Review of the legislation:U-I - 732 / 1998

decision and ruling, 04/12/2001

instituted proceedings - ex officio; repealed legal norms; proposal not granted

Headnote:
An imperative mandate of a member of Croatian Parliament is not constitutional.
The representation of national minorities, whose share in the population is above 8%, as prescribed by the disputed Constitutional law, is not discriminatory, either towards the majority population or towards other national minorities.

Publication data: Official Gazette no. 36/01

Conclusion (U-I-732/1998):




Summary

The subject of constitutional review was the Constitutional Act on the Human Rights and Freedoms and on the Rights of Ethnic and National Communities or Minorities in the Republic of Croatia.

The review of constitutionality was proposed by a political party. The review concerned the provisions according to which:
1. members of ethnic and national communities or minorities whose share in the population of the Republic of Croatia is above 8% are entitled to representation in the Croatian Parliament, in the Government of the Republic of Croatia and in the highest bodies of judicial power according to their proportion in the total population;
2. members of ethnic and national communities or minorities whose share in the population of the Republic of Croatia is below 8% are entitled to elect at least five and at most seven representatives to the Croatian Parliament.

The political party which proposed a review of these provisions argued that the right to elect representatives to representative bodies belongs to the community of all citizens, and not to some special group which is only part of the nation. It further claimed that the cited provisions are not in accordance with Article 14.2 of the Constitution and that they violate the equality clause by differentiating on the grounds of national origin. Finally, it claimed that since the number of electors who elect representatives from national minorities is smaller than the number in other electoral units, the disputed provisions also violate the constitutional principle of equal suffrage.

The proposal for constitutional review was dismissed.

The Court held that the disputed law was constitutional. Article 15.2 of the Constitution provides for the regulation of equality and protection of the rights of national minorities by the Constitutional Act. The Constitutional regulation is adopted by passing organic laws.

The Court also held that beside the universal franchise, the law might ensure a special right to members of national minorities to elect their representatives to the Croatian Parliament. Thus, the Court found no discrimination between majority and minority populations and between different minority communities in the disputed provisions.

The reasons for the Court’s ruling were also found in the provisions of the Framework Convention for the Protection of National Minorities. According to these provisions, 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 and the measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination (Article 4.3 of the Framework Convention).

Apart from the political party’s proposal for review, the Court instituted ex officio proceedings to review the constitutionality of the provisions or parts of the law (Article 17.3, 17.4 and part of Article 25) which dealt with the termination of office of representatives.

It was held that these provisions should be repealed. The reason for this is Article 74.1 of the Constitution, according to which representatives in the Croatian Parliament do not have an imperative mandate, but a representative one in which the representatives in their activities – in discussions, attitudes and in voting – may act independently of the views of their electors.

The Court also held that in prescribing an imperative mandate for representatives of ethnic and national communities and minorities, the legislator had put one category of representatives in an unequal position before the Constitution and laws.