The Constitutional Court of Latvia on minority schools: where does the EU stand?
On 23 April 2019, the Constitutional Court of Latvia delivered its judgment in the case of minority schools. This judgment is very problematic if the rights of persons belonging to minorities are to be taken seriously as the Union values enshrined in Article 2 of the Treaty on European Union (TEU).
Schools with instruction in languages other than Latvian (the sole official language according to the Constitution) predate the independence of the Republic of Latvia. The first law on minority schools of 1919 even predated the Constitution. It created a system of public minority schools governed with the participation of the relevant ethnic communities (as of June 1920, 72.6 percent of the population were ethnic Latvians, 5.7 percent – Russians, 5.0 percent – Jews, 4.1 percent – Belarusians, 3.6 percent – Germans, 3.3 percent – Poles). The progressive practice, however, had been suppressed after the authoritarian coup in 1934.
Following the Soviet occupation and annexation, a dualist school system was established (teaching either in Latvian or Russian). The ethnic composition of the population has also changed significantly due to the Holocaust, repatriation of ethnic Germans in 1939, and migration from other parts of the former USSR. In accordance with the latest census of 2011, 62.1 percent of the population are ethnic Latvians, 26.9 percent – Russians, 3.3 percent – Belarusians, 2.2 percent – Ukrainians, 2.2 percent – Poles. At home, 56.3 percent of the population speaks mostly Latvian and 33.7 percent – Russian.
There were several reforms aimed at ensuring bilingual teaching in public schools after the restoration of independence. The new reform approved by the Parliament on 22 March 2018 (and to enter into force in 2019-2021), goes much further. First, in secondary schools (10th-12th grade) only Latvian will be allowed for teaching; however, schools will be allowed to teach minority languages and subjects related to minority identity and integration, without exceeding the maximum amount of lessons. Second, in primary schools, a mandatory minimum limit of teaching in Latvian is introduced: 50 percent for the 1st-6th grade, 80 percent for the 7th-9th grade. Finally, the same requirements apply to private schools, which have enjoyed full discretion in the choice of language up to present. There are exceptions for the schools established in compliance with international agreements, as well as for the schools providing instruction in the official languages of the EU to ensure learning of these languages.
A group of opposition MPs contested the amendments to education laws in the Constitutional Court. In their opinion, the reform did not comply with the right to education, the prohibition of discrimination and the rights of persons belonging to minorities, as enshrined in the Constitution and international treaties.
The Court decided to postpone its judgment on private schools, as in parallel several persons submitted individual applications in that regard. The judgment is expected later this year.
As for private schools, the Court discontinued the proceedings in respect of the right to education. In the Court’s opinion, there was no interference with this right, as the right to education does not encompass the right to choose the language of instruction.
More interesting is the Court’s approach to the prohibition of discrimination. In 2005 the Court stated that the principle of equality mandates equal treatment only in respect of persons who are in equal and comparable circumstances; this principle allows and even requires differential treatment of persons in different circumstances. Back then the Court agreed with the applicant that a person belonging to a national minority is not in an equal situation with a person belonging to the ethnic majority. Now the position of the Court is different: there is no reason for the conclusion that persons whose mother tongue is not the official language would have the right to demand the provision of differential treatment in the public education system. Regrettably, the Court has not explicitly explained the change of case-law. The only relevant constitutional change was the adoption in 2014 of the new preamble to the Constitution. Its first paragraph, quoted by the Court, stipulates that the State of Latvia “has been established to guarantee the existence and development of the [ethnic] Latvian nation, its language and culture throughout the centuries”.
This conclusion allowed the Court to avoid discussing the impact of the reform on the quality of education in minority schools, which was a cornerstone of the judgment in 2005. Now the Court simply denies that the proportion of language use is important because differential treatment is not necessary at all. Likewise, this approach has made it possible to avoid discussing whether a new reform is necessary in a democratic society (for example, by analyzing the official language proficiency of minority school pupils). As a result, the verdict finds no violation of the prohibition of discrimination.
Another interesting point was the analysis of obligations under international treaties. The Court admitted that the UN Committee on the Elimination of Racial Discrimination and the Advisory Committee for the Framework Convention for the Protection of National Minorities have expressed strong criticism of the changes. Nevertheless, it dismissed this criticism almost without explanation, just indicating that the expert committees might not have possessed all relevant information. The Court has not found any violation of minority rights either.
The Court’s statement that persons belonging to national minorities do not have the right to demand differential treatment (at least in public domain) is quite revolutionary. It is not clear which implications it might have for the prohibition of indirect discrimination (for example, in Directive 2000/43/EC). Does it mean that the new preamble to the Constitution really legitimizes any measures related to the strengthening of the role of the official language, even if these measures negatively affect minorities?
The Court refers repeatedly to the principle of good faith in the interpretation of international treaties. It is not clear, how the scope of the rights of persons belonging to minorities could have become much narrower after the ratification of the Framework Convention, without any implication for good faith. And in particular, the outright dismissal of the criticism expressed by the expert committees might become a universal reply – after all, it is enough to refer to the lack of information at the experts’ disposal. It is also not clear, why the Court has totally ignored the opinion of the Venice Commission regarding very similar reforms in the education system of Ukraine.
It seems that the keywords are found in paragraph 23.2 of the judgment: ‘the exercise of minority rights must not be aimed at the segregation of society or jeopardizing the unity of society’. The mere fact that education in minority languages according to the wishes of national minorities means segregation would be a novelty for the international protection of minority rights. One can only imagine the reaction provoked by such a statement in Slovakia, Romania, or Finland. Secondly, this idea can also become a universal reservation against respect for any kind of minority rights: the unity of society is above all.
Overall, the judgment, in general, could indicate that linguistic diversity in Latvia is accepted in private space (although there is still a need to await the judgment on private schools), but not in public domain. It seems that the new preamble to the Constitution (quoted several times by the Court) has become the basis for revising the interpretation of minority rights. Time will show whether a democratic legislator will be able to cope better with the linguistic unification of the public space than the authoritarian leader Kārlis Ulmanis in 1934-1940.
The judgment of the Court will certainly be followed by cases before the European Court of Human Rights. However, there is less scope for this, as the European Convention on Human Rights does not protect minority rights explicitly. One could submit a complaint to the European Commission regarding a breach of the prohibition of indirect discrimination – even if education is not within the EU competence, the prohibition of discrimination is binding on the Member States also in the field of education. But it should be borne in mind that the Commission has full discretion in infringement cases.
The rights of persons belonging to minorities remain among the Union values enshrined in Article 2 TEU. In the meantime, there are no effective tools to tackle the breaches of those values occurring in the areas of national competence (such as education). Article 7 TEU entitles to pursue the procedure of gradual sanctioning of a Member State up to the suspension of voting rights in the Council. Nevertheless, the thresholds for the activation and use of this provision are very high; it has been used in practice only recently, in respect of systemic issues in Poland and Hungary. This is highly unlikely that this mechanism could be triggered in the situation, where a Member State violates minority rights, where there is no single standard of behavior applicable to all Member States (as a reminder, four EU Member States have not acceded to the Framework Convention for the Protection of National Minorities).
To address the situations not yet deserving the EU intervention with binding decisions, the Commission adopted the Rule of Law Framework – a three-stage internal decision-making process that might eventually lead to activating Article 7 TEU (also launched only once to address the issues affecting judiciary in Poland). The Commission has recently decided to upgrade this procedure to the Rule of Law Review Cycle, where each Member State will be assessed; an annual report will be published to feed the discussions in the EU institutions and national parliaments.
Still, the rule of law concept in the Commission’s documents seems not to cover the whole range of fundamental rights, and it is on purpose. Tellingly, the main difference between the Venice Commission’s Rule of Law report and the Rule of Law Framework is that there is ‘respect for human rights’ as an element of the rule of law in the former and ‘effective judicial review including respect for fundamental rights’ in the latter. All other elements (legality, legal certainty, the prohibition of arbitrariness, independent and impartial courts, equality before the law) of the rule of law are nearly identical. From that one can conclude that an annual assessment of the situation of fundamental rights (including the rights of persons belonging to minorities) in the Member States is not yet on the Commission’s agenda.
A much more consistent solution was proposed by the European Parliament almost three years ago. Under the EU mechanism for democracy, the rule of law and fundamental rights, compliance with all the Article 2 values would be assessed annually by a panel of independent experts. This approach would ensure that there is no hierarchy of the values and no excessive politicization of the process. It remains to be seen whether the new European Commission will be prepared to accept the Parliament’s proposal. But it is clear that minority rights in the EU would be much better protected, if under the EU auspices there is an official confirmation of the findings of different expert bodies, especially if linked with the allocation of the EU funds (another element of the Parliament’s approach). If a Member State does not want to guarantee its citizens’ rights, the Union must act.
Note: The author is a legal advisor for the Greens/EFA Group in the European Parliament. He advised pro bono the group of national MPs who had submitted the application in the case described. Responsibility for the information and views set out here lies entirely with the author.