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Identifier et catégoriser les langues minoritaires en Europe

 | 
Joan Busquets
, 
Sébastien Platon
, 
Alain Viaut

L'exemple germanique entre héritage et européanisation notionnelle

Language Rights in Austria: Law in the Books and Law in Practice

Les droits linguistiques en Autriche : la législation dans les textes et dans la pratique

Joseph Marko

Résumé

Les contextes historiques, les idéologies et doctrines qui ont marqué l’Autriche au XXe siècle permettent d’expliquer l’évolution des droits linguistiques de ce pays. Depuis 1920, avec l’adoption de la Constitution, l’allemand est déclaré langue officielle, ce qui fait de tout usage d’une autre langue une exception à la règle. D’un modèle pluri-ethnique, l’Autriche adopte alors celui d’État-nation mono-ethnique. En conséquence, comment sont considérées les minorités linguistiques ? Doit-on parler en termes de nationalités ? De quels droits disposent-elles ? Qui peut prétendre à l’enseignement en langue maternelle ?
Aujourd’hui, de nouvelles minorités issues de l’immigration s’affirment à travers le pays. Aussi, les langues minoritaires, jusqu’alors identifiées et protégées sur des territoires précis, se délocalisent vers d’autres régions : nombreux sont les locuteurs de ces langues qui ont quitté leur région pour rejoindre les villes. Une révision de la catégorisation des langues en usage en Autriche et des protections juridiques dont elles devraient bénéficier est nécessaire à l’échelle nationale et doit prendre en compte ces nouvelles minorités linguistiques et la délocalisation des langues minoritaires déjà recensées.

Texte intégral

1Any problem-oriented description of the regulation of language rights in Austria has to begin with the description of the fragmentation of legal sources and its consequences for a contextualized analysis of these rights.

  • 1 The full text of this Article can be found in Edmund Bernatzik, Die österreichischen Verfassungsge (...)

2Basically we can distinguish three historic layers for the regulation of language rights. First, Article XIX of the “Basic Law on Fundamental Rights of Citizens” (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger, in the following: StGG) as part of the so-called December constitution of 1867 became the “Grundnorm” (fundamental law) for the protection of language rights in the “Austrian” part (Cisleithania) of the Habsburg monarchy. Paragraph 1 of this Article guarantees to every “Volksstamm” (“Nationality” respectively ethnic group”) the “unalienable right for the preservation and promotion of its national identity and language”. Paragraph 2 then provides for the (collective) “equality of all languages in use in the crownlands in schools, the civil service, and public life”. Finally, paragraph 3 requires the authorities of the crownlands to organize public education in a way that “any of the Nationalities gets the necessary means for education in its language, without however, the use of any force to study a second language in use”1.

  • 2 For a discussion of the underlying legal principles of this model see Marko, “The Law and Politics (...)

3Since the Austrian part of the Habsburg monarchy was–demographically and linguistically seen – composed of a number of bigger and smaller language groups which lived together territorially intermingled, Article XIX set the constitutional structure for a pluri-ethnic empire in contrast to the model of a multi-national state as this is the case with Switzerland or today’s Belgium based on language groups living together in territorially concentrated regions. The “Grundnorm” of the legal construction for pluri-ethnic state formation can be seen from the very first paragraph of Article XIX which provides first for the collective equality of “nationalities” (in contrast to the notion of “peoples” or “nations” which claim a right to form their own independent state) and, second, the right for each and every “nationality”–regardless of its size in terms of membership – to have its language and identity protected and fostered by the state. The constitutional structure thereby created is based on two fundamental political principles and legal functions which allow for the living together of culturally diverse groups in one state, namely autonomy (instead of territorial separation and/or political independence) and integration (instead of assimilation or institutional segregation). At the same time, however, the constitutional structure of pluri-ethnicity established by Article XIX paragraph 1 must be seen in light of the alternative model of the (ethnically homogenous) nation state formation and the political principles and legal functions following from this model to be able to assess the following controversies in political and legal discourse on minority rights protection in Austria until the very day2.

  • 3 See Stourzh 1980 who refers to the astonishing fact that this could mean in practice a share of no (...)

4Hence, already when paragraphs 2 and 3 of Article XIX specify the constitutional structure of pluri-ethnicity, this goes not without inconsistencies due to political squabbles from the very beginning against the model of pluri-ethnicity. Paragraph 2 provides also for the collective equality of “landesübliche Sprachen” (“languages in use in the crownlands”), which is not identical with nationalities based on language groups and must not be confused therefore. The qualification “landesüblich” (“languages in use”) is, of course, requiring a legal determination to make the promise of collective equality legally operational, i. e. applicable by courts and administrative authorities. And every determination of a linguistically vague concept becomes by definition a restriction in practice. Nevertheless, the Administrative Court of the Habsburg Empire established in a very minority-friendly interpretation that even a minority population of a town as an administrative unit and not only at the level of crownlands entitles to the constitutional guarantees following from Article XIX paragraphs one and two3.

  • 4 The best historic overview is given by Stourzh 1985.

5The text of Article XIX paragraph 3 providing for the right to public education in the mother-tongue was, however, contested from the very beginning by the German speaking political elites in Bohemia who feared that their children could be forced to study Czech, if a bi-lingual primary educational system were established in order to guarantee the right to mother-tongue education4. Hence, due to their successful lobbying, the text of this paragraph from the very beginning prohibited any “force” (Zwang) in the study of “landesübliche Sprachen” so that a bilingual educational system could be established only with the consent of the parents as legal representatives of their children. In effect Bohemia became the legal and political battlefield against institution-engineering on behalf of pluri-ethnicity from the middle of the nineteenth century on.

  • 5 See the Explanatory Report for the draft law on the republican form of the state, Stenographic rec (...)
  • 6 See for this historic background: Thornberry 1991: 38-52.
  • 7 Published in Staatsgesetzblatt (Official Gazette), 1920/303.

6Empire immediately after the end of World War I and the establishment of the Republic of German-Austria in November 1918, an entirely new context is created. The political elites from all ideological camps, not only the liberal and German-national camp, understood Austria as a second German nation state5 as can be seen from the name given to the newly created Republic – “Deutsch-Österreich” (German-Austria) – and the will to politically unite with the German Reich, even implemented through referenda in the provinces of the Tyrol and Salzburg. However, with the Peace Treaty of St. Germain 1919, both elements in the self-identification with the German nation were prohibited in terms of international law. Austria had to rename itself into “Republic of Austria” and also an Anschluss to Germany was expressly prohibited. Since the Allied Forces were, of course, aware of the murderous potential of nationality conflicts in the newly formed nation states of Central, East central and South east Europe, a legal regime for national minority protection was incorporated into the Peace Treaty with Poland providing the model for all other Peace Treaties, including the Treaty of St. Germain6. Articles 66 through 68 of this Treaty7 provide for the following linguistic rights which are of interest here:

  • Article 66 paragraph 3 provides for the “free use of any language in private affairs or business, in religion, media or any type of publications or in public assemblies”.
  • Article 66 paragraph 4 allows in form of a notwithstanding clause the “adoption of an official language”, but “Austrian citizens with non-German mother tongue” have to be granted “adequate relief in the use of their language, spoken or written, before courts”.
  • Article 67 grants those Austrian citizens the right to establish schools and other educational facilities “with the authority to use their own language according to their discretion…”;
  • Article 68 obliges the Austrian government “with regard to public education, … to offer adequate relief in those cities and districts with substantial numbers of Austrian citizens who do not speak German in order to guarantee that the children of these citizens are given instruction in their own language in primary schools…”

7As one immediately can recognize, the context of a pluri-ethnic empire is now replaced by the context of a national state based on a new amalgamation of ideological principles stemming from political liberalism on the one hand, and ethno-nationalism instead of “liberal nationalism” (Tamir 1993) on the other. Collective equality of groups is replaced by individual equality before the law. Nevertheless, there are two categories of citizens: “Austrian citizens without distinction…” (Article 66, para 1) and “Austrian citizens with non-German mother tongue…” (Article 66, para 4). “In private” affairs there is indeed no differentiation made in terms of enjoyable rights (Articles 66, para 3 and 67), whereas the text of Article 68 with regard to public education is revealing: “The Austrian government will offer adequate relief…”. So what is the meaning of “adequate relief”? Why and what is “relief” necessary for?

8@The answer can already be “imagined” from the text of the notwithstanding clause of Article 66, para 4: “Notwithstanding the adoption of an official language by the Austrian government,…”. Neither France as the model for the ethnically indifferent, “civic” nation state, nor the Habsburg Empire based on the model of pluri-ethnicity, could and can declare one, single language the official language of the respective state without violating their ideological premises: if the state is either ethnically “indifferent” or “pluralistic”, its actions cannot be based on one language as “neutral” language of communication in the exercise of state authority in the field of, for instance, administration or education. This is not only a contradictio in adjecto. The introduction of a single “official” language is, of course, an important instrument in the dialectic of (mono-ethnic) nation-building and minority rights (Kymlicka 2002) driven by linguistic homogenization (Weber 1976). The political effect aimed at, is thus assimilation into the “majority”-nation which identifies itself with the respective state. Hence, minority protection as “adequate relief” must be understood as a tool which should help the “necessary” process of adaptation to the majority culture including language. So when the constitution of the Republic of Austria was finally adopted in 1920, the Austrian government made use of the notwithstanding clause by declaring German the official language of the Republic in Article 8. This declaration has, of course, not only a legal meaning in the sense that the use of any other language than German in official dealings of the state authorities must be seen as an exemption from the rule requiring a specific legal authorization, but also conveys the shift of the paradigm from the constitutional model of pluri-ethnicity to the mono-ethnic national state.

9What this meant in practice, can be seen from my own family history. My grandfather, having been educated in both Slovene and German in a public primary school in the southern part of the province Styria, which had been a bi-lingual region at the end of the nineteenth century, never conveyed the Slovene language to his children in primary socialization since Slovene was already considered an “inferior” Slav language at that time due to the nationality conflicts in the Habsburg Empire. Immediately after World War I, based on the concept of a second German national state, all bi-lingual schools in this region were transformed into schools with only German as language of instruction. Within a decade then, the new state border of the Republic of Austria with the newly founded Kingdom of Serb-Croats-Slovenes (SHS), renamed into the Kingdom of Yugoslavia in 1927, became also the linguistic border line since also the SHS state pursued a policy of linguistic assimilation.

10The end of World War II in 1945 and the Peace Treaty concluded by Austria and the Allied Forces in 1955 leading to full political independence of Austria did not change the paradigm, since not the concept of the (ethnically homogeneous) nation state, but totalitarian rule versus democratic government within the nation state was seen as the problem dividing the globe into “western”-style democracy and “Eastern authoritarian regimes”. Hence, the internationally driven legal system of minority protection in Austria was not changed by Article 7 of the so-called State Treaty of Vienna concluded in 1955 (in the following: StVW), guaranteeing language rights in public education and the use of minority languages vis-à-vis state authorities to the “Slovene and Croat minorities” in Austria on demand of the Socialist Federal Republic of Yugoslavia (SFRY) and the USSR as parties to this international treaty together with France, Great Britain and the US.

  • 8 Since the German text of the StVW, published in the Official Gazette, is only a translation, I hav (...)

11More specifically, Article 7, paragraph 2 StVW provides for “the right to primary education in Slovene and Croat language and to a proportional number of their own grammar/secondary8 schools” in the provinces of Carinthia, Burgenland and Styria. This territorial restriction must be concluded from the reading of the text in conjunction with paragraph 1. Article 7, paragraph 3 then declares that:

in addition to German, the Slovene and Croat language are permitted as official languages in the administrative and judicial districts of Carinthia, Burgenland and Styria with … mixed population. In those districts topographical indications will be displayed both in Slovene or Croat and German language.

  • 9 For a detailed analysis of the development of minority education in Carinthia see the respective c (...)

12To a certain extent, however, history repeated itself9. Due to the strong political pressure – with the claim to cede the southern part of the province of Carinthia to Yugoslavia – immediately after 1945, the regional government in the province of Carinthia had agreed to re-establish a bilingual primary school system in those areas which were considered the historical settlement areas of the Slovene minority with the consequence that all pupils at the age of six to nine were obliged – on the basis of this application of the territoriality principle - to study also the Slovene language. After the State Treaty 1955 had been signed and ratified, however, parents were politically mobilized by German-national non-governmental organisations to protest against the legal “force” to study Slovene. Finally, in 1959 the federal law on minority education in the Slovene language in Carinthia abolished this “force” by introducing the requirement for parents to “enrol” their children at the beginning of each school year into special classes for Slovene mother tongue education with the effect that classes in primary schools became organizationally segregated into classes for pupils with only German as language of instruction and classes for bi-lingual education in both Slovene and German. A closer look into practice in the next chapter will reveal that the rights guaranteed under Article 7 StVW were thus interpreted and applied in the spirit of “adequate relief” leading to assimilation.

  • 10 Published in BGBl (Official Gazette) I 2000/68. The following English text is a translation by the (...)

13Finally, a possible change of the paradigm – yet to be tested in legislation and practice – can be seen in the amendment of Article 8 of the Federal constitution, adopted in 200010. Through this amendment a second paragraph was inserted into Article 8 which reads as follows:

The Republic (Federation, Länder, municipalities) recognizes its traditional linguistic and cultural diversity which is represented by the autochthonous ethnic groups. The language and culture, existence and preservation of these ethnic groups have to be respected, safeguarded and promoted.

  • 11 For an account of the legislative history see Marko, “Kommentierung des Art 8 Abs 2 B-VG”, 2008.

14After four members of the Roma community living in the province of Burgenland had been killed in a bombing attack in 1995, the Green party represented in parliament made the first proposal to amend the constitution. In the following political debate, two different concepts became visible behind the draft texts for the constitutional amendment. The Green party and one of the organisations representing the Slovene minority in Carinthia11 argued for a total shift of the constitutional paradigm since the traditional “defensive” concept of minority protection after 1945 – in their eyes – remains within the logic of the ethnic nation-state concept and only cements ethno-national identities and does neither stop ethnic conflicts nor assimilation in practice. Hence, they argued for the replacement of the “founding myth” as second German nation-state constitutionally established by the “official language” provision of Article 8 of the Constitution as the “Grundnorm” of the ethnic nation-state, namely the constitutional differentiation into the ethnic nation and “others”, in reality thereby into majority and minorities. It remains to be seen, however, whether and insofar the symbolic reestablishment of the concept of a pluri-ethnic state and society will be more effective in the future against the assimilation trends stemming from industrialization and urbanization.

15In conclusion, we can distinguish three forms of linguistic rights and obligations under the Austrian constitutional system after 1918 within three different historic and paradigmatic contexts:

  • The (absolute) freedom to use any language in private affairs by any Austrian citizen which was established already in 1919 by the Treaty of St. Germain (in Swiss German and legal terminology “Sprachenfreiheit”);
  • The obligation of any Austrian citizen and the state authorities to use German as “official language” in the dealings of the legislature, executive and judiciary and as language of instruction in public education based on Article 8 of the Austrian constitution;
  • The right of Austrian citizens who are members of ethnic groups and the corresponding obligation of state authorities to use minority languages also in public affairs as an exemption from the rule above established by the provisions of the Treaty of St. Germain and the State Treaty 1955.

16The fragmentation of legal sources according to the respective historic context and different conceptualizations have thus created two basic structural problems which have to be taken into consideration with their problems of interpretation and application according to the different conceptual mechanisms discussed above:

  • First, what is a “linguistic minority”? Is there a legal difference following from the notions of “nationality”, “minority”, and “ethnic groups” or “autochthonous ethnic groups” (Volksgruppen)? Are members of so-called “new minorities” stemming from immigration thus excluded from linguistic rights irrespective of being citizens or not?
  • Second, who are the “bearers” of linguistic rights as this is called in constitutional doctrine or, in plain language, who is entitled to make use of the guaranteed linguistic rights? Only individual citizens as members of ethnic groups or also the groups themselves?
  • 12 I have tried to present this neo-institutional and contextual methodological approach trying to ov (...)

17The responses to both of these structural problems do not simply follow from the text of valid positive law, but from the doctrines established by the ideologies of liberalism and nationalism and their different mix. Hence, the case-law, presented in the next chapter as demonstration, how the various rights and obligations established by the various historic constitutional layers are implemented in practice, cannot only be analysed legal-dogmatically with the traditional legal methods of interpretation, but must also be critically analysed in light of these ideological doctrines themselves in order to understand the underlying structural determinations of positive law12.

Linguistic rights in practice: the case-law of the austrian Constitutional Court

The private/public distinction

18First of all, an important structural difference with regard to the private/public distinction becomes visible through a comparison of the texts of Article XIX paragraph 2 StGG and Article 8, paragraph 1 of the Republican constitution including its legal reservation with regard to the minority rights guaranteed by the Treaty of St. Germain. As already mentioned above in terms of a typology of rights, the legal structure of the entire normative system for linguistic rights is based on a dichotomic differentiation between – theoretically – absolute freedom to use any language in the private sphere on the one hand, and the rule-exemption structure with regard to the obligation to use the official language or the right to use minority languages in the public sphere which is – by doctrinal definition – identical with all actions of the state vis-à-vis individuals and legal persons including not only the use of the official or minority languages in all communications with the authorities of the state administration, judiciary and self-government, but also in the public education system.

19In stark contrast to this dichotomy, Article XIX StGG created a triadic structure as can be deduced from its paragraph 2 which determines the equality of languages “in use in the crownlands” in the “educational system, state institutions and public life (Schule, Amt und öffentlichem Leben)”. Hence, the text of this provision not only breaks up the dichotomy of official versus minority language, but also the dichotomic public/private distinction by differentiating between “(public) educational system”, as can be seen from the interpretation in conjunction with paragraph 3 of this Article, and “state institutions” on the one hand, and “public life” on the other which therefore cannot be identical with state action. Thirdly, private freedoms follow from all the other citizens’ rights guaranteed by the Basic Law itself thereby forming the sphere of “private life”.

20As can be seen from the comparison of the following caselaw on topographical indications handed down by the Imperial Court (Reichsgericht) of the Habsburg Empire – which had already been a specialized court responsible for the protection of “political rights” including the competence to judicial review – and the Constitutional Court established under the Republican constitution, these structural predeterminations can explain the different results in the decisions handed down by these courts with the effect that obviously the triadic structure is much more “liberal” in the sense of “minority-friendly” than the public/private-dichotomy which restricts minority rights in favour of the seemingly ethnically “neutral” majority and “her” official language.

  • 13 These decisions are published in the collection of the Imperial Court’s decisions under the name H (...)

21The decisions of the Imperial Court concern the legal-dogmatic as well as political problem of the meaning of (collective) equality of languages “in use in the crownlands”. Theoretically, there are two possibilities: the member of each “nationality” who speaks one of these recognized languages as mother-tongue has a right to use this language in all three spheres, i.e., private, public and vis-à-vis state institutions which is called “mono-lingual equality”. Or, alternatively, state institutions and public or private associations and their members have to use two or even three recognized languages of this crownland which is then called “bi-lingual equality” (Stourzh 1980: 1077). In two cases the Imperial Court had to deal with complaints of associations of citizens against rulings of city councils in Prague and Celje (a town in today’s Slovenia) which prohibited the use of only German respectively Slovene for topographical indications of the names of streets established by private companies13. In both decisions the Court argued that legal persons enjoy freedom of expression and do have, therefore, legal standing before the Court so that they also enjoy monolingual equality in the use of (recognized) languages. The reasoning based on individual freedom of expression can, of course, not explain the choice for either mono-lingual or bi-lingual equality. It is therefore the indirect reference to “public life”– which had been addressed as legal base of the claims – and the triadic structure with the possibility thereby created to use only one´ s own language also in this sphere which enables to settle the political conflict in favour of mono-lingual equality. In conclusion, only the textual distinction between “state” and “public” and thus the triadic structure enabled the Court’s choice for mono-lingual equality. It is thus the traditional liberal concept of a strict separation and thus differentiation of state and economy which informs the conceptualization and differentiation of “state” and “public life” in the legal text as well as the choice for mono-lingual equality by the judges.

22With the entrenchment of the concept of the (ethnic) nation-state into the structures of the Republican constitution of 1920, liberalism and (civic) nationalism can no longer be reconciled. The legal structures thereby created establish a strict dichotomy of Either – or along the lines of majority/minority and rule/exemption. In effect, as will be demonstrated by the case-law of the Constitutional Court, the dichotomic structure reduces the forms of pluralist choices inherent in the triadic structure and thereby the freedoms entailed for the effective exercise of the minority right to preserve its different cultural identity in the “public sphere”.

23Since the process of state expansion with the establishment of a welfare system in the twentieth century - whereby the state exercises more and more powers traditionally claimed by political liberalism as sphere of “society” where state interventions into freedoms have to be legitimized – goes hand in hand with the use of German as the “official language” for all state actions, a process of “nationalization” of public life takes place which restricts the effective exercise of “other” languages in two ways:

  • First, the liberal approach that state interference into societal freedoms must be justified is turned upside down. Now the political claim for “minority” rights has to be justified on the basis that “the” state – based on the non-democratic, monarchic concept of internal sovereignty – first determines the boundary line between state and society.
  • Second, the use of any “other” language has then to be justified as a possible “exemption” from the rule of the same state as nation-state requiring the use of the official language in those spheres of life which have been claimed before to fall into its “domaine reserve”.

24Thereby, in effect, not only the distinct sphere of “public affairs” is swallowed up by “the” state, but – following the logic of rule adjudication in legal disputes – political claims for the use of “other languages” can be curtailed through the reference to “rationae personae” and “rationae materiae” arguments and problems, i. e. who is entitled to make a claim and whether this claim is based in substance on legally valid rules.

Problems of the personal and territorial scope of application

25When trying to establish whether a person or an organization has legal standing before a court, three – theoretically different, but in practice interwoven – problems can arise in case of minority protection issues when legal rules determine rights or obligations, for instance, in the use of different languages:

  • First, is it necessary and if, how is it then possible to establish whether a person belongs to a minority group?
  • Second, as a general problem of civil law systems, the question is raised whether the respective legal rules confer “subjective” rights on physical or legal persons which they can “defend” against infringements before the court. On the contrary, legal rules might be seen as “objective law” which may contain obligations for state institutions, which can, however, not be enforced by individuals in court litigation even if it is in their “subjective” interest that these obligations are implemented.
  • Third, do the respective legal rules confer “subjective” rights only on individuals or do they also recognize groups and thereby establish some sort of “group rights”?

26With regard to the first problem of what “is” a minority and who belongs to a minority, there are two theoretical possibilities for legal regulation: either by reference to so-called “objective” criteria such as a particular language in legal definitions or by allowing individuals to make a “subjective” declaration. In the first case, administrative authorities or courts always have to check whether persons who make legal claims on the basis of minority protection provisions do have legal standing, i. e. whether they meet the “objective” criteria of the legal definitions rationae personae. In the second case, every person who claims the protection of a right is by definition legally entitled to do so because the claim as such must already be seen as “subjective” declaration. In effect the “subjective” approach is more “minority-friendly” since there can be no authoritative questioning of the belonging to a minority group and thereby assimilationist pressure created by the authorities.

  • 14 See the respective decision published in the collection of the decisions of the Administrative Cou (...)

27If none of these two ideal-typical possibilities is clearly regulated by law as this was the case in the legal system of the Habsburg Empire, the courts have to create their own approach. In so doing, the Administrative Court recognized from the very beginning that the knowledge of a language does not automatically include the “subjective” declaration to belong to a “nationality” so that it concluded: “[…] there is no other way, but to ask [the party in the proceeding] which nationality she belongs to and to treat her accordingly14”, in effect excluding any further authoritative questioning of this declaration by, for instance, by testing language skills.

  • 15 See ECJ, C-274/96, JO 1998, I-7637.

28In contrast to the legal system of the Habsburg Empire, Article 7 StVW restricts the exercise of the use of Slovene and Croat as “second” official languages before administrative authorities and courts and as a language of instruction in public education on a territorial basis by referring in paragraph 1 to these minorities as living in the provinces (Länder) Carinthia, Styria and Burgenland. Paragraph 3 of Article 7 then restricts the use of these languages before administrative authorities and courts even further to “districts with mixed population”. This restrictive regulation of minority rights in Article 7 StVW was, however, exercised by the Constitutional Court in a minority-friendly way in order to circumvent the problem of determination of the legal standing of minority members rationae personae in a similar way as the Imperial Administrative Court by declaring already in case VfSlg 11.585/1987 that “everybody who wants to use a minority language in a legal procedure in the territories determined by Article 7, can do so without any further evidence for his belonging to a minority”, since this interpretation would comply with the “basic idea of minority protection, not to have an obligation to give evidence of his or her belonging to a certain minority in every procedure as this could have a discriminatory effect”; In the following case VfSlg 12.836/1991 the Court then clarified that “everybody” has to be understood in the meaning of “Austrian citizen”, but the European Court of Justice has meanwhile ruled out in the cases Bickel and Franz in 199615 that also European citizens who speak the respective minority languages can make use of these languages in legal procedures, if this is foreseen in national law for minority members.

  • 16 BGBl (Official Gazette) 1994/641.
  • 17 BGBl (Official Gazette) 1959/101.

29With regard to the use of Slovene or Croat as languages of instruction in public education according to Article 7 StVW, the legal regulations for the two Länder Carinthia and Burgenland in implementation of the vague provisions of the State Treaty differ. Paragraph 1 of the Federal Law on Minority Education for Burgenland16 simply repeats the “right of every Austrian citizen belonging to the Croat or Hungarian ethnic group to use these languages as languages of instruction or to study these languages in Burgenland”. Paragraph 7 of the Federal Law on Minority Education for Carinthia17 provides that “every pupil” – regardless of his or her belonging to the minority group – “has the right to use Slovene as language of instruction or to study Slovene in those territories determined by this law”. Moreover, both laws determine that pupils cannot be forced to make use of the minority languages against the will of their legal representatives. These implementing provisions thus beg the question who is “really” entitled to study a minority language or to claim mother-tongue education through mono-lingual or bi-lingual education? In particular, is this in reality a “parents’ right” to determine the language of instruction in schools and thereby the need to establish either mono-lingual or bi-lingual classes in schools or such schools so that the parents decide “on behalf” of their children, but possibly against their will or “objective, best” interest which is usually foreseen as a “general” provision in civil law codes for the education and legal representation of children?

  • 18 See Supreme Court, 14 March 1979, 1 Ob 528/79.

30The case-law of Austrian High Courts in determination of these problems has a mixed record. After a child had been taken away from her mother and put into a community home in a monolingual German environment, the Austrian Supreme Court (for Civil and Criminal Affairs) already ruled in 197918 in a very minority-friendly way that it is in the best interest of a hitherto bilingually educated child to be educated in her mother-tongue for her further development so that it is able to make use of the constitutionally guaranteed language rights in the future. It thus follows from this decision and a similar argumentation of the Constitutional Court in case VfSlg 12.245/1989, that not parents, but children are the “bearers” of the educational rights in the meaning of the right to mother-tongue education: “Every child who belongs to the Slovene minority in Carinthia, has an unalienable and constitutionally guaranteed right to primary education in her mother-tongue for her further development” (emphasis JM).

31Despite of the fact that parents have to use their parental authority in the best interest of the child’s development, when they act as legal guardians for their children up to the age of 14, the differing systems of the educational laws of Burgenland and Carinthia with regard to the organizational needs for the establishment of bi-lingual classes in primary education reveal the different possibilities for the effective mobilization and exercise of societal assimilative pressure. In order to be able to establish the necessary bi-lingual classes, school authorities theoretically have to know the number of children who want to make use of their right to mother-tongue education. So parents have to register their children for the attendance of such classes. However, in Burgenland all primary schools in the settlement areas of Croats and Hungarians were run bilingually for decades so that there is no particular registration required until the very day. Quite the other way round, if parents or their children want to make use of their “freedom” not to be taught in the minority language, they must make a declaration to be enrolled into classes with only German as language of instruction. Carinthian law, however, requires a registration for the enrolment into bi-lingual classes for every new school year which, of course, offers much more possibilities to put societal pressure on minority parents not to enrol their children for bi-lingual education. So far, this possibility for discriminatory pressure has not been contested before the courts despite of reports giving evidence that this system is in fact responsible for assimilatory pressures and the obvious discontinuity of education in minority languages from the primary to the secondary level.

  • 19 In case VflSlg 16.580/2002 the Court ruled, however, that this does not mean an “institutional gua (...)

32Finally, with regard to the interplay of the personal and territorial scope of application of minority provisions, the Constitutional Court developed more minority-friendly interpretations against administrative practice: in case VfSlg 12.245/1989 the Court ruled out that the territorial restriction of bilingual primary education to the settlement areas of the Slovene minority in Carinthia was not covered by the text of the State Treaty and therefore declared unconstitutional. However, the Court established a new distinction: within the settlement areas every child has now a constitutionally guaranteed right to mother-tongue education or to study the Slovene language without regard to any organizational difficulties19, whereas outside these settlement areas classes or schools with bi-lingual education have to be established only if there is a “need”, i.e. a certain number of children requiring it.

33With regard to the establishment of a 10% threshold for “districts with mixed population” (see below), the Court clarified in cases VfSlg 15.970/2000 and 16.404/2001 that the meaning of “district” does not only comprise judicial and administrative districts as sub-divisions of the Länder, but also any local self-government unit.

34As concerns the second and third category of problems rationae personae, a comparison of the case law of the Imperial Court and the Constitutional Court reveals structural similarities in the political and legal argumentation with contrary results, however, as the effectiveness of minority protection is concerned.

  • 20 A more detailed dogmatic analysis is given in Marko, Artikel 8 Abs 2 B-VG, Rz 18-23.

35Under both Article XIX StGG and Article 7 StVW, political and legal commentators argued that the legal rules established by these provisions cannot directly be applied20. With regard to Article XIX it was argued that these provisions would only entail “a political promise” or normative principles to be specified by future legislation with the effect that only then administrative authorities and courts could implement them as concrete rules. The same argument was made with regard to Article 7 StVW in its character as part of an international treaty and the necessity to transpose the international obligations established by this Treaty into national law. Again it was argued that the provisions of Article 7 are not “self-executing”, i.e. that they cannot be applied by administrative authorities or courts without prior national legislation.

36However, both the Imperial Court and the Administrative Court of the Habsburg Empire as well as the Republic’s Constitutional Court did not follow this argumentation in case of the use of minority languages before administrative authorities and courts and in public education. The Imperial Court simply declared that the provisions of Article XIX paragraphs 2 and 3 are specific enough to be “directly” applied so that it can exercise judicial review in case of violation of these provisions. Hence, the remaining problem for the Court was the “normative character” of “nationalities” and “languages in use in the crownlands” as a problem of individual or group rights.

37Due to the lack of a legal definition of “nationalities” both in Article XIX StGG or implementing legislation – with the consequence that they were not recognized as legal persons with rights or obligations to be exercised by those persons “representing” them – the Imperial Court, but also the Administrative Court, did not dismiss legal claims, for instance, for the establishment of primary schools with the use of the minority language as language of instruction (so-called “Nationalitätenschulen”), but granted legal standing on behalf of children belonging to “nationalities” to their parents or even to the municipal authorities whose representatives were also minority members. This “minority-friendly” legal approach of the Imperial High Courts did, of course, not resolve all conflicts since the political conflict on the establishment of minority schools remained therefore concentrated on the first legal battlefield discussed above, i.e. who “is” a member of a minority and how many members or children of the minority group do you need for the establishment of a minority school.

38However, a striking difference in the case-law of the Imperial Court and the Constitutional Court remains in the field of topographical indications. Whereas the Imperial Court had – on the basis of the triadic structure of Article XIX StGG – even opted for mono-lingual equality in the public sphere in this case, the Constitutional Court totally pre-empted the legal guarantees of the State Treaty in a final turn away from his minority-friendly jurisprudence until 2001 by making use of the dogmatic distinction between “subjective rights” and “objective law” so that in the end nobody(!) – neither individual members of minority groups nor the groups themselves – can claim legal standing in order to enforce the obligations following from the State Treaty 1955 against the political unwillingness of political parties in parliament or administrative authorities responsible to establish bi-lingual topographical indications.

39In case VfSlg 9801/1983 the Constitutional Court had – in line with the switch of the paradigm from assimilation to integration based on the dogmatic approach not to make use of the “historic” method of interpretation, but of the functional method – argued that:

the reason for the lawfulness [of the use of a minority language] as [second] official language according to Article 7 paragraph 3, first sentence of the State Treaty of Vienna is not the incomprehensibility of the official language, but the possibility to preserve and to foster the minority language.

40In the same line of argumentation based on a functional method of interpretation the Court then declared in case VfSlg 16.404/2001 also with regard to Article 7 paragraph 3, second sentence of the State Treaty that “topographical indications in Slovene or Croat language shall, according to the purpose of this provision, make the public aware of the existence of a – proportionally higher – number of minority members living on this territory…” and, in effect, declared the 25% – threshold for the posting of bilingual topographical indications which had been determined by the Law on Ethnic Groups of 1976 unconstitutional and established a 10% – threshold. However, based on the obstructionist policies of the Governor of Carinthia, the responsible administrative authorities refused to implement this and other similar decisions of the Constitutional Court. But also the Austrian parliament remained inactive and did not bring the respective law in line with the ruling of the Constitutional Court. In light of this political context it is therefore rather astonishing that the Court finally made a total twist in case VfSlg 17.417/2004 in stark contrast to its previous judgements, but also to the case-law of the Imperial Court.

  • 21 See Marko, Artikel 8 Abs 2 B-VG, Rz 18 – 23. Such a structural analysis of minority protection pro (...)
  • 22 From a legal-dogmatic perspective, Article 8 paragraph 2 of the Constitution is seen as a typical (...)

41In this case, more than 50 members of the Slovene minority living in the city of Bleiburg as well as two associations representing the Slovene minority in Carinthia requested the posting of bilingual signs, but the Court denied legal standing both to the individual members of the minority as well as to the associations with the argumentation that there are no “subjective” rights to bilingual signs either for individual members nor the groups themselves represented by these associations. The provision of Article 7 paragraph 3 StVW on behalf of minorities therefore remains “objective law” as a mandate for the state authorities, but cannot be enforced by individual minority members or the groups themselves through judicial litigation. I have argued elsewhere that this pre-emption of the content and thus purpose of minority protection provisions by the Court is not only based on a strictly formalistic-reductionist understanding of legal positivism, but also contrary to a structural analysis of minority protection provisions which had been the “original intent” of Kelsen’s “school of pure law” (Reine Rechtslehre)21. At least the case-law of the Imperial Courts of the Habsburg Empire could have been a guide-line how to overcome the ideologically predetermined dichotomy of individual versus group rights if minorities as such are not recognized as legal persons with their own interests. What is in this case, however, even more striking in light of all the other case-law of the Constitutional Court trying to build a bulwark for the constitutional principle of rule of law is the denial of access to the Court by pre-empting even an individual “right” to protect and foster minority identity through bilingual topographical indications, in previous cases even called a “typical expression” of minority identities falling now under the scope of Article 8 paragraph 2 of the Constitution22.

Substantive areas and problems

The use of minority languages in elected bodies and before administrative authorities and courts23

  • 23 For the following see Marko, Artikel 8 B-VG 2008.

42The laws on parliamentary procedures at the federal level as well as on the Land level do not foresee the use of minority languages in parliamentary proceedings as an exemption from the obligation to use German as an official language. In practice, only short addresses or sentences in minority languages are allowed. The institution of the Ombudsman is a means of control of the administration by parliament against arbitrary actions. Written submissions to this institution can also be presented in minority languages.

43In terms of procedures before administrative authorities and courts, the use of minority languages is restricted to the right to use these languages in spoken and written form. According to the case-law of the Constitutional Court, minority languages can only be used “on demand”, i.e. requiring the use of the minority language at the first possible opportunity when a person gets in touch with authorities. This raises serious problems in practice for the submission of appeals within the required time-limits. The right to use minority languages in procedures before administrative authorities and courts does not, however, correspond with an obligation of the state to provide for civil servants and judges who are able to communicate in these languages. Thus, almost all procedures are carried out with the help of translators in practice. And even if there is a judge or civil servant with the necessary language skills, a procedure can be carried out only in a minority language if all the parties agree on that. As soon as one party demands German as language of communication, the procedure has to be carried out in German with the assistance of interpreters. In any case, written records of the proceedings have to be laid down in German. Moreover, according to the case-law, there is no right to translation of all written statements, including evidence of expert opinions. Only criminal charges, written submissions of parties in civil and administrative procedures, and criminal sentences or other forms of judgements have to be translated.

The use of minority languages in education

44As has been mentioned above in the introductory chapter, bi-lingual education served as a means of assimilation into the German speaking environment since the end of World War I. Therefore, Slovene, Croat and Hungarian were used in elementary education only in the first three grades of primary schools in Carinthia and Burgenland in order to support education as such as long as children did not properly speak German. The only exemption was the subject of “religion” where children could be educated in a minority language in all four grades of primary schools. Only with the change of the paradigm from assimilation to integration exemplified by the use of the functional interpretation of the Constitutional Court since the 1980ies, the meaning of “elementary education” became contested also in organizational terms. Finally, the Constitutional Court ruled in case VSlg 15.759/2000 that the term “elementary education” encompasses in any case all four grades of primary schools and that elementary education requires the teaching of all subjects in the minority language as language of instruction so that teaching the minority language as a subject like any other foreign language is not sufficient. No case has been brought to courts so far with regard to the use of minority languages as languages of instruction in lower secondary schools (Hauptschulen) which – from a functional perspective – are also part of elementary education. In practice, minority languages are only taught as elective courses in such schools, if at all.

Other remaining problems

  • 24 This reservation, the Austrian State reports and Opinions of the Advisory Committee under the Fram (...)

45First, all the case-law in interpretation of the Austrian legal minority protection regime had only Austrian citizens belonging to so-called “traditional” or, as the term under Article 8 paragraph 2 of the Constitution now reads, “autochthonous” ethnic groups in mind and Austria´ s declaration, in effect, reservation when ratifying the Framework Convention for the Protection of National Minorities gives an exhaustive list of these minorities24. Does this mean that members of so-called “new” minorities stemming from immigration now living in Austria have no language rights at all?

  • 25 See Directive 77/876/EC on the education of children of migrant workers, OJ L 199/32.

46According to my opinion, since there is no case law so far, the distinction between the phrases “linguistic minorities” in Article 8 paragraph 1 and “autochthonous ethnic groups” in Article 8 paragraph 2 of the Austrian Constitution which were not harmonized by the constitutional amendment in 2000, cannot be interpreted by reference to the historic meaning and thus in the context of the assimilation paradigm, because all legal provisions concerning the protection of minorities must, according to the case law of the Constitutional Court, be interpreted according to their function and thus in the context of the integration paradigm. This approach requires therefore to “open” up the minority rights system and to grant all the rights according to Articles 66 to 68 of the Treaty of St. Germain also to members of new minorities. In conclusion, they then enjoy freedom of language in the private sphere, they are entitled to use their language before courts with the support of interpreters, they are entitled to establish private educational facilities and, finally, they enjoy the right to mother tongue education in public primary education which is also requirement already following from an EC-Directive25. But there is no legal obligation of the state to protect and to promote these languages as such, nor do members of new minorities have any group-oriented rights with regard to equality and participation. Moreover, the opinions of the Advisory Committee under the Framework Convention criticize not only Austria in its restrictive approach towards new minorities and recommend to make an “inclusive” use of those provisions of the Framework Convention also on behalf of new minorities which do not literally exclude them.

47Finally, as can be seen from the Austrian State Reports under the Framework Convention and the opinions of the Advisory Committee, the restrictive territorial approach stemming from the text of the State Treaty 1955 and its implementing legislation becomes more and more outdated. Due to migration from neighbouring countries into Austria, but also within Austria from the rural country-side into bigger cities, the legal distinction, for instance, between the languages of Burgenland-Croat and Croat becomes more and more superficial. In addition, more and more speakers of minority languages do no longer live in the traditional settlement areas, but – due to higher education and better job opportunities – in the bigger cities where they are no longer entitled to the use of their minority languages before courts, administrative authorities or in public education.

48However, despite of the on-going linguistic assimilation process, there are now an increasing number of children registered for bilingual education, but without the necessary language skills from primary socialization or education. This is not recognized by the Austrian political elites as a contribution to cultural diversity as having been proclaimed by Article 8 paragraph 2 of the Constitution. Until the very day, the added value of bilingualism and cultural diversity is not understood, let alone acknowledged in Austria as can be seen from the vicious circle of restrictive interpretations of legal rules, lack of teacher training and intercultural learning, and, finally, a political culture which is more and more mobilized by all political parties except the Green party against new minorities.

Bibliographie

Bibliographical references

Bernatzik Edmund (1911), Die österreichichischen Verfassungsgesetze, Vienna, Manzsche.

Berry Brian (2001), “Culture and Equality”, Polity Press.

Holoubek Michael (ed.) (2008), Osterreichisches Bundesverfassungsrecht: Textsammlung und Kommentar, Düsseldorf, Springer.

Kymlicka Will (2002), Contemporary Political Philosophy, 2e ed., Oxford, Oxford University Press.

Marko Joseph and Handstanger Meinrad (2009), “The Interdependence of Law and Political Science: About the ‘Essence and Value’ of a ‘Juristenpolitologie’ - Approach”, Vienna online Journal on International Constitutional law, vol. 3, no 2, pp. 66-79 [on line] (page available on the 21st January 2011) http://www.internationalconstitutionallaw.net/download/c8256be12b4d6d2acc2a4d81145a7aa3/Marko_Handstanger.pdf

Marko Joseph (2008), “The Law and Politics of Diversity Management: A Neo-institutional Approach”, European Yearbook of minority Issues, vol. 6, pp. 252-279.

---- (2008), “Kommentierung des Art 8 Abs 2 B-VG”, in Korinek Karl, Holoubek Michael (Hrsg.), Österreichisches Bundesverfassungsrecht. Textsammlung und Kommentar, Bd II/1.

---- (1995), Autonomie und Integration: Rechtsinstitute des nationalitätenrechts im funktionalen Vergleich, Vienna; Cologne.

Stourzh Gerald (1980), “Die Gleichberechtigung del Volksstämme als Verfassungsprinzip 1848-1918”, in Die Habsburger monarchie 1848-1918, vol. 3, Vienna, Österreichischen Akademie der Wissenschaften, pp. 975-1206.

---- (1985), Die Gleichberechtigung der Nationalitäten in der verfassung und Verwaltung Osterreichs 1848-1918, Vienna, Österreichischen Akademie der Wissenschaften.

Tamir Yael (1993), Liberal Nationalism, Princeton, Princeton University Press.

Thornberry Patrick (1991), International Law and the Rights of Minorities, Oxford, Oxford University Press.

Weber Eugen (1976), Peasants into Frenchmen: The Modernization of Rural France 1870-1914, Stanford, Stanford University Press.

Notes

1 The full text of this Article can be found in Edmund Bernatzik, Die österreichischen Verfassungsgesetze, 2. A., Wien 1911, p. 426. (Translation by the author of this paper).

2 For a discussion of the underlying legal principles of this model see Marko, “The Law and Politics of Diversity Management: A Neo-institutional Approach”, 2008.

3 See Stourzh 1980 who refers to the astonishing fact that this could mean in practice a share of not even 1% in a given administrative district.

4 The best historic overview is given by Stourzh 1985.

5 See the Explanatory Report for the draft law on the republican form of the state, Stenographic record of the Constituent Assembly, 410 BlgKNV, p. 3.

6 See for this historic background: Thornberry 1991: 38-52.

7 Published in Staatsgesetzblatt (Official Gazette), 1920/303.

8 Since the German text of the StVW, published in the Official Gazette, is only a translation, I have included this alternative translation here in order to make aware that the equally authentic texts in English, French and Russian differ in this respect.

9 For a detailed analysis of the development of minority education in Carinthia see the respective chapter in Marko 1995: 349-387.

10 Published in BGBl (Official Gazette) I 2000/68. The following English text is a translation by the author.

11 For an account of the legislative history see Marko, “Kommentierung des Art 8 Abs 2 B-VG”, 2008.

12 I have tried to present this neo-institutional and contextual methodological approach trying to overcome the absolute separation of law and politics created by the so-called Viennese school of legal positivism in Marko / Handstanger 2009.

13 These decisions are published in the collection of the Imperial Court’s decisions under the name Hye 844 and 855. See also Hye 1601.

14 See the respective decision published in the collection of the decisions of the Administrative Court of the Habsburg Empire under the name Budwinski, Nr. 130.

15 See ECJ, C-274/96, JO 1998, I-7637.

16 BGBl (Official Gazette) 1994/641.

17 BGBl (Official Gazette) 1959/101.

18 See Supreme Court, 14 March 1979, 1 Ob 528/79.

19 In case VflSlg 16.580/2002 the Court ruled, however, that this does not mean an “institutional guarantee” for every existing school with instruction in minority languages, but only the requirement to have at least one such school in each municipality in the settlement area.

20 A more detailed dogmatic analysis is given in Marko, Artikel 8 Abs 2 B-VG, Rz 18-23.

21 See Marko, Artikel 8 Abs 2 B-VG, Rz 18 – 23. Such a structural analysis of minority protection provisions reveals a triadic structure which dissolves the ideologically predetermined dichotomy of individual versus group rights. In particular in the sphere of language rights when languages serve as a means of communication, the interpretation favoured by fundamentalist liberal approaches such as those given by Berry 2001, denies the “existence” of groups and therefore not only the necessity, but also the possibility of group rights and thereby reduces all human rights to strict individual rights. However, as can be seen from the texts of various minority rights provisions, they all contain references to groups. There are – at least – three such types of provisions with what I call “group-references”: first, provisions which presume the existence of a group for the meaningful enjoyment of an “individual right” like Article 27 of the International Covenant on Civic and Political Rights (arg: “[…] persons […] shall not be denied the right, in community with the other members of their group, […] to use their own language.”); second, in line with a paternalistic liberal approach, there are provisions which want to preserve and foster groups as an “object” of law without recognizing them, however, as equal participants in the formation of collective identities as can be seen from the text and (hi) story of interpretation of Article 7 of the State Treaty of Vienna 1955; third, in line with a communitarian understanding of liberalism trying to balance the rights of individuals with the interests of “the public good”, there are minority rights provisions which require the recognition of groups as such in the form of legal persons for their representation and participation in any kind of decision-making process. Numerous examples can be found in the sphere of political representation and participation of minorities such as exemptions of minority parties from threshold requirements in proportional vote systems or reserved seats for the participation of minorities in state bodies, even the judiciary.

22 From a legal-dogmatic perspective, Article 8 paragraph 2 of the Constitution is seen as a typical example of so-called “state goals” (Staatszielbestimmungen) which contain affirmative duties for state authorities, which cannot be enforced by litigation since they do not contain “subjective rights”. Nevertheless, the Constitutional Court had already started to apply such goals by using them as normative standard in judicial review based on individual litigation, with the effect that also state goals can have “subjective normative effects” (“subjektive Reflexwirkung”).

23 For the following see Marko, Artikel 8 B-VG 2008.

24 This reservation, the Austrian State reports and Opinions of the Advisory Committee under the Framework Convention are published on the homepage of its Secretariat, see www.coe.int/minorities.

25 See Directive 77/876/EC on the education of children of migrant workers, OJ L 199/32.

Auteur

Juriste, professeur, Université de Graz, Droit ; Académie européenne, Bolzano.

© Maison des Sciences de l’Homme d’Aquitaine, 2014

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