On the Compliance of Section 9(3) of the Education Law Transitional Provisions with Articles 1, 91 and 114 of the Republic of Latvia Satversme, Article 2 of the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms as well as its Article 14 (linked with Article 2 of the First Protocol), Articles 26 and 27 of the International Covenant on Civil and Political Rights, Article 5 of the International Convention on Elimination of any Form of Race Discrimination, Articles 2 and 30 of the Convention on the Rights of a Child as well as Article 18 of the Vienna Convention on the International Agreement Rights.
The Republic of Latvia Constitutional Court
13 May 2005
Other International Provisions:
Article 2 of the First Protocol of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR): In the exercise of any State functions in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.
Article 14 of the ECHR: Enjoyment of the rights and freedoms without discrimination.
International Covenant on Civil and Political Rights (ICCPR): Article 26 (Equality before the law and prohibition of discrimination), and Article 27 (Rights of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion, or to use their own language).
Article 5 of the International Convention on Elimination of any Form of Race Discrimination: Enjoyment of the rights and freedoms without discrimination.
Article 18 of the Vienna Convention on the International Agreement Rights: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty.
Section 9(3) of the Education Law Transitional Provisions: Three-fifths of the curriculum of schools implementing the national minority education programme shall be conducted in the official State language from the tenth form onwards.
Latvian Constitution (Satversme): Article 1 (Latvia is an independent democratic State), Article 91 (Equality before the law and courts), and Article 114 (Persons belonging to ethnic minorities have the right to preserve and develop their language and their ethnic and cultural identity).
This case was a petition by 20 members of the Latvian parliament. The petitioners argued that the norm set out in Section 9(3) of the Education Law Transitional Provisions, which requires three-fifths of the curriculum of schools implementing the national minority education programme to be conducted in the official State language, does not comply with several international legal norms under the CRC, the ECHR and the ICCPR on the subject of equality before the law, non-discrimination, and the rights of minority groups to enjoy their own culture or language. The petitioners also argued that the adoption of Section 9(3) was undemocratic as the representatives of ethnic minorities had not been sufficiently involved and their proposals had not been sufficiently assessed. While the petitioners did not object to the three-fifths proportion, they sought a declaration that Section 9(3) was invalid with the hope that legislators will work on a more reasonable policy that would be "flexible" and be based on the mutual cooperation of parents, teachers and students in minority communities.
Issue and resolution:
Education; discrimination; children of minorities. The Constitutional Court dismissed the petitioners' case, ruling that Section 9(3) did not violate any provisions of domestic law or international conventions concerning the right of children belonging to minority groups to use their own language.
When assessing the conformity of Section 9(3) with legal norms set out in Latvian laws and stipulated by international human rights instruments, the matter must be reviewed in the context of the complicated ethno-demographic situation in Latvia. The Soviet occupation of Latvia in the 1940s saw an increase of Russians, Byelorussians and Ukrainians in Latvia, resulting in changes to the ethnic composition of Latvia and the Russification of Latvian laws and policies. Following Latvia's declaration of independence, reforms took place to create a unified education system in which Latvian would be the only language of instruction from certain stages of education. However, when it was established that education institutions were not ready to make such a transition, the policy evolved to mandate a proportion instead, which was initially two-fifths, then increased to three-fifths as set out in Section 9(3).
The aim of the legislator had not been to oppose human rights norms. On the contrary, when declaring the independence of the Republic of Latvia, the Supreme Council stressed the significance of international legal principles, and declared that it recognised as binding more than 50 international human rights documents. Thus, when interpreting the Constitution and international obligations of Latvia, one should look for an interpretation which ensures harmony rather than creates conflicts.
Concerning the adoption of Section 9(3), the Court found that there was no evidence that representatives of ethnic minorities had not been sufficiently involved and their proposals had not been sufficiently assessed. The Ministry of Education showed that it had assessed all proposals before Section 9(3) was put to a vote by parliament. Therefore, due democratic process was met in the adoption of Section 9(3), and there was no violation of Article 1 of the Constitution.
The Court further held that Section 9(3) did not violate any domestic or international conventions providing for the right of minority groups to use their own language. The right to be educated in one’s native language does not mean that they are only to be educated in that language. States are free to determine policies ensuring ethnic minorities their right to education in their native language. One such means is the introduction of bilingual education, as has been implemented in many other States.
When adopting Section 9(3), parliament had envisaged balancing the interests of ethnic minority languages and the official State language in relation to study content. Firstly, language and literature of the ethnic minority are being taught as mandatory subjects. Secondly, there exists the possibility of acquiring 40 percent of the study content in the language of the ethnic minority. Thirdly, textbooks are mainly issued in two languages – Latvian and Russian. Fourthly, the school – after receiving approval from the Ministry of Education – may introduce teaching of some subjects of minority interests such as Russian history or Ukrainian folklore. Therefore, the possibilities for members of ethnic minorities to maintain and develop their language, ethnic and cultural originality were established. Determining the proportion of language used in education did not violate the provisions of the Constitution or international conventions.
Excerpts citing CRC and other relevant human rights instruments:
5.1. … Article 2, Paragraph 1 of the Convention on the Rights of a Child envisages that the Member State has the duty to respect and ensure realization of all the rights, set out in the above Convention, to every child, whom the jurisdiction of the Member State concerns, as well as to perform all the necessary measures to protect the child from all forms of discrimination or punishment.
In accordance with Article 91 of the Satversme all human beings in Latvia are equal before the law and the courts. Human rights shall be realized without discrimination of any kind. The content of the Article includes the norms of the above Conventions on the prohibition of discrimination. Thus the compliance of the impugned norm with Article 26 of the International Covenant on Civil and Political Rights and Article 5 of the International Convention on Elimination of any Kind of Race Discrimination as well as Article 2 of the Convention on the Rights of a Child shall be analyzed in conjunction with Article 91 of the Satversme.
5.2. Article 30 of the Convention of the Rights of a Child inter alia envisages that children, who belong to ethnic, confessional or language minorities shall not be deprived of the right to make use of their culture, religion and observe its rituals together with the members of the group; besides – they shall not be forbidden to use their native language. Article 27 of the International Covenant on Civil and Political Rights determines that in those states in which ethnic, religious or linguistic minorities exist, persons, belonging to such minorities, shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.
In Article 114 of the Satversme the right to preserve and develop their language and their ethnic and cultural identity is established for persons belonging to ethnic minorities. This Article not only includes the norms of the above international instruments, but envisages even more extensive rights. The norms of the above international instruments do not determine specific guarantees relating to the language of instruction of the representatives of ethnic minorities. At the Court session even the representative of the submitter acknowledged that by saying that the right to state financed education in the languages of ethnic minorities has not been fixed either in EHRC or other legally binding instruments. Thus the compliance of the impugned norm with Article 30 of the Convention on the Rights of a Child and Article 27 of the International Covenant on Civil and Political Rights shall be analyzed in conjunction with Article 114 of the Satversme.
16. … [D]uring his October 12–13, 2004 visit the High OSCE Commissioner on National Minorities Rolf Eckeuss recognized that Latvia not only experiences the right, but has the duty to ensure both education in the state language and simultaneously – maintenance of ethnic minority identity (OSCE High Commissioner on National Minorities. Statement to the Permanent Council. 28. October 2004. See Vol.2, pp.77–83 of the matter). Such duty follows also from Article 29, First Paragraph of the Convention on the Rights of a Child. Item "d" of it requires bringing the child up in such a manner that he/she is prepared for the conscientious life in a free society, where there prevails understanding, peace, tolerance, equality of men and women and friendship among all nationalities and all ethnic, national and confessional groups as well as the persons, belonging to the basic nation."
This decision was a final judgment (without possibility of appeal).
CRIN believes this decision is consistent with the CRC. Article 29(1)(c) requires education of children to be aimed at the development of respect for not only the child’s own cultural identity, language and values, but also the national values of the country in which the child is living. The Committee on the Rights of the Child in General Comment No. 1 stated that “part of the importance of this provision lies precisely in its recognition of the the need for a balanced approach to education and one which succeeds in reconciling diverse values through dialogue and respect for difference”. Article 29(2) gives individuals and bodies the liberty to direct educational institutions so long as the aims of education under Article 29(1) and minimum standards as laid down by the State are respected. The right of children belonging to a minority under Article 30 to use their own language does not necessarily entitle them to be taught entirely in that language; bilingual, intercultural education can be consistent with Article 30.
Link to Full Judgment:
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