1

Systems of Minority Participation in Central and Southeast Europe: A Comparative Perspective Paper prepared for the 6th ECPR General Conference, 25-27 August, Reykjavík, Iceland

István Horváth Romanian Institute for Research on National Minorities, Cluj; Babeş-Bolyai University, Cluj

István Gergő Székely Romanian Institute for Research on National Minorities, Cluj; Central European University, Budapest

– preliminary draft, please don’t cite –

Abstract The need to handle ethno-cultural diversity, as wells as the external pressures stemming from the processes of Euro-Atlantic integration have lead to the adoption of diverse institutional and policy solutions designed to foster the inclusion of ethnic, national, or linguistic minorities in Central and Southeast European states. The totality of the regulations concerning national minorities in a specific country is often referred to as the system of minority protection of that state or as a minority rights regime.

The aim of this paper is to perform a comparative analysis of the political participation dimension of the minority rights regimes of Central and Southeast European states (plus Greece and Turkey), according to a series of clearly identifiable variables. We focus mainly on constitutions, special minority protection laws and on legislation regulating political participation (laws on political parties and electoral laws). We first classify the countries over a series of variables, such as: whether ethno-cultural diversity is officially recognized or only informally acknowledged; how does the state define itself and how does it define the minorities (as individuals or communities); are there any communities specifically listed in the constitution or special laws; are the policies and practices targeting minorities uniform for all the minorities living in that specific country or is there any (explicit or implicit) differentiation according to the certain features of these groups; what are the conditions of electoral contestability and how do these affect minorities: are there any special arrangements that regulate the political participation of the minorities, like easier conditions for the registration of political organizations or for obtaining representation, like reserved seats or other special rules? Is there an autonomous political sphere for the minorities, like various forms of autonomy or self-government?

In the second step we attempt to identify patterns in the regulations of the different countries, aiming to highlight whether certain regulations appear together, or whether some do not occur in the absence of others. In the end, the analysis will yield a classification of the minority protection systems according to two main dimensions: the informality-institutionalization axis and the uniformity-differentiation axis.

  2

Introduction States offer rights and protection to minority groups living on their territories driven by the need to handle ethno-cultural diversity and the necessity to defuse or prevent interethnic tensions or conflict. The issue of the inclusion of ethnic, national, or linguistic minorities has been particularly salient in Central European and Southeast European (CESE) states, as the last decade of the 20th century brought about the bloodiest conflicts in Europe since WWII in the Western Balkans. These conflicts made the international community aware of the security risks too, and determined it to use its influence to prevent the repeating of such bloody events. Thus, the minority issue became of central also to the most important political process for the countries of CESE in the past decades, the integration into the Euro-Atlantic structures. Acceptance into major international organizations (Council of Europe, NATO, EU) required the adoption of policies ethnocultural diversity management (known as EU conditionality), thus the pressure on CESE countries to adopt minority policies became even greater.

The totality of policies in a specific country that “accommodate diversity and grant members of minorities certain rights” is often referred to as a minority rights regime (Rechel 2009), or a system of minority protection. Such systems or regimes comprise policies in numerous domains, like language usage, culture, education, representation in the public sector and political participation, but may involve other fields too, such as property restitution or social welfare, depending on the characteristics of minorities and the legacies of the past.

Obviously, a comprehensive comparative analysis of the minority rights regimes of an entire region would require books. In this paper we attempt to investigate one specific aspect of the minority rights regimes of CESE countries, namely the way how ethnocultural diversity is represented at the level of the political system. While such an analysis can shed light only on one particular slice of the situation of minorities, the way how political participation is regulated tells a lot about the underlying philosophy of the system. The relevance of a comparative analysis of minority participation in the CESE region is also given by the fact that to our knowledge, no comprehensive study has focused on this. The issue is either touched upon in the relevant subsections of case studies about the minority rights regimes of a single or a few countries (e.g. Trifunovska 1999; Horváth 2001; Alionescu 2004; Petričušić 2004a; Petričušić 2004b), or appears in broad comparative works about special arrangements for minority participation that aim to create inventories of as many such arrangements in the world as possible without focusing on a particular region and without exploring the logic of minority inclusion in depth (Frowein and Bank 2000; Htun 2003; Reynolds 2005; Meier 2007; Venice Commission 2000; Venice Commission 2005), or in research that approaches the issue exclusively from the perspective of the electoral system (Bochsler 2006).

Political participation is regulated primarily in the constitutions, special minority protection laws and electoral legislation. In the paper we classify the countries over a series of variables extracted through an analysis of these documents. The aspects that we are interested in can be grouped into two broader categories. The first comprises the aspects of diversity recognition (to what extent do states acknowledge diversity, how do they categorize the groups living on their territory), while the second contains the more narrowly defined conditions for political participation, which include the conditions of minority representation in the national polity and the existence or absence of an own, autonomous political sphere for the minorities. After the investigation of these features, we will attempt to identify patterns and to place the states along the dimensions of diversity recognition, institutionalization of ethnicity concerning participation and the uniformity or differentiated nature of the policies, in order to arrive to an empirical taxonomy of minority participation.

  3

The structure of the paper is the following: the first section is a brief literature review about the various techniques of ethnic conflict regulation and ethnocultural diversity management. After this, we discuss the specificities of the Central European and Southern European region, also addressing the case selection issue. The third part presents our own framework for the conceptualization of the participation aspect of minority rights regimes. The fourth part presents the empirical situation in the studied countries. In the final section we present our assessment regarding the patterns in the regulations and the placement of the systems according to the dimensions of recognition, formality-institutionalization and uniformity-differentiation.

Political responses to ethnocultural diversity

In the literature on ethnic conflict resolution and the management of ethnocultural diversity one can find a vast number of typologies or taxonomies about strategies that can be applied in ethnoculturally diverse states.1 The most cited classifications are probably the ones by John McGarry and Brendan O’Leary (McGarry and O’Leary 1993; McGarry and O’Leary 1994) and Juan J. Linz and Alfred Stepan (Linz and Stepan 1996), but a further number of theoretical works address the issue too, some of them further developing the ideas contained in these seminal works.

The classification with the arguably broadest perspective is the typology of Linz and Stepan (1996). This is based on two dimensions: the nature of the state-building and of the nation-building strategies. The former refers to the policies of citizenship towards minorities, which can be exclusionary and inclusionary, while the latter to the attitude towards putting an equality sign between the demos (citizens) and the ethnic nation, which can be unifying (the two should be the same) and differentiating (acceptance that the two can be different). From the combinations of these two dimensions four types of policies towards minorities result. An exclusionary citizenship policy combined with a unifying conception of the nation (type I.) will materialize in the encouragement of the exit option of minorities, by direct expulsion or by discriminatory policies that will compel them to leave. If combined with a differentiating policy, the exclusionary citizenship policy (type II.) will tolerate the presence of minorities as resident aliens, but will marginalize them by denying political rights. An inclusionary approach to citizenship combined with a unifying conception of the nation (type III.) will aim to assimilate minorities. Diversity is not valued, and political rights will only be enjoyed by those who assimilate, while those who refuse will face discrimination. Finally, the combination of an inclusionary and a differentiating strategy (type IV.) will lead to a certain degree of recognition and group rights. However, the authors note that this does not necessarily mean a generous minority rights regime, but only that diversity is not considered fully negative, so the degree of diversity recognition can range from limited rights to full bilingualism or federalism.

In Linz and Stepan’s typology the real dividing line is between the first three and the last type, and from our perspective anything that can be considered a minority rights regime will fall into this last category. Wofgang Zellner (1999) elaborated on Linz and Stepan’s typology in order to further differentiate within this last type, by combining the original categories with the distinction between territorial and non-territorial solutions. The result is a typology that includes the new strategies of balance (a non-territorial inclusionary and differentiating solution), territorial autonomy (its territorial counterpart), isolation (non-territorial exclusionary and differentiating solution) and confederation (its territorial counterpart).                                                             

1 Literature on specific methods abounds, but here the aim is not to enter into details and technicalities, but to review the works with the broadest perspective.

  4

The other important classification is the taxonomy developed by John McGarry and Brendan O’Leary (1993; 1994). The authors divide the strategies into techniques that aim to eliminate diversity and methods that seek to preserve or manage ethnocultural differences in society. The first group contains mostly undemocratic measures that are incompatible with liberal principles (genocide or forced population transfers), or techniques that can be applied in a democratic manner only under very special conditions (partition, secession). The only technique from this category which can be compatible with liberal principles is assimilation or integration, but this also obtains only if minorities accept to leave behind their identity and embrace a new common identity (integration) or the identity of the majority (assimilation). The second group of measures, which aim to maintain differences, also contains a clearly undemocratic solution, namely hegemonic control; this denotes the domination of one of the groups (usually the largest) through the control of the coercive agencies of the state and the co-optation of elites from the other groups, however, without treating them as equal partners. Another technique in this group is arbitration by a third, neutral party, but this refers rather to the method of reaching a settlement and not to the content of the solution. Finally, the remaining two solutions are federalization/cantonization on ethnic grounds and power-sharing or consociational democracy, which are genuine methods for constitutional engineering aimed at managing ethnocultural diversity (McGarry and O’Leary 1993; McGarry and O’Leary 1994).

Similarly to Linz and Stepan’s work, the taxonomy of McGarry and O’Leary has also been combined with the aspect of territoriality. Rechel (2009) uses the variable of territoriality to distinguish subtypes within the solutions that aim to accommodate diversity (but excluding hegemonic control from this category), and which he calls minority rights regimes. Rechel includes immigrant multiculturalism, limited cultural or language rights for minorities and cultural autonomy into the group of non-territorial minority rights regimes, while the territorial types comprise territorial autonomy and multination federalism.

Another interesting contribution worth reviewing is authored by Tom Hadden (2005), who distinguishes three broad approaches to dealing with minority issues. The first approach, assimilation, involves the merging of the separate identities and cultures of distinctive communities with the dominant national identity and culture, and is usually pursued by states that aim to become homogenous or mono-cultural. The second approach is labeled integration, but the term does not mean the same for the author as for McGarry and O’Leary. Hadden claims that integration involves the recognition of the identity and culture of the distinct groups, and the implementation of measures that ensure their effective participation as such in all the structures of the state. Integration is pursued by states that recognize and aim to accommodate diversity and which seek to preserve their multi-cultural character. Finally, the third possible approach is autonomy, which involves the creation of separate structures through which members of a distinctive community exercise effective control over their own affairs. Autonomy may be granted on a territorial (regional), local or functional basis, and allows the communities to remain auto-cultural or solo-cultural. All three strategies are compatible with liberal principles, with the qualification that policies of assimilation are not to be imposed against the will of those affected by them.

The review of classifications could be continued, however, it is more important to return to another important idea from the article of McGarry and O’Leary, which is, however, not sufficiently developed. The authors stress that the strategies from their taxonomy are macropolitical methods of ethnocultural diversity management. While they also mention micropolitical tools in a footnote, these are not further pursued in the article. These include discrimination and segregation, equal opportunities policies, affirmative action programs, community relations, cultural encounter groups and specific forms of electoral

  5

representation. Rechel also acknowledges that even after the expansion of the taxonomy performed by him, the dimension of minority participation remains unaddressed (Rechel 2009: 8).

As a matter of fact, all the classifications reviewed here deal only with macropolitical solutions, though Hadden presents some ideas about the connections between his three strategies and micropolitical techniques of diversity management in different domains of minority rights, including political participation. According to Hadden the political participation of minorities in the national polity and their possibility to have a distinct political sphere of their own are related to two distinct ideas of ethnocultural diversity management. Creating appropriate conditions for the first reflects an integrative goal by the state, that is, to ensure their inclusion into the polity while recognizing their distinctiveness. Spheres for self-government reflect a different approach by the state, namely autonomy, as they entail the creation of separate, parallel structures for the minorities, through which they can exercise control over their own affairs (Hadden 2005). While theoretically the two types of participation are not in contradiction, as minorities that enjoy some sort of autonomy will participate in the national polity too (even though the reverse is not necessarily true), it is an interesting empirical question how states approach this in reality.

Apart from Hadden’s ideas about the link between the macropolitical and the micropolitical, little is said in the reviewed literature about the connections between the general philosophy behind the diversity management strategies and the specific micropolitical policy areas such as the regulations referring to the political participation of minorities. This reinforces the relevance of our analysis, as we aim to connect the manner in which states recognize diversity with the concrete institutional arrangements concerning participation.

Minority policy in the Central European and Southeastern European region

We consider that the countries from Central Eastern and Southern Europe included in this analysis share a series of common features beside geographical proximity in what it concerns the political significance of ethnicity. These are rooted on one hand in the history of this region, and on the other hand in the political processes of the past two decades.

First, a common feature in the countries of this region is the unfinished or interrupted nature of the nation-building process, and the legacies that follow from this. While in many Western European countries due to the rapid industrialization and as a result of the nationalizing policies of relatively strong central states most of the ethnically differentiated segments of society were largely assimilated until the beginning of the 20th century, in CESE, in the context of relatively late and slow industrialization and rather weak and ineffective states many non-dominant or even marginal ethnic groups were successful in constantly reproducing their cultural features and maintaining a sense of distinctive ethnicity. Moreover, many of the minorities from this region came into being rather late, as a result of the redrawing of borders after WWI or the disintegration of multinational federations in the last decade of the 20th century.

During the nation building processes that commenced in the 18th-19th century, competitive elites mobilized various segments of societies along ethnic lines, thus ideas of nationhood were formed in strong connection with a sense of common ethnicity. As elements of a given ethnic culture were invested with political meanings, ethno-cultural and ethno-religious dividing lines where often conferred political meanings, and belonging to a minority ethnic group became a political condition (or at least a condition that in many cases could have been easily politicized).

  6

Thus, a strong tradition exists throughout the region to attach political significance to ethnicity and group membership. Though not in every case, and not in relation with all of the ethnic groups residing in a country, many of these countries experienced considerable difficulties in administrating cultural pluralism, and many of the cases included here can be described as divided societies (Horowitz 2000). Though in historical perspective a variety of political strategies meant to administrate ethnic pluralism were pursued, the majority of the countries included in the analysis share the common feature of having practiced some form of political institutionalization of ethnicity (Brubaker 1994).

Second, several common aspects can be discerned in the context in which these states designed policies for administrating ethnic pluralism in the last one or two decades. The sovereignty of most states in what it concerns ethnic politics has been limited by the international context. The international community was more or less effective in limiting these states in promoting ethno-political goals meant to reduce ethnic diversity (ethnic cleansing, forced assimilation), thus the negative rights of the minorities (non-coercion and non-discriminative, equality of civil and political liberties etc.) were more or less respected.

One of the major political criteria to gain acceptance into major international organizations (Council of Europe, NATO, EU) meant imposing a somewhat pluralist management of ethnic diversity in these countries. A common set of standards (both legally binding treaties and recommendations) were elaborated and promoted in order to offer a substantial set of positive rights for the minorities. In the case of EU candidate countries, the Copenhagen criteria stated that stable institutions must be achieved, that guarantee “respect for and protection of minorities”. As the requirement was not elaborated in further detail by the EU, the standards in the accession process were drawn from the documents of the Council of Europe and the OSCE.2 Moreover, these documents were “recommended” not only to the countries that already joined the EU, but also to those who wish to do so in a foreseeable future. The only exception in the region would be Greece, which is a EU-member since 1981.

However, assessments of the EU conditionality process have shown that the EU was unable to offer clear policy templates in the area of positive minority rights and did not set up a rigorous monitoring and sanctioning system. As EU acquis does not cover minority rights, aspiring members were free to follow models from old member states, which are very varied themselves, ranging from very generous arrangements as in Finland, Italy or more recently the UK to the almost complete denial of ethnocultural diversity as in France. The only areas in which EU conditionality brought convergence were legislation on anti-discrimination and the Roma issue (Rechel 2009; Sasse 2009). While the low effectiveness of EU conditionality is often explained with the lack of effective persuasion mechanisms (rational political elites would not adopt and implement minority-friendly policies in the absence of sanctions unless it coincides with their own interest) there is also an alternative argument that is more optimistic. The constructivist approach to EU conditionality proposes that politicians become increasingly socialized to accept the importance of the minority issue, which could lead in the long run to a general increase in the level of minority rights that are considered either acceptable or necessary. Unfortunately, little evidence has been found in support of this hypothesis so far (Schwellnus and Schimmelfennig 2008).

                                                            

2 The most important documents in this sense are the The Framework Convention for the Protection of National Minorities (FCNM), The European Charter for Regional or Minority Languages (ECRML), The Lund Recommendations on the Effective Participation of National Minorities in Public Life, The Hague recommendations Regarding the Education Rights of National Minorities, The Oslo Recommendations Regarding the Linguistic Rights of National Minorities.

  7

Thus, the process of EU conditionality can only be considered one among the many factors that influence the minority rights regime of the CESE states, and it is very difficult to claim clear causal relationships behind the adopted policies. The situation of minorities depends at least as much on historical and structural factors, many of them idiosyncratic, as on the pressures exerted by the and international organizations. The legacies of the past relationship between majority and minorities, including the occurrence or absence (or rather the distance in time) of inter-ethnic violence, the pattern of transition to democracy, state capacity, the demographic characteristics and the degree of organization of the groups and the cultural distances among them, as well the involvement of kin-states all represent potential sources of differences in what it concerns the minority rights adopted by a state, and the list could be continued (Rechel 2009).

In these circumstances of a region with lots of shared experiences but also a myriad of particularities, a comparison of the minority protection systems becomes a meaningful but also challenging endeavor. Consequently we don’t aim to establish causal relationships in this paper, only to arrive to some sort of classification, leaving the explanation to future work.

However, even this would be a rather ambitious undertaking. Since minority protection systems involve a plethora of aspects, we must introduce some limits to the scope of our study. One limitation is the restriction of focus on the participation-related issues of the regimes, already mentioned above, as the main concern of the paper is the connection between ethnocultural diversity and political participation. And even within the aspects related to political participation we will restrict the analysis to positive rights. In case of minorities’ political participation the negative rights encompass all those juridical norms that forbid the authorities to take measure that limits the right to vote, to be elected, etc. on the grounds of belonging to a minority group. The failure to guarantee these negative rights amounts to a major departure from democracy even in the procedural sense, and fortunately represents the exception rather than the rule in the region. We will focus on positive rights, and more concretely on those positive rights that allow minority persons to become involved in politics not only as citizens without any particular ethnic determination, but as members of particular ethnic groups.

Another restriction refers to the selection of cases: we only include states from Central Eastern and Southern Europe, that is, the Visegrad countries, the Balkans and the Western Balkans. We leave out the post-Soviet countries, including the Baltic states. This is motivated by the low levels of democratization in the case of most post-Soviet republics, and with the special salience of the citizenship issue in the case of the Baltic states, a problem which does not arise to the same extent in any of the CESE countries, and would expand the scope of the research too much.

Under these circumstances, the inclusion of Greece and Turkey might need further clarification. The decision was based primarily on geographical proximity, both states being part of the multiethnic Balkans region, and having considerable shared historical experiences with the other Balkans countries. Moreover, 20 years after the fall of communism it should be legitimate to select cases also on criteria other than the post-communist – not post-communist divide. Anyway, although not a post-communist country, Greece is still a relatively young democracy, at least when compared to Western Europe, even if EU membership was obtained more than two decades earlier than in the other EU member countries included into the analysis, in a period when the EU did not make any condition related to minority rights. Conversely, Turkey is arguably the farthest away from EU membership, yet the need of Europeanization involves that EU conditionality should have some impact here too in the field of minority protection.

  8

A few words on methodology

The paper is based on the analysis of legal documents: constitutions, minority protection laws, electoral laws and laws on political parties. We do not focus on international treaties, as ratifying the documents of the UN, CoE or OSCE only means the acceptance of general principles but not commitment to adopt any particular minority protection measure. We are not dealing with the implementation of the rights guaranteed in legal documents either. Although even the most generous arrangements are valueless if they only exist on paper, and despite our awareness that deficient implementation is one of the most serious problems in the region (Wolff et al. 2008), such an endeavour would exceed the limits of this paper.

One possible weakness of the paper stems from the fact that we relied on the English translations of the relevant legal documents, except for Hungary and Romania, where we were able to use the original documents too (however, the parts quoted in the paper are from the English translations). This implies that sometimes the precise spirit of the law might be distorted by the translation, which may create problems especially when it comes to judgments about nuances. However, we believe that by a careful reading of the English versions we were still able to grasp the intentions of the law-makers.

From an epistemological perspective our aim is to arrive to an empirical taxonomy. That is, we aim to classify the systems on the basis of empirically observable and measurable characteristics, and do not start out with predefined concepts or dimensions drawn from theory (Smith 2002). Empirical taxonomies are obtained by collecting data on the studied entities, analyzing them and identifying configurations, while theoretical taxonomies use apriori knowledge to develop configurations, before classifying the entities (Lesage and Wechlter 2007). Of course, a purely inductive strategy would not be feasible for at least two reasons. First, these are pure strategies which are impossible to follow strictly, and second, one cannot completely ignore what has already been written about the topic. In the remainder of the paper we present our framework, which obviously builds on previous literature, and then we investigate the regulations from each country, following an inductive strategy: we first create an inventory of the particular practices of the states and then proceed to identify patterns.

The politics of recognition and the institutionalization of ethnicity in political participation As the representation of minorities as minorities (not as regular citizens) is conditioned by the official registration, or at least implicit recognition of group membership, our analysis will focus first on the recognition and registration of diversity, and second on the specific regulations concerning minority participation.

Regarding diversity recognition, we are interested in the following aspects of legislation:

Is diversity recognized at all in the constitution, or rather an official stance of homogeneity is conveyed, regardless of sociological reality?

How is the state defined in relation to the largest ethnic group or nation? Who is the source of ultimate political sovereignty, how are “the people” defined?

What is the standing of minorities in this respect, are they recognized on an equal footing?

If the existence of minorities is acknowledged, are they recognized as individuals or as communities? (terminology but also rights)

Are the minorities enumerated in the constitution or other important legal documents or mentioned only in general terms?

  9

Are there different levels of political recognition employed? Is there any differentiation between minorities (which would have policy consequences)

Are there contested identities (such as the refusal to recognize some minorities while accepting others, or differentiations between very similar groups, contested by at least one of the minorities)?

In what it concerns the political participation of minorities, we are interested in the institutional framework regulating the contestability of elections in two arenas: the national polity (which includes the parliament and the local governments) and the autonomous political structures created for the minorities, if any.

According to Stefano Bartolini (1999), the contestability of elections basically denotes the degree to which political pluralism can materialize in a political system. Pluralism is a necessary condition for both democracy and political competition, but it should not be equated with either of the two. On the one hand pluralism need not necessarily be competitive (as the multiple actors may also engage in collusive behavior), and on the other hand both competition and democracy require more than pluralism.3 However, from our perspective the important issues are (1) whether and to what extent minorities have the opportunity to become part of the political pluralism that represents the basis of the national party system (that is, to participate through their own political organizations), and (2) whether they are able to develop political pluralism within their own community (that is, to have multiple parties or even a minority party system). We are not interested in the subsequent behavior of the minority organizations, that is, whether they actually engage in competition or collusion with other parties or with each other (e.g. in order to better represent their interests in the national parliament or out of other considerations). Consequently, we limit the analysis to the aspect of the contestability of elections from the point of view of minorities, which basically entails a legal-formal analysis of the main electoral institutions.

The contestability of elections depends mainly on the nature of two types of barriers: the conditions of entry into the political competition (the conditions of running as a candidate or of presenting party lists) and the thresholds for representation or the conditions of winning seats (Bartolini 1999).4 These institutional regulations have consequences not only on the prospects of representation, but also on the logic of representation, the type of party system that will emerge. In the case of minorities, this translates into the chances of getting represented and into the chances of developing political pluralism within the community. The existence of an autonomous political sphere for minorities is obviously facilitating pluralism within the groups, but significant variations are possible in this respect too.

While the above discussed aspects of electoral contestability are relevant to political representation in general, without any reference to ethnicity, the participation of national minorities in a special case, as minorities may be too small to be able to secure adequate representation in the polity according to the general electoral regulations. Consequently their

                                                            

3 According to Bartolini (Bartolini 1999; Bartolini 2000), the other necessary conditions for democracy beside contestability include free, fair and inclusive elections (inclusive meaning universal suffrage). The competitiveness of elections depends beside contestability on electoral availability (the existence of voters that are willing to switch party options, so that parties have a reason to compete), on the decidability of the offer (it is possible to distinguish among parties based on their electoral offer) and on the vulnerability of the incumbents (parties in power will only be responsive to the preferences of the electorate is they sense that there is some chance that they will be ousted from power). 4 A third aspect of contestability is also discussed by Bartolini but not by us: the possibility of accessing the resources necessary for the electoral race, which includes access to media and public money for electoral campaigns.

  10

representation may require the adoption of minority-friendly rules, such as reserved seats or separate electoral rolls (Hadden 2005; Bieber and Wolff 2007). We shall call these rules special measures of affirmative action, and will analyze them in detail where present.

Although there is a growing literature on special arrangements meant to facilitate minority representation, there is no consensus about what can be considered a special electoral measure. One approach is to classify only reserved or guaranteed seats as special electoral arrangements for minorities, and treat all other solutions (e.g. exemption from the electoral threshold, favorable delimitation of electoral districts etc.) as adjusted general rules (Htun 2003; Venice Commission 2000; 2005). The other possibility is to treat all deviations from the rules that apply for all competitors who do not stand for minorities as special arrangements (Frowein and Bank 2000; Reynolds 2005). In this paper we follow the latter approach: we distinguish between the general electoral system, which applies to all competitors, and special rules of affirmative action from which only minorities can benefit. Thus, we consider as special rules the following: easier conditions for registering political organizations or presenting candidates, exemptions from the electoral threshold or the existence of an alternative threshold for minorities, reserved seats for minorities, or a delimitation of the electoral districts that is clearly advantageous for minorities (this may be combined with an overrepresentation of these districts).5

Unfortunately the conditions of contestability can be used also for the opposite aim, to make the participation of minorities more difficult. This can be accomplished by bans on ethnic parties, but also by indirect methods that have negative consequences primarily on minority organizations.

To sum up, the electoral regulations in force concerning the participation of minorities in the national polity can take one of the following shapes:

electoral rules meant to make the participation of minorities more difficult. This can be accomplished by

explicit bans on ethnic parties prohibitively difficult conditions for the contestation of elections, which

implicitly disadvantage minorities (more than majority parties) apparently neutral regulations, without special measures for minorities or explicit

references to ethnicity. In this case minority representation depends only on the general electoral system, minority organizations can get elected under the very same conditions as mainstream political parties. While this lack of reference to ethnicity may have intended or unintended consequences regarding minority representation, it would be too speculative to decide whether the lack of institutionalization is due to these.

Apparently neutral legislation without special measures for minorities or explicit references to ethnicity, but with some regulations that have clear indirect effects on minority representation, so the intention can be established without the risk of speculation.

                                                            

5 Further special measures that may facilitate minority representation that are not discussed here include concessions in what it concerns the financing of political parties (e.g. permitting financing from the kin-state or a lower threshold of electoral results in order to be eligible for state funding), or the obligation to present ethnically mixed lists of candidates (a special case of the latter being the establishment of statutory quotas, similarly to the ones employed to facilitate the representation of women). For details see (Htun 2003; Reynolds 2005).

  11

Rules meant to facilitate minority representation framed by explicitly referring to ethnicity: the representation of minorities is encouraged through affirmative action. While the intention is to help minorities in this case, unintended adverse effects cannot be excluded.

In what it concerns the autonomous political sphere of minorities, the representative institutions of minority self-government (bodies of autonomy) are of interest. While autonomies are usually assessed according to the competences transferred to their bodies, we will focus here on the method of their constitution: whether they are elected directly or indirectly, and if it is the latter case, what are the conditions of voting and running. In most cases direct elections of the bodies of autonomous structures involve the existence of special electoral rolls, but the regulations about how the rolls are compiled and who can become a member vary. The rolls may also be used in the other arena of minority participation, the institutions of the national polity, so the rolls are of importance for both aspects of minority participation.

Analysis The analysis of minority participation regimes includes the assessment of the degree to which ethnocultural diversity is acknowledged or recognized, and the investigation of the political rights granted to minorities, including the institutional framework for political participation in the national polity both at the national and the local level, and the existence or absence of self-governing bodies of the minorities. The essence of the legal rules in each country is summarized briefly in the table from Appendix A, while the detailed descriptions (along with the sources of information) are presented in the tables from Appendix B.

A. Recognition of diversity Recognition of diversity is important because it should provide the bases for any type of policy aiming to manage ethnocultural diversity. On the other hand, denial of differences is often indicative of an intention to eliminate them in the longer run. In this section we investigate the relevant sections of legislation that make references to diversity, including the definition of the holders of sovereignty, the definition of the state, the nature of rights granted to minorities, and whether the various minorities are treated uniformly or in a differentiated manner by the state.

A.1. The way how the source of authority or sovereignty is defined in the constitution is one of the main indicators of the attitude of states towards diversity, of their readiness to recognize and institutionalize differences. The formulations found in the constitutions of the studied countries can be classified into three broad categories. The precise formulation in each constitution are summarized in Table 1. of the Appendix B.

The first group of states equates the source of sovereignty with the majority nation, defined in ethnic terms, without including other ethnocultural groups into it, or, in other words, employs an exclusive definition. This is the case in Albania, Bulgaria, Romania and Turkey. The Constitution of Greece does not have a section relevant in this sense, but due to the very limited references to ethnocultural diversity (see below) it can also be included into this category.

A second option is to define the holders of sovereignty in neutral or civic terms: the source of supreme power is simply the citizenry, regardless of ethnocultural belonging. For instance, in Serbia the constitution is adopted by “the citizens”, without any further specifications. A similar formulation can be found in the Constitution of the Czech Republic, however, here the

  12

three historical regions of the country are also mentioned: “we, the citizens of the Czech Republic in Bohemia, Moravia and Silesia.”

The constitution of Poland contains a double, equivocal formulation, as it is adopted by “the Polish Nation – all citizens of the Republic.” This is a quasi-civic formulation: the holder of sovereignty is the Polish nation, however, it is added that the Polish nation consists of the totality of its citizens (so it is not defined in ethnic terms), so we include this formulation into the first category.

In a third category of states it is clearly spelled out (though with varying emphasis) that sovereignty also resides with the minorities, as they are constituent parts of the nation. We shall call this an inclusive definition. This pattern is followed in Croatia, Hungary, Slovakia and Slovenia.

Diversity is also acknowledged in the constitutions of Bosnia and Herzegovina, Kosovo, Macodonia and Montenegro, perhaps even more so than in the lastly enumerated countries. In Macedonia all the ethnocultural groups enumerated in the preamble are granted the status of “people” (except for the category of “others”): “the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosnian people and others.” Nevertheless, the order in which they are mentioned makes it clear that Macedonians are considered the main constituent people. The Constitution of Kosovo is very similar, as it is explained in article 3. of the Constitution that “the Republic of Kosovo is a multi-ethnic society consisting of Albanian and other Communities”, even if their enumeration is only done in the part about representation in the parliament.

The Constitution of Montenegro uses a double definition: the Constitution is adopted by the citizens, moreover, the decision to secede in 2006 is also attributed simply to the citizens in the preamble. However, it would be erroneous to include Montenegro into the civic category, as the preamble also contains the formulation “persons belonging to nations and national minorities living in Montenegro: Montenegrins, Serbs, Bosnians, Albanians, Muslims, Croats and others.” The point is that Montenegro is a state in which there is more than one nation, even though it is not specified, where is the dividing line between nations and national minorities.

Bosnia and Herzegovina is defined as the state of “Bosniacs, Croats and Serbs, as constituent peoples (along with others), and citizens of Bosnia and Herzegovina.” While the civic element is present here too, it is much more important that there are three constituent nations, while the category of others comprises those who belong to other minorities or do not wish to belong to any group. An unique feature of the Bosnian Constitution is that enumeration is not made according to the importance of the groups, but in alphabetic order (there are almost twice as many Serbs in Bosnia than Croats), even if Bosnians would be the first in line according to both criteria.

Bosnia and Montenegro clearly declare to be multinational countries, while Macedonia and Kosovo do not go this far, but are clearly inclusive. Consequently, we classify all these countries into the inclusive type, while also creating a subtype of states that employ inclusive-multinational definitions of the holders of sovereignty.

A.2. An aspect closely related to the definition of the holders of sovereignty is the definition of the state. Only two of the studied countries define themselves as a national or nation-states, a formulation indicative of the fact that ownership of the state is primarily attributed to the majority nation. Article 1 (1) of the Romanian Constitution (1991, 2003) declares that “Romania is a sovereign, independent, unitary and indivisible national State.” Somewhat

  13

more equivocally, the preamble of the Constitution of Croatia (1990, 2001, 2010) affirms that “the Republic of Croatia is hereby established as the nation state of the Croatian nation and the state of the members of its national minorities...” There is one more state that used to define itself as a national state: Macedonia. The preamble of the Constitution in force between 1991 and 2001 spoke about ”the historical fact that Macedonia is established as a national state of the Macedonian people”, but this section has been removed after the enactment of the Ohrid agreement.

A.3. A third issue to be addressed is whether ethnocultural diversity is recognized in individual or in collective terms. This refers to whether minorities are referred to as persons or as collectivities and whether the state frames the rights granted to them as group rights or only as individual ones. The question refers not to the actual existence or absence of group rights, but the formulation that is used in the legal documents. While an approach based exclusively on individual rights will fall short of the levels of minority protection that can be achieved through group rights, here the point is the language in which the rights are framed. The right of persons belonging to a minority to education in the mother tongue may lead to the same results as the right of a national minority to have its own schools, but the two formulations are not equivalent, because only the latter entails the recognition of the minority as a distinct collectivity within society. Greece and Turkey avoid even mentioning ethnocultural diversity in their constitutions. Both countries acknowledge diversity only to the extent of a non-discrimination clause (negative rights), so not even individual positive rights are granted to ethnic or national minorities.6 It is also worth noting that the Greek constitution only forbids discrimination based on nationality, race, language and of religious or political beliefs (art. 5. (2)), where nationality means citizenship and not ethnic affiliation. The Turkish constitution forbids discrimination on grounds of “language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations” (art. 10. (1)). A second category of countries, including Albania, Bulgaria, the Czech Republic7, Slovakia and Romania, carefully avoid any reference to minorities as collectivities or to the possibility of granting group rights. The legal documents of these countries consistently use phrases like “persons belonging to minorities”, or “citizens who are members of minorities” when granting rights, but avoid references to rights of “minorities”, “national groups” or “communities”. The formulation used in the Bulgarian constitution is worth citing due to its unique nature, the reference being made to “citizens whose mother tongue is not Bulgarian”. This means that only linguistic but not ethnic diversity is acknowledged, which is indicative of the intention to create some constitutional basis for limited linguistic rights while remaining reluctant to recognize ethnocultural diversity. On the other hand, countries like Hungary, Serbia or Montenegro not only state, but even emphasize that minorities will enjoy collective rights, although the latter two states often use the phrase “persons belonging to national minorities” too. The Slovenian Constitution does not explicitly spell out that the rights enjoyed are of collective nature, but it labels the                                                             

6 Both countries only recognize religious minorities, based on the Treaty of Lausanne concluded in 1923. However, as political representation is not relevant in the case of religious minorities (at least in the region studied in this paper), we will not pursue the rights warranted by the Treaty. For details see (Magdó 2010; Velivasaki 2010). 7 In the Czech Act on the Rights of Members of National Minorities (2001) uses the expression “rights of national minorities” on one single occasion, in paragraph 3 (2), which states that “Exercise of rights of national minorities must not be restricted or ruled out.” The rest of the formulations is “rights of members of national minorities.” Consequently we consider that the Czech lawmaker purposively avoided to grant rights to national minorities and coded the country into this category. Furthermore, it is possible that the single occurrence mentioned above is due to a mistake in the translation.

  14

Hungarian and Italian minorities as “autochthonous national communities”, and also warrants the “special rights of the Romany community.” The constitutions of Croatia and Poland do not mention the label collective rights either, but use the phrase “rights of national minorities”, and the minority law of the latter country states that persons belonging to a minority may enjoy rights and freedoms both individually as well as together with other members of the minority. The Constitution of Kosovo warrants “the rights of Communities and their members”, and the Macedonian constitution also uses references to rights of both individuals and communities. The Bosnian Constitution does not address the rights of national minorities (who are subsumed to the category of “others”), apart from banning non-discrimination on the grounds of membership in such groups, but the minority protection law of the country is entitled “Law on the Rights of National Minorities”, so one can conclude that minorities are considered the holders of rights both as individuals and as collectivities.

A.4. The next question that we investigate is whether a concrete enumeration of recognized minorities exists, or they are only referred to in general terms. If minorities are enumerated, does this happen in the constitution, or in some other legal document?

From the 16 countries included into the study, Greece and Turkey do not mention national or ethnic minorities in their constitution and do not have special minority laws. Other five countries acknowledge the existence of minorities in their constitution, but there is no enumeration either in the constitution, or in the electoral or minority law. Albania, Bulgaria Romania and Slovakia did not pass special minority laws8, while neither of the two laws about national minorities in force in Serbia does contain a concrete list of minorities. However, as we shall see later, in at least three out of these states there are officially recognized minorities (the situation in Bulgaria and Slovakia is less clear), but their recognition has been done in an ad-hoc fashion, mostly out of momentary political considerations. One can surmise that the reluctance to draw up a permanent official list is due to the fact that the interest of majority elites is to keep the list of ethnic categories at their own discretion, as a tool for easier cooptation of minority elites.9 Poland, Hungary and the Czech Republic only mention the existence of minorities in the constitution, but leave the enumeration to lower-order legislation. In Bosnia the Constitution only names the three constituent nations, and leaves the enumeration of national minorities to the Law on the Rights of National Minorities.

Conversely, Croatia, Kosovo, Macedonia, Montenegro and Slovenia enumerate the national minorities recognized on their territory in the preamble of their constitutions. While the enumeration is mirrored in the minority law of Kosovo, and in the electoral law of Croatia, there is no such correspondence in the case of the other states. Montenegro only mentions the Albanians and the Roma in its minority law and only the Albanians in its electoral law.10 In

                                                            

8 In Slovakia there is a law on the usage of minority languages. 9 Examples can be quoted from both Romania and Serbia when new minorities were recognized mostly out of political rationales than out of sociological necessity. In Romania the number of recognized minorities constantly grew at each election until 2000, which is not independent from the fact that minority MPs proved to be very loyal allies of the government in power. In Serbia the recognition of such new minorities as the Vlachs and the Bunjevac bred discontent among the Romanian and the Croat minority. 10 The list of ethnocultural groups from the preamble of the Constitution of Montenegro is interesting as it does not result clearly which groups are considered nations and which national minorities: “persons belonging to nations and national minorities living in Montenegro: Montenegrins, Serbs, Bosnians, Albanians, Muslims, Croats and others.” If Serbs count as a nation, the number of national minorities recognized in Montenegro is four.

  15

Slovenia the Law on Self-governing Ethnic Communities only deals with the Hungarians and Italians, while separate legislation concerns the Roma. Macedonia does not have a special minority law, regulations concerning minorities that have been adopted as a result of the Ohrid agreement are scattered in various pieces of legislation.11

The case of Croatia is a very interesting one, as the original list of minorities from the preamble of the 1990 Constitution suffered modifications in 1997 and then again in 2010. At the first occasion two minorities (Muslims, Slovenes) were deleted, while Germans, Austrians, Ukrainians and Ruthenians added. At the second occasion the deleted minorities regained their status, and further 10 groups were added. As a result, the list of 22 minorities from the preamble now conforms to the enumeration from the Electoral Law of 2003 (see the notes to Table 3. in Appendix B for details). Croatia is thus not only an example for political manipulation of the status of national minorities, but also for inconsistencies between the various pieces of relevant legislation, and for the codification of something in reverse order: first in lower-order law and only later in the Constitution.

A.5. The next point to address is whether the states distinguish between different types of minorities. More interesting than the mere existence of differentiation is, however, whether this has any consequences in what it concerns the policies directed towards minorities. While a uniform treatment regardless of the characteristics (size, territorial concentration, socioeconomic status) of the groups is clearly not beneficial for at least some of the minorities, differentiations that are perceived as discrimination by some minorities should be avoided even more. In this section we only deal with the differential labeling of minorities, and we will return to the consequences of differentiation regarding political participation in the final section of the paper. We do not address differential treatment in other domains of the minority rights regime.

Some degree of differentiation between minorities is present in the legal framework of all the studies countries that mention minorities in their legislation, but in practice there can be differences even in states that on paper are reluctant to recognize diversity. First, in most countries there is a category of “others” appended to the end of the list of minorities in the constitution or the minority law. This is a residual category, which has a double function. When it appears in the constitution, its role is to include the rest of the citizens into the political nation, who cannot be subsumed to the listed recognized categories, while also pointing out that the constitutional status of these persons is inferior to that status of those belonging to the listed categories. Bosnia, Croatia, Kosovo, Macedonia and Montenegro employ this residual category in their constitution. When the residual category appears in the minority laws, it fulfills an additional function too: it indicates the openness of the list, the possibility to recognize additional minorities in the future. However, the category of “others” appears only in two minority laws (Bosnia, Kosovo). The minority law of Bosnia and Herzegovina speaks about “other[s] who meet requirements referred to in Paragraph 1”, which contains the definition of minorities, while in the minority law of Kosovo the enumeration simply ends with “others.” The Hungarian minority law does not have the residual category appended to the enumeration, but art. 61 (2) regulates the process of

                                                                                                                                                                                          

The provisions of the Law on Minority Rights and Freedoms (2006) that regulated the political participation of minorities in Montenegro (see below in detail) has been declared unconstitutional in July 2006, consequently new legislation will be drafted in the field. As one of the aims of the new legislation is to remove the discriminative differentiation between minorities in favor of Albanians that is in force in the present (Venice Commission and OSCE/ODIHR 2010; 2011), it is expectable that the list of minorities mentioned both in the minority and the electoral law will change. 11 For a list of relevant laws see http://www.minelres.lv/NationalLegislation/Macedonia/macedonia.htm

  16

recognizing new minorities. Notwithstanding this, no new minority has been recognized since the adoption of the law in 1993. The Polish minority law has a closed list of minorities, without the residual category or a provision about the recognition of new minorities (Halász 2007). The rest of the minority laws do not have enumerations or only a few of the minorities appear in an explicit manner.

The Bosnian case needs further analysis. In the constitution, “others” refers to those who do not belong to the three constituent nations, and indicates an obviously inferior constitutional status, given the fact that the power-sharing system is designed for the three constituent nations. The “others” also appear in the minority law, however, here it refers to other minorities beside the listed ones.

This brings us to the second aspect to be addressed: the differences in the terminology referring to minorities. This can indicate a differentiated status and a differentiated policy towards the various types denoted with different labels. It is also a potential source of conflict, as various minorities may not be given the desired level of recognition, and in many countries there are also obviously existing minorities that are not recognized at all, and are refused the political rights that pertain to the recognized groups.

Beside Bosnia the only other country that has more than one nation is Montenegro, and beside nations there are also national minorities, but there is no further differentiation within the latter category. Among the analyzed cases, only in Hungary, Montenegro and Poland is more than one label used for minorities in the legislation. In Albania there is also more one label in use, but we were unable to track down the legal sources of differentiation. The Hungarian minority law speaks about national and ethnic minorities, but no policy consequences follow from this. In Montenegro minorities are referred to as autochthonous minority peoples, national minorities, ethnic minorities, but this is only an enumeration, the sentence ends with an indication that in the rest of the law all these groups will be referred to as minorities, pointing to the lack of any policy differentiation. Policy differences towards minorities still exist in Montenegro, but completely independent of the labeling. The fact that Albanians enjoy special electoral rights while other minorities don’t (to which we return in the section about participation) is clearly an instance of a path-dependent development of the state of affairs.12 In Albania a differentiation exists between national and ethnolinguistic minorities (and there are also some unrecognized minorities), but this does not have any consequences on minority participation. In contrast to Hungary, however, this is due to the lack of special regulations in this domain.13

This demonstrates that the labels used to categorize minorities are not always good proxies for policy differentiation. The opposite is true, however, in Poland and Slovenia. In Poland minorities are classified into three groups: national, ethnic and speakers of the regional language Kashubian. The difference between national and ethnic minorities is that the latter do not have a kin-state. Slovenia also falls into this category, as it recognizes two autochthonous communities (Hungarians, Italians) and the autochthonous group of the Roma, while refusing to settle the situation of the recently appeared minorities (members of post-Yugoslav nations considered) and to recognize the Germans or Austrians.

                                                            

12 There are also differences in what it concerns the status of the minority languages, but this cannot be connected unequivocally to the multiplicity of labels either. 13 Though it has consequences in other domains, like education.

  17

In the rest of the countries multiple labels are absent (and so are differentiated policies concerning participation). In the Czech, Romanian14 and Serbian case there are only national minorities, the same is true of Slovakia, despite the lack of an official list. In Greece and Turkey the lack of differentiation follows from the failure to recognize minorities. Bulgaria is a very interesting case, as despite the lack of differentiation (due to no recognition) in legislation, the ban on ethnic parties led to a very awkward differentiation of minorities in what it concerns political participation. We will discuss the consequences of differentiation concerning participation in the sections on the electoral regulations.

A third aspect of differentiation refers to differential treatment based not on labeling, but on a more defendable criterion: their share in the population. This is widely employed in what it concerns representation, and will be discussed in detail in the final section of the paper.

B. Political participation After reviewing the policies of diversity recognition and registration, we shall turn to the opportunities for political participation. We start with the existence of autonomies and continue with the aspects related to the contestability of elections both at the national and the local level.

B.1. Probably the most obvious observation is the almost complete absence of territorial autonomy in the analyzed universe of cases. There are only two exceptions: the Serbian province of Vojvodina, and Bosnia and Herzegovina. However, Vojvodina is not a territorial autonomy on ethnic bases, but a multiethnic region with clear and growing Serbian majority. Conversely, Bosnia and Herzegovina is a multination federation in the sense of the word introduced by Will Kymlicka. One of the entities, Republika Srpska is almost homogenous Serbian, and the other, the Federation of Bosnia and Herzegovina, has been divided into cantons mostly along ethnic lines (Wollf et al. 2008).

The incidence of personal or cultural autonomy is more frequent in the area. Croatia, Hungary, Serbia and Slovenia have all implemented some system of cultural autonomy on a personal basis, even if the systems of self-government remain highly contested by the beneficiaries, because of the competences and resources transferred to these elected bodies, but also for other reasons discussed below. Legislation in Montenegro and Bosnia also permits setting up similar systems, but implementation has not reached the level of these four countries yet.

These four systems display substantial variation in several essential aspects. First, the Croatian, Hungarian and Slovenian national minority councils are elected through direct vote at the level of municipalities, and the regional and national bodies of the autonomy are elected by these local bodies with some indirect method (bottom-up approach). Conversely, in Serbia the councils are elected at national level and may establish local branches (top-down approach).

More important, however, is the issue of those entitled to vote and to be elected. Presently, all four systems use special electoral rolls compiled on the basis of the ethnicity of the voters. While running as a candidate usually does not require presence on the list (supporting signatures from a number of persons on the roll serve as an equivalent guarantee for

                                                            

14 Romania recently introduced differentiated language policies based on the size of the communities, but this is beyond the scope of this paper.

  18

trustworthiness), for voting this is a condition in all four countries.15 Hungary only introduced the special rolls in 2005, the delay being due to the resistance of minorities against the compilation of such lists. However, in the absence of special rolls practically anyone could vote for the minority councils, which led to serious issues of ethno-business and the hijacking of the councils by non-ethnics (Rátkai 2000). As a consequence the system was changed and since 2005 only persons on the special roll can vote in Hungary too, though the rolls must be destroyed after each election.

An important characteristic of the special rolls is the method of their compilation. While in Croatia and Slovenia rolls were compiled and are constantly updated by the authorities the based on data from the population records (and the individuals who wish to be deleted from the list have to file a request of de-registration), in Hungary and Serbia registration is active, meaning that the citizens will only be included on the list on their own request. This created huge controversies in Serbia. The smaller ethnic parties demanded passive registration, but the authorities refused. As the law required the active registration of at least 50% of the persons who declared themselves as belonging to the minority at the census in order for direct elections to be organized for the national councils16, the minority parties had to engage in an intense campaign to register potential voters onto the special roll. Smaller parties, with weaker infrastructure and fewer activists felt that larger parties can take the advantage by conducting a door-to-door campaign that allowed not only canvassing, buy also information gathering and allegedly even database-building.

The Serbian case is special for another reason too: the law permitted the participation not only of minority political parties and of groups of citizens, but also of any NGO that performed activities related to minorities according to its statute. This proved to be a back-stair for Serbian mainstream parties to make their way into the minority councils by establishing NGOs and fielding candidates who belonged to the minorities but were loyal to the parties. This way the minority parties felt that a serious blow had been delivered to the conception of minority representation through ethnic parties. The issue also arose in Hungary, as most of the minority organization running for the minority councils maintain close relations with one of the large parties, but the protest within the minorities against the system did not reach the levels from Serbia.

Among the other countries, one can arguably talk about cultural autonomy (but not on a personal basis) only in Macedonia. Here, some sort of cultural autonomy is realized due to the fact that education, media and cultural systems are parallel, and competences related to these policy domains are either decentralized to decision making bodies that are homogenously composed of members of the Albanian community, or the Albanians can use their veto guaranteed by the power-sharing system in order to block legislation that is perceived as detrimental. Kosovo is also an interesting case, as the Serbs still use the curriculum elaborated by the education ministry of Serbia (Wollf et al. 2008).

The other aspects of participation to be analyzed concern the factors that determine the contestability of elections for minorities. These include the conditions of entry (party registration and the requirements of contesting elections) and the thresholds of representation. In both cases there may be special rules that apply only for minorities and are meant to

                                                            

15 Croatia and Slovenia use the special rolls also in the elections for the parliament and for the local governments, as only national minority members are entitled to vote for the reserved seats. 16 In case of failure to register this number of persons, the law foresees the indirect election of the councils. The councils that operated between 2002 and 2010 were elected this way, and suffered from legitimacy problems, consequently the desire to have direct elections was strong within most of the minorities.

  19

facilitate their representation, but also regulations that aim to the opposite, though these are usually disguised as general electoral rules, which, however, have a more severe impact on minorities than on the majority.

B.2. The conditions of entry into the electoral competition depend on the regulations concerning the registration of political parties and minority political organizations and on the requirements that have to be met in order to present candidates. Registering parties is relatively easy in most of the analyzed countries, however, there are some notable exceptions. The most (in)famous case is Bulgaria, where a ban on political parties organized “on ethnic, racial or religious lines” is prohibited by article 11(4) of the Constitution. While this article has been included against the Turkish minority, the Movement of Rights and Freedoms was not banned eventually, despite repeated attacks and complaints to the constitutional court it by Bulgarian nationalists (Hajdinjak 2008). Moreover, after surviving the critical first years of the 1990s, the party ban came paradoxically to serve the interests of MRF, as attempts to establish rival organizations have repeatedly failed due to the interdiction (Chukov 2001). But the ethnic party ban has not been applied selectively only concerning the Turkish minority. A party established by the Macedonian minority has been repeatedly denied registration on these grounds (Bochsler 2006). A similar ban had been in effect in Albania until 2001, however, the Unity for Human Rights party, composed primarily of ethnic Greeks, was tolerated and even became part of governing coalitions.

The Turkish regulations are also very prohibitive. The law on political parties forbids political parties to claim that there are minorities based on national, religious, cultural, racial or linguistic differences, the promotion of any culture or language other than the Turkish is defined as a threat to the integrity of the Turkish nation, and the use of any language other than Turkish in the activities of parties is prohibited (Almairac 2006). These are obviously meant to prevent the formation of Kurdish parties, while the 10% electoral threshold in the electoral system aims to keep those Kurdish organizations that still form out of the parliament.

Romania is a further negative example for restrictive or almost prohibitive legislation for minority party entry. Since 2003, a political party can only be registered with signatures from 25,000 persons, and at least 700 signatures are needed from 18 counties and Bucharest. While there is also a possibility to form organizations of persons belonging to national minorities, the conditions of registration are not much easier. In the case of large minorities (in case of which 15% of the persons who declared to belong to the group at the census exceeds 25,000 persons) once again 25,000 signatures are needed nationwide, though the territorial coverage is somewhat less demanding: 300 signatures from at least 15 counties and Bucharest. The problem is that there is no national minority that would be present in large numbers in this many counties and the capital. These rules were adopted to prevent the registration of new Hungarian organizations, and indeed the Hungarian Civic Party was only able to register at the second attempt in 2008, and the registration request of the Hungarian People’s Party of Transylvania has been denied recently.

Beside these countries the requirements for party registration can only be assessed as difficult in Slovakia and Serbia: in both cases 10,000 signatures are needed to form new parties. However, while in Slovakia only “mainstream” parties can be formed and this represents a difficult entry condition for minorities, in Serbia a special rule allows minority parties to be registered with only 1000 signatures. Though small parties were discontent even because of this (previously 100 signatures were sufficient), the entry conditions are not prohibitive, and even smaller parties succeeded to re-register after the law entered into force in 2009. However, some even more recent changes to the electoral law make minority entry more

  20

difficult in Serbia too. According to the amendment, parties have to pay a deposit when contesting elections (20% of the sum they receive from the state budget). The deposit will be repaid to mainstream parties if they obtain 1% of the vote, and to minority parties if they obtain 0,2% of the vote. Although some affirmative action is incorporated into the rule, small minority parties consider that only the larger organizations will be able to survive, which will have negative consequences on the internal political pluralism of the communities. 17

B.3. Much greater variation can be witnessed in what it concerns the threshold of representation. No special electoral rules targeting minorities can be found in Albania, Bulgaria, the Czech Republic, Greece, Hungary, and Slovakia, and from these countries only Hungary is planning to adopt special rules that would ease the access of minorities into the parliament.18 While larger minorities from these countries, like the Greeks in Albania, the Turks in Bulgaria and the Hungarians in Slovakia succeed in getting represented even without affirmative action, smaller minorities do not stand a chance.

In two countries the electoral threshold is not applied for national minorities. These are Poland and Serbia. However, in Poland the rule only refers to organizations of national minorities and not to the ethnic ones or to the speakers of the regional language, which decreases its value. Nevertheless, one has to keep in mind that waiving the threshold can only help larger minorities anyway, as the natural threshold of representation still has to be reached.19 Indeed, in Poland only the Germans were able to take advantage of it, the Byelorussians and Ukrainians not, so an extension to the small ethnic minorities would probably be useless for them. The situation in Serbia is different. Here more minorities succeeded to gain representation: Hungarians, Bosnians, Roma and Albanians. Moreover, two different parties of the Roma community gained seats in 2007, and a coalition of two other Hungarian parties only missed the parliament by a few votes. This is indicative of the fact that waiving the threshold does not preclude political pluralism within sufficiently large minority groups. The Serbian exemption from the electoral threshold is applied not only at national level, but also for the Vojvodina Assembly and the local municipalities.

While the waiving of thresholds only facilitates but does not guarantee minority representation, countries falling into a second category employ reserved seats in order to guarantee the presence of minorities in the parliament. This is the case in Croatia, Slovenia, Kosovo (though only for the first two elections after independence), and Bosnia and Herzegovina. In Slovenia there are two reserved seats, one for the Hungarian and one for the Italian autochthonous communities. In Croatia their number is eight, and in Kosovo 20, and in both cases there is a differentiation according to the size of the minorities. Serbs have three seats in Croatia and ten in Kosovo (but few of them wish to take part in the elections in the former Serbian province). Smaller minorities in Croatia have one seat, and even smaller ones have to share one seat with each other. In Kosovo Bosnians have three seats, Turks two, and the Gorani community one. The Roma, Ashkali and Egyptians have one seat each, plus one more is given to the strongest of the three communities.

In Croatia, Slovenia and Kosovo the seats are elected in separate, non-territorial constituencies. In the first two cases only the members of the minorities enrolled on the                                                             

17 http://www.vajma.info/cikk/szerbia/14870/ 18 However, it must be emphasized that the right granted by the Hungarian Constitutional has not been incorporated into the electoral law for more than 20 years. As a new electoral law will be most probably adopted in the fall of 2011, it is possible that after two decades of waiting minorities will finally obtain seats in parliament this year. 19 That is, the number of valid votes divided by the number of seats to be distributed. In Poland the implicit or natural threshold is 0,26%, while in Serbia 0,4%.

  21

special electoral registers can vote for them, while in Kosovo the total number of votes cast for the parties of each minority is considered the community vote. In Bosnia and Herzegovina the scheme of reserved seats is very complex, as it refers not only to the national parliament (House of the People only), but also to the legislatures of the entities. Moreover, with the exception of the national parliament, seats are reserved not only for the constituent nations, but also for the group of “others”. The pre-established numbers of representatives for each group is reached through compensatory seats.

Slovenia is distinctive because minority members who are registered on the special electoral roll enjoy dual voting: they cast one vote for the mainstream parties and one for the election of their own representative in parliament. While the Slovenian constitutional court ruled that such a practice is not unconstitutional, its Croatian counterpart came to the opposite conclusion in 2011 when it struck down the dual voting rights offered by the government to the small minorities (those smaller than 1,5%, that is all the minorities except the Serbs).

Montenegro also has reserved seats, but of a somewhat different kind: according to article 12 of the Law on the election of councilors and representatives, five MPs are elected in a special constituency that is composed of a number of polling stations to be defined by a special resolution of the Assembly. This basically means that polling stations from areas inhabited by ethnic Albanians are grouped together into a single 5-member constituency. The law also contains some further concessions for the Albanians, who are able to field lists of candidates under easier conditions than mainstream parties. However, all the pieces of affirmative action only apply for Albanians, not for other minorities. Montenegro tried to reform the system in 2006, extending it to all minorities and differentiating the number of seats according to the share of the minorities in the population. However, the law has been declared unconstitutional. Consequently, the old rules are in effect.

Romania also employs a special arrangement that practically guarantees the representation of minorities. Although reminiscent of reserved seats, this rule is better classified as a very generous alternative threshold, as it allows minorities to obtain a single seat with a number of votes equal to 10% of the average number of votes necessary to elect a deputy at the national level. While this means very easy conditions, there were also examples of failure (Alionescu 2004). Additionally, minority organizations may field the same candidate in each constituency, while this is not permitted to mainstream parties. While this special rule allows even very small communities to get represented, the drawback is that only one MP can be elected this way, moreover, the combination of this system with the extremely prohibitive conditions of new entry, the incumbents enjoy an unjustifiable advantage over their challengers. The system is also deficient in what it concerns differentiation between minorities. While it is advantageous for small minorities numbering a few thousands, larger communities, like the Roma, would be arguably better off with a simple waiving of the national electoral threshold. The largest and best organized minority, the Hungarians, do not need this special rule, as their largest party, the Democratic Alliance of Hungarians in Romania (DAHR) was always able to pass the 5% threshold so far. However, the support of DAHR seems to be waning in the past few years. As a consequence, in 2008, when single member districts were introduced into the electoral system, an alternative threshold was also established. According to this, parties that finish on the first position in six deputy and three senatorial constituencies simultaneously will accede to parliament regardless of whether they reached the 5% threshold or not. While this rule is framed in completely neutral terms, without any reference to ethnicity, it was clear from the beginning that the only party able to take advantage of it is the DAHR. (Large mainstream parties don’t need it, the electorate of the small parties of the majority is not sufficiently concentrated to allow plurality in so many

  22

constituencies). The 6+3 alternative threshold was clearly meant to prevent the DAHR from losing representation in parliament.

The Macedonian electoral system does not contain any references to ethnicity, but facilitates minority representation through a very proportional electoral system. The system was prescribed in the Ohrid agreement and replaced a mixed system. In Macedonia there are six constituencies of 20 members and there is no legal threshold. Consequently, a party can obtain seats if it secures 5% support in one constituency, and the borders of the constituencies were drawn by taking into account the geographical distribution of ethnic groups.

Turkey shares with Macedonia the feature that no special rules exist in the electoral system that would be framed by referring to ethnicity, yet the system has clearly been designed with an eye on minorities. Unfortunately, the intended impact in Turkey was exactly the opposite. The legal threshold is 10%, and it was introduced in order to keep the Kurdish parties out of parliament. Moreover, candidatures must conform to a rather demanding scheme of geographical coverage in order to receive seats. However, these prohibitive rules didn’t reach their goal, as a considerable number of Kurds run and get elected as independents.

B.4. Many of the countries that use special solutions at the level of the parliament also do so at the level of local or regional governments. As already mentioned, Serbia uses the same system as for the parliament. The same is true of Slovenia and Croatia. In Montenegro the concessions referring to the conditions of candidature are similar to the ones applied at the national level, but the reserved seats are absent. On the other hand, no special facilitating solutions can be found in Albania, Bulgaria, the Czech Republic, Slovakia, Greece or Turkey.

In Bosnia and Herzegovina, national minorities are entitled to representation proportional to their share in the population at the last census. The number of seats reserved is established by decisions of the municipalities, but minorities above 3% must have at least one seat. Their representatives are elected in a parallel, majority electoral system. While this rule refers to national minorities, the representation of constituent nations is only regulated in the case of the multi-ethnic city of Mostar, where each community is entitled to at least 4 and at most 15 seats in the council. This lack of codification is probably due to the demographic characteristics of the municipalities, most of them being either homogenous, or with ethnic groups large enough to be able to secure representation without affirmative action.

Interestingly, while lacking a solution at the national level, Hungary employs one for the local governments. The technical details of the measure are rather complex, but its essence is that candidates proposed by minority organizations can get elected with a lower number of votes (2/3 of the votes that were sufficient for the election of the weakest mainstream party or candidate).

A special arrangement for minorities can also be found in Romania, but this does not resemble the system used at the level of the parliament. Again, details are complicated, but the essence is the following. Seats in the local councils are distributed with largest remainders PR system, in two steps, in the second step the number of unused votes being what matters. The special arrangement consists of granting priority to the strongest minority organization in this second step of seat allocation. Unfortunately the utility of this rule is extremely limited. It only helps a single minority organization, can even take away seats that would have been obtained had the special proviso not been applied, and it does not apply for the Hungarian minority, which is clearly discriminative (Székely 2008).

  23

Assessment Having created an inventory of practices of diversity recognition and regulations concerning minority participation, in this final section we attempt to identify patterns in the picture. In order to facilitate an overview and make the identification of patterns easier, the most important aspects of the minority participation regimes of the analyzed states are summarized in the table from Appendix A, while the details can be checked in the tables from Appendix B.

Based on the scrutiny of the variables that concern the recognition and registration of diversity, three patterns seem to emerge.

1. An exclusive definition of the people, an obvious avoidance to speak about minorities as communities or to mention collective rights, and a lack of a concrete list of recognized minorities. Albania, Bulgaria, Greece, and Turkey clearly belong here, and based only on these aspects, Romania too. This pattern can be labeled the exclusivist or mono-ethnic model.

2. A non-exclusive (inclusive or quasi-civic) definition of the people, recognition of minorities as holders of rights as both individuals and collectivities and an enumeration of the groups. Croatia, Hungary, Macedonia, Kosovo, Slovenia (inclusive definition) and Poland (quasi-civic definition) belong to this group, as well as and Bosnia and Herzegovina and Montenegro (where the holders of sovereignty are defined in an inclusive-multination manner) belongs here. Serbia only deviates from this pattern in that no official enumeration of minorities can be found in the most important legal documents, but in reality the group of recognized minorities is easily identified, due to the existence of national councils. This pattern can be labeled the inclusive model, with an inclusive-multiethnic subtype.

3. The third pattern could be placed somewhere between these two, and only includes only the Czech Republic. It is characterized by the combination of a civic definition of the people, avoidance of references to communities or collective rights, yet an official list of recognized minorities exists. It can be labeled the civic or neutral pattern.

Slovakia is a more difficult case to classify, as it is inclusive in its definition of the people, but avoids mentioning communities or collective rights just like the followers of the mono-ethnic pattern and third type and doesn’t even have a list of officially recognized minorities. Despite the inclusive definition of the people Slovakia clearly falls somewhere between the mono-ethnic and the civic model. For the sake of comparisons we will include it into the intermediate category, along with the Czech Republic.

Turning now to the domain of political representation, the reviewed cases can be classified according to the strength or effectiveness of the special solutions employed (both at the national and the local level). We classified as strong solutions those that guarantee the participation of minorities, or very few failed attempts of getting represented have been recorded.20 Weak solutions are those that offer some help to minorities, but their impact is limited, as in the case of the local level arrangements in Hungary, Romania or Montenegro. Exemptions from the threshold have been treated as an intermediate category, as they do not                                                             

20 This is somewhat similar to the definition of reserved seats given by Petra Meier (2007). According to her, reserved seats guarantee representation regardless of the electoral result. Our classification differs from this, as we did not regard only the systems with reserved seats as being strong, but also others (as Romania), where it is theoretically possible to fail to get represented, but in practice this rarely happens.

  24

guarantee representation and are only able to help larger minorities. The negative examples have been treated as a separate category, these include party bans and extremely difficult conditions for representation.

Bulgaria and Romania seem to be very different cases, however, if we also take into consideration the opportunities for political pluralism within the minorities, they become very similar. In Bulgaria there has been one very important occasion when the ban on ethnic parties has not been applied: the case of the Movement for Rights and Freedoms (MRF). In Romania, prohibitive legislation concerning the contestability of elections has been adopted only after the cooptation of certain minority elites into the national party cartel has been completed. As a consequence the legislation severely discriminates between parliamentary and other minority organizations. The result is almost the same in both countries: the co-opted minority elites enjoy a very significant incumbency advantage over their challengers.

As a result of the above stated considerations, the following classifications emerged:

Minority representation at national level:

Negative: Albania (ethnic party ban until 2001), Turkey (extremely high threshold) o Negative selective: Bulgaria (selectively applied party ban)

None: Albania (since 2001), Czech Republic, Greece, Hungary, Slovakia Intermediate (waiving of threshold): Poland, Serbia Strong (reserved seats): Bosnia and Herzegovina, Croatia, Kosovo, Montenegro,

Slovenia. Macedonia has no explicit special solutions, but the representation is ensured indirectly through a carefully designed very proportional electoral system, so it fits into this category. Also, if the question is rephrased in broader terms (institutionalization of ethnicity concerning political participation), Macedonia is one of the most institutionalized cases due to the power-sharing nature of the political system.

o Strong selective (very generous alternative threshold but prohibitive rules concerning pluralism): Romania

Minority representation at local level:

Negative: Bulgaria – due to the ethnic party ban minorities can only participate as independents or on lists of mainstream parties, except for the MRF (The Electoral Code of 2011 does not allow candidatures as citizen groups)

None: Albania, Czech Republic, Greece, Macedonia, Poland (?), Slovakia, Turkey Weak: Hungary (only 2/3 of the votes required for mainstream candidates), Kosovo

(only parallel bodies plus deputy mayors), Montenegro (easier conditions to field candidates)

o Weak selective: Romania (very limited advantages in the second round of seat distribution; moreover: prohibitive rules concerning pluralism and discrimination against Hungarians)

Intermediate: Serbia (waiving of threshold) Strong: Bosnia and Herzegovina, Croatia, Slovenia (reserved seats)

The relationship between the recognition of diversity and political participation is presented in Table 1. One can see that the negative institutionalization of ethnicity only occurs within the exclusivist pattern of diversity recognition, yet not all countries displaying the exclusivist pattern employ electoral discrimination, some contend themselves with a neutral electoral system. The countries from the civic category do not institutionalize ethnicity, either for positive or for negative purposes. On the other hand, the institutionalization of ethnicity in

  25

electoral politics with benign purposes occurs not only in countries that are eager to reflect diversity in their most important pieces of legislation. The outlier is Romania, where despite an exclusivist attitude towards diversity the representation of minorities is facilitated at both the national and the local level through special arrangements that institutionalize ethnicity. Moreover, at the national level the employed special arrangement is a strong one. However, this system has very serious deficiencies in what it concerns political pluralism, as the conditions of entry into the electoral competition are heavily biased towards the “ethnic incumbents.” This is indicative of a minority rights regime that is built on the idea of cooptation rather than power sharing, and leads to a similar result as the selectively applied party ban in Bulgaria.

Table 1. Diversity recognition and political participation of minorities

Institutionalization of ethnicity concerning participation

negative none Positive

Exclusivist / mono-ethnic

TR, BG, ALB ( 2001)

ALB (2001 ), GR,

RO

Civic / neutral CZ, SK

Diversity recognition

Inclusive / inclusive-multiethnic

BiH, HU, PL, CG, SRB HR, KSV, MKD*, SLO

Notes Regular entries that ethnicity is only institutionalized at the national level, italics indicate that ethnicity is only institutionalized at the local level, underlined entries indicate that ethnicity is institutionalized both at the national and the local level elections. Bold entries indicate strong measures, the rest weak. * In Macedonia there are no special electoral solutions for minorities, their participation is ensured through a carefully designed electoral system that is framed in completely neutral terms, without reference to ethnicity (except for issues of language use on the ballot). However, ethnicity is strongly institutionalized in the political system due to the power-sharing nature of the institutions, both at the national and the local level, Macedonia clearly has to be included into this category. Turning now to the relationship between diversity recognition and the autonomous sphere of minorities, the patterns are even clearer than in the case of participation. In none of the exclusivist countries is any form of autonomy acknowledged. All four countries where there are personal autonomies (Hungary, Croatia, Slovenia, Serbia) fall into the inclusive category, while the only country where an ethnically based territorial autonomy can be found, Bosnia and Herzegovina, is an inclusive-multiethnic one. Moreover, those countries that are planning to introduce some sort of personal autonomy (Bosnia again, Montenegro) are also in this category.

The classification of Kosovo and Macedonia is a bit more difficult. However, we decided to include them as countries where some degree of minority autonomy is realized. The Serbs of northern Kosovo de facto enjoy autonomy, as the Kosovar state was unable so far to extend its authority to this area. But this is not the reason why we included Kosovo here, but rather the fact that Serbs enjoy a parallel education system and follow the same curricula as their fellow-ethnics from the kin-state, and Pristina would probably be ready to grant them even more autonomy only to tone down their irredentist desires.

Macedonia is special for other reasons. As already discussed, there is no personal autonomy in Macedonia, while territorial autonomy has been excluded by the Ohrid agreement. Nevertheless, the veto rights of the Albanians and the decentralization of competences allows

  26

Albanians to block legislation that would be unfavorable to them in the fields of culture and education. Moreover, the systems of education, media and culture are parallel, so the situation comes close to a cultural autonomy. As a consequence, the only country that does not conform to the pattern is Poland, which belongs to the inclusive / multiethnic group in what it concerns the attitudes towards diversity, but did not institutionalize any autonomy, moreover, the demands of the Silesians have been repeatedly ignored. Table 2. Diversity recognition and autonomy for minorities autonomy

Yes no

Exclusivist / mono-ethnic

–– ALB, BG, GR, RO, TR

Civic / neutral CZ, SK

Diversity recognition

Inclusive / multiethnic

SRB, HR, HU, SLO, BiH, CG, KSV (de facto), MKD (indirectly)

PL

Notes: Bold entries indicate that also territorial autonomy is institutionalized. Entries with italics indicate equivocal cases.

The final issue that we address in this paper is that of the differentiation of policies towards minorities. We could see that there is some differentiation employed in almost all countries. This can be based on the size or population share of the minorities, but also on more controversial criteria as the distinction between national and ethnic minorities.

The countries where the size of minorities has been taken into account in connection to political participation are Croatia and Kosovo, where the number of reserved seats is different for larger and smaller groups. Croatia also attempted to offer dual voting rights for the smaller minorities, but not for the Serbs, though this has been declared unconstitutional in 2011. In Macedonia the consequences of the size criterion are even more important, as only the communities larger than 20% (that is, the Albanians) can take part in the power-sharing arrangements at the national level introduced by the Ohrid agreement, though at the local level other minorities (especially the Turks) are also able to exercise a veto. In the other power-sharing country included into the study, Bosnia and Herzegovina, the situation is somewhat different. Here, the distinction made between the three constituent nations and the national minorities has far-reaching consequences, as the power-sharing system was tailored for the constituent nations only; however, there is no differentiation within the category of national minorities. At the same time, in terms of representation in the elected bodies Bosnia treats its residual category of “others” in the same manner as its constituent people. Size is also taken into consideration in Romania. Though the 6+3 alternative threshold is not framed as a special electoral rule for minorities, it clearly concerns the Hungarian minority, and it is meant to prevent the DAHR from remaining with only a single MP (as the small minorities) in case of a failure to reach the 5% principle. However, in Romania there is one more differentiation, this time against the Hungarians. The special arrangement applied at the local level refers only to minorities other than the Hungarians. While not stated anywhere, the source of this differentiation is probably the fact that the Hungarians enter parliament by passing the 5% threshold and not making use of the single quasi-reserved seat. However, such a reasoning ignores that fact that in many localities the share of Hungarians is very low, and in this sense their situation does not differ at all from that of the small minorities. Anyway,

  27

given the very low utility of the special rule, the Hungarians don’t lose too much, the problem is rather the fact of discrimination. One can see that the explicit application of the size principle is does not lead to a selective granting of political rights, tough it can lurk implicitly behind discriminative general measures. This is, however, not true with other criteria. We saw that Poland differentiates between national and ethnic minorities and only applies electoral affirmative action to the former. This is difficult to justify. In Montenegro a path-dependent development led to a situation in which Albanians enjoy rights that are not granted to the other recognized minorities. Though the government realized that the situation is awkward, the attempt to change the system to failed at the constitutional court. Even more problematic are those cases where differential treatment stems from the refusal to recognize some or all minorities. Bulgaria is an example for this. While officially diversity is not recognized, dissolving the MRF would have been a too risky decision, so the ethnic party ban has been not applied eventually for the party of the ethnic Turks. However, it is clear that the MRF is the only party they will have in the foreseeable future. At the same time, smaller minorities (e.g. Macedonians) have been denied the right to register an ethnic party. This is a severe case of discriminative differentiation. A very similar situation existed in Albania until the lifting of the party ban in 2001. Slovenia, often considered a positive example for minority rights, also has serious deficiencies in what it concerns the differential treatment of minorities. While the autochthonous communities enjoy very comprehensive rights, other, significantly larger groups like the Serbs or Croats are denied recognition on the grounds that they appeared only recently. Croatia has also been playing with recognition, modifying the list of minorities from the preamble of the constitution twice in 20 years. This seems to have come to an end in 2010.

Table 3. Diversity recognition and differential treatment of minorities Differentiation among minorities concerning

participation

Negative None Positive

Exclusivist / mono-ethnic

BG, ALB ( 2001)

(discriminative)

ALB (2001 ), GR (no reg.)

TR (discriminative against all)

RO (6+3)

(Size)

Civic / neutral CZ, SK (no reg.)

Diversity recognition

Inclusive / inclusive-multiethnic

CG, PL, RO (local), SLO

MKD (size)

HR, KSV

The conclusion that can be drawn from Table 3 is that a differential treatment of minorities is possible within all three models of diversity recognition. Though in an exclusivist context mostly discriminative differentiation is practiced, a positive example also occurs, the 6+3 alternative threshold in Romania. While in Turkey all minorities are discriminated against (though indirectly), in Albania and Greece there is no differentiation due to the lack of regulations. The same is true for the civic Czech Republic and for the more controversial Slovakia, which we also classified into this category.

  28

On the other hand discriminative differentiation can also be witnessed in quite many inclusive or even inclusive-multinational countries. Slovenia is the most serious case here, as the differentiation has consequences for participation at both the national and the local level, as well as concerning the right to establish minority national councils. In Montenegro and Poland the consequences are only felt in what is concerns representation in the parliament, while in Romania only in the local councils, but the practical significance is very limited because the special rule itself is almost useless.

Finally, Macedonia is a difficult case to classify. First, ethnicity is not politicized in the electoral system, but it becomes politicized only after representation has been accomplished, in the power-sharing institutions. The fact that a 20% threshold is applied in order to obtain the right of veto only allows the Albanians to take advantage at national level, while the smaller minorities are ignored, including the Turks that make up approximately 4% of the population. This is why we classified Macedonia as an instance of negative differentiation based on size.

Concluding remarks While in this paper we created an inventory and identified patterns of the regulations concerning diversity recognition and minority political participation, in order to obtain a complete picture about the situation in these countries, the cases have to be investigated according to several more aspects. First, the demographic features should be taken into consideration, because the electoral rules by themselves are not sufficient to judge the quality of representation. This is especially true at the local level, because concentrated minorities require less affirmative action (or none), while very scattered minorities will not be able to benefit even from the most generous special arrangements. The other aspect that should be analyzed is the results produced by the arrangements: whether they really ameliorated the quality of minority representation.

A second point that we wish to emphasize is that although participation is a very important aspect of a minority rights regime, a particular regime should in no way be judged solely on the basis of this dimension. Future research should also attempt to link the participation dimension to the other aspects of the minority rights regimes, not only to the general underlying conception of diversity management.

  29

References Alionescu, Ciprian-Călin. 2004. “Parliamentary Representation of Minorities in Romania.”

Southeast European Politics 5 (1): 60–75. Almairac, Laure. 2006. Turkey: A Minority Policy of Systematic Negation. Vienna:

International Helsinki Federation for Human Rights. Bartolini, Stefano. 1999. “Collusion, Competition and Democracy Part I.” Journal of

Theoretical Politics 11 (4) (October 1): 435–470. ———. 2000. “Collusion, Competition and Democracy Part II.” Journal of Theoretical

Politics 12 (1) (January 1): 33–65. Bieber, Florian and Stefan Wolff. 2007. Introduction: Elections in Divided Societies. In

Florian Bieber - Stefan Wolff (eds.) The Ethnopolitics of Elections, Abingdon: Routledge, pp. 1–5.

Bochsler, Daniel. 2006. Electoral Engineering and Inclusion of Ethnic Groups. Ethnic Minorities in Parliaments of Central and Eastern European Countries. Paper presented at the SSEES Postgraduate Conference 2006, London.

Brubaker, Rogers. 1994. “Nationhood and the National Question in the Soviet Union and Post-Soviet Eurasia: An Institutionalist Account.” Theory and Society 23 (1): pp. 47–78.

Chukov, Vladimir. 2001. The Movement for Rights and Freedoms. Turk Flagman of Bulgarian Post-Totalitarian Liberalism. http://crcs0.tripod.com/mrfvlad.html.

Frowein, Jochen A., and Roland Bank. 2000. The Participation of Minorities in Decision-Making Processes. Expert Study Submitted on Request of the Committee of Experts on Issues Relating to the Protection of National Minorities (DH-MIN) of the Council of Europe by the Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg. Strasbourg: Secretariat Of The Framework Convention For The Protection Of National Minorities.

Hadden, Tom. 2005. Integration and Autonomy: Minority Rights and Political Accommodation. In Ian O’Flynn - David Russel (eds.) Power sharing: new challenges for divided societies. London - Ann Arbor: Pluto, pp. 30–44.

Hajdinjak, Marko. 2008. Thou Shall Not Take the Names Ethnic or Minority, And I Will Bless Thee: Political Participation of Minorities in Bulgaria. In Political Parties and Minority Participation. Skopje: Friedrich Ebert Stiftung, pp. 87–126.

Halász, Iván. 2007. “Nemzeti és etnikai kisebbségek és a kisebbségi jogi szabályozások Közép-Európában”. Kisebbségkutatás 16 (3).

Horowitz, Donald L. 2000. Ethnic groups in conflict. 2nd ed. Berkeley: University of California Press.

Horváth, István. 2001. Facilitating Confl ict Transformation: Implementation of the ecommendations of the OSCE High Commissioner onNational Minorities to Romania, 1993-2001. Hamburg: Centre for OSCE Research.

Htun, Mala. 2003. Why Identity Groups Get Represented in Politics. Working paper. Lesage, Cédric and Heidi Wechlter. 2007. Typology of research topics in audit: a content

analysis. Paper presented at the 30th European Accounting Association Annual Congress, Lisbon, April 2007.

Linz, Juan José, and Alfred C. Stepan. 1996. Problems of democratic transition and consolidation: southern Europe, South America, and post-communist Europe. Johns Hopkins University Press.

Magdó, János. 2010. “Kisebbségek helyzete Görögországban.” Pro Minoritate 20 (3): 133–150.

  30

McGarry, John and Brendan O’Leary. 1993. Introduction: the Macro-political Regulation of Ethnic Conflict. In McGarry, John - O’Laery, Brendan (eds.) The Politics of ethnic conflict regulation: case studies of protracted ethnic conflicts. London - New York: Routledge, pp. 1–40.

———. 1994. “The Political Regulation of National and Ethnic Conflict.” Parliamentary Affairs 47 (1): 94–115.

Meier, Petra. 2007. Who Is Who? Defi ning Groups Entitled to Reserved Seats in National Legislatures. Working paper.

Petričušić, Antonija. 2004a. Wind of Change: the Croatian Government’s Turn towards a Policy of Ethnic Reconciliation. Working paper. European Diversity and Autonomy Papers EDAP.

———. 2004b. Slovenian Legislative System for Minority Protection: Diff erent Rights for Old and New Minorities.

Rátkai, Árpád. 2000. “A kisebbségi önkormányzatok legitimációhiánya.” Regio 11 (3): 112–132.

Rechel, Bernd. 2009. Introduction. In Bernd Rechel (ed.) Minority rights in Central and Eastern Europe. BASEES/Routledge series on Russian and East European Studies. New York: Routledge. pp. 3–16.

Reynolds, Andrew. 2005. “Reserved Seats in National Legislatures: A Research Note.” Legislative Studies Quarterly 30 (2): 301–310.

Sasse, Gwendolyn. 2009. Tracing the Construction and Effects of EU Conditionality. In Rechel, Bernd (ed.) Minority Rights in Central and Eastern Europe, New York: Routledge, pp. 17–31.

Schwellnus, Guido and Frank Schimmelfennig. 2008. The Adoption, Implementation and Sustainability of Minority Protection Rules in the Context of EU Conditionality. A Comparative Analysis of Ten New Member States in Central and Eastern Europe. Research proposal submitted to the SNSF. Zürich.

Smith, Kevin B. 2002. “Typologies, Taxonomies, and the Benefitsof Policy Classification.” Policy Studies Jlournal 30 (3): 379–395.

Székely, István Gergő. 2008. The Representation of National Minorities in the Local Councils. An evaluation of Romanian electoral legislation in light of the results of the 2004 and 2008 local elections / Reprezentarea minorităţilor naţionale la nivel local. O evaluare a legislaţiei electorale româneşti pe baza rezultatelor alegerilor locale din 2004 şi 2008. Working paper. Working Papers in Romanian Minority Studies. Cluj: Romanian Institute for Research on National Minorities.

Trifunovska, Snežana. 1999. “Minority Rights in Croatia.” International Journal on Minority and Group Rights 6 (4): 463–482.

Velivasaki, Eleni. 2010. Accommodating Religious Pluralities: the case of Greece. Paper presented at the conference Minority Politics within the Europe of Regions, Cluj.

Venice Commission. 2000. Electoral Law and National Minorities. Strasbourg: Council of Europe. http://www.venice.coe.int/docs/2000/CDL-INF%282000%29004-e.asp.

———. 2005. Report on Electoral Rules and Affirmative Action for National Minorities’ Participation in Decision-Making Process in European Countries. Strasbourg: Council of Europe. http://www.venice.coe.int/docs/2005/CDL-AD%282005%29009-e.asp.

Venice Commission, and OSCE/ODIHR. 2010. Joint Opinion on the Draft Law on Amendments to the Law on Election of Councillors and Members of Parliament of Montenegro as amended through July 2006. Opinion No. 578 / 2010. Strasbourg: Council of Europe and The OSCE Office for Democratic Institutions and Human Rights.

  31

———. 2011. Joint Opinion on the Draft Law on Amendments to the Law on Election of Councillors and Members of Parliament of Montenegro. Opinion No. 630 / 2011. Strasbourg: Council of Europe and The OSCE Office for Democratic Institutions and Human Rights.

Wolff, Stefan, Pieter van Houten, Ana-Maria Anghelea, and Ivana Djuric. 2008. Minority Rights in the Western Balkans. Report for the European Parliament. Brussels and Strasbourg: European Parliament.

Zellner, Wolfgang. 1999. On the Effectiveness of theOSCE Minority Regime. Comparative Case Studies on Implementation of the Recommendations of the High Commissioner on National Minorities of the OSCE. Hamburg: Institut für Friedenforschung und Sicherheitspolitik.

  32

APPENDIX A. - Summary of the cases Country definition of

holders of sovereignty

national state

individual or collective rights

enumeration of minorities

differentiation between minorities

autonomy party registration

representation in parliament

representation local level

Albania exclusive individual only general national, ethnolinguistic, significant unrecognized, but no policy consequences regarding participation

no ban on ethnic parties until 2001. nevertheless, UHR tolerated

no special rule no special rule

Bosnia and Herzegovina

Multinational and inclusive

both (but collective only in minority law)

minority law constituent peoples vs. national minorities, but not within the latter category

multination federation. Republika Sprska almost homogenous Serbian, the Federation of B&H cantonized along ethnic lines. Personal autonomy foreseen for national minorities but not implemented yet

STRONG

reserved seats for both constituent people (in the Upper House of BiH, as well as in the both chambers of both entities) and for the "others" (same except for the Upper House of BiH)

STRONG

National minorities entitled representation proportional to their share in the population at the last census. The number of seats reserved by decision of the municipalities, but minorities above 3% must have at least one seat. Elected in a parallel, majority electoral system

  33

Country definition of holders of sovereignty

national state

individual or collective rights

enumeration of minorities

differentiation between minorities

autonomy party registration

representation in parliament

representation local level

Bulgaria exclusive individual only general significant unrecognized minorities (in spite of the only implicit recognition), and there are consequences regarding participation stemming from the selective application of the ethnic party ban

no ban on ethnic parties, but selectively applied, MRF tolerated

no special rule no special rule

Croatia inclusive yes Both constitution and electoral law

based on size. Play with recognition seems to have come to an end

personal easy STRONG

reserved seats, but for smaller minorities jointly. Dual voting for minorities smaller than 1,5% declared unconstitutional in 2011

STRONG

minorities larger than 15% in the locality or 5% in the region entitled to proportional representation, those between 5-15% in the municipality entitled to one seat

Czech Republic

Civic individual minority law, explanatory appendix

no no easy no special rule no special rule

  34

Country definition of holders of sovereignty

national state

individual or collective rights

enumeration of minorities

differentiation between minorities

autonomy party registration

representation in parliament

representation local level

Greece exclusive no positive rights

not mentioned no, as none are recognized

no easy no special rule no special rule

Hungary inclusive Both minority law national and ethnic minorities, but without policy consequences. Some controversies around unrecognized minorities

personal easy constitution guarantees, but failiure to codify in the electoral law for more than 20 years

WEAK

can get elected with a lower number of votes (2/3 of the votes that were sufficient for the election of the weakest mainstream party or candidate)

Kosovo inclusive Both constitution and minority law

based on size no, but northern part de facto Serbian autonomy

easy STRONG

reserved seats

WEAK

no special rule, Communities Committees operating as a parallel structure next to the local government. Deputy mayors for minorities.

Macedonia inclusive until 2001

Both constitution based on size. Only minorities larger than 20% (Albanians) can participate in power-sharing at

territorial ruled out, decentralization instead; no personal autonomy but parallel education systems plus community

easy no special rule, but extremely proportional electoral system designed precisely to ensure representation

no special rule

  35

Country definition of holders of sovereignty

national state

individual or collective rights

enumeration of minorities

differentiation between minorities

autonomy party registration

representation in parliament

representation local level

national level veto in parliament for Albanians

Montenegro Multinational and inclusive

Both constitution, some also in the minority law and electoral law

autochthonous minority peoples, national minorities, ethnic minorities. However, it is not this that has policy consequences, but the current rules on participation that only apply to Albanians

personal foreseen but limited implementation

? STRONG, but only for Albanians.

5 seats elected in a special constituency by the Albanians. Also, easier conditions for Albanian parties to field lists of candidates. New regulations from 2006 declared unconstitutional.

WEAK

easier conditions for Albanian parties to field lists of candidates. New regulations from 2006 declared unconstitutional.

Poland quasi-civic Both minority law national and ethnic minorites, and groups speaking a regional language. the waiver of the electoral threshold only applies to national minorities. Significant

no easy INTERMEDIATE

waiver of electoral threshold for national, but not for other types of minorities

?

  36

Country definition of holders of sovereignty

national state

individual or collective rights

enumeration of minorities

differentiation between minorities

autonomy party registration

representation in parliament

representation local level

unrecognized

Romania exclusive yes individual only general no (not regarding participation), yet there is an indirect measure favoring the main Hungarian party

no extremely difficult

STRONG

very low alternative threshold, quasi-reserved seat, but only one per minority regardless of size. Indirect 6+3 rule for largest Hungarian party

WEAK

strongest minority organization favorized in the second step of seat allocation based on largest remainders, but very inefficient and even counter-productive

Serbia civic Both only general no personal; Vojvodina territorial but not on ethnic basis

difficult but special rule for minority parties

INTERMEDIATE

waiver of electoral threshold for parties of national minorities both at national level and for the Vojvodina Assembly

INTERMEDIATE

waiver of electoral threshold for parties of national minorities

Slovakia inclusive individual only general no no difficult no special rule no special rule

  37

Country definition of holders of sovereignty

national state

individual or collective rights

enumeration of minorities

differentiation between minorities

autonomy party registration

representation in parliament

representation local level

Slovenia inclusive Both constitution, some also in the minority law

autochthonous national communities, Roma, significant unrecognized. Only autochthonous communities enjoy reserved seats and can establish self-governments

personal easy STRONG

reserved seats for autochthonous communities only, dual voting

STRONG

seats reserved by decision of the municipality for autochthonous communities in bilingual municipalities, parallel election system with majority formula

Turkey exclusive no positive rights

not mentioned no, as none are recognized

no, but Turkish Kurdistan

easy, but party law contains sections directed against ethnic parties

no special rule, 10% threshold directed against Kurds and also a difficult territorial coverage requirement

no special rule

  38

APPENDIX B – Details of the cases and sources Table 1. The source of authority or sovereignty (the quotations are from the preambles of the constitutions, except for where noted) Albania (1998) We, the people of Albania Bosnia and Herzegovina (1995)

Bosnians, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina, hereby determine that the Constitution...

Bulgaria (1991) We, the Members of the Seventh Grand National Assembly, guided by our desire to express the will of the people of Bulgaria Croatia (2010) the Republic of Croatia is hereby established as the nation state of the Croatian nation and the state of the members of its national

minorities: Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians, Rusyns, Bosnians, Slovenians, Montenegrins, Macedonians, Russians, Bulgarians, Poles, Roma, Romanians, Turks, Vlachs, Albanians and others who are its citizens and who are guaranteed equality with citizens of Croatian nationality and the exercise of their national rights in compliance with the democratic norms of the United Nations and the countries of the free world. Respecting the will of the Croatian nation and all citizens...

Czech Rep. (1993) We, the citizens of the Czech Republic in Bohemia, Moravia, and Silesia Greece (1975) No relevant part Hungary (2011) We, the members of the Hungarian nation

The national and ethnic minorities living in the Republic of Hungary participate in the sovereign power of the people: they represent a constituent part of the State (Art. 68. (1))

Kosovo (2008) We, the people of Kosovo (preamble) The Republic of Kosovo is a multi-ethnic society consisting of Albanian and other Communities (art. 3.)

Macedonia (2002) The citizens of the Republic of Macedonia, the Macedonian people, as well as citizens living within its borders who are part of the Albanian people, the Turkish people, the Vlach people, the Serbian people, the Romany people, the Bosniac people and others...

Montenegro (2007) The citizens of Montenegro... “as free and equal citizens, persons belonging to nations and national minorities living in Montenegro: Montenegrins, Serbs, Bosnians, Albanians, Muslims, Croats and others”

Poland (1997) we, the Polish Nation - all citizens of the Republic […] hereby establish this Constitution of the Republic of Poland Romania (1991/2003)

National sovereignty resides with the Romanian people (art. 2. (1)); The State foundation is laid on the unity of the Romanian people (art. 4. (1))

Serbia (2006) The citizens of Serbia... Slovakia (1992) We, the Slovak nation […] together with members of national minorities and ethnic groups living on the territory of the Slovak

Republic... Slovenia (1991) Proceeding [...] from the fundamental and permanent right of the Slovene nation to self-determination and from the historical fact that in

a centuries-long struggle for national liberation we Slovenes have established our national identity and asserted our statehood, the Assembly of the Republic of Slovenia hereby adopts...

  39

The Hungarians and Italians are recognized as autochthonous national communities. Turkey (1982) The Turkish nation; “no protection shall be accorded to an activity contrary to Turkish national interests, the principle of the

indivisibility of the existence of Turkey with its state and territory, Turkish historical and moral values or the nationalism, principles, reforms and modernism of Atatürk and that, as required by the principle of secularism, there shall be no interference whatsoever by sacred religious feelings in state affairs and politics.”

Notes: Croatia: the preamble of both the 1990 and the 2001 Constitution contained different formulations. The relevant part of the preamble of the 1990 constitution read as follows: “the Republic of Croatia is hereby established as the national state of the Croatian people and a state of members of other nations and minorities who are its citizens: Serbs, Muslims, Slovenes, Czechs, Slovaks, Italians, Hungarians, Jews and others...” (the rest of the text remained unchanged) Between 2001 and 2010 the relevant part was the following: “the Republic of Croatia is hereby established as the national state of the Croatian people and a state of members of other nations and minorities who are its citizens: Serbs, Muslims, Slovenes, Czechs, Slovaks, Italians, Hungarians, Jews and others...” (the rest of the text remained unchanged) Greece: the quasi-preamble of the Constitution reads as follows: “In the name of the Holy and Consubstantial and Indivisible Trinity, the Fifth Constitutional Assembly of Greece votes:” Hungary: the new Constitution did not enter into force yet. However, the formulation from this document is cited, because the old Constitution of Hungary (1949, amended in 1990 as a temporary constitution until the adoption of a new one) did not contain a similar formulation, as it was adopted not by the people but by the Parliament. Macedonia: the Constitution of 1991 contained the following statement: “Taking as starting points [...] the historical fact that Macedonia is established as a national state of the Macedonian people, in which full equality as citizens and permanent co-existence with the Macedonian people is provided for Albanians, Turks, Vlachs, Romanics and other nationalities living in the Republic of Macedonia [...]the Assembly of the Republic of Macedonia adopts the Constitution of the Republic of Macedonia”

  40

Table 2. Mentions of ehnocultural diversity in the constitution – in individual or collective terms? Communities

/collective rights

Individuals / individual rights

Not mentioned

Terminology used for ethnocultural groups

Albania X Persons who belong to national minorities Bosnia and Herzegovina

X X Three constituent peoples, and others. National minorities only mentioned in the Constitution in the article about the prohibition of discrimination. However, the minority protection law offers rights to both “national minorities” and “members of national minorities.”

Bulgaria X Citizens whose mother tongue is not Bulgarian (art. 36.2) Croatia (X) X 1990-2001: Members of all nations and minorities

2001- members of national minorities; but also: “Equality and protection of the rights of national minorities shall be regulated by the Constitutional Act”

Czech Republic X Citizens who constitute national or ethnic minorities Greece X –– Hungary X National and ethnic minorities.

e.g. Art. 68. (1) The national and ethnic minorities living in the Republic of Hungary participate in the sovereign power of the people: they represent a constituent part of the State. (2): The Republic of Hungary shall provide for the collective participation [of national and ethnic minorities] in public affairs National and ethnic minorities represent a constituent part of the State. (Constitution of 2011 – preamble, art XXIX.) However, the new constitution also uses the term “Hungarian citizen belonging to a nationality”

Kosovo X X Chapter III of the Constitution is entitled “Rights of Communities and Their Members” Inhabitants belonging to the same national or ethnic, linguistic, or religious group traditionally present on the territory of the Republic of Kosovo (Communities) shall have specific rights as set forth in this Constitution in addition to the human rights and fundamental freedoms provided in chapter II of this Constitution (art. 57 of Const.)

Macedonia X 1991-2001: Members of the nationalities, inhabitants belonging to nationalities 2001- peoples in the preamble; In the text: “members of communities”, “persons belonging to communities”, but also “equitable representation of communities”; “The Republic guarantees the protection of the ethnic, cultural, linguistic and religious identity of all communities”

Montenegro X X Persons belonging to minority nations and other minority national communities shall be guaranteed the rights and liberties, which they can exercise individually or collectively with others (art. 79.)

Poland (X) X citizens belonging to national or ethnic minorities [enjoy] the freedom to maintain and develop their own language (art. 35 (1)).

  41

Communities /collective rights

Individuals / individual rights

Not mentioned

Terminology used for ethnocultural groups

National and ethnic minorities shall have the right to establish educational and cultural institutions (art. 35 (2)). Persons belonging to a minority may enjoy the rights and freedoms stemming from the principles set forth in this Act, both individually as well as together with other members of the minority (Act on national and ethnic miorities and the regional language 2006, art 4 (4)).

Romania X Persons belonging to national minorities Serbia X X The Republic of Serbia shall protect the rights of national minorities (art. 14.)

Persons belonging to national minorities shall be guaranteed special individual or collective rights in addition to the rights guaranteed to all citizens by the Constitution. Individual rights shall be exercised individually and collective rights in community with others, in accordance with the Constitution, law and international treaties (art. 75. (1)).

Slovakia X citizens representing / belonging to national minorities or ethnic groups, members of minority or ethnic groups

Slovenia X X The autochthonous Italian and Hungarian national communities and their members shall be guaranteed... (art. 64.) The status and special rights of the Romany community living in Slovenia shall be regulated by law. (art. 65.)

Turkey X –– (X) – While most of the time minorities are referred to in terms of individuals, there are some parts in the text which refer to the minority as to a community, but collective rights are not explicitly mentioned.

  42

Table 3. Are minorities mentioned or enumerated in the constitution or other important legal documents? Enumerated in

constitution mentioned in constitution

Not mentioned in constitution

Enumerated in other laws Observations

Albania X only a reference to religious diversity in the preamble

Bosnia and Herzegovina

X (only the 3 constituent people)

Law on Rights of National Minorities (2003) – 17

Bulgaria (X) Art 36 (2) mentions citizens whose mother tongue is not Bulgarian,

Croatia X (22) Electoral Law (2003) - 22 Czech Republic

X Act On Rights Of Members Of National Minorities, Explanatory Appendix – 12

Greece X 1923 Treaty of Lausanne (1923) In the Constitution only a vague reference to linguistic differences in the non-discrimination clause (art. 5. (2))

Hungary X Law on Ethnic and National Minorities (1993) - 13

Kosovo X (7) Law on the Protection and Promotion of the Rights of Communities and Their Members (2008) - the same 7

Macedonia X (6) Montenegro X (6 nations and

national minorities)

Law on Minority Rights and Freedoms (2006) - 2, Electoral law (1998) – 1

Poland X Act on National and Ethnic Minorities and on the Regional Language (2005) – 9+4+1

Romania X No enumeration even in the draft minority law. 20 minorities recognized de facto

Serbia X 19 national councils formed in 2010 Slovakia X Citizens belonging to national minorities or ethnic

groups

  43

Enumerated in constitution

mentioned in constitution

Not mentioned in constitution

Enumerated in other laws Observations

Slovenia X (3) The Law on Self-governing Ethnic Communities (1994) -2

Turkey X Treaty of Lausanne (1923) A vague reference to linguistic differences in the non-discrimination clause (art. 10. (1)) and in an article that states that the language of education can only be Turkish (art. 42. (9))

Albania: Recognized national minorities: Greeks, Macedonians, Montenegrins. Recognized ethnolinguistic (cultural) minorities: Vlachs/Aromanians and Roma. Muslim Bosnians and Balkan-Egyptians also struggle for recognition (Wollf et al. 2008) Bosnia and Herzegovina: The Constitution only lists the three constituent people: Bosnians, Croats and Serbs and the “others”. The Law on Rights of National Minorities (2003) enumerates the following 17 minorities: Albanians, Montenegrins, Czechs, Italians, Jews, Hungarians, Macedonians, Germans, Poles, Roma, Romanians, Russians, Rusyns, Slovaks, Slovenians, Turks, Ukrainians and other who meet requirements referred to in Paragraph 1 of [Article 3].” Bulgaria: minorities are not mentioned as an entity that is protected or granted rights by the constitution, but art. 11. par. (4) states that ”There shall be no political parties on ethnic, racial or religious lines, nor parties which seek the violent seizure of state power”. That is, the constitution is “aware” of diversity, but only mentions it in order to prevent it to become the basis for political organization. The minority categories used in the 2011 census were the following: Turks, Roma, Armenians, Jews, Vlachs, Sarakatsani, Russians, Greeks, Macedonians, Romanians, Ukrainians, other. (http://censusresults.nsi.bg/Reports/2/2/R7.aspx). Pomaks remain a controversial category, the official stance of the state being that they are ethnic Bulgarians of Muslim religion. Croatia: the list of minorities enumerated in the preamble of the constitution changed twice since 1990. Between 1990-1997: “Serbs, Muslims, Slovenes, Czechs, Slovaks, Italians, Hungarians, Jews and others...” Between 1997-2010: “Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians and Rusyns and the others...” Since 2010: “Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians, Rusyns, Bosnians, Slovenians, Montenegrins, Macedonians, Russians, Bulgarians, Poles, Roma, Romanians, Turks, Vlachs, Albanians and others...” It should be pointed out that the current list of 22 minorities appeared first in the Electoral Law of 2003, before the Constitution has been amended in 2010 to eliminate the difference. Czech Republic: Minority rights are not codified in the constitution, but in the Charter of Fundamental Rights and Freedoms, a document that is part of the constitutional order of the Czech Republic. Jews did not wish to be recognized as a national minority (Halász 2007). The explanatory appendix of the Act On Rights Of Members Of National Minorities of the Czech Republic lists: Bulgarians, Croats, Hungarians, Germans, Poles, Austrians, Roma, Ruthenians, Russians, Greeks, Slovaks, Ukrainians (Halász 2007) Hungary: the minorities that are listed in the Law on Ethnic and National Minorities (art 61. (1)) are the following : Armenians, Bulgarians, Croats, Germans, Greeeks, Poles, Romanians, Ruthenians, Serbs, Slovaks, Slovenes, Roma and Ukrainians. Controversial: Jews did not want to become a national minority; there were attempts to recognize Bunjevac, Russians, but also Huns or Kumans. Greece: The Muslim minority of Western Thrace (made up of Turks, Pomaks, Roma) is recognized based on the 1923 Treaty of Lausanne. Kosovo: Article 64 and 148 of the Consitution: Serb Community, Roma community, Ashkali community, Egyptian community, Bosniak community, Turkish Gorani community.

  44

Macedonia: the preamble mentions “citizens living within its borders who are part of the Albanian, Turkish, Vlach, Serbian, Romany and Bosnian people and others.” Between 1991-2001 “Macedonia is established as a national state of the Macedonian people, in which full equality as citizens and permanent co-existence with the Macedonian people is provided for Albanians, Turks, Vlachs, Romanics and other nationalities living in the Republic of Macedonia”. Montenegro: the preamble of the Constitution mentions “persons belonging to nations and national minorities living in Montenegro: Montenegrins, Serbs, Bosnians, Albanians, Muslims, Croats and others”. The Law on Minority Rights and Freedoms (2006) does not contain a full enumeration, only the Roma and the Albanian minorities are explicitly mentioned. The Electoral Law (1998) also mentions the Albanian minority. Poland: national minorities mentioned in the Act on National and Ethnic Minorities and on the Regional Language (2005): Byelorussians; Czechs; Lithuanians; Germans; Armenians; Russians; Slovaks; Ukrainians; Jews. Ethnic minorities: Karaim; Lemko; Roma; Tartar. Regional language: Kashubian. The Silesian identity is controversial, not recognized. Romania: implicitly recognized national minorities are those that are represented in the Council of National Minorities (which means basically represented in Parliament): Albanians, Armenians, Bulgarians, Croats, (Carashovans), Czechs, Germans, Greeks, Hungarians, Italians, Jews, Lipovan Russians, Macedonians, Poles, Roma, Ruthenians, Serbs, Slovaks, Tatars, Turks, Ukrainians. The Czechs and Slovaks are represented by a common MP in the Parliament. Serbia: No enumeration either in the federal Law on the Protection of the Rights and Freedoms of National Minorities (2002) or in the Law on the National Councils of National Minorities (2009). 19 minorities elected National Councils in 2010: Albanians, Ashkali, Bosnians, Bulgarians, Bunjevac, Vlachs (Aromanians), Greeks, Egyptians, Germans, Hungarians, Roma, Romanians, Ruthenians, Slovaks, Ukrainians, Czechs (direct elections), Croats, Macedonians, Slovenes (indirect elections). In 2010 four more National Councils were elected than in 2002: Albanians, Ashkali, Czechs, Slovenes. Slovakia: the only explicit enumeration of minorities is in the census categories. In 2001 these were: Hungarians, Czechs, Roma, Germans, Poles, Croats, Serbs, Ruthenians, Russians, Ukrainians, Jews, others (Halász 2007) Slovenia: Italians and Hungarians are autochthonous national communities (art. 5., 11., 64., 80.). The Roma community is also mentioned in the Constitution (art. 65) Turkey: Non-Muslim religious minorities (Armenian Orthodox, Greek Orthodox and Jews) are recognized based on the 1923 Treaty of Lausanne. The Kurds (~18% of population) not recognized yet though in the past years some progress has been made.   

  45

Table 4. Does the state distinguish between different types of minorities? Does the state promote policies that differentiate among the minorities?  Albania National minorities and Ethnnolinguistic (Wollf et al. 2008).

No consequence concerning participation (only in other domains, e.g.: the Albanian Constitution guarantees the rights of recognized national minorities, including the right to study and be taught in their mother tongue, but not for the other types of minorities). Ethnolinguistic (cultural) minorities (Vlachs/Aromanians and Roma) struggle for recognition as national minorities, Muslim Bosnians and Balkan-Egyptians struggle for recognition as minorities (Wollf et al. 2008).

Bosnia and Herzegovina

Constituent peoples are clearly treated differently from “others”, that is, national minorities and citizens who do not identify with any group. All the consociational elements only apply to Serbs, Croats and Bosnians, but no differentiation within national minorities.

Bulgaria No official list. Significant unrecognized minority: Pomaks. Controversies around the Macedonian minority. The selective application of the ethnic party ban has policy consequences (see below).

Croatia Differential treatment based on the share of minorities The threshold of differentiation is 1,5%, basically differentiation between Serbs and other minorities. The number of reserved seats depends on this. Play with recognition until 2010.

Czech Rep. No differentiation - national minorities. Greece Only religious minorities are officially recognized, based on the Treaty of Lausanne (1923). Hungary National and ethnic minorities. The distinction does not have any practical consequence. There were attempts to recognize Bunjevac,

Russians, but also Huns or Kumans. Kosovo Differentiation based on size. Serbs enjoy the most political rights in the constitution, but also the number of reserved seats depends on

community size Macedonia Differential treatment based on the share of minorities (at both national and municipality 20% is the threshold for certain political

rights, which means in practice that only Albanians are able to participate in the sharing of power at national level). Montenegro - Persons belonging to minority nations and other minority national communities (Const. Art. 79.)

- autochthonous minority peoples, national minorities, ethnic minorities and persons belonging to them. Otherwise no difference concerning policy, even the law states that hereinafter these are all called minorities (Law on Minority Rights and Freedoms, art 1.) Independently from the differentiation in labels from above, electoral affirmative action (guaranteed by the Law on the election of councilors and representatives since 1998) only applies for Albanians.

Poland National minorities, ethnic minorities and regional language Consequences: the exemption from the electoral threshold is only applied to national minorities, but not for ethnic minorities or speakers of the regional language. Silezian identity unrecognized.

Romania No differentiation – national minorities. Proliferation of minorities until 2000, but also failed attempts to gain recognition (Hutzuls). Serbia No differentiation - national minorities. Proliferation of minorities in recent years. Slovakia No official list Slovenia - Italians and Hungarians are autochthonous national communities and enjoy collective rights.

- The Roma represent an intermediary category: their are recognized as an autochthonous group, but the constitution does not develop on their rights.

  46

- The Serbs, Croats, Macedonians, Albanians, Montenegrins (that is, the post-Yugoslav minorities) are considered recently appeared minorities, are not mentioned in the constitution and do not enjoy rights. - The Germans are not officially recognized either

Turkey Only religious minorities are officially recognized, based on the Treaty of Lausanne (1923). The Kurds are not officially recognized, only implicitly.

Croatia: between 1991-2002 the threshold of differentiation was 8%. Probably the most infamous case of differential treatment in practice is also from Croatia: in 1995 the articles referring to the Serbs in the Constitutional law on minority rights have been suspended, while the rest remained in power. Also worth noting that in 1997 Muslims and Slovenes have been deleted from the list of minorities in the preamble of the constitution, while the Germans, Austrians, Ukrainians and Ruthenians appeared as new minorities. Muslims and Slovenes reappeared in the preamble (and 10 other minorities were included too). Hungary: The initial intention was to differentiate the Roma from the other minorities (probably to grant them fewer rights as an ethnic minority) but eventually this did not happen. Kosovo: Albanian and Serbian official languages, Bosnian, Turkish and Roma official at municipal level Montenegro: New legislation is being drafted that would extend affirmative action to all the minorities and would also differentiate between minorities according to their share in the population (differential alternative thresholds of 0,7% for larger minorities and 0,4% for Croats).   

  47

Table 5. Ethnically based autonomy or self-government (territorial or personal) Territorial

autonomy Cultural autonomy

Administrative units where the minority constitutes an absolute majority

Observations

Albania Bosnia and Herzegovina

X X Multination federation, Republika Srpska basically homogenous, the Federation of Bosnia and Herzegovina is divided into seven predominantly Bosnian and three predominantly Croat cantons. The creation of minority councils for national minorities has been decided in 2006, but the councils have not been established yet - (Wollf et al. 2008: 15)

Bulgaria 2 provinces with Turkish majority (Kardzhali, Razgrad)

Croatia X Special electoral rolls complied by the state and based on passive registration Local and regional self-governments can be elected, which may establish jointly a steering committee of minority self-governments for the territory of the Republic of Croatia.

Czech Rep. Greece Hungary X Between 1993-2005 no electoral rolls, anyone could vote and

run. Since 2005 electoral rolls based on active registration, but must be destroyed after each election. Local minority self-governments elected by direct vote, territorial and national self-governments indirectly, by electors who are members at the lower levels.

Kosovo (X) Northern Kosovo (Kosovska Mitrovica and surroundings)

The Serbs use the curriculum elaborated by the Serbian ministry of education (Wollf et al. 2008: 18)

Macedonia (X) The 2001 administrative- territorial reform created a number of municipalities where the Albanians constitute a majority + decentralization, the transfer of a set of competences to the level of municipalities

Territorial solution to ethnic conflicts have been excluded by the basic principles of the Ohrid agreement. No personal autonomy but arguably some cultural autonomy brought about by the combination of as parallel education systems and the community veto in parliament for Albanians.

Montenegro X Serbs: 3 municipalities, Bosnians: 2 municipalities, Albanians: 1 municipality

Art 33 of the Law on Minority Rights and Freedoms (2006) grants the right to minority national councils

Poland

  48

Territorial autonomy

Cultural autonomy

Administrative units where the minority constitutes an absolute majority

Observations

Romania 2 counties with Hungarian majority (Harghita, Covasna)

A draft law about personal autonomy stalled in parliament since 2005.

Serbia X Hungarians: 7 municipalities, Bosnians: 3 municipalities, Albanians: 2 municipalities, Bulgarians: 1 municipality, Slovaks 1 municipality

Persons belonging to national minorities may elect their national councils in order to exercise the right to self-governance in the field of culture, education, information and official use of their language and script, in accordance with the law. (Const. Art. 75. (3)) Between 2002-2010 – indirectly elected national councils. In 2010 direct elections for the first time. Electoral rolls compiled according to active registration. Councils elected at national level. Vojvodina enjoys territorial autonomy, but this is not ethnically based.

Slovakia The 2001 administrative reform created a structure that is unfavorable for the Hungarian minority

Slovenia X The autochthonous national communities (Hungarians and Italians elect their self-governments through direct vote, based on special electoral rolls (passive registration). Self-governing ethnic communities are elected at the municipal level, and integrate into the Italian or Hungarian self-governing ethnic communities in the Republic of Slovenia.

Turkey Turkish Kurdistan

  49

Table 6. Conditions for registering political parties and minority organizations21 Albania Until 2001 the creation of political party on a religious, ethnic or regional basis was not allowed (law No. 7502 of 25.07.1991, art. 9.2.- Birnir

2008) Nevertheless, the Unity for Human Rights party, with a mostly ethnic Greek membership, has been tolerated and even part of the government between 1997-2001

Bosnia and Herzegovina

1996: Registration before elections: 10.000 for parties, 5.000 for independent candidates (for all 3 lower houses) 2008: parties: 3000 for the HR of BiH, 2000 for the HR of FBiH, 2000 for NA of RS, 500 for the cantonal assemblies, 100 for municipal assemblies in localities below 10,000, 200 in localities above 10,000, 5% of the registered voters in localities below 1,000 (Electoral law art. 4.4

Bulgaria “There shall be no political parties on ethnic, racial or religious lines, nor parties which seek the violent seizure of state power.” (Art. 11.4. of the Constitution) The Movement for Rights and Freedoms, with a membership made up mostly of ethnic Turks, has been registered in 1990 after a series of controversies and contestations at the Constitutional Court. MRF, however, does not define itself as an ethnic party, but as a liberal party. Contrarily, in 2000 the party OMO Ilinden PIRIN, created by members of the Macedonian minority, has been declared unconstitutional. In 2006, the registration of the party has been denied again. Otherwise a party can be formed at the initiative of 50 persons (Law on political parties as amended in 2009, art 10 (1)).

Croatia 100 persons (Law on political parties (1999), art. 6) Czech Republic

1000 signatures (Law on political parties (as amended in 2006), art 6 (2))

Greece No restrictions Hungary 10 persons are sufficient to found a party (Law II. of 1989 about the freedom of assembly)

Parties that do not contest two consecutive elections are deleted from the registry. The real threshold is the number of supporting signatures that has to be gathered in order to run in the elections.

Kosovo 500 party members who are found on the Kosovo voters list (Art. 12.3. Law No. 03/L-073 on general elections in the republic of Kosovo) Macedonia 500 signatures (art. 7 (1) of the Law on Political Parties) Montenegro Poland 1000 signatures (Party law (as amended in 2008), art. 11 (2)) Romania Since 2003 25,000 signatures are required to register a political party, with at least 700 signatures coming from 18 counties and Bucharest (law

14 of 2003). A party may be dissolved for inactivity if it fails to present candidates in at least 10 constituencies, alone or as part of an alliance, in two successive election campaigns, or if it has held no general assembly for five years.

                                                            

21 Information about party laws taken from the website “Party Law in Modern Europe” (http://www.partylaw.leidenuniv.nl/) and from the World Law Guide (http://www.lexadin.nl/wlg/)

  50

The possibility of registering “organizations of persons belonging to national minorities” also exists. For this a number of signatures equal to 15% of the number of citizens who declared themselves as belonging to the respective minority is required. If this value exceeds 25,000 persons, then at least 25,000 signatures are required, at least 300 from at least 15 counties and Bucharest. These amount to prohibitively difficult conditions for the registration of new political organizations of minorities (electoral laws law 67/2004, 373/2004, 35/2008).

Serbia Until 2009 only 100 signatures were sufficient to register any kind of party. Since 2009 mainstream parties require 10,000 signatures, whuile minority parties 1,000 signatures. Despite the affirmative action, some minority leaders expressed their discontent with the regulation (Law on political parties (2009), art. 8 and 9).

Slovakia Political parties can be registered with 10,000 signatures. No special regulations for organizations of minorities (Law on political parties (2005), art. 6 (4)).

Slovenia 200 signatures (Party law 2007, art. 4) Turkey 30 persons can found a party, but each party must establish organizations in at least half the country's provinces and in one-third of the districts

within those provinces (http://countrystudies.us/turkey/71.htm). The Law of Political Parties states: political parties “shall not claim that there are minorities based on national or religious or cultural or confessional or racial or linguistic differences” (article 81(a)). The promotion of any culture or language other than the Turkish is defined as a threat to the integrity of the Turkish nation (article 81(b)). the use of any language other than Turkish in the activities of political parties is prohibited (article 82) (Almairac 2006)

  51

Table 7. Special institutional arrangements meant to facilitate minority representation in the parliament22 Albania No special solution.. Bosnia and Herzegovina

BiH: House of Peoples: 5 members from each of the 3 constituent groups (Const. Art. IV. Par. 1.) No reserved seats for groups in the House of Representatives, only for the federal entities (14 RS, 28 FBH) Federation of BiH: A minimum number of four (4) members of each constituent people shall be represented in the Federation House of Representatives (Electoral law art. 10.1.) House of Peoples of the Parliament of the Federation of BiH: 17 Bosnians 17 Serbs, 17 Croats and 7 delegates from the rank of Others (elected by the cantonal legislatures) (Electoral law art. 10.10) The quotient of each constituent people in each canton is determined by the Sante-Laguë method, but each constituent people shall be allocated one seat in every canton (Electoral law art. 10.12) Republika Srpska: A minimum number of four (4) members of each constituent people shall be represented in the National Assembly (Electoral law art. 11.1) The Council of Peoples of Republika Sprska shall be composed of 28 members, 8 Bosnians, 8 Serbs 8 Croats and 4 representatives of the group of Others (Electoral law art. 11.10). Candidates must declare their affiliation with one of the constituent people or with the group of “others” (art. 4.19.)

Bulgaria No special solution. Croatia No right to political representation is guaranteed by the constitution.

1991: minorities larger than 8%, that is, the Serbs (at the 1981 census) had the right to proportional representation in parliament, while tha minorities smaller than 8% shared a total of 5 reserved seats in the Sabor 2002- 8 reserved seats, 3 for the Serbs one for Italians and Hungarian, one together for Czechs and Slovaks, one together for the minorities that are not post-Yugoslav (Austrians, Bulgarians, Germans, Poles, Roma, Romanians, Russians, Ruthenians, Ukrainians, Vlachs, Jews), and one together for the post-Yugoslav minorities (Albanians, Bosnians, Montenegrins, Macedonians and Slovenes. (The CL only states the general idea (article 18), the details are found in the electoral law of 2003) After the 2007 elections HDZ promised to change the electoral law to enable national minorities with less than 1.5% of the population the right to a double vote in elections (Antic – Gruicic 2008: 755). This materialized in the amendment of the Constitutional Law in 2010. The new version would have granted at least 3 seats to the Serbs and 5 seats to the small minorities, and would have introduced dual voting for the small minorities. However, in July 2011 the Constitutional Court ruled that dual voting is unconstitutional.

Czech Rep. No special solution. Greece No special solution. Hungary Although the constitution guarantees representation, the electoral law failed to codify a solution.

The new electoral law should be ready in the fall and should also settle the representation of minorities.

                                                            

22 Information about electoral systems taken from the website of the Inter-Parliamentary Union (http://www.ipu.org) and from http://electionresources.org, if otherwise not noted.

  52

Kosovo Ten (10) seats shall be allocated to the parties, coalitions, citizens' initiatives and independent candidates having declared themselves representing the Kosovo Serb Community and ten (10) seats shall be allocated to other Communities as follows: the Roma community, one (1) seat; the Ashkali community, one (1) seat; the Egyptian community, one (1) seat; and one (1) additional seat will be awarded to either the Roma, the Ashkali or the Egyptian community with the highest overall votes; the Bosnian community, three (3) seats; the Turkish community, two (2) seats; and the Gorani community, one (1) seat. Any seats gained through elections shall be in addition to the ten (10) reserved seats allocated to the Kosovo Serb Community and other Communities respectively (Const., art. 64 (2); Art. 148) One (1) Deputy President [of the Assembly of Kosovo] shall belong to the deputies of the Assembly holding seats reserved or guaranteed for the Serb community, and one (1) Deputy shall belong to deputies of the Assembly holding seats reserved or guaranteed for other communities that are not in the majority (Const. Art. 67 (4)). Const. Art. 96 (3) and (4): 3. There shall be at least one (1) Minister from the Kosovo Serb Community and one (1) Minister from another Kosovo non-majority Community. If there are more than twelve (12) Ministers, the Government shall have a third Minister representing a Kosovo non-majority Community. 4. There shall be at least two (2) Deputy Ministers from the Kosovo Serb Community and two (2) Deputy Ministers from other Kosovo non-majority Communities. If there are more than twelve (12) Ministers, the Government shall have a third Deputy Minister representing the Kosovo Serb Community and a third Deputy Minister representing another Kosovo non-majority Community. Law on general election art. 15.11: Each Political Entity shall indicate in its application whether it wishes to contest any of the seats guaranteed for the representation of Kosovo Serb and other non-majority communities under Article 64 of the Constitution. However, Serbs mostly boycott the Kosovar political institutions.

Macedonia No special arrangements, but minority representation is encouraged indirectly through the general rules of the electoral system. A very proportional PR system is in force: 6 electoral districts with 20 seats each and no electoral threshold. The d’Hondt formula is applied at the level of the districts, there is no national tier. It is possible to enter parliament by obtaining 5% of the vote in a particular district, which permits even for small minorities that are reasonably concentrated territorially to enter parliament. Moreover, the districts are delimitated in such a way as not to disadvantage the minorities (Electoral code of the Republic of Macedonia (31 March 2006, Art. 127.))

Montenegro Constitution (Article 79 (9): “the right to authentic representation in the Parliament of the Republic of Montenegro and in the assemblies of the local self-government units in which they represent a significant share in the population, according to the principle of affirmative action” (Article 79 (9))

There is one special constituency with 5 seats for the Albanian minority (Law on election of councilors and MPs, art. 12.).

Law on election of councilors and MPs (2002): the parties of Albanians can submit electoral lists under easier conditions: the lower threshold of the number of candidates that have to be on the list is only 1/3 of the number of seats in the constituency, as compared to 2/3 in the case of mainstream parties, and 1000 supporting signatures suffice instead of 1% of the voters from the constituency that is needed for the mainstream parties (art 44)

The Law on Minority Rights and Freedoms (2006, art. 23. (2) and (3)) changed the system: Minorities making up between 1% and 5% of the total population shall be represented with one mandate in the Assembly of the Republic of Montenegro. Minorities exceed 5% of the total population shall have three guaranteed mandates in the Assembly of the Republic of Montenegro, provided that linguistic and ethnic

  53

specificities, as well as acquired electoral rights of Albanians in the Republic are taken into account.

However, this has been declared unconstitutional in July 2006. New legislation has not been adopted yet, but the drafts seem to remove the discriminative differentiation between minorities (in favor of Albanians) and to provide differentiated solutions of affirmative action according to the size of the minorities (alternative thresholds: 0,7% for larger minorities, and there is no upper limit for which group can qualify for being a minority, and 0,4% for the smaller Croatian minority) (Venice Commission & OSCE/ODIHR 2010, 2011)

Poland The 5% electoral threshold is not applied for the political parties of national minorities (but it does not apply for ethnic minorities or groups speaking regional languages). The implicit threshold is 0,21%.

Romania 10% of the average number of votes necessary to elect a deputy at the national level, but only one MP can be elected this way. Minority organizations may field the same candidate in each constituency, while this is not permitted to mainstream parties. The 6+3 alternative threshold – not an explicit arrangement (it does not mention ethnicity), but it was meant to prevent DAHR from losing representation in parliament.

Serbia In the National Assembly, equality and representation of different genders and members of national minorities shall be provided, in accordance with Law. (Const. Art. 100 (2)) The 5% threshold is not applied for the political parties of national minorities. The implicit threshold is 0,4% for the National Assembly, 1,67 for the Assembly of Vojvodina. Parties have to pay a deposit when contesting elections (20% of the sum they receive from the state budget). The deposit will be repaid to mainstream parties if they obtain 1% of the vote, and , and to minority parties if they obtain 0,2% of the vote. Leaders of smaller minority parties expressed their discontent and stated that the regulation will kill political pluralism within the minorities.23

Slovakia No special solution. Slovenia One guaranteed seat for Hungarians and Italians. Members of the autochthonous communities have two votes. (Constitution, Art. 80. (3).) Turkey List PR, 10% electoral threshold at national level; parties have to nominate two candidates for each parliamentary seat in at least half of the

provinces – negative example. Adopted in 1982 with the aim of keeping the militant Kurd nationalists out of parliament. (Art. 33. of the electoral law of 1983, modified in 1995) However, while Kurds succeeded to get elected to parliament by running as independents, the high threshold prevented other small centrist parties from gaining representation. In 2007 there were 20 ethnic Kurd representatives elected, and in 2011 37.24 In 2010 the main opposition party (Republican People’s Party) filed a bill to decrease the threshold to 7%, but it was rejected.25

                                                            

23 http://www.vajma.info/cikk/szerbia/14870/ 24 Daniel Pipes: Turkey’s Ironic Electoral System. http://www.danielpipes.org/blog/2011/06/turkey-ironic-electoral-system 25 Turkey's election threshold to stay at 10 pct in 2011 vote: official. http://english.peopledaily.com.cn/90001/90777/90854/7070046.html 

  54

Table 8. Special electoral arrangements meant to facilitate minority representation at the local level Albania No special solution Bulgaria No special solution Bosnia and Herzegovina

Members of national minorities are entitled to representation in the Municipal Council or Municipal Assembly and the City Council or City Assembly in proportion to the percentage of their share in the total population according to the last census in BiH The number of reserved seats is established through the statute of the municipalities, but “the members of all national minorities which make up more than 3% in the total number of population of the particular constituency according to the last census, shall be guaranteed the minimum of one seat.” Voters must mark only one name on the list of minority candidates, and the candidate(s) with the most votes is (are) elected, for each minority that is entitled to representation in the respective municipality. (this means that a different electoral system is employed, as the general system is PR). Within the process of seat allocation, the minority seats are allocated first, the distribution of the regular seats only being after this is completed. BiH. (Election Law 2008, Art 13.14.) The council of the city of Mostar is elected according to special arrangement, with min. 4 seats, max. 15 seats reserved seats for each of the constituent people, and 1 seat reserved for the “others” (Election Law 2008, Art 19.) Apart from Mostar, the representation of the constituent peoples is not guaranteed in the electoral law at the level of local and cantonal assemblies. Candidates must declare their affiliation with one of the constituent people or with the group of “others” (art. 4.19.)

Croatia 1991: Minorities larger than 8% in a municipality (Serbs) had the right to proportional representation in the council. In areas where their share exceeded 50%, they could establish districts with a special status (never applied, Knin and Glina) (CL of 1991, art. 13., 18.). These articles were suspended in 1995 2002: Minorities larger than 15% of the population of the municipality or 5% of the region, have the right to proportional representation. Those between 5-15% have the right to one representative (if an appropriate proportion of representatives is not elected through “universal suffrage”, the number of councilors will be increased with minority representatives until this proportion is reached) (CL of 2002, art. 20.) Participation is conditioned on presence in the special electoral roll, which is compiled by the authorities.

Czech Rep. No special solution Greece No special solution Hungary If no representative of the minority obtained a seat according to the general provisions of the electoral system:

In municipalities with less than 10,000 inhabitants (where individuals compete and not party lists, and the first X candidates are elected, X being the number of seats in the council), minority candidates get elected if they obtain a number of votes equal to 2/3 of the votes that were still sufficient for the last mainstream candidate to get elected. In municipalities with more than 10,000 inhabitants (where a mixed system is employed) minority candidates (even if they belong to different communities) are allowed to submit a joint list. Seats are allocated according to the d’Hondt formula, and the minority list obtains a seat if the number of its votes equals 2/3 of the smallest quotient that is still sufficient for a seat in the case of mainstream lists. The number of councilors is increased in both cases (Law LXIV/1990, art. 45, 48-50.).

Kosovo No special arrangements for minorities at local level. Participation in local politics is materialized through the Communities Committees,

  55

regulated by the Law on Local Self-government (Law No. 03-L040 of 2008). Also, there shall be a Deputy Mayor for Communities in those municipalities where at least 10% of the citizens belong to non-majority communities. (Law on Local Self-Government art. 61.1.). The appointment and dismissal of the Deputy Mayor for Communities shall be proposed by the Mayor and shall get approval of the majority of the municipal assembly members present and voting and the majority of the municipal assembly members present and voting belonging to the non-majority communities. (art. 61.3.)

Macedonia No special solution Montenegro Law on election of councilors and MPs (2002): the parties of Albanians can submit electoral lists under easier conditions: the lower threshold

of the number of candidates that have to be on the list is only 1/3 of the number of seats in the constituency, as compared to 2/3 in the case of mainstream parties, and 200 supporting signatures suffice instead of 1% of the voters from the constituency that is needed for the mainstream parties (art 44.).

The Law on Minority Rights And Freedoms (art. 24.) changed the system: In assemblies of the local self-government, minorities who make between 1% and 5% of the population of that local self government shall elect one representative, and minorities above 5% shall elect representatives in accordance with the electoral legislation. However, this was declared unconstitutional.

Poland ? Romania Only for the local councils, not for the county councils:

PR electoral system, seats are allocated in two steps (in the second based on the unused votes, a largest remainders system basically). The special arrangement grants priority to the strongest minority organization in the second step of seat allocation (Law 67/2004, art. 96. (4)). Its utility is extremely limited and can be even counter-productive. It only helps a single organization, can even take away seats that would have been obtained had the special proviso not been applied, and it does not apply for the Hungarian minority, which is open discrimination.

Serbia The electoral threshold is not applied for political parties of national minorities at the municipal elections. Slovakia No special solution Slovenia Guaranteed representation in the local self-government for the autochthonous communities in the municipalities that are in the bilingual

geographical area (defined by law) (Art. 64. (3)of Constitution) The precise number of seats in each municipality is determined by the local self-government. Examples: Italians: Piran 3 of 25, Isola 2 of 23, Koper 3 of 32; Hungarians: Moravske Toplice 3 of 17, Hodos at least 1 of 7, Lendava 2 of 22 etc. () Dual vote, special electoral rolls compiled by the self-government of the autochthonous community. Majority electoral system, the candidates with the most votes get elected (Komac 2002: 26).

Turkey No special solution