Ministers' Deputies / Rapporteur documents
Rapporteur on Local and Regional Authorities
RAP-LOC(2002)1 1 March 2002
(See also RAP-LOC(2002)1 Corrigendum and Corrigendum 2)
Report on the self-government regions in the Slovak Republic
1. The monitoring Report on the situation of local and regional democracy in the Slovak Republic was presented to the 8th plenary session of the Congress of Local and Regional Authorities of Europe (CLRAE) by the Congress’s rapporteurs on 30 May 2001. The part of the Report related to regional authorities was based on the draft law concerning local autonomy and the higher territorial units of the Slovak Republic.
At that same session the Congress adopted Recommendation 88 (2001) on local and regional democracy in the Slovak Republic, based on the monitoring report mentioned above. It asked the government of the Slovak Republic - inter alia - (para. 13B) to take into consideration the minority problems in drawing up the final version of the new Law for the division of the country into self-government regions.
On 18 July 2001 (761st meeting), the Committee of Ministers mandated me, in my capacity as Rapporteur on Local and Regional Authorities, to “study the questions linked to Recommendation 88 (2001) on local and regional democracy in the Slovak Republic and to report back”.
2. On 4 July 2001, the National Council of the Slovak Republic passed two new Laws, one on the self-government of Higher Territorial Units (self-government regions Act) and the other on the elections to self-government Bodies of the Higher Territorial Units.
The enactment of the self-government regions Law caused serious concerns to the Hungarian Coalition Party and the Association of Towns and Communities of the Slovak Republic. The Hungarian Coalition Party thought that the division of the country into eight self-government regions would diminish the ethnic Hungarians' influence in the decision-making process at the local level and restrict their possibilities to take decisions over problems of their own interest, especially in the cultural field.
The Hungarian Coalition Party protested against the above Laws, accusing the National Council of the Slovak Republic of not taking into account, inter alia, (a) the ethnic and cultural criteria included in the compromise draft elaborated by the Slovak government and (b) certain principles enshrined in the European Charter of Local Self-government.
More particularly, the complaints expressed have been focused on:
- the division of the country into eight self-government regions, 1
- the provisions of the Law concerning international co-operation between the new self-government regions and the local authorities of foreign countries,
- the provisions referring to the financial situation and property rights of the "higher territorial units", and
- the composition of the local Councils, especially in the areas inhabited by members of the Hungarian-speaking population.
Following the terms of reference given to me by the Committee of Ministers, I started gathering information from the Directorate of Co-operation for Local and Regional Democracy, from the Congress of Local and Regional Authorities of Europe and from the Permanent Representative of the Slovak Republic to the Council of Europe. Valuable information on the matter was also given to me by the Hungarian delegation.
With regard to the Law of 4 July 2001 on the self-government regions, I also took note of the comments made thereon by Mr. Sykora, the President of the Association of municipalities of the Slovak Republic, and Mr. Plai, representative of the Slovak Republic to the Congress and member of the Institutional Committee, whom I met in the margins of the Congress mini-session last November.
I also studied with particular attention Mr. Jean-Marie WOEHRLING's opinion (expert of CLRAE) on self-government of the territorial units.
Finally, I took note of the report on the observation of the first regional elections in the Slovak Republic, drawn up by Mr. Martin Haas, rapporteur of the Congress.
Today, I am in a position to set out my findings.
3. Prior to analysing the provisions of the Law on "higher territorial units", I would like to stress that the two Laws adopted on 4 July 2001 are part of the ongoing efforts of the Slovak Republic with a view to establishing local administration institutions compatible with democratic principles and European standards. In particular, the following points may be recalled:
- In the communist period local and regional self-government in the Slovak Republic was exercised by national committees and administrative authorities, at three levels: (a) municipal, (b) district and (c) regional. The self-government in that period, subordinated to the leading role of the Communist party, was of a marginal nature.
- In 1989, following the political and social changes, the government of the Slovak Republic initiated a gradual transformation of the local administration with a view to adapting it to the needs of a democratic society. As a result, a territorial self-government at the level of municipalities with legal independence and property rights was set up as well as local state administration bodies in 38 districts and 121 sub-districts. At the same time, the regional public administration bodies existing in 4 districts were abolished.
- In 1996, major changes were made to the administrative and territorial division of the state. There were set up district offices - first instance authorities - in 79 districts and regional offices - second instance authorities - in eight newly established regions. This resulted in an administrative re-allocation of the persons belonging to the Hungarian-speaking population of the Slovak Republic.
- In 1999, the government of the Slovak Republic, on the basis of the principles of the European Charter of Local Self-Government, proceeded to further decentralization devolving more tasks to local self-government bodies.
- In 1999, the government of the Slovak Republic adopted the so-called "Strategy for Public Administration Report" and in Spring 2000 started taking measures to further decentralize and modernize the self-government structure of the country.
II. Establishment of self-government regions
4. On 4 July 2001, the National Council of the Slovak Republic passed the law on "the self-government of higher territorial units". This Law divides the Slovak Republic into eight self-government regions, using the same territorial basis as the governmental regional offices created in 1996, and contains 23 sections which cover subjects pertinent to local administration, and this despite the fact that the proposals of the government aimed at the creation of 12 new regions.
The new Law (Section 1 para 1) considers each of the eight self-governing regions as "a higher territorial unit" and devolves to them the prerogatives, under the conditions established by the law, to manage their own assets and income as well as uphold and protect the rights and interests of their inhabitants. Under its provisions, the new regions are legal entities, have their own symbols (coat-of-arms, flag and seal) and exercise their powers independently of the central government. They are autonomous regions in the sense that they are not bound by any obligations or restrictions in the field of self-government other than those set out in the Law, in the Constitution and in an international treaty.
III. Division into eight regions - Reactions of the Hungarian Coalition Party
5. The division of the Slovak Republic into eight regions along the lines of the 1996 territorial division provoked protest from the Hungarian Coalition Party, in particular because the western part of the country, where there is the most important concentration of Hungarian-speaking population, was divided "vertically" and not "horizontally", like the eastern part, where not many ethnic Hungarians live. This resulted in the dispersal of the Hungarian-speaking population over five regions, while areas predominantly inhabited by persons of Hungarian origin were separated into two regions.
6. The Hungarian Coalition Party had initially asked for the establishment of one, if possible, homogeneously Hungarian self-government region in the south of the country.
This demand was not accepted by the government of the Slovak Republic. However, taking into consideration the views of the Hungarian Coalition Party, which participates in the government, it did agree on the proposal to divide the country into twelve self-government regions on the basis of socio-economic criteria and submitted a bill to that effect to the National Council of the Slovak Republic (Parliament).
The Law as finally adopted, by an overwhelming majority comprising not only the opposition deputies but also deputies of parties participating in the Coalition government, did not endorse this proposal, but provided for a division of the country into eight regions, using the 1996 territorial division.
The Hungarian Party, which subsequently threatened to leave the Coalition government, was given assurances that its positions concerning the supplementary laws to be adopted would be respected. These laws were finally adopted (see paragraph 17).
7. In light of the above, it is suggested that the role of the Committee of Ministers is clearly not to enter into the domestic political debate within the Slovak Republic, but rather to examine whether the division into eight regions as enacted by the National Council of the Slovak Republic by the law of 4 July 2001 on “the self-government of high territorial units” per se contravenes applicable international standards.
In this regard, it must be said that there is an established rule of International Law that every state has the sovereign right to organize its domestic legal order according to its constitution and relevant legislation. It can, therefore, adopt laws and regulations governing the structure of its public administration, the relations between its citizens and the state authorities and the legal framework of its local administration.
The constitution of the Slovak Republic (article 64) 2 provides for the division of the country into self-government regions in general terms, leaving to the government and the legislature the task to define the total number of the self-government regions and the criteria to be applied to this end.
The Constitution also provides (art. 34) 3 for the right of citizens belonging to national minorities and ethnic groups to participate in decision-making in matters affecting the national minorities and ethnic groups.
8. The above sovereign right, however, is not unlimited. It is subject to the international legal order. Thus, it must not contradict basic norms of general International Law, the international treaties signed and ratified and other obligations undertaken by the Slovak Republic. In this context the relevant standards are to be found in:
1. The Framework Convention for the Protection of National Minorities (ETS 157), in particular Article 16 which reads as follows:
The Parties shall refrain from measures which alter the proportions of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the present framework Convention;
2. The European Charter on Regional or Minority Languages (ETS 148), in particular Article 7 paragraph 1b which reads as follows:
7.1 In respect of regional or minority languages, within the territories in which such languages are used and according to the situation of each language, the Parties shall base their policies, legislation and practice on the following objectives and principles:
b the respect of the geographical area of each regional or minority language in order to ensure that existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language in question;
It must be mentioned here that both instruments have well established monitoring procedures, in both of which the Committee of Ministers has an important, albeit different, role to play. Therefore, any position taken by the Committee of Ministers should be consistent with its role in the respective monitoring procedures.
Furthermore, the Slovak Republic has signed and ratified, inter alia, the following International Covenants of Human Rights:
a) International Covenant on Economic, Social and Cultural Rights and
b) International Covenant on Civil and Political Rights.
The above Covenants also provide for monitoring mechanisms.
9. The monitoring procedure of the Framework Convention is laid down in Articles 24-26 and in Resolution (97) 10 of the Committee of Ministers. The procedure provides for a report-based monitoring system in which the Committee of Ministers is assisted by an Advisory Committee. The Committee of Ministers adopted its Resolution on the implementation of the Framework Convention for the Protection of National Minorities by Slovakia at the 773rd meeting of Ministers Deputies on 21 November 2001 (Res CMN(2001)5). The issues of territorial division at stake here were not addressed in this procedure as they arose at a later date than the adoption of the opinion by the Advisory Committee (22 September 2000). However, the issues raised can be taken into account in the next monitoring cycle (state report due in 2003).
In addition to the obligation to report on a periodical basis, each Party shall, according to Article 25 paragraph 2, transmit any further information of relevance to the implementation of the Framework Convention, whenever the Committee of Ministers so requests.
This means that the Committee of Ministers has the additional possibility in this case to formally request further information from the Slovak Republic outside the periodic monitoring procedure. However, I do not recommend the Committee of Ministers to do so in this case.
Article 16 of the Framework Convention provides protection from measures which alter the proportion of the population in areas inhabited by persons belonging to national minorities and are aimed at restricting the rights and freedoms flowing from the principles enshrined in the Framework Convention. Whereas it is clear that the legislation enacted does not meet the aspirations expressed by political representatives of the Hungarian-speaking population, there is also no evidence that these measures are aimed at restricting the rights and freedoms flowing from the principles. In the absence of such evidence it seems to me inappropriate to request further information from the Slovak government outside of the periodical monitoring procedure.
I note in this context also the opinion of the expert of the Congress of Local and Regional Authorities of Europe which states that, in respect of the number of regions and their boundaries, “there has been no clear violation of the general principles of international law, the international agreements to which the Slovak Republic is party or the constitution “
In conclusion, I recommend that the Committee of Ministers take no further action at this stage, pending the next monitoring cycle under the Framework Convention.
10. The second monitoring mechanism is that of the European Charter of Regional or Minority Languages. The monitoring procedure under this instrument (Articles 15-17) also provides for a reporting system on a periodical basis (once every three years). Reports are examined by a committee of experts which in turn prepares a report for the Committee of Ministers containing in particular proposals for the preparation of such recommendations of the Committee of Ministers to one or more of the parties as may be required.
So far there has been no monitoring of the Slovak Republic under this mechanism, but also in respect of this instrument, the Slovak Republic is due to submit a report, for the first time, to the Secretary General in the year 2003.
The Language Charter does not provide an express authority for the Committee of Ministers to formally request further information from a Party, however it does provide for the possibility of bodies or associations legally established in a Party to submit statements concerning the policy pursued by a Party in accordance with Part II, which includes the relevant Article 7.1.b.
Article 7.1.b of the Language Charter provides that it is to be ensured that “existing or new administrative divisions do not constitute an obstacle to the promotion of the regional or minority language in question”. The explanatory report makes clear that this provision does not require that the territory of a regional or minority language should in all cases coincide with an administrative unit. On that basis I submit that it cannot be held that the adoption of the territorial division in the Slovak Republic per se constitutes a violation of this provision only because it is not the most favorable one from the point of view of promotion of regional or minority languages. Here too I note the similar conclusion of the expert of the Congress of Local and Regional Authorities of Europe.
In the absence of prima facie evidence that the division into eight regions as enacted per se constitutes an obstacle to the promotion of the regional or minority language in question, I conclude that there is no reason for the Committee of Ministers to seek to intervene in this matter outside of the currently established avenues of the monitoring mechanism.
11. The further question whether the new law in its effect and/or its implementation affects in practice the possibility of persons belonging to the Hungarian-speaking population to promote their cultural identity and expression can only be examined on the basis of full and detailed factual information. The periodical reporting mechanisms of the two conventions are best suited to obtain this information and, furthermore, the implementation of the new legislation has not yet been completed. Therefore I submit that the existing monitoring arrangements, both of which will trigger off in 2003, are best suited to address issues that might arise in this respect.
In this context, it may be noted that apart from the relevant Constitutional provisions the Act on the use of minority languages ensures the right of persons belonging to national minorities to use their language in their relations with state authorities. The Act applies to 655 municipalities where the citizens of the Slovak Republic who belong to national minorities (including Hungarians) account for at least 20% of the population. The government of the Slovak Republic has committed itself to proceeding with the necessary steps to implement the approved laws of administrative form so that they will have no negative impact on the use of minority languages.
In the domestic field the government of the Slovak Republic should supervise the local authorities of the self-government units in order that the new law of 4 July 2001 be implemented in accordance with its international obligations.
Their supervision should not be confined to the safeguarding and respect for the existing rights of the Hungarian and other minorities, but should also extend to taking the necessary steps for further development of minorities' cultural relations.
The government could, if and when a need arose, take necessary administrative steps such as the issuance of special guidelines or other orders and/or the enactment of new laws with a view to correcting any irregularities that might emerge out of the improper implementation of the new Law.
It must be added that the new Law contains a series of provisions (Sections 7 and 8) referring, in general terms, to the supervision exercised by the central government on the local Authorities of the self-government territorial units.
In conclusion, in respect of the issue of the territorial division of regions as enacted by the Slovak Republic by Law of 4 July 2001, I recommend that the Committee of Ministers, pending the monitoring exercise, should not take any action in addition to that which it will be required to take in due course as a monitoring body of the two instruments.
IV. International co-operation of the self-government regions with local authorities of foreign countries
12. Another point of the Law of the higher territorial units, also criticized by the Hungarian Coalition Party, is paragraph 5 of article 5, which refers to international co-operation between the self-government regions and local authorities or units of foreign countries. Paragraph 5 stipulates that "co-operation agreements or membership in international associations or territorial units or authorities shall not be contrary to the constitution of the Slovak Republic, constitutional Laws, laws and international treaties binding for the Slovak Republic and public interest."
The Hungarian Coalition Party contended that the concept of public interest, as it stands in the Law, without any sort of definition could enable the central government to annul the decisions of the regions on the pretext that they are contrary to the public interest.
13. It must be pointed out that the draft law prepared by the government of the Slovak Republic included a kind of descriptive definition of this concept by stating that:
a) co-operation agreements should not threaten the territorial integrity and sovereignty of the Slovak Republic,
b) be compatible with the foreign policy of the country and
c) not be detrimental to relations between the citizens, territories or states concerned. The National Council, however, decided on the deletion of this definition.
14. Admittedly, the article in question, as it stands now, is susceptible of varying interpretations. It cannot, however, be considered as incompatible with international standards. Such international standards normally cover, in particular, the following principles: respect of national sovereignty, respect of territorial integrity and public order. As a rule, it is not necessary for a law to contain definitions of all relations or situations dealt with therein. Often the legislator avoids defining abstract concepts, leaving this duty to the Courts, because the evaluation of abstract concepts, especially when they refer to ethics, politics, economics etc, is considerably influenced by continuously changing conditions. They cannot, therefore, be defined in absolute terms, e.g. the concept of ethics has not today the same meaning as it had in 1910. The same holds good for the concept of national interest, which is highly dependent on the internal situation and foreign policy of a country.
15. Coming now to the fears expressed over the possible problems to be created out of the notion of public interest, I am not sure that article 5, as it stands, could raise major interpretation problems. If such a problem emerges, it would be envisaged by the local Courts, which have been entrusted with the authority of examining international agreements concluded by the regions. The courts called upon to examine the said agreements will inevitably define the meaning of public interest having also in mind the principles of the international conventions entered into by the Slovak Republic, as well as the established practices by other members of the Council of Europe.
This said, it should not be ignored that some difficulties may emerge out of the implementation of the new Law especially in its current initial phase.
It would be, therefore, advisable that the central government, independently of the judicial procedures, proceeds to a kind of preventive action giving some guidelines to the local Authorities as to the meaning of "public interest". The said guidelines, based on Article 34 of the Constitution and the international obligations of the Slovak Republic, could set out, in a non-exhaustive way, the basic interpretative elements of the public interest concept.
Finally, the international monitoring mechanisms in the framework both of the Council of Europe and other Organizations can adequately control the implementation of the Law of 4 July 2001 and provide any necessary help for preventing or solving all the relevant problems.
V. Financial resources and competences of the autonomous regions
16. Criticism was also made by the above stated Party as far as financial resources of the self-government regions are concerned. Section 9 paragraph 1 states that the basis of financial management of a self-government region shall be a budget drawn for a period of a calendar year.
The same article further states that a self-government region shall finance its needs mainly from its own resources as well as from state subsidies. The resources of a self-government region within the safeguards laid down by special rules shall be:
a. the revenues from property of a self-government region,
b. the revenue of local taxes and fees,
c. the earnings from voluntary fines,
d. the earnings from voluntary collections, voluntary contributions and donations of legal persons and natural persons,
e. other revenues.
In addition, Section 10 of the Law on the Self-government of Higher Territorial Units simply mentioned the existence of property belonging to the self-government regions without really organizing the devolution of the property concerned.
17. Indeed, the list referred to in section 9 para. 1 gave no real indication of the exact resources of the autonomous regions. This task was left to subsequent laws. According to the explanatory memorandum to the preliminary draft law, it seemed that central government subsidies were meant to be the main source of revenue of the regions. With the ruling made, however, by paragraph 9, it was not clear that the regions had any substantial resources of their own, which contradicted the principles of the Council of Europe.
In addition Section 10 of the same article did not really organize the devolution of properties from the central government to local authorities.
Nevertheless, the afore-said lacunae and shortcomings have been corrected by the adoption of the following supplementary laws by the National Council regulating the property and financial status of the self-government regions:
1. Act on the Transfer of Certain Competences from State Administration Authorities to Municipalities and Higher Territorial Units,
2. The amendment to Municipalities Act No.369/1990 Coll. passed by the National Council of the Slovak Republic on 2 October 2001,
3. Act on the Property of Higher Territorial Units,
4. Act, which amended Slovak National Council Act No.138/1991 Coll. on the Property of Municipalities,
5. Amendment to National Council of the Slovak Republic Act No.303/1995 Coll. on Budgetary Rules.
The new laws transferred state-owned property to higher territorial units by associating it with the transfer of administrative functions and specified the group of property to be transferred from the state to municipalities. They also set up a separate state budget chapter for the overall financial relations with municipalities and higher territorial units. These laws have been adopted by the National Council in September and October 2001 and are considered by the National Association of Towns and Communities and other interested parties as an important step forward in the field of decentralization in the Slovak Republic.
VI. Elections for regional Councils
18. The Hungarian Coalition Party also expressed concern that the minorities are prevented from effective participation in the decision-making process regarding the regional public matters.
The Law of 4 July 2001 on self-government regions provides for the establishment of Councils in each region, whose tasks consist in exclusively deciding on basic issues of local interest. The Councils are made up of deputies elected on the basis of direct suffrage. The Council shall determine a number of deputies for an overall electoral period with a ratio of 12.000 to 15.000 inhabitants to one deputy and determine an election district pursuant to a special Law. A special law lays down the system for the election of deputies. All the permanent residents are entitled to vote and are eligible to stand for election.
19. At the time of the last elections carried out on 1 (first round) and 15 (second round) of December 2001, the Hungarian-speaking population amounts, according to the Slovak sources, to approximately 520.528 members (9,7%) (last census 2001). At these elections, the Hungarian parties were able to gain a significant number of representatives in the regional councils.
More particularly the electoral results in the four regions are the following: