The Constitutional Court of Ukraine, “Threat to the Ukrainian Language is Equal to Threat to the National Security of Ukraine”

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The Constitutional Court of Ukraine declared the Law of Ukraine "On Ensuring the Functioning of the Ukrainian Language as the State Language" of 25 April 2019 No. 2704-VIII to be constitutional. The relevant decision was adopted on 14 July in the case upon the constitutional petition of 51 People’s Deputies of Ukraine.

The subject of the right to constitutional petition requested to declare the impugned Law to be non-complying with the Constitution of Ukraine.

In particular, the petitioners noted that the specific rules of the disputed Law “in fact imply the discrimination against the Russian-speaking citizens”, limit the list of languages of indigenous peoples and national minorities and determined “the selective use and the selective protection of the language of the one indigenous people and some other languages of national minorities…” and “…in fact establish the priority for the use of the English language and other official languages of the European Union.”

In its Decision, the Court noted, in particular, “<…> the Ukrainian language is an integral attribute of the Ukrainian statehood, which has preserved its historical heredity from the Old-Kyiv times. The Ukrainian language is an indispensable condition (conditio sine qua non) of the Ukrainian statehood and Unity.  <…> therefore any encroachments on the legal status of the Ukrainian language as the state one on the territory of Ukraine are inadmissible, since they violate the constitutional order of the state, threaten the state security and the very existence of the statehood of Ukraine “.

 The Court found that the command of the Ukrainian language as the language of one’s citizenship is the duty of every citizen of Ukraine. At the same time, every citizen of Ukraine is free to choose the language or languages for private communication. The procedure of the functioning of the Ukrainian language as the state language and its support by the state must be combined with the respectful attitude towards the languages of the national minorities which historically have lived within the territory of Ukraine and the ensuring of the protection of the linguistic rights of the individuals belonging to such minorities.

The Constitutional Court found that the disputed Law does not contain rules which may limit the free development, use and protection of languages that have legal status of the languages of the national minorities (including the Russian language), as well as those rules with would hinder the state to foster the development of identity, including the linguistic one, of the indigenous peoples and the national minorities of Ukraine.

The Constitutional Court stated that the legislative regulation which is aimed at asserting the Ukrainian language as the state language also protects the democratic order of our state and the means of differential approach selected by the legislator within the applied Law is proportionate to the legitimate aim pursued in the disputed Law.

The Court considers that the impugned Law is a legal tool of overcoming the consequences of the long stay of various parts of Ukraine in the composition of other states and the general Russification of Ukraine which has lasted for more than one century when Ukraine was firstly a part of the tsar Russia and later the USSR, and is a proper legal basis for introduction of institutional mechanisms which ensure the functioning of the Ukrainian language as the state one with a possibility for the state to apply measures of affirmative action for the benefit of the Ukrainian language not hindering the development, use and protection of the languages of national minorities of Ukraine.

The Constitutional Court has not found the violation of the legislative initiative of the People’s Deputies of Ukraine during consideration of the disputed Law at the plenary sessions of the Verkhovna Rada of Ukraine and its adoption.

In substantiating the position, the subject of the right to constitutional petition referred, in particular to the European Charter for Regional or Minority Languages, ratified by the Law of Ukraine of 15 May 2003 No. 802–IV. The Constitutional Court indicated that the disputed Law is not and may not be the instrument of its implementation. The Law and the Charter, as testified by their titles and content, have absolutely different subjects of regulation. Therefore, the question on the conformity or non-conformity of the Law of the Charter’s norms is artificial and legally incorrect.

At the same time during the constitutional proceedings the Court found the availability of the two variants of the official translation of the text of the Charter and the practical application of each of them in this or that historical period. As stressed in the Court’s Decision, the main problem is that depending on the key notion applied in the title of the Ukrainian text – „regional languages or minority languages“ or „regional or minority languages“ – automatically change the object and the aims of the Charter as the international treaty.

The Constitutional Court indicated that the relevant public authorities, including the Ministry of Foreign Affairs of Ukraine, the Cabinet of Ministers of Ukraine, the Verkhovna Rada of Ukraine, pursuant to the powers and competences granted to them have to set certainty in the issue of the official translation of the Charter into the Ukrainian language, and to take other measures required by the proper execution of Ukraine’s obligations undertaken under the Charter as the international treaty.

The Decision of the Constitutional Court of Ukraine is mandatory, final and may not be appealed.

Developed with the support of OSCE Project Co-ordinator in Ukraine
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