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Participation in Decision-Making and Law-Making

Commentary on the Effective Participation of Persons belonging to National Minorities in Cultural, Social and Economic Life and in Public Affairs, 27 February 2008 [Advisory Committee FCNM]

Document no ACFC/31DOC(2008)001

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3) PARTICIPATION IN PUBLIC AFFAIRS

69. The Advisory Committee, while considering whether persons belonging to national minorities effectively participate in public affairs, has examined their overall involvement in decision-making. It has not only examined their representation and participation in various mechanisms, but also devoted particular attention to the effectiveness of their influence on decision-making processes. The different decisionmaking arrangements which exist in the State Parties should take into account the composition of society and reflect its diversity.

70. Effective participation includes a wide range of possible forms, such as an exchange of information, dialogue, informal and formal consultation and participation in decision-making. It can be ensured through different channels, ranging from consultative mechanisms to special parliamentary arrangements. Particular attention should be paid to equal participation of women and men belonging to national minorities.

71. Whatever the mechanisms chosen, persons belonging to national minorities should be given real opportunities to influence decision-making, the outcome of which should adequately reflect their needs. According to the Advisory Committee, mere consultation is, as such, not a sufficient means to be considered effective participation.

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a) Participation of persons belonging to national minorities in legislative process

i. Political parties

75. The right of every person belonging to a national minority to freedom of peaceful assembly and freedom of association as stipulated in Article 7 of the Framework Convention implies, inter alia, the right to form political parties and/or organisations. Legislation which prohibits the formation of political parties on an ethnic or religious basis can lead to undue limitations of this right. Any limitation should, in any case, be in line with the norms of international law and the principles embedded in the European Convention on Human Rights ...

76. The registration of national minority organisations and political parties may be subject to certain conditions. Such requirements should, however, be designed so that they do not limit, unreasonably or in a disproportionate manner, the possibilities for persons belonging to national minorities to form such organisations and thereby restrict their opportunities to participate in political life and the decision-making process. This concerns, inter alia, numerical and geographical conditions for registration ...

79. In countries where prominent minority parties exist, it is important to ensure that other minority parties or political organisations wishing to represent the interests of other persons belonging to the same national minorities have opportunities to do so.

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vii. Citizenship requirements

100. Citizenship is an important element that can substantially influence participation in public affairs. Experience has shown that citizenship requirements can hamper effective participation in certain fields of public affairs. When examining the personal scope of application of the Framework Convention, the Advisory Committee has, in a number of cases, called for flexibility and inclusiveness in the approach taken by the State Parties ... Moreover, the Advisory Committee has consistently emphasised the fact that the application of the Framework Convention to non-citizens belonging to national minorities can enhance a spirit of tolerance, intercultural dialogue and co-operation.

101. ... Citizenship should not be a condition for persons belonging to national minorities to join trade unions and other civil society associations. This is particularly important in State Parties where citizenship policy has been in a state of flux.

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b) Participation of persons belonging to national minorities through specialised governmental bodies

103. The establishment of specialised governmental structures dealing with national minorities within national, regional or local authorities can help improve minority participation in public affairs. Where such bodies have not been set up, State Parties are encouraged to establish them or, at a minimum, to identify contact points for minority issues within public services.

104. Specialised bodies should not substitute but complement national minorities’ consultative mechanisms. Their effectiveness depends to a great extent on the level of coordination and complementarity with consultation bodies. The recruitment and retention of staff with national minority background and/or minority language skills in these specialised bodies can contribute to their effective functioning.

105. Specialised governmental bodies should not substitute the work of mainstream government institutions on minority-related issues. The main role of specialised bodies is to initiate and coordinate governmental policy in the field of minority protection. They are therefore seen as important channels of communication between the Government and minorities. It is essential that the relevant governmental institutions be aware of the needs of persons belonging to national minorities and that minority issues be mainstreamed in the work of other governmental services ...

c) Participation of persons belonging to national minorities through consultative mechanisms

i. Setting-up consultative mechanisms

106. Consultation of persons belonging to national minorities is particularly important in countries where there are no arrangements to enable participation of persons belonging to national minorities in parliament and other elected bodies. Consultation alone does not, however, constitute a sufficient mechanism for ensuring effective participation of persons belonging to national minorities.

107. It is important to ensure that consultative bodies have a clear legal status, that the obligation to consult them is entrenched in law and that their involvement in decisionmaking processes is of a regular and permanent nature. While there are various models as regards the functioning of such structures ... it is important to ensure that relevant regulations are detailed enough to provide for efficient and consistent consultation. 

108. The authorities may also organise joint consultations with representatives of different national minorities and/or enter into a direct dialogue with representatives of individual national minorities. While the former is an important method to address common issues and to enhance dialogue between various national minorities, the latter is appropriate, for example, to consider those issues which concern only a specific national minority. The Advisory Committee has noted that, in some cases, consultation with umbrella bodies of national minorities only is not sufficient to adequately take into account the concerns of individual national minorities.

ii. Representativeness of consultative mechanisms

109. Appropriate attention should be paid to the ‘inclusiveness’ and ‘representativeness’ of consultative bodies. This implies, inter alia, that where there are mixed bodies, the proportion between minority representatives and officials should not result in the latter dominating the work. All national minorities should be represented, including numerically smaller national minorities ...

110. Representativeness of consultative bodies also depends on minority organisations and their appointment procedures. Moreover, when specific consultative mechanisms in respect of an individual national minority are set up, due regard should be paid to the diversity within this group ...

111. For the credibility of consultative bodies, it is essential that their appointment procedures be transparent and designed in close consultation with national minorities. State Parties are encouraged periodically to review the appointment procedures to make sure that the bodies concerned are as inclusive as possible, maintain their independence from governments, and genuinely represent a wide range of views amongst persons belonging to national minorities. It is important to ensure that women belonging to national minorities are involved in consultative bodies.

112. Consultation should not be limited to the concerns of persons belonging to national minorities who live in areas with traditional or substantial minority population. This also implies that the agenda should not only reflect the concerns of the numerically largest minorities.

iii. Types of consultative mechanisms

113. While ad hoc consultations can be useful to address a particular issue, State Parties are encouraged to establish regular consultative mechanisms and bodies with a view to institutionalising dialogue between the governments and minority representatives ...

114. Consultative mechanisms with persons belonging to national minorities should not exclude, where appropriate, parallel consultation with independent experts. The Advisory Committee has noted in some cases that expertise is a useful complement to the consultation procedure.

115. In addition to national structures, regional and local consultative mechanisms have, in some circumstances, proved to be a useful additional channel for the participation of persons belonging to national minorities in decision-making, especially in areas of competencies where decision-making powers have been decentralised. In such situations, it is important that local and regional authorities regularly involve these consultative bodies in their decision-making processes, when dealing with minority issues ...

iv. Role and functioning of consultative bodies

116. It is essential that the legal status, role, duties, membership and institutional position of consultative bodies be clearly defined. This includes the scope of consultation, structures, rules governing appointment of their members and working methods. It is important to ensure that consultative bodies have a legal personality, as a lack of this may undermine their effectiveness and their capacity to fulfil effectively their mission. Working methods of consultative bodies should be transparent and their rules of procedures clearly defined. Publicity of the work of the consultative bodies should be promoted so as to enhance transparency.

117. State Parties are invited to take measures to enable persons belonging to national minorities to be aware of the existence, mandate and activities of such consultative bodies. In addition, it is important that the meetings of these bodies are convened frequently and on a regular basis ...

118. Consultative bodies need to be duly consulted in the process of drafting new legislation, including constitutional reforms that directly or indirectly affect minorities. State Parties should also consult persons belonging to national minorities and their 

119. Adequate resources should be made available to support the effective functioning of consultative mechanisms ...

g) Availability of financial resources for minority-related activities

138. Availability of financial resources for bodies involved in minority protection is essential to enable them to carry out their mission. This implies the availability of funding for consultative mechanisms, cultural autonomy arrangements and government bodies involved in minority issues at all levels.

139. The resources allocated should be proportionate to the responsibilities of the bodies in question. Funding and budgetary arrangements for minority autonomy bodies should be designed so that they do not undermine their operational autonomy ...

Consultative bodies also need to be provided with adequate resources, including staff and financial means, to support their effective functioning. Resources are also needed to enable them to communicate effectively with their constituencies and to monitor and evaluate the implementation of legislation and policies which affect them.

i) Participation of persons belonging to national minorities in the monitoring of the Framework Convention

142. Participation of persons belonging to national minorities in the monitoring process of the Framework Convention is crucial for achieving a balanced and quality outcome. When preparing State Reports or other written communications required under the Framework Convention or other international treaties pertaining to minority issues, State Parties should respect the principles enshrined in Article 15 of the Framework Convention and consult persons belonging to national minorities. In this and other contexts, it is important that interlocutors, such as consultative bodies, be not perceived as exclusive interlocutors but that State authorities also include other actors, especially minority or/and non-governmental organisations in the consultation process. The Advisory Committee welcomes the inclusion of comments made by minorities and civil society in State Reports, as well as in the Comments on the Advisory Committee’s Opinions.

143. The Advisory Committee also welcomes alternative reports prepared by nongovernmental actors. They often constitute a valuable additional source of information. They are also an evidence of a desire of non-governmental actors to engage in a constructive dialogue based on international human rights norms.

144. It is essential that transparency of the consultation process be ensured and that State Parties make the full text of the Opinions of the Advisory Committee and the Resolutions of the Council of Europe Committee of Ministers available to persons belonging to national minorities and to the public at large as early and as widely as possible. The authorities should ensure that these, and other monitoring documents, including the State Report, are made available in local languages so that minorities can take part in the process in an inclusive manner.

145. The Advisory Committee has encouraged State Parties to set up a system of regular consultation providing an opportunity for minority representatives to discuss their concerns between the monitoring cycles of the Framework Convention, be it follow-up seminars or other modalities. This dialogue is crucial to respond to specific concerns and also to build trust and confidence in the implementation of the Framework Convention. It creates a climate of tolerance and dialogue which enables diversity to be a source and a factor, not of division, but of enrichment for each society.

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APPENDIX

RELEVANCE OF OTHER ARTICLES OF THE FRAMEWORK CONVENTION FOR THE INTERPRETATION OF ARTICLE 15

Article 3 ...

152. In its Article 3, the Framework Convention stipulates the right of persons belonging to national minorities to freely choose to be treated or not to be treated as such. Inclusion in the personal scope of application of the Framework Convention is important for the enjoyment of the minority rights contained in the Framework Convention, including the right to effective participation in all areas of life. In its examination of the personal scope of application of the Framework Convention, the Advisory Committee has consistently recommended that State Parties avoid arbitrary or unjustified exclusions from the protection of the Framework Convention and that they opt for an ‘inclusive’ approach. On many occasions, it has invited State Parties to review and consider extending the personal scope of application of the Framework Convention as circumstances have changed over time.

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Article 7 ...

156. State Parties are requested to ensure that the right of every person belonging to a national minority to freedom of peaceful assembly and of association, as embedded in Article 7 of the Framework Convention, is respected. This includes the right to form minority associations and political parties, which are important forms of participation. State Parties should refrain from any unjustified interference with the exercise of this right, and create conditions allowing minority associations and parties to acquire and enjoy legal personality, and to operate freely. The right to freedom of assembly and association is a prerequisite to the enjoyment of the provisions of Article 15, even though it is not sufficient in itself to ensure effective participation.

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Article 17 and Article 18

166. Article 17 (1) of the Framework Convention stipulates that State Parties shall not prevent persons belonging to national minorities from establishing and maintaining free and peaceful contacts across frontiers, in particular with persons belonging to the same national minorities. Article 17 (2) aims to ensure that persons belonging to national minorities can make an active contribution to civil society, at the national and international levels.

167. Like Article 17, Article 18 (2) encourages a proactive approach to transfrontier co-operation, but between States. Cross-border co-operation can significantly contribute to developing participation of persons belonging to national minorities in public affairs and in social, economic and cultural life.

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