Conclusion and recommendations:
116. The Venice Commission has examined the provisions dealing with the language of education - Article 7 and Article 3 paragraph 18 of the Concluding and Transitional Provision - in the new Law on Education adopted by the Ukrainian Parliament on 5 September 2017.
117. Since Ukraine gained its independence, the language issue has always featured prominently in the national debate, being legitimately considered to be an important element, if not the main factor, in state and nation-building. At the same time, in the specific demographic, social and geo-political context prevailing in Ukraine, designing a language policy likely to respond to the various expectations and interests within the Ukrainian society, respectful of the applicable standards and the linguistic rights of both the majority and the country’s minorities - with different historical backgrounds, expectations and needs - is a difficult challenge. This is all the more true in the current situation of the country.
118. The Venice Commission wishes to underline, in the first place, as it did on previous occasions, that it is a legitimate and commendable aim for states to promote the strengthening of the state language and its command by all citizens, and to take action for its learning by all, as a way to address existing inequalities and to facilitate more effective integration of persons belonging to national minorities into society.
119. While introducing a comprehensive reform of the Ukrainian education system which globally seems to be positively received, the new Education Law also proposes new principles for the use of languages as medium of education and as subject of instruction. In particular, Article 7 of the new Law, by reducing the scope of education in minority languages, notably at the secondary level, has drawn strong criticism and protests both domestically and internationally.
120. This criticism seems justified due to a number of reasons. The Article, as adopted, is quite different from the draft on which minorities were consulted. Compliance with relevant international and constitutional provisions is essential when introducing comprehensive reforms touching already existing and well established rights of national minorities. Clarity and legal precision are essential when implementing relevant international principles. However, the precise level of protection of the linguistic rights that Article 7 grants to Ukraine’s national minorities remains unclear. Article 7 contains important ambiguities and does not appear to provide the guidance needed from a framework law in the application of the country’s international and constitutional obligations. It contains some guarantees for education in the minority languages, mainly limited to primary education, though the exact scope of such guarantees is not as clear as it could be. It actually allows to radically change the previous language regime, at least in secondary education, towards a system focused on the mandatory use of the Ukrainian language as the language of education. This could result in a substantial diminution in the opportunities available to persons belonging to national minorities to be taught in their languages, which would amount to a disproportionate interference with the existing rights of persons belonging to national minorities. In addition, the short deadline for the implementation of the new rules raises serious concerns about the quality of education.
121. On the other hand, because Article 7 is a framework legislative provision and because it does not specify the modalities by which it is to be implemented, there is space for an interpretation and application which are more in line with the protection of national minorities. The Venice Commission welcomes that the Ukrainian authorities are ready to use such possibilities. As regards primary education, Article 7 contains some guarantees only for the continuation of education in minority languages, but it is also not an obstacle. The Venice Commission understands that the Ukrainian authorities seem to intend to continue with the teaching of most subject matters in minority languages in specific classes for national minorities.
122. As regards secondary education, Article 7, while clearly aimed at increasing the role of the state language and reducing the role of minority languages, still leaves room for some flexibility. The Education Law is a framework law and the Law on General Secondary Education, still to be adopted, could provide for more detailed and balanced solutions. If the law were implemented in a manner that minority languages could only be taught as a subject and there would no longer be the possibility to teach other subjects in the minority language, this could clearly be a disproportionate interference with the existing rights of minorities. However, Paragraph 4 of Article 7 provides a legal basis for the teaching of other subject matters in official languages of the EU.
123. The intention of the Ukrainian authorities seems, indeed, to use this provision to also enable the teaching of other subjects in these languages. This could be an acceptable solution for these languages, but only if there are sufficient guarantees in the implementing legislation, specified following adequate consultation of minorities, that the scope of this teaching will be sufficient to enable the students to attain a high level of oral and written proficiency, enabling them also to address complex issues. The results of the current bilateral talks with minorities’ kin-states could provide useful input to the implementation of Article 7 in this respect.
124. However, paragraph 4 of Article 7 provides no solution for languages which are not official languages of the EU, in particular the Russian language, as the most widely used language apart from the state language. The less favourable treatment of these languages is difficult to justify and therefore raises issues of discrimination.
125. Having regard to the above considerations, the appropriate solution would certainly be to amend Article 7 and replace this provision with a more balanced and more clearly worded one. In particular, the issue of discriminatory treatment of other minority languages - which are not official languages of the EU - would have to be addressed in this context.
126. Many concerns may, however, also be immediately addressed through other legislative acts and when implementing Article 7 as adopted, especially through the Law on General Secondary Education. In this respect, the Venice Commission recommends in particular:
to fully use, when adopting implementing legislation, the possibilities provided by paragraph 4 of Article 7 to ensure a sufficient level of teaching in official languages of the European Union for the respective minorities;
to continue ensuring a sufficient proportion of education in minority languages at the primary and secondary levels, in addition to the teaching of the state language;
to improve the quality of teaching of the state language;
to amend the relevant transitional provisions of the Education Law to provide more time for a gradual reform;
to exempt private schools from the new language requirements in accordance with Article 13 of the Framework Convention;
to enter, within the framework of the implementation of the new Education Law, into a new dialogue with representatives of national minorities and all interested parties on the language of education.
to ensure that the implementation of the Law does not endanger the preservation of the minorities’ cultural heritage and the continuity of minority language education in traditional schools.
127. The Venice Commission and the Directorate General of Democracy (DG II) of the Council of Europe remain at the disposal of the Ukrainian authorities for any assistance they may need in this respect.