B Explanatory memorandum
by Mr Andres Herkel, rapporteur
1 The new
Ukrainian Education Act and its Article 7
1. The Ukrainian Verkhovna Rada
(Ukrainian Parliament) adopted on 5 September 2017 a new Education Act,
which was signed on 27 September 2017 by the Ukrainian President,
Petro Poroshenko. The new law is intended to introduce major changes
to Ukraine’s school and education system. In particular, the period
of school education – “secondary general education” – has been extended
from 11 to 12 years and has been divided into three stages: a four-year
“primary secondary education”, a five-year “basic secondary education” and
a three-year “field-specific secondary education” (see Article 13.3
of the Education Act). Significant changes in the programme and
methods of teaching are also expected. For the Ukrainian authorities,
these changes are required to modernise the system and bring it
closer to European educational standards.
2. The enactment of this new legislation has provoked immediate
and strong reactions from various countries, the claim being that
the Education Act infringes upon the rights of minorities. The dispute
is essentially around the heavy impact that the new law – and in
particular its Article 7 – will have on the functioning of national
minorities’ schools and on the learning by the national minorities
recognised by Ukraine of their own languages.
Article 7 – entitled “The language of education” – reads as
(in bold, elements
which seem more relevant):
“1. The language of the educational process
at institutions of education is the state language.
The State guarantees the right
to obtain formal education at all levels (preschool, general secondary, vocational
education and training, pre-tertiary vocational and higher), as
well as out-of-school and postgraduate education in the state language
at the state and communal institutions to each citizen of Ukraine.
Persons belonging to national
minorities of Ukraine are guaranteed the right on education in municipal
educational institutions of pre-school and primary education in
the language of the national minority they belong to and in the
official language of the State. This right is realised by creating
(in accordance with the legislation of Ukraine) of separate classes
(groups) with educational process in the language of the respective
national minority group along with the official language of the
State and is not applied to the classes (groups) with the Ukrainian language
of educational process.
Persons belonging to indigenous
peoples of Ukraine are guaranteed the right to study in municipal
educational institutions of pre-school and general secondary education
in the language of the respective indigenous people along with the
official language of the State. This right is realised by creation
(in accordance with the law) of separate classes (groups) with education
in the language of the respective indigenous people of Ukraine along
with the official language of the State and is not applied to classes
(groups) with the education in the Ukrainian language.
Persons belonging to indigenous
peoples, national minorities of Ukraine are guaranteed the right
to study the language of the respective indigenous people or national
minority in municipal institutions of general secondary education
or in national cultural associations.
Hearing-impaired persons are
given the right to education in sign language as well as to studying
of the Ukrainian sign language.
2. Institutions of education
ensure mandatory study of the state language, in particular, at
institutions of vocational education and training, pre-tertiary
vocational and higher institutions of education, in the amount that
allows to perform professional activity in the area of choice using
the state language.
Appropriate conditions for
study of the state language are created for individuals belonging
to indigenous people, national minorities of Ukraine, foreigners
and stateless persons.
3. The state promotes study
of international languages, first of all, English, at the state
and communal institutions of education.
4. One or more disciplines
may be delivered at institutions of education according to the educational programme
in two or more languages: the state language, in English, in other
official EU languages.
5. If a person obtaining vocational
education and training, pre-tertiary vocational education and higher
education wishes so, the educational institutions create possibilities
for him or her to learn a language of indigenous people, Ukraine’s
national minority as a separate discipline.
6. The State promotes the
establishing and functioning abroad of educational institutions,
in which the education is given in the Ukrainian language or the
Ukrainian language is studied.
7. Peculiarities of usage
of languages in certain types and at certain levels of education
are determined by special laws.”
2 The impact of the new provisions on
“the language of education” and reactions to them
To help understand the impact
of these new provisions,Note
will highlight the following elements:
- The act does not contain provisions that would allow “national
minority schools” to continue to operate.
- The persons who belong to the “indigenous nations of Ukraine”
(Crimean Tatars, Karaites and the Gagauz people) or to national
minorities will receive education in their own languages through
the establishment of “separate” classes (or groups), the educational
process being in the language of the respective national minority
group along with the official language of the State (compulsory
- Persons belonging to the “indigenous nations of Ukraine”
– i.e. Crimean Tatars, Karaites and the Gagauz people – will have
the possibility to study their languages throughout the 12 years
of “general secondary education”.
- National minorities’ languages (other than those of the
“indigenous nations of Ukraine”) can be the language of education
only at the initial stage, i.e. pre-school education and four years
at “primary secondary school”.
- For persons belonging to national minorities, Ukrainian
will be the only admissible language of education from year 5 to
year 12. However, they will have the opportunity to learn their
language during extra-curricular classes.
- One or more disciplines may be studied, according to the
educational programme, in addition to the State language, in English
or in other official European Union languages.
5. The provisions of the act concerning national minorities should
take full effect on 1 September 2020. The number of subjects with
Ukrainian as the language of instruction at the middle secondary
stage, i.e. in years 5 to 9, will be gradually increased starting
from 1 September 2018.
6. The prevailing aim of the new law seems to be to reinforce
the role of the Ukrainian language. This weakens the dominance of
Russian in the school system in the south-eastern regions of the
country. Indeed, it is obvious that the Russian-speaking minority
(15% of the Ukrainian residents declare that Russian is their native
language and 22% recognise both Ukrainian and Russian as their native
languages) will suffer acutely from the impact of these changes.
7. The Romanian and Hungarian minorities are also heavily affected
by the changes. There are 400 000 ethnic Romanians in Ukraine, including
a Romanian community consisting of 150 000 people and a Moldovan
minority of 250 000 people. The ethnic Hungarian minority in Zakarpattia
Oblast consists of approximately 150 000 people.
Therefore it is certainly not surprising that the new law
has provoked harsh criticisms, especially – but not only – in Hungary,
Romania and Russia. The parliaments of Romania and Hungary passed
resolutions claiming that the act severely restricts the right to
education in the national language. Both Bucharest and BudapestNote
Kyiv with blocking Ukraine’s European integration. On 14 September
2017, the Ministers of Foreign Affairs of Bulgaria, Greece,Note
Hungary and Romania sent a letter
to Mr Pavlo Klimkin, Ukraine’s Minister of Foreign Affairs, alleging
that the new law drastically curbed the already acquired level of
minority rights in education and language use, and urged Mr Klimkin
to use all the means at his disposal to avoid the new restrictive
provisions coming into force.
9. In a resolution adopted on 27 September 2017, the Russian
State Duma and Federation Council claimed that the Ukrainian law
violated the rights of Russian-speaking minorities in Ukraine and
would become an “act of ethnocide”. The resolution also called for
the competent bodies of the United Nations, the Organization for Security
and Co-operation in Europe (OSCE) and the Council of Europe to take
action to protect national minorities in Ukraine.
10. I would like to stress again that the new law does not envisage
the existence of “national minority schools”: education in minority
languages – as well as education in the languages of the “indigenous
nations of Ukraine” – will be provided in “minority classes” (or
groups) at Ukrainian schools. This is in itself a change that the
minorities concerned may consider dramatic.
11. According to official data, at present there are in Ukraine
581 schools with Russian as the language of instruction (around
356 000 pupils), 78 Romanian and Moldovan schools (around 19 000
pupils), 71 Hungarian schools (around 16 000 pupils) and 6 Polish
schools (around 1 800 pupils); these institutions are apparently doomed
to disappear or at least must be reshaped. The same fate will befall
the higher education institutions such as the Hungarian Faculty
of the Uzhhorod State University.
12. It is worth noting that national minority schools not only
provide education in a given language; they also offer a cultural
and upbringing programme (celebrations, assemblies, clubroom and
library activities, etc.) implemented at school level. The changes,
i.e. the closure or reshaping of these schools, will most probably undermine
minorities’ rights to activities of this kind, with a possible impact
on a wider population than the families directly concerned.
13. It is true that Article 7.4 of the new act provides for the
possibility of learning one or more subjects in one of the official
languages of the European Union. However, apart from the fact that
this possibility is very distant from the previous arrangements,
it can apply to Romanian, Hungarian and Polish for example, but
not Russian and not to Moldovan as a distinct language from Romanian,
because they are not European Union languages. Moreover, the introduction
of such classes seems to be dependent on the curriculum adopted,
which will be determined by the Ministry of Education of Ukraine.
14. A further consequence of the new legislation seems to be that
it will become impossible to pass a school-leaving exam and acquire
a diploma in any other language than Ukrainian.
issues raised by the new Ukrainian Education Act and possible ways
forward towards new arrangements concerning education in the languages
It is worth starting our reflection
on how to help reconcile such diverging positions and apparently
quite opposite interests by recalling three principles that, to
me, should guide our consideration of the issues at stake and on
which, I hope, we can all agree:
first one is that knowledge of the official language of a State
is a factor of social cohesion and integration and it is legitimate
for States to promote the learning of the official language and
ask that the State language be a language of education for all.
I see no international standards which prevent Ukraine from asking
that in all Ukrainian schools the education should also take place
in the official Ukrainian language.
- The second one is that: “Language is an essential component
of individual and collective identity. For many persons belonging
to national minorities, language is one of the main factors of their
minority identity and identification.”Note Thus,
where States take measures to promote the official language, these must
go hand in hand with measures to protect and promote the languages
of national minorities. If this is not done, the result will be
assimilation, not integration.Note
- The third one is the principle of non-discrimination.
16. I believe that any attempt to discuss the question of the
language of education – be it in Ukraine or elsewhere – without
keeping in mind these principles cannot be constructive. This means
that our approach should be consistent with these three principles
and the solutions that we are looking for cannot be one-sided.
To stress the first principle in the specific case of Ukraine,
I will refer to Opinion No. 651/2011 of the Venice Commission on
the draft Law on Principles of the State Language Policy of Ukraine:
“The use and the protection of languages has been and remains a
complex and highly sensitive issue in Ukraine, which has repeatedly
become one of the main issues in different election campaigns and
continues to be subject to debate – and sometimes to raise tensions
– within the Ukrainian society.” The Venice Commission further noted
that “[t]he balance between regional and/or minority language protection
and the protection of Ukrainian as the state language, including
the specific situation of the Russian language, continues to be
a serious challenge for the authorities of Ukraine”.Note
The concern featuring the reasoning of the Venice Commission
at that time was the need (already stressed in a previous opinion)
to ensure “the pre-eminence of the Ukrainian language as the only
State language, and to take additional measures to consolidate its
role within Ukrainian society” (paragraph 42). The Venice Commission
expressed reservations on the practical impact of the draft legislation
submitted by the Ukrainian authorities at that time,Note
on the use of Russian (and of other minority languages meeting in
some parts of the territory of Ukraine the 10% threshold set out
in Article 7 of the draft law) “in parallel with the State language
in many spheres of public and social life”.
19. Thus, for the Venice Commission the question (at that time)
remained “whether the role the Ukrainian language has to play in
the Ukrainian multilinguistic society, as the sole State language,
is not endangered and whether its integrative force is not diminished
by the protection, on the same level, of the regional and minority languages,
in the above-mentioned spheres”. The Venice Commission added that
“in the specific context of Ukraine, it is of key importance to
opt for a balanced policy in this field, and considers that such
an approach inter alia requires adequate guarantees for the preservation
of the State language as a tool for integration within society”
20. In this respect, the Ukrainian authorities explained that
secondary school graduates from minority groups experience high
rates of failure when they wish to enter universities in Ukraine
because of their extremely poor level of knowledge of the Ukrainian
language. The new legislation also seeks to correct this. Without
the knowledge of the State language a person is neither able to
access the Ukrainian universities, nor is eligible for employment
in public service and public offices in State or self-government
To stress the second principle I will refer to what the Advisory
Committee on the Framework Convention for the Protection of National
Minorities stated in the Thematic Commentary No. 3 on “The language
rights of persons belonging to national minorities under the Framework
Convention” (adopted on 24 May 2012):Note
“24. The Advisory Committee notes that preventing
assimilation requires … positive action in order to ‘promote the
conditions necessary for persons belonging to national minorities
to maintain and develop their culture, and to preserve the essential
elements of their identity’, including their language. …
25. Integration, as opposed
to assimilation, is considered a legitimate aim to which both the
majority and minority cultures contribute. It is understood, in
this context, as a process of social cohesion that respectfully
accommodates diversity while promoting a positive sense of belonging
for all members of society. The creation of suitable conditions
for persons belonging to minority groups to preserve and develop
their cultures and to assert their respective identities is thus
considered essential for an integrated society. As a two-way process,
integration requires recognition and respect on both sides and may
often lead to changes within both the majority and the minority
22. With regard to the principle of non-discrimination, I wish
to recall that it not only applies to the recognition and effective
protection of the rights of minorities, as enshrined in the Framework
Convention, and of the specific rights enshrined in the European
Charter for Regional or Minority Languages (ETS No. 148), but also to
“the enjoyment of any right set forth by law” according to Article
1 of Protocol No. 12 to the European Convention on Human Rights
(ETS No. 177) (general prohibition of discrimination), to which
Ukraine is a Party. This does not necessarily imply that language
rights recognised by the Ukrainian legislation shall be the same for
all minorities, but does imply that objective and reasonable justification
must be given for any differences in their treatment.
While keeping these three principles in mind, I think we should
also remember that they are essential elements of a wider concept
to which the Assembly gives utmost importance, and which in fact
underpins the entire Framework Convention for the Protection of
: the concept
of “living together”. The knowledge of the State language, the possibility
to maintain and develop one’s own culture, including through one’s
own language, and equal rights within the legal order are pre-conditions
for “living together” and this especially in a multicultural and
multilingual environment like Ukrainian society.
24. This brings me to the concrete approach I would like to suggest
to the Ukrainian authorities, but also to the authorities of all
the other countries which are concerned by the impact of the Ukrainian
Education Act on their national minorities living in Ukraine: that
they should sit together and discuss new arrangements which are
not divisive and are intended to foster “living together”.
25. In seeking to provide guidance to this end, I believe that
the Assembly should refrain, at this stage, from starting to discuss
the possible legal issues, such as whether the new legislation complies
with the Framework Convention or the Language Charter or any other
binding international agreement for Ukraine.
There are two main reasons to avoid such a discussion:
- First, three different relevant
Council of Europe bodies are currently dealing with these legal
issues. The Ukrainian authorities have already asked for an opinion
of the Venice Commission, which announced that it will deliver its
opinion by the end of 2017. The Advisory Committee on the Framework
Convention adopted in March 2017 its opinion on Ukraine (4th cycle)
which was then transmitted to the Ukrainian authorities; this opinion
should become public at the beginning of 2018. A report on Ukraine
submitted by the Committee of Experts of the European Charter for
Regional or Minority Languages is being considered by the Committee
- Second, whatever the outcome of such an analysis, we should
take account of the political impact that the new legislation will
have both on the national minorities, by reducing (somewhat drastically)
the rights previously recognised to them, and on society as a whole,
inasmuch as it may run counter to the spirit of promoting mutual
respect and intercultural dialogue that is central to building cohesive
societies. In short, we have to focus on “living together”.
27. Based on the above-mentioned principles, the new legislation
does indeed appear to be problematic. This is not because it aims
to promote better knowledge of the Ukrainian language among national
minorities – which is a legitimate goal – but because it does not
appear to strike an appropriate balance between the official language
and languages of national minorities.
28. The situation of “indigenous nations of Ukraine” (Crimean
Tatars, Karaites and the Gagauz people) has been somewhat preserved:
they can continue to study in their own languages but together with
Ukrainian for all the school cycle.
However, the new law entails too heavy a reduction in the
rights previously recognised to “national minorities” (other than
the “indigenous nations of Ukraine”) concerning their own language
of education. These national minorities, which were previously entitled
to have monolingual schools and fully fledged curricula in their
own language, now find themselves in a situation where education
in their languages can be provided (along with education in Ukrainian)
only up to the end of primary education. This lack of continuity
in minority language education may moreover discourage parents from
enrolling their children in minority language schooling altogether.Note
believe that in a country like Ukraine this is not conducive to
30. Therefore, I suggest that the Assembly urge the Ukrainian
authorities to reconsider the issue, having as a reference a flexible
model of bilingual education for all persons belonging to “indigenous
nations of Ukraine” and “national minorities”. In concrete terms,
with regard to minority languages, a possible benchmark could be at
least 60% of education curricula in the Ukrainian language and up
to 40% in the language of the minority. This flexible model should
be accessible to all minorities with no discrimination, thus providing
the same entitlement also for Russian-speaking communities and other
communities who do not speak European Union languages. This, not
necessarily and not only to comply with legal commitments under
different conventions, but essentially for Ukraine to remain a role
model country in this respect and aiming at upholding the notion
of “living together”.
31. In reconsidering the issue, the Ukrainian authorities, in
dialogue with the minorities concerned, should aim to keep the previous
minority schools open, while establishing that they must introduce
progressively a parallel education process in the Ukrainian language.
This transformation can be achieved effectively if the system has
the capacity to provide the right teachers. Therefore, while giving
a tentative planning for the transition, flexibility should be ensured
to avoid changes being decided on paper but not implemented, or
even worse, their being badly implemented to the prejudice of the
quality of education provided to pupils and students belonging to
32. In addition, I believe that a three-year transitional period
may prove to be too short to guarantee the quality of education.
Therefore, I would urge the Ukrainian authorities to introduce flexibility
also regarding the length of the process and allow for arrangements
tailored to the concrete circumstances of the communities concerned
and the situation in different areas.
33. Last but not least, it would be fair to recognise that Ukrainian-speaking
minorities in neighbouring countries are not entitled to monolingual
education in their own languages and do not benefit from arrangements
which seek to promote bilingual education. Although “reciprocity”
is not a principle which we want to use when it comes to the protection
of human rights, I think it could be useful if, within the dialogue process,
the authorities of neighbouring countries, which legitimately call
for the protection of their minorities show readiness to offer to
the Ukrainian communities residing in their respective countries
similar arrangements to those that they claim for their own minorities.
I am sure that this collaborative mood will help bring solutions
that are much more constructive and consensual.
34. I have drawn up the draft resolution along these lines and
hope that it will receive wide support. The issue is quite sensitive
and there will be no ideal solutions without true goodwill to reach
a compromise between positions that are today very distant.
35. I will conclude by adding that the Committee on Culture, Science,
Education and Media will complete by the end of the year a report
on “The protection and promotion of regional and minority languages
in Europe” (rapporteur: Ms Rózsa Hoffmann, Hungary, EPP/CD), which
might include the developments in Ukraine.