In Catan and Others v. Moldova and Russia, ECHR Finds Violation of Right to Education
On October 19, the Grand Chamber of the European Court of Human Rights issued its judgment in the case of Catan and Others v. Moldova and Russia, nos. 43370/04, 8252/05, and 18454/06. The case concerned Moldovan nationals living in the Moldovan Republic of Transdniestria (MRT), a separatist entity that split from the Republic of Moldova in 1990 but that has not been recognized by the international community. The applicants claimed that the MRT’s prohibition of using Latin scripts in education, and its related harassment of those participating in schools using Moldovan as the language of instruction, violated their rights to education under Article 2 of Protocol No. 1 to the European Convention on Human Rights, as well as Article 8 (respect for private and family life) and Article 14 (freedom from discrimination) of the European Convention.
The application challenged a series of measures undertaken by MRT authorities to ensure instruction in Moldavian, a form of the Moldovan/Romanian language that uses the Cyrillic alphabet rather than the Latin alphabet. In September 1992, the authorities passed the “MRT Law on Languages” which provided that Moldavian must be written in the Cyrillic alphabet and that use of the Latin alphabet may amount to an offence. Catan, para. 43. Two years later, the authorities forbade the use of Latin script in schools. Id., para. 44. The applicants alleged that between 2002 and 2004, MRT authorities harassed students and teachers at schools continuing to instruct in the Latin script and that one school was subjected to a “systematic campaign of vandalism.” Id., para. 44 and 51. The three schools in question were shut down for a period of time. Id., para. 45. Parents and teachers were arrested and sentenced to administrative imprisonment. Id., para. 60. The applicants also alleged that parents were threatened with the loss of their jobs and parental rights if they continued to protest the instruction in Cyrillic. Id., para. 48.
Violation of the Right to Education
The Court held that there had been a violation of the applicants’ right to an education, as protected by Article 2 of Protocol No. 1 to the European Convention on Human Rights. Although the Court acknowledged the “fundamental importance of primary and secondary education,” it noted that the right to education is not unlimited. Id., para. 144. A State may place some restrictions on the exercise of this right, but the Court must be satisfied that the restrictions in question “are foreseeable for those concerned and achieve a legitimate aim.” Id., para. 140. The Court noted that although the closed schools were later allowed to reopen, they were moved to locations that were “less well equipped and less conveniently situated.” Id., para. 141. The Court also found it significant that Moldavian is “not used or recognized anywhere else in the world” and that there are no Moldavian language colleges or universities. Id. Consequently, if a child instructed in Moldavian wished to pursue higher education, he or she would have to learn another language or alphabet in order to do so. See id. The Court therefore held that the forced school closings as well as the harassment experienced by the applicants amounted to an interference with the applicants’ right to education. Id., para. 143.
The Court further held that this interference was not justified. Rather, the Court found that the actions of the MRT authorities were in fact tied to the region’s separatist objectives:
Indeed, it appears that the MRT’s language policy, as applied to these schools, was intended to enforce the Russification of the language and culture of the Moldovan community living in Transdniestria, in accordance with the MRT’s overall political objectives of uniting with Russia and separating from Moldova.
Id., para. 144 (emphasis added).
The Court found it significant that as a result of the relocation of the schools, parents had to choose between sending their children to substandard facilities where they would experience threats and harassment or having their children instructed in a language not used outside of the MRT. Id., para. 143. Further, because Moldavian had been more widely spoken during the Soviet era, instruction materials were limited to those produced during that time period. Id. Because the Court found a violation of the right to an education, it held that it need not consider the applicants’ claims as to Articles 8 and 14 of the European Convention. Catan, para. 155 and 160.
The Court’s decision in Catan stands in contrast to the Court’s earlier judgment in the Case “relating to certain aspects of the law on the use of languages in education in Belgium” v. Belgium, ECtHR, Series A no. 6, Judgment of 23 July 1968, in which the Court held that the right to education does not require States to defer to parents’ language preferences in primary and secondary education. The facts in the Case “relating to certain aspects of the law on the use of languages in education in Belgium,” however, are distinguishable from the facts of Catan in a number of ways. Notably, the Court found in its 1968 judgment that the objective of the Belgian government in providing only Dutch-language instruction in predominantly Dutch-speaking regions of the country was to ensure uniform language instruction and thus did not amount to impermissible discrimination. Further, there was no record of harassment or forced school closings.
Russia’s Extra-territorial Jurisdiction
The Catan judgment is the latest in a series of Strasbourg Court cases concerning extra-territorial jurisdiction, particularly as it relates to the MRT. Relying heavily on its earlier decision in ECtHR, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004, Judgment of 8 July 2004, the Court held that both Moldova and Russia had jurisdiction over the applicants. Despite the fact that the MRT authorities operate outside the control of the Moldovan government, the MRT is recognized under international law as being within Moldova’s territory. Catan, para. 146. Thus, Moldova had jurisdiction over the applicants. The Court held that Moldova had fulfilled positive law obligations by making a “considerable effort” to support the applicants. Id., para. 147. Of particular significance to the Court was the fact that once the schools were reopened and relocated, the Moldovan government provided financial support to the schools including paying the institutions’ rent, equipment and staff salaries as well as the transport costs of students. Id. Accordingly, the Court found that Moldova had not violated Article 2 of Protocol No. 1 of the Convention.
Drawing on its factual findings in Ilaşcu, which overlapped with the time period at issue in Catan, the Court also held that Russia had extra-territorial jurisdiction. This was due to the fact that Russia had provided significant military, economic, and political support to the MRT over the years. See, e.g., id., para. 150. This support consisted of the transfer of arms to the territory as well as the provision of gas subsidies and humanitarian aid to the region. See id., para. 120. According to the Court, this support enabled the formation of the MRT, as well as its continued survival. Id., para. 122. Russia, therefore, had jurisdiction and was responsible for the violation of the applicants’ rights. Id., para. 150.
However, unlike in Ilaşcu, the Russian authorities did not directly participate in the measures taken by the MRT. Moreover, the reopening of the schools was the result of efforts by Russian mediators. Id., para. 149. The Court’s judgment has led at least one commentator to question how its holding on extra-territorial jurisdiction fits within its own case law and the International Law Commission (ILC) and the International Court of Justice (ICJ) findings on the same issue. In the view of Marko Milanovic, the European Court’s holding mixes a discussion of jurisdiction with attribution of responsibility, albeit less than in previous cases. The holding may even conflict with past ICJ and ILC findings on extra-territorial jurisdiction, but as Milanovic noted, “ultimately, we again have a judgment that is conceptually open to various interpretations.”
The European Court has produced useful resources summarizing its caselaw concerning cultural rights (including linguistic rights and the right to education) and on extra-territorial jurisdiction. For additional background on the Catan case see IJRC: ECHR Grand Chamber Hearing in Catan v. Moldova & Russia: Linguistic Discrimination.