NGOs & Cultural Rights: reflections on the Serbian legal framework.

• Author: Jakovljevic, Miljana
• Position: Nongovernment organizations - Special Issue: Cultural Rights and Global Development

Introduction

The beginnings of non-governmental organizations (NGOs) in Serbia in late 18th century was a humble one. Nonetheless, today a few thousand can be seen to operate just in the field of culture. Yet the general public perception of these NGOs is far from positive. A cursory assessment of the legal condition of NGOs would identify obvious legal gaps, lack of adequate legal and financial knowledge, and evidence of an insufficient impact in the existing State legal framework itself (adding to which are visible discrepancies between legal norms in different areas, and subtle but common violations of both law and constitutional rights). All of this makes an impact on NGO operations, and specifically relevent, how their work contributes directly to the freedom to exercise cultural rights. This article will offer critical insights into the matrix of legal norms that regulate the work of nongovernmental organizations in culture and the arts, and will attempt to provide a perspective of functioning of NGOs on daily basis, specifically regarding its everyday fight for the promotion of cultural rights. There is no shared or common strategy for cultural development in Serbia: the analysis will largely be normative, with reference to major legal acts and their practical impact, using methods common to legal practice and language, prioritising the logical, objective and target interpretation (1).

The early history of cultural NGOs in the Republic of Serbia is related to its Jewish community, starting with the religious charitable organization 'Hevra Kadisa' founded in Novi Sad (the second largest city in the country) in the year of 1729. Given the turbulent history of the nation, consistent and reliable data is not forthcoming. We know that after the founding of Hevra Kadisa, it took almost twenty years to establish another one, in the form of the corporate identity of the Jewish Religious Community of 1748. The very next year, 1749, the first Serbian organization started operating in Vojvodina, (2) after which an incremental expansion of cultural and community organisations increased, attracting either restrictions or support on the part of the authorities. Many organizations didn't last, and only a few from the 18th century are still operating today, albeit funded and supervised by the authorities. These include Matica Srpska (most important Serbian literary, scientific and cultural society, founded in 1826) and is notable in its main purpose that was and remains to preserve Serbian cultural heritage and present it to the world. At the time, cultural independence raised political suspicion, and despite its national interests the organisation was the subject of an attempted ban by the then national ruler, Prince Mihajlo (1839-1842).

Today, there are 15,600 registered NGOs operating in the civil sector generally, with various fields of interest. This article will focus only on the arts and cultural sector, where so many NGOs are perceived to be the product of 'Western countries', and whose sole perceived purpose is to influence the political realm to its detriment. In the last few years, public opinion has changed positively, but not a great deal. Fear, prejudices and ignorance can be identified, not least in relation to the legal basis of such organisations. Article 55 of the Constitution of the Republic of Serbia concerns the regulation of Freedom of Association, a basic human right (1948 UDHR articles 20 and 23). To be precise, Markovic has observed that this is more of a "political right, which is part of the very 'first generation' of human rights" (2013: 43). Article 55 is not only guaranteeing freedom of political union and any other form of association, but restricts secret and paramilitary associations. According to paragraph 2 of the same article, the Constitutional Court has the authority to ban associations whose activity is aimed at a violent overthrow of constitutional order, the violation of guaranteed human or minority rights, or the incitement of racial, national and religious hatred (Constitution of the Republic of Serbia, 2006: Article 55, paragraph 2). Modern history has not, for the most part, been witness to such radical measures, but these options were used in the past. Moreover, censorship and even more, auto-censorship, was part of the daily life of artists and cultural workers during Communist Yugoslavia.

Indeed, as Dragicevic Sesic (2011) observed, this wasn't a specifically Yugoslav phenomenon but the life of cultural workers in all totalitarian regimes (2011: 22).

A significant research publication, Perception and public opinion on non-governmental organizations in Serbia 2009, was funded by USAID and conducted by the NGO, Civic Initiatives (Civic Initiatives, 2009). The research, now almost ten years old, still offers us valuable insights on how the Serbian general public perceives such organizations. It concludes that the public image of NGOs is somewhat better than during the 90s, though still not wholly positive. A fifth of citizens consulted during the research did not know what an NGO was, or represents. Further, negative patterns of thinking about non-governmental organizations were revealed to bear a tight relation on topics current in the media. Responsibility for their negative public image was, however, also related to NGOs themselves. The report articulates this criticism, including the unwillingness of NGOs to reach out to the general public; in not having specified their target groups of beneficiaries; in not using the media to change how they are being perceived by the public (actively creating a positive public image), along with other notable points of criticism.

This research report offered an opportunity to understand how, in relation to culture, the 'average person' thinks, feels, prioritises, takes an initiative and the reasons if they don't. Almost 80% of population does not have a membership of any civic organisation of any kind. Among those who are active, only 2% are members of arts associations. Membership is also gendered and with a greater number of males. The average participant is educated, aged 30-44, with more spare time than the average person. The main indicators of inactivity are identified as: lack of free time; a (mis)belief that nothing will change; and an indifference to any involvement of this kind. Surprisingly, most of those who said they did not know how to participate were women and youth. Of the those consulted, most of the active 3% decided to participate to help their careers (registering an increasing competition in the labour market). Their support is moreover largely passive (except for signing petitions and participating in polls). Only 2% of the active supporters (out of a total 3% involved in cultural organizations) were willing to invest more time and effort in cultural initiatives. Only 16% of those consulted in total said that they have been actively involved in project of any kind that relates to helping their own local community (Civic Initiatives, 2009, passim).

Having taken account of this general picture of participation, support and membership with regard civic and cultural NGOs, it is instructive to understand the current legal framework in which these organisations (and participants) are operating. A normative analysis focused on the Constitution of the Republic of Serbia of 2006, will allow us to conceptualise the participatory conditions of cultural NGOs in terms of cultural rights, particularly with reference to the Law on Culture (2009), Law on Associations (2011), and Law on Endowments and Foundations (2010).

Prior to an analysis, it is useful to start with a couple of general guidelines considering the legal system of the Republic of Serbia. Significant formal sources of legal thought and activity are the Constitution, national Law(s), International agreements, Sublegal general legal acts, general acts of social organizations, customs, judicial precedent, case law, and last, but not least, legal doctrine. The Constitution is considered to be the supreme legal act, and all the other legal acts must be in compliance with it. According to the hierarchy of legal acts, every single subordinated legal act must be in compliance with the one directly of the higher rank. In addition to this, legal acts provided by State will always be ranked higher than those provided by other institutions, with exceptions including supranational sources of law (such as bilateral or multilateral agreements, international conventions, suitably ratified), or sub-legal acts generated by the executives (President, government, ministries, local government bodies, and so on) and adopted with the purpose to help execution and appliance of higher laws. Even though, in the legal framework of the Republic of Serbia, the State is the key creator of legal acts, it is not the only one. Various organizations and institutions are involved in legal drafting and creating legal acts for their own purpose and functioning, albeit they remain part of the hierarchy and in compliance with the law and sub-legal acts of State bodies. It must be noted, that...