i. Rule of law Access to justice for national minorities is embedded in the concept of the rule of law.7 It means that States should ensure that public officials and private entities are subject to and accountable under the law. The process by which laws are enacted and enforced should be democratic, fair, transparent, predictable and inclusive of minority communities. Laws should be grounded in and protect human rights, including the rights of persons belonging to minority communities, and should be drafted in consultation with them.8 Importantly, laws should be enforced through independent and impartial courts, which should also be empowered to review administrative acts. Laws should be applied without any discrimination against persons belonging to national minorities, and judicial decisions affecting national minorities should be executed impartially, diligently and without undue delay (see Recommendation 8). ii. Non-discrimination and equality States should ensure that discrimination is clearly defined and prohibited by the Constitution and the law. The principle of non-discrimination prohibits any unjustified unequal treatment under the law or by law (also called direct discrimination) on the basis of membership of a national minority but also on the basis of ethnic identity, gender, sexual orientation, age, disability, language, religion (or belief), national or social origin.9 There is direct discrimination when the law treats a person belonging to a minority community, or an entire minority community, less favourably than another person, or group, in the same situation or in a comparable situation. 7 8 9 UN Security Council (2004) Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, paragraphs 5 and 6; OSCE (1990) Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, paragraph 2; Council of Europe (1994) Framework Convention for the Protection of National Minorities, preamble; Venice Commission of the Council of Europe (2011) Report on the Rule of Law; Venice Commission of the Council of Europe (2016) Rule of Law Checklist. Lack of confidence in the judicial system can lead national minorities to resort to customary law and traditional forms of justice, particularly in the case of family-related issues and minor offences. States should implement policies that build the trust of national minorities in the judicial system. Such policies can include the creation of functional linkages and collaboration between informal justice mechanisms and the judicial system in the form of appeal procedures, case referrals and advice. In such cases, States should give precedence to informal justice mechanisms that are gender-sensitive and compatible with international human rights standards. See UN Committee on the Elimination of Discrimination against Women (2015) General recommendation on women’s access to justice, paragraph 64(a) and (b). See UN Human Rights Committee (1989) CCPR General Comment No. 18: Non-Discrimination; UN Committee on Economic, Social and Cultural Rights (2009) General Comment No. 20: Non-discrimination in Economic, Social and Cultural Rights; Council of Europe (1994) Framework Convention for the Protection of National Minorities, article 4; European Union (2000) Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; European Union (2000) Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.   The Graz Recommendations on Access to Justice and National Minorities 11