Gabriel Mitablinda

Over the past few weeks, the European Convention on Human Rights and its Court have been at the centre of discussions. On 22 May 2025, nine European states (Austria, Belgium, Czechia, Denmark, Estonia, Italy, Latvia, Lithuania, and Poland) issued an open letter expressing concerns about the Court's caselaw on migration and asylum. The letter states that the ECtHR has interpreted  and applied the Convention in an extensive manner, beyond the intention of the Contracting parties. This interpretation of the Convention limits the ability of the signatory states to effectively tackle illegal migration. In the letter, the signatories ask, for the ECtHR to allow for less stringent standards when it comes to the deportation of illegal migrants from their territories. Currently, Article 3 of the Convention protects persons from being deported to countries where they might face inhuman or degrading treatment.
Shortly afterwards, Alain Berset, the Secretary General of the Council of Europe, issued a statement welcoming discussions on reforms, but also expressing concerns about interfering with the independence of the Court. In his words, quite simply, the Court cannot bend to political cycles.
In this short post, I will highlight how these recent events could affect the EU’s accession to the Convention. Although there are no obvious connections between these developments and the accession, I believe that the current dynamics could have significant implications and potentially delay the EU's signing of the Convention even further.
Firstly, it is worth noting that the open letter does not refer to countries quitting or dismantling the convention system. While the United Kingdom did not sign the letter, more concerning discussions about its withdrawal from the Convention are taking place at an official level. Rather than quitting the Convention system, as the UK considers doing, the signatories of the letter want to initiate changes to it. Secondly, the signatories of the open letter reaffirm their commitment to the Convention system and to human rights, albeit in their own way and on their own terms.
The letter ends with following line…”And our countries will cooperate to further this ambition“.
One thing is certain from the language of the letter, the signatory countries are committed to achieving their goal. If discussions on reforming the convention system intensify, it is more likely that the EU's accession to the convention will not be a top priority for either the EU or the Council of Europe. The EU would rather wait for the reform to be completed before signing the Convention.
The main topic of the open letter is the issue of migration, which is also one of the main issues for the EU’s accession to the Convention. The application of the Convention's standards in migration cases to the EU and its Member States has created tensions between the two legal systems. The outcome of this initiative and the prospect of a potential reform will certainly be watched closely by the Luxembourg Court.
On the other hand, if the call for reform does not gain momentum, the signatory states can obstruct the EU’s accession to the Convention via the Council of Ministers. The letter is signed by nine heads of government of EU member states that hold significant influence in the Council of Ministers. Hungary and the Netherlands did not sign the open letter, but similar views are being expressed by their top politicians. More recently the Dutch governing coalition fell apart over migration and asylum policies. Regardless of this, the letter was signed by a 1/3 of the EU member States, with signs that more states share similar views. The question now is whether these developments will spill over in the EU’s internal affairs, and how far are these states willing to go to achieve their aim.  For example, they can obstruct the Council of Ministers from adopting a decision on the EUs accession to the convention until their demands or concerns are addressed. The intersection of these two issues is more likely to lead to a blockade…
Further delaying the prospects of accession is certainly not in the Council of Europe's interests. Since Russia was kicked out of the Council of Europe in March 2022, the budget of the Council of Europe lost one of the big contributors. The EU’s accession to the Convention would make the EU an important contributor to the budget of the Convention system. The conditions rules for contribution are set out in Article 9 of the 2023 Draft Accession Agreement, which awaits to be sent to the Court of Justice of the European Union for review.
In April 2025, the Parliamentary Assembly of the Council of Europe adopted resolution 2601, urging the acceleration of the accession process. However, no significant developments have taken place since the adoption of the new Draft Accession Agreement in 2023. The ball is in the EU’s court, but the EU is procrastinating over taking a decision. This is despite important developments taking place in the CFSP area following the CJEU's decisions in cases C-29/22 P and C-44/22 P KS and KD. The CJEU decided that it has jurisdiction to hear complaints related to the CFSP area, if those complaints do not concern political and strategical decisions taken by the EU institutions. This new approach creates a new layer of protection for those affected by human rights violation which result from decisions and actions taken under CFSP. At the same time, the standard for protection under the CFSP is getting closer to the standards of the Article 13 of the European Convention on Human Rights, which requires that victims of human rights violations to have access to an effective remedy. Since this issue was left unaddressed by the 2023 DAA, the EU took responsibility for resolving it internally. According to the 2023 DAA, the EU must notify the Council of Europe of any developments on this topic. However, the EU has yet to notify the Council of Europe about these recent cases. It remains unclear whether the EU intends to expand the jurisdiction of the CJEU over the CFSP area by amending the treaties or adopting a new protocol on this issue. The positions of the Commission and of the EU member states expressed for the KS and KD cases, do not hint in any way to this option.
In conclusion, the open letter could be used to further delay the EU's accession to the Convention. In the worst-case scenario, the states that signed the letter could weaponize their votes and delay or prevent the Council of Ministers from approving the accession instruments. However, before the Council of Ministers is called to approve the EU’s accession to the Convention, the Commission must ask for an opinion from the Court of Justice of the European Union. This request has not yet been made, and it is unclear when it will be made. In any case, further delays to accession or the politicisation of the process are further evidence of the rule of law crisis within the EU. This crisis is characterised by the failure of EU institutions and EU states to uphold Article 6 TEU, which expressly calls for EU accession to the Convention.
Needless to say, this is yet another call for the reform of the convention system. Some European states do not agree with the Court's methods and want to push for changes. The concerning trend is that more states blame their problems on the safeguards they put in place decades ago, to limit their powers and prevent abuses. It is highly unlikely that this “ambition”, as they call it, can be addressed quickly. Such reforms, which affect the core of the Convention system, require caution and careful consideration. Nevertheless, such developments must be monitored closely to understand their true implications for the European human rights protection system as a whole.

In September 2023, the European Court of Human Rights (the Court) delivered the judgment Valiullina and Others v. Latvia in which it analysed the compatibility of the ongoing Latvian education reform with the Convention. The judgment raises many questions because it approves measures that restrict the rights of the Russian minority in Latvia to benefit primarily from education in their own language. The judgment stands in stark contrast to evolving international human rights standards, which recognise the right of minorities to benefit from education primarily in their own language. The Latvian language, upheld as a fundamental constitutional value, prevailed over the right of minorities to education. The national context played a crucial role in the ruling. This blog post looks at the most problematic aspects of the judgment.

Background of the case
It is no secret that the Latvian government is not very enthusiastic about the Russian minority living in Latvia. Latvia has a history of such restrictive measures against Russian ethnics. First, they introduced strict citizenship requirements that made it very difficult for Russian ethnics to obtain citizenship, rendering most of them stateless. Second, a separate pension system was introduced for non-citizens. The scheme affected negatively mostly Russian ethnics who didn't have Latvian citizenship. The pension system was declared compatible with Article 14 of the Convention in the case of Savickis And Others V. Latvia (see this comment by Panzeri). This time, the right to education of the Russian minority comes under fire.
In 2018, the Latvian government decided to abolish the educational programmes for minorities, which allowed Russian ethnics to study a larger part of the curriculum in Russian. A new legislative reform introduced a percentage requirement for mandatory classes to be taught in Latvian. For grades 1 to 6, at least 50% of lessons must be taught in Latvian, for grades 7 to 9 at least 80%, and for upper secondary schools 100%.
According to the Latvian government, the reform is dictated by the need to reverse the Russification policy implemented during the Soviet occupation. The suppression of the Latvian language and the promotion of Russian by the Soviet regime resulted in a linguistically segregated education system. The government argued that the reform aimed to remedy the effects of segregation in the education system and to restore the use of Latvian, the only national language recognised by the Latvian Constitution.
The reform was challenged in Strasbourg by permanent residents and citizens of Latvia who identify as ethnic Russians. The applicants, parents of children studying in Latvian state schools, argued against the reform. They objected to the new quotas because they restricted their existing minority right to be educated primarily in their mother tongue.

Constitutional values and identity versus minority rights
The Latvian Constitutional Court played an important role in this case. In 2019, the Constitutional Court issued a judgment that fully approved the reform. The reform was analysed against the right to education under Article 112, minority rights under Article 114 and the principle of non-discrimination under Article 91 of the Latvian Constitution.
When asked whether the reform restricted the right to education of Russian ethnic groups, the Constitutional Court ruled that the right only covers access to education, not the right to choose the language of instruction (§46). If the choice of language is contrary to the aims of the education system to develop mental and physical potential and to become a member of Latvian democratic society. The Constitutional Court implied that studying a larger part of the curriculum specifically in Russian prevents students from achieving the objectives of the education system. On minority rights, the Constitutional Court ruled that the rights of minorities can be restricted if they don't participate in public life and don't respect constitutional values. It added that even international standards on minority rights, which are binding on Latvia, must take into account the national constitutional system and the privileged status of the Latvian language (§ 52). The Constitutional Court ruled that the reform does not discriminate against students of Russian ethnicity because they are not in a comparable situation to Latvian students who study in the language protected by the Constitution. Nor can Russian ethnic students be compared with Latvian students studying in an EU language, since the promotion of EU languages follows from the preamble to the Constitution. (§ 50).
In short, the Constitutional Court has shown that minority rights have no chance against the constitutionally protected Latvian language. The Russian language cannot be compared to other EU languages, as the constitution accepts the promotion of official EU languages. The Constitutional Court's ruling has little regard for minority rights and places great emphasis on the Latvian context and the constitutional status of the national language.

No room to protect Russian ethnics under the European Convention of Human Rights
The Court's reasoning was similar to that of the Constitutional Court, at least for the parts concerning the right to education and minority rights.
The Court rejected claims that its jurisprudence had evolved to cover the right to education in a language of choice. In doing so, the Court did not take into account the specificities of the case and the core issue concerning minority language rights. The Court reaffirmed the general rule that Article 2 of Protocol 1 to the Convention protects the right to education only in the official state language. This interpretation of Article 2 of Protocol 1 was given more than 50 years ago in the Belgian Linguistic Case, and the Court refused to make an exception for minorities (§125). The Court ruled that there was no reason to extend the scope of the article because neither the case-law nor the law had developed to cover access to education in a particular language (§134). On the basis of its case-law, the Court rejected claims that the cases of Catan and Others v. Moldova and Russia and Russia and Cyprus v. Turkey had extended the scope of the right to education (§132).
The applicants referred to the development of the right to education of minorities and presented the Framework Convention for the Protection of National Minorities, adopted in 2005 by the majority of the members of the Council of Europe, including Latvia. The Framework Convention sets uniform standards for the protection of minorities, including the right of minorities to benefit primarily from education in their language (Art.14). The Court considered that the Framework Convention gives states a wide margin of discretion in determining the extent of linguistic rights of minorities in the field of education (§134). The Court also implied that the right to education for minorities has not evolved, but when confronted with the provisions of the Framework Convention, has chosen to deny their applicability.
The Court referred to the opinion of the Venice Commission, which broadly accepted the legislative amendments. However, the Venice Commission stated that the reform did not strike a fair balance between protecting the language rights of minorities and promoting the state language (p.120). The Venice Commission also stressed that minorities should have access to higher education in their own language. The Court ignored these arguments.
Contrary to the Constitutional Court, the Court concludes that Latvian and ethnic Russian students are in a similar situation (§194). However, the legitimate aim of promoting the national language justifies the difference in treatment (§201). A difference in treatment alone does not amount to discrimination. The wide margin of appreciation, and the lack of consensus concerning minority rights to education, allows for any measures as long as they are not arbitrary (§208). The Court argued that the measures introduced are not arbitrary and were proportionate because they didn't completely remove the possibility of studying Russian. The Court then claimed that the applicants had failed to prove that the reform would prevent them from learning Russian or preserving their national identity (§180). This reasoning sets a very low threshold for the protection of minority language rights under the Convention. The judgment of the Court does not fit the current sate and evolution of minority rights.

Conclusion
Countries that gained their independence after the dissolution of the Soviet Union, continued to have Russian ethnics as citizens or residents, and Russian continued to be used on a regular basis. The trend is reversing, in many post soviet countries the use of Russian, amongst both Russian and non-Russian ethnics, is constantly declining, including in Eastern Europe and in central Asia. The Latvian government wants to accelerate this process, by limiting the possibility of Russian ethnics to study in Russian.
Constitutional values and principles are the main tools used to justify the limitation of rights of minorities. On the other end, the Court blessed the restrictions and refused to intervene, hiding behind the margin of appreciation rule. The judgment and the whole case have very little regard for minority rights. This low threshold for the protection of minority language rights under the Convention, does not fit the current evolving understanding of minority rights.