1. The present note contains non-exhaustive comments of the Secretariat of the Council of Europe concerning the State Language Law of Latvia as well as its implementing regulations, both of which entered into force on 1 September 2000. The general comments are followed by comments relating to selected themes. It goes without saying that this note is without prejudice to possible future authoritative assessments by the relevant supervisory systems. It should further be noted that the comments related to the European Convention on Human Rights reflect the expert assistance that has been given by the Council of Europe in co-operation with the experts of the Office of the OSCE High Commissioner on National Minorities.
2. The present note also contains general references, in Section II, to the Framework Convention for the Protection of National Minorities and to the European Charter for Regional or Minority Languages. Although these standards are not at this stage binding upon Latvia, it was considered appropriate to raise them in this context in general terms, given that the said treaties are the Council of Europe instruments that address in more detail the issues at hand. Furthermore, as far as the Framework Convention is concerned, it needs to be noted that Latvia, as a signatory State, is obliged, in accordance with Article 18 of the Vienna Convention on the Law of Treaties, to refrain from acts which would defeat the object and purpose of the Framework Convention. Finally, in the context of the regulations relating to language requirements in the field of employment (Section III), the present note contains also more technical comments related to the approach and technique adopted by the drafters of this particular set of regulations.
II GENERAL COMMENTS
i. As regards human rights standards binding on Latvia
3. The final text of the Law and its implementing regulations contain clear improvements in relation to earlier drafts. Some of these improvements are noted below under selected themes, but they also include more generally applicable improvements, such as cuts in the proposed monitoring powers of the implementing agencies.
4. However, on certain specific issues the text remains unsatisfactory (see below on specific themes). Also, the Law and the regulations still contain a number of vague formulations. This means that despite improvements with regard to many specific issues, the general problem of legal certainty remains and that the role of the implementing agencies is crucial in ensuring respect for relevant human rights. It follows that, in addition to the envisaged amendments to specific provisions indicated below, the planned training of the implementing agencies on human rights standards is clearly needed.
ii. As regards the Framework Convention for the Protection of National Minorities
5. Many of the specific issues raised below in relation to human rights standards binding on Latvia are relevant also under the Framework Convention, which Latvia has signed (in 1995) but not yet ratified. At the same time, it is clear that the Framework Convention also touches upon an additional set of issues that are of relevance in this connection. For example, the law has a serious impact on the status of minority languages in the public sphere, including through a reduction in the possibilities to use minority languages in contacts with administrative authorities. Whereas it is recognised that the status of minority languages in contacts with administrative authorities receives only limited protection under the ECHR case-law, this issue is of central importance under the Framework Convention.
6. In this connection, note should be taken also of the existing initiatives to draft a law specifically on the rights of persons belonging to national minorities. Indeed, it appears that the introduction of such further guarantees could contribute to the efforts to ensure that the legislative framework is adequate from the point of view of the Framework Convention. The Secretariat of the Council of Europe has already indicated to the Latvian authorities that it stands ready to provide assistance in this respect.
iii. As regards the European Charter for Regional or Minority Language
7. Although Latvia has not yet signed or ratified the European Charter for Regional or Minority Languages, the latter forms part of the standards of the Council of Europe in the field covered by the Latvian State Language Law and is a yardstick for evaluating the language policy of member states. Clearly the situation in Latvia is such that for historical reasons it has been considered necessary to grant substantial protection to the official language, Latvian. This is in itself welcomed. It should be recalled that the Charter in its Preamble states that the protection and encouragement of regional or minority languages should not be to the detriment of the official language and the need to learn it. The manner of the protection of the official state language should however not be such that it leaves no room for the eventual signature and ratification of the Charter by Latvia. It is therefore regretted that in Article 5 of the Latvian State Language Law the existence of regional or minority languages is excluded by the indication that all other languages used on the territory of Latvia, with the exception of the Liv language, shall be considered as foreign languages. This terminology is unfortunate and creates an atmosphere of antagonism in language policy in regard to the use of all other languages on the territory of Latvia which might qualify as regional or minority languages.
8. An analysis of the Latvian State Language Law vis-à-vis the Charter has not yet been formally requested by the Latvian authorities, and therefore an examination will not be attempted at this stage. However, the Council of Europe is prepared to provide its expertise on this convention by proposing that an information seminar be organised in the near future. This seminar could focus on particular aspects such as the use of regional or minority languages within the public authorities and in cultural activities. This event would involve the participation of parliamentarians, the authorities that would be responsible for the application of the Charter and non-governmental organisations that are involved in the promotion and protection of regional or minority languages in Latvia, thereby providing Latvia the opportunity to show its commitment to the common European legal standards in this field.
III COMMENTS ON SPECIFIC THEMES
i. Signs visible to the public
9. The final version of this set of regulations is markedly better than the earlier versions. An important improvement proposed by the experts on the basis of Article 10 of the ECHR, and subsequently approved by the Government, is that, even in situations where it is legitimate to require the use of the state language in signs of private enterprises, the use of another (additional) language next to the state language version is now automatically allowed.
10. Despite the above improvement, the regulations concerning private signs remain vague. The law requires the use (also) of the State language in the private sphere when information concerns legitimate public interest, and thereby the conformity of the language legislation with the relevant standards depends largely on the way it will be implemented. In particular, it needs to be ensured that the interpretation given to the term “legitimate public interest” will be compatible with the case-law of the European Court of Human Rights.
ii. Place names, names of institutions, non-governmental organisations
11. As concerns the creation and use of names of private institutions, non-governmental organisations and companies, the final version of the regulations is clearly an improvement from earlier versions. Whereas before, the use of (only) Latvian was imposed in a fairly unqualified manner, the adopted version requires private organisations and companies to indicate their names by using Latvian or Latin alphabet “within the framework of administrative supervision” only. This limitation alleviates to certain concerns expressed by the experts, but much will depend on how the term “framework of administrative supervision” will be interpreted in practice.
iii. Personal names
12. The final version of the regulations concerning personal names also contains improvements in relation to earlier versions. Earlier (draft) versions of the regulations provided, as a rule, for recording of personal names in official documents according to Latvian spelling norms only. Following concerns expressed by experts on the consequences this would have on the right to privacy, the regulations were changed so that they now allow also for the original form of a name to be recorded and provide that this form is legally equally valid with the other version. Here again the de facto functioning of the double-entry system and the treatment of the original version in this context will be decisive in ensuring that the situation is in conformity with international standards.
iv. Language requirements in the field of employment
a) As regards applicable human rights standards
13. Article 6 of the Law, which stipulates to what extent employees must know and use the Latvian language, contains vague formulations. It was therefore hoped that the implementing regulations would clarify the applicable rules and guarantee e.g. that restrictions on freedom of expression would not go beyond what is necessary in a democratic society to protect the public interests enumerated in Article 10(2) of the ECHR. However, the regulations in their current form contain shortcomings that relate both to their content and to the format, which appears problematic from the point of view of the requirement of accessibility.
14. In view of the foregoing, it is to welcomed that the Cabinet of Ministers of Latvia has decided to amend the text of the regulations at issue by 1 November 2000. From the human rights point of view, the main tasks of this exercise, in the context of which the Council of Europe is prepared to continue to provide its expert assistance, should include the exclusion from the scope of the regulation the professions in which legitimate public interest does not make it necessary to require Latvian proficiency and stipulation of the applicable norms in a manner that meet the requirements of foreseeability and accessibility.
b) As regards the technique adopted for the Procedure of Language Proficiency Tests and the scope of the tests
15. The procedure described deals essentially with administrative arrangements only. This is not sufficient. The Regulations lack a clear description of standard procedures to ensure the necessary degree of objectivity and fairness i.e a clear specification of what is in the tests and how competence is to be assessed is missing. The regulations should contain a test specification which indicates clearly the nature and content of the test (types of texts and tasks), how assessment is made, and what measures will be employed to assure objectivity. These standard procedures, which should be publicly accessible, are essential if subjectivity and unfairness are to be avoided.
16. It would be helpful if the Regulations were to contain also a statement of intention concerning the following standard practices to be implemented as soon as possible:
– a bank of test items should be developed and trialled according to accepted procedures so as to ensure that all tests for any category of occupations are of a comparable level of difficulty;
– examiners should be trained to assess candidates consistently at each level so as to ensure reliability and fairness in the tests at each level of proficiency;
– a review mechanism should be set up to monitor the fairness of the tests and their suitability for the level of proficiency being assessed.
17. DGIV can provide expert assistance in all of the above as it has successfully done for the Naturalisation Board concerning the tests of proficiency for citizenship.
18. As concerns the Scope of Proficiency in the State Language, the description of third level B degree (=level 6) is still too high. The text in English uses the expression ‘utterly fluent’ which implies native proficiency. This should be revised to read ‘very fluent’.
v. Interpretation at events
19. Here again the expert consultations resulted in deep cuts in the scope of the obligation to use the Latvian language, assuming that the implementation will be conducted in an appropriate manner. Whereas earlier versions included obligation to provide information in the state language at a wide range of events, the obligation to provide interpretation is now linked to public interests as far as the events organised by private entities are concerned. It should however be noted that this linkage, required also by the State language law, is again formulated in such a general fashion and it adds little to the text contained in the law itself. Also, some elements remain that are not expressly limited to legitimate public interests (at least not in English translation), notably the obligation, formulated in a vague manner, to provide “versatile and complete information about the events organised”.
Document data: SG/Inf(2000)33 ; 28.09.2000 Link: https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016805e2f98