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Judicial Adjudication of Language Rights in Central, Eastern, and South-Eastern Europe. Principles and Criteria

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Abstract

Central, Eastern, and South-Eastern Europe are among the regions where minority including linguistic rights are more developed, at least on paper. Not always, however, have these rights been fully and effectively implemented so far. Several obstacles hamper effective implementation. Besides general problems, such as high costs or administrative and organizational requirements, in many countries of Central, Eastern and South-Eastern Europe, linguistic rights have been granted as a concession to the international community rather than out of sincere commitment. Minority rights are thus often highly politicized. In such a context, the role of the judiciary in determining principles and criteria for linguistic rights is of extreme importance. The paper casts some light on the adjudication of linguistic rights of national minorities in Central, Eastern, and South-Eastern Europe, by examining the relevant case law and, above all, by trying to infer the underlying principles and criteria developed by the courts. It concludes that courts are overall quite deferential to the general political climate in their respective country. At the same time, however, some judicial decisions clearly indicate that courts are gradually emancipating from the mainstream political options and are increasingly able to impose non-majoritarian decisions, thus proving evidence of a slow but evolving establishment of the rule of law.

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Article
Given that borders control and the managing of migration flows are traditionally seen as the more-or-less exclusive preserve of the nation-state, the founding Treaties of the European Communities did not provide for any rule aimed at promoting supranational co-operation in these areas. As soon as the European Economic Community (EEC) evolved into the more cohesive European Union (EU), however, a gradual European-level involvement in establishing a common legal framework on the conditions of admission and stay of third country nationals and on the convergence of policies originally not covered by the Treaties occurred. Steps towards building a common EU approach to immigration do not, however, automatically meet the expectations and interests of national policies, which, in light of recent increases in immigration towards and across the EU countries, are often more concerned with limiting immigration and to putting limitations on who may enter and why than with adopting common solutions to common challenges. Against this backdrop, this paper presents empirical evidence from the cases of Italy and Germany of how national concerns and different views over integration of foreigners may cause opposition to the development of an effective EU immigration policy.
Quiet Diplomacy in Action
  • Kemp Walter
Kemp Walter, Quiet Diplomacy in Action. The OSCE High Commissioner on National Minorities (Kluwer, The Hague, 2001), 153-165.
Revisiting a Success Story: Implementation of the Recommendations of the OSCE High Commissioner on National Minorities to Ukraine
  • Kulyk Volodymyr
Kulyk Volodymyr, "Revisiting a Success Story: Implementation of the Recommendations of the OSCE High Commissioner on National Minorities to Ukraine, 1994-2001", CORE Working Paper, Hamburg 2002.
Reinforcement of the Rule of Law. Division of competencies and interrelations between courts, prosecutors, the police, the executive and legislative powers in the Western Balkans countries
  • Marko Josef
  • Palermo Francesco
  • Woelk Jens
Marko Josef, Palermo Francesco, Woelk Jens, "Reinforcement of the Rule of Law. Division of competencies and interrelations between courts, prosecutors, the police, the executive and legislative powers in the Western Balkans countries", Strategic studies -CARDS (2003), at: http://www.kfunigraz.ac.at/suedosteuropa/media/Finalreport.pdf.
Filling the Frame. Five years of monitoring the Framework Convention for the Protection of National Minorities
  • Packer John
Packer John, "Situating the Framework Convention in a wider context: achievements and challenges", in: AA.VV., Filling the Frame. Five years of monitoring the Framework Convention for the Protection of National Minorities (Council of Europe Publishing, Strasbourg, 2004).
Federalism in Russia: Ethnic and Asymmetrical
  • Poggeschi Giovanni
Poggeschi Giovanni, "Federalism in Russia: Ethnic and Asymmetrical", in: Francesco Palermo, Carolin Zwilling, Karl Kössler (eds.), Asymmetries in Constitutional Law. Recent developments in Federal and Regional Systems (Eurac book 53, Bolzano/Bozen 2009), 97-116.
Globalization and Nationalism: The Cases of Georgia and Basque Country
  • Sabanadze Natalie
Sabanadze Natalie, Globalization and Nationalism: The Cases of Georgia and Basque Country (Central European University Press, Budapest, 2009).
Identities and Language Policies in Ukraine: the Challenges of Nation-Building
  • Stepanenko Viktor
Stepanenko Viktor, "Identities and Language Policies in Ukraine: the Challenges of Nation-Building", in: Farimah Daftary and Francois Grin (eds.), Nation-Building, Ethnicity and Language Politics in Transition Countries(ECMI, Flensburg, 2003).
The European Charter for Regional or Minority Languages. A Critical Commentary
  • Jean-Marie Woehrling
Woehrling, Jean-Marie, The European Charter for Regional or Minority Languages. A Critical Commentary (Council of Europe Publishing, Strasbourg 2005), 160-163.
001 of 27 February 2008on the effective participation of persons belonging to national minorities in cultural, social and economic life and public affairs
Commentary ACFC/31DOC(2008)001 of 27 February 2008on the effective participation of persons belonging to national minorities in cultural, social and economic life and public affairs.
Russian Federation Constitutional Court of the Russian Federation
  • Court Latvian Constitutional
Latvian Constitutional Court, no. 2004-18-0106, judgment of 13.5.2005. Russian Federation Constitutional Court of the Russian Federation,, no. 12-п., decision of 27.4.1998. Constitutional Court of the Russian Federation, no. 16-п., decision of 16.11.2004.
70/2010-0-1, decision of 14.7.2010. Lithuania Lithuanian Constitutional Court
  • U Macedonian Constitutional Court
Macedonian Constitutional Court,U. 70/2010-0-1, decision of 14.7.2010. Lithuania Lithuanian Constitutional Court,Kleczkowski v.Klečkovski, judgment no. 1285/2004.
The Application of the Multi-Level Governance Model outside the EU-context -The Case of Food Security"1
  • Katarzyna Marzeda-Mlynarska
Katarzyna Marzeda-Mlynarska, "The Application of the Multi-Level Governance Model outside the EU-context -The Case of Food Security"1 European Diversity and Autonomy Papers -EDAP (2011), at www.eurac.edu/edap. 04/2010
  • Francesco Palermo
Francesco Palermo, "Internazionalizzanione del diritto costituzionale e costituzionalizzazione del diritto internazionale delle differenze" 2 European Diversity and Autonomy Papers -EDAP (2009), at www.eurac.edu/edap. 01/2009
A Thousand Streams and Groves
  • R Peter
  • Teachout
Peter R.Teachout, "A Thousand Streams and Groves:" Comments on Dr.
Die Sprache und der Binnenmarkt im Europa der EU: Eine kleine Beziehungsaufstellung in 10 Punkten
  • N Gabriel
  • Toggenburg
Gabriel N.Toggenburg, "Die Sprache und der Binnenmarkt im Europa der EU: Eine kleine Beziehungsaufstellung in 10 Punkten", 1 European Diversity and Autonomy Papers -EDAP (2005), at www.eurac.edu/edap. 7/2004