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THE FACTS
The applicants, born in 1959 and 1988 respectively, are a mother and her son. They are Latvian citizens of Russian origin, and live in Riga (Latvia).
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
The second applicant has been studying at secondary school no. 30 in Riga since 1995. It is a state school, maintained by the Riga municipal council and providing both compulsory primary education (first to ninth year) and secondary education (tenth to twelfth year). The language of instruction in this school is Russian.
On 29 October 1998, Parliament (Saeima) adopted an Education Act (see below). Section 9(1) of this Act provides that the language of instruction in state schools is the official language, namely Latvian. Section 9(3) of the transitional provisions of the Act establishes 1 September 2004 as the date on which pupils in the tenth year (i.e. the first year of secondary school) of state schools must begin using Latvian as the sole language of instruction. Section 50(3) of the afore-mentioned Act prohibits the employment as state school teachers of persons whose knowledge of Latvian is beneath the advanced level required by the regulations in force.
B. Relevant domestic law and practice
1. Constitutional provisions
The relevant Articles of the Latvian Constitution (Satversme) provide:
Article 4
“The Latvian language is the official language in the Republic of Latvia ...”.
Article 85
“In Latvia, there shall be a Constitutional Court [Satversmes tiesa], which, within the limits of its jurisdiction as provided for by law, shall review cases concerning the compliance of laws with the Constitution, as well as other matters regarding which jurisdiction is conferred upon it by law. The Constitutional Court shall have the right to declare laws or other enactments or parts thereof invalid...”
Article 112
“Everyone has the right to education. The State shall ensure that everyone may receive primary and secondary education without charge. Primary education shall be compulsory.”
Article 114
“Persons belonging to ethnic minorities shall have the right to preserve and develop their language and their ethnic and cultural identity.”
2. Legislative provisions concerning the language of instruction
The relevant provisions of the Education Act of 29 October 1998 (Izglītības likums) are worded as follows:
Section 9
“1. In educational establishments maintained by the State and local authorities, instruction shall be provided in the official language.
2o Instruction may be dispensed in another language:
(1) in private educational establishments;
(2) in establishments maintained by the State and local authorities which have introduced curricula for national minorities. In the context of these curricula, the Ministry of Education and Science shall decide which subjects must be taught in the official language; and
(3) in the other educational establishments provided for by law.
3. In order to attain the primary or secondary standard of education, all pupils shall learn the official language and sit examinations to verify their knowledge of this language, in accordance with the procedures defined by the Ministry of Education and Science...”
Section 50
“The following may not work as teachers: ...
(3) in educational establishments maintained by the State or local authorities – persons not in possession of a document issued in accordance with the procedures determined by the Council of Ministers certifying that they have attained an advanced level in the official language, with the exception of teachers in higher educational establishments who are foreign nationals or stateless persons participating in educational programmes set up on the basis of an international agreement, and teachers employed by educational establishments set up by foreign States, or by departments attached to such establishments...”
Transitional provisions
“9. Section 9(1) and 9(2)(2) of the present Act shall enter into force in a phased manner:
(1) 1 September 1999 – in higher educational establishments;
(2) 1 September 1999 – schools maintained by the State or local authorities which provide instruction in another language shall begin to implement curricula for national minorities or to introduce instruction in the official language;
3) 1 September 2004 – [pupils in] the tenth year of general secondary schools maintained by the State or local authorities, and [pupils in] the first year of vocational education establishments maintained by the State or local authorities, shall commence their studies in the official language alone”.
3. Legislative provisions concerning individual applications to the Constitutional Court, and their implementation
The relevant provisions of the Constitutional Court Act of 5 June 1996 (Satversmes tiesas likums) are worded as follows:
Section 19-2
(added by the Law of 30 November 2000, in force since 1 July 2001)
“1. Any person who considers that a legislative provision which is not in compliance with a provision having superior legal force has infringed his or her fundamental rights under the Constitution may lodge a constitutional appeal with the Constitutional Court [konstitucionālā sūdzība].
2. A constitutional appeal may be lodged only after exhaustion of all the possibilities for securing protection of such rights through ordinary legal remedies (appeal to a higher authority, appeal or application to a court of general jurisdiction etc.) or where such remedies do not exist.
3. Where examination of a constitutional appeal is in the public interest or where legal protection of the rights in question via ordinary remedies does not enable the appellant to avoid substantial damage, the Constitutional Court may decide to examine the application even before all other domestic remedies have been exhausted. The institution of proceedings before the Constitutional Court shall preclude examination of the civil, criminal or administrative case by the court of general jurisdiction until such time as the Constitutional Court’s judgment has been delivered.
4. A constitutional appeal may be lodged within six months of the date on which the decision of the highest instance becomes final.
5. The submission of a constitutional appeal shall not suspend the execution of a judicial decision, except in cases where the Constitutional Court decides otherwise.
6. In addition to its substance, as required by Article 18 of the present Act, a constitutional appeal must contain submissions concerning:
(1) the violation of the appellant’s fundamental constitutional rights; and
(2) exhaustion of all other ordinary remedies or the fact that no such remedies exist.
7. The following information must be appended to a constitutional appeal:
(1) the explanations and documentation required to establish the facts of the case;
(2) documents certifying that, where they exist, all ordinary remedies have been exhausted.”
Section 32
“1. The judgment of the Constitutional Court shall be final. It shall come into legal effect at the time of delivery.
2. The judgment of the Constitutional Court shall be binding on all State and municipal institutions and authorities, including the courts, and also on natural persons and legal entities.
3. Any legal provision or act which the Constitutional Court has found incompatible with the legal provision having superior legal force shall be considered invalid from the date of publication of the Constitutional Court’s judgment, unless the Constitutional Court rules otherwise ...”
According to official statistics, the Constitutional Court delivered thirteen judgments during the period from 1 July 2001 to 1 December 2002 on the basis of constitutional appeals lodged by individuals. In nine of these thirteen cases, it ruled that the statutory provisions or legislation in issue were incompatible with those having superior legal force and declared them fully or partially void.
COMPLAINTS
The applicants alleged a violation of their rights under Article 2 of Protocol No. 1 of the Convention. The second applicant pointed out that, from 2004, he would be obliged to pursue his secondary education in Latvian rather than in Russian, his mother tongue and the language to which he had been accustomed since his first year of schooling. He claimed that, were he to study in Latvian, he could never achieve a sufficient degree of understanding to be able to learn as successfully and as productively as if he were studying in his mother tongue. Consequently, there was likely to be a general decline in the standard of education of Russian-speaking children, which ought to be interpreted as a genuine “refusal of the right to education”. The second applicant also complained of the application of section 50(3) of the Education Act, which prohibited the employment as state school teachers of persons who did not have an advanced knowledge of Latvian; in his opinion, this provision was likely to result in the departure of numerous teachers and therefore, once again, in a general decline in the level of instruction. The first applicant claimed that, by obliging her son to pursue his secondary education in a language other than his own, the Latvian legislature had failed in its obligation to honour her right as a parent “to ensure such education and teaching in conformity with [her] religious and philosophical convictions” within the meaning of the second sentence of Article 2 of Protocol No. 1 to the Convention. She considered the Russian language as “the vector of all Russian culture, history, religion and identity”. In her opinion, the only way to honour her sense of Russian identity was to ensure that her child received secondary education in the Russian language.
The applicants also submitted that the legislative provisions in dispute created a situation of inequality between ethnic Latvians and parents belonging to the Russian-speaking minority: while the first group would maintain the right to be educated in their own language, the second group would be deprived of this right in respect of Russian. Equally, the first applicant, as a Russian-speaking mother, was a taxpayer on the same basis as Latvian-speaking parents, but her opinion concerning the choice of language of instruction had not been taken into consideration. In those circumstances, the applicants alleged discrimination based on language and membership of a national minority, in breach of Article 14 of the Convention.
In addition, the second applicant claimed that, by obliging him to study in a language other than his own from 2004, the Latvian authorities were inducing him to act against his will and his conscience, and that this constituted “degrading treatment” within the meaning of Article 3 of the Convention.
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THE LAW
1. Complaints under Article 2 of Protocol No. 1 and Articles 14 and 3 of the Convention
The applicants complained that the impugned provisions of the Education Act infringed their rights under Article 2 of Protocol No. 1 and Articles 3 and 14 of the Convention. The relevant parts of these Articles provide as follows:
Article 2 of Protocol No. 1
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
Article 3
“No one shall be subjected to ... degrading treatment.”
Article 14
“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as ... language... national or social origin, association with a national minority... or other status.”
The Court recognises at the outset that Article 34 of the Convention entitles individuals to contend that a law violates their rights by itself, even in the absence of an individual measure of implementation, if they run the risk of being directly affected by it (see, for example, Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, p. 21, § 42; Dudgeon v. the United Kingdom, judgment of 22 October 1981, Series A no. 45, pp. 18-19, § 41; and Norris v. Ireland, judgment of 26 October 1988, Series A no. 142, p. 15, § 31). However, the Court points out that, under Article 35 § 1 of the Convention, it may only deal with a matter after all domestic remedies have been exhausted by the applicants, according to the generally recognised rules of international law. The main aim of this rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). Furthermore, Article 35 § 1 requires only the exhaustion of those remedies which are effective and adequate, i.e. capable of directly redressing the complaints raised (see, for example, Remli v. France, judgment of 23 April 1996, Reports of Judgments and Decisions 1996-II, p. 571, § 33).
In the present case, the Court observes that the situation complained of by the applicants does not result from an individual action taken against them by a public authority, but from the actual wording of the Education Act. In this regard, the Court notes that section 19-2 of the Constitutional Court Act, which was added by the Law of 30 November 2000 and entered into force on 1 July 2001, entitles individuals to challenge before the Constitutional Court “a legal provision having superior legal force" where they consider that the provision in question “infringes [their] rights under the Constitution”. The right to education is one of the fundamental rights protected by the Latvian Constitution (Article 112). The Court also points out that Article 85 of the Constitution and section 32 of the Constitutional Court Act authorise the Constitutional Court to abrogate a legislative or statutory provision that it considers unconstitutional or contrary to a provision having superior legal force, and that that court has already exercised this right in nine cases brought before it by individuals. An appeal to the Latvian Constitutional Court is therefore a remedy capable of remedying the situation complained of. In other words, where the applicant calls into question a provision of Latvian legislation or regulations as being contrary, as such, to the Convention, and the right relied on is among those guaranteed by the Latvian Constitution, proceedings should, in principle, be brought before the Constitutional Court prior to being brought before the European Court of Human Rights.
In this case, it appears from the evidence that the applicants have failed to contest the constitutionality of the impugned provisions of the Education Act by means of an individual appeal to the Constitutional Court, and that they have not submitted any ground capable of casting doubt on the effectiveness of such a procedure. Accordingly, the Court considers that there is a domestic remedy available to them which they have not used.
It follows that these complaints must be rejected on the ground of non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.
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For these reasons, the Court unanimously
Declares the application inadmissible.
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