Judgment 14.9.2023 [Section V]
Legislative amendments increasing the proportion of subjects taught in public schools in the only State language, Latvian, and thus reducing the use of Russian as the language of instruction: no violation
Facts – In 2018 legislative amendments were passed providing that the proportion of subjects to be taught in the State language, that is, Latvian, was to be increased in public schools. The applicants are parents and children who identify themselves as belonging to the Russian-speaking minority in Latvia. They complain that the amendments significantly restricted the use of their mother tongue (Russian) while the applicants who were school pupils at the relevant time had been pursuing an education in public schools in Latvia. They argue in particular that the high proportion of subjects to be taught in Latvian had disproportionately affected them.
Law – Article 2 of Protocol No. 1:
In view of the applicants’ argument that the choice of a language of instruction in education was now covered by this provision, the Court was called upon to determine whether the conclusions drawn in the “Belgian linguistic case” were applicable to the present case and, in that connection, whether there had been any further development of the Court’s case-law or any other applicable rules of international law or practice affecting the meaning and scope of Article 2 of Protocol No. 1. In the aforementioned case, the Court had held that although Article 2 of Protocol No. 1 did not specify the language in which education must be conducted, the right to education would be meaningless if it did not imply in favour of its beneficiaries, the right to be educated in the national language or in one of the national languages, as the case might be. Further, that Article did not require of States that they should, in the sphere of education or teaching, respect parents’ linguistic preferences.
In so far as the applicants had referred to Catan and Others v. the Republic of Moldova and Russia [GC] and Cyprus v. Turkey [GC], the Court stated that the crux of those cases had not been the applicants’ right to access educational institutions in a language of their choice, but in the “national language” of the country concerned. It had been in that context that the Court, in both cases, had held that the relevant pupils and their parents could claim protection under the first and second sentences of Article 2 of Protocol No. 1 as regards education in one of the national languages of the country concerned. In Catan it had merely confirmed the conclusions drawn in the “Belgian linguistic case”. Therefore, the Court had not expanded the scope of the right to education to include the right to access educational institutions in a language of one’s choice. Nor had it done so in Ádám and Others v. Romania, to which the applicants also referred. In that case the Court had emphasised that the Framework Convention for the Protection of National Minorites (Framework Convention) recognised that the protection and encouragement of minority languages should not be to the detriment of official languages and the need to learn them. It had been recognised that under that Convention opportunities to teach in minority languages might vary according to the specific parameters of local situations and a balance had to be sought between proficiency in the official language of the State and proficiency in minority languages. Its Article 14 left the State Parties a wide margin of discretion with regard to providing for the teaching of minority languages or teaching in such languages in their education system. Moreover, the Court noted the Latvian Constitutional Court’s findings that there was no European consensus with respect to minorities’ rights in the field of education and that there had been no grounds to consider that under the Framework Convention the States would have to ensure such form of preserving and developing the language, ethnic and cultural singularity as acquiring education in the minority language or in certain proportion without taking into account the national constitutional system.
Accordingly, the right enshrined by Article 2 of Protocol No. 1 did not include the right to access education in a particular language; it guaranteed the right to education in one of the national languages or, in other words, official languages of the country concerned. Given that the Latvian language was the only official language in Latvia, the applicants could not complain under Article 2 of Protocol No. 1 about the decreased use of Russian as the language of instruction in schools in Latvia per se. The applicants had not put forward specific arguments alleging that the restrictions would have had adverse consequences on them having a possibility of obtaining an education.
Conclusion: inadmissible (incompatible ratione materiae).
Article 14 taken in conjunction with Article 2 of Protocol No. 1:
(a) Applicability – The Court’s conclusion in respect of the scope of Article 2 of Protocol No. 1 could not be taken to imply that the facts of the case did not fall within its ambit. The Court had already held that Article 14, even when read in conjunction with Article 2 of Protocol No. 1, did not have the effect of guaranteeing children or their parents the right to instruction in a language of their choice. The object of those two Articles, read in conjunction, was more limited: it was to ensure that the right to education was secured by each Contracting Party to everyone within its jurisdiction without discrimination on the grounds, for instance, of language. It was precisely that aspect that was the crux of the applicants’ complaint in the present case. Prior to the 2018 amendments Russian-speaking pupils had been able to pursue an education in Latvia where some or even substantial parts of the curriculum had been taught in Russian. The applicants claimed that the amendments, by providing for the increase in the use of the State language as the language of instruction and thus the decrease in the use of Russian, had been discriminatory. Accordingly, as in the “Belgian linguistic case”, the Court had competence to examine whether there had been an unjustified difference in treatment and the facts of the case, as alleged by the applicants, fell “within the ambit” of Article 2 of Protocol No. 1 taken together with Article 14.
Conclusion: preliminary objection dismissed (ratione materiae).
(b) Merits –
(i) Alleged ground of discrimination – The Court examined the case solely on the basis of language as the grounds for the alleged difference in treatment.
(ii) Whether Russian-speaking pupils were in a relevantly similar situation to Latvian-speaking pupils and, consequently, whether there was a difference of treatment – The impugned legislative amendments concerned pupils enrolled in all public schools with the aim of restoring the use of Latvian as the language of instruction and the unity of the educational system in Latvia, to facilitate equal access for pupils to the State educational system and, from a broader perspective, the need to eliminate the consequences of the segregation in education that had existed under the Soviet regime. The effect of those amendments had been that Russian-speaking pupils, such as the pupil applicants, who were enrolled in educational programmes for minorities, could no longer pursue an education where substantial parts of the curriculum was taught in Russian (their main family language or mother tongue), whereas Latvian-speaking pupils could continue to pursue their education in Latvian (their main family language or mother tongue). Thus, following the amendments, Russian-speaking pupils and Latvian-speaking pupils in the same class – irrespective of which school or education programme they had been enrolled in – were required to follow a similar curriculum which clearly defined how much Latvian would be used as the language of instruction. Looking at the comparable situations as a whole and considering that exceptions were no longer available with respect to Russian-speaking pupils enrolled in educational programmes for minorities, the Court considered that Russian-speaking pupils and Latvian-speaking pupils were in a relevantly similar situation when pursuing their education in public schools following the impugned legislative amendments.
(iii) The legitimacy of the aims pursued – Latvia, like some other member States of the Council of Europe, had chosen to accord the status of an official language only to the Latvian language and had recorded that in its Constitution. The Latvian language thus was one of the State’s fundamental constitutional values. The Constitutional Court had handed down several judgments analysing various stages of the education reform as regards the increased use of Latvian as the language of instruction and had relied not only on the need to protect the rights of others and the democratic order of the State, but also the need to afford special protection to the Latvian language and the need to strengthen its use as the State language. It had also explained why it considered that everyone living in Latvia had to have a sufficient level of Latvian to be able to participate in the life of a democratic society. Its assessment appeared to be consonant with the Venice Commission’s opinion with respect to Latvia and the Advisory Committee on the Framework Convention’s view (with respect to other countries) that the need to improve proficiency in a State language could be considered a legitimate aim. Further, the Court of Justice of the European Union – in its preliminary ruling concerning the language of instruction in universities in Latvia (C‑391/20), – had held that the objective of promoting and encouraging the use of one of the official languages of a member State must be regarded as being a legitimate objective in respect of the freedom of establishment as enshrined in EU law.
Against that background, and in particular taking into account historical factors which had caused the use of Latvian to be significantly restricted for more than fifty years during the unlawful occupation and annexation of Latvia by the Soviet regime, when Russian had been imposed in many spheres of daily life, the Court considered that the need to protect and strengthen the Latvian language had been a legitimate aim pursued in the present case. A second legitimate aim had been the principle of unity of the education system to facilitate equal access for pupils to the State education system and need to eliminate the consequences of the segregation in education that had existed under the Soviet regime. The need to ensure the unity of the education system in Latvia was one element that differentiated the present case from other cases that had been examined by the Court as regards allegations of discrimination in access to education stemming from the existence of segregated schools or classes for members of historically and socially disadvantaged groups. Quite to the contrary, one of the aims of the impugned legislation had been to secure equal chances to all pupils.
(iv) Proportionality of the alleged difference in treatment –
The 2018 legislative amendments had been adopted twenty-eight years after the restoration of Latvia’s independence. It could not be said that they had been sudden and unexpected changes in the education system. As early as 1991, the principle that everyone should receive an education in the State language had been enshrined in Latvian law. Subsequently, more changes had been introduced in the relevant laws to ensure the gradual increase in the use of Latvian as the language of instruction in public schools. The relevant legislative amendments had been widely debated in society and the applicants’ allegations that they had not been adequately discussed had been dismissed by Constitutional Court. The 2018 amendments had not removed Russian as the language of instruction in its entirety but had allowed instruction in Russian at primary school level, whereas at secondary school level, special subjects related to the Russian language and Russian identity and culture could still be taught in Russian. That stage of the education reform had been implemented gradually, as the changes had been introduced over the course of three years allowing pupils who might have needed to, to adapt to the new situation and take extra measures to improve their knowledge of the State language if necessary. Those amendments had been implemented gradually and flexibly, with sufficient scope for adaptation according to the needs of those affected.
The Court had not been provided with sufficiently reliable statistical data regarding the applicants’ allegation that the younger generation of Russian-speaking pupils had had a sufficient level of Latvian and that there had been no need to improve that knowledge within the education system. In that regard, the Court referred to the Venice Commission’s opinion on the impugned legislation which indicated that there might be a need to improve people’s knowledge of Latvian, especially the knowledge of children attending minority education programmes. The Constitutional Court had assessed the available statistical data on ethnic groups, language proficiency and the consequences of the migration policy during the Soviet occupation. It had stressed that the consequences of the Soviet occupation had continued to have a negative impact on the use of the Latvian language in society and in the education system. Questions pertaining to the need to protect and strengthen the State language went to the heart of the State’s constitutional identity, and it was not the Court’s role to question the assessment made by the Constitutional Court in that regard, as it had not been arbitrary.
The Court could not discern any arguments by the applicants to the effect that the 2018 legislative amendments would have had disproportionately prejudicial effects on them as regards the right to education. It accepted nonetheless that the applicants had been affected by those amendments, and the effects on their personal situation had varied depending on their level of Latvian and in which educational programme the applicant children had been enrolled. However, the educational programmes offered by public schools were varied and offered a range of different options and it was possible for the families to choose the educational programme that had most suited their needs. As to less restrictive means of ensuring the legitimate aim, although the principle of instruction in one’s mother tongue had been recommended by some international bodies, it did not seem to represent a common European consensus in the field of education. The Court also emphasised, for the purpose of the present case, the wider historical context in which education in Russian had become widespread in Latvia. After the restoration of independence, Latvia had started to gradually implement the education reform to restore the use of Latvian as the only language of instruction in schools. There was no suggestion that the applicants would have been unable to learn their mother tongue and maintain their identity. On the contrary, the measures taken had been aimed at protecting the Latvian language as the only State language and ensuring the unity of the education system, and, from a broader perspective, had been guided by the need to eliminate the consequences of unlawful occupation and annexation by the former Soviet Union. Within the Council of Europe, the Framework Convention had not been signed and/or ratified by all member States. While encouraging States to ensure teaching in minority languages and the learning of those languages, that Convention allowed for that to be provided in several ways. In the wider framework of international human rights law, it appeared to be accepted that the normative content of the right to education would depend on the conditions prevailing in a particular State but that in any event an education system should be available, accessible, acceptable, and adaptable.
Accordingly, regarding the right to education, States had a wide margin of appreciation in organising their education systems, particularly concerning the language of instruction in public schools. The respondent State, in restoring the use of Latvian as the language of instruction and gradually implementing the education reform, had not overstepped its margin of appreciation, as it had maintained a possibility for Russian-speaking pupils to learn their language and preserve their culture and identity. The State had put in place an education system in the official language of the State, while also ensuring the use of minority languages in varying proportions, depending on the school and class in which a pupil was enrolled. The Government had provided objective and reasonable justification for the need to increase the use of Latvian as the language of instruction in the education system. In conclusion, the impugned difference in treatment had been consistent with the legitimate aims pursued, proportionate and had not amounted to discrimination on the grounds of language.
Conclusion: no violation (unanimously).
(See also Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 1474/62 et al., 23 July 1968; Cyprus v. Turkey [GC], 25781/94, 10 May 2001; Catan and Others v. the Republic of Moldova and Russia [GC], 43370/04 et al., 19 October 2012, Legal Summary; Ádám and Others v. Romania, 81114/17 et al., 13 October 2020, Legal Summary; Advisory opinion on the difference in treatment between landowner associations “having a recognised existence on the date of the creation of an approved municipal hunters’ association” and landowners’ associations set up after that date, P16-2021-002, French Conseil d’État, 13 July 2022, Legal Summary)