the process of bringing applications before the Strasbourg organs, either on the basis of Article 27 of the ECHR, if it were to be considered as "another procedure of international investigation or settlement", or on the basis of Article 26 of the ECHR, if it were to be considered as a domestic remedy which had to be exhausted (necessarily, the provisional Court would fall into one of these two categories).
77 On the other hand, as shown above, the Constitution of Croatia contains several provisions on human rights and rights of minorities. These rights as well as those included in international treaties which are incorporated into the domestic legal order after ratification and publication (Article 134 of the Constitution, see also above under paragraph 26) can be invoked before any domestic court, including the Constitutional Court of Croatia. As it has already been said, the latter can be seized by means of an individual application, it has been functioning properly and enjoys full confidence (see also above, paragraphs 12-16).
78 In these circumstances, the rapporteurs of the Venice Commission reached the conclusion - which I fully share - that "the establishment of a provisional Court of Human Rights as provided for in Article 60 of the Constitutional Law of 1991 is not now an apposite or necessary means of protection" (p. 7).
79 At the same time, the rapporteurs "strongly recommend the creation of a body with a partially international composition integrated into the Croatian domestic legal order" (p. 7), in order to ensure the confidence of minorities, persons living in areas currently under the UNTAES administration and displaced persons. In this respect, they considered that provision for an Ombudsman would not bring about sufficient confidence, having regard to the lack of any decision-making power of this institution.
80 Thus the Venice Commission rapporteurs concluded by suggesting that "an enlargement of the Constitutional Court be provided for such as to allow it, when deciding upon cases concerning the rights of minorities, to comprise international judges. Such a proposal may be considered to be an adequate confidence-building measure (p. 9). I believe their proposal constitutes a realistic approach to the problem which would avoid the creation of an additional degree of jurisdiction and allow the development of relevant Croatian case-law.
V. Local and regional democracy
81 On 18 April 1996, I received a comprehensive report of the Bureau of the Congress of Local and Regional Authorities of Europe (hereafter: "CLRAE") containing the "conclusions of the various reports concerning the state of local and regional democracy in Croatia"[8]. Given the importance of this document, which I recommend the members to read, I tried to summarise the main points which could be of interest for our Committee. For the rest, I refer to the relevant part of the report of Mr van der Linden (including a section on Istria, pp. 16-17).
A. The dual function of the Zupan (Prefect and President of the Regional Council) and of the Mayor of Zagreb
82 The Constitution of Croatia contains a chapter on "Organisation of Local Self-Government and Administration" which defines the general principles for the organisation of territorial administration. It provides for two levels of self-government: communes (towns and municipalities) and districts of towns (Article 129) on the one hand, and Zupanije (regions, Article 131) on the other. They are both described as "units of local administration and local self-government". The regions thus have a dual function: they are decentralised organs of the government on the one hand, and regional authorities on the other. At the same time, the Zupans (Prefect and elected President of the Regional Council) play a dual role: as Prefects, they are representatives of the central government at regional level, and as heads of the regional authority, they are representatives of its interests.
83 In addition to a number of problems associated with the actual function of zupanije (regions), the CLRAE holds that "the very conception of such a level of government needs to be revised. Indeed the dual role of the region and even more of some of its organs creates confusion which appears to impair the functioning of regional autonomy" (p. 5 of the CLRAE report).
84 One of the consequences of this duality is that, according to the Local Administration and Autonomy Act of December 1992 (amended by Act 117/93 of 31 December 1993), the election of the Zupan by the Regional Council must be confirmed by the President of the Republic. Such an approval is clearly not unusual with regard to the Zupan as head of the decentralised territorial administration of the state. However, it is not acceptable in relation to the election of the head of the executive of a regional authority - i.e. with regard to the second function of the Zupan.
85 Furthermore, in view of the special status of Zagreb as both a city and a region, the Mayor of Zagreb is at the same time ex officio the Prefect of the Region of Zagreb.
86 Given this dual function of the Mayor of Zagreb, the above-mentioned provisions of the Local Administration and Autonomy Act on the confirmation of the election of the Zupan by the President of the Republic apply also to the Mayor of the City of Zagreb, according to the Zagreb County Act of 1995.
B. The recent procedure for the election of the Mayor of Zagreb
87 On the basis of the above-mentioned legislative framework, the President of the Republic of Croatia refused three times to confirm in office the mayors elected by the Zagreb Municipal Council. The latter, following the municipal elections in the capital of 29 October 1995 (held at the same time as parliamentary elections in the whole country), is composed in its majority by opposition members, the ruling HDZ party having 16 out of a total of 50 seats.
88 The fourth time the Zagreb Municipal Council elected a personality who seems to be uncontested by anyone given his role in the fight for Croatia's independence. Previously, the Council had refused to accept the Mayor provisionally appointed by the President of the Republic. Thus it seems that if the President of the Republic refuses to confirm the fourth elected mayor in office, new municipal elections will be the only way out of the present deadlock.
C. Recommendations of the Congress of Local and Regional Authorities of Europe
89 The CLRAE finds that "the refusal to approve the three mayors successively elected by the Zagreb municipal council without objective reasons was a blatant contradiction of the election results and thus infringed the basis principles of local self-government" (p. 6 of the above-mentioned report of the CLRAE).[9]
90 It clearly results from the preceding analysis that the problems which arose in relation to the procedure for the election of a Mayor of Zagreb are not due to a bad application of the current legislation but to the legislation itself, in particular the Local Administration and Autonomy Act of 1992 and the Zagreb County Act of 1995. Moreover, although the recent election procedure of the Mayor of Zagreb offered the opportunity to realise the shortcomings of the legislation, the latter are of wider importance, covering in general the election of Zupans in Croatia.
91 The need to amend the current legislation on this matter is unanimously advanced by the CLRAE which finds the current situation "contrary to pluralist democracy and the principles of local self-government" (p. 10 of the above-mentioned report).
92 As to the more specific recommendations the CLRAE makes the following distinction:
a. if the dual function of the Zupan (appointed Prefect of the region/elected President of the Regional Council) and thus also of the Mayor of Zagreb is to be retained, "the power of approval would entail a clear legal definition of the criteria for confirmation or rejection. In order to prevent party-political interference or arbitrary acts, respect for majority decisions by democratically elected municipal representatives should be expressed by restricting the power of approval either to an examination of the lawfulness of the choice of the Mayor or Zupan or an objective appraisal of his/her qualifications, thus precluding any party-political evaluation" (p. 6). Moreover, "in the event of a conflict between the outcome of the election and the President's decision the ultimate decision must either be given by an administrative court or the Constitutional Court or be submitted to a majority decision by the democratically elected Council, which would then dismiss the presidential objection"(idem).
b. if the Croatian authorities opt for the separation of the functions of Prefect and President of the Regional Council, "they should take special care to vest the authority holding `self-governing' powers at regional level with clearly defined separate powers, both from the Prefect as representative of the State and from the grassroots local authorities" (p. 7 of the CLRAE report).
93 As a concluding remark, I wish to refer to the statements made by the Deputy Prime Minister, Mrs Mintas-Hodak, to Mr Ch�nard, Vice-President of the CLRAE on 28 March 1996, according to which the government would make moves by the end of the first half of 1996 to revise the Local Administration and Autonomy Act in the light of the proposals presented in the various reports by the CLRAE delegations as regards the distinction between the concepts of the Prefect and President of the Regional Council and thus also between the Prefect and the Mayor of Zagreb and as regards recognition and clarification of the right of local and regional authorities to engage in transfrontier cooperation. Mrs Mintas-Hodak has explicitly resolved to consult the Council of Europe experts on this Local Administration and Autonomy Act revision bill sufficiently in advance of its second reading in Parliament (see the CLRAE's report, as above, p. 3). I attach great importance to this commitment undertaken by the Croatian authorities.
D. Other issues
a. Transfrontier co-operation
94 The CLRAE condemned attacks directed at transfrontier co-operation by the President of the Republic. It nevertheless welcomed the intentions of the Croatian authorities to establish the right to transfrontier and inter-territorial co-operation by local and regional authorities, and the relevant procedures, when revising the Local Administration and Autonomy Act.
b. Eastern Slavonia
95 The CLRAE has initiated contacts with UNTAES for the purpose of developing a co-operation, in particular in the field of confidence building between the various ethnic communities, setting up local and regional structures suited to the situation and preparing electoral rolls and arranging free local and regional elections under international supervision once the essential preliminary stages have been covered.
VI. Conclusions
96 It has been shown that, although reform is still needed in the field of implementation of human rights standards, in the light of the current situation, the Croatian legal order complies with the "rule of law" principle. In the words of Croatian practising lawyers, "the Croatian judiciary does not work worse than elsewhere and even better than in certain European countries." Nevertheless, it must be ensured that the application of the Law on the High Judiciary Council should be in conformity with Council of Europe standards.
97 Concerns for the exercise of the freedom of the media in Croatia are serious. However, accession to the Council of Europe could in itself help to create conditions in conformity with Council of Europe standards through the monitoring procedure over the commitments entered into by Croatia. It would, furthermore, allow use of the Strasbourg human rights protection machinery to everyone under Croatia's jurisdiction and , including those working in the media sector, as well as intensification of the existing assistance and co-operation programmes in this field between the Council of Europe and Croatia.
98 The conclusion of an agreement allowing for an OSCE mission to be established in Croatia (headquarters in Zagreb and branch offices in Vukovar and Knin) on 18 April 1996 is an important positive sign. Moreover, in order to encourage the return of Croatian Serbs, in particular to the so-called "Krajina" region and their staying in Eastern Slavonia even after the expiration of the UNTAES mandate, a general amnesty for former combatants, not suspected of war crimes, should be granted. The Council of Europe's contribution to the work of UNTAES in Eastern Slavonia could be essential.
99 Finally, with regard to the protection of minority rights and local self-government, authoritative experts within our Organisation, on the one hand the Venice Commission and, on the other, the Congress of Local and Regional Authorities of Europe, have submitted concrete recommendations on how to improve the current situation. Reference to these recommendations is already made in the list of the commitments undertaken by Croatia (see paragraph 8 vii and xvii of the draft Opinion). I attach great importance to the implementation of these recommendations which will be a priority for our monitoring procedure.
100 It is in view of all the above-mentioned considerations that I support the recommendation to the Committee of Ministers to invite Croatia to become a member of the Council of Europe.
VII. Suggested Amendments
101 The text of the draft Opinion proposed by the Political Affairs Committee (contained in Doc. 7510) is, as a whole, a very solid one. It is of great importance that the highest authorities of the State signed, on 15 March 1996, a series of commitments undertaken by Croatia. While I fully subscribe to the proposed text, I suggest the following amendments in order to make reference either to events which took place after the signing of the letter by the Croatian authorities or to issues of particular importance for the Committee on Legal Affairs and Human Rights that the Assembly should further expect Croatia to fulfil.
Amendment No 1
Add the following paragraph after paragraph 8 as a new paragraph:
"The Assembly further expects Croatia:
i. to ensure that the application of the law on the High Judiciary Council respects Council of Europe standards;
ii. to grant, without delay, a general amnesty for all former combatants, not suspected of war crimes, in order to encourage the return of Croatian Serbs;
iii. to actively assist the OSCE mission in its work;
iv. to consult the Council of Europe experts on the revision bill of the Local Administration and Autonomy Act sufficiently in advance of its second reading in Parliament."
Amendment No 2
In paragraph 9 after the word "commitments" add the following words:
"and expectations"
ANNEX
Letter from the International Federation of Journalists
to the President of the Republic of Croatia,
dated 11 April 1996
Reporting committee: Political Affairs Committee
Committee for opinion: Committee on Legal Affairs and Human Rights
Reference to committee: Doc. 6726 and Reference No. 1836 of 1 February 1993
Opinion approved by the committee on 23 April 1996
Secretaries to the committee: Mr Plate, Ms Chatzivassiliou and Mrs Kleinsorge
[1]. by the Committee on Legal Affairs and Human Rights.
[2]. See Doc 7510.
[3]. AS/Bur/Croatia (1994) 2
[4]. She referred in particular to the continuing eviction by State authorities of persons from their flats without sufficient legal protection, the lack of freedom of expression and independence of the media, the lack of prosecution of acts committed against persons of Serbian nationality, the differential treatment of members of ethnic minorities and the lack of effective protection of conscientious objectors (see above, pp. 35-37).
[5]. See the eminent lawyers' report, as above, p. 11.
[6]. Up until now a criminal act could have been committed only by a person who was in possession of a state or military secret (due to his profession or position) and conveyed it to another person without authorisation.
[7]. Doc. E/CN.4/1996/63 of 14 March 1996.
[8]. Doc. CG/BUR (2) 101 rev., Copenhagen, 16 April 1996.
[9]. See also the report of Mr van der Linden, p. 17 and the report of the Venice Commission, p. 2.