November 16, 2010

Venice Commission Criticizes Slovak Language Law

Changes Adopted by Slovak Parliament Need Major Revision

 

On October 21, the Venice Commission (the Council of Europe's advisory body on constitutional matters, formally called the European Commission for Democracy through Law) published its official opinion on amendments adopted in June 2009 to Act No. 270/1995 on the State Language of the Slovak Republic. The Commission determined that certain provisions in the State Language Law are incompatible with international standards [1] and though the desire to promote the official language is understandable, the state is not absolved "of the obligation to comply with the provisions of the international conventions for the protection of national minorities." (Paragraph 47)

The 27-page report (Opinion No. 555/2009)

• concludes that the law needs to be revised and changes made in the provisions regulating education, religion, cultural activities, television broadcasting, public communication, official communication, judicial and administrative proceedings, and fines. (Paragraphs 136 and 137) [2] [3]
• questions the benefit of sanctions as the means for achieving compliance and the law's objectives (Paragraph 131) [4] ;
• asserts that "no fine should be imposed for those breaches of the State Language Law which represent legitimate expressions of the right to use a minority language as guaranteed" by domestic law and international treaties (Paragraph 129);
• declares that the "protection and promotion of the state language must be balanced  against protection and promotion of the linguistic rights of persons belonging to national minorities" (Paragraph 134);
• repeatedly affirms that "the obligation to use the official language should be confined to genuine cases of public order needs and bear a reasonable relation of proportionality" (Paragraph 134); and
• would "welcome a comprehensive, holistic approach on the part of the Slovak authorities to the protection of minority rights in the Slovak Republic [...]." (Paragraph 18)

Before the Venice Commission's report was officially released, however, on October 20 the Slovak Parliament adopted newer modifications to the State Language Law, in a first round of voting (78 yeas to 66 nays out of 150 total MEPs). Consequently, the Slovak government and Parliament did not take into consideration the Commission's recommendations when deliberating these newer amendments, nor did they sufficiently remedy the concerns raised by the Commission. While the proposed changes contain noteworthy "improvements," the very discriminatory and punitive premise of the Law remains and as such are inadequate. [5]

As the Hungarian Coalition Party (HCP) of Slovakia has pointed out, with only these limited changes, the Radicova government is unfortunately assuming the prior, Fico government's legacy instead of reverting to the 2006 status quo on language rights. [6]

Background to the newer modifications voted by the Slovak Parliament on October 20

The proposed changes appear to be the result of a political deal between the parties of the governing coalition formed on July 8, 2010. Despite the generally accepted norms of democratic societies and prior recommendations from the OSCE High Commissioner, these modifications were not preceded by public debate, negotiations with experts and NGOs representing minorities, nor even submitted to inter-ministerial review.

The media, Roundtable of Hungarians in Slovakia and the Hungarian Coalition Party have all extensively addressed the shortcomings of these new modifications.

According to József Berényi, HCP President, these changes do not fundamentally alter the law's premise of inequality, the false distortion that somehow the dominant language needs to be protested from minority ones and that minority citizen need to be motivated by fines because they lack common sense and good judgment regarding appropriate language use. Therefore, the law would continue to promote an atmosphere of fear, self-censorship and assimilative tendencies among the Hungarian minority.

The prospect of sanctions and fines "only" applying in cases where "life, health, safety or the property of citizens are endangered," is not reassuring since these are broad categories that can pave the way for arbitrary implementation. Moreover, the concept of "endangered" is not delineated and apparently in the government's original version the provision was even more vague with the word "endangered" missing and the term "effected" used instead.

The following is a summary comparison by HHRF of how the new changes ["Proposed Amendments"] to the Slovak Language Law ["law"] adopted October 20 conform to the Venice Commission's ["Commission"] assessment of the law:

Compliance with International Law and Norms

1. The Commission finds that "certain provisions of the Act are incompatible with the international obligations which the Slovak Republic has undertaken and as such should be revised." (Paragraph 136)

2. Even if the Proposed Amendments are ultimately adopted, the law would still not comply with the relevant bilateral and international legal standards, agreements and treaties Slovakia is a party to, namely, the European Charter for Regional or Minority Languages (Charter) [7]

The Relationship between the State Language Law and the Act on the Use of the Languages of National Minorities

1. The Commission finds that the relationship between the two Acts is ambiguous and contradictory. The Act on the Use of the Languages of National Minorities has a status of special law (lex specialis derogat generali) in relation to State Language Law, but this principle is only partly taken into account. The Commission notes that "whenever there is a contradiction between the Act on the Use of the Languages of National Minorities on the one hand and the State Language Act on the other, it seems that it is the latter that will prevail." (Paragraph 17)

Furthermore, the Commission stresses that "there are provision which affect the exercise of the existing linguistic rights of the national minorities either by restricting these rights or by imposing, with a significant burden, the parallel use of the state language by persons belonging to national minorities." (Paragraph 25)

2. The Proposed Amendments do not correct these insufficiencies and do not ensure the predominance of the principle of special law.

The Roundtable of Hungarians in Slovakia has pointed out that a lack of harmonization between the State Language Law and the Minority Language Law, as well as the complete absence of a comprehensive Law on Minority Rights, leaves the door open for continual (politically-motivated) changes to the State Language Law, perhaps corresponding to the four-year election cycle. Therefore, the rights of minorities would continue to be at the mercy of political twists and turns (Statement dated September 28, 2010).

The State Language Law and the "Principles"

1. The Commission finds that although the "Implementation Principles of the Law" (adopted December 16, 2009) by the Slovak government contain certain safeguards for national minorities; these are not sufficient since they are not legally binding. Thus, the Commission finds that "the main provisions of the 'Principles,' and certainly those which affect or amend the provisions of the State Language Law, should be adopted by parliament and introduced in the latter law." (Paragraph 31)

2. The Proposed Amendments do not include any revision to, or inclusion of the Implementation Principles of the Law. The "Principles" were adopted by the prior Slovak governing coalition in an attempt to ameliorate the effects of the amendments to the law voted in June 2009.

Fines:

1. As regards the supervision and imposition of fines, "one of the most sensitive and complex questions raised by the Slovak State Language Law," the Commission categorically states that "no fine should be imposed for those breaches of the State Language Law which represent legitimate expressions of the right to use a minority language as guaranteed not only by the applicable Slovak legislation, but also and in primis by the international treaties." (Paragraphs 128 and 129)

The Slovak authorities assert that the aim of sanctions is not punishment rather the correct application of law. The Commission's opinion is that "it remains to be seen whether, assuming that it is desirable, it is useful to provide for sanctions for breaches of the duty to use the official language." (Paragraph 131) Moreover, the stated objective "would be more efficiently reached through co-operation and confidence-building measures rather than through sanctions. The latter should be left, if at all, for the most extreme cases," states the report.

2. Fines were already removed from the law once, in 1999, as the Commission also notes. The Proposed Amendments, however, do not eliminate them. Rather-possibly in anticipation of the Commission's report-the modifications attempt to circumscribe the circumstances under which they can be meted out to "endangering life, health, safety or property of citizens." But these broad categories, and undefined interpretation of the word "endangered," achieve the opposite result from limiting the law's negative, discriminatory impact.

Imposing fines would now be at the discretion of the Ministry of Culture; in other words, the Ministry would be authorized but not obligated to enforce the law. Lastly, the highest threshold would decrease from 5,000 to 2,500 Euros with the modification of Art. 9a, § 1. All of these measures, while ameliorative, are still half-measures, leading to further confusion and uncertainty and, most importantly, do not eliminate the fines.

State Language in Official Communication:

1. Many of the Commission's concerns in the area of official communication indicate the need to change the Act on the Use of the Languages of National Minorities. In fact, the Commission concurs with the OSCE High Commissioner on National Minorities recommendation that the Act be updated "without any unnecessary delay." (Paragraph 50, Footnote 42)

The Commission finds that the State Language Law-pursuant to a separate regulation-gives national minorities the right to use their mother tongue in official communication, but only in municipalities in which they form least 20 percent of the population (Art. 3 §1). The Commission warns that this restriction (which amounts to a territorial reservation) is incompatible with the Charter. (Paragraph 53)

Furthermore, the Commission highlights that sentence of Art. 3 § 5 in which "a natural or legal person" is obligated to use the state language in their official communication with the authorities because of possible broad interpretation that would render it incompatible with the Charter. The Commission considers that for legal certainty this sentence be repealed. (Paragraph 62)

In Section V, Sub-Section E, the Commission raises many issues that need further elucidation regarding state language use in the areas of the Armed Forces, Armed Corps and Fire Brigades. It concludes that Art. 6 §1 requiring all "service communication" to be in the state language in these fields "should be reconsidered." (Paragraph 101)

2. The Proposed Amendments do not address or remedy the first three points of the Commission listed above. However, they do contain the following three modifications, limited in scope, regarding official communication:

The State Language and Religion

1. The Commission states that if Art. 3 § 3c of the law implies that only Slovak may be used for records and documents by churches and religious communities intended for the public, then it "violates several international treaties on human rights and minority rights." (Paragraph 69) [8]

Should the State desire that all the kinds of documents referenced in this provision be translated into Slovak "even when this is not justified for public order needs, the Venice Commission considers that additional administrative or financial means should be provided in order to have the texts translated." (Paragraph 72)

2. The Proposed Amendments do not contain any modifications on the use of the state language in religious institutions.

The State Language in the Educational System

1. The Commission criticizes the fact that both "pedagogical documentation" and "other documentation" have to be kept in the state language as well. The obligation to translate into Slovak "should be limited to those documents which are necessary in order to render the inspection of the minority language schools possible. This provision should therefore be reconsidered." (Paragraph 84) The obligation to keep bilingual documentation places a "heavy burden on the minority schools, which does not rest on the other schools." The Commission recommends providing additional administrative or financial means to have documents translated. (Paragraphs 80 and 84)

2. The Proposed Amendments would not require that all documentation in minority-language educational institutions be kept in the state language. (Art. 4, § 3) The Ministry of Education would determine, by decree, which documents would have to be also translated into Slovak. There is no indication of additional funding being provided. As the Roundtable of Hungarians points out, this modification is inadequate as it would leave regulation to some future date and entity and in no way guarantee a right.

Changes Regarding Language Use in the Public Sphere

Radio and Television Broadcasting

1. The Commission states that the obligation to also broadcast programs in the state language (Art. 5) imposes additional financial burdens on minority broadcasters and warns that these additional costs "must not be such as preventing or discouraging national minorities broadcasts." (Paragraph 87) It expresses concern that "it is possible that the burden imposed on minority broadcasters may become disproportionately heavy. In particular, the Commission does not find that the Slovak language is threatened by the minority languages in such way as to require such a radical attitude towards minority broadcasting," however, the State itself should provide the adequate funding for dubbing or subtitling if it wishes total bilingualism. (Paragraph 89)

2. The Proposed Amendments do not address or remedy any of the Commission's concerns in this regard. Media in Slovakia has pointed out that the law's requirements decrease regional television's competitiveness.

The Use of the State Language in Cultural Activities

1. The Commission warns that the obligation to also publish or present verbally the entirety of information on minority events in Slovak imposes additional costs and work on the organizers. The financial burden could have "a chilling effect on the organization of cultural events in minority and foreign languages." Public funding for translation into Slovak language is therefore recommended by the Commission. (Paragraph 94)

2. The Proposed Amendments address these concerns in a limited manner: the requirement (Art. 5, § 5) for printed material to provide information on minority events in the state language would be reduced to "only basic information."

The Use of the State Language on Monuments

1. As the Commission points out, Art, 5 § 7 of the law requiring that the inscriptions on monuments, memorials and memorial plaques be in the state language "seems to imply that centuries-old inscriptions on monuments will have to be translated."(Paragraph 96). A Ministry of Culture information sheet and the aforementioned--not legally binding--Principles indicate that the requirement would only apply to objects less than 50 years old and not "gravestones, grave slabs and grave markers." The Commission recommends incorporating these two ameliorative factors into the law.

2. The Proposed Amendments do not include adding the above-mentioned changes. The essence of this provision would remain in effect, namely, that inscriptions have to include a Slovak-language version and these must be larger in size. The only two changes, limited in scope, would be that prior approval by the Ministry of Culture for inscriptions on monuments would no longer be mandatory; and in municipalities where a minority language is also in official use (the percentage of a given minority population reaches at least 20 percent), the minority-language inscriptions could precede the Slovak-language ones.

State Language Use in Judicial Proceedings, Administrative Proceedings and Proceedings before Law Enforcement Authorities

1. The Commission finds Article 7 of the law at variance with the Charter as it links the right to an interpreter to command of the Slovak language in the proceedings enumerated. (Paragraph 106)

2. The Proposed Amendments do not address or address this fundamental issue raised by the Commission.

State Language Use in Other Areas of Public Communication

1. Article 8 of the law contains numerous provisions on the use of the state language in other areas of public communication such as consumer protection, employment, contracts, signage and associations. The Commission finds that the obligation to draft "all documents and written communication with legal effect in employment or a similar working relationship" (Art. 8 § 2) in the Slovak Language should only apply when access to these is indispensable for public order aims "otherwise this requirement would be in breach of Article 13 of the Charter, in particular when both parties belong to a national minority in a municipality where the minority represents at least 20% of the overall population."

Furthermore, the Commission is concerned that in proceedings before the authorities the law recognizes only the state language version of contracts. (Art. 8. § 5) and this violates Art. 9 § 2 of the Charter.

2. The Proposed Amendments do not address or remedy these concerns raised by the Commission.

Health Care and Social Service

1. A particularly egregious aspect of the law concerns communication in a healthcare setting. Currently, the law stipulates that health care personnel can only use a minority language when the patient does not understand the state language or, if both parties speak the language and are located in a community where the proportion of the minority population reaches 20 percent (Art. 8, § 4).

2. While the Commission does not call into question these restrictions on use of the mother tongue, the Proposed Amendments would, nevertheless, henceforth rightly allow minority languages to be used in healthcare institutions and social services if the parties involved understand each other. The stipulation that healthcare personnel would continue not to be obligated to speak a foreign or minority language is reinforced however.

Public Communication of Private Persons

1. The Commission finds that Article 8 (6) imposing the use of the Slovak language for all "signs, advertisements and notices intended to inform the public" implies "a heavy burden on all those who want to communicate with the public, (...) [and] the effects could be so onerous in some situations as to have a chilling effect on the exercise of the freedom of expression." (Paragraph 125)

It also recommends that provision be re-examined in terms of proportionality and need in "almost exclusively minority population[s]."

2. While the Commission recommends including an ameliorative factor contained in the Principles to the law, namely, that this provision would only apply to non-commercial entities, the Proposed Amendments do not include such a change. The only change would affect merely a minor aspect of this regulation: the order in which state and minority-language text has to appear would not be regulated. Recently, the municipal television station in Komárno/Révkomárom was fined for airing two commercials exclusively in Hungarian, and one Slovak-language paper was fined for publishing a printed ad just in Hungarian.

Conclusion

The overwhelming majority of concerns with the Slovak Language Law expressed by the Venice Commission remain unremedied. The report underscores the law's punitive aspects, enumerates areas in which use of the mother tongue (minority languages) is unfavorably impacted and calls attention to provisions in noncompliance with international agreements.

There will be a second round of parliamentary voting in early December-and occasion to yet again submit or revise amendments. The Slovak authorities, therefore, have immediate opportunity to correct deficiencies in the law, remove fines once already eliminated from it in 1999, and bring it into international compliance. In fact, since October 12, Slovak citizens have been signing a petition which calls upon Parliament to "eliminat[e] fines for the use of the mother tongue and all the discriminatory provisions concerning minorities" from the law. The authorities should do just that.