THE MEMBERSHIP OF A NATIONAL MINORITY AND THE VOTING RIGHT FOR THE ELECTION OF THE MINORITY BODIES AND REPRESENTATIVES

Abstract

This paper explores the legal problem of determining individual’s membership of a national minority and voting right for the election of the minority representatives and bodies of non-territorial autonomy in the case of their direct election. In international and comparative law, the most important criteria for determining membership of a national minority is self-identification, but some countries have also regulated objective criteria that most often include learning, or knowledge of a minority language, the existence of family relationships with persons belonging to the community, or knowledge of minority culture and/or tradition and care for their preservation. Direct elections and special electoral right for the election of minority representatives and bodies, with the establishment of objective criteria for identifying the electoral basis, mask the potential conflict between two constitutional values - the need for democratic legitimacy of such minority bodies and representatives and the protection of freedom of expression, including the freedom to change, one’s national identity. This conflict can be pacified by the participation of the group in the assessment of the one’s national affiliation, while it’s solution may depend on the role and scope of the powers of such minority bodies and representatives.