MINELRES: Re: Comment on Restrictions on Language of Education in Latvia and Yelena Grishankova and Oleg Grishankov Case

[MINELRES moderator]

Original sender: Alexei Dimitrov <minissues@delfi.lv>


Dear all,

The newsletter's "Minority issues in Latvia" team expresses gratitude to
Dr Fernand de Varennes for his critique on the information about
Grishankova and Grishankov case published at MINELRES recently. We
encourage all subscribers to participate in the discussion about
possible legal solutions in the field of education in minority languages
sending us your critical remarks and recommendations.

We would like to define more precisely our position in respect of
possible reasoning of ECHR in the case. First of all, when we wrote that
"we think that the violation would not be found either by the
Constitutional Court or by the European Court even if consideration on
the merits would take place - the Belgian linguistic case of 1968 is a
landmark precedent in this respect" (see Minority issues in Latvia, No.
64, 
http://lists.delfi.lv/pipermail/minelres/2003-March/002618.html), we
referred mainly to justification of the application described in media
and reflected in Minority issues in Latvia, No. 57, 
http://lists.delfi.lv/pipermail/minelres/2002-October/002356.html
(unfortunately, text of the application itself was not available). The
applicants pay more attention to alleged violation of Article 2 of the
Protocol No. 1 claiming that the State is obliged to protect the right
of every person to education and teaching of his/her children in
accordance with his/her religious and philosophic views. Yelena
Grishankova argues, that the basis of her philosophical convictions is
the Russian language as the medium of Russian culture, history, religion
and ethnic self-identification. Besides that, the applicants claim
violation of Article 14 of the Convention (without conjunction with
Article 2 of the Protocol No. 1, what should be considered as the main
legal mistake in the application) and Article 3 of the Convention.

In the Belgian linguistic case (see
http://www.minelres.lv/coe/court/Belglin.htm), the European Court of
Human Rights stated that the provision of Article 2 of the Protocol No.
1 "does not require of States that they should, in the sphere of
education or teaching, respect parents' linguistic preferences, but only
their religious and philosophical convictions. To interpret the terms
"religious" and "philosophical" as covering linguistic preferences would
amount to a distortion of their ordinary and usual meaning and to read
into the Convention something which is not there. Moreover the
"preparatory work" confirms that the object of the second sentence of
Article 2 [�] was in no way to secure respect by the State of a right
for parents to have education conducted in a language other than that of
the country in question". This fragment of the judgement gives us a
reason to believe that violation of Article 2 of the Protocol No. 1
would not be found.

The applicants did not claim violation of Article 14 in conjunction with
Article 2 of the Protocol No. 1. If such violation would be claimed, of
course, The Court should consider, whether a difference of treatment in
the exercise of the right to education is reasonable and proportional. 

In the Belgian linguistic case the Court noted that Article 14, even
when read in conjunction with Article 2 of the Protocol No. 1, "does not
have the effect of guaranteeing to a child or to his parent the right to
obtain instruction in a language of his choice. The object of these two
Articles [�], read in conjunction, is more limited: it is to ensure that
the right to education shall be secured by each Contracting Party to
everyone within its jurisdiction without discrimination on the ground,
for instance, of language. This is the natural and ordinary meaning of
Article 14 read in conjunction with Article 2 [�]". Such approach of the
Court was criticised by experts (see, for example, "The European
Convention on Human Rights and the Protection of 
National Minorities" by Christian Hillgruber and Matthias Jestaedt,
K�ln, 1994, p. 30), and the Court would have to use the "proportionality
test" in the particular case Grishankova and Grishankov v. Latvia.
However, in our view, existence of such statement in the judgment would
be very strong argument for the government of Latvia.

In the meantime, other rulings of the European Court of Human Rights
(especially recent judgment in the case Cyprus v. Turkey) make us
believe that the Court takes account of all circumstances of the
particular case. The issue of "education reform 2004" in Latvia is very
complicated, and we report a lot about it in our newsletter � there are
contradictions between different legal acts, the content of the reform
has not been clear yet, etc. Therefore we believe that after the reform
is conducted, the Court could consider alleged violation of Article 14
in conjunction with Article 2 of the Protocol No. 1, if such application
will be submitted. Now, when the content of the reform and its
consequences are not clear, there is a serious threat that the only
source of inspiration for the Court would be judgment in the Belgian
linguistic case, violation would not be found, it would exclude further
activities in this field. Therefore we believe that now the problem
should be solved by political means.

Yours sincerely,
Alexei Dimitrov
editor

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