When the Constitutional Court of Croatia (of any country) evidently and blatantly misses the beat of its own country’s heart (and reason for existence – in the case of Croatia that reason is victory over brutal Serb aggression in the Homeland War) then one could justly pose the question of whether the nation should permit such undermining of its defining morality and character that are the beacons for justice and, if you like, full democracy.
When minority rights are taken out of the context of national suffering and the need to pursue justice for the victims of brutal aggression, one inevitably ends up with major problems and discontent; and blatant unfairness at the basic human level. And so, while on the one hand Croatia battles a political crisis with overtures of restructure of its government, Serb minority rights claims are in a hot seat that requires determination and resolve to end Serb provocation in Croatia once and for all.
For most lawyers, constitutional courts’ success in protecting democracy should be measured by their jurisprudential record – their performance according to legal professional standards of appropriate decision-making. On this view of things, courts are essentially reactive institutions. The only power they have to influence the quality of democracy is to interpret democratic rights in the cases they happen to be asked to decide.
For many political scientists, this legalistic measure is inadequate. What needs to be assessed is the actual impact of a court’s decisions on the overall quality of democracy, i.e. life in the country that cannot ignore the priority of essential needs of its people, or majority. On this account, constitutional courts have much greater agency than lawyers give them credit for.
They should be seen as political institutions with the capacity to adjust their decisions according to their likely effects. Especially in developing democracies such as Croatia, which still has a long way to go towards delivering justice for victims of Serb aggression of early 1990’s.
But given that most judges still sitting in that court in Croatia are remnants of the Yugoslav communist minds the political pull or effects of Constitutional Court judgments have so far mostly gone towards Yugo-nostalgia rather than independent Croatia. If it were the latter Croatia would not, almost 30 years after the Homeland War still be gasping and pleading for justice and human fairness towards the enormous number of victims of Serb aggression.
Ivan Penava, the Mayor of Vukovar, has Friday 19 July 2019 accused sections of Croatian society of turning their heads away from the Homeland War and its victims.
“I hear in the statements these days: He does not respect the Constitution, we are modern, we are liberal and we insist that the Constitution be respected. Gentlemen, for 28 years you have not respected that same Constitution and now you have the cheek to come to a city that was destroyed and bombarded with 6.5 million grenades … You hold such attitudes and you come to Vukovar to ask the Mayor if he will respect the Constitution. Yes he will; this has never been an issue. The Mayor will be the first to respect it. However, I ask you where your humanness and cheek are, when you give yourself the right to come here and ask such a question,” Ivan Penava told reporters accusing parts of the Croatian society of having turned their heads away from the Homeland War, from the raped, the missing, the killed and raped and do not see problems with which the people of Vukovar are faced.
“We are not talking about Peter and Mark here. We are talking about thousands of those killed and imprisoned, of hundreds that were raped and again of thousands of displaced people, of those whose rights were denied them. For many of these it’s unfortunately too late for any kind of justice,” concluded Ivan Penava.
This Penava reaction comes post Croatian Constitutional Court decision of 2 July 2019, which determined that Vukovar City councillors from the Serb ethnic minority should have the same conditions as councillors of Croatian ethnicity. I.e., among other things that Council meeting minutes, agendas etc. should be made available in the Serbian Cyrillic script.
According to HINA News Agency report Mayor Ivan Penava said Friday that for the town authorities it was not at all disputable whether or not he would respect the decision of the Constitutional Court, which concluded that the rights of the Serb national minority in Vukovar had to be improved, and he also said that no law was self-contained purpose but must be in the service of the people.
In August 2015, Vukovar changed its town statute to say that the collective rights of the Serb minority [re street signs, government building signs etc.) in the area of the town of Vukovar are to be ensured when the conditions are met.
Under this change, councillors in Vukovar of Serb extraction could get documents issued in the Serbian Cyrillic language/script, but only if they made specific written requests for that.
The Vukovar council voted for the changes in November 2013, proclaiming Vukovar a “city of special significance” exempt from Croatian minority rights legislation because of what it suffered when it was besieged and destroyed by Serbian forces in 1991.
The move came after months of protests sparked by the official introduction of bilingualism, as envisaged by Croatian law in places where a minority makes up more than 30 per cent of the population, as Vukovar’s Serb community does. It must be remembered though that this percentage has been disputed on the fact that no credible census was had to establish it and that the percentage claimed could well have been falsely boosted by Serbs who are registered as living in Vukovar but in fact reside in Serbia.
However, Croatia’s Committee on Human and National Minority Rights complained about the statute changes and requested an evaluation of their constitutionality.
2 July 2019 Constitutional Court decision overturned some of the Vukovar Town Council statue changes, decreeing that Serbs – whether councillors or members of the public – must be able to get official documents in their own language and script.
Miroslav Separovic, President of the Constitutional Court said that Vukovar Town Council will have to extend the level of the rights of the Serbian ethnic minority and that the court will not tolerate any delays because nothing has been done so far.
While the President of the Republic of Croatiacannot comment on the decision of the Constitutional Court Kolinda Grabar-Kitarovic did, however, on Friday 19 July, point to Article 8 of the Constitutional Law on the Rights of National Minorities, which states that these rights must be interpreted and applied with the aim of respecting the minorities and the Croat people, developing understanding, solidarity, tolerance and dialogue among them. Grabar Kitarovic holds that under such circumstances, when the fundamental human rights are neglected, the necessary prerequisites for the expansion of special rights that have to become a democratic standard in Croatia have not been procured and she agreed that it is bad to delay them. However, she called for the same criteria to be applied to proceedings against war crimes suspects and that the declaration by appropriate authorities regarding those cannot be delayed, either. Such an attitude is a good prerequisite for regulated relations based on the trust of the majority people and members of the Serbian national minority, especially in the wounded Vukovar.
The Republic of Croatia must pay particular attention to Vukovar, and it is also a duty of the top state authorities to demand the resolution to the injustice felt by the population of Vukovar. It is inconceivable that nobody has been made responsible for the massacre at Borovo Selo and that no one solved the question of 30,000 concentration camp detainees, the missing … How will we justify this from the constitutional as well as from the moral aspect?
“Because of this, the position of Ivan Penava, the Mayor of Vukovar, may not be called as disrespectful of the Constitutional Court’s decision, but an invitation, which I personally support, to finally close the issues of the past and thus provide a sincere opportunity for the future. I do not want any separation or conflict between Croats and Serbs, but I call for patience and consideration, which implies accepting the fact that Vukovar is still treating its wounds. I hold that the obligation of state institutions is to make more effort as soon as possible and find the best solutions that will not cause tension and distrust among people, but rather the opposite,” said President Grabar-Kitarović.
Indeed, even at the merely basic level of human fairness one cannot condone the pressure (from Constitutional Court) to implement promulgation of minority rights when that same court has done nothing to pressure the minority (Serb) to act of the rights of the majority (Croats). By saying this I am aware that while deliberating its decision on Serb minority rights in Vukovar the Constitutional Court was well appraised of the majority rights that stand behind the initial limitation, suspension or ban of the Cyrillic script in Vukovar!