1 Introduction*
Central, Eastern, and South-Eastern Europe is perhaps the most advanced laboratory for minority rights in general and linguistic rights of persons belonging to minorities1 in particular. This is due to a number of circumstances, notably including the strong impact of international conditionality: in order to be admitted to the European club after independence or re-gained full sovereignty in the 1990s, these countries had to accept conditions in terms of respect of human and minority rights (Pinelli 2004). As a consequence, all of them have ratified the Council of Europe’s Framework Convention for the Protection of National Minorities (fcnm), most of them have ratified the European Charter for Regional or Minority Languages (ecrml),2 and all their Constitutions have been influenced, to a different extent, by the international community through special assistance, expertise and, in some case, by de jure or de facto imposition.
This extraordinary development of minority (including linguistic) rights has not been followed, however, by full and effective implementation. Besides the usual difficulties in implementing linguistic rights that are common to most countries (high costs, administrative and organisational requirements,
In such a context, the role of the judiciary in determining principles and criteria for linguistic rights also presents a contradiction: on the one hand, given the extent of linguistic rights granted by the domestic legislation, as well as the overall disappointing degree of their implementation, the courts have been less decisive than one could have expected in enforcing the linguistic rights of national minorities; on the other hand, considering that most of these countries are still in transition and the rule of law – including judicial independence – is not yet fully achieved and in some case openly regressive (Halmai 2012), the role played by judicial decisions on linguistic rights is all but insignificant.
This chapter casts some light on the adjudication of linguistic rights of national minorities in Central, Eastern, and South-Eastern Europe, by examining the relevant case law and, above all, by trying to infer the underlying principles and criteria developed by the courts. It concludes that courts are overall quite deferential to the general political climate in their respective country and tend to uphold the interpretation provided by the main political actors, i.e., by the majority. At the same time, however, some judicial decisions clearly indicate that courts try to emancipate from the mainstream political options and are increasingly able to impose non-majoritarian decisions (usually on procedural grounds), thus proving evidence of a slow but evolving establishment of the rule of law. It is argued that the role of the courts as guarantors of linguistic rights of persons belonging to national minorities will be key to the ongoing battle (Halmai 2017) on the enforcement or dismantling of the rule of law.
2
Language issues are deeply intertwined with other aspects of minority rights, to which they are a precondition (e.g., educational rights) or instrumental (e.g., participation rights).4 Linguistic rights are thus conditioned, in practice, by factors that may be linked with the overall approach to minority rights. This goes, in particular, for the territorial scope of application of the rights. Due to the widespread suspicion vis-à-vis territorial solutions to ethno-national claims in Central, Eastern, and South-Eastern Europe (Palermo 2016), minority rights, including linguistic rights, are usually not defined in territorial terms but are rather conceived as rights valid for the state as a whole. However, in practical terms, almost all countries make the use of linguistic rights of national minorities conditional upon a minimum threshold of minority languages speakers (in most cases 20%) in a given territory.5 This discrepancy between rights designed as non territorial but practically limited to specific territories is one of the reasons that make implementation of linguistic rights sometimes difficult and has led to some important clarifications by the courts on the territorial scope of application of linguistic rights.
Moreover, when linguistic rights are litigated and adjudicated in courts, several different aspects are considered: seldom is the linguistic issue at stake decided as a matter of principle; rather, it is often linked with other issues (administrative procedures, consumers protection, territorial scope of norms, etc.), that make it sometimes difficult and arbitrary to identify the relevant cases. In this analysis, the cases are classified according to the main language-related element brought to the attention of the respective court. Accordingly, the analysis looks at the cases dealing with language laws in general – both on state language(s) at the national and sub-national level and on laws on the use of minority language(s) – with the use of language(s) in dealings with the
For each of these areas, the main principles and interpretative criteria are highlighted in a comparative perspective, balancing thematic, geographic and chronological breadth in the cases covered. Some general conclusions are drawn on the trends of comparative adjudication regarding language rights of persons belonging to national minorities in Central, Eastern, and South-Eastern Europe.
3 Specific Areas of Significant Judicial Adjudication of Linguistic Rights
3.1 Language Laws
a) At the Level of the State…
Not infrequently, linguistic rights for minorities, while generous on paper, are limited by measures adopted to strengthen majority identities. This clearly emerges especially in the field of language laws. In this area, in fact, a permanent tension is to be noted in several Central, Eastern, and South-Eastern European countries between progressive rights for minorities and repressive practice by majorities. All countries of Central, Eastern, and South-Eastern Europe have adopted specific legislation on the use of languages of national minorities, demonstrating the high level of protection of these rights in the region. At the same time, several of these countries have also adopted laws protecting and promoting the state language, often demonstrating much greater interest in the language of the majority than in those of the minorities. Even more significantly, the languages of the minorities are often seen as the main threat to the development of the state language, thus something against which the state language must be protected. This often creates a clash between laws aimed at protecting the minority languages and state language laws. Such a clash sometimes ends up in courts and courts find it difficult to strike the right balance between the legitimate protection of the state language and the necessity that this protection is not pursued at the expenses of the fundamental rights of persons belonging to national minorities.
The first landmark decision on the relationship between promotion of the state language and protection of minority languages was issued in 1997 by the Slovak Constitutional Court. Two years before, the Slovak parliament, controlled by a nationalistic majority, passed a law on the state language of the Slovak Republic (State Language Law).6 While aimed at protecting and promoting the use of the state language, the law contained several restrictions
In 2011, an amendment to the State Language Law reduced the maximum amount of fines and the number of situations in which sanctions apply. In the same year, Slovakia introduced fines also in the 1999 Minority Languages Law and lowered the threshold required for the exercise of language rights from 20% to 15%. However, until 2021 there will be no change in practice regarding the number of bilingual municipalities in which persons belonging to a national minority can exercise their linguistic rights in relations with public authorities. Municipalities in which the 2011 census recorded a minority
Another seminal decision on the compatibility of restrictive state language laws with the fundamental rights guaranteed by the Constitution, particularly those of persons belonging to national minorities to use their own language, was issued in 1999 by the Ukrainian Constitutional Court. The Court was asked whether Article 10 of the Ukrainian Constitution, which confers the status of state language to Ukrainian only, obliges the state to ensure “the comprehensive development and functioning of the Ukrainian language in all spheres of social life throughout the entire territory” of the country and guarantees “the free development, use and protection of Russian and other languages of national minorities”. The case brought to the Court concerned, inter alia, the status of the state language in educational institutions and had to determine the concrete balance between the constitutional obligation to promote the state language and the constitutionally guaranteed opportunity for Russian and other minority languages to develop freely (Hrytsenko 2008).
The Court tried to find an interpretative way out of the dilemma. It stated that Ukrainian is the “obligatory means of communication in the whole territory of the country for all the bodies of the state power and local governments”, i.e. the language of acts, work, correspondence, documentation, etc (Constitutional Court of Ukraine 1999). However, “together with the state language, local governments (as well as state bodies in Crimea) could use Russian and other minority languages within the framework provided by the legislation” (Ibid.). In practice, other languages could also be used in education, while Ukrainian must be utilised as the language of teaching. The Court also stressed the symbolic meaning of the state language for the Ukrainian nation:10 “It entirely corresponds to the state-building role of the Ukrainian nation, specified in the Preamble of the Constitution, which has traditionally resided on the territory of Ukraine, makes up the majority of its population and has given the official name to the state” (Constitutional Court of Ukraine 1999, point 4 of the resolutive part). Notwithstanding some limited openings to the use of minority languages, it has been noted that “the decision was unequivocally perceived as being aimed at strengthening the position of the state language, primarily by implicitly ruling out Russian as an acceptable language in the central power bodies” (Kulyk 2002, 112).
By the same token, the Ukrainian Constitutional Court ruled in 2000 that the ratification procedure of the ecrml followed by Ukraine in 1999 was unconstitutional (Constitutional Court of Ukraine 2000). The reasoning of the Court was based on the procedure for ratification of international treaties, which was declared unconstitutional,11 while the contents of the Charter were not scrutinised. As a result, however, the ratification of the Charter was delayed until 2003.12 It had been noted at the time that while based on procedural grounds, the decision of the Court, given the overall political climate in the country at that time, “was a political one, designed to foster exclusionary language policies” (Stepanenko 2001, 324).
The issue is still unresolved and language laws remain a bone of contention in Ukraine. In July 2012, then president Yanukovych pushed the Verkhovna Rada (parliament) to adopt a new law on language policy (State Language Policy Law),13 which provided for the possibility to make minority languages regional languages in the regions where they are spoken by at least 10% of the population.14 According to the then opposition, the law aimed at making Ukraine a de facto bilingual Ukrainian-Russian country. The international community pointed out the polarizing effect that the law had on Ukrainian society.15 At the culminating point of the Euromaidan demonstrations on 23 February 2014, the Verkhovna Rada voted to abrogate the law, but the then acting president Turchynov vetoed the abrogation. The matter was then referred to the
This decision deserves particular consideration. Article 152 of the Ukrainian Constitution stipulates that laws are declared unconstitutional in whole or in part by the Constitutional Court “in the event that they do not conform to the Constitution of Ukraine, or if there was a violation of the procedure for their consideration, adoption or their entry into force established by the Constitution of Ukraine.” Thus, there are two grounds for declaring a law unconstitutional: (1) violation of constitutional principles; (2) violation of constitutional procedure for the consideration, adoption or entry into force of the respective regulation. It is obvious that a law may be unconstitutional on one or both grounds. However, in its 2018 decision, the Constitutional Court declined to check the constitutionality of the provisions of the 2012 State Language Policy Law after it declared the law unconstitutional on procedural grounds. The Court noted that the compliance with the constitutional procedure for the review, adoption and entry into force of laws is one of the conditions for the legitimacy of the legislative process. If this condition is violated, the Court held, “it is not the content of the law, but the procedure of its reviewing and adopting, established by the Constitution of Ukraine, which becomes the subject to constitutional control” (Constitutional Court of Ukraine 2018, para. 5). This line of reasoning is quite astonishing. The Constitutional Court was so wary of dealing with contentious language issues that it preferred to diminish its own constitutional authority.17
In April 2019, the Verkhovna Rada adopted a new law on the state language (State Language Law)18 and president Poroshenko promulgated it few days before the end of his term in office. The preamble of the 2019 State Language Law declares that it aims “to strengthen the state-building and consolidating
The 2019 State Language Law reaffirms the status of Ukrainian as the sole state language functioning as “the language of interethnic communication” and provides for its mandatory use throughout the entire territory of Ukraine “in the exercise of powers by government authorities and local self-government authorities, as well as in other common spheres of public life.”19 It establishes liability for the deliberate distortion of the Ukrainian language in official documents, in particular “the deliberate use of the Ukrainian language in violation of the requirements of the Ukrainian spelling and standards of the state language, as well as the creation of obstacles and restrictions in the use of the Ukrainian language.”20 Besides regulating language use in several fields, the 2019 State Language Law establishes the Commissioner for the Protection of the State Language who inter alia monitors the compliance with the requirements of the Law.21 In December 2019, the Venice Commission concluded that the 2019 State Language Law fails to strike a fair balance between the legitimate aim of strengthening and promoting the state language and safeguarding national minorities’ linguistic rights. The Law establishes a differential treatment that is “very problematic from the perspective of non-discrimination” and contains several provisions “which impose limitations on the freedom of expression and the freedom of association” (Venice Commission 2019, para. 137) as enshrined in the European Convention on Human Rights (echr). In June 2019, a group of mps challenged the constitutionality of several provisions of the 2019 State Language Law.22
The language issue is extremely contentious in Moldova too. The 1989 law on the use of languages of the Moldovan Soviet Socialist Republic (Law on the Use of Languages)23 referred to the “existing Moldo-Romanian linguistic identity” and “retained the designation of ‘Moldovan’ as the name of the republic’s official language while implicitly recognising that it was the same as Romanian” (King 2000, 131). The 1991 Declaration of Independence of the Republic of Moldova24 refers to “Romanian language” but Article 13(1) of the
In the period 2001–2009, president Voronin and the parliament dominated by his Party of Communists attempted to make Russian an official language alongside Moldovan, as well as to reintroduce Russian as a compulsory subject in all schools. In December 2003, the parliament adopted a “Concept of the state national policy of the Republic of Moldova”,25 a political document based on the theory that Moldovan and Romanian are different languages. The “Concept” was approved by law with the aim to serve as guidelines for public authorities in promoting a Moldovan-Russian bilingualism. The ruling party failed to implement its national policy because of strong public opposition including street protests and demonstrations. Post-2009 governments focused overall on the promotion of the state language (Prina 2015, 57; Baar and Jakubek 2017, 80).
In 2013, several mps asked the Constitutional Court of Moldova to interpret Article 13(1) of the 1994 Constitution in conjunction with the preamble of the 1991 Declaration of Independence. The Court noted that the 1991 Declaration of Independence lays out a set of key legal principles and values which represent the foundations of the republic and emphasised its “transversal function” in relation to other constitutional provisions in a manner similar to the general principles regarding the rule of law, fundamental rights and freedoms, political justice and pluralism (Constitutional Court of Moldova 2013, paras. 117–18). Following a historical and teleological interpretation, the Court observed that the struggle for the Romanian language and the Latin alphabet was a key element of the process of national emancipation which found its consecration in a Declaration of Independence that has a constitutional status. The 1991 Declaration of Independence and the 1994 Constitution form a so-called “constitutionality block” in which they have equal status and the interpretation of the Constitution shall take into consideration not only the fundamental law, but also the constitutional principles laid down in the Declaration of Independence (Ibid., paras. 87, 90, 114 and 122). The Court concluded that, in case of divergence between the Declaration of Independence and the Constitution, the primary constitutional text of the Declaration of Independence prevails, thus the state language of Moldova is Romanian.
In October 2017 the Constitutional Court of Moldova delivered a positive opinion on a legislative initiative by a group of mps to amend Article 13 of the
In January 2018, a group of mps challenged the constitutionality of several provisions of the 1989 Law on the Use of Languages and other subsequent laws,26 which stipulate inter alia the obligation of public authorities to translate all regulations into Russian language, to ensure that persons belonging to national minorities enjoy the right to use Russian in relations with public institutions and to provide education in Russian at all schools levels.27 The applicants claimed that the challenged provisions breach Article 13 (“State language, use of other languages”) and Article 16 (“Equality”) of the Constitution: they are inconsistent with the status of Romanian as the state language of Moldova and discriminate against national minorities other than Russian minority, as their languages do not enjoy the special status granted to Russian language.
The constitutional judges examined the 1989 Law on the Use of Languages and found its provisions obsolete and inconsistent with several subsequent special regulations on the use of languages.28 This Soviet-era law had fallen
b) … and at the Level of Sub-state Entities
In the context of a multinational federal country, state language laws can also be adopted at the level of the concerned sub-national unit. An important example for the purposes of this chapter is represented by the Russian Federation. Article 68(2) of the Constitution of the Russian Federation guarantees the right of the republics composing the Russian Federation to establish
In 1998, the issue at stake was whether the provision of the State Language Law of the republic of Bashkortostan requiring the proficiency in the Bashkir language (alongside with Russian) in order to stand for the election of the president of Bashkortostan was in compliance with the said provision of the Russian Constitution. The Court found this provision in breach of the federal Constitution (Constitutional Court of the Russian Federation 1998). According to the judgment, Article 68(2) of the federal Constitution grants the right for the republics to determine additional official languages in their territories as a means to preserve bilingualism (multilingualism) of their multinational people, but this is just a right and not an obligation. This right, however, cannot extend to the provision of special linguistic requirements for acquiring passive electoral rights, since political rights are recognised and guaranteed by the federal Constitution and cannot be limited by linguistic proficiency in a language that can never be the only official language of a republic. In other words, only proficiency in Russian could be imposed as a legal requirement.
In 2004, the Russian Constitutional Court established an important interpretative principle with regard to the choice of alphabets for languages that are official at sub-national level. For the Court, the right granted by the federal Constitution to the constituent republics to establish other official languages in their territories in addition to Russian does not extend to the choice of the alphabet for that language (Constitutional Court of the Russian Federation 2004). The State Language Law of the republic of Tatarstan not only declared Tatar as the state language of the republic (alongside with Russian according to the federal Constitution), but also envisaged to switch from the Cyrillic to the Latin alphabet for the Tatar language.31 The Court declared that the power to legislate on the alphabet to be used for the written languages in the Russian
In this decision, the Court deliberately omits reference to the fact that where local official languages exist, Russian (in Cyrillic script) is always official too and the linguistic regime the republics may institute is just bilingualism: no document, sign, or any act may be written in the local language only, thus the right for any Russian citizen to obtain information in a language s/he can understand and read is granted. The ruling has therefore the function of posing clear limits33 to the linguistic freedom of constituent republics and it is not by chance that it was issued with regard to Tatarstan, which used to be the most proactive republic of the federation with regard to the assertion of its own regional identity and language and used to enjoy a special status before the centralising wave imposed by president Putin (Sharafutdinova 2013).
3.2 Use of Language(s) in Dealings with the Administration
According to international standards, the right to use a minority language extends both to the private and the public sphere (see in particular Article 10 fcnm). Since the freedom to use the minority language in private is a fundamental freedom of each person and does not require, in principle, any authorisation by the public authorities to be exercised, the legal regulation of linguistic rights and freedoms usually concerns the public sphere or at least areas of public interest (such as the media). Within the public sphere, the first and main field where linguistic rights of persons belonging to national minorities come to the fore is the possibility to use minority languages in written and oral communication with public authorities, particularly with the administration (Woehrling (2005, 160–63). It is not surprising that most of the cases involving linguistic rights relate to the use of minority languages in dealings with the public administration. The question of relevance to this chapter is to identify essential interpretative principles and criteria governing the issue.
In other words, while courts have never substantially challenged the thresholds established by the legislator of the respective countries, thus undoubtedly showing (excessive?) deference in this respect, they have also been confronted with uniform standards applied throughout the region and thus were rarely called upon to scrutinise such standards. An interesting and indicative case confirming this approach was decided by the Romanian Constitutional Court.
In 2013 and 2014, the Romanian High Court of Cassation and Justice (hccj) issued two decisions which affected the right to use minority languages in relations with the public administration (Marko et al. 2019). According to Article 76(3) of the 2001 Local Public Administration Law, in municipalities where the minority population reaches the 20% threshold, local authorities shall employ persons who know the respective minority language in positions requiring interactions with the public. Article 117 of the law states that the secretary of a territorial-administrative unit has the task to ensure the transparency of and the communication to the interested authorities, institutions and persons, of the documents issued by the local council and mayor. In 2011, a small municipality with 93% ethnic Hungarian population advertised the position of secretary of the municipality. The job requirements included inter
3.3 Use of Language(s) in Judicial Proceedings
A particular segment of the right to use languages in dealings with the administration regards the language regulation in judicial proceedings. In this area, international standards are weaker than in other fields (including with regard to the right to use minority languages with the administration as a whole) and thus conditionality has operated to a much lesser extent as compared to other areas. It must be recalled, in particular, that with regard to judicial proceedings, Article 10(3) of the fcnm does not go significantly beyond the minimum requirement of the assistance of an interpreter in criminal proceedings with no additional costs for the person, which is already prescribed by Article
Judicial proceedings thus remain, to a large extent, the domain in which national authorities have the broadest margin of discretion in regulating the language issue, limited only by the guarantee of the basic individual right to be informed in a language that the person understands. While such an approach might be justified as the judicial proceedings have to take in due account the speediness and effectiveness of administration of justice, there is broad scope for improvement in this area (Cardi 2007).
Against this background, it is no surprise that courts abstain from challenging restrictive provisions as to the use of minority languages in judicial proceedings, since the standards in international and usually also in domestic constitutional law overall support or at least do not discourage such provisions.
The Ukrainian Constitutional Court ruled in 2008 that the preferential use of the state language in civil and administrative proceedings is in line with the Constitution (Constitutional Court of Ukraine 2008). More precisely, the Court upheld the provisions of the Code of Civil Procedure (Article 7) and of the Code of Administrative Court Proceedings (Article 15) which provide that the trials be conducted in the state language and at the same time guarantee the rights of citizens to use their native language or a language they have command of. Drawing on its own precedent from 1999 on the meaning of the official status of the state language, the Court reiterated that the Ukrainian legal system presupposes the use of the state language as a mandatory means of communication in all spheres of public life. The right to use other languages in public, including in judicial trials, is to be seen as an exception to this rule. Such an exception guarantees that citizens who have insufficient or no command of the state language are allowed to use their language or the language of their preference (i.e., Russian) in official dealings including in civil and administrative trials, while at the same time preserving the constitutional privilege of the state language (Constitutional Court of Ukraine 2008, para. 6.1.). For the Court, the linguistic rights of national minorities in Ukraine in judicial proceedings are “completely in line with the European Charter for Regional or Minority Languages ratified by Ukraine” (Ibid.).
It must be noted, however, that in its decision the Court deliberately narrowed the scope of constitutional guarantees of language rights, by interpreting Article 10 of the Constitution as a mere non-discrimination provision, and “remained silent on the duty of the state to ensure the exercise of language rights of national minorities” (Ulasiuk 2010b, 299–300). The ruling was
3.4 Use of Language(s) in the Media
In the field of media, courts have been asked to intervene essentially in two areas. On the one hand, they have been called to check the compatibility of media broadcast in minority languages with the constitutional provision of official status to the national language only. On the other hand, quotas for state language broadcast imposed by some countries have been scrutinised with regard to their compatibility with minority rights as well as with the freedom of the media.
As to the first set of issues, an important decision was issued by the Constitutional Court of North Macedonia in 1998, i.e., before the constitutional amendments introduced by the so called Ohrid Framework Agreement in 2001, which expanded the linguistic rights of the non-majority communities in the country, notably of the Albanian group. At the time of the judgment, the Constitution of North Macedonia clearly established the official status of the sole Macedonian language throughout the territory of the country, while recognising the right of persons belonging to national minorities, when sufficiently representative, to use their own language in some areas of public life, such as in dealings with local public administration, in education, and in the media. Against this background, a political party lodged a complaint against the law on radio broadcasting, claiming that the provisions ensuring the use of minority languages in the public radio was impeded by the constitutional provision on the official status of the Macedonian language. The Constitutional Court found that a limited radio broadcast in the minority language was
Following the same rationale, the Ukrainian Constitutional Court upheld in 2007 the national law on cinematography which provided for quotas for the state language with regard to movies. The law dictated a complex system of quotas for domestically produced movies as well as for the transmission of foreign movies, with the aim to guarantee that most of the movies performed in the country’s cinemas and television were in Ukrainian, as a means to promote the state language as prescribed by the Constitution. The suit was commenced by a number of mps, who claimed that the quotas for movies were in contrast with the protection of minority languages as well as with the freedom of media and of profession. The Court rejected the claim, affirming that the privileged status conferred to the state language by the Constitution allows (and in some circumstances even mandates) positive measures aimed at protecting the state language against the influence of foreign languages (Constitutional Court of Ukraine 2007).
In both cases, thus, the courts showed deference to the choices of the legislature and used the margin of appreciation conferred in this issue by the respective Constitution to uphold the balance already achieved by the political forces. Conversely, in a 2003 case, the Latvian Constitutional Court recognised language quotas for private media as being not in conformity with the Constitution. A group of mps challenged a provision of the law on radio and television stipulating that the proportion of foreign languages programs created by a broadcasting organisation must not exceed 25% of the total airtime per day. They claimed that the challenged norm hinders the right of private organisations to broadcast programs in minority languages and restricts the right of persons belonging to national minorities to receive information in minority languages. The Court found that the “implementation of the challenged norm has neither furthered more extensive use of the state language nor advanced the process of integration” of national minorities and held that such limitation to the use of languages “cannot be regarded as socially needed in the democratic society” (Constitutional Court of Latvia 2003, para. 4.1.).
3.5 Personal Names
International standards are very detailed with regard to the right of persons belonging to national minorities to have their name spelled in its original form and written in official documents according to the rules of the minority
Such discretion has been sometimes used (and abused) by some countries to restrict the linguistic (and in this case also identity) rights of persons belonging to national minorities, and again courts have been overall deferential when called upon to challenge such practices. An interesting case in point is Lithuania.42 The country’s legislation provided that spelling of names and their registration in official documents must be in the state language and alphabet only. This rule obliged persons belonging to some national minorities to have their names spelled differently than in their native language, such as in the case of persons belonging to the Polish minority, since the Polish language has letters that are alien to Lithuanian. In 1999, the Lithuanian Constitutional Court ruled on the constitutionality of the norms stipulating that in passports, the names of Lithuanian citizens belonging to national minorities should be written in Lithuanian letters, as they are pronounced. The Court referred to the status of the Lithuanian language as the official language of the state and emphasised the fact that it therefore had a “constitutional value” which made its use compulsory in public life. The judges upheld the constitutionality of the name-related legislation, noting that a passport is an official document certifying a permanent legal relationship between an individual and his/her country of citizenship. This type of relations belongs to the public sphere of the state, thus, the names of individuals must be written in the state language. The Court emphasised that “[i]n case legal norms provided that the names and family names of these citizens had to be written in other, non-Lithuanian letters, then not only the constitutional principle of the state language would be denied but also the activity of state and local government institutions, that of other enterprises, establishments and organisations would be disturbed” (Constitutional Court of Lithuania 1999, item 7).
In 2009, the Lithuanian parliament asked the Constitutional Court to interpret the main points of its 1999 judgment (a power conferred to the Court). The Court provided a slightly more nuanced interpretation, but the substance remained the same: a Lithuanian passport should contain the names of individuals written in the state language. Exceptionally, it would be possible “to specify the name and family name of the individual in other, non-Lithuanian graphic signs of writing and in non-grammaticised form in other sections for entries of the passport when the individual requests so; such entry of the name and family name of the individual in non-Lithuanian graphic signs of writing in other sections for entries of the passport should not be made equal to the entry regarding the identity of the individual made in the state language” (Constitutional Court of Lithuania 2009, para. 8).
In 2014, the Ministry of Justice asked the Constitutional Court another interpretation of some points of its judgment of 1999. The Court stated that, in certain cases, following the prior approval of the State Commission of the Lithuanian Language,43 non-Lithuanian names and surnames can be registered not only in Lithuanian characters but also in different characters of the Latin alphabet which are consistent with the tradition of the Lithuanian language and do not violate the rules of the national language (Constitutional Court of Lithuania 2014, para. 7). In other words, no names may be written in the Cyrillic script which is an indirect discrimination of any person – member of a national minority – whose mother tongue uses the Cyrillic alphabet.
In more recent years, a number of Lithuanian courts found that the refusal to register personal names in their original spelling was discriminatory and contrary to the jurisprudence of the European Court of Justice and the European Court of Human Rights (Mickonytė 2017). For instance, in February
3.6 Place Names
The right to give places a name in a minority language (or, as it is more frequent, also in the minority language alongside with the language of the majority), albeit clearly established in international standards,44 is subject to the same general conditions for linguistic rights as a whole, i.e., to numerical thresholds.45 The courts have in some occasions been asked to interpret the conformity of thresholds for the establishment of bilingual municipalities with the respective Constitution, but also to determine the relationship between the right to toponymy in minority languages and the constitutional preference for the state language.
The first set of issues is exemplified by two decisions adopted by the Constitutional Court of Croatia before the radical change in attitude brought in 2002 by the adoption of the constitutional law on the rights of national minorities (Law on National Minorities),46 which started a new and more favourable phase for the protection of minority rights in Croatia (Petričušić 2004). Prior to that law, the Croatian legislation and even more its interpretation were marked by significant nationalism and the rights of national minorities were limited and scarcely implemented. With regard to place names in minority languages, the legislation provided for a threshold of at least 50% of persons belonging to national minorities in order to make the minority language co-official in the territory of that individual administrative unit, including with respect to the toponymy in minority languages. The first autonomy statute of Istria, adopted in 1994, tried to circumvent this provision by establishing a “presumption of
The second case arose from an administrative appeal of the Istrian regional government against an order imposed by the central government to remove bilingual signs displayed in the regional headquarters and offices of the town of Pazin/Pisino (Constitutional Court of Croatia 2003). The case was complex and essentially administrative in nature. The relevancy for purposes of this chapter was that the Court rejected the case of the Istrian administration, but basically on the grounds of the law that was in force at the time of the removal of signs: indeed, the Court ruled that the legislative situation in 1998 enabled central authorities to remove the bilingual signs, whereas subsequent evolution of the laws at least partly changed the picture.
The new course was epitomised by the Constitutional Court’s decision to declare inadmissible a referendum aiming at amending the Law on National Minorities in 2014. The proposed referendum’s objective was to reintroduce the threshold of 50% for linguistic rights as opposed to 33%, which is what the law demands.47 The target was in particular the country’s Serbian minority, as the initiative came from a radical nationalistic group protesting against the display of bilingual signs (in Latin and Cyrillic script) in Vukovar. The Court found that although enough signatures had been collected to call a referendum, the question itself was unconstitutional, as the proposed change would
Particularly remarkable is the restrictive interpretation given by some high courts to the fcnm and domestic legislation on minority protection. For instance, the Supreme Administrative Court of Lithuania held that the fcnm is “a document of a political and policy-making character and not a normative document” (Supreme Administrative Court of Lithuania 2009). This astonishing statement challenges the legally binding character of the fcnm but the Court reiterated this position in 2011 and 2013 rulings regarding the use of minority languages on public signs and street names (Marko et al. 2019). The judges consistently held that all inscriptions displayed in public should be in the state language. Therefore, it is illegal to display signs and street names in minority languages (Supreme Administrative Court of Lithuania 2011). In 2013, the Court required the local authorities of Šalčininkai district to remove all bilingual signs from private homes and replace them with Lithuanian language signs, despite the fact that residents paid for the bilingual signs and displayed them on their private properties (Supreme Administrative Court of Lithuania 2013). According to the narrow interpretation of the judges, only the names of organisations of national minorities and their information signs could be displayed in a minority language, next to the state language (Ibid.). Such ideologically biased rulings allow state interference even into the private sphere without restriction or necessary justification (Marko et al. 2019, 238–39). The approach of the Lithuanian judges stemmed from a state language ethos and a national narrative whereby linguistic assimilation is a legitimate aim. As the Constitutional Court put it, “state language preserves the identity of the nation, it integrates a civic nation, it ensures the expression of national sovereignty, the integrity and indivisibility of the state, and the smooth functioning of the state” (Constitutional Court of Lithuania 1999).
3.7 Use of Minority Language(s) in Schools
One of the most important areas where linguistic rights of national minorities have been frequently challenged in courts is that of education. The right to receive instruction in or of their mother tongue is an essential component of linguistic rights of persons belonging to national minorities, since it makes
The first case of relevance is a seminal judgment by the Latvian Constitutional Court in 2005. The Court was asked to check the constitutionality of some amendments passed in 2004 to the 1998 Education Law,49 which aimed at restricting the availability of education in Russian language. The amended law prescribed, inter alia, that not less than 3/5 of the total number of classes be given in the state language, thus limiting the teaching in minority and foreign languages. Such amendment clearly targeted the education in Russian language and reduced the opportunities for Russian speakers50 to obtain education in their mother tongue. The Court upheld the amended law and considered it in line with the constitutional preference for the state language as a means for strengthening the national identity (Constitutional Court of Latvia 2005). The Court dismissed the argument that such a policy had a negative impact on the rights of persons belonging to national minorities, because in its opinion the system still allows for education in minority languages. In addition, and more importantly, the Court based its decision on the theory of occupation, which has been developed since the independence of Latvia from the Soviet Union: accordingly, the Russian speakers in Latvia are not to be considered as a national minority, but as settlers who moved into the country during the time of an illegal occupation by a foreign state. These people (and their children, even if born in Latvia) are thus denied, in principle, the citizenship of the country (although this gradually changed over time)51 and are denied the status of a national minority and the rights connected to this status, including education in their mother tongue.52 The only Russian
What is striking in this judgment is, in particular, the timing of the decision. It was adopted just a few days before the fcnm entered into force in Latvia.53 This made it possible for the Court to avoid the analysis of compatibility between the amended Education Law and the fcnm, which would have been extremely problematic, also considering that, according to the Latvian Constitution, international treaties prevail over ordinary legislation. Aware of that, the Court denied that the fcnm could have become a norm of international customary law: “the fact of signing the Minority Convention and the content of it do not restrict Latvia in realization of such an education policy, which it considers as well-grounded” (Constitutional Court of Latvia 2005, para. 8.2). Against this background, the Court also provides its peculiar reading of the fcnm and of the comparative practice developed by the signatory states. The Court ruled that the fcnm allows the states parties to define what a national minority is, and its implementation in the various countries would justify the exclusion of the Russian community from the scope of the fcnm, even after its entry into force in Latvia: “The practice of the European Union Member States in realization of the Minority Convention [sic] testifies that the aim of the above [mentioned] Convention usually is to protect the assimilated ethnic minorities from vanishing. In fact, in the understanding of this Convention, in Western Europe there are no ethnic minorities, the greatest part [sic] of which does not know the State language. In the same way, in the greatest number of the European Union Member States this Convention is not applied to the post-war settlers and the greatest part of Russians of Latvia may be regarded as such” (Ibid., para. 9).54 Thus, the Court is extremely diligent in finding peculiar arguments to support the overall minority policy of the government and, more generally, the spirit of the (drafters of the) Constitution, reducing to the greatest extent the scope of minority rights, including in education.
In 2019, the Latvian Constitutional Court reiterated the same approach on the same issue, by upholding the further amendments to the 1998 Education Law that further strengthened the role of the state language in minority
In September 2017, Ukraine adopted a new Education Law57 which has drawn strong condemnation both domestically and internationally. The contested provisions concern the use of minority languages. Article 7(1) of the 2017 Education Law lays down the following principles: a) the language of the educational process in Ukraine’s schools is the state language; b) persons belonging to Indigenous peoples have the right to study in their mother tongue – along with the state language – in communal educational institutions at the pre-school, primary and secondary school levels; c) persons belonging to national minorities have the right to study in their mother tongue58 – along with the state language – in communal educational institutions59 at pre-school
The Law does not define the terms “national minorities” and “Indigenous peoples” and does not specify the proportion of education that will take place in their languages. Indigenous peoples enjoy the most favourable regime as they have the right to study in their mother tongue also at secondary school level. According to Article 7(4), “one or more subjects” may be taught in two or more languages – that is, state language, English and other EU official languages. This provision has two implications. First, the establishment of such type of education is not a guaranteed right, but an option left at the discretion of public authorities. Second, in practice, persons belonging to national minorities might be treated differently depending on whether their mother tongue is an official EU language or not. While speakers of minority languages which are official languages of the EU may receive at least some of their secondary level education through the medium of their mother tongue, other national minorities will only be entitled to teaching of their languages as a subject. The 2017 Education Law establishes a hierarchy among three categories of languages: languages of Indigenous peoples; languages of national minorities which are EU official languages (e.g., Hungarian, Polish, Romanian, Slovak); languages of national minorities which are not EU official languages (e.g., Belarusian, Gagauz, Moldovan, Russian).
The Venice Commission’s Opinion on the 2017 Education Law concludes that “Article 7 contains important ambiguities and does not appear to provide the guidance needed from a framework law in the application of the country’s international and constitutional obligations. It contains some guarantees for education in the minority languages, mainly limited to primary education, though the exact scope of such guarantees is not as clear as it could be” (Venice Commission 2017, para. 120). The Commission continued that Article 7 is silent on “the subjects of the protection, the relevant territorial areas or the necessary criteria, procedures, or the stakeholders involved” and this vagueness “raises a clear issue of legal uncertainty likely to create serious problems of interpretation and application” (Ibid., paras. 62 and 67). The Commission concluded that
In October 2017, a group of mps challenged the 2017 Education Law before the Constitutional Court. They argued that it narrows the content and scope of the existing right of persons belonging to national minorities to study in their mother tongue in secondary schools, violates the principle of legal certainty, and discriminates on linguistic and ethnic grounds. In July 2019, the Court held that the disputed provisions of the law comply with the Constitution (Constitutional Court of Ukraine 2019). The Court noted that the state must ensure the comprehensive development and functioning of the Ukrainian language in all spheres of public life throughout the entire territory of the country and argued that the 2017 Education Law provides persons belonging to national minorities with “means and mechanisms” for the realisation of the right to study (in) their mother tongue along with the state language, since this is a precondition for “their full integration into Ukrainian society” and a “conscious unification of citizens within the territory of Ukraine” (Ibid., para. 3). According to the Court, the 2017 Education Law does not preclude the study of languages of national minorities; it ensures a balanced approach to the study of state language and creates the legislative prerequisites for the effective functioning and development of the state language as a means of communication and socialisation. Its provisions are aimed at creating for all citizens of Ukraine the conditions necessary to attain a high level of state language proficiency which, in the future, will enable them to carry out professional activities in Ukrainian (Ibid., para. 3–4). Finally, the Constitutional Court held that the law is consistent with the requirement of legal certainty because “the essence of certain disputed provisions […] is revealed through the lexical meaning of words” (Ibid., para. 4).
Conversely, in a judgment from February 2010, the Ukrainian Constitutional Court stroke down a restrictive language policy in education. This decision is particularly relevant as the Ukrainian Court has not been deferential to the overall nationalistic linguistic policy of the government and struck down a governmental provision on the use of language in schools. The Court declared a governmental decree of 200961 which banned the use of languages other than Ukrainian (i.e., de facto, Russian) by school personnel outside of classrooms, as unconstitutional (Constitutional Court of Ukraine 2010). In practice, the decree intended to stop the quite widespread practice of school employees of schools with Ukrainian as language of instruction (teachers, administrative staff, cleaners, etc.) from talking to each other in Russian within the school building, including outside of classes and official meetings (for example during coffee breaks and alike). The case was brought by a group of mps and the Court ruled only on who is responsible for establishing rules on languages, without dealing with the substance of the law. In fact, the judges found that the power
A further important decision was issued by the Constitutional Court of North Macedonia and mirrors in many ways the just mentioned Ukrainian case. In 2009, the Ministry of Education and Science in Skopje issued a decree according to which, from the following school year, the Macedonian language had to be taught in schools with minority language of instruction from the first grade.62 Until then, Macedonian language had been introduced in minority language schools as a compulsory subject from the third grade and in practice several schools with Albanian as a language of instruction provided instruction in English already from the first or the second grade, thus making Macedonian, the official language of the state, de facto the third language for the pupils. The minister justified the decree by referring to integration needs. The argument was that pupils belonging to minority communities (notably Albanians), especially those living in the West of the country where they form the overwhelming majority, would have had too little and too late exposure to the state language, thus making their integration into the wider Macedonian society more difficult and hampering their chances for professional success in their own country (Constitutional Court of North Macedonia 2010). The decree upset a large number of Albanian parents and worried the schools with Albanian as language of instruction, which challenged the provision. In July 2010, the Constitutional Court struck down the contested decree (Ibid.). Similarly to the Ukrainian case, the Court based its decision on the violation of the prerogatives of the parliament rather than on the substance of the right. According to the Constitution of North Macedonia (as amended after the 2001 Ohrid Framework Agreement), laws that directly concern culture, use of languages, education, personal documents, and the use of symbols must be approved by parliament by a special majority (so-called “Badinter majority”) – i.e. also with the majority of votes of the present mps that belong to the communities which are not the majority in the country (Amendment X, item 2 of the Constitution). The parliamentary procedure thus represents a special
In 2011, the Romanian Constitutional Court dealt with a case regarding the alleged unconstitutionality of several provisions of the newly adopted National Education Law.63 A group of mps argued that the education law recognises a collective right of national minorities because it stipulates that in the schools with instruction in a minority language, the subject ”Romanian language and literature” must be taught on the basis of special syllabi and textbooks elaborated specifically for the respective minority. According to the plaintiffs, this provision represented a form of (reverse) discrimination64 of the majority based on ethnic criteria. The Court declared that “the law on national education does not lay down any collective right for minorities, but only individual rights” and argued that “no international legal instrument confers collective rights to minorities” (Constitutional Court of Romania 2011). The judges held that the specific situation of persons belonging to national minorities requires a special treatment with the aim to ensure their effective and equal access to quality education. Adapting the teaching requirements for the subject “Romanian language and literature” to the existing situation of national minorities does not discriminate against the majority. The Court concluded that, when it comes to national minorities, the state has a negative obligation (to refrain from policies or practices aimed at assimilation) as well as a positive obligation (to support the preservation and development of their cultural identity) and acknowledged that positive measures may also be necessary to protect minority rights (Ibid.).
All this goes to show that for the time being linguistic rights of minorities in education represent perhaps the most fluid area where the interplay between generous minority rights and reticent implementation, as well as between courts and politics, is developing.
4
In Central, Eastern, and South-Eastern Europe minority rights, including the right to use minority languages in the public sphere, are experiencing extraordinary, complex developments. A considerable amount of constitutional and legislative provisions have been adopted, mostly incorporating international standards, although in some case, like the language laws, such standards are (even blatantly) contradicted. The adjudication of minority rights in courtrooms, instead, is somehow lagging behind: rights that are seemingly well developed on paper are often scarcely implemented in practice. Adding thereto, the rights are frequently not given the full legal effect by the courts as minorities may expect. A careful analysis of the foregoing judgments presents more nuanced outcomes and provides some explanation for such a situation.
First, court rulings on (linguistic) rights of national minorities are numerous. The overall number might be less than one could expect, given the widespread legislation on the topic and the problems with the implementation of several provisions, but it is nevertheless substantial. Although no statistics are available on the subject, it is estimated that the judicial cases involving linguistic rights of persons belonging to national minorities in Central and Eastern European countries are by far more numerous than in Western Europe.
Second, the context of transition should be taken into due account in order to explain some difficulties to adjudicate (linguistic) rights of minorities in courts. After the fall of the Berlin Wall, the countries in Central, Eastern, and South-Eastern Europe were (re)established or created essentially alongside ethnic borders and the markers of ethnicity (including, in a prominent position, language) have played an essential role in defining the nation-building and the very raison d’être of these states. At the same time, however, they have been exposed to an unprecedented degree of international conditionality, especially in the field of minority rights. The permanent tension between international commitments (formalised in constitutional documents and legislation) and intrinsic nationalistic attitudes by the leading elites (including the judges) led to extreme politicisation of minority issues. These were thus (seen as to be) resolved in the political arena rather than by courts.
Third, transition from communist authoritarianism to liberal democracy implies a profound shift in the attitude towards the judicial power. It takes time and a change in the overall societal approach before trusting an independent judiciary. This means that the minorities themselves have for long time preferred the political arena (and sometimes even the battleground) over litigation to affirm and execute their rights. It is only in more recent times that the judicial option is increasingly seen as the more rational avenue to enforce
Fourth, and not least important, transition has affected the judiciary itself. The establishment of working democracies in Central, Eastern, and South-Eastern Europe went hand in hand with the development of independent judiciary. This process – and democratisation as a whole – happened to a very different degree in the various countries of the region. In fact, it is still an ongoing process. It follows that the judiciary is, although with remarkable differences from country to country, still on its way to become fully independent. Especially the higher courts are somewhat influenced by the political climate, and the closeness to politics regards even more the constitutional courts. In the countries covered in this chapter, constitutional judges are appointed by the political actors (mostly by parliaments). In such a context, it is normal that the establishment of a really independent judiciary is a long and challenging process. The considerable backsliding going on in several Central-Eastern European countries with regard to autocracy and departure from the rule of law (Sadurski 2019) shows that high courts in the region have a rocky road ahead and that the process towards full judicial independence is all but straightforward.
Fifth, it is worth noting that most judges (particularly constitutional judges due to the procedure for their appointment) come from the majority milieu. Even if independent, they are not (nor they should be) indifferent to the overall political climate. In addition, they usually come from the elite of the society and, most importantly for our purposes, from the majority. This is to say that, also involuntarily, they bring the perspective, the approach, and the legal reasoning of the majority into their judgments. This is clearly exemplified by the many decisions mentioned in this chapter that adopted a strictly formal reading of equality, that unavoidably lead to privilege the position of the majority over that of the minority. While in some of the analysed cases such an approach has clearly been intentional, also the unintentional side of this interpretative attitude is to be taken into consideration.
The contribution of the courts in developing minority rights, and particularly linguistic rights, in Central, Eastern, and South-Eastern Europe should not be underestimated. While overall deferential to the choices of the (political) majorities, the case law has, albeit timidly, forced some small step forward in guaranteeing minority rights. Even though the most progressive judgments
However, taking an historical perspective, different moments can be identified with regard to the stabilisation of the role of courts as independent actors. While nearly all judgments from the 1990s endorsed the restrictive governmental policies towards minorities, in the first decade of the millennium case law took a somewhat more careful and balanced approach and went as far as to strike down some of the most repressive measures with regard to linguistic rights. In the last decade, instead, counter-majoritarian rulings became again more seldom, due to the steps back made in several countries on the way to the establishment of the rule of law.
The chapter has been written and discussed together. Francesco Palermo is mainly responsible for parts 1, 2, 3.1, 3.2, 3.3, and Sergiu Constantin for parts 3.4, 3.5, 3.6, 3.7 and 4.
In this chapter the general term “persons belonging to national minorities” or simply “national minorities” is used. This term is the most recurrent in international practice, encompassing a wide range of minority groups, including religious, linguistic, and cultural as well as ethnic minorities, although the individual countries often use different terminology. In particular, in several Western Balkan countries, the expression “community” is used rather than minority, and sometimes a legal difference is associated with the term. Precisely to avoid possible misunderstandings, the terminology chosen follows the practice of international organisations such as the Council of Europe and the osce.
For the full list of ratifications, see the webpages of the fcnm and the ecrml at
In fact, most of these states were (re-)established having a clear titular majority in mind, and minorities in most cases were at best tolerated, if not expressly repressed.
See for these links the commentaries adopted by the Advisory Committee on the Framework Convention for the Protection of National Minorities (acfc), especially the one on linguistic rights of persons belonging to national minorities. They are available online at
Most of the countries provide for a threshold of 20% (usually at local level, but sometimes also at national level, such as in North Macedonia) in order to allow the official use of minority languages. In some cases, thresholds are even higher, such as in the case of Croatia and Estonia, where the requirement is that of a minimum of 33% (“at least one third of the population”) and 50% respectively of minority language speakers at local or district level. This practice is criticised by the acfc for being too high. See acfc (2005) and acfc (2002a).
Act no. 270/1995 of 15 November 1995 on the state language of the Slovak Republic.
Act no. 184/1999 of 10 July 1999 on the use of the languages of national minorities.
Act no. 318/2009 of 30 June 2009 and Act no. 357/2009 of 9 September 2009 on the state language of the Slovak Republic. These amendments to the State Language Law were complemented by some guidelines (Principles of the Government) for their implementation adopted in December 2009.
See in particular Venice Commission (2010).
For a comprehensive historical and legal analysis of language disputes in Ukraine, see Ulasiuk (2010a). For post-Maidan developments, see Kulyk (2016).
The issue was whether or not the speaker of the parliament did or did not submit the law to the president for promulgation. The speaker of the parliament followed the procedure laid down in Article 7 of the Law on ratification of international treaties, which exempts such laws from presidential promulgation. According to the Court such provision violated the constitutional division of powers between the parliament and the president and was thus declared unconstitutional.
Law no. 802-iv of 15 May 2003 on ratification of the European Charter for Regional or Minority Languages.
Law no. 5029-vi of 3 July 2012 on the principles of the state language policy of Ukraine.
In at least 9 regions of Ukraine Russian has been declared regional, thus co-official language (acfc 2018, para. 119).
See Venice Commission (2011). This opinion of the Venice Commission referred to an early draft of the law, not to the final text, which was rushed through in parliament.
For example, some mps whose votes were counted were not even present at the Verkhovna Rada and some mps voted with cards of other mps.
Several constitutional judges issued dissenting opinions. For instance, judge Mykola Melnyk highlighted the Court’s self-limitation of constitutional authority and argued that it “was not only entitled but also required to review the content” of the 2012 State Language Policy Law which, in his view, was “clearly anti-Ukrainian” as it laid the ground for a “systematic Russification of Ukraine” and for the “destruction of the Ukrainian state” (Constitutional Court of Ukraine 2018; Dissenting opinion of judge Mykola Melnyk).
Law no. 2704-viii of 25 April 2019 on ensuring the functioning of Ukrainian as the state language. It replaced the 2012 State Language Policy Law which had been declared unconstitutional by the Constitutional Court in February 2018.
2019 State Language Law, Article 1(1)-(4), (7), (8).
Ibid., Article 1(6).
Ibid., Articles 49–52.
At time of writing, this issue has not been resolved. The parliament however decided to start drafting a new law on national minorities, which is supposed to provide the required balance with the promotion of the state language.
Law no. 3465 of 1 September 1989 on the use of languages on the territory of the Moldovan Soviet Socialist Republic.
Law no. 691/1991 of 27 August 1991 on Declaration of Independence of the Republic of Moldova.
Law no. 546/2003 of 19 December 2003 on the approval of the Concept of the national policy of the Republic of Moldova.
E.g. Law no. 382/2001 of 19 July 2001 on the rights of persons belonging to national minorities and the legal status of their organisations; Law no. 173/1994 of 6 July 1994 on the publication and enactment of official acts; Law no. 797/1996 of 2 April 1996 on parliament’s rules of procedure.
According to Article 3 of the 1989 Law on the Use of Languages, Russian is “the language of communication among the ussr’s nations” and its use along the state language guarantees “an effective national-Russian, and Russian-national bilingualism”. Article 4 of the Law guarantees the use of other minority languages according to their “national-cultural needs”.
E.g. Law no. 382/2001 of 19 July 2001 on the rights of persons belonging to national minorities and the legal status of their organisations; Law no. 344/1994 of 23 December 1994 on the special legal status of Gagauzia; Law no. 173/2005 of 22 July 2005 on the basic provisions of the special legal status of the settlements on the left bank of the Dniester; Law no. 1227/1997 of 27 June 1997 on advertisement, Law no 125/2007 of 11 May 2007 on the freedom of conscience, thought and religion.
“[K]nowledge of the official language is a factor of social cohesion and integration” (fcnm Explanatory Report, para.78).
“[P]rotection and encouragement of regional or minority languages should not be to the detriment of the official languages and the need to learn them” (ecrml Preamble).
The Tatar language was originally written in Arabic characters. These were replaced by the Latin script in the 1920s and in 1939 the Soviet authorities imposed the exclusive use of the Cyrillic alphabet. For details, see Sebba (2006).
As appropriately reminded by the acfc (2007, para. 199), however, “it is difficult to draw a clear distinction between the right to use a minority language and the right to choose the alphabet for the use of the language at issue. The choice of alphabet, as part of the right to use a minority language in private and in public […] should be decided by the person concerned”.
For broader considerations, see Trochev (2008).
As it has been the case, on the contrary, in Austria, where the Constitutional Court declared that the threshold of at least 20% of minority-language speakers determined by the legislator was arbitrary and unconstitutional, thus lowering the threshold to 10% (Constitutional Court of Austria 2001) The Court ruled that a Carinthian municipality with 10.4% Slovene speakers should be considered an “administrative district with mixed populations” within the meaning of Article 7(3) of the State Treaty of Vienna, implying that Slovenian is recognised as an official language, thus enabling its use in official dealings at local level. It must be pointed out, however, that implementation of this decision took ten years: only after a difficult political compromise in 2011 was the threshold put at 17.5%. This demonstrates how difficult it is, in practice, to enforce by judicial decision a principle that is not accepted by the (or, in the case of Austria, only by some) political forces. See Pirker (2010) and Marko et al. (2019).
In the language of the Canadian Charter of Rights and Freedoms, this could be phrased with the formula “where numbers warrant”. See Section 23 of the Canadian Charter of Rights and Freedoms (1982).
See acfc (2002a) and acfc (2002b), At the time when the acfc issued these Opinions, in both Estonia and Croatia the threshold set by the legislator was 50%.
In 2002, Croatia lowered the threshold from 50% to 33%. For the case of Croatia, see Petričušić (2004) and Palermo (2011).
Law no. 215/2001 of 23 April 2001 on the local public administration.
Article 10(2) of the fcnm states: “In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavour to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities” (emphasis added).
See in particular Article 11 fcnm.
See acfc (2004), In this First Opinion on Azerbaijan, the acfc noted that language should not be disconnected from its essential elements such as the alphabet. “While recognising that the Azerbaijani authorities may, in accordance with Article 11 of the Framework Convention, use the Latin alphabet when writing the names of persons belonging to national minorities, the Advisory Committee expects that the right to official recognition of names in minority languages be fully respected in this connection” (acfc 2004, para. 58).
For details on the Lithuanian case, see Marko et al. (2019, 240–42).
The State Commission of the Lithuanian Language is the main official body responsible for the implementation of language policies and inter alia has the task of submitting conclusions to state institutions on the draft legal acts that contain provisions regulating the use of the state language.
See again Article 11 fcnm.
Although the fcnm provides that the right to co-official place names in minority languages should not be limited to areas where “minorities reside in substantial numbers” (the “substance” having to be determined by the national authorities, that usually impose a threshold of 20%, as stated above), but also to areas where national minorities reside “traditionally” (Articles 10 and 11 fcnm), this second aspect is often neglected by the national authorities. See acfc (2006) and acfc (2011).
Constitutional Law of 13 December 2002 on the rights of national minorities.
Article 12(1) of the 2002 Constitutional Law on the rights of national minorities provides that the units of local self-government must guarantee “the equal official use of the language and script” used by a national minority if members of the respective national minority account for “at least one third of the population of such unit”.
For more details, see Dudás (2015).
Law of 5 February 2004 on amendments to the Education Law (which was adopted on 29 October 1998).
In the 2011 census, 26.9% of the residents self-identified as ethnic Russians. However, 37.2% of the population of Latvia speak Russian at home. For details, see the information published by the Central Statistical Bureau of Latvia at
On the complex process of reduction of statelessness in Latvia, see Kemp (2001, 153–65).
On these issues, with particular regard to educational rights in Latvia, see Silova (2006).
The decision was adopted on 13 May 2005 and the fcnm was ratified by Latvia on 6 June 2005.
For a reading of the judgment in light of the fcnm, see Palermo (2008).
Law of 22 March 2018 on amendments to the Education Law introduced inter alia new para. 11 and 12 at Article 41 of the Education Law which regulates the education programmes of ethnic minorities.
For more details, see Dimitrovs (2019) and Kascian (2019).
Law no. 2145-viii of 5 September 2017 on education.
The Ministry of Education and Sciences of Ukraine uses “native language” and “mother tongue” as interchangeable terms in its Position Paper on the Article 7 of the 2017 Education Law: “[P]rovided that ‘in accordance with the law’ the guarantees for national minorities are preserved with regard to the education in the native language at some levels of education, and the study of the mother tongue at other levels of education in state and municipal educational institutions (and not only ‘through national cultural societies’), there is no narrowing of the content or scope of constitutional rights provided in Article 53 of the Constitution” (Government of Ukraine 2017, 12; emphasis added).
Ukrainian education system consists of state, communal, private, and corporate educational institutions. While state educational institutions are established by the central government, communal educational institutions are established by region (oblast), district (raion) or local self-governments. Corporate educational institutions are based on the principles of public-private partnership (Csernicskó and Oros 2019, 15).
Law no. 463-ix of 16 January 2020 on complete general secondary education.
Governmental Decree no. 1033/2009 of 30 September 2009 concerning amendments to the Regulations on secondary education.
Decree of the Ministry of Education and Science no. 07-6323/1 of 27 August 2009.
Law no. 1/2011 of 5 January 2011 on national education.
For a discussion around “reverse discrimination”, see Marko (2019).
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Case Law
Please refer to the list on pages viii–xvi.