The use of regional and minority languages in the public administraron and the undertakings of article 10 of the european charter for regional or minority languages

The use of a regional or minority¹ language in dealings with the administra-tive authorities is perhaps the most concrete sign of its legal status. While teaching and learning a language guarantee its survival (or help in this re-spect, as oral transmission within families is the main requirement), its use in dealings with the administrative authorities refiects a higher status for the language than its teaching in school. We can also learn dead languages at school that we do not know how to speak (how many people can speak fluent Latin after having studied it for years?), but it would be very difficult to use a dead language with the public servant in front of us.

The use of a regional or minority language by, and in dealings with, the administrative authorities, is a key factor in a democratic society because it in-volves the sphere of fundamental rights. Obtaining birth or marriage certifi-cates and applying for permission to set up a business are activities related to the exercise of freedoms (and the fulfilment of duties) and are a requirement for their full enjoyment. The European Convention on Human Rights estab-lishes the right to impartial and effective public administration (although it does not include any reference to languages), and all the Constitutions of democratic countries have similar provisions.

Article 10 basically has two purposes: «solving problems of communication where the official and dominant language has not been mastered — bringing out the importance of the regional or minority language by giving it a role in dealings between citizens and the public authorities».² The two dimensions referred to by Jean-Marie Woehrling are essentially the ones which I describe respectively as «language rights of the first kind» and «language rights of the second kind».³

The basic language right consists in the fundamental right to understand the documents of the public authorities and to be able to communicate in the language which they use. This language right of the first kind is instrumental to the exercise of the fundamental right, which, for Article 9, consists in the right to defence in the judicial sphere and in Article 10 in the rights to be fairly

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treated by the administrative authorities.⁴ A fundamental right per se can also be respected if a language is used which is not the mother tongue of the person concerned, provided he/she understands (at least) or speaks the language. If the person concerned does not understand or speak the language used by the administrative authorities (the language of the majority), then his/her fundamental right will not be respected: he/she is unable in this case to particípate in a very basic aspect of life. It may be that the language of the majority is not known by many people, even though the evaluation reports often stress the fact that most of the people belonging to a certain minority language group do not have this problem regarding the fundamental right per se, or the language right of the first kind (Czech Republic 2008, par. 188. « ... Polish-speakers tend to speak Czech in dealings with the administration»). But it is clear that the ful-filment of the undertakings under the Charter is a key factor in the case of citizens who do not understand or speak the language of the majority.⁵

The second dimensión, whereby a role is given to the language by recognising the importance and the legal relevance of the language and of its speakers, is related to language rights (and duties) of the second kind. These are minority rights, which are not necessarily linked to the exercise of fundamental rights (if, as has been stated, the person concerned speaks the majority language). Language rights of the second kind mean that a group of people who want to use their language in dealings with the administrative authorities (and pos-sibly want civil servants to use it in their internal activities) express a strong collective identity: we may cali these groups nationalities, as Article 2 of the Spanish Constitution does (without indicating who those nationalities are, in contrast to the regions), national minorities or linguistic minorities, but the key concept is that the persons concerned consider that it is their fundamental right to «live» in their languages in all spheres of life, including dealings with the administrative authorities. Again for this purpose, which is far more ambitious than language rights of the first kind, the Charter has an important role —indeed, perhaps more so than in the first case, given the core provisions

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of the Charter. According to the explanatory report, «allowing the use of regional or minority languages in relations with those authorities is fundamental to the status of these languages and their development and also from a subjective standpoint».

The second category involves regional or minority languages whose speakers sometimes wish them to become in the future the state language of independ-ent states or, at least, official languages of regions which have some strong national features and which claim a high degree of autonomy. Catalonia and Scotland are typical examples of such aspiring «nations without a state», to use the vocabulary of nationalistic claims. But the language issue is not the same even among such nations (or regions): for instance, it is much more rel-evant in Catalonia than in Scotland. However, the language question does exist in every territory of this kind and we can also see that, in places where there is a regional or minority language, the issue of protecting and promot-ing it becomes part of more general calis for autonomy (if not independence): «the struggle for the language does not go on its own».⁶ The Charter covers a very wide variety of different situations, from the protection of a language like Catalán to the protection of Manx and Cornish, which are spoken by only a few language activists. Still, in signing and ratifying the Charter, the state parties assume the duty to protect them —of course, with different motiva-tions and goals «according to the situation of each language», as Article 10 reminds us.

Anyway, even though the case of «aspiring linguistic nations»⁷ is somewhat extreme, the Charter introduces an innovative approach by going beyond merely prohibiting adverse conduct by states. In fact, «mere prohibition is no longer enough to safeguard such languages in their weakened state».⁸

This dimensión of the use of regional or minority languages in dealings with the administrative authorities, which implies a higher status and more ambi-tious goals than mere teaching of the languages, explains the fact that some states have not entered into the obligations under Article 10. Of course, this choice depends on the different historical and sociological situations of the

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regional or minority languages in the various contracting parties. For in-stance, Cyprus has not entered into the obligations under Article 10 and has only non-territorial languages covered by the Charter (Armenian and Maronite Arabic: the third protected group, the Latin minority, does not have its own language, and the question of Turkish is, of course, much more complicated and is related to the división of the island into two parts, only one of which, the «Greek» part, is internationally recognised and has consequently sub-scribed to the Charter).

It is possible to use the expression «language rights», which covers both minority and regional languages; that is to say, it falls within the scope of the Charter.

The Charter also covers language rights of groups which express more diffuse and less «restless» demands and identities, which focus only on the cultural dimensión. Two points have to be made here, however: firstly, it is not always easy to make a clear distinction between language demands which only express cultural concerns and language demands which hide, or go hand in hand with, more ambitious demands. Secondly, while the purpose of the Charter is to protect languages rather than groups, in protecting languages it indirectly also affects the rights of linguistic minorities. It may be a fiction to claim that only languages rather than their speakers are affected by the provisions of the Charter, but it is entirely consistent with its aim.

Protecting regional and minority languages is normally a feature of a mature democratic country, which has taken diversity on board as a valué to be pre-served and promoted. In other words, protecting minorities means respecting the principie of equality in its broader sense. The explanatory report also un-derlines this valué of diversity as one of the principies which inspire the Charter. Diversity, as a refiection of pluralism, is more suited to a democratic than an authoritarian system.

Of course, this is not the only aspect of a democratic country, and it is also true that some states which are considered democratic are not the most enthu-siastic supporters of regional or minority languages. The case of France, the land of universal human rights, is clear. And it is also true that some states which could not be considered democratic, for instance, the USSR and Yugoslavia, were not the worst in terms of protecting language diversity. But the recent developments in France show that even this very centralised country, inspired by a certain idea of equality, is taking the language issue very seri-ously: France has not ratified the Charter, but it has amended its Constitu-

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tion, adding in Article 75 that «Regional languages are part of France's herit-age».

What I have just said only serves to remind us that a very decisive factor in the protection of linguistic diversity lies in the traditions of the country concerned. In some places such as the USSR and Yugoslavia, it was impossible not to take account of the minorities issue. But I would emphasise that not protecting linguistic diversity is a failing of a country's democratic system.⁹ Indeed, Turkey, which is formally a democratic country, shows some of the shortcomings of its democratic structure precisely in the área of minority protection, as the reports by the European Commission on the monitoring of compliance with the Copenhagen criteria underline.

I have already emphasised that the obligations arising from Article 10 are quite demanding: the use of a regional or minority language in dealings with the administrative authorities involves a number of issues which are complex and interrelated: a regional or minority language can be taught even if its use is not widespread, which is not possible in the case of the administrative authorities. The question of the standardisation of a language is also relevant, but in the case of a language which does not have a standard form, the undertak-ings in Article 10 are, on the contrary, not so hard to meet: in fact, limited fulfilment is possible, which means oral use of the regional or minority language rather than written use, which implies a higher status for the language. This leads me to a point which may seem trivial, but is nevertheless fundamental: the Charter is a much more demanding instrument than it would appear to be at first glance. The mechanism of soft law, which is refiected in the lack of sanctions, is strengthened by the detailed measures which the con-tracting states are called on to take. There are different possibilities and gradu-ations in the fulfilment of the undertakings, but the requirement to sign a minimum number of paragraphs and sub-paragraphs implies a quite complex organisational set-up: this is particularly evident with regard to Article 10. Reading it and analysing the evaluation reports by the Committee of Experts

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makes us understand why some states have, unfortunately, not ratified or even signed the Charter. As far as Article 10 is concerned, I believe that, given the objective situation of the languages, ensuring the use of Albanian and Grico in Italy or the use of Occitan in France would be a much harder task than is the case for teaching them (in fact, provisión is made for the teaching of those languages, but not for their use by, or in dealings with, the administrative authorities).

The first two (long) sections of Article 10 refer to central state authorities and local and regional authorities. The meaning and the main consequences of this differentiation will be analysed in section 4, which concerns the under-takings. But it is important to remind readers now that the Charter is an in-strument which is mainly based on the territoriality of the languages; this principie is the basis for all the provisions of the Charter and the resulting policies, laws and regulations which states adopt and implement.

The reports by the Committee of Experts usually make reference to domestic laws to judge compliance with the undertakings by the various states. It is clever to use those parameters which emanate directly from the individual states rather than insisting on the Charter as something imposed from above. This technique is also used to judge compliance with Article 10: this applies to the Norwegian Sami Act, the Hungarian Law on Minorities and the Mi-norities Act of Montenegro, etc. Sometimes certain domestic laws may, in contrast, hinder compliance with the undertakings: this is true of many laws regarding the use of state languages, such as the Slovak law.¹⁰

Article 10 also makes reference to the number of speakers of a given lan-guage, which could justify measures for its protection, in this case, its use by and with the administrative authorities. While the concepts of central state authorities and local and regional authorities will be explained in section 4, it is useful for our purposes to clarify the principie of a «reasonable number» now.

The terminology («the number of residents who are users of regional or minority languages (which) justifies the measures specified below») leaves great scope for

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discretion in national norms, which can be more or less demanding in deter-mining the threshold for the number of speakers. For instance, the threshold of 20% required by the Slovak law on «National Minority Language Use» is quite high¹¹ (in practice, only the Hungarian minority can reach it in many regional and local entities), as was also underlined by the Committee of Ex-perts in the 2009 report on Slovakia, which noted «that the 20%-threshold appeared in any case too high, as the number of people justifying protection measures under the Charter would commonly be well below this percentage».¹²

The 2009 report on Slovakia therefore urges the country's authorities to en-sure the use of the Romani language, Ruthenian and the other languages which would be excluded if the principie of the threshold was applied.

The state reports seem more frequently to indicate lower thresholds than the one laid down by restrictive legislation like the above Slovakian law. The Charter leaves much room for the language policies of each state, but they must not contradict the spirit of the Charter, which is a legal instrument also intended to protect regional or minority languages which are spoken by few people. An excessively high threshold runs counter to the purpose of the Charter, and it would also be contrary to the principie of equality for the speakers of a particular regional or minority language to be treated differ-ently in different áreas just because they are less numerous in one district. Of course, the policies and the measures to protect a language are influenced by practical factors such as the number of speakers, but this must not be an excuse for avoiding all the possible efforts which institutions must make to comply with the undertakings.

In January 2010, the OSCE High Commissioner on National Minorities also said: «I expect the Slovak authorities to closely monitor and evalúate the im-plementation of the State Language Law, particularly with regard to the im-position of fines in order to avoid undue limitations to the use of minority

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languages. I intend to remain engaged with this and other matters until the balance between strengthening the State language and protecting minority rights is achieved.»¹³

It is undeniable that favourable provisions in minorities legislation can be weakened by conflicting provisions in other laws, especially laws relating to state languages, which could be described as «majority laws». The reported case of Slovakia, with its State Language Law, is clear.¹⁴ But it was rightly stated since the first comments of the Charter that the use of the regional or minority language in a local entity (to make an example of soft language pro-tection) does not affect the status of a majority and official language.¹⁵

Population censuses are a technique that can also be very useful in determin-ing the criterion of «justifiability»: the 2009 report on Slovakia underlines that the lack of precise data (which is extremely relevant for the Roma, for whom figures vary astonishingly depending on the different sources, ranging from 89 000 in the official census of 2001 to 400 000 according to Roma organisations) is a major problem (point 9): therefore the Committee of Experts «encourages the Slovak authorities to take steps to collect, in co-opera-tion with the speakers, reliable data concerning the number of users of the regional or minority languages and their geographic distribution» (point 10 of the Report on Slovakia).

In the interpretation of the Committee of Experts, the criterion of «justifiability» must be assessed with a significant degree of fiexibility as regards the regional or minority languages. That is why in many cases the Committee of Experts invites the authorities to broaden the geographical área in which a regional or minority language is protected. This was, for instance, the case of the 2008 report on Austria, in which the Austrian authorities were urged to ensure «the possibility to submit oral or written applications in the Slovenian language in all municipalities in Carinthia where Slovenian has a traditional presence».

The expression «according to the situation of each language» is also very impor-tant and very wise. Languages which have a «kin-state» have some advantages

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in terms of finding textbooks and even people who can speak the language. A good example here is Germán, one of the most important international languages in Europe, which is a minority language in Italy (South Tyrol) and, in the countries covered by the Charter, in Hungary and many other central and east European states. Other languages are important and widely used, for in-stance Catalán and Welsh, but do not have a kin-state, while others are very much minority languages, being used by only a few thousand people (eg Sami).

Even though this is not explicitly stated, the evaluation reports take a more indulgent tone when they refer to weak regional or minority languages; it is more difficult to organise the use of Ruthenian than the use of Catalán.

A very special case is that of Russian in Ukraine: it is a very important and widely used language with a powerful kin-state (Russia), but, for specific political choices of nation building (which also means the emphasis on the national state language, Ukrainian), it is not an official language in Ukraine, but is listed among the regional and minority languages.¹⁶ The Committee of Experts has underlined that «the linguistic landscape of Ukraine is unique from the Charter's perspective, as a language (Russian) which is not the state language is used by a large part of the population, including persons belong-ing to other national minorities. The Committee of Experts considers that this factor needs to be taken into account when the authorities take measures to implement the Charter» (Ukraine 2007, par. 16).¹⁷

The controversial case of the status of the Russian language in Ukraine goes beyond the potential of the Charter: the problem is that Russian in Ukraine is spoken, especially in certain áreas, much more widely than a typical regional or minority language, but it does not enjoy, even in those áreas, any official status. The explanatory report points out that, in certain áreas, minority languages are actually used by the majority of the people. But normally in such cases the language concerned (Catalán, Basque, Welsh) has a legal status that Russian does not enjoy in Ukraine.

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The Charter does not give a definition of what «official» means.¹⁸ The most accurate definition of the term «official» here was given by the Spanish Con-stitutional Court in Judgment 8/1986: «A language is official, without re-gard to its position and significance as a social phenomenon, when it is recog-nised by the public authorities as a normal means of communication between them and in dealings with private individuáis, with full validity and legal effects». Of course, if a regional or minority language is official (as stated before, usually in part of a country's territory: if it is official throughout the territory of the state, then it is probably not a minority or regional language), the measures provided for in Article 10 should be complied with. However, in the overall landscape of minority language protection in Europe, there are many cases of «semi-official» linguistic recognition.

Very often, the Committee of Experts refers to judgments from the country concerned to underline that the provisions of Article 10 are not properly im-plemented. This approach is quite useful because it avoids the committee's observations being presented as alien to the legal reality of the country.

It is also very common for further documents to be requested from a country: this does not involve an explicit critique, but a «suspended judgment» which nevertheless, in my opinión, is more like a censure than a positive assessment. In fact, the positive factors, which means cases of compliance with the obliga-tions arising from the Charter, are usually quoted explicitly.

The Charter is a living instrument: the contents of the state reports and the Committee of Experts' reports form a core of flexible standards, which are nevertheless an important goal for the state parties to comply with. In this complex framework, a role is also played by the associations of regional and minority language speakers. For instance, the collection of the relevant data is very important: the work of organised and active associations is valued highly. That is why the Committee of Experts sometimes seems to give greater importance to minority or regional languages which are spoken by a few dozen people rather than languages which are spoken by hundreds of thousands of people. This is true of the 2009 Committee of Experts report on Slovakia, which devotes many lines to the situation of Krahule/BlaufuB, a municipality with only 155 people,

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the only one where Germán is co-official. It is obvious that the international weight of the German-speaking association has played a decisive and positive role in giving the Committee of Experts information about the actual state of the legal protection of Germán in this small village in central Slovakia.

In the next section, I will analyse the content of the undertakings of the five paragraphs of Article 10. Some quotations from the various state evaluations by the Committee of Experts will be useful to help understand the effective impact of Article 10 on the systems of the contracting parties, their degrees of compliance and their shortcomings.

1. The dhtinction between central state authorities and local and regional authorities

The first two, and longer, sections of Article 10, provide for measures —which in many cases are the same— taken respectively by central state authorities and local and regional authorities. It is necessary to clarify the differences between the two tiers concerned before analysing the content of the obliga-tions undertaken by them.

Here «central state authorities» means not only the central organs of the state and any decentralised agencies, but also the authorities of the federated enti-ties in federal states (Germán and Austrian La'nder and Swiss Cantons, since those three are the only federal countries which are parties to the Charter).

Germany and Switzerland are examples of systems which have opted for the exercise of central state functions by the sub-state authorities. The evaluation reports on Switzerland underline that «insofar as the cantonal administration performs State tasks, the present undertaking was not fulfilled in practice» (Switzerland, 2007, par. 82):¹⁹ this shows how hard it can be even in a system «based» on language rights protection, like Switzerland, to co-ordinate the tasks of the different tiers of government.

Most of the countries which have signed and ratified the Charter are neither federal ñor regional, and the norms regulating the protection of language

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rights stem only from state legislation. Nevertheless, the relevance of practice regarding language protection also involves the activity of local authorities, which, also only through their administrative powers, have an important role in fulfilling the undertakings of the Charter. In other words, local and regional authorities are called on to put state laws on language protection into effect, through their administrative capacity.

As Jean-Marie Woehrling points out, «the term 'regional or local authority' has to be understood according to the meaning attributed to it in other Coun-cil of Europe instruments».²⁰ It is normal to link regional and local authorities, because they are different from the central state authorities described in the previous paragraph, but it is important to bear in mind that the different approaches to regionalism in the various countries have a strong influence on the protection of language rights. In this sense, given that every tier of gov-ernment must respect the state constitution and the other laws issued at central level, we must establish whether there is a regional level which is (also)²¹ competent for the protection of language rights.

For instance, a clear competence of the sub-state entities level is to be found in Spain, where power to regúlate the use of co-official languages lies exclu-sively with the Autonomous Communities, so that the central government's freedom to act is subject to the limits established by the relevant general principie (Spain 2007).

Sometimes it is not clear under domestic legislation whether competence for languages lies with the state or with sub-state entities. It could be said that the latter could have competence for language rights only when they hold legisla-tive powers. If they only have administrative powers, then the task should lie with the state. The Charter is not clear on this point, however, and it probably leaves open the possibility of local and regional authorities exercising some powers related to language rights even only through their administrative com-petences. A typical case of this possible confusión is explained in the 2007 evaluation report on the Netherlands: «the Committee of Experts considers that the división of labour between the national authorities and the provincial

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authorities regarding the promotion of regional or minority languages, in particular the competence for education, should be reconsidered with a view to making it more effective. In the 3rd periodical report, the national authorities repeat their view that local and regional authorities are primarily responsible for the protection and promotion of regional or minority languages» (Nether-lands 2007, par. 10). The following sentence nevertheless points out that the international responsibility (including in respect of the Charter) lies with the state.²² A problem still remains —as emphasised by the Committee of Experts in its evaluation report on the Netherlands— when, «in the absence of a national language policy, the provincial authorities ... lack an overall guidance with regard to the application of the Charter» (Netherlands 2007, par. 10).

The case of the Netherlands highlighted a possible lack of clarity in the división of powers between central government and local and regional authorities, plus the problem of the lack of a national language policy. Other systems do not present these problems, having a clearer system of división of powers between the different tiers of government. We see in the evaluation reports that this advantage of legal clarity does not necessarily mean that the countries with a clear división of powers comply more fully with the undertakings of the Charter than others do. Nevertheless, a clear división of powers helps the authorities of the country concerned to determine the level where the responsibility for implementing the provisions concerning language protection lie. International responsibility, ie that regarding the obligations arising under the Charter, lies solely with the state. The Charter mechanism is not inter-ested in the internal división of powers within a state. In the case of Ukraine, which was already analysed above, some regions announced that, on the basis of the Charter, they would give the Russian language «regional» status. The response of the central authorities was to deny local authorities this power, which is not provided for either in the Constitution of Ukraine or in the Law of Ukraine on Local Self-Government, but a judge upheld the validity of granting Russian the status of a «regional language».²³

Another question, which is distinct from the división of powers between the tiers of government, is the lack of clarity regarding not whether local and

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regional authorities are entitled to take measures to protect languages, but which local and regional authorities are required to do so. This also applies in countries with clearly satisfactory systems of language and minority pro-tection, like Hungary. The 2008 evaluation report states that «The Commit-tee of Experts strongly urges the Hungarian authorities, without minimising the existing linguistic rights applying to the whole territory of Hungary, to designate those local and regional authorities, on whose territory local and county minority self-governments representing Part III languages are active, as the authorities that will be obliged to take organisational measures to im-plement the obligations under Article 10» (Hungary 2008, par. 132).

In any case, the structure of Article 10 refiects the idea that the undertakings under the Charter must be fulfilled regardless of the authority which is com-petent, even though the ultimate international responsibility lies with the state. It is also important to remind that, in federal States like Germany, where the protection and promotion of regional or minority languages is mainly under the responsibility of the La'nder —taking for granted that the mentioned international responsibility belongs to the federal State—, the level of protection is not always stronger than in unitary States, even if the federal or regional system should help the language protection. The evaluation report of 2011 on Germany, underlines that to strengthen it the inter-hand cooperation should be more developed, even if some of those mechanism have already been put in place.²⁴

b) The contení of the undertakings of Article 10.1 and 10.2 and the evaluation of the Committee of Experts

For the purpose of this analysis, it makes sense to combine the obligations under the first two paragraphs because, once it has been established which tier of government is responsible, it is clear that the content of the undertakings is actually the same.

In paragraph 1 the verb «ensure» is used, while in paragraph 2 the verbs cho-sen are «allow» and «encourage». The former seems slightly stronger than the latter.²⁵

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The undertakings in both paragraphs 1 and 2 of Article 10 have different graduations. The first point refers to the mere use by the administrative au-thorities of the regional or minority languages: this does not in any way in-volve official status for a language. A language may be used orally on a natural basis when it is widely known and spoken, even though it has no official status. For instance, Schwitzerdutsch and Véneto (which are dialects and are not covered by the Charter, although they are very popular) are used in practice in many administrative authorities even without official status.²⁶

As Jean-Marie Woehrling underlines, «the undertakings in subparagraphs i, ii, iii and iv are clearly alternatives, except where there are different languages or sepárate districts,»²⁷ which can lead to different practices. The undertak-ing in subparagraph i is very broad in scope, but not well defined; on the other hand, the undertakings in subparagraphs ii, iii and iv «mark out more precise although more limited obligations for the state party».²⁸

We can observe from the declarations contained in the instrument of ratifica-tion that rather few countries have chosen to undertake subparagraph I, which is at the same time the most general and the most demanding provisión of paragraph 1. It is not surprising that those countries are among the most fulfilling States in language protection²⁹.

The use of a regional or minority language under subparagraph i is normally not exclusive:³⁰ it may be combined with the use of the official language (or

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languages). Anyway, «the undertaking must be understood as requiring the regional or minority language to have a significant place in the work of the authorities».³¹

There are different nuances in the undertakings in subparagraphs iii, iv and v of Article 10.1: there is the right of citizens to submit oral and written ap-plications in the regional or minority language, but without a corresponding obligation on the administrative authorities to respond in this language (iv), the right to submit oral or written applications and receive a reply in these languages (iii) and the right of users of regional or minority languages to validly submit a document in these languages (v).

States whose entities enjoy a high degree of autonomy (federal states and regional states) have an additional opportunity to implement the obligations of the Charter. Comparative law shows that the most appropriate level for deal-ing with language protection is usually the sub-state (the hand, Autonomous Community, Región or devolved authority).³² The Spanish experience is prob-ably the most relevant in this regard: language policy has mainly been carried out by the Autonomous Communities:³³ it is therefore not surprising that most of the shortcomings in the Spanish system of language protection are within the decentralised state authorities (Art. 10.1): «The Committee of Experts urges the Spanish authorities to review the career and training struc-ture in the state public administration with a view to ensuring that an ade-quate proportion of the staff posted in the State administration offices located in the Basque Country have the necessary command of the Basque language to be able to use it as a working language» (Spain 2008, par. 74).

On the contrary, the lack of a strong regional (and also local) tier of govern-ment often hinders the possibility to fully implement the provisions of the Charter, even in countries where there is a strong tradition of minority protection: for instance Denmark, according to the last report of the Committee of Experts on Denmark (2nd March 2011), «the fact that Denmark has not chosen any undertakings under Article 10 paragraph 2 (local and regional authorities) is regrettable considering the importance of regional and local authorities for the promotion of the Germán language (Denmark 2011, par. 13).

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The drafting of documents by the administrative authorities in a regional or minority language is a measure that reflects a good degree of language protec-tion, «(it) goes beyond relations with users».³⁴ Its effectiveness may be lower than formal law would actually allow, including for reasons of past and still latent ethnic conflicts, as in Croatia, where in 2005, 2 864 identity cards were issued in Serbian, Italian and Hungarian. According to the 2008 evaluation report on Croatia, «clerks in some cases had turned down requests for bilin-gual identity cards on the grounds that they could only be issued in áreas where the respective language was in equal and official use» (although the legislation would have allowed the cards to be issued). Worse still, however, was the fact that «The Committee of Experts was also informed of recent in-cidents when members of the Serb minority were not allowed to sign their identity cards in the Cyrillic script». It was therefore consistent to conclude that «The Committee of Experts considers that such incidents are contrary to the spirit of the Charter» (Croatia 2008, par. 21).

As far as place ñames are concerned, the possibility of using them in regional or minority languages is sometimes subject to a percentage thresh-old: this is true of the Czech Republic (Section 29, par. 2, of the Act on Municipalities), which nevertheless implements such use in only 13 mu-nicipalities out of the 31 that meet the legal requirement (2008 evaluation report on the Czech Republic, par. 195; the criticism mainly concerns Polish place ñames).

The Committee of Experts also in some cases underlines good practice and compliance with the undertakings under the Charter: the measures to protect and promote the Welsh language are satisfactory for the most part, with a minor exception for the undertaking in paragraph 4.b (recruitment and, where necessary, training of the officials and other public service employees required). The Welsh language schemes are considered a good practice,³⁵ a «positive develop-ment towards ensuring use of Welsh by administrative authorities.»³⁶ The Committee of Experts' reports show that the protection of Welsh is not a problem: the subsequent reports in 2006 and 2009 do not mention the situa-tion of the Welsh language in the comments about Article 10, concentrating

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instead on the legal protection and promotion of the Gaelic language in Scot-land.³⁷

In other cases, the Committee of Experts refers to «the emblematic use of regional or minority languages in official documents, for example in letter-heads, seáis and stamps» (Croatia 2008, par. 162). However «the present un-dertaking goes beyond such an emblematic use and refers to the language of the main content of the document.»³⁸

Sometimes people who might be keen to use their regional or minority language are not aware of the possibility. In this case, the Committee of Experts suggests the wearing of badges by civil servants and the use of bilingual signs or brochures (Germany 2006, par. 208; Czech Republic 2008, par. 189).

There are also great variations in the fulfilment of this undertaking within individual countries, depending on the size and level of organisation of the minority. In Croatia, for instance, according to the evaluation report of 2008, Italian and, to a lesser extent, Hungarian seemed to be widely used in local and regional authorities, while this was not true of Slovak and Ruthenian.³⁹ The report on Croatia of 2010 confirms a asymmetrical use of languages, con-sidering the undertaking of paragraph 2 of Article 10 «fulfilled with respect to Italian, partly fulfilled with Czech, Hungarian, Ruthenian and Serbian, and not fulfilled for Slovak and Ukranian».⁴⁰ In Armenia, according to the 2008 evaluation report, the undertakings are fulfilled with regard to Russian, but only partially —and to varying degrees by the central authorities and local and regional authorities— regarding the other regional and minority languages. In all the cases mentioned (including the one regarding Germán in Slovakia, which was analysed in section 3), the weight of international languages like Russian, Italian and Germán helps their status and the imple -mentation of their use.

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c) Public services and the relevant obligations (Article 10.3)

This undertaking concerns the use of regional or minority languages in rela-tions with bodies providing public services, which could include, for exam-ple, postal services, telecommunication services, electricity, public transport, hospitals, etc.

(Croatia 2008, par. 174).

The need for this section stems from the increasing number of services of public interest provided by private bodies which work on behalf of public bodies or under their supervisión. This is the result of the emphasis placed on the need to save public resources and provide the public with the most effec-tive and efficient services, which private bodies are apparently better able to do than public authorities.

It is not relevant here to ask whether private bodies really are more effective. The question is whether the private bodies providing public services have the same language obligations as public institutions. Of course, this largely de-pends on the content of the various national laws, which can also impose language obligations on some persons, while excluding others from the same obligations. A bus driver from a private company which provides a public service (to give an example of a private company which performs an activity of public interest) and still more a manager (including because, in most cases, passengers should not disturb the driver...) has more reason to be required to know a regional or minority language than an electrician. This is because the driver works in contact with the public and the manager has to respond to the latter's concerns, which means that their linguistic skills are relevant to the performance of their duties, while an electrician can usually do his/her work properly even without specific language skills.

In any case, it is clear that linguistic obligations are more difficult to meet in private contexts, even if activities of public interest are involved. In some re-ports, the Committee of Experts invites states to fulfil the undertaking,⁴¹ also encouraging «the authorities to develop a structured policy to facilitate the recruitment of public service employees with a knowledge of the regional or minority language used in the territory where the language is traditionally

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spoken» (Armenia 2009, par. 172); the reference to the need for a «structured policy» implies that, in certain cases, regional or minority languages are in-deed used in the public services, but on a spontaneous basis with no links to a legal obligation (Armenia 2009, par. 170).⁴² In the second evaluation report on Croatia, which has, at least regarding Italian and Hungarian, a fairly satis-factory system of language protection, the Committee of Experts «encourages the authorities to take immediate steps to ensure that the regional or minority languages are used in the provisión of public services and asks them to provide comprehensive information in the next periodical report» (Croatia 2005, par. 175). In the third evaluation report on Croatia, «The Committee of Experts notes the slight improvement in relation to the actual use of regional or minority languages in the context of this undertaking, but considers that this is not enough to amount to fulfilment»: this confirms how the undertaking in this paragraph is among the most difficult to fulfil in Article 10. Some contracting parties have chosen not to include this paragraph in their undertakings under Article 10 (for instance, Sweden and the United King-dom); this is a further demonstration of how hard it can be to fulfil.

d) Practical measures adopted in order to implement language rights in administrative authorities (Article 10.4)

Some reports do not conclude that this undertaking is not fulfilled and note instead that it is formally fulfilled but that the possibility of using regional or minority languages «only takes place occasionally» (Austria 2008, par. 135), implicitly stating that there should be an improvement in the practice. Oth-er evaluation reports find partial fulfilment (Czech Republic 2008, par. 190, Finland 2007, par. 127).

This is a further step in the protection of a regional or minority language. Very often, the evaluation reports note the fulfilment of the undertakings related to oral use of the regional or minority languages but stress the need for improvements in the translation into those languages of widely used administrative texts and forms (Armenia 2009, par. 157).

The provisión on appointing public servants who know regional or minority languages in places where they are used is sensible and reasonable: it would be a pity to «waste» the linguistic capacity of the civil servants in places where

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it is of no use. Especially in states where the number of people with good command of regional or minority languages is not high, the chance to work in the áreas where there is such demand should be taken. The provisión in itself could be at odds with the general rules on entering the public service and career progression within it, and also against a basic (but very wide-spread) interpretation of the principie of equality. But, even without requir-ing knowledge of a regional or minority language as a precondition for entry into the public service, the mere possibility of this linguistic capacity being a recognised valué (which is not such a difficult task) would help greatly in fulfilling the undertakings in paragraph 4. c. The appointment must take place «as far as possible»: in other words, provided that there is no conflict with other more important selection criteria.⁴³ The training of public officials in regional or minority languages is, of course, a fundamental requirement for ensuring compliance with the various undertakings in this section.

e) The right to the use or adoption of family ñames in the regional or minority languages (Article 10.5)

The last paragraph of the article concerns a fundamental right involving the private and most personal sphere. Many linguistic minorities have in the past experienced oppression in this field, with the changing of family ñames from the minority language to the language of the majority. This was the case with the Italianisation of Germán and Slovene ñames in Italy during the fascist era, and also, to give a more recent example, with the translation into Bulgarian of Turkish ñames in communist Bulgaria. The restoration of the «original» family ñames must be granted at the request of the persons concerned: one could also propose an authoritative measure by the state re-establishing the correct ñame without the need to consult the person concerned, but it is more reasonable to provide for this to be done on request because the will of the persons concerned must take priority in such a personal sphere.

Full compliance with this provisión is lacking in many contracting parties, as the Committee of Experts indicates in many reports. This is true of Serbia, Hungary and other countries of central and eastern Europe.

The right to have personal and family ñames in regional or minority languages must be complete, which includes the need to have the correct orthog-

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raphy and spelling in those languages.⁴⁴ This provisión may be at odds with the linguistic rules of certain languages. The courts have also had to intervene in this área: a very famous case at the European Court of Human Rights concerned the issue of the correct versión of family ñames in a given language: this was the Meneen case, in which a Germán woman complained about the transcription of her family ñame as Mencena, according to Latvian linguistic rules. The Court upheld the submissions by Latvia that, although the transcription of personal ñames in Latvian language in personal identity docu-ments could be considered an interference in the private life of an individual, such interference was justifiable, as the Latvian authorities had not violated the discretion given to them in transcribing personal ñames.

As far as Article 10 is concerned, the Committee of Experts' reports do not always cover all the languages that a country has listed among those to be protected: if there are comments in one report and none in the following reports (as for the Welsh language, whose use in the administrative authorities was considered in the 2003 evaluation report but not in the 2006 and 2008 reports), the reason may be that the situation has not changed in the mean-time (as in the case of the Welsh language it may also mean that there are no problems with the undertakings, as the 2003 evaluation report stated that «the undertakings are fulfilled»). Another reason may be, more simply, that the Committee of Experts did not have the time to monitor all the languages which are protected under the Charter.⁴⁵

The Italian experience is very clear in this respect: Italy had signed the Charter in 2000 but only recently (March 2012) ratified the it, while France has not yet done it. But while France has not done so because of constitutional problems, Italy has delayed twelve years (also) for domestic political reasons. The protection of minority languages does exist, and it existed of course also before the ratification of the Charter. This protection is very irregular and

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asymmetric, ranging from the «super-protection» of the Germán language⁴⁶ to the weak protection of the Greek language in Puglia and Calabria. Italy had also not ratified until March 2012 the Charter because of a fear of open-ing a Pandoras Box of all the dialects which have strong traditions but which do not fall within the scope of the Charter because they are not lan-guages.

Aspects which hinder language protection can also be very concrete,⁴⁷ and not (at least only) based on reservations and reluctance linked to certain traditions. A lack of funding and democratic transition both bring additional problems, as some state reports point out.⁴⁸ The issue of the financial cost of implementing the Charter is relevant: as far as Article 10 is concerned, the cost of translating and publishing a large number of documents in several languages can be high. One solution is the recruitment and training of bilin-gual staff.⁴⁹

There are also great variations in the fulfilment of this undertaking within individual countries, depending on the size and level of organisation of the minority. In Croatia, for instance, Italian and, to a lesser extent, Hungarian

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seem to be widely used in local and regional authorities, while this is not true of Slovak and Ruthenian (Croatia 2008).⁵⁰ In Armenia, according to the 2008 evaluation report, the undertakings are fulfilled with regard to Russian, but only partially — and to varying degrees by the central authorities and local and regional authorities— regarding the other regional and minority languages. In all the cases mentioned (including the one regarding Germán in Slovakia, which was analysed in section 3), the weight of international languages like Russian, Italian and Germán helps their status and the imple -mentation of their use.⁵¹

In my view, the mechanism of the Charter is not limited to the countries which are parties to it and which must comply with it. A positive infiuence on the countries which have not signed or ratified it is also possible. I have already mentioned the French issue, and the inclusión of the protection of regional languages in a new article in the Constitution. To give an example, I believe that the Kurds in Turkey could benefit, through an indirect but possible knock-on effect, from the language rights which their language enjoys in Armenia (the 2009 evaluation report on Armenia states that some of the undertakings in Article 10 are fulfilled). The Charter has an overall dimensión and, together with certain other international instruments, forms the core of a range of international standards on minority language rights which, at least in Europe, are gaining in importance.

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[1] Article received: 20.07.2011; review: 20.10.2011; final version accepted: 10.02.2012.

[2] Jean-Marie Woehrling, The European Charterfor Regional or Minority Languages, Strasbourg, Coun-cil of Europe Publishing, 2005, p. 178. Another important, and more recent booking French on the Charter is La protection des langues minoritaires en Europe: vers une nouvelle decente, Langues regionales ou minoritaires n"8, Conseil de l'Europe, 2010.

[3] Giovanni Poggeschi, I diritti linguistici. Un'analisi comparata, Roma, Carocci, 2010.

[4] In the educational sphere, the «most fundamental right» is the nght for the pupil to understand the language in which he/she receives education, as explained in a renowned and already «classic» doctrine on language rights: see Antoni Milian Massana, Derechos lingüísticos y derecho fundamental a la educación, Madrid, Civitas, 1994.

[5] With the term «Citizen», I also refer to the foreigners who reside legally in a country and, in certain cases, also those who are not legal residents (for instance, emergency services also have to be provided for this category of persons, irrespective of their legal status). About the evolution of the concept of citizenship see Saskia Sassen, Territory, Authority, Rights. From Medieval to Global Assembla-ges, Pnnceton University Press, Pnnceton-Qxford, 2006, pp. 281-319-

[6] Daniel Horowitz, Ethnic Groups in Conflict, Berkeley-Los Angeles, University of California Press, 2000, p. 220.

[7] See my monograph: Giovanni Poggeschi, Le nazioni linguistiche della Spagna autonómica. Universa-lita della lingua castigliana e vitalita delle lingue regionali, Padua, CEDAM, 2002.

[8] Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit. p. 27.

[9] The Copenhagen criteria include the protection of national minorities, which is directly related to the protection of regional and minority languages (at least it includes it, as language is one of the fundamental features of a national minority), as a requirement which candidate countries must meet.

[10] Some states which have adopted quite restrictive state language laws (though reasonable in terms of the protection of the language), like the Baltic States, have not signed the Charter. This could be a sign of the fact that states which have adopted «strict» state language laws cannot easily subscribe to the Charter: this is also the case of France, even though the real obstacle actually seems to be a certain idea of the «Republic» rather than the individual provisions of the «Loi de la langue fran¡aise» (which anyway is an outcome of the above-mentioned Republican «spint»).

[11] «If the citizens of the Slovak Republic who are persons belonging to a national minonty cons-titute according to the last census at least 20% of the inhabitants of a municipality, they may use a Minority Language in official communication within that municipality» (Section 2.1 of Act of 10 July 1999).

[12] Par. 13- The same paragraphs adds: «In addition, the Committee of Ministers of the Council of Europe recommended that the authonties 'review the requirement that regional or minority language speakers should represent at least 20% of the municipal population for the undertakings in the field of admimstration to be operational'». All the state reporst, the evaluation reports of the Committee of Experts and the Committee of Ministers' recommendations can be read at http://www.coe. int/t/dg4/education/minlang/Report/default_en.asp

[13] http://www.osce.org/hcnm/51811

[14] And íf, as in the case of Slovakia, the provisions of the state language law are accompanied by demanding provisions in the minorities legislation in terms of thresholds (in this case, 20%), the effect is doubled.

[15] Ferdinando Albanese, Conclusions, in Conférence International sur la Charte européenne des langues regionales ou minoritaires, Langues Regionales ou Minoritaires n°l, Conseil de l'Europe, Strasbourg, 1998, on line at http://www.coe.int/t/dg4/education/minlang/publications/minontylanguages l_fr.pdf

[16] For ín-depth analysis of the íssue, see Bill Bowring — Myroslava Antonovych, Ukraine's long andwinding road to the European Charter for Regional or Minority Languages, in AA.W., The European Charter for Regional or Minority Languages: Legal Challenges and Opportunities, Council of Europe Pu-blishing, Strasbourg, 2008, pp. 157-182.

[17] Similar situations exist in the Baltic States, which have not signed the Charter. Especially Latvia, and to a lesser extent Estonia and Lithuama, have many Russian-speaking citizens and non-citi-zens (with a special status of former USSR residents). The use of Russian in the ex-Soviet Union is the hentage of an empire which was also linguistic: see David Laitin, Identity in Formation: The Rus-sian-Speaking Population in the Near Abroad, Cornell University Press, Ithaca-New York, 1998.

[18] Woehrling, The European Charter for Regional or Minority Languages, passim.

[19] The cnticism mainly related to the use of Romansh in the Cantón of Graübunden. The 2007 evaluation report also underlines that the only federal authority present in Graübunden, the border guard, «uses Romansh (a 'partial official language' at federal level) only orally and in inscriptions on buildings and uniforms. In general, the eight Romansh-speaking staff members work in Germán» (Switzerland, 2007, par. 84).

[20] Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit., p. 186.

[21] As stated in section 2, competence for compliance with the undertakings, le minonty language protection, is generally a concurrent matter, which is shared by the central state and the sub-state entities. However, in certain sub-matters like the protection and the promotion of regional languages, competence lies (I would say) almost exclusively at the regional level, as is the case for Spain.

[22] «The Committee of Experts underlines, however, that the national authonties have to ensure the application of the Charter in practice even íf responsibilities are delegated to local and regional authorities.» (par. 10).

[23] Bill Bowring — Myroslava Antonovych, Ukraine's long and winding roadto the European Charter for Regional or Minority Languages, cit., p. 159.

[24] Germany 2011, Chapter 4, section D.

[25] Even though, according to Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit., p. 182, «in the case of authorities coming directly under the state, a formula expres-sing a more direct commitment could have been used».

[26] This graduation is also taken into consideration by the explanatory report of the Charter, which states that a language is «on íts temtory, a working language, or the normal means of communica-tion, ofthepublic authorities».

[27] Jean-Marie Woehrling, The European Charter for Regional or Minority Languages, cit.,p. 183.

[28] Ibídem,p. 183.

[29] They are Finland, Slovema, Spain, Sweden and United Kingdom (Finland and United Kingdom only for, respectively, Swedish and Welsh).

[30] A very recent and fundamental judgment of the Spanish Constitutional Court (n° 31 of 28 June 2010) concerning the Statute of Catalonia (for ínitial comments, see the special íssue of the Revista catalana de dret public. http://wwwl0.gencat.net/eapc_revistadret/recursos_interes/espe-cial%20estatut/ca_ese/ca), includes among the 14 articles declared contrary to the Spanish Consti-tution the one which states that administrative authorities in Catalonia must make «preferential use of Catalán» (art. 6: «Catalonia's own language is Catalán. As such, Catalán is the language of normal and preferential use in public administrative bodies and in the public media of Catalonia, and is also the language of normal use for teaching and learning in the education system). As both Catalán and Castilian are official languages in Catalonia, the court ruled that it was not legitímate to grant the Catalán language a higher status. This interpretation has been criticised by Antoni Milian Massana, El regim de les llengües oficiáis. Comentan a la sentencia del Tribunal Constitucional 31/2010, de 28 de juny, whose text can be read in the above online review.

[31] Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit.,p. 183.

[32] Giovanm Poggeschi, Le nazioni linguistiche della Spagna autonómica, cit., pp. 389-398.

[33] For a proposal of this model as an example, see Frangís Grin.

[34] Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit., p. 185.

[35] Also underlined by Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit., p. 185.

[36] Paragraph 145 of the 2003 evaluation report on the United Kingdom, which nevertheless adds that the Committee of Experts «looks forward to more Information in the next report».

[37] The same omission, which does not necessanly imply approval of the language policy, applies to Catalán in the latest evaluation report on Spain (2008). On this point, see section 5 below.

[38] Moreover, «following further Information contained in the report, and on the basis of the evi-dence received during the on-the-spot-visit, the publication of documents by local authorities in the languages that are in equal and official use, ís only done upon request, and such requests are seldom made» (Croatia 2008, par. 162).

[39] Par. 153 of the 2008 evaluation report on Croatia states that «Since the Ukrainian and Slovak languages are not in equal and official use anywhere in Croatia, there ís no possibility to submit applications in these languages».

[40] Croada 2010, Par. 184.

[41] For instance, the 2008 evaluation report on Croatia states that «the Committee of Experts con-sidered that this undertaking was not fulfilled, since, on the basis of the Information received, there had been no indication that regional or minority languages were used in public services. It encoura-ged the authorities to take ímmediate steps to ensure that the regional or minority languages were used in the provisión of public services and asked them to provide comprehensive Information in the next penodical report» (Croatia 2008, par. 175).

[42] «Officials and public service employees in the Republic of Armenia have an adequate knowled-ge of Russian. Regarding Assyrian, Kurdish and Yazidi, some public service employees have a com-mand of the respective language in the área where they are used».

[43] Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit.,p. 199.

[44] The Committee of Experts' 2009 report on Serbia states, after many remarks on the use of regional or minority languages in personal and family ñames, that «it is therefore necessary to raise awareness among responsible civil servants (eg through ínternal circulars) that ñames in regional or minority languages must be entered into personal documents in conformity with the tradition and orthography of the languages concerned».

[45] http://languagecharter.eokik.hu/byLanguage.htm

[46] I borrow the term from Francesco Palermo and Jens Woelk, Diritto costituzionale comparato dei gruppi e delle minoranze, Padua, CEDAM, 2008, p. 256 ss., who speak of «super-protected minori-ties».

[47] For instance, the 2008 evaluation report on Croada explains that in some small municipalities where Hungarian has official status the language is not used because «the total number of employees can be as low as five. This fact, together with budgetary constraints made ít difficult in practice (emphasis added) to comply with the law» (Croatia 2008, par. 128).

[48] This is the case, for instance, of the report submitted by Armenia in 2007, according to which «... Some of these problems are of a legal nature, while others are the consequence of social and eco-nomic conditions in Armenia. The latter include, for instance, physical conditions and staffing levéis in schools. For financial reasons, schools have not yet been fully renovated in the Republic of Armenia: they have no proper heating in winter and lack adequate techmcal facilities; the teachers do not have sufficient printed teaching aids, there are no defimtive regulations on how teachers are to be trained, and progress is slow» (point 6). The observations concern the sphere of education (for our purposes, Article 8), but they can easily be transposed to the use of regional and minority languages in the administrative authonties, which also requires sound financial support. It is also clear that the relevant shortcomings in the education system have an impact on the administrative authonties, as indicated in the introduction to this report.

[49] Jean-Mane Woehrling, The European Charter for Regional or Minority Languages, cit., p. 39, adds that «it will not be particularly expensive to ensure the additional linguistic ability once the training and recruitment system has been reorganised for the purpose». This statement by one of the leading French experts on language nghts is correct, although perhaps a little too optimistic. The bilingual training will not be too expensive íf the regional or minority language is widely spoken and correctly used: this condition is easier to meet when the education system ensures good teaching of (and also in) the regional or minority language. Once again Article 8's central position in the Charter must be reaffirmed here.

[50] Par. 153 of the 2008 evaluation report on Croada states that «Since the Ukrainian and Slovak languages are not in equal and official use anywhere in Croatia, there is no possibility to submit applications in these languages».

[51] Again choosing the example of Croatia, where the Solutions vary according to the different minonties, the higher practical status of Italian is also (see previous section) visible in the fulfilment of this provisión: «The Committee of Experts concludes that the undertaking is fulfilled with regard to Italian and not fulfilled with regard to the other languages» (Croatia 2008, par. 160). As far as the fulfilment of point d is concerned, the situation is more complex: «The Committee of Experts con-siders this undertaking fulfilled for Italian, not fulfilled for Ukrainian and Slovak and partly fulfilled in respect of the other languages» (Croatia 2008, par. 166).