IV        Implementation of the articles of the Convention

IV.II

Article 3

1. Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.

2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.

Article 4

1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.

2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.

3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.

National legislation (pursuant to the articles 3 & 4 of the FCNM):

The Constitution of the Republic of Croatia

I Historical foundations

…the Republic of Croatia is established as the national state of the Croatian nation and the state of the members of autochthonous national minorities: Serbs, Czechs, Slovaks, Italians, Hungarians, Jews, Germans, Austrians, Ukrainians and Ruthenians and the others who are citizens, and who are guaranteed equality with citizens of Croatian nationality and the realisation of national rights in accordance with the democratic norms of the United Nations Organisation and the countries of the free world.

Article 3

Freedom, equal rights, national equality and equality of genders, love of peace, social justice, respect for human rights, inviolability of ownership, conservation of nature and the environment, the rule of law, and a democratic multiparty system are the highest values of the constitutional order of the Republic of Croatia and the ground for interpretation of the Constitution.

Article 14

(1) Everyone in the Republic of Croatia shall enjoy rights and freedoms, regardless of race, colour, gender, language, religion, political or other belief, national or social origin, property, birth, education, social status or other characteristics.

(2) All shall be equal before the law.

Article 15

(1) Members of all national minorities shall have equal rights in the Republic of Croatia.

(2) Equality and protection of the rights of national minorities shall be regulated by the Constitutional Act which shall be adopted in the procedure provided for the organic law.

(3) Besides the general electoral right, the special right of the members of national minorities to elect their representatives into the Croatian Parliament may be provided by law.

(4) Members of all national minorities shall be guaranteed freedom to express their nationality, freedom to use their language and script, and cultural autonomy.

Article 26

All citizens of the Republic of Croatia and aliens shall be equal before the courts, government bodies and other bodies vested with pubic authority.

Article 39

Any call for or incitement to war, or resort to violence, national, racial or religious hatred, or any form of intolerance shall be prohibited and punishable by law.

Article 44

Every citizen of the Republic of Croatia shall have the right, under equal conditions, to take part in the conduct of public affairs, and to have access to public services.

Constitutional Law on the Rights of National Minorities

Article 4 paragraph 1, 2, & 4

(1) Every citizen [drzavljanin] of the Republic of Croatia shall have: the right to express freely that he is a member of a national minority in the Republic of Croatia; the right to exercise, alone or together with other members of that national minority or with members of other national minorities, the rights and freedoms stipulated by this Constitutional Law and other minority rights and freedoms stipulated by special laws.

(2) Members of national minorities shall exercise the rights and freedoms stipulated by the Constitution of the Republic of Croatia, as well as the rights and freedoms stipulated by this Constitutional Law and special laws, in the equal manner as other citizens [gradjani] of the Republic of Croatia.

(4) Any discrimination based on affiliation to a national minority shall be forbidden. Members of national minorities shall be guaranteed equality before the law and equal legal protection.

Article 5

A national minority in the sense of this Constitutional Law shall be a group of Croatian citizens [drzavljani], whose members have been traditionally settled in the territory of the Republic of Croatia, and who have ethnic, linguistic, cultural and/or religious characteristics which are different than those of other citizens [gradjani], and who are guided by the wish for the preservation of those characteristics.

Article 7

The Republic of Croatia shall ensure the exercise of special rights and freedoms of members of national minorities which they enjoy individually or together with other persons belonging to the same national minority, and together with members of other national minorities when it is stipulated by this Constitutional Law or a special law, in particular:

1. the use of their language and script, privately and in public use and in official use;

2. education in the language and script which they use;

3. the use of their signs and symbols;

4. cultural autonomy by way of preservation, development and expression of one’s own culture and the preservation and protection of one’s cultural assets and tradition;

5. the right to profess one’s religion and to establish religious communities together with other members of that religion;

6. access to the media and the performance of activities of public information (receiving and forwarding information) in the language and script which they use;

7. self-organising and association for the purpose of exercising mutual interests;

8. representation in the representative bodies at the state and local level and in administrative and judicial bodies;

9. participation of members of national minorities in the public life and in management of local affairs through the councils and through representatives of national minorities;

10. protection from any activity which endangers or may endanger their existence, the exercise of rights and freedoms.

Article 9

(1) Members of national minorities shall have the right to use their surname and name in a language which they use, and to its official recognition for them and their children through the entry into registers of births, marriages and deaths and other official documents, in compliance with the regulations of the Republic of Croatia.

(2) Members of national minorities shall have the right to have the form for the personal identification card printed and filled out also in the language and script which they use.

The Law on Protection of Personal Data

Article 1.

(1) Protection of personal data and supervision over collection, processing and use of any personal data in the Republic of Croatia shall be regulated by this Law.

(2) Protection of personal data is intended to protect privacy and other human rights and fundamental freedoms while collecting, processing or using any personal data

(3) Any person regardless of his or her citizenship and permanent residence, race, colour, sex, language, religion, political or any other belief, ethnic or social background, property, birth, education, social status or any other characteristic shall be provided with protection of personal data in the Republic of Croatia.

Article 8 paragraph 1

Collecting or further processing of any personal data relating to racial or ethnic background, political view, religious or any other belief, union membership, health and sexual orientation as well as any data relating to criminal or petty offence proceedings shall be prohibited.

Law on Amendments to the Labour Act  ( NN. 114/03)

Article 1.

The subtitle above the article 2 of the Labour Act (the Official Gazette, “Narodne novine”, no. 38/95, 54/95, 65/95, 17/01 and 82/01) shall be changed to:

“prohibition of discrimination”

Article 2.

(1) Direct and indirect discrimination of the job seeker as well as employee on the basis of race, colour of skin, sex, marital status, family obligations, age, language, religion, political or other affiliation, national or social background, financial status, birth, social status, membership or non-membership in a political party or trade union, and physical or psychological difficulties shall be prohibited.

(2) Direct discrimination, according to this Law, concerns all action relating to any ground described in paragraph 1 of this Law by which the person mentioned in paragraph 1 of this article is, was or could have been placed in a less favourable position compared to other persons in a comparable situation. 

(3) Indirect discrimination against the person mentioned in paragraph 1 of this article, according to this Law, exists in cases of neutral provision, criteria or practice that does or could place the person in less favourable position compared to other persons for his or her characteristics, status, commitments, believes, or the system of values that are the base for the prohibition of discrimination mentioned in the paragraph 1 of this article.

(4) Discrimination relating to paragraph 1 of this article shall be prohibited in reference to:

1. employment criteria, including selection criteria for the candidates selected for certain jobs, in any field of work and at all professional hierarchy levels,

2. promotion at work,

3. approach to all kinds and levels of professional training, additional training and retraining,

4. employment and working conditions and all labour rights relating to employment, including equality of salaries,

5. termination of the employment contract,

6. rights of the members and membership within employee or employer associations or any other professional organisation, including benefits of that same membership.   

(5) Provisions of the collective contract, company labour by-laws and employment contracts discriminating on any basis described in paragraph 1 of this article shall be annulated.

(6) Pursuant to the Article 187.a of this Law, regulation of employee obligations to pay solidarity contributions shall not be considered discrimination on the basis of non-membership in the Union from paragraph 1 of this Article «.

Comments on the implementation of the Article 3 of the FCNM:

- The Constitution of the Republic of Croatia, in its Historical Foundations continues to list ten “native minorities” while other minorities come under “other”. Constitutional Law on the Rights of National Minorities widely defines the concept of national minority in the Article 5. This article does not specify on any particular minority and makes no difference among them. The definition of national minority includes only persons belonging to minority communities that are, at the same time, the citizens of the Republic of Croatia. The census data related to the ethnicity includes the results for 22 national minorities and additional categories, “others” for those who did not specify on their ethnicity and “regional affiliation”. The census results also show that 19.677 persons declared themselves as Muslims.

- Current legislation of the Republic of Croatia guarantees the right to declare the ethnicity to all its citizens and regulates that right as a strictly personal right. The Law on Protection of Personal Data introduces personal data protection and supervision on collecting, dealing with and use of personal data in the Republic of Croatia.

- The 2001 census results showed the structure of the population related to the ethnicity but also caused reactions of the representatives of certain national minorities (see under III.a National/Ethnic structure of the population). Besides complaints and requests for revision of the census for its failure to register about 130.000 exiled Serbs who are currently living in Serbia and Montenegro and Bosnia and Herzegovina for whom the Law on Census, Registration of Households and Apartments passed in 2000[1] provides the exercise of this right, Milorad Pupovac, the president of Serbian National Council believed that many Serbs failed to declare themselves as such for the fear and existing animosities.[2] The Joint Council of Municipalities from Vukovar, emphasise that the Serbian community continues to suspect the accuracy of the 2001 census results, published in 2002 deeming them a part of the political games of the ruling structures.[3] The estimated number of Roma in the Republic of Croatia is 30.000 – 40.000[4] but the Alliance of the Roma Associations in Croatia estimates that the number of persons belonging to Roma minority is about 30.000 – 50.000[5], which is many more comparing 9.463 persons registered by the official census. While interpreting the census results, the authorities failed to consider that some persons belonging to minorities did not declare their ethnicity for the fear of discrimination. ''This is particularly true for the Roma but in conflict areas people who may have a choice of identity (e.g. due to intermarriage) will often opt to be classified as a member of majority community, of some regional or “less problematic” identity”.[6] The intention to respect the individual identity choice was not fully respected since 19.677 persons who declared themselves as Muslims were not included into the official statistical data but were explained under the remarks section. This situation can, partially, be explained by the fact that Bosniaks, as an ethnic category, were given possibility to declare themselves as such after the international recognition of Bosnia and Herzegovina and that they were registered as ethnic Muslims by earlier censuses. Therefore, some people who used to declare themselves as Muslims were registered as Bosniaks by the 2001 census while some continued to declare themselves as they used to do before, as Muslims. According to Šemso Tankovic, the member of the parliament representing Bosniak national minority together with Albanian, Slovenian, Macedonian, and Montenegrin minorities, the priority of the Bosniak national minority, at this particular moment is to confirm and firm their national identity at all levels from the constitutional to the administrative one.[7]

Comments on the implementation of the Article 4 of the FCNM:

- The Constitution of the Republic of Croatia and the Constitutional Law on the Rights of National Minorities guarantee equality before the law and equal legal protection to all citizens belonging to national minorities and prohibit any discrimination on the basis of the ethnicity.

The Government of the Republic of Croatia endeavoured to change certain discriminatory provisions within its current legislation and, in 2003, adopted new Law on Amendments to the Labour Act. Pursuant to this Law, any discrimination in employment and in exercise of the labour rights shall be prohibited. More significant steps forward were made in relation to the elimination of discrimination, in, for example, exercising the right to reconstruction, but in practice, discrimination in exercising a wide spectrum of the rights (see under Item III.d.) continued. All that was done so far in real elimination of past discriminatory practices (1991 – 1995 war and the period that followed) was insufficient and certain laws and sub-legal acts, such as implementation regulations, continue to include discriminatory regulations such as , for example, the Book of Rules on the Housing Priorities in the Areas of Special State Concern (see under Item IV.XIV). The Government of the Republic of Croatia adopted National Program on Roma in October 2003 aiming to eliminate discrimination of that minority and to fully integrate the Roma into Croatian society. The implementation of the program and the results remain to be seen. Research by Minority Rights Group International, conducted in March 2004 shows that Roma associations have different views related to the implementation of the provisions of National Program for Roma. Associations which were involved in development of the National Program are, in most cases, satisfied with the progress vis-à-vis its implementation while others share no such opinion and indeed, show certain pessimism. Some associations emphasise on the existence of the racism speech and assimilation in articles 8 and 9, related to the upbringing and education, and health protection, of the National Program.[8] On the discrimination of Roma children in schools and segregation issues see Item IV.X.

- Discrimination in employment of minorities, Serbs and Roma in particular, continues to be a serious problem. Because of extremely difficult situation in the economy of the country and relatively high unemployment rate, especially in former conflict areas, it is, sometimes, hard to prove discrimination. All the more so considering also the high unemployment rate among the majority, ethnic Croat population. In some opinions, the high unemployment rate in former conflict areas, for example in the wider Vukovar area (50-80%), significantly contributed to interethnic tensions.[9] According to the report by Human Rights Watch, a number of returnees told, however, that they were explicitly told that they could not get a job because of their ethnicity.[10] The same report mentions individual examples of discrimination in employment against Serb returnees. The report also says that in most of return areas, in practice, ethnic Serbs were not employed within the health centres, schools, kindergartens, postal offices, courts, power-supply companies, custom services or the local administration.[11] Around 2.000 ethnic Serbs returned to wider Korenica and Plitvice areas and only a few of them manage to get jobs there.[12] There are no Serbs employed in the police and the court in Vojnic , although Serb returnees outnumbered local Croats and Croat settlers by 3,500 to 2,500.[13] “Judicial vacancies have remained unfilled in some instances in which Serbs were the only candidates considered by the State Judicial Council (for example in Dvor, Gvozd, Vojnic and Hrvatska Kostajnica)”[14], and in similar cases (where the only candidates for the jobs were ethnic Serbs), the employers decided to annul the announcements rather than hire the competent Serb applicants. Several cases registered that the priority in employment was given to ethnic Croats over Serbs even in case Croat candidates failed to meet certain criteria specified by the job announcement or were lass qualified than the Serb candidates.[15] Governmental statistics show that in 2003, one year upon the adoption of the Constitutional Law on the Rights of National Minorities which guaranties proportional minority representation in state administration and judiciary (for details on proportional representation of ethnic minorities see under IV.XII.), 66 judges were hired, 65 of them were ethnic Croats (there were no ethnic Serbs among them), and 23 State Attorneys, all ethnic Croats.[16]

- Proportional representation of Serbs, including the representation in high positions in local health services, police and judiciary in Eastern Slavonia area (former UNTAES area) is guaranteed by the Letter of Intent of Croatian Government to the UN Security Council on completing the peaceful integration from 1997, regardless of possible future administrative regulations.[17] It is clear that the Letter of Intent guarantees wider spectrum of rights than the Constitutional Law on the Protection of the Rights of National Minorities since the Law does not guarantee the proportional representation in public institutions such as the hospitals, schools, police, etc.  In our opinion, this is one of the main weaknesses of the Constitutional Law. The Ministry of Interior has fulfilled its obligation from the Letter of Intent on proportional representation of Serbs in the police.[18] However, certain local non-governmental organisations emphasised discrimination against persons belonging to minorities in employment but also in holding their current positions on the basis of the taking-over agreement[19] in the sense of proportional representation. Since the fact of war is not recognised as legally relevant for reintegrated persons, many of former employees from the reintegrated area, compared to returnee population (mostly ethnic Croats), are facing discrimination in the exercise of the acquired rights.[20] In his letter to the Prime Minister, Mr. Ivo Sanader and the president of Croatian Parliament, Mr. Vladimir Seks, the Association of Borovo Workers who remained in former UNTAES area at the time of the conflict, mostly ethnic Serbs, say that “these workers were discriminated in exercise of their rights to work and employment, wages and in exercising the right to the shares within the privatisation process”. Workers of several other, once public-owned, companies face similar problems and number of court procedures on realising the exercise of different rights are in process.  

- For the right of national minorities to representation within representative bodies on national and local levels and in administrative and judicial bodies, as well as the participation of persons belonging to minorities in public life and management of local affairs via councils and representatives of National minorities, see under Item IV.XIII.