CATAN AND OTHERS v. MOLDOVA AND RUSSIA JUDGMENT SEPARATE OPINIONS
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no. 36376/04, ECHR 2010)1. By contrast, the outcome of the present case
was only too foreseeable, given that the judgments in Ilaşcu and Others and
Ivanţoc and Others are – rightly or wrongly – already established case-law.
What is “unforeseeable” in this judgment, however, is the controversial
interpretation of the content and scope of the right to education set forth in
Article 2 of Protocol No. 1. In the leading Belgian linguistic case the
Court’s interpretation of the second sentence of that Article dispelled any
ambiguities: “This provision does not require of States that they should, in
the sphere of education or teaching, respect parents’ linguistic preferences,
but only their religious and philosophical convictions. To interpret the terms
“religious” and “philosophical” as covering linguistic preferences would
amount to a distortion of their ordinary and usual meaning and to read into
the Convention something which is not there” (Case “relating to certain
aspects of the laws on the use of languages in education in Belgium”
v. Belgium (merits), 23 July 1968, § 6, Series A no. 6). Admittedly, that
judgment also says that the right to education would be meaningless if it did
not imply, in favour of its beneficiaries, the right to be educated in the
national language or in one of the national languages, as the case may be.
The Court could therefore have concentrated on the exercise of this
“linguistic” right which, in the present case, ran up against the problem of
the use of a particular alphabet.
In its admissibility decision the Court reiterated the position of the
Moldovan Government in that connection: “According to the information
available to the Moldovan Government, education in the three schools
which were the subject of the present applications was currently being
carried out in the official Moldovan language, using the Latin script, and
based on curricula approved by the Moldovan Ministry of Education and
Youth (MEY). The applicants had not provided any evidence to prove that
the “MRT” authorities had been successful in their attempts to impose the
Cyrillic script and an “MRT” curriculum... Thus, despite the attempts of the
“MRT” authorities, the children were receiving an education in their own
language and according to the convictions of their parents” (see Catan and
Others v. Moldova and Russia (dec.), nos. 43370/04, 8252/05 and 18454/06,
§ 117, 15 June 2010).
In my view, the schooling issue as such and the language-alphabet aspect
stops there. Regard must of course be had to Article 32 of the Convention,
and also the notion that the Convention is a living instrument, but it should
not be forgotten that the Convention is an international treaty to which the
Vienna Convention on the Law of Treaties applies: “A treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object
E. Decaux. “De l’imprévisibilité de la jurisprudence européenne en matière de droit
humanitaire”, Revue trimestrielle des droits de l’homme, no. 2011/86, pp. 343-57.
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