Catalan in school and the ECHR: dotting the i's

While waiting for the Constitutional Court to rule on the educational linguistic legal framework (May-June 2022), we have learned of the European Court of Human Rights (ECtHR) decision not to admit the lawsuit filed by a group of parents from the Turó del Drac school in Canet de Mar against the ruling of the High Court of Justice of Catalonia (TSJC; October 2023) which obliged a class group to receive an additional core subject in Spanish due to the request of a student's family.It was not an isolated incident: there were twenty-two centers in the same circumstances. The date of the ruling, however, is relevant. It is subsequent to the decision of the TSJC itself (July 2022), which suspended the execution of a ruling from December 2020 that no longer affected a single center, but rather imposed 25% Spanish in the entire educational system following the challenge of the enrollment regulations for the 2015-2016 academic year. The TSJC had to reluctantly acknowledge that the parameter used to enforce the 25% was incompatible with the new legal framework, which established Catalan as the vehicular language and Spanish as a curricular subject. Nevertheless, disagreeing with this, it took the matter to the TC, as did the PP.The case of the Canet school and others is explained, therefore, by the stubbornness —and the cunning— of some judicial bodies to continue questioning the linguistic model in this waiting period. They have done so by perpetuating the guerrilla warfare in some centers, under the pretext that the new laws did not affect judicial decisions previously made provisionally. In this context, although the appropriateness of the decision can be debated, the parents of Turó del Drac filed an appeal with the Supreme Court and the Constitutional Court. Once admitted, without entering into the merits, they went to the ECHR, which, through a decision, also dismissed it. The decision was made by a committee of the 5th section, a body that usually resolves these types of incidents if the claims are considered manifestly unfounded or raise issues already resolved by jurisprudence. It must be assumed that, in this determination, one of the three members of the committee has played a significant role: the Spanish María Elósegui, appointed in 2018 from a shortlist proposed by the PP, with a very conservative profile and the right to act as a "national" judge because it is a case brought against Spain.

The main issue examined was whether the Canet sentence was discriminatory to the private or family life of the plaintiffs. The committee denied this, applying the well-known ECHR doctrine on the Belgian and Latvian cases, noting that Catalonia is a bilingual territory in which “the Catalan and Spanish, as official languages, enjoy equality [?]” and that, since only Spanish is official throughout the State —a pernicious fact that derives from article 3 of the Constitution—, receiving education in this language becomes “crucial to facilitate equal access for students to the state educational system”.However, the Belgian case mentioned (1968), which condemned Belgium because some Francophone children received different treatment “without objective and reasonable justification”, established —and this is relevant— that parents do not have the right to choose the language of instruction, and recalled that the European Convention does not specify the weight of languages in curricula, but rather that it is up to the states. The other judgment cited (Valiullina v. Latvia, 2023) added that, since Latvian is the only official language of that country, the Russian minority could not claim discrimination because the presence of Russian was reduced. Thus, they made it clear that the ECHR's control is one of proportionality based on factors such as the country's history, prohibitions, etc.Carrying out this balancing act in the case of Canet, unfortunately, the committee concluded that 25% Spanish is adequate, with the argument that the immersion model hinders the integration of children schooled in Catalonia outside of this territory, a complaint that the Spanish Constitutional Court has never accepted and which, needless to say, disregards the results of a pedagogical method that guarantees knowledge of both official languages at the end of the compulsory educational stage; which, incidentally, is the objective that the competent administrations must pursue according to the law. In any case, it is a decision that does not create jurisprudence or bind other instances of the ECtHR or the Spanish courts. It is a soft precedent with a certain interpretative value and based on a biased and incomplete balancing exercise that not only does not take into account the court's own jurisprudence, but also historical, pedagogical or internal factors, such as the pending "lawsuit" at the TC. Therefore, it cannot be said, alarmingly, that "Strasbourg has validated 25% Spanish in classrooms". The mother of all battles are the future rulings of the TC, which, for better or worse, holds a lengthy and heterogeneous jurisprudence, and uses a different parameter of judgment, in which aspects such as fundamental rights, competences, the constitutional regime of linguistic officiality and principles such as legal certainty are mixed.