Condensed:
The language used for all types of private activities is protected, including for external business signs, private publication of books and documents, or private broadcasting because of the language used. The right to private life can also prevent authorities from intervening in the use of a person’s name or surname in a particular language. Where reasonable or justified, States may have an obligation to use one or more other languages in addition to a country’s own official language.
Comprehensive:
The ESCR Committee has held that the right to take part in cultural life, as set out in Article 15(1)(a) of the ICESCR, includes the right to express oneself in the language of one’s choice. [1]
Any restriction or preference by State authorities preventing an individual from using his/her language of choice in private matters likely involves a violation of freedom of expression unless involving a permissible restriction. [2] A restriction on the use of language in private activities must be provided by law, for one of the aims allowed under freedom of expression, and be necessary and proportional to this legitimate aim in order to be valid. [3]
On the basis of these requirements, in Ulusoy v Turkey the ECtHR held that a ban on a theatre play in Kurdish violated freedom of expression. [4] Restrictions on the private publication of books or documents because of the language they are published in violate freedom of expression. [5] Similarly, prohibition of private broadcasting in a language other than the official language violates freedom of expression.[6] The OSCE Guidelines on the Use of Minority Languages in the Broadcast Media provides that ‘[m]inority language broadcasting should not be subject to the imposition of undue or disproportionate requirements for translation, dubbing, postsynchronisation or subtitling’.[7] In Ballantyne and Davidson v Canada, the HRC held that freedom of expression also included the language chosen by individuals for private commercial advertisement.[8] The IACtHR held, in Lopez Alvarez v. Honduras, that forbidding prison inmates belonging to minority groups to use their own language amounted to a violation of their freedom of expression, was discriminatory and affected their cultural identity [9].
The right to private life also protects against restrictions on the use of a language, such as in the case where state authorities refuse to recognize or use a person’s name or surname in his or her own language. This may be considered an impermissible interference in an aspect of a person’s private life if the interference presents major inconveniences which are not reasonable, as in where they are not proportionate to the objective sought.[10] The ECtHR has found violations of the right to privacy and family life in cases dealing with refusal to dispatch prisoners’ letters written in Kurdish[11] and refusal to allow the rectification of the spelling of one’s name according to its Kurdish pronunciation.[12]
A more unsettled human rights issue is the use of a language, or restrictions on the use of other languages, by State authorities themselves rather than in private activities. On the one hand, there is no right to have State authorities use any or all languages on its territory. On the other hand, administrative and other State authorities may have a legal obligation to use a language, in addition to the state’s official language, if there is no reasonable or justifiable basis for refusing such use.[13] This approach is particularly significant for, though not limited to, minorities and indigenous peoples: where possible, persons belonging to minorities and indigenous peoples should be allowed to use their language in contact with authorities.[14] Article 10(2) of the CoE Framework Convention for the Protection of National Minorities provides: In areas inhabited by persons belonging to national minorities traditionally or insubstantial numbers, if those persons request and where such a request correspond to a real need, the Parties shall ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities. In turn, article 13 of the UN Declaration on the Rights of Indigenous Peoples provides that:
1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.
In its concluding observations on Romania the CRC Committee noted with satisfaction that opportunities have been created for the persons belonging to minorities in law and in practice to interact with courts and local public administration in their mother tongue, as well as to broadcast their own TV and radio programmes, as well as to receive state funding for various projects, inter alia, in the area of education, culture, and youth programmes.[15]
Criminal proceedings cannot be restricted to the use of an official language. Authorities in such proceedings must ensure that individuals are informed in a language they understand of the nature and cause of criminal charges against them and for the reasons in case of their arrest. (See *promptly informed of reasons for arrest and charges if any*). They are also entitled to assistance in terms of trial proceedings so that they are defend themselves and participate in the trial ‘in full equality’ in a language they understand.[16] (See *free assistance of interpreter*).
Language restrictions affecting linguistic minorities or indigenous peoples may be in breach of Article 27 of the ICCPR which provides:[17] In those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to … use their own language. (See *practice and develop culture, language, religion, traditions and customs*; *learn mother tongue or have instructions in mother tongue*).
Where a language is only used in a small part of a country, and an individual is prevented from living there and to therefore have access to his or her culture and language, this constitutes a denial of the right to use their own language in community with the other members of their group.[18] Additional references M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005) G Pentassinglia Minorities in International law : An Introductorystudy (2002) P Thornberry International law and the rights of minorities (1993)
[1] CESCR General Comment 21 para 15(a). See also CoE Framework Convention for the Protection of National Minorities art 10. [2] Ballantyne, Davidson, McIntyre v Canada, communications 359/1989 and 385/1989 (HRC 1989) para 11.3.
[3]HRC General Comment 18 para 13; OSCE Guidelines on the use of Minority Languages in the Broadcast Media principle III; Ballantyne, Davidson, McIntyre v Canada, communications 359/1989 and 385/1989 (HRC 1989) para 11.4.
[4]Ulusoy and Others v Turkey application 34797/03 (ECtHR 2007) para 53.
[5]Ekin Association v. France application 39288/98 (ECtHR, 2001); Report of the independent expert on minority issues, Mission to Viet Nam, A/HRC/16/45/Add.2 (2010) para 45.
[6] HRC Concluding Observations: Dominican Republic, CCPR/C/79/Add.18 (1993) para 7. See also OSCE Guidelines on the use of Minority Languages in the Broadcast Media art 10,
[7] OSEC Guidelines on the use of Minority Languages in the Broadcast Media (2003) art 12.
[8]Ballantyne, Davidson, McIntyre v Canada, communications 359/1989 and 385/1989 (HRC 1989) para 11.4.
[9] Lopez Alvarez v. Honduras, decision of 1 February 2006, Series C No. 141, paras 164-174.
[10] Raihman v Latvia, communication1621/2007 (HRC 2010) para 8.2.
[11] Mehmet Nuri Özen and Others v Turkey applications 15672/08, 24462/08, 27559/08, 28302/08, 28312/08, 34823/08, 40738/08, 41124/08, 43197/08, 51938/08 and 58170/08, (ECtHR 2011) para 60. Compare Senger v Germany, application 32524/05 (ECtHR 2009) (admissibility) where the Court held that the authorities’ decision to stop letters in Russian from being sent to an inmate constituted an interference which was necessary for the prevention of disorder and crime, taking into account the fact that both the applicant and the authors of the letters were fluent in German.
[12] Güzel Erdagöz v Turkey application 37483/02 (ECtHR 2008) [13] Diergaardt et al v Namibia, communication 760/1997 (HRC 2000) para 10.10. [14] See also CESCR Concluding Observations: Libya, E/C.12/LYB/CO/2 (CESCR, 2006) para 41. [15] CRC Concluding Observations: Romania, CRC/C/ROM/CO/4 (CRC, 2009), para 95. [16] ICCPR art 14(3); ECHR arts 5(2) & 6(3), ILO Convention 169, art 12. [17] See also Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities art 2; CoE Framework Convention for the Protection of National Minorities art 9, Declaration on the Rights of Indigenous Peoples. [18] Lovelace v. Canada, communication R.6/24 (HRC 1981) para 15.
The language used for all types of private activities is protected, including for external business signs, private publication of books and documents, or private broadcasting because of the language used. The right to private life can also prevent authorities from intervening in the use of a person’s name or surname in a particular language. Where reasonable or justified, States may have an obligation to use one or more other languages in addition to a country’s own official language.
Comprehensive:
The ESCR Committee has held that the right to take part in cultural life, as set out in Article 15(1)(a) of the ICESCR, includes the right to express oneself in the language of one’s choice. [1]
Any restriction or preference by State authorities preventing an individual from using his/her language of choice in private matters likely involves a violation of freedom of expression unless involving a permissible restriction. [2] A restriction on the use of language in private activities must be provided by law, for one of the aims allowed under freedom of expression, and be necessary and proportional to this legitimate aim in order to be valid. [3]
On the basis of these requirements, in Ulusoy v Turkey the ECtHR held that a ban on a theatre play in Kurdish violated freedom of expression. [4] Restrictions on the private publication of books or documents because of the language they are published in violate freedom of expression. [5] Similarly, prohibition of private broadcasting in a language other than the official language violates freedom of expression.[6] The OSCE Guidelines on the Use of Minority Languages in the Broadcast Media provides that ‘[m]inority language broadcasting should not be subject to the imposition of undue or disproportionate requirements for translation, dubbing, postsynchronisation or subtitling’.[7] In Ballantyne and Davidson v Canada, the HRC held that freedom of expression also included the language chosen by individuals for private commercial advertisement.[8] The IACtHR held, in Lopez Alvarez v. Honduras, that forbidding prison inmates belonging to minority groups to use their own language amounted to a violation of their freedom of expression, was discriminatory and affected their cultural identity [9].
The right to private life also protects against restrictions on the use of a language, such as in the case where state authorities refuse to recognize or use a person’s name or surname in his or her own language. This may be considered an impermissible interference in an aspect of a person’s private life if the interference presents major inconveniences which are not reasonable, as in where they are not proportionate to the objective sought.[10] The ECtHR has found violations of the right to privacy and family life in cases dealing with refusal to dispatch prisoners’ letters written in Kurdish[11] and refusal to allow the rectification of the spelling of one’s name according to its Kurdish pronunciation.[12]
A more unsettled human rights issue is the use of a language, or restrictions on the use of other languages, by State authorities themselves rather than in private activities. On the one hand, there is no right to have State authorities use any or all languages on its territory. On the other hand, administrative and other State authorities may have a legal obligation to use a language, in addition to the state’s official language, if there is no reasonable or justifiable basis for refusing such use.[13] This approach is particularly significant for, though not limited to, minorities and indigenous peoples: where possible, persons belonging to minorities and indigenous peoples should be allowed to use their language in contact with authorities.[14] Article 10(2) of the CoE Framework Convention for the Protection of National Minorities provides:
In areas inhabited by persons belonging to national minorities traditionally or insubstantial numbers, if those persons request and where such a request correspond to a real need, the Parties shall ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities. In turn, article 13 of the UN Declaration on the Rights of Indigenous Peoples provides that:
1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
2. States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means.
In its concluding observations on Romania the CRC Committee noted with satisfaction that opportunities have been created for the persons belonging to minorities in law and in practice to interact with courts and local public administration in their mother tongue, as well as to broadcast their own TV and radio programmes, as well as to receive state funding for various projects, inter alia, in the area of education, culture, and youth programmes.[15]
Criminal proceedings cannot be restricted to the use of an official language. Authorities in such proceedings must ensure that individuals are informed in a language they understand of the nature and cause of criminal charges against them and for the reasons in case of their arrest. (See *promptly informed of reasons for arrest and charges if any*). They are also entitled to assistance in terms of trial proceedings so that they are defend themselves and participate in the trial ‘in full equality’ in a language they understand.[16] (See *free assistance of interpreter*).
Language restrictions affecting linguistic minorities or indigenous peoples may be in breach of Article 27 of the ICCPR which provides:[17]
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to these minorities shall not be denied the right, in community with the other members of their group, to … use their own language. (See *practice and develop culture, language, religion, traditions and customs*; *learn mother tongue or have instructions in mother tongue*).
Where a language is only used in a small part of a country, and an individual is prevented from living there and to therefore have access to his or her culture and language, this constitutes a denial of the right to use their own language in community with the other members of their group.[18]
Additional references
M Nowak UN Covenant on Civil and Political Rights – CCPR commentary (2005)
G Pentassinglia Minorities in International law : An Introductory study (2002)
P Thornberry International law and the rights of minorities (1993)
[1] CESCR General Comment 21 para 15(a). See also CoE Framework Convention for the Protection of National Minorities art 10.
[2] Ballantyne, Davidson, McIntyre v Canada, communications 359/1989 and 385/1989 (HRC 1989) para 11.3.
[3]HRC General Comment 18 para 13; OSCE Guidelines on the use of Minority Languages in the Broadcast Media principle III; Ballantyne, Davidson, McIntyre v Canada, communications 359/1989 and 385/1989 (HRC 1989) para 11.4.
[4] Ulusoy and Others v Turkey application 34797/03 (ECtHR 2007) para 53.
[5] Ekin Association v. France application 39288/98 (ECtHR, 2001); Report of the independent expert on minority issues, Mission to Viet Nam, A/HRC/16/45/Add.2 (2010) para 45.
[6] HRC Concluding Observations: Dominican Republic, CCPR/C/79/Add.18 (1993) para 7. See also OSCE Guidelines on the use of Minority Languages in the Broadcast Media art 10,
[7] OSEC Guidelines on the use of Minority Languages in the Broadcast Media (2003) art 12.
[8] Ballantyne, Davidson, McIntyre v Canada, communications 359/1989 and 385/1989 (HRC 1989) para 11.4.
[9] Lopez Alvarez v. Honduras, decision of 1 February 2006, Series C No. 141, paras 164-174.
[10] Raihman v Latvia, communication1621/2007 (HRC 2010) para 8.2.
[11] Mehmet Nuri Özen and Others v Turkey applications 15672/08, 24462/08, 27559/08, 28302/08, 28312/08, 34823/08, 40738/08, 41124/08, 43197/08, 51938/08 and 58170/08, (ECtHR 2011) para 60. Compare Senger v Germany, application 32524/05 (ECtHR 2009) (admissibility) where the Court held that the authorities’ decision to stop letters in Russian from being sent to an inmate constituted an interference which was necessary for the prevention of disorder and crime, taking into account the fact that both the applicant and the authors of the letters were fluent in German.
[12] Güzel Erdagöz v Turkey application 37483/02 (ECtHR 2008)
[13] Diergaardt et al v Namibia, communication 760/1997 (HRC 2000) para 10.10.
[14] See also CESCR Concluding Observations: Libya, E/C.12/LYB/CO/2 (CESCR, 2006) para 41.
[15] CRC Concluding Observations: Romania, CRC/C/ROM/CO/4 (CRC, 2009), para 95.
[16] ICCPR art 14(3); ECHR arts 5(2) & 6(3), ILO Convention 169, art 12.
[17] See also Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities art 2; CoE Framework Convention for the Protection of National Minorities art 9, Declaration on the Rights of Indigenous Peoples.
[18] Lovelace v. Canada, communication R.6/24 (HRC 1981) para 15.