The rights of the Hungarian national minority of Ukraine as of January 27, 2023, and proposals for solving the existing problems
The rights of the Hungarian national minority of Ukraine as of January 27, 2023, and proposals for solving the existing problems
The main stages of the development of the process from 1991 to 2017
On November 1, 1991, the Verkhovna Rada of Ukraine adopted the Declaration of the Rights of Nationalities of Ukraine, by which the state guaranteed all peoples and national groups the free use of their native language in all spheres of public life, including education, production, receiving and distribution of information.
On December 1, 1991, 92.59% of Transcarpathians who took part in the vote supported the Act of Proclamation of Independence of Ukraine at the all-Ukrainian referendum. Elections of the first president of Ukraine were held in Ukraine, which ended in the victory of Leonid Kravchuk. In Transcarpathia, L. Kravchuk received the largest number of votes compared to other candidates, 270,621. In the regional referendum, 546,540 people (78% of the adult population of the region) participated, which is also due to the fact that he personally promised support for granting Transcarpathia the status of a self-governing territory as part of independent Ukraine on meeting of the regional council where the referendum was approved. On December 1, 1991, at the local referendum, which was held in parallel with the referendum on the declaration of Ukraine's independence, 78% of the adult population of the region spoke in favor of granting Transcarpathia the status of a self-governing territory within independent Ukraine. In addition, at that time in the Berehove District, people also voted for the formation of the Hungarian Autonomous Territorial District within its borders. 81.4% of the participants voted in favor of the status of self-governing territory of Transcarpathia as part of independent Ukraine, and 87.3% voted for the Hungarian Autonomous Territorial District.
Based on these events, we can conclude that Ukraine made a social agreement with the Hungarians of Transcarpathia, in which independent Ukraine guarantees to preserve the acquired rights of the Hungarians, that is, the free use of their native language in all spheres of public life, including education, production, receiving and distribution of information, etc., and the Hungarians of the region support the independence of Ukraine. The Hungarians of Transcarpathia confirmed this with their votes in the elections in favor of the Transcarpathian region and Independent Ukraine.
On December 3, 1991, Hungary recognized Independent Ukraine, becoming the third country to do so after Poland and Canada. On December 4, 1991, the first foreign embassy was opened in Kyiv – the Embassy of the Republic of Hungary.
On December 6, 1991, Prime Minister of Hungary Józef Antall was in Kyiv on a short official visit. Negotiations were held with the President of Ukraine Leonid Kravchuk. The "Agreement on the foundations of good neighborliness and cooperation between Ukraine and the Republic of Hungary" was signed, which entered into force on June 16, 1996.
According to Article 2, the parties respect each other's territorial integrity and declare that they do not have and will not have any territorial claims against each other. In Article 15, each of the Parties shall, on a mutual basis, contribute to the preservation and knowledge of the cultural and artistic heritage of the other Party, including the protection of historical and cultural monuments, the discovery and study of archival materials related to the history of the two countries. In Article 17, in accordance with the document signed on May 31, 1991 titled "Declaration on the principles of cooperation of the Ukrainian SSR and the Republic of Hungary in the field of ensuring the rights of national minorities" (348_322) – and the Protocol to it, in their international relations, the parties will independently and jointly advocate for the implementation of international documents on the issues of national minorities.
On June 25, 1992, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On National Minorities in Ukraine", which states that the state guarantees all national minorities the right to national and cultural autonomy. The law ensures the right to use the languages of national minorities. In Article 6, the state guarantees all national minorities the right to national and cultural autonomy: the use and teaching of their native language or the study of their native language in state educational institutions or through national cultural societies, the development of national cultural traditions, the use of national symbols, the celebration of national holidays, the observance of their religion, satisfaction of needs in literature, art, mass media, creation of national cultural and educational institutions and any other activity that does not contradict the current legislation. Monuments of history and culture of national minorities on the territory of Ukraine are protected by the law.
On December 7, 1992, at the initiative of the Hungarian KMKSZ faction operating in the regional council, the representative of the President of Ukraine in Transcarpathia issued an order "On the regional implementation of the laws of Ukraine "On Languages in the Ukrainian SSR" and "On National Minorities in Ukraine", which provided for the use of bilingual names of enterprises, state institutions, organizations, as well as the names of settlements, administrative units, streets, and squares in places of compact residence of national minorities. It was also stated that employees of state bodies located in settlements where representatives of national minorities live compactly, in order to perform their official duties, should, in addition to the state language, also speak the language of the given national minority at an appropriate level. In such places, next to state symbols, the use of symbols of national minorities is allowed. The order thus creates a legal basis for the Hungarian population to display the Hungarian national tricolor on administrative buildings next to the blue and yellow flag of the state.
On May 15, 2003, L. Kuchma, the President of Ukraine signed and thus ratified the law adopted by the Verkhovna Rada of Ukraine on the European Charter of Regional or Minority Languages, signed on behalf of Ukraine on May 2, 1996 in Strasbourg. The provisions of the Charter apply to the languages of the following national minorities of Ukraine: Belarusian, Bulgarian, Gagauz, Greek, Jewish, Crimean Tatar, Moldavian, German, Polish, Russian, Romanian, Slovak and Hungarian.
The Constitution of Ukraine was adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996. The Constitution of Ukraine, in particular: part 3 of Art. 10 guarantees the free development and use of languages of national minorities; part 5 of Art. 53 guarantees the right to study in one’s native language; part 3 of Art. 22 guarantees the inadmissibility of narrowing the content and scope of existing rights and freedoms when adopting new laws, and part 2 of Art. 24 regulates regarding the inadmissibility of privileges or restrictions based on ethnic origin and language characteristics.
Although the Constitution guarantees the rights of national minorities and characterizes Ukraine as a monolithic state, national minorities are not state-forming communities of Ukraine.
The basis of this change was the Concept of Education of National Minorities developed by the Ministry of Education and Science of Ukraine in 1998 with the aim of preparing a law on the education of national minorities. In this concept, national minorities were offered education in their native language at the primary level of school education, and from the 5th grade, education would be carried out in the state language. The concept was not accepted by the national minorities and the legaslative process was stopped.
What opportunities did the law-making process provide to the national minorities of Ukraine in the period 1991-2017
• According to the Constitution and the Law on National Minorities, as well as the Law on Education in Ukraine, all citizens had the right to choose the language of instruction. Institutions were created for national minorities in which all subjects were taught in their native language, and in addition to the native language, they studied the state language and a foreign language of their choice. Since 1989, the history of the Hungarian people has been taught as a separate subject in schools and classes taught in the Hungarian language in order to preserve the identity of students.
• The name of the schools appeared in two languages in the by-laws, seals, and signs of schools of national minorities.
• In the schools of national minorities, documentation was partially conducted in the native language. For example, the lesson schedule, demonstrations, classroom corners, information stands for students and parents, the school's official website, the class magazine, in which the student's surname and first name were written according to the spelling of the native language, the topic of the lesson, the minutes of parent meetings, and the pedagogical council also had the opportunity to work in the language of instruction.
• In schools of national minorities, at school holidays, parent meetings, pedagogical and methodical meetings, everyone had the opportunity to speak in the language that was most convenient for the person, in interpersonal contact they used the language common to them, which could be Hungarian, Ukrainian, or Russian, etc.
• At the end of each stage of education, at the end of the 4th, 9th and 11th grades, knowledge was tested not only in the state language, but also in the language of instruction, that is, all graduates had to pass an exam in Ukrainian and in the language of instruction /native language. This was used to check at what level a graduate could express their thoughts in the language in which they were educated.
• When entering higher educational institutions of the Transcarpathian region (Uzhhorod National University and Transcarpathia Hungarian College of -highr Education), all entrance exams could to be taken in the language of instruction (Ukrainian, Hungarian, Russian, Romanian), and knowledge of the state language was tested in the form of an interview.
A new stage in the approach to national minorities in Ukraine
On September 5, 2017, the framework Law "On Education" was adopted. Article 7, which regulates the language of education, contradicts the Constitution and significantly reduces the right to use the languages of national minorities in the field of education in Ukraine, violating the previous international obligations of the country and bilateral treaties.
Minority children can now study in their native language only in primary school (grades 1-4); schools with the language of instruction of minorities are canceled because, according to Article 1 of the Law, all educational institutions are institutions with the Ukrainian language of instruction, within the framework of which certain classes (groups) can function with instruction in the language of the national minority. This also means that within the school it is allowed to speak Hungarian only in Hungarian classrooms and lessons, and during communication during recess, as well as at meetings, school holidays, one must speak Ukrainian, journals, correspondence must be in Ukrainian; the legal basis and the possibility of teaching in the native language in vocational and higher education has been eliminated even where education in the minority language may be created as needed depending on opportunities.
The population of the country was classified into 4 categories in terms of ensuring access to education in their native language:
1) Ukrainians who can learn their native language at all levels and forms of education,
2) indigenous peoples (only the Crimean Tatars), who can study their native language to the full extent within the framework of primary, basic and secondary education,
3) minorities whose language is one of the official languages of the EU, who in the process of general secondary education can study part of the subjects of the curriculum in their native language,
4) other minorities (for example, Russians) who can use their native language only in primary education, i.e. up to the 4th grade.
This contradicts the Constitution of Ukraine adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996, in particular: part 3 of Art. 10, which guarantees the free development and use of languages of national minorities, part 5 of Art. 53, which guarantees the right to study in the native language, part 3 of Art. 22, which guarantees the inadmissibility of narrowing the content and scope of existing rights and freedoms when adopting new laws, and part 2 of Art. 24 regarding the inadmissibility of privileges or restrictions based on ethnic origin and language characteristics.
In February 2018, the decision of the Constitutional Court No. 2-p/2018 with reference to formal violations regarding the adoption of the law (for example, one person voted instead of other members of the faction, which is a standard practice in the Ukrainian parliament) annulled the Law "On the Principles of the State Language Policy" adopted in 2012, which contained the basics of language policy, thereby "clearing" the way to a conceptually different language regime.
In April 2019, the Council adopted the Law on Ensuring the Functioning of the Ukrainian Language as the State Language (hereinafter referred to as the Law on the State Language), Article 21 of which literally reproduces Article 7 of the Law on Education, supplementing it with two provisions limiting minority languages: 1) entrance exams to universities are written exclusively in the Ukrainian language 2) teaching a foreign language is possible only on the basis of the Ukrainian language. In July 2019, the Constitutional Court ruled by decision No. 10-р/2019 that Article 7 of the Law on Education complies with the Constitution of Ukraine, thereby closing, at least at the level of domestic legislation, the dispute about the constitutionality (legality) of these legislative innovations. The decision is interesting in that the constitutional revision of the law was demanded by a group of deputies partly based on the same formal and procedural errors as in the decision to repeal the law on regional languages, for example, one person voted instead of several, etc. This shows that the Constitutional Court made a political decision, not a legal one.
On December 13, 2022, the Law of Ukraine On National Minorities (Communities) of Ukraine was signed, which replaces the law adopted in 1992, was signed, and enters into force six months after its publication. The law consists of the Constitution of Ukraine, other laws of Ukraine, as well as international treaties of Ukraine, the consent of which was stated to be binding by the Verkhovna Rada of Ukraine. If an international treaty of Ukraine, whose binding consent has been granted by the Verkhovna Rada of Ukraine, establishes other rules than those provided for by this Law, the rules of the international treaty shall be applied.
In paragraph 3 of the law "To persons belonging to national minorities (communities), the state guarantees the protection of their rights, freedoms and legally protected interests in accordance with the law." The right to use the language of the national minority (community) is described in Article 10:
"1. A person belonging to a national minority (community) has the right to free and unimpeded use of the language of their national minority (community) in private and public, in oral and written forms, within limits that do not contradict the law.
2. Public events organized and held by persons belonging to national minorities (communities) (meetings, conferences, rallies, exhibitions, training courses, seminars, trainings, discussions, forums, other public events) may be held in the languages of the respective national minority (community)". These rights contradict the Law of Ukraine "On Ensuring the Functioning of the Ukrainian Language as a State Language".
Article 11 of this Law regulates the right to education, and provides the following rights: "Peculiarities of the use of languages of national minorities (communities) in the educational process are determined by the Law of Ukraine "On Education" and special laws in the specified field.", that is, it does not take into account the right to study in one's native language provided by the Constitution of Ukraine, international treaties of Ukraine, the binding consent of which has been given by the Verkhovna Rada of Ukraine, although according to this Law, if the international treaty of Ukraine, the binding consent of which has been given by the Verkhovna Rada of Ukraine, establishes different rules, the rules of the international treaty shall apply.
We can state that since 2017, laws have been adopted that, contrary to the Constitution, restrict the rights of national minorities, such as the Law on Education, the Law on Ensuring the Functioning of the Ukrainian Language as the State Language, and which have become constitutional norms, according to which changes have been made in the existing laws, and on the basis of which the new law on national minorities (communities) of Ukraine was adopted. In folklore, this approach is described as follows: a fur coat was sewn to the button.
A vivid example of this method is how the law on higher education, which was adopted in 2014 after the Revolution of Dignity, was changed.
In the version of the Law of Ukraine "On Higher Education", adopted in 2014, paragraph 3 of Article 48 stated: "... privately owned higher educational institutions of Ukraine have the right to freely choose the language of instruction...". So, the law adopted in 2014, after the events on the Maidan, allowed private universities to choose their language of instruction in accordance with the resolution of the Venice Commission. In 2019, the same parliament that adopted this law adopted a resolution to regulate the language of instruction in private higher education institutions. That is, in the current edition of the Law of Ukraine "On Higher Education" this item has already been removed, while the following items remain:
"1. The language of the educational process in higher educational institutions is the state language"
"3. The use of languages in higher educational institutions is determined by the laws of Ukraine "On ensuring the functioning of the Ukrainian language as a state" and "On education"»
The new Law "On Higher Education" also makes it impossible to obtain higher education for national minorities, even in the case of private universities. The external testing system allows the assessment of knowledge only in the Ukrainian language. That is, even if a person studied in Hungarian at a higher educational institution, they will have to take final exams in Ukrainian, which puts graduates of Hungarian universities in an extremely unfavorable position.
The work of private universities is complicated by the process of nostrification of diplomas and scientific degrees obtained abroad. In the process of nostrification, the procedure for assigning a scientific degree is actually repeated. It is necessary to translate the text of the scientific dissertation into the state language, which is then sent to the reviewers. In the case of their positive assessment, the dissertation is sent to the academic council appointed by the Ministry of Education and Culture, which can ask to re-defend the thesis, and then must vote secretly on the awarding of the academic degree.
How the law-making process of Ukraine narrowed the rights of national minorities in the period between 1991 and 2017, which was completed by the Law on National Minorities (Communities) referring to previous laws?
• The adoption of the Law on the functioning of the state language and the creation of the institution of the commissioner for the protection of the state language has a negative impact on the lives of Hungarians and the process of learning in schools with the Hungarian language of instruction. The appeals of the commissioner for the protection of the state language are gradually sent to schools regarding compliance with all the norms of the law. For example, the director of the Solotvyno school was warned for giving an interview to a Hungarian-language television station in Hungarian, when according to the law, as the director of a communally owned school, he has the right to speak exclusively in Ukrainian. The commisioner addressed in writing the founders of the Hungarian-language school in the village of Velyka Dobron, schools No. 3 and No. 6 in Berehove, because the websites of state and communal institutions are not in the state language. The commissoner also addressed the Transcarpathian Hungarian College of Higher Education with the same letter regarding the unofficial page of the college on Facebook, which was created by former graduates of the institution.
• The legal framework and the possibility of teaching in the native language in professional and higher education, even in private schools, have been eliminated.
• From September 1, 2023, in the new academic year, 40% of subjects must be taught in the state language in all grades from 5 to 9 in classes with the Hungarian language of instruction. On the one hand, it requires an immediate change of language during the transition from primary to elementary education, which is pedagogical nonsense in the case of the vast majority of subjects. In other words, if, for example, a child studied natural sciences at the primary school level in Hungarian, how can they be taught geography or biology in Ukrainian from following year? It is also absurd to expect that a specialist teacher will prepare students for the change of language, because they should teach the subject, not language, moreover, with the same number of hours. That is, such a transition will only lead to a deterioration in the quality of education. This is total discrimination, which makes quality education in general subjects impossible.
• From September 1, in the 2023/2024 academic year, it is planned to teach 60% of subjects in the Ukrainian language at the level of full secondary education (grades 10-12) in classes with the Hungarian language of instruction. According to the Law on education, secondary education remains in those schools that can open 3 parallel classes of different specializations. This will lead to the closure of lyceums with the Hungarian language of instruction, in which 60% of subjects are taught in Ukrainian. At the secondary school level, we completely disagree with this approach and strongly reject it and interpret it as a complete restriction of existing rights and a coercive tool of assimilation.
• From 2022, the measurement of educational achievements of graduates of full general secondary education in the form of multiple tests will be conducted exclusively in the state language, which is contrary to the principle of equality regarding the mastery of full secondary education, the constitutional rights of all citizens of Ukraine, the international obligations of Ukraine, and also terminates the 150-year practice of teaching in the native language in Transcarpathia by all communities living in the region.
• In the Center for the Assessment of the Quality of Knowledge, there is no centralized assessment of the native language for national minorities, which is offensive and discriminatory.
• In addition to the four EU languages (English, German, French, Spanish), no testing is conducted in other EU languages (for example: Bulgarian, Greek, Polish, Romanian, Slovak, Czech, Hungarian), although these languages are also the languages of the EU, which Ukraine intends to join and which languages can be studied as foreign languages according to the current curricula.
• It is still not possible for the language of education in the case of national minorities to be part of the system of final/entrance examinations. It is not possible to apply for a native language exam in a university admission procedure. You can take exams in English, German, French, Spanish, but not in Romanian, Slovak, and Hungarian, although they are all official languages of the EU.
• The current primary school standard does not allow schools of national minorities to teach a foreign language at a level identical to Ukrainian schools, because there are no hours allocated for it. According to the previous practice, in the description of the number of hours, it was specifically indicated how many lessons can be given for Ukrainian, native/Hungarian (if different from the state language) and the chosen foreign language. For the 2019-2020 academic year, this was implemented by allocating a total number of hours for the study of subjects of the language cycle, and later a regulation was established regarding the number of hours required to study the Ukrainian language, which takes up more than half of the total number of hours. The remaining hours can be divided between Hungarian and foreign languages. It turns out that one can properly teach either only the native language or only a foreign language. In the course of correspondence with the Transcarpathian Hungarian Pedagogical Association, the Ministry of Education and Science of Ukraine made it clear that schools with the Hungarian language of instruction can choose Hungarian as a foreign language, as well as English, since both are European languages. This calls into question the legal status of the native language of the minority, since by including it in the category of foreign languages, it is as if the Hungarian national community becomes immigrants in their own homeland. The THPA proposed to increase the number of hours allocated for learning languages in schools of national minorities to the same number of hours that are available for learning foreign languages in Ukrainian schools. This means 2-3 extra hours every week. Thus, Ukrainian, the native and a foreign language would be taught in the same amount of hours as in Ukrainian schools. At the same time, in a class taught in the Hungarian language, the workload of students will be 2-3 hours more every week, but the parents support this as well. The answer of the Ministry of Education and Science was that this request cannot be granted due to the violation of the maximum permissible workload per student, as well as due to the principle of equality of expenditures from the state budget for each child. However, without solving this issue, the right of national minorities to equal access to education will not be fulfilled, since they will not be able to learn their native and a foreign language at the same level as students with Ukrainian language of instruction – this is a discriminatory attitude towards children.
• The Ministry of Education and Science of Ukraine has not taken measures to reform the teaching of the state language, and the current system essentially does not provide for the acquisition of the state language in the system of schools of national minorities at the level of the state standard. The current program of studying the state language is not intended at all for the development of language competences and communication skills, but is almost exclusively focused on grammatical rules and their application at the level as if the students already speak and are fluent in the Ukrainian language.
• Since the independence of Ukraine, not a single academic or school dictionary has been created and published with funds from the state budget. The dictionaries with which we work at our schools were compiled by the teachers of the Uzhhorod National University and the Transcarpathian Hungarian College of Higher Education and were published at the expense of the Hungarian state. In addition, adequate didactic resources: modern textbooks, workbooks, school dictionaries, professional dictionaries, etc, were not provided.
• The accepted standard of the Ukrainian language for classes with instruction in the language of national minorities does not take into account the specifics of the language of the minority and contains an absolutely unrealistic set of requirements. This standard serves and promotes assimilation, not integration.
• The secondary school standard of the Ukrainian language for graduates of schools with instruction in the language of national minorities suggests mastery of the language at the level C1. The proposed standards do not take into account the fact that the Ukrainian language is a second language for minorities, as well as the fact that the existing programs do not ensure the development of language skills, but remain focused on the study of grammar. Knowledge of the state language is currently assessed by the final exam, which is also the entrance exam for obtaining higher education, including Ukrainian philological education, and is equivalent to level C1. The tests do not measure language competence, but mainly grammatical knowledge at the level expected of future teachers of Ukrainian language and literature.
How did the laws adopted in 2017-2022 affect the state relations between Ukraine and Hungary?
The right to education in their native language for a number of national minorities of Ukraine (Bulgarians, Moldovans, Romanians, Hungarians, etc.) derives not only from the provisions of Ukrainian legislation, but a right acquired by them over decades, which had been practiced in other state formations, to which the territories of their traditional settlements belonged earlier, and is also carried out by them now in full compliance with the current legislation of Ukraine. That is, there is an attempt to cancel the acquired, tradtional rights of national minorities.
Also, additional measures contradict Ukraine's international legal obligations in the field of protection of national minorities. Thus, according to paragraph 34 of the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the OSCE, member states should try to guarantee for persons belonging to national minorities, without the need to study the official language of the state, adequate conditions for learning their native language or learning in their native language. And according to paragraph 3 of Article 4 of the UN Declaration on the Rights of Persons Belonging to National and Religious Minorities, states take appropriate measures so that, where possible, persons belonging to minorities have adequate opportunities to learn their native language or to study in their native language.
Also, these measures contradict the Framework Convention on the Protection of National Minorities and the European Charter for Regional or Minority Languages, as well as Recommendations 1201 of the Parliamentary Assembly of the Council of Europe, which Ukraine is obliged to comply with under a number of its international treaties.
Ukraine undertook to provide education for minorities of their native language or in their native language at all levels of education in a number of bilateral international treaties, in particular: in the Declaration on the Principles of Cooperation between the Ukrainian SSR and the Republic of Hungary (1992) on ensuring the rights of national minorities, in the Treaty on good-neighborly relations and cooperation between Ukraine and Romania, in the Agreement between Ukraine and the Republic of Moldova on cooperation in ensuring the rights of persons belonging to national minorities, and in a number of other similar agreements.
The THPA offered opportunities to solve problems at various forums of state institutions:
• To check how Ukraine fulfills its international legal obligations towards organizations, which Ukraine wants to join and demand changes at the level of legislation, as it will be done with other laws, for example, when Ukraine wants to receive a loan from the EU.
• The laws that will be adopted after the current international agreements, including bilateral ones, must take into account the obligations of the requirements of the previously signed obligations. On the basis of this, the state authorities of Ukraine must find ways to implement the obligations of Ukraine concluded in the international agreement between the Ukrainian SSR and the Republic of Hungary (1992). Ukraine must testify to the validity of the agreement. If Ukraine accepts it as valid, then the solution to the problem should be sought within the framework of the country's law-making process. In that case, if there is evidence of invalidity, it is necessary to make cganges on the basis of a new agreement between the two countries on good neighborliness.
• Adoption of the Law on Education became the basis of the conflict between Ukraine and Hungary. Since the Minister of Foreign Affairs of Ukraine has repeatedly expressed the country's position that there cannot be any changes in the Law of Ukraine on Education, it is necessary to look for another approach to resolving the conflict. The conflict could be resolved with a "win-win" situation, if the Verkhovna Rada of Ukraine would adopt a resolution on the indigenous peoples of Ukraine, which would list national minorities that, according to international standards, can be included in this list.
Draft Law No. 55506 on indigenous peoples of Ukraine was adopted at an extraordinary meeting of the Verkhovna Rada. In addition to Ukrainians, only Crimean Tatars, Karaims, and Krymchaks were included in the list.
In Ukraine, the definition of the term "indigenous people" is not interpreted in the same way as it is in international jurisdictions: "Among autochthonous minorities, international law distinguishes a separate category – indigenous peoples. This concept is defined as "indigenous population" in the international conventions of one of the specialized agencies of the UN – the International Labour Organization (ILO). In particular, the ILO Convention No. 169 (1989) contains the following definition: indigenous peoples are “… peoples in independent countries who are considered indigenous in view of the fact that they are the descendants of those who inhabited the country or geographical area, part of which a given country is, at the time of its conquest or colonization or at the time of establishment of existing state borders and which, regardless of their legal status, retain some or all of their social... economic, cultural and political institutions.”
In the legislation of Ukraine, the concept of "indigenous peoples" is first mentioned in Article 11 of the Constitution of Ukraine: "The state promotes the consolidation and development of the Ukrainian nation, its historical consciousness, traditions and culture, as well as the development of the ethnic, cultural, linguistic and religious identity of all indigenous peoples and national minorities of Ukraine." In separate laws adopted by the Verkhovna Rada of Ukraine in recent years, in regulatory texts designed to regulate relations in the language sphere (for example: Laws of Ukraine "On Education", "Law on Ensuring the Functioning of the Ukrainian Language as a State", "On Comprehensive General Secondary Education") the concept of "indigenous peoples" is used without providing any interpretation of this concept. Despite the fact that in some publications, as well as in the statements of officials, the Crimean Tatar people are considered such. This statement is substantiated by reference to the Resolution of the Verkhovna Rada of Ukraine "On the statement of the Verkhovna Rada of Ukraine regarding the guarantee of the rights of the Crimean Tatar people as part of the Ukrainian State" dated March 20, 2014, in part 1 of which "Ukraine guarantees the preservation and development of ethnic, cultural, linguistic and religious identity of Crimean Tatar people as an indigenous people and all national minorities of Ukraine". Despite the fact that this document also does not contain a definition of the concept of "indigenous people" or the criteria by which such a definition should be carried out. It should also be emphasized that according to Article 92 of the Constitution of Ukraine, the rights of indigenous peoples and national minorities are determined exclusively by the laws of Ukraine, not by declarations. In the same literature, and in the same statements, such a distinction of the Crimean Tatar people from other autochthonous (those who historically live on the modern territory of Ukraine) national minorities is motivated by the criterion of the absence of a related state that supports the development of their culture.
The need to comply with the constitutional requirement of equality of all indigenous peoples and national minorities, which is enshrined, in particular, in the above-mentioned Declaration, as well as the inadmissibility of differences in the level and scope of the rights of persons belonging to national minorities and those belonging to indigenous peoples according to criteria of the absence of a related state, and/or from the entry of such states into certain international integrations is emphasized in the conclusions of the Venice Commission to the above-mentioned laws. The need to comply with the constitutional requirement of equality of all indigenous peoples and national minorities, and/or from the entry of such states into certain international integrations, is emphasized in the conclusions of the Venice Commission to the above-mentioned laws. Thus, in paragraph 110 of the Conclusion on the provisions of the Law on Education (document No. 902/2017) it is stated that "... the reason put forward by the Ukrainian authorities – the absence of a ’mother’ state – is generally not considered acceptable according to the relevant European standards, any differentiation should be based on other grounds, such as, for example, different levels of vulnerability, or the need for public support." And in paragraph 3 of Article 139 of the Conclusion on the Law on Ensuring the Functioning of the Ukrainian Language as a State Language (document 960/2019), a specific recommendation is formulated: "repeal the provisions of the Law that provide for differentiated treatment of the languages of indigenous peoples, languages of national minorities, which are official languages of the EU , and languages of national minorities, which are not official languages of the EU, since the delimitation of these languages is not based on objective and reasonable thinking (see §§39-44, 69-82, 87, 89, 93, 94, 99-102 , 110 and 111)".
• We can approach the issue of the recognition of Hungarians in Ukraine from another angle, on the basis of a mutual agreement between the two states. The basis for this can be the fact that Hungary, in the law on national minorities adopted in 2011, included Ukrainians in the list of officially recognized national minorities of Hungary. The basis of the choice was international practice, representatives of national minorities who have lived in the territory for at least 100 years. Despite the fact that 100 years ago the only such ethnic community that lived on the territory of Hungary, were Ruthenians, this can be perceived as a gesture from the legislative body of Hungary towards Ukraine and the Ukrainian people.
Suggestions of the THPA:
To comply with the adopted at the fifth session of the Verkhovna Rada of Ukraine on June 28, 1996 Constitution of Ukraine, in particular: Part 3 of Art. 22 guarantees the inadmissibility of narrowing the content and sc, whichope of existing rights and freedoms when adopting new laws; part 2 of Art. 24 specifies regulations regarding the inadmissibility of privileges or restrictions based on ethnic origin and language characteristics; as well as part 3 of Art. 10, which guarantees the free development and use of languages of national minorities and part 5 of Art. 53 that guarantees the right to study in the native language, the rights taken away in the law on national minorities must be reinstated as promised by the state-making structures when ansering to the critical remarks of the representatives and organizations of the state's national minorities.
In the Law of Ukraine on National Minorities, the following changes must be introduced:
1. Determine which national minorities (communities) are state-creating in Ukraine and give them the status of an indigenous national minority.
2. To guarantee cultural autonomy for state-forming national minorities, which was granted in the Law on National Minorities of 1992: "Article 6. The state guarantees all national minorities the right to national and cultural autonomy: the use and teaching of their native language or the study of their native language in state educational institutions or through national cultural societies, the development of national cultural traditions, the use of national symbols, the celebration of national holidays, the practice of one's religion, the satisfaction of needs in literature, art, mass media, the creation of national cultural and educational institutions, and any other activity that does not contradict current legislation."
On the basis of this, changes should be made in the adopted laws and the following rights most be returned:
• For private institutions of higher and professional education, the possibility of choosing the language of instruction by the founder or owner of the institution must be provided, as well as ensuring the final exams in the language of instruction.
• To restore the status of "institutions with the language of instruction of national minorities (community)" to schools of national minorities, so that they can use the language in all areas of the institution's life.
• Create the possibility of independent external assessment and state final certification in the languages of national minorities, i.e. in Hungarian and other languages of national minorities, the native languages for those who studied in schools/classes with instruction in the language of national minorities.
• Create the possibility of conducting independent external evaluation in other foreign languages of the EU, in addition to those currently available (English, German, Spanish, French): Bulgarian, Greek, Polish, Romanian, Slovak, Czech, as well as Hungarian as a foreign language.
• To ensure the right and possibility for the language of education in the case of national minorities to be part of the system of final/entrance examinations in centers for the assessment of the quality of education.
• The Ministry of Education and Science should take into account that for the majority of national minorities, the application of the same requirements, for example, regarding the minimum number of classes, as in the case of schools with the Ukrainian language of instruction, will mean the closure of these schools in most settlements. It is necessary to take into account the positive European experience and apply a positive coefficient in order to preserve the network of educational institutions of national minorities.
• Develop realistic requirements in the state standard for learning the state/Ukrainian language, which will take into account the specifics of teaching a second language to children for whom it is not their native language. In schools with instruction in language of national minorities, the study of the state language should be carried out in accordance with the standards of the second language (taking into account the specifics of the language of the indigenous population, the relevant national minority). At the same time, one should use the minimum mandatory requirements for the purpose and content of teaching the state language as a second language at the levels defined by the CEFR (Common European Framework of Reference) and recommended by the EU Council resolution (November, 2001) for the creation of national language competence assessment systems. Developing a theoretical and practical basis for mastering Ukrainian as a second language requires new approaches, methods, and a special interpretation of linguistic phenomena.
• In order to preserve the quality of education, it is necessary to preserve the right to teach children in their native language, not to limit the percentage of teaching subjects in their native language. In lessons, teachers may familiarize children with specific terms from the relevant subject in Ukrainian, which will develop their vocabulary while preserving the language of instruction.