Introduction
In Serbian legal terminology, the term autonomy (autonomija) is usually used in the context of the territorial autonomy of autonomous provinces. Neither in the Constitution of Serbia nor in other relevant legal acts are national minority councils referred to as “bodies of cultural autonomy” (organi kulturne autonomije) of their respective national minorities, notwithstanding the fact that national minority councils, constituted under and functioning within the Serbian legal order, fit into at least one model of nonterritorial autonomy (NTA). Conceptually speaking, Nimni, Osipov and Smith (Reference Nimni, Osipov and Smith2013, xxiii) observe that NTA “takes a variety of different forms, such as consociationalism and national cultural autonomy, but also encompasses other forms of representation that de-territorialize self-determination.”
According to Brunner and Küpper (Reference Brunner and Küpper2002, 27), “since personal autonomy relates to the individuals belonging to a minority, the subject of autonomy needs to be an institution that comprises and thus organizes its members into a legally sizeable forum.” This forum might legally and legitimately represent minority interests in the form of NGOs, minority private schools, or political parties, as well as in the form of public agencies or organizations performing public authorizations. Structural embeddedness into public law may increase the dependence of minority self-governance on the state in both positive (obligatory financing from the state budget, equality with other public authorities in decision making) and negative (increased influence of the state on national minority autonomy) ways.
In the Serbian case, the original conception of national-cultural autonomy, devised by Serbia’s Hungarian political elite (speaking for the most numerous and most organized minority community in the country) and put forward prior to enactment of the 2009 Law on National Councils of National Minorities (henceforth, Law on National Minority Councils),Footnote 1 stated that autonomy should operate within the Serbian public law regime (Hungarian Coalition 2008, 1), with a special place in the system for a vertical division of powers. This conception, however, was not definitely established in the text of the 2009 law. Although the Law on National Minority Councils was welcomed by the international community as a sign of “good progress in the protection of minorities” in Serbia (European Commission 2010, 16), national minority councils and public agencies alike have voiced serious concerns, not least regarding the unspecified legal status of the councils (Protector of Citizens 2012, 29). The latter has resulted in frequent practical misunderstandings on issues ranging from national minority councils’ employer responsibilities and their employees’ rights, to accountability, to the decision-making position of national minority councils within a multilevel governance structure.
Although the constitutionality of the 2009 law has since been reviewed by the Constitutional Court of Serbia and the law amended by the Parliament of Serbia in regular parliamentary procedure, an appropriate determination of the councils’ legal status has yet to be specified, especially since neither of the relevant legal acts in this field unequivocally say (1) whether cultural autonomy embodied institutionally in national minority councils constitutes a separate, new layer in Serbian governance under public law or (2) in the absence of a positive answer to the previous question, whether national minority councils more closely resemble already existing public authorities or organizations under private law.
Rather than presenting more general (international) political and social scientific perspectives concerning the legal status and nature of NTA, this article focuses on concrete legislative solutions and Constitutional Court practice regarding the de jure status of national minority councils in Serbia. The aim is to outline the current position of minority self-governance within the Serbian legal order and its multilevel governance structure, with a particular focus on issues deriving from the indeterminate legal status of national minority councils that in practice function as special sui generis organizations between NGOs and public authorities, constituted for the entire territory of the country and elected by members of national minorities in order to accomplish their right to self-government (pravo na samoupravu) in culture, education, information, and official use of language and script (Law on National Minority Councils, Article 2, paragraph 2).
Definition of National Minority Councils in the Positive Law of Serbia
National minority councils were first introduced into the Serbian legal order under the 2002 Law on Protection of Rights and Freedoms of National Minorities (henceforth, Law on National Minority Protection) for the purpose of exercising the right of persons belonging to national minorities to self-government in the fields of use of language and script, education, information, and culture (Article 19).Footnote 2 Legal recognition of the collective right to self-government and the establishment of the first national minority councils reflected the continued influence of the Yugoslav heritage in the areas of diversity management and minority protection,Footnote 3 efforts by the majority political elite to maintain high standards of human and minority rights in the course of European integration, and activism by Hungarian minority politicians and political parties seeking a legislative basis through which to realize the autonomy ambitions of their communities (Korhecz Reference Korhecz, Malloy, Osipov and Vizi2015, 72–73).
“The enactment of legal rules grounded on empathy … is the logical first step to take” in order to reduce the impact of ethnic biases (Várady Reference Tibor1997, 54). The 2002 Law on National Minority Protection, a kind of framework law, might be deemed to embody this “logical first step:” while it provides only a very weak basis for the legitimate functioning of national minority councils (Beretka and Székely Reference Beretka2016, 9–10), it undoubtedly laid a foundation for national-cultural autonomy in Serbia. In 2002, 14 national minorities used the law to convene electoral assemblies as a basis for establishing national councils with a four-year mandate.Footnote 4 At that time, there was no special legal act that would regulate the conditions of existence and functioning of national minority councils in detail.
The Law on National Minority Protection contains few provisions and regulates competences lightly and in broad terms. The law defines a national minority council as a legal entity, established according to the principles of voluntarism, electiveness, proportionality, and democracy, and financed from a budget (without specification as to which budget) and donations. It states that the councils shall represent national minorities and decide independently or participate in decision-making procedures regarding cultural autonomy issues. What these competences should cover in practice, however, has not been specified.Footnote 5 The only competence unequivocally stated in the law is that competent bodies (bodies of the state, autonomous provinces, or local municipalities) should ask the councils for their opinions concerning minority education, culture, information, or official use of language; however, the competent body is not obliged to take the opinion into account. It can be concluded that a dualistic approach to the legal status of the councils has been present since their emergence: according to the law, they are elected bodies of minority self-governance, financed from, among other sources, an unspecified budget (one might assume that they occupy a special place in Serbia’s multilevel governance system under public law). However, as regards their (missing) competences or even the voluntarism of their constitution, they could be listed among NGOs.
In 2006, national minority councils became materia constitutionis (constitutional subjects). The 2006 ConstitutionFootnote 6 states that:
Persons belonging to national minorities shall take part in decision making or decide independently on certain issues related to their culture, education, information, and official use of languages and script through their collective rights in compliance with law.
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 compliance with law.
(Article 75)Because the Constitution of Serbia contains only general provisions on national minority councils (in fact, it adopts the same wording as the Law on National Minority Protection), defining the legal character, extent, and content of minority self-governance was left to the discretion of the legislators, which, in accordance with the relevant constitutional norms, adopted the Law on National Minority Councils in 2009. This law specifies the following features of autonomous decision making of national minorities through national minority councils: conducting direct and indirect elections, including maintenance of special voters’ registers, internal organization, detailed competences, funding, and cooperation with public authorities and (where relevant) kin-states. But the Law on National Minority Councils defines the councils in almost the same way as the Constitution (Article 2).
Status of National Minority Councils in the Constitutional Court’s Interpretation
In the absence of any precise determination of national minority councils’ status, an answer might be found in relevant legal documents—including provisions of the Law on National Minority Councils itself—that regulate various elements of NTA in Serbia, such as registration processes, competences, funding, property issues, and relations with other bodies. Serbian Constitutional Court practice may also serve as a guide. In 2014, the Constitutional Court of Serbia adopted a ruling on the Law on National Minority Councils following legal challenges to the law’s constitutionality brought in 2010 and 2011. The challenges arose from dissatisfaction among opposition parties and, interestingly, also some governing party members with what were felt to be excessive competences guaranteed to national minority councils under the law. During the review, the court was forced to deal with issues of legal status in order to determine to what extent national minority councils can participate in decision making, whether they are more than simply consultative bodies, and who, if anyone, is competent to revise their decisions. However, the ruling gives no definite answer as to whether the national minority councils might be fitted into the existing system of organizations functioning under public law, or whether they constitute a completely new layer of governance in Serbia. Interestingly, the latter option has not been considered at all by the Constitutional Court, demonstrating the restrictive nature of its interpretation concerning the framework of NTA and the councils’ position in the Serbian legal order.
According to the court’s Decision No. IUz-882/2010 (48):
a national council of national minority has the character of a special (non-state) body – an organization that constitutes an institutional form through which collective rights (right to self-government) of national minorities shall be exercised in areas of social life regulated by the Constitution and of importance for preservation of national minority identity
(culture, education, information and official use of language).Footnote 7Although far from perfect, the court’s decision offered the first definition put forward since national minority councils were introduced into the Serbian legal order and served to clarify some important points. First, national minority councils have “the character of non-state bodies” (though it is far from unambiguous whether this formulation means that they actually are non-state bodies or are only similar to them). Second, they are organizations. And, third, a national minority council is a kind of institutional form; thus, it is not a civil law partnership, constituted by individuals without a separate legal entity. The first finding, however, raises the question of what the vague term non-state body (nedržavno telo) implies and covers in the Serbian legal order and the reading of the Constitutional Court.Footnote 8 This issue is more complex than it first appears, as in its verdict the court was very reserved in using attributes that could legitimize the public power of the national minority councils.
The term public authorities in a narrower sense refers to those “traditional” state bodies such as the parliament, government, president, public administration, autonomous and independent organizations (such as a national bank or ombudsman), and, according to some opinions, judicial bodies.Footnote 9 In accordance with this theoretical approach, non-state bodies “arose” on the grounds of a vertical separation of powers. In the Serbian case, they are bodies of the autonomous provinces, local municipalities, or decentralized organizations entrusted with carrying out public powers (Milosavljević and Popović Reference Milosavljević and Popović2011, 191–192). However, from another standpoint, the latter category refers to public authorities in a broader sense, as put forward in Serbia’s Law on Free Access to Information of Public Importance.Footnote 10 Furthermore, for the purposes of the latter law, legal entities, established or financed entirely or predominantly by state and non-state bodies (public authorities both in the broader and narrower sense; Article 3) could also be characterized as a kind of public authority.
Although this legal solution concerns only the scope of the Law on Free Access to Information of Public Importance, it does support the idea that de facto existing and widely used categories do not require unequivocal legal definitions in the law; for instance, under the aforementioned law addressing national minority councils, most of these institutions are predominantly financed by the state budget and would thus constitute a public authority. On the other hand, in the case of certain national minority councils (e.g., the Hungarian), donations by the external kin-state exceed financial transfers from Serbia’s state budget. Ergo, they cannot be justified as public authorities according to the logic of this law.
In accordance with the Constitutional Court decision (48), by virtue of the law, national minority councils are non-state organizations that do indeed perform certain public authorizations, because, by their very nature, they cannot have competences (the term competence refers exclusively to the Republic of Serbia, autonomous provinces, and units of local municipalities).Footnote 11 But non-state bodies as such do not necessarily have to be treated like public authorities in the classical sense or organizations under public law in order to perform certain public authorizations. This statement is further affirmed by the constitutional norm which declares that public authorizations may be delegated to enterprises, institutions, organizations, and even to individuals (Constitution of the Republic of Serbia, Article 137, paragraph 2), in other words, to private law actors.
Some opinions hold that “Serbian public law recognizes at the constitutional level the collective rights of national minorities to self-governance. … It could be stated that nonterritorial autonomy in Serbia is deeply entrenched in Serbian public law” (Korhecz Reference Korhecz and Kántor2014, 152). The review of the 2009 law by the Constitutional Court, however, did not serve to clarify public law as regards the true character of national minority councils. Instead, it has raised new questions that may be answered by analyzing the law from a perspective different from that taken by the court.
Issues of Relevance for Legal Determination of National Minority Councils Election
According to Radosavljević (Reference Radosavljević2015, 96), “national minority councils are not obligatory bodies; they are not ‘situated’ in the field of political powers or in structures of political entities in the Republic of Serbia.” Rather, they are elected, directly or indirectly, in accordance with the will of the respective national minority. The Constitution only guarantees to national minorities the opportunity to form their own autonomous bodies (“persons belonging to national minorities may elect their national councils”)—they are not obliged to do this.
In 2014, 20 national minority councils were elected: 17 directly and three through electoral assembly.Footnote 12 However, the Executive Board of the Union of Jewish Municipalities of Serbia, constituted according to a different procedure in accordance with the Statute of the Union of Jewish Municipalities of Serbia,Footnote 13 also functions as a national minority council under the Law on National Minority Councils (Article 134). In comparison with the election results in 2010, when 19 national minority councils (plus the Union of Jewish Municipalities) were elected, Serbia’s Montenegrin community was also able to constitute its own national council in 2014. However, this did not imply the creation of a new ethnic group, as Montenegrins have been registered as a separate ethnic community in Serbia since the 1948 Yugoslav census (Statistical Office 2011, 20).
In the absence of a list of officially recognized national minorities in the country, the question arises as to which communities could be fitted into the abstract definition of national minorities provided by the Law on National Minority Protection (Article 2). However, precisely “because there is no list of the legally recognized minorities, there is no real limitation on the possibility to ‘create’ a national minority group” (Beretka Reference Beretka, Nimni, Osipov and Smith2013, 182). Although the law requires, inter alia, “numerically sufficient representativeness” (Law on National Minority Protection, Article 2, paragraph 1) of a group in order for it to be recognized as national minority, there is no numerical threshold in Serbia either for the “creation” of national minorities or for the establishment of national minority councils. It could be assumed that only those ethnic groups that have managed to elect and constitute their own national minority councils could be classified as national minorities, but this claim might be easily contested: for instance, what happens in the case of those ethnic groups who try to form a national council but fail? Or in cases where the Ministry of Public Administration and Local Municipalities orders the adjournment of the election process (Beretka Reference Beretka2016, 510)? On the other side of the equation, the competent ministry shall reject a request to establish the special voters’ list that constitutes the basis for direct elections to a national minority council if the applicant is “not considered a national minority” in accordance with the Law on National Minority Protection (Law on National Minority Councils, Article 44, paragraph 5). Although this ministerial act might be subject to judicial review, this provision assigns an overwhelmingly dominant role to the public administration in deciding who might represent a group in national-cultural autonomy matters and raises the question of who is entitled to challenge these decisions before the court.Footnote 14
The Law on National Minority Councils (Article 29, paragraph 2) states that “direct elections for members of national council shall be held when 24 hours prior to the call of elections more than 40% of members of national minority according to the last census were enrolled in the special voters’ list of national minorities.” If the conditions for direct elections have not been fulfilled, or if after the dissolution of the national minority councilFootnote 15 new elections are called within 60 days of the dissolution, elections shall be held via electoral assembly (Article 29, paragraph 4). The special voters’ list has almost the same function as the general electoral register: it is an official record, maintained by the ministry, containing data on persons who are eligible to vote. However, it differs from the general electoral register in that voters’ names are added (and removed) solely on the basis of a personal request (Article 47, paragraph 3). Voters also have the possibility to freely “change national affiliation” in between council elections, meaning that the existence of national minority councils depends entirely on the free will of citizens (minority voters). Such a state of affairs is totally unimaginable in the case of the election of the National Assembly, local parliaments, or the president, because the active right for citizens to vote is based on the general electoral register. The Law on the General Electoral List states that a “voter may be registered in the general electoral list only once” (Article 1, paragraph 4) and shall be removed from this roll only in case of death, renouncement of Serbian citizenship, loss of legal capacity, or change of residence (regarding local elections).Footnote 16
On the other hand, the election procedure falls under the jurisdiction of the Republic of Serbia’s Electoral Commission, which is responsible for ensuring the legality of both general and minority council elections. In this regard, national minority councils are treated on an equal footing with public authorities, though only procedurally. Moreover, in any issues of electoral procedure not directly regulated by the Law on National Minority Councils (Article 43), relevant provisions of the Law on Election of Members of the Parliament appropriately apply.
Organization
National minority councils consist of at least 15 but no more than 35 members, depending on the size of the national minority population they represent according to the last census (Law on National Minority Councils, Article 9). The councils each have a president and an executive board whose members are elected from amongst the members of the national minority council. They establish committees for education, culture, information, and official use of language and script. Committees are obligatory bodies of national minority councils prescribed by the Law on National Minority Councils. However, the law contains no provisions dealing with the function of committees or who is eligible to become a member (whether inclusion on the special voters’ list is a precondition). The councils are free to regulate the method of election, powers, and terms of office of these bodies, according to their statutes (Article 6, paragraph 2).
Furthermore, the legislature has failed to regulate issues such as the terms of office for council members, potential incompatibility between membership in a national minority council and performing other public duties, and the status of employees of national minority councils (whether they are subject to private-sector labor laws or deemed to be public servants). If national minority councils are treated like non-state organizations under private law, it is not necessary to deeply discuss these issues. However, “according to the position of the Constitutional Court participation in public affairs exercised through national councils in its nature does represent participation in implementation of law” (Ministry of Public Administration Reference Public Administration and Self-Government2015, 7) and for that reason, membership in a national minority council might conflict with the public functions of deputies at the central, provincial, and local level.
Currently there is no explicit legal obstacle to simultaneously holding public office and being a member of a national minority council. The Law on National Minority Councils excludes only judges, public prosecutors, and Constitutional Court judges from membership (Article 33). However, according to the draft amendments to the law, members of national minority councils would not be able to hold posts in those state, provincial, and local administration authorities that decide on issues of importance regarding the work of the councils. Furthermore, in order to depoliticize minority self-government in Serbia, it is also planned to prohibit membership of persons who have leading positions in political parties and their managing bodies.Footnote 17
Otherwise, these draft amendments are a result of the Action Plan for the Exercise of Rights of National Minorities which Serbia was required to adopt as a specific framework document in order to open negotiations on Chapter 23 of its European Union (EU) integration negotiations.Footnote 18 This article devotes a separate chapter to national minority councils and foresees among planned activities either the adoption of a new Law on National Minority Councils or amendment of the existing one; the particular legal status of national minority councils is, however, left undefined in the Action Plan itself. Regulation of this issue is up to the lawmakers’ discretion, in accordance with the Constitutional Court decision.
Competences (Public Authorizations)
National minority councils are often called “mini parliaments” due to the way they are constituted (votes are cast for electoral lists, proposed by political parties and minority associations, which compete for mandates in free, direct election) and their decision-making functions. The question therefore follows as to whether national minority councils have normative competences in Serbia that are more than regulatory powers (decision making of an administrative nature),Footnote 19 and where their legal acts sit within the hierarchy of legal sources.
National-cultural autonomy of national minorities in Serbia does not confer legislative power. The councils adopt bylaws in accordance with the Constitution and laws. Although general legal acts of national minority councils are not mentioned separately in the Constitution of Serbia, it stipulates that “all bylaws of the Republic of Serbia, general acts of organizations with delegated public authorizations, political parties, trade unions and civic associations and collective agreements must comply with law” (Article 195, paragraph 1, emphasis added). Because the Constitutional Court decision No. IUz-882/2010 has confirmed that national minority councils are organizations that may perform public authorizations delegated to them by law (48), it should be concluded that general legal acts of national minority councils implicitly do have their place within the hierarchy of domestic legal sources.
In some (limited) cases, national minority councils undoubtedly act like genuine institutions of self-governance under public law: they have exclusive competence to make proposals which cannot be amended by higher authorities, independently decide on some issues, and establish institutions of public utility and independently manage them (Korhecz Reference Korhecz2017, 183). Article 10 of the Law on National Minority Councils, for instance, states that councils are independent in the adoption of their statutes, budgets, and financial reports, disposal of their property, determination of their symbols and the symbols of the community they represent, decisions regarding national minority representatives for councils on interethnic relations within local municipalities, and determination and awarding of recognitions. Decisions or general acts of the councils adopted during the exercise of these competences are conditioned only on principles of constitutionality and legality, making the councils similar to local self-government units.Footnote 20 For example, a proposal by the Hungarian National Council on national symbols and holidays of Hungarians in Serbia was affirmed in a state authority decision, without amendment, and published in the Official Gazette of the Republic of Serbia. Footnote 21
A national minority council also determines traditional geographical terms in a national minority language if it is in official use in the territory of the respective local municipality. This decision is then published in the Official Gazette or in the Official List of the Autonomous Province of Vojvodina, depending on where the seat of the relevant council is located, and the names become officially used terms alongside names in Serbian (Law on National Minority Councils, Article 22, paragraph 2). With the aforementioned exceptions, acts adopted by national minority councils are not published in the Official Gazette. However, should a ministry block implementation of a council act on the grounds of conflict with the Constitution or law of Serbia,Footnote 22 this decision comes into force only upon its publication in the Official Gazette (Law on National Minority Councils, Article 122).
Korhecz (Reference Korhecz and Kántor2014, 153) notes that:
During the procedure in the Serbian government practically all the concerned Ministries (for education, culture and information, finances) objected that the national councils would be given too wide powers by the Law and they gave various suggestions trying to reduce the powers and competences of the national councils, in order to make them simple consultative bodies.
Pursuant to the Lund Recommendations on the Effective Participation of National Minorities in Public Life, consultative or advisory bodies do not regulate matters crucial to national minority identity, but “only” provide views on proposed decisions, prepare recommendations or formulate proposals, usually of a nonobligatory nature (Part 2, paragraph D) (OSCE 1999). However, in Serbia, the national minority councils are an institutional form of cultural autonomy (non-territorial arrangement of self-governance) and thus more than “simple consultative bodies.” On the one hand, they do regulate some matters crucial to national minority identity (even if only to a limited degree); on the other hand, their proposals are of an obligatory nature—when a national minority council proposes candidates for the management boards of public cultural and educational institutions relevant to the minority, the council’s proposal should be accepted by the final decision maker (the municipality, autonomous province, or state government) without any change.
This was confirmed by the Administrative Court of Serbia in 17 proceedings initiated by the Hungarian National Council against the city of Senta, when the court decided in favor of the council in 16 educational matters and one cultural matter (HNC 2014, 162). According to the Law on National Minority Councils, the council puts forward its candidates for the managing board of schools where most of the classes are taught in a national minority language (Article 12); it also appoints one member to the managing board of cultural institutions of particular interest for the respective national minority and gives its opinion on the remaining members (Article 17). In 2010, the Hungarian National Council contested the decisions of the city of Senta before the Administrative Court of Serbia, because the municipality did not take into account the proposals of the council made in accordance with its competences guaranteed by the law.Footnote 23
In the Serbian case, “taking part in decision making,” in accordance with the Constitutional Court ruling of 2014 (No. IUz-882/2010, 52), solely means consultation with the body that is competent to make a final decision, so it should be expressed exclusively in the form of opinions and proposals. Although the court did not go into detail about the obligatory (or nonobligatory) nature of the councils’ proposals, it failed to distinguish between different tools of effective participation of national minorities: “instruments which provide for the consultation of minorities,” on the one hand, and “instruments which provide for ‘effective’ influence on decision-making by various forms of veto powers,” on the other (Marko Reference Marko2006, 5). This statement provided a basis to annul the original provision of the Law on National Minority Councils guaranteeing national minority councils the right of consent in appointments of directors of public educational institutions where most of the classes are taught in the relevant national minority language (Article 12, paragraph 1, point 5).
Namely, the Constitutional Court ruling wrongly equates the consent right of national minority councils with independent decision making, even though the Constitution of Serbia (which should provide the legal basis for this annulment) does not limit the sphere of independent decision making or restrict participation rights of the councils to consultation. In this respect, as Tóth (Reference Tóth, Balázs, Tóth and Dobos2017, 235) observes, “with independent decision making, the decision maker usually has the right to invite others to participate but is not obligated to do so. ‘Participation,’ on the other hand, implies a requirement to involve other actors in the decision-making process.” In its restrictive interpretation, the court has reduced the influence of the councils in public institution management and contributed to weakening their position as bodies of minority self-governance.
The national minority councils are usually criticized for their weakness in the sense that they “have no legislative or taxing powers and can, based on the legal text, only ‘suggest,’ ‘propose,’ ‘recommend,’ or ‘give an opinion’ to state organs of all levels” (Purger Reference Purger2012). In most cases, national minority councils adopt individual legal acts, applying rules of the Law on General Administrative Procedure (Law on National Minority Councils, Article 43). Instead of being final decision makers, they therefore operate like “intermediaries” in administrative procedures. For instance, where educational activities are conducted in a national minority language, the National Education Council proposes—with prior consent of the respective national minority council—the use of textbooks and other teaching materials whose content expresses the singularities of the national minority. Although in these cases the council has a kind of veto power, the ultimate decision is made by the Ministry for Education, which finally approves the use of textbooks (Law on National Minority Councils, Article 14, paragraph 1). The level that national minority councils occupy in the multilevel governance structure of Serbia varies from case to case. In the previous example, consent given by the council might be overruled by a public administration body, namely the Ministry, but, depending on the actual situation, the “overruling” authority might be a local parliament or even the managing board of a (public) school, which should forward the final proposal for appointment of school directors.Footnote 24
Participation in the management of public institutions is among the most important competences of national minority councils: they have a privileged role to play in the procedure of appointment of directors or managing board members in educational and cultural public institutions of particular interest for the respective national minority, as illustrated above. Furthermore, national minority councils may initiate the transfer (delegation) of founding rights (rights of establishment) of already existing institutions, established by the state, autonomous province, or local municipality in toto or in parte (Law on National Minority Councils, Article 11, paragraph 3; Article 16, paragraph 3). Because the initiative itself does not bind the public founders to accept it (according to the Constitutional Court’s position in Decision No. IUz-882/2010 [57], the transfer should be based on the free will of both parties involved in the “transaction”), these procedures have recently been placed in abeyance. In the case of already realized “transfers” (those completed before the adoption of the aforementioned Constitutional Court decision), mutual rights and duties in the management of these institutions are subject to a separate agreement between the national minority council as the new co-founder and the original founder itself, in accordance with their freedom of contract.
It is clear that, in accordance with the previously mentioned provisions of the Law on National Minority Councils, national minority councils may become co-founders of public institutions. But whether these public institutions preserve their public-law character after the delegation of founding rights to the councils remains in question. The Law on National Minority Councils and other relevant sectoral laws do not specify further on this issue. Pursuant to the law, the basis for systems of education and “nurturing” educational institutions, depending on the founder, may be held to be public or private. Public educational institutions are established by the state, autonomous provinces, or local municipalities, while private ones are founded by domestic or foreign legal entities and private persons (Article 90). Although the law enumerates national minority councils among the potential founders, it does not definitely designate the character of schools established by them. The legal situation is similar in the field of culture as well. The inclusion of the councils among the founders of public institutions should not alter the public character of the concerned bodies. In accordance with the application of these provisions in practice, both cultural and educational public institutions whose founding rights have been partially delegated to national minority councils have continued to operate without any substantial changes deriving from a transformed structure of the founders. Since this legal solution is relatively new in Serbia, there is no reliable reference information on the possible outcomes of eventual status changes regarding these institutions, such as the claim of national minority councils to enforce property rights in the case of cessation, or in addressing other structural changes.
Property Rights and Financing
The Law on National Minority Councils prescribes that the councils may become users of public property, pursuant to the decision of a competent body, in accordance with the law (Article 5). In this provision, the reliance on the law probably refers to the main sectoral law in this matter, namely, the Law on Public Property.Footnote 25 However, this latter act does not explicitly mention national minority councils among the users of publicly owned assets. Users are otherwise specified as state bodies and organizations, bodies and organizations of autonomous provinces and local municipalities, or public companies established by Serbia, an autonomous province, or a local municipality (and their dependent companies). Of course, other legal entities may also use public property, but only on the basis of a concession agreement (Article 19). According to the Law on Public Property institutions, governmental agencies and other organizations (including the National Bank of Serbia) established by Serbia, an autonomous province, or a local municipality do have the right to use movable and immovable items in public ownership, if those items are transferred into their use (Article 18, paragraph 6). However, national minority councils would hardly fit on this list either: they are not organizations established by any of level of governance, but are elected in free, democratic elections, and constituted in accordance with the will of minority voters.
Furthermore, neither of these laws precisely determine the nature of councils’ ownership (Vukašinović and Janić Reference Vukašinović and Janić2014, 15). The property in ownership of national minority councils (real estate, including their inventory, motor vehicles, computers, and other electronic devices, books, and other articles used by national minority institutions according to terms stated in a loan or similar agreement concluded with the council) appear not to be public, since according to the Law on Public Property, public property comprises only those ownership rights held by the state (Republic of Serbia), autonomous provinces, and local municipalities (Article 2). Yet the councils’ property is also difficult to regard as private, because the degree and role of private capital is diminishing in their case.
According to the Law on National Minority Councils (Article 114), “sources for financing the work of national councils are secured from the budget of the Republic of Serbia, budget of the Autonomous Province of Vojvodina and budget of local self-government units, donations and other revenues.” Although it is not regulated by the law, the primary source of funding should be the state budget.Footnote 26
The councils must adopt an annual financial plan, financial report, and final financial statement (Article 112), similar to any other users of public funds. Under the Law on the Budgetary System of Serbia, national minority councils should be users of public funds in the same way as other legal entities in which more than 50% of total revenues realized during the previous financial year are derived from public funds (Article 2, point 5).Footnote 27 However, some national minority councils receive donations from their kin-states which exceed 50% of their revenues.Footnote 28 This fact implies that some councils do not fall within the scope of the Law on the Budgetary System, especially because the law does not mention national minority councils at all. On the other hand, despite the incompleteness of the legal text and the exceptions to its scope, the councils “are registered in the Treasury as users of public funds, which compose their annual financial statements (balance sheets) according to the Law on Accounting and Auditing and submit them to the Business Registers Agency” (Ministry of Public Administration Reference Public Administration and Self-Government2015, 24, emphasis added). Moreover, the councils are obliged to apply rules of public procurement procedure as users of public funds in cases where they procure goods and services from the private sector (Pavlović-Križanić and Lončar Reference Pavlović-Križanić and Lončar2012, 16).
Although the bookkeeping records of national minority councils are subject to annual audit (Law on National Minority Councils, Article 117, paragraph 4.), they are relatively free to use public funds for any legally acceptable purposes. The law enumerates possible ways of using the acquired funds, but the councils are not bound by this list, because in the relevant provision of the Law on National Minority Councils the legislator has used the conditional tense: “funds acquired in accordance with this Law may be used for financing the expenditures” (Article 113, paragraph 1, emphasis added). This nomotechnical solution may provide a basis (and legal encouragement) for the management of the councils to use the funds for their own personal purposes and benefit, rather than for the needs of the institution or organizations (like kindergartens, schools, theaters, libraries, media houses, NGOs that perform their activities in toto or in parte in a national minority language and/or on behalf of the respective national minority group) and the community itself.Footnote 29 That may jeopardize performance of their core activities (Ministry of Public Administration Reference Public Administration and Self-Government2015, 24–25), such as financing or co-financing programs and projects in the fields of education, information, and culture, or financial support of institutions and organizations maintaining these projects.
Similarities of National Minority Councils with Other Legal Entities: Summary
It is hard to collect and sum up all the issues concerning the legal character of national minority councils into one article, and even harder to provide clear-cut answers to questions surrounding their status.
The possibility for direct elections, detailed rules on election procedure (including the role of the Republic’s Electoral Commission), publication of election results in the Official Gazette, and legally grounded and formal participation in management of public institutions all definitely emphasize the public-law character of national minority councils and suggest that they should be treated as a separate level within Serbia’s multilevel governance system (the level of minority self-governance). Furthermore, according to the Constitutional Court ruling of 2014, national minority councils do participate in public affairs and, due to their role in the implementation of law, membership in a council does conflict with certain public functions, such as being an MP at central, provincial, and even local levels.
Regarding their practical role, the councils should apply rules of general administrative procedure during the adoption of individual legal acts; their proposals are compulsory for final decision makers in accordance with court practice in Serbia and they should be mandatorily consulted in nearly every question concerning minority education, culture, and information, as well as the official use of language and script. This makes them “more” than “ordinary” NGOs acting in the field of minority rights.
In accordance with the Law on National Minority Councils, national minority councils might also become co-founders of public institutions (educational and cultural) through full or partial delegation of founding rights to them from the state, autonomous province, or local municipality. In this case, the work of these institutions and organizations should continue to be financed from the same sources and on the basis of the same normative provisions that were obtained prior to the transfer of co-founding rights (Article 116). The councils are users of public funds; they receive budgetary transfers from the central, provincial, and local budgets and may use movable and immovable public property as well in accordance with law.
On the other hand, national minority councils are not obligatory bodies within the Serbian legal order, and the unregulated status of the special voters’ register and unlimited opportunity for voters to change their national affiliation seriously affect their legitimacy. The Ministry for Public Administration and Local Municipalities has a huge and important role to play in ensuring the proper functioning of these bodies. Elections to national minority councils are called by the minister, who may decide whether a group can be considered a national minority in order to participate in elections. The minister may also dissolve the council in cases listed by the Law on National Minority Councils (Article 35). Furthermore, the same ministry keeps a record of national minority councils, and the councils shall acquire legal personality only once they have been registered in this way. A similar approach is used in the cases of NGOs and political parties.Footnote 30
The councils are free to determine internal employment policy; in lieu of specific legal provisions, they act like private sector employers. This freedom allows them to determine hiring conditions and salaries. Yet although the status of councils’ employees is not subject to the Law on Public Servants, rules addressing the decrease of net income of persons in the public sector have been applied to them. In the case of concluding a labor contract with the council, a council employee who is the holder of a function within the council (the president or a member of the executive board) may seek a stay of his or her working status at another employer. This presumes the public authority status of national minority councils, even if it is not explicitly mentioned in the law.Footnote 31
Conclusions and Suggestions
According to the Action Plan for the Exercise of Rights of National Minorities (9.4), the amendments on the Law on National Minority Councils should ensure that the councils “fully contribute to creating an integrated society”—something that would be possible only by clearly determining the role and legal position of national minority councils and their members, providing a clear definition of their powers, and strengthening their institutional position.
Since this article was submitted, the Law on National Minority Councils was amended by the Serbian parliament. The amendments published in the Official Gazette of the Republic of Serbia No. 47/2018 from June 20, 2018, touch, among other things, on some of the issues discussed and analyzed herein, such as the legal definition of the councils, their competences, and the status of the councils’ members. Due to the amendments, the numbering of the articles and paragraphs in the new version of the law has been changed in some of the cases as compared to its previous version. In accordance with the amendments,
a national minority council is an organization to whom certain public authorizations have been delegated by law to participate in decision making or decide independently about certain issues in the field of culture, education, information and official use of language and script in order to enforce collective rights of national minorities on self-governance in these fields.
(Art. 1a)By this definition the legislator has not contributed to clarification of the uncertainties concerning the undetermined legal status of national minority councils in the Serbian legal order; as such, the new legal situation arising from the amendments to the Law on National Minority Councils does not fundamentally change the main focus and findings of this article.
The legislature needs to do more than simply define national minority councils on the basis of the same wording used by the court. All of the concerns briefly touched upon in this article should be taken into consideration: the character of property and membership in the councils, employment policy and status of employees, budgetary discipline, and issues regarding misuse of legal imperfections or loopholes for private gain.
The right of national minority councils to “self-protection” against state bodies, bodies of the autonomous provinces, local municipalities, and other organizations performing public authorizations should also be guaranteed by law, something which necessarily entails the parallel determination of councils’ place within the state governance system. Of course, the legislature is “bound” by the Constitutional Court decision No. IUz-882/2010 (52) regarding the scope of competences (public authorizations) of national minority councils and it should pay special attention to the court’s statement that “proportionality of the determined legitimate goal … should not be constituted in such a way … to query equality of every citizen and assign too big and dominant role, conditionally speaking, to ‘one side’ in mutual relations.” Yet, having said this, there is no barrier to increasing the influence of the councils on decision-making procedures or to harmonizing sectoral laws with the Law on National Minority Councils. Indeed, interpreting currently equivocal legal provisions in favor of the councils and national-cultural autonomy in general would enable national minority councils to function as genuine minority self-governments even without an exact definition of their legal nature and status.
Given the difficulty of equating national minority councils with any other legal entity currently existing under either private or public law in Serbia, and especially considering the dilemmas discussed above in this article, the best solution would be to recognize minority self-governance, institutionalized in the form of national minority councils, as a separate level in the country’s multilevel governance structure and grant them a position as local self-government units (Korhecz Reference Korhecz2016, 194; Jovanović Reference Jovanović2013, 264–265). However, trends in the Serbian legislation suggest that the current unpredictable approach to the councils’ legal status as sui generis organizations somewhere between NGOs and public authorities is likely to continue.
Disclosure.
Author has nothing to disclose.
