After the full-scale invasion of Ukraine by Russian troops on the 24th February 2022, the status of the Russian language and its use in Ukraine have come under critical attention. For many people in Ukraine, Russian became the language of the aggressors, especially after the terrible results of Russian attacks in such cities as Bucha and Irpin. Even Volodymyr Zelenskyy, who before his presidency said that the Ukrainian government should support and develop the Russian language and that there is no need to suppress the Russian language, began to speak exclusively in Ukrainian after the 24th October. The Ukrainian citizenry seems to support this policy, and more than half of Ukrainians now think that the Russian language should not be studied in schools at all.
Despite this, and although the Secretary of the Council of National Security and Defence, Oleksiy Danilov, has expressed that the Russian language must disappear from Ukraine, some local officials remain resistant. For example, the Mayor of Kharkiv has used Russian in his social media, leading to a charge of an administrative offence against him, initiated by the Commissioner for the Protection of the State Language (though this was later dropped by the Kyiv District Court of Kharkiv because of procedural issues). But such a case is not unique, and from time to time issues have arisen even from university professors continuing to use Russian, in contravention of legislative provisions which oblige officials and education to use the official language of Ukraine.
Following Constitutional provisions, the state language of Ukraine is the Ukrainian language (Article 10). It must therefore be used by state and municipal officials, barristers, and notary workers, as well as educators, medical workers, and workers of the state and municipal companies (under Article 9 of the Law On ensuring the functioning of the Ukrainian language as the state language). However, Article 10 also prescribes that free development, use, and protection of Russian and other languages of national minorities of Ukraine shall be guaranteed. This caveat is a Soviet atavism, which unfortunately was not changed in the Constitution upon Ukraine’s gaining independence. Following from this (under Article 53), the Constitution guarantees citizens belonging to national minorities the right to education in their native language, or the opportunity to study their native language at state-run educational establishments or national cultural societies.
Thus, under these paradoxical Constitutional provisions, which seem not relevant to the current situation (war with Russia), the free use of Russian in Ukraine is legally complex in some spheres. Moreover, such constitutional provisions cannot be changed or amended under conditions of martial law or a state of emergency (Article 157). Before the full-scale invasion, the provisions of the Law on ensuring the functioning of the Ukrainian language as the state language were challenged in 2021 in the Constitutional Court of Ukraine. Fifty-one Members of Parliament alleged that the law discriminated against Russian-speaking citizens, contravening provisions of the Ukrainian Constitution.
In reviewing the case, the Constitutional Court affirmed that knowing the Ukrainian language is the duty of every citizen of Ukraine but that each citizen is free to choose a language for private communication. The Court also held that although the Constitution singles out the Russian language as an example of a language of a national minority, this does not mean that the Constitution grants it privileged legal status. Another case was heard after 24 February 2022 and thus could take into account subsequent acts of Russian aggression. In this later case – concerning the statutory name of Religious Organizations – the Court stated that its judgment is given in the context of conditions of martial law owing to the Ukrainian people’s struggle against the Russian Federation’s aggression. Because of this context, the Court is bound to consider these factors in determining the legitimacy of state authorities’ measures. In consequence, it is to be predicted that in future constitutional challenges regarding the use of Russian in Ukraine, courts will pay heed to these conditions in making their findings with respect to certain minority languages’ place in Ukrainian society.
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