Language discrimination. What is said in the report the Venice Commission on the law of total Ukrainization. The complete analysis

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

The Venice Commission at work, photo from open sourcesIn the last month of the government Poroshenko Verkhovna Rada adopted a law on ensuring the functioning of Ukrainian as the state language. This law ekraniziruyutsya almost all spheres of public life and introduced severe penalties for their violation.

The new law almost completely supplanted by Russian language authorities, services and education. Officials and deputies deny the anti-Russian character of the new standards. But the experts of the Venice Commission, which analyzed the law clearly indicated that it discriminerende Russian-speaking population.

Venice Commission – the Council of Europe that evaluates how the laws of different countries consistent with the norms of democracy.

The country already briefly told how diskriminerad Russian and other national minorities in movnom law.

Report European Commission for democracy through law (this is the full name of the Venice Commission) focus on the scandalous law “On support of functioning of the Ukrainian language as the state language.”

It was approved on December 6-7 of this year:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

“Country” had carefully studied the full report.

The language Charter is above the laws of Ukraine

First and foremost, the Venice Commission analysed the Law on state language on compliance with international instruments. It is international treaties that Ukraine has signed, and they are part of Ukrainian legislation.

Ukraine has ratified several international treaties on the protection of human rights, which prohibit discrimination on the basis of language. It’s three main documents:

– The international Covenant on civil and political rights;

– Framework Convention for the protection of national minorities;

– The European Charter for regional or minority languages (hereinafter the Language Charter).

All of these documents approved by the Verkhovna Rada. And according to article 9 of the Constitution of Ukraine the existing international treaties, consent to be bound by which was given by the Verkhovna Rada are part of national legislation of Ukraine:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: zakon.rada.gov.ua

Moreover, the Venice Commission explained that the international treaties in legal force immediately after the Constitution and take precedence over ordinary laws. This means that the Law on state language and other laws on the rights of minorities must conform to those international treaties:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

Russian language should be protected in Ukraine as one of the regional or minority languages. After all, the law on ratification of the Language Charter, Ukraine has indicated that it will apply the Charter to the following languages: Belarusian, Bulgarian, Gagauz, Greek, Jewish, Crimean Tatar, Moldovan, German, Polish, Russian, Romanian, Slovak, and Hungarian:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: zakon.rada.gov.ua

The result is that the measures of protection of Russian and other regional or minority languages under the Language Charter, has the advantage in comparison with Ukrainian laws, including the Law on state language. Therefore, in the case of disputes, should apply the provisions of the Charter, not the law.

Russian is the most common after the Ukrainian

In their calculations in protection of Russian and other languages, the Venice Commission suggests Ukraine is a multinational state. The Commission refers to data from the population census of Ukraine in 2001. For her, ethnic Ukrainians made up 77.8% of the population and the second largest ethnic group was Russians (17,3%):

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

In addition, a significant number of ethnic Ukrainians and persons belonging to minorities are not Russian, speak Russian and even consider his family. According to the same 2001 census, 67.5% of the population of Ukraine declared Ukrainian to be their native language and 29.6 percent declared Russian native:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

The special place of the Russian

In 2017, appreciating article 7 of the education Act, the Venice Commission said that it is very difficult to find any reason justifying different treatment between minorities who speak the official language of the EU, and other national minorities such as the Russian minority, with the use of languages in education.

The Venice Commission very hard then said: “considering the special place of Russian language in Ukraine (the most widely used of all the regional languages of Ukraine or of minority languages, and, as noted by the Committee of experts of the language Charter, the main language of communication for many persons belonging to non-Russian minorities), its more limited use than the official languages of the member States of the EU, as provided for in article 7 of the education Act, is clearly problematic.

It can be argued that the historical language policy that favored the Russian language and the current political context may be factors that could justify such an approach. However, it seems that even the internal constitutional order of Ukraine gives some recognition to the special place of the Russian. Article 10 of the Constitution stipulates that the state language of Ukraine is Ukrainian, but it also guarantees “free development, use and protection of Russian and other languages of national minorities of Ukraine”.

So far it is not clear whether the historical factor is less favourable attitude to Russian in accordance with article 7 of the Law on education”:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

The Constitution allocates the Russian language separately

The Venice Commission considers that article 10 of the Constitution was a key provision from the point of view of protection of linguistic rights and freedoms. In her Russian language separately, and it is guaranteed the free development, use and protection, along with other languages of national minorities of Ukraine:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: zakon.rada.gov.ua

The previous one was better

The Venice Commission also recalled about the previous language laws. Up to the present acted “language” law which was passed in 2012 (law “Kolesnichenko-Kivalov”). He gave the languages of national minorities the status of “regional”. This status can be obtained in regions where the percentage of persons belonging to national minorities exceed 10% of the total local population.

The previous Law allowed the use of regional languages in courts, schools and other public institutions in these areas. Although in his articles was referred to as Russian and other regional languages and minority languages, focused on the protection and use of the Russian language in many spheres of public, social, economic, cultural and educational life.

After the adoption of the Law in 2012 many local governments have adopted decisions on the recognition of minority languages present on their territory, as regional languages.

After the Maidan in February 2014, the Ukrainian Parliament voted to repeal the law. But it was not signed by the then acting President Turchynov.

Nevertheless, the language law of 2012 was declared unconstitutional by the Constitutional court in February 2018 on the grounds that he had violated the procedure for its adoption.

It was only in April 2019, at the end of the reign of Peter Poroshenko, the Verkhovna Rada adopted a new language law, which was assessed by the Venice Commission.

Four varieties of languages

The law on state language stipulates different rights for holders of different categories of languages. The Venice Commission found in the Law on state language four types of languages:

a) indigenous languages;

b) English;

in) minority languages, official EU languages (Bulgarian, Greek, German, Polish, Romanian, Slovak and Hungarian);

g) minority languages are not official EU languages (in particular Russian, Belarusian and Yiddish).

Because of this gradation, the Commission previously criticized the Law on education, adopted on 5 September 2017. Article 7 regulates the use of languages in education. This article is in fact repeated in article 21 of the Law on state language.

Even in 2017, in its opinion concerning the education Law, the Venice Commission concluded that the less favorable the attitude to the Russian language and other languages outside the EU, it was difficult to justify, and raised the issue of discrimination.

However, the constitutional court of Ukraine in its resolution No. 10-R/2019, 16 July 2019, announced the education law, including article 7, non-discriminatory, and therefore constitutional.

How is the discrimination in education

The Venice Commission has separately described the mechanism as in secondary schools of Ukraine is carried out discrimination on the basis of language.

It turns out that members of national minorities have the right to their own language to only pre-primary and primary secondary education at municipal educational institutions. Further, during secondary education, they have the right to study their language only as a subject.

This rule they have seized the right to receive secondary education in their own language.

But one or more disciplines may be taught in English or one of the official languages of the EU.

The result, according to the Venice Commission, the speakers of EU languages – Bulgarian, Greek, German, Polish, Romanian and Hungarian subjects in the secondary school in their language.

And representatives of national minorities who do not speak the official language of the EU, Belarusians, Gagauz, Jews and, most importantly, Russians will be able in high school only to learn their language as a subject.

Thus, at the high school level creates inequality, hierarchy, in which indigenous peoples are potentially more favourable than to national minorities who speak the official language of the EU. And to national minorities who speak the languages of the EU are more favourable than to other national minorities:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

Similar discrimination stipulated in the draft of the law on secondary education, which is also examined by the Venice Commission.

In the end, the Commission came to the conclusion that the less favourable treatment of minority languages are not official EU languages, cannot be justified:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

European ambitions were no excuse for discrimination

A different attitude towards minorities who speak the official language of the EU, and other national minorities, the Ukrainian authorities explained the “European ambitions of Ukraine” and “a century of oppression of the Ukrainian language in favor of Russian”, which de facto created a privileged status for Russian in Ukrainian society.

However, in the opinion of the Venice Commission, these arguments are not enough. It’s inconclusive from the point of view of human rights in General and discrimination in particular.

Foreign policy considerations – whether it is Pro-European policy of Ukraine and conflict with Russia over the annexation of Crimea – are not a valid argument in the discussion about the languages that citizens, including persons belonging to national minorities have the right to use.

As for the “historical oppression of the Ukrainian language”, it cannot justify the deprivation of the Russian language and its speakers living in Ukraine, the protection afforded by other languages and their speakers.

In the end, the Venice Commission recommended that the Ukrainian deputies to undo the statutory separation between the minority languages to the extent that it is not based on objective and reasonable justification:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

State agencies must apply not only to Ukrainian

The Venice Commission drew attention to article 13-16 of the law on state language, which shall govern the use of languages in the work of government agencies.

For these items, acts of Central and local authorities should be prepared in the Ukrainian language and meet the standards of Ukrainian legal terminology.

However acts of individual application adopted by local authorities in the Autonomous Republic of Crimea, can be further translated and published in the Crimean Tatar language.

The Commission was surprised. She writes: “it is Difficult to understand why such a possibility is admitted only for the Crimean Tatar language, not the languages of other indigenous peoples and national minorities”.

The Commission indicated that this provision is contrary to article 10 of the Language Charter. According to her, Ukraine is obliged to allow, in those areas where it justifies the number of inhabitants, publication of regional and local authorities of their official documents in the relevant regional languages and minority languages:

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Source: venice.coe.int

And in accordance with the framework Convention (article 10.2) in areas inhabited by persons belonging to national minorities, Ukraine is obliged to ensure conditions that would allow the use of the minority language in relations between those persons and the administrative authorities.

The Commission considered that the use of the state language, the state authorities should only in the extent to which this can be done without prejudice to linguistic rights of people.

Ukrainian lawmakers recommended to take this into account when revising the Law on state language and the development of the Law on minorities. These laws should provide for the use of minority languages in areas of their compact residence.

“Country” reported that “movny Ombudsman” was going to be fined for Russian language judges, teachers, military personnel and medics. Responsible for the protection of the state language of Ukraine Tetiana Monakhova said that for public appearances in Russian deputies and officials will be fined.

Have Monakhova asked whether she intends to achieve punishment of officials for speaking in Russian. The language, the Ombudsman replied in the affirmative, explaining that such statements violate the language law.

Discrimination in science, culture and the media

As “violation of freedom of expression and academic freedoms,” the Venice Commission has identified article 22 of the Law on state language. According to him, the scientific publications should be published in state language, English and/or other official EU languages.

This difference between the languages does not seem justified and is a violation of the rights of persons who want to do research publication on official languages, non-EU, said the Commission.

Even the Venice Commission criticized article 23 of the law on state language, which the use of the Ukrainian language is the rule in cultural, artistic, entertainment and recreational activities. The use of other languages is allowed only in cases when it is justified by “artistic or creative concept of the event organizer”, as well as in cases stipulated by the Law on minorities.

The Venice Commission indicated that this provision restricts freedom of expression than in breach of article 10 of the European Convention on human rights. Therefore, article 23 should be rewritten to conform to this principle.

Another discriminatory provision of the law on state language movies. On it the domestic film distribution and screening must be in the Ukrainian language, including through duplication.

The Venice Commission noted that these provisions impose additional work and costs on the organizers of cultural events in minority languages.

The obligation for written or oral translation, subtitling, duplication, etc. can significantly increase the cost of cultural, artistic, recreational and other activities. And, therefore, could adversely affect the real opportunities of minorities to undertake such activities necessary for the preservation of their identity. These requirements of the law contrary to the language Charter and other documents.

For radio and television in the transitional provisions of the Law on state language quota of content in the Ukrainian language increased from 75 to 90 percent. The Commission pointed out that these provisions also restrict the right to freedom of expression (article 10 of the European Convention on human rights).

The Venice Commission had previously criticized the law on television and radio broadcasting, as it has established rigid language quotas

And the Law on state language even more limited proportion of minority languages in the broadcast media. Therefore, according to the Venice Commission, it is contrary to the obligations assumed by Ukraine in accordance with the language Charter, “to ensure adequate provision so that broadcasters offer programmes in regional languages or minority languages” and “to encourage and/or facilitate the broadcasting of radio and television programmes in regional languages or minority languages on a regular basis” (article 11).

Therefore, the Venice Commission invites the legislator to reconsider the requirements on quota and develop, if necessary, appropriate funds to encourage use of the Ukrainian language in the broadcast media on the basis of incentives and positive measures.

As for the print media, the Commission sharply criticized the relevant provisions of the Law on state language. It is proposed to remove the provision on the Ukrainian-zapechatyvanie circulation of Newspapers and magazines (that can kill their profitability). And allowed to print campaign material for election campaigns in any languages, and not only Ukrainian.

“Under the hand” of the Commission were even advertising and signage. According to Sokno on state language, publicly available information (ads, signs, signage, other publicly available textual, visual and audio information) must be in the Ukrainian language, unless otherwise provided by Law.

The exact scope of this provision of the paragraph is unclear. If it will apply to advertising produced by private companies or individuals, that may constitute disproportionate interference with freedom of expression. Also, this service can become a heavy burden for all those who want to communicate with the public.

“Spracherwerb” cut off the wings

The law on state language introduced the position of “prehistoria” – Commissioner for the protection of the state language, which is appointed by the Cabinet of Ministers for 5 years. On the appointment of Tatyana Monakhova.

Язык дискриминации. Что сказано в отчете Венецианской комиссии по закону о тотальной украинизации. Полный анализ

Tatyana Monakhova, photo from open sources

“Country” is mentioned, who is Tatyana Monakhova. She is associate Professor of Nikolaev and advocate of Ukrainization. Including forcible methods of its implementation. Her ideal is “homogeneous monolith of Ukrainians.” That is not a variety of the Ukraine and especially the Ukrainian language.

The Commissioner may require copies of documents and information from all state bodies and private entities are free to enter into the buildings of state bodies and to attend their meetings, to impose administrati.

Tatyana Monakhova said at a press conference that criminal liability for violation of the law on the state language no. But there are penalties from 20 to 700 untaxed minimum. “Today is a 9 800-11 700 UAH”, – said the Ombudsman.

She said her goal for the next six months – “start the car legal protection of Ukrainian language”. Later Monakhova said that it is the legal Department for the filing of claims and the Department of linguistic expertise.

The Venice Commission urged to carefully review the rights Commissioner.

And to offer a more balanced approach to language policy, the Commission invited the Ukrainian authorities to explore how to protect the rights of language minorities. For example – to charge the Authorized control over the implementation of regulations on the use of languages of minorities and indigenous peoples.

At the end of its report the Venice Commission concluded that the Law on state language there is a fair balance between the aim of strengthening and promoting the Ukrainian language and protection of minority language rights. It includes several provisions that restrict freedom of expression and freedom of Association enshrined in the ECHR.

In General, as already wrote “the Country”, the Commission identified 9 main claims to monomo law.

As reported by “Country”, Deputy Minister of culture Anatoly Maksimchuk said that no charges of discrimination, the Venice Commission did not put forward, and asked only to justify this approach. However, the full text of the document shows that it is not.

Also told how the Council will respond to the verdict of the Venice Commission on monomo law.Alexei Romanov

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