ELECTION LAW AND RELATED LEGISLATION

Croatia's election law and related legislation have long been a cause of concern among domestic and international observers. Croatia promised to revise its election law as a condition for its admission to the Council of Europe in November 1996. Specifically, Croatia undertook to:

comply, well before the next elections, with the recommendations made by election observers of the Council of Europe and other international organizations, in particular with regard to the special voting block for the diaspora, minority representation, voter registration lists, voter anonymity, the need to increase the independence of the state broadcasting corporation (HRT) and to undertake a census of the population as soon as possible.14

The recommendations referred to by the Council of Europe included the elimination of the special voting district for the Croatian diaspora (ethnic Croats living outside Croatia, in practice mostly in Bosnia), a centralized and more transparent register of voters based on a new census, and the elimination of the requirement that ethnic minorities identify themselves so they can be given special ballot papers, as well as reform of the state broadcasting system. Further recommendations were made by the ODIHR observation mission following the 1997 presidential elections, including the need to remedy the disenfranchisement of refugees and ensure access for nonpartisan election monitors.

Lack of progress led in August 1998 to the preparation of a joint "non-paper" by the OSCE Mission to Croatia, Council of Europe, and ODIHR on electoral reform for Croatia, which provided detailed recommendations on the disproportionate representation of the Croatian diaspora, the disenfranchisement of Serbs who fled Croatia, the role of the media, minority representation, the composition of election commissions, the need for access by domestic nonpartisan election observers, and campaign finance reform. In July 1999, a joint U.S., E.U., and OSCE demarche was delivered to the Croatian government reiterating the need for electoral reform in line with the recommendations made in the 1998 non-paper. Similar concerns were raised during an E.U. visit to Croatia in October 1999.

Despite repeated recommendations from the Council of Europe and OSCE, of which Croatia is also a member, pressure from the international community, and Croatia's own obligations as a member of the Council of Europe, there has been little progress in electoral reform since 1996. The recently adopted electoral law offers modest improvements in some areas, notably in checking the over-representation of the diaspora in the Croatian parliament and facilitating election monitoring, but fails adequately to address voter registration and the role of the state-controlled media and introduces new problems in other areas, particularly in terms of minority representation.

A related law covering districting, the Law on Electoral Units, creates odd-shaped districts that in their consequences appear to some observers like gerrymandering, and the date of the elections has drawn criticism from domestic and international observers alike because its proximity to the Christmas/New Year period makes monitoring more difficult and is likely to negatively influence voter turnout. The bulk of the concerns outlined in the Council of Europe, ODIHR, and OSCE recommendations remain unaddressed, including the question of disenfranchisement of refugees and the lack of independence for HRT. Recent changes to the membership of the Constitutional Court anda flawed law on freedom of public assembly are also cause for concern, both in the context of the elections and more generally.

One area of improvement offered by the new law is in respect to the representation of the so-called diaspora. International observers have long criticized the ability of ethnic-Croat citizens of other countries (the diaspora) to participate in Croatian elections, a right which in practice applies mainly to some 400,000 ethnic Croats in neighboring Bosnia and Hercegovina. This right derives both from Croatia's citizenship law, which automatically grants citizenship to all ethnic Croats, and from the Croatian constitution, which allows all citizens of Croatia to participate in elections. In addition to criticism about the right of ethnic Croats outside Croatia to vote, international observers have also criticized the manner in which they do so. In the 1995 parliamentary elections, a special non-geographic district was allocated to the "diaspora"giving them the right to choose twelve representatives for the house of deputies, giving them a disproportionate level of representation compared to other voters. Given that the "diaspora" has traditionally supported the HDZ, this system was widely perceived as a means of delivering a guaranteed block of seats to that party, thus discriminating against citizens of other political persuasions.

Human Rights Watch is also concerned with the citizenship law, especially as it makes it difficult for Croatian Serbs outside the country to assert the right to citizenship, leaving some stateless and many unable to return to Croatia or to exercise their rights as citizens to participate in elections.15 However, since the right of the ethnic Croat diaspora to vote is guaranteed both by the constitution and law on citizenship, Human Rights Watch does not feel that objections to the right per se are appropriate. What is of legitimate concern, however, is the disproportionate representation of the diaspora in the Croatian parliament with twice as many seats in the parliament per voter in the diaspora district than in regular districts. This arrangement not only de facto favors one party over others but discriminates against other Croatian citizens, including Croatian Serb refugees.

The new election law addresses those concerns only partly. Under article 44 of the new law, the number of representatives chosen by the diaspora will be proportionate to the number of diaspora voters who participate in the election, according to a formula derived from the number of voters per seat in the electoral districts inside Croatia. This is a substantial improvement over the previous law, in that the proportion of seats allocated to the diaspora will now be approximately equal to the proportion of seats allocated to the remainder of the population. In addition, since the diaspora historically has supported the HDZ, the law still potentially offers the ruling party an unfair advantage over other parties by the margin of the number of seats eventually allocated to the diaspora. The recommendation of GLAS 99 that the diaspora should no longer have a special voting district was introduced as an amendment during the parliamentary debate on the election law, but failed to be adopted.

Another area of improvement relates to the right of domestic election observers to monitor the elections. Article 107 of the law specifies that monitoring organizations must submit a list of the names of their observers to the National Election Commission eight days before the vote, and that the National Election Commission must provide accreditation "three days before the vote at the latest." This provision allays some concerns that accreditation would be issued too late for distribution, thereby limiting access to polling places. In addition, the law spells out that all organizations "which are legally registered as organizations that work in the field of independent monitoring of electoral procedure and/or promotion of human or civil rights" will be permitted to monitor the elections.

Some aspects of the law have been met with dismay, however. The staff of the Croatian Law Center have indicated to Human Rights Watch that they regard some aspects of the new election law as worse than the electionlaws in 1992 and 1995, especially in terms of the political representation of minorities. They noted that in 1992, Serbs had thirteen representatives in the parliament. In 1995 that number was reduced to three in the house of deputies and two in the house of counties, following the suspension of the provisions of the 1992 constitutional law on the rights of minorities related to political representation (constitutional laws enjoy the same superior legal status as the constitution).16 Under a system of positive discrimination, minorities were also permitted to vote twice, once for the minority list and once as ordinary citizens on the ordinary geographic lists, a practice that was abandoned in 1995. In article 16 of the 1999 election law, the number of seats for Serbs in the house of deputies is reduced to one, while the representation of the other minorities remains the same.17 Positive discrimination for minority voters has not been reintroduced. Given that article 38 of the new electoral law increases the number of electoral districts in Croatia and at the same time increases the number of representatives in each district from twelve to fourteen, the reduction in the number of seats seems particularly egregious.

The importance of minority representation in parliament to the overall treatment of minorities in Croatia should not be overstated. As Veljko Dzakula, the president of the Serb Democratic Forum, noted that, in practical terms "it doesn't really make any difference" if there is one representative or three.18 Mr. Dzakula pointed to the broader failure of Croatia to address the suspended provisions of the constitutional law on minorities as the real obstacle. It is certainly the case that the presence of three representatives out of one hundred and twenty-seven in the House of Deputies has not been sufficient to enable Croatian Serb citizens to exercise their civil and political rights, or in many cases to return to their homes or even to Croatia. The issue of the inability of Croatian Serb refugees to assert their right to citizenship and hence to vote in elections is undoubtedly a more significant constraint to the exercise of those rights than the reduction in the number of seats. Nevertheless, the symbolism of such a move is that it further marginalizes Croatia's Serbs from participation in the life of their country at a time when post-war normalization should be leading to their further reintegration into Croatia. In addition, the reduction robs the House of Deputies of what MP and president of the Serb National Council Milorad Pupovac describes as "an additional tool for our reintegration into Croatian society" and silences two-thirds of its voices for the particular concerns of Serbs in Croatia.19 Most of all, it highlights the urgent need to revise the constitutional law on minorities in accordance with Croatia's obligations as a member of the Council of Europe.

There are also concerns about the shape of electoral districts among Croatian NGOs and opposition parties. In particular, the decision under the law on electoral units to divide the city of Zagreb into four different, mainly rural, districts strikes many as gerrymandering (an attempt to predetermine the outcome of the elections in a particular district thereby undermining the fairness of the elections as a whole).20 This assessment is underscored by the strength of support for the opposition in Zagreb compared to their relatively weaker support in adjacent rural areas, where HDZ tends to poll better. While the charges of gerrymandering should not be overstated, the unusual districts further call into question the commitment of the ruling party to create the conditions necessary for fair elections.

There have also been concerns expressed about the timing of the election. The decision to hold the elections after the expiry of the current term of the Constitutional Court has drawn criticism from the current president of thecourt, Jadranko Crnic, who has made public his view that the elections should have been held well before the expiration of the term of the current Constitutional Court on December 6.21 Crnic argued that given the crucial role played by the court in resolving electoral disputes (see section below), it is inappropriate to have one court active during the campaigning and a new court active during the vote and counting of results. (The outgoing court was eventually able to address this problem on December 2 by appointing a council to resolve electoral disputes consisting of the only three members of the court whose terms do not expire.) The original date of the elections, December 22, drew widespread criticism from the church, opposition parties and domestic NGOs who argued that the date was too close to Christmas and was likely to have a negative impact on voter turnout. The new date for the elections, January 3, 2000 has elicited similar concerns from the European Union and opposition parties in Croatia.