THE ADJUDICATION OF THE LANGUAGE OF EDUCATION CASE IN THE CONSTITUTIONAL COURT OF UKRAINE – A COMPARATIVE ANALYSIS WITH ECTHR JURISPRUDENCE

Introduction. On 6 October 2017 the Constitutional Court of Ukraine registered the constitutional submission of 48 People’s Deputies of Ukraine on the compliance of the Law of Ukraine ‘On Education’ dated 5 September 2017 with the Constitution of Ukraine (constitutionality) (hereinafter – the petition, alternatively – the constitutional submission)1. In the introductory part of the Petition the subject of the right to a constitutional submission stated that the Law of Ukraine ‘On Education’ of 5 September 2017 (hereinafter – the Law on Education of 2017)2. does not generally correspond to the Constitution of Ukraine and is discriminatory. However, in 3 out of 5 parts of the Petition, the subject of the right to a constitutional submission (hereinafter – the Petitioner) proved the unconstitutionality of Artic le 7 ‘Language of Education’ of the Law on Education 2017, which contains the basic requirements that determine the language of education. That is, the efforts of the Ukrainian state to secure the status of the Ukrainian language as a state language, in particular, in the field of education, caused a negative reaction of part of the Ukrainian poli tical establishment and claims of discrimination against national minorities of Ukraine. The case for this constitutional proceeding lasted from April 2017 to July 2019. On 16 July 2019, the Constitutional Court of Ukraine announced the judgment on the compliance of the Law on Education with the Constitution of Ukraine. However, this does not mean that the Ukrainian citizens will not be able to lodge lawsuits to the ECtHR in violation of (hypothetically) their right to education in their mother tongue. So, our aim is to find out if the Law on Education of 2017 violates Article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter reffered to as ‘the Convention’). We also need to find out whether such actions by citizens of Ukraine to the ECtHR can be maintained, since Ukrainian courts have already faced lawsuits on the right to education on their mother tongue3. When forming legal positions in support of Article 7 of the Law on Education 2017 and represented in the Constitutional Court during the constitutional proceeding we certainly have taken into account the legal positions of the ECtHR in such cases.4 This is, in particular, the Belgian linguistic case (1966),5 Juta Mentzen, also known as Mencena v. Latvia (2004)6, Case of Catan and others v. Moldova and Russia (2012)7. Literature review. The coherence of national constitutional courts’ case law and the jurisprudence of the European Court of Human Rights has been the subject of review of several legal academics, such as S. Shevchuk (2011)8, E. Marzano (2017)9,

I. Toronchuk and V. Markovskiy (2018) 10 and R. Malko (2020 11 ). Some of the abovementioned academics commented upon the criticism of the Venice Commission concerning the Ukraine's law on Education. Stanislav Shevchuk, the ex-ad hoc judge of the European Court of Human Rights (from Ukraine) claimed that the jurisprudence of constitutional courts has to be coheren with the case law of the European Court of Human Rights. Upon this issue, he said, that "Albeit the courts of general jurisdiction, headed by the Supreme Court of Ukraine are more accustomed to apply the case law of the European Court of Human Rights (as there is a link to the trial facts of the European Court's judgments, which bear a direct impact on the validity and obligatoriness of its jurisprudence), the Constitutional Court has to possess a paramount role in the adjustment of the European Court's case law and its implementation into the legal system of Ukraine being guided by the principles of subsidiarity and supremacy of Ukraine's Constitution 12 . E. Marzano (2016) hallmarked the inconsistence of the Venice Commission, which seems to be repetitive, coming to a conclusion that there is very little consecution in the EU language policy. Such an infe rence was made, inter alia, owing to the fact that the language equality status and a multi-lingual regime in the European Union were settled as a recognition of the cultural standalone of the member-states. At the same time, the internal agreements practically presuppose a limited set of "working" languages, that is, far not all EU languages are the "working" languages of its official bodies. Hence, only such languages, as French, English and German are used. This author has also analyzed the most outstanding court judgments concerning the language-related relationships in the EU states. 13 The paper of I. Toronchuk and V. Markovsky (2018) analyzed the recommendations of Venice Commission concerning the application of language rights of minorities in the sphere of education 14 . Another publication by R. Malko criticizes the conclusion of the Venice Commission concerning the Ukraine's "Law on the fulfillment of Ukrainian language operation as the state language" of 25.04.2019. This author claims they lack conseqution and have not considered the Ukrainian context, literally: "… in the style of mordid European discomposure and tolerance" 15 .
Aim of the scientific paper.
The purpose of the article is the analysis of the participants' arguments of the Petition relating to the compliance of the Constitution of Ukraine (constitutionality) with the Law on Education; the analysis of the legal positions of the Constitutional Court of Ukraine in this trial and their conjunction with the relevant ECtHR case law.
Main body.

Historical Background.
The language policy of the Ukrainian authorities, which has been conducted from 1991 to 2014 on securing the rights of national minorities to receive education in their mother tongue, has hardly drawn criticism from the EU institutions. The same issue concerns the neighboring countries whose national minorities reside in Ukraine and have the opportunity to receive education in their mother tongue, such as Hungary or Russia.
However, the Russian aggression, which began in February 2014 clearly testified that Ukraine was deprived of its jurisdiction over precisely those territories where the schools with the state (Ukrainian) language of instruction were the least. This also applies to the Crimea and the individual eastern regions of the Luhansk and Donetsk regions. Thus, the Ukrainian authorities received a very negative experience of language policy, the basic principle of which was the possibility of using minority languages in different spheres of public relations instead of the state language. These include areas of social relations, such as education, the activities of local governments, television, radio and information space.
The reservations made by the Constitutional Council of France, in the case of ratification of the European Charter for Regional or Minority Languages on the threat to the principle of the integrity of the republic by extending the use of minority languages in the public sphere no longer seem groundless 16 . Similar reservations on the integrity of the state occurred to the Belgian Government in relation to the treatment of the complaints by the French-speaking Belgians in the ECtHR concerning the 'discriminatory' provisions of the Act, 1963. 17 We hope these facts will encourage the stateholders and the judges of the ECtHR to take into account these circumstances when adjudicating trials involving the use of national minority languages in public relations.
The Russian aggression which outbroke in 2014 and natural attention in such circumstances to Europian practice prompted the Ukrainian authorities to change their approaches to the formation of language policy in the field of education, compared to the one conducted by the pro-government Party of Regions led by its leader and former President V. Yanukovych (currently accused in high treason) from 2010 to 2014. An instrument of such policy was the Law of Ukraine 'The grounds of State language Policy' of 3 June 2012 18  The Parliament of Ukraine has passed a number of legislative acts that would reduce the scope of the use of Russian language (which is under the Constitution of Ukraine the language of the national minority) in the information space, as well as increase the sphere of the use of the Ukrainian language as a state language on radio and television 20 . Although the state's reaction to Russia's military and information aggression was delayed, the realization of the need for a change in language policy resulted in the introduction of laws that would diminish the possibility of informational influence of any propaganda that threatens Ukraine's sovereignty during the war. The next step was the adoption by the Parliament of the Law on Education in 2017 containing Article 7 'Language of Education' that caused such significant public resonance. Subsequently, on 25 April 2019 the Parliament adopted the Law 'On Ensuring the Functioning of the Ukrainian Language as the state language' 21 which enshrines the provisions of Article 7 of the Law on Education 2017.
For the national minorities of Ukraine, the Russian, and partly the Hungarian propaganda compaigns had a considerably negative effect. We assume that the Constitutional Court of Ukraine judges were also forced to take into account public opinion in Ukraine in this particular case, since the possibility of being subjected to such external pressure could have extremely negative consequences for this institution, in particular, causing mass protests by Ukrainian citizens that was not for the first time. In particular, one can mention the protests against the pro-Russian President Yanukovych (accused of treason) who through the ruling Party of the Regions promoted the Language Policy Act of 2012 with gross violations of the procedure for adopting the laws defined by the Constitution 30 .
Positions of the participants in the constitutional proceeding. This part deals with the positions of the Petitioner expressed in the constitutional submission on the unconstitutionality of the Law on Education and the positions of the participants of the constitutional proceeding, in particular, the Government. We will not analyze absolutely all the parts of the petition, as some of them touch upon the issues of terminology of the law and legislative procedure.
Concerning the first part of the petition which refers to the inconsistency of the Law of Ukraine "On Education" of 5 September 2017 of Articles 8,10,11,24 and 53 of the Constitution of Ukraine.
The first part of the petition substantiates the positions of the Petitioner and asserts that Article 7 of the Law on Education does not comply with Article 53 of the Constitution of Ukraine since it violates the language rights of national minorities of Ukraine to education in their mother tongue. In the petition they complain that the legislator 'permitted the abolition of the guaranteed natural right of persons belonging to national minorities of Ukraine to study in their native tongue at communal establishments of general secondary education' 31 . The previous page of the petition used the term 'tapering of the right' 32 .
Firstly, it should be emphasized that the Petitioner has testified to his own misunderstanding of the essence of natural human inalienable rights according to the preamble to the International Pact on Civil and Political Rights of 16 December 1966. The Petitioner unjustifiably identifies the inalienable right of a person to use mother tongue in accordance with Article 27 of the International Pact on Civil and Political Rights 33 , and the positive obligation of the State under Article 2 of Protocol No. 1 of the Convention. The ECtHR's legal positions contained in Belgian language cases state: 'The right to education guaranteed by the first sentence of Article 2 of the Protocol (P1-2) by its very nature calls for regulation by the State which may vary in time and place according to the needs and resources of the community and of individuals' 34 .
In addition, in the case of Catan and Others v. Moldova and Russia (2012) the ECtHR acknowledges the right to education is not absolute despite its concordance and could be subjected to restrictions. Provided the very substance of this right is not prejudiced, these restrictions are indirectly permitted, since the right to access 'by its very nature requires regulation by the state' 35 .
Therefore, the position of the Constitutional Court of Ukraine was also quite concise and clear, indicating to the discretion of the state regarding the legal regulation of the language of the educational process: 'The problem of educational levels for the instruction of national minorities in their native tounge, the number of teaching hours or the period for mastering a certain language is a prerogative of the legislator since under the Basic Law of Ukraine he is endowed with the relevant powers in this field (Part 5 of Article 53, items 4,5 of Part 1 of Article 92) 36 .
During the oral hearing one of the co-authors of the article (V. Markovsky) draw the Court's attention to the inconsistency of the argument raised by the Petitioner in an attempt to justify the incompatibility of Article 7 to the Law on Education of the Constitution. 37 In arguing its position, the Petitioner on p. 5 asserts that the provisions of Article 7(1) 'Language of Education' of the Law on Education 2017 'restricts the constitutional right to study in the language of national minorities in communal educational establishments for general secondary education guaranteed by Part 5 of Article 53 of the Constitution of Ukraine' 38 .
Further, in the last paragragh of the first part of the constitutional submission the Petitioner insists on the 'abolition of the guaranteed natural right' to study in mother tongue, namely: 'the legislator violated the provisions of Articles 8, 10, 11, 24, 53 of the Constitution of Ukraine and allowed revocation of the guaranteed natural right to study in communal educational establishments of general secondary education in the language of the respective national minority along with the state language' 39 .
However, the Petitioner's allegation that the legislator in Article 7 of the Law on Education 2017 allowed the revocation of the right guaranteed by Part 5 of Article 53 of the Constitution of Ukraine (the right to education in mother tongue) is contrary to the truth. Paragragh 3 of Part 1 of Article 7 of the Law on Education 2017 states: 'Persons belonging to national minorities of Ukraine are guaranteed the right to study in educational establishments for pre-school and primary education in the language of the respective national minority along with the state language' 40 .
In view of the above-stated, we consider the claim of the Petitioner on the abolition in Article 7 of the Law on Education of the right of national minority to study in mother tongue guaranteed by Part 5 of Article 53 of the Constitution of Ukraine to be unfounded.
In addition, paragragh 5 of Part 1 of Article 7 of the Law on Education 2017 contains a legal provision according to which all national minorities are guaranteed the right to study in mother tongue at all levels of education 41 , which corresponds to Part 5 of Article 53 of the Constitution of Ukraine.
Furthermore, the provisions of Part 4 of Article 7 of the Law on Education 2017 state that educational establishments may, in accordance with the educational program, to teach one or more disciplines in two or more languages -the official language, English and other official languages of the European Union 42 . According to this provision of the Law, educational establishments of Ukraine at all levels provide for the possibility of teaching several official disciplines in the official languages of the European Union countries, whose national minorities reside in Ukraine. For example, chemistry and biology can be taught at Ukrainian educational institutions simultaneously in Polish and Ukrainian, or in Hungarian and Ukrainian. We will not dispute the appropriateness of such a new Law, but it significantly extends the rights of minorities in the field of education compared to Part 1 of Article 7 of the Law. That is, the legal norm of Part 1 of Article 7 The Law on Education 2017 that the persons belonging to national minorities are guaranteed the right to study in their mother tongue along with the state language for pre-school and primary education, is not a dogma and does not provide for the exclusion of minority languages from the educational process on the second and the third level of secondary education. Therefore, this provision (Part 4 of Article 7) of the Law on Education 2017 is fully capable of eliminating any criticism in Ukraine's attempt to narrow the scope of linguistic rights of national minorities in the field of education.
The Position relating to discriminality. The first part of the constitutional submission also substantiates the position of the Petitioner indicating that the Law on Education concerning national minorities of Ukraine does not observe the principle of non-discrimination. In particular, it is noted that the legislator allowed 'discriminatory advantages (privileges) on the grounds of language and ethnic origin in relation to the right to study at communal educational establishments for general secondary education in the language of the indigenous people of Ukraine along with the state language, in comparison with persons belonging to national minorities of Ukraine' 43 .
In other words, the introduction of diversified approaches to legislative regulation of language rights of national minorities and indigenous peoples in the field of education is interpreted by the Petitioner as 'discriminatory advantages on the basis of linguistic and ethnic origin' 44 . The question is about a possibility of the Crimean Tatars 45 under Article 7 of the Law on Education 2017 to study in their mother tongue at all three levels of school education: elementary (1-4 grades), basic secondary education (5-9 grades) and at the level of profile secondary education (10-12 grades). The model of education for indigenous people envisaged by paragragh 4 of Part 1 of Article 7 of the Law on Education 2017 is also bilingual, since teaching at school should be conducted upon the native language for the Crimean Tatars alongside with the state language.
It follows from the ECtHR's legal position that jurisprudence under the Convention does not prohibit the establishment of a legitimate 'differentiation' in the enjoyment of guaranteed rights and freedoms: 'Article 14 does not prohibit distinctions in treatment which are founded on an objective assessment of essentially different factual circumstances and which, being based on the public interest strike a fair balance between the protection of the interests of the community and respect for the rights and freedoms safeguarded by the Convention' 46 .
In such cases the Ukrainian legislator used the term 'Positive action'. According to paragraph 5 of Part 1 of Article 1 of the Law of Ukraine 'On the Principles of Prevention and Combating Discrimination in Ukraine' of 6 September 2012, there is a possibility of applying the so-called affirmative actions by the state against certain groups of persons in proper cases 47 . The above-stated provision of the Law, in our view, reiterates the ECtHR's legal position in the Belgian linguistic case, in which the Court does not consider the decisions of the state to apply different legal solutions as law violation. The principle of equality is violated in cases when the difference does not have an objective and reasonable justification 48 .
We shoud mention that in connection with Russia's occupation of certain territories of the Donetsk and Luhansk regions, as well as of the Crimean peninsula, Ukraine has to take such positive actions against certain groups of persons, in particular, the school-leavers from the Crimea and the occupied territories of Donbass who can enter Ukrainian higher educational institutions without compulsory Independent External Evaluation 49 .
Due to the fact that the Russian occupiers closed part of the schools with the Crimean Tatar language of education 50 , the Ministry of Education and Science of Ukraine, formulating the legal requirements of Article 7 of the Law on Education 2017, proceeded from the fact that they did not have their own country to support their culture and traditions. Thus, Tatars as indigenous peoples should be given the opportunity to study in their mother tongue alongside with the state language at all levels of secondary education.
It is doubtless that the conditions for the national and cultural development of the Crimean Tatars since 2014 have significantly deteriorated, first of all, due to the numerous violations of the rights of the Crimean Tatar people taking place in the Autonomous Republic of Crimea occupied by Russia 51 . This is also indicated in paragraph 110 of the Venice Commission's opinion on the provisions of the Law on Education 52 . Therefore, we assume the possibility and expediency of positive actions with regard to the Crimean Tatars as the indigenous people of Ukraine on the issue of securing their linguistic rights in the field of education.
Certain positive actions towards indigenous peoples that create a special position for them are also specified by international acts. Articles 13 and 14 of the UN Declaration on the Rights of Indigenous Peoples also require a special approach to indigenous peoples' rights to education in their own language 53 . Considering the fact that the international law makes distinctions between indigenous peoples and national minorities, it is appropriate to assume the difference in the regulation of their legal status.
It is stated in the motivational part of the judgment the Constitutional Court of Ukraine that due to the lack of a proper protection of their ethno-cultural identity, the indigenous peoples of Ukraine are usually in a less favorable and more vulnerable position and, therefore, need protection from the state in which they reside 54 .

Concerning the second part of the petition on the inconsistency of the Law on Education 2017 of Article 22 with the Constitution of Ukraine.
The second part of the petition asserts that the legislator in Article 7 of the Law on Education 2017 'allowed the narrowing of the content and scope of existing natural rights and freedoms consisting in abolishing existing rights' to study in native language of indigenous peoples and national minorities of Ukraine, which allegedly violated the provisions of Article 22 of the Constitution of Ukraine 55 .
That is, according to the Petitioner, the provisions of Article 7 'Language of Education' of the Law on Education 2017 narrows the scope of minority rights to education in their native language compared to the provisions of Article 20 'Language of Education' of the Law on Language Policy 2012 56 .
The above-stated argument is used by anyone who has criticized and proceeds with criticizing the language article of the Education Act, both on the part of the EU and by internal opponents of this version of Article 7 of the Law on Education 2017. The Petitioner believes that an increase in the educational process in the state language will lead to the 'narrowing of the existing right' of minorities. But then the question arises: 'What level of protection will the state language have if at present the educational process is 90 % in the minority language?'. Similar arguments were used by Russia against the Republic of Lithuania in 2011 57 .
It was important for the supporters of the constitutionality of the law of Ukrane to prove that the increase in the use of the Ukrainian state language is neither discrimination nor the narrowing of minority rights in the Ukrainian situation and has a legitimate, well-founded objective in public interests. In our opinion, they succeeded in proving this.
Consequently, the question aroused before the Constitutional Court of Ukraine if the increase in the volume of the educational process in the state language really meant the narrowing of the rights of national minorities to education in their mother tongue, in particular, considering the fact that until then, the educational process in minority schools was in their own language.
The decrease in the scope of the educational process in the languages of national minorities is regarded by the Petitioner as a violation of the right to education. In fact, the Petitioner aimed to prevent the increase of the use of the state language in the educational process of the schools with children of minority representatives, and the educational process was conducted in the languages of these minorities 58 . That is, in such schools the state language (national language) is studied only as a discipline, and the educational process occurs in minority languages by about 90 %. Such wish of the minorities status-quo has its historical grounds and is connected with russification hold by the Soviet power of Ukraine 59 . It was on the basis of the legal rules of the Law on Language Policy 2012 that the legal regime of languages was created, which was finally declared unconstitutional on 28 February 2018.
The above-stated resulted in some negative consequences for the national minorities since this led to a certain segregation of the young generation of Hungarians and Romanians of Ukraine, who are not able to fully integrate into Ukrainian society due to insufficient knowledge of the state language 60 .
The participant of the constitutional submission Ex-Minister of Education and Science of Ukraine, Liliya Hrynevych also emphasized on this fact (2016-2019). In her opinion, this is just a violation of the rights of national minorities to education and contradicts the main provisions of the Hague Recommendations on the Rights of National Minorities for Education. She denoted that 'The situation we have today at schools where education is taught only in minority languages and the state is studied as a subject does not meet the interests of the society or the interests of children who are citizens of Ukraine. This is clearly evidenced by the results of the Independent External evaluation in the Ukrainian language and literature. In places of compact residence of the Romanian community this year 63 % of school graduates did not overcome the threshold 'passed' -'failed to pass', 67.5 % -for the Hungarian community and 57 % -in the Berehovo region' 61 . So, the opportunities to receive higher education for schoolleavers of Ukraine are essentually de-facto restricted. They are forced either to continue education in neighbour countries or to deny the very idea of such practice. All experts involved in the Constitutional Court of Ukraine in this proceeding in one way or another supported this position of the Ministry of Education and Science of Ukraine.
This was an argument which all the participants in the constitutional proceedings referred to (excepting the Petitioner) when they argued for the need to introduce the state language in the educational process (bilingual model of education). Therefore, strengthening of the measures aimed at increasing the level of proficiency of children of national minorities in the national language not only raise their opportunities for integration into Ukrainian society, but also inreach the amount of constitutional rights that they can realistically and fully enjoy in public life, in particular, the right to 'free choice of place of residence' (Article 33 of the Constitution of Ukraine), 'to participate in the management of state affairs, to freely choose and be elected to state authorities and local self-government bodies, to work as officials of these bodies' (Article 40 of the Constitution of Ukraine), 'the right to work' (Article 43 of the Constitution of Ukraine) 62 . The stated legal position of the Minister of Education and Science Liliya Hrynevych was supported and reproduced in the motivational part of the judgment of the Constitutional Court of Ukraine 63 .
The document prepared by the President of Ukraine for the Constitutional Court of Ukraine states that its norms are not designed to impede the study of languages of national minorities or indigenous peoples, since its provisions are aimed at creating conditions for mastering the Ukrainian language in order to provide further opportunities for professional activity in the chosen field with the use of the state language 64 .
The Constitutional Court of Ukraine took into account the abovegiven arguments and stated as underwritten: 'With the adoption of the Law on Education the state created conditions for full realization of the relevant rights of national minorities, including indigenous peoples of Ukraine, to study their native language, as well as to receive education in the state language regardless of their origin, to fully implement the rights defined by the Constitution of Ukraine' 65 .
In our opinion the Constitutional Court of Ukraine took into account the ECtHR's positions formulated in Belgian Language case asserting that the right to education would be meaningless if a person does not fully benefit from this education. Lack of knowledge of the state language will constrain its ability to exercise the scope of constitutional rights 66 .
Another conceptual disadvantage of the constitutional submission is that the Petitioner did not take into account the official interpretation of Article 10 of the Constitution of Ukraine in the judgment of the Constitutional Court of Ukraine of 14 December 1999 No. 10-rp / 99 in the case of the use of the Ukrainian language.
The second item of the resolutive part of the above judgment clearly reads: 'Based on the provisions of Article 10 of the Constitution of Ukraine and the laws of Ukraine on guaranteeing the use of languages in Ukraine, including the educational process, the language of education in pre-school, general secondary, vocational and higher state and communal educational institutions of Ukraine is Ukrainian. National and communal educational establishments, alongside with the state language, may, in accordance with the provisions of the Constitution of Ukraine, in parti cular Article 53 (5), and the laws of Ukraine, use and study the languages of national minorities in the educational process' 67 .
It is clear that Article 53(5) of the Constitution of Ukraine legally establishes bilingualism in minority schools. In our opinion it means that the educational process at school must be carried out in the state language, and that the languages of national minorities and indigenous peoples may be used in the educational process only alongside with the state language and not instead. Therefore, it is a real bilingual model of education for national minorities and indigenous peoples of Ukraine.
In our view, there is a fairly clear position of the ECtHR on the issue raised in the second part of the constitutional submission -the meaning of the state language cannot be offset or in any way limited to the benefit of a minority. In the case of MENCEN Aagainst Latvia, the ECtHR stated the following: 'The Court recognizes that the State language for these states is one of the fundamental constitutional values similar to territory, state system and national flag. Language is in no way an abstract concept. It is idissolubly connected to how it is actually used by native speakers. Thus, by making the language official, the state is in principle obliged to guarantee its citizens the right to use this language both for transmission and for receiving information without interference not only in their personal lives but also in communication with the authorities. From this point of view, the Court suggests it is necessary to take into account measures aimed at protecting a particular language' 68 .
The Constitutional Court of Ukraine was more concise here: 'The state must ensure the full development and functioning of the Ukrainian language in all spheres of public life throughout Ukraine. Thus, Ukrainian as a state language is obligatory throughout the territory of Ukraine in the public sphere, as well as in social life, including the sphere of education' 69 .
The second and the third parts of the petition also refer to the collision of legal provisions that arose in connection with the adoption of the Law on Education, which, in turn, will result in narrowing the scope of the rights of national minorities.
The  16 July 2018 the Mykolayiv district administrative court made its own judgment to declare the resolution on the introduction of Russian language as a regional language of the Mykolayiv regional Council of 7 September 2012 No. 4 'On the implementation of the requirements of the law of Ukraine Law on Language Policy 2012 in the Mykolayiv region' unlawful and invalid 72 .
Therefore, the legal basis for a large part of the constitutional submission has disappeared, in particular, the statement where the Petitioner refers to the Law on the Principles of State Linguistic Policy (the third part of the petition on the collision of legal provisions) 73 .
It should be noted that the Constitutional Court of Ukraine did not in any way mention this aspect in its judgment, although we paid attention to it during the constitutional proceeding. This approach seemed to be strange to us in view of the obviousness of such legal facts.
Conclusions. So, the application of the right to education in the person's mother tongue is impossible without certain special actions of the state implemented on the basis of the law. Accordingly, the scope of the educational process carried out in the minority's native language is set by a national legislator (non-international-legal acts or under the pressure of a neighbour country or groups of states). In our view, this position does not contradict the jurisprudence of the ECtHR formulated in Belgian Languistic case or case Mencena v. Latvia (Mentzen v. Latvia) (2004).
This position is supported by all participants of the constitutional proceeding (except the Petitioner) and the Constitutional Court of Ukraine, since Article 92 of the Constitution states that the order of the use of languages in Ukraine is determined solely by laws. The Constitution of Ukraine does not contain any reservations on the legislator's powers to detail the constitutional right of citizens belonging to minorities to study in mother tongue or to learn it.
At the same time the discretion of the legislator is limited by the constitutional guarantee of the 'right to study in mother tongue'. The amendments to Article 7 of the Law on Education enshrine the principle of bilingualism in the education of national minorities (official language and the language of a relative minority or the indigenous peop les) and do not deny the right of minorities to education in their native language.
According to the Constitutional Court's position the question is about the attempts to achieve a certain equitable balance between a compulsory learning and knowledge of the state language and preserving the peculiar national identity of the minorities.
The provisions of this law only increase the use of the state language in the educational process, which aims to improve the legal capacity of minorities and the indigenous people in Ukraine. In other words, the legislative changes are aimed specifically at eliminating discrimination against representatives of national minorities by enhancing their ability to participate in the political life of Ukraine. This legal position became fundamental in proving the constitutionality of the legal norms of the Law on Education 2017 by all participants of the constitutional proceedings (except the Petitioner).
The above-stated position was taken by the Constitutional Court of Ukraine as a basis while hearing the case. The legal positions of the Latvia's Constitutional Court in the trial on the education reform constitutionality are analogous, which is aimed at enlarging the volume of the state language and slightly decrease the specific weight of the use of the minorities' languages in the school educational process.
An absurd situation when national minorities can not speak the state language properly should be changed and balanced on the basis of Article 7 'The language of education' of the Law on Education 2017. The specified Article 7 of the Law on Education 2017 introduces bilingualism in the system of public education for national minorities and indigenous peoples in Ukraine, where part of the educational process for minorities in the state language cannot be less than 50 %. It should be noted here that there is only one state language in Ukraine according to Article 10 of the Constitution. Other languages are the languages of national minorities.
As for the indigenous people, for example, the Crimean Tatars, the possibility of introducing different approaches (different legal solutions) to the education of national minorities of Ukraine and the Crimean Tatars as indigenous people is aimed at eliminating the actual inequality associated with the discrimination of the Crimean Tatars and the Russian occupation of the Crimea. In this case, the Ukrainian state has not only the right to fully support its citizens, who are oppressed because of their ethnicity, but also have to do so because the language of the Crimean Tatars has been threatened by the closure of schools with this language. Therefore, the state's additional obligations in the field of indigenous education cannot be regarded as discrimination against national minorities.
In our view, this does not contradict the legal positions of the ECtHR in such trials in view of the legality of the goal set by the Ukrainian legislator, which was literally to enable the Crimean Tatars to study in their respective mother tongue alongside with the state language at all levels of school education.