The practice of the ECHR in cases of Russian-speaking residents of Latvia in the context of national security

Dolzhenkova Ekaterina ORCID: 0000-0003-0261-763X PhD in Politics Associate Professor; Higher School of Jurisprudence and Forensic Technical Expertise; Peter the Great St. Petersburg Polytechnic University 195251, Russia, Saint Petersburg, Politechnicheskaya str., 29 litera B skinx@inbox.lv

Introduction. The Republic of Latvia is a member of the European Union, as well as a party to most international treaties and institutions, including those of a regional nature, aimed at ensuring and protecting human rights and freedoms. It is declared that the European Union is based on provisions that enshrine the inalienable rights and freedoms of a person, which all participating countries have pledged to protect. The main contradiction for the Latvian government is the situation of the Russian-speaking population living in Latvia. The Government of the Republic of Latvia is actively making changes to the legislation regarding Russian-speaking residents, as well as Russian citizens who live in Latvia. After 1991, Russian-speaking residents of Latvia were granted the status of non-citizens, which is inherently discriminatory, both from the point of view of electoral rights and from the point of view of social rights, according to which non-citizens do not have the right to hold relevant positions. There is also hidden discrimination when the staff consists mainly of Latvian citizens and Latvians by nationality. Such practices are increasing in the context of the geopolitical situation, within the framework of the current positioning of Latvia as a state that suffered from the actions of Soviet Russia. Such an external and internal political discourse is transferred to the current situation, through which the position of Latvia as a "victim" and the Russian Federation as an "enemy" is interpreted directly, which affects the legal and socio-political status of Russian-speaking residents. The legislative changes that came into force after 2022 discriminate against the situation of Russian citizens, relate to the requirements for knowledge of the state language, failure to comply with which threatens citizens of the Russian Federation with deportation. The Latvian government made national policy dependent on the situation of the Russian-speaking population, in particular, the legal norms on the protection of the state language were interpreted through the need to strengthen and popularize it in contrast to the Russian language, which is referred to as one of the main threats to the Latvian language. And also depending on ensuring national security – the Latvian side interprets actions regarding the Russian language through the prism of integration, which, in turn, according to the Latvian government, is an important factor in ensuring national security.

Along with the increasing practice and threats of the Latvian government against the Russian-speaking population, the opinion of the European Court of Human Rights (ECHR) on cases related to the situation of Russian-speaking residents of Latvia in the context of the issue of national security, as well as how the Court reacts to cases regarding the prohibition of the Russian language, is of interest. The above decisions on the language issue are an important tool that can be used in the analysis of future decisions of the ECHR, in particular with regard to the legislation of 2022 on new requirements for Russian citizens who are required to confirm knowledge of the Latvian language under threat of expulsion ^[1].

Literature analysis. The issue of state responsibility for the violation of human rights and freedoms has been relevant for a long period of time. L. P. Garcheva ^[2] notes the positive side of the reorganization of the international legal mechanism for the implementation of human rights protection through the creation of the ECHR, which led to an increase in cases under consideration. Despite the fact that the court cannot influence the decision of the national courts, it has the right to recognize the applicant as a victim and award compensation, which must be paid by the State recognized as the violator. The state, in turn, may lose its status as a member of the Council of Europe if the ECHR decision is not implemented. Payments come from the state budget, which is filled with taxes from the population, which ultimately leads to the practice when the population pays for the mistakes of state bodies. The decisions of the ECHR are an important tool for reforming national legislation and the system of state bodies in order to avoid similar violations in the future.

The provisions on human rights and freedoms, which are enshrined in international documents, including the European Convention on Human Rights and Freedoms ^[3] (ECHR), are repeated in the constitutions of states, but as D. S. Velieva points out ^[4], these provisions do not relate to the position of human rights and freedoms directly, and they apply to state, executive and law enforcement authorities. In making decisions, the ECHR interprets the European Convention, including using case law. In turn, national courts proceed from the provisions of local law and the protection of their own law and order. The decisions that established a violation of the Convention do not contain provisions on changing and monitoring national legal procedures in order to avoid violations in the future, i.e. the ECHR decision does not oblige State institutions to further use the provisions of the ECHR, as interpreted by the Court. The execution of the ECHR decisions runs into the national judicial system, which has the right to justify their unenforceability, both by protecting legal sovereignty and by justifying their unenforceability ^[5]. The national courts use the provisions of national law, as well as the inaccuracy and incompleteness of the terminology of the Convention.

Discriminatory practices on the part of states, which the ECHR was supposed to resist, and democracy was supposed to replace them, which would become a bulwark for the realization and protection of human rights and freedoms, encounter politically motivated actions of states. A. A. Shcherbinin ^[6] describes in detail the practice of the ECHR in the context of the intervention of the Latvian state in the affairs of the Russian Orthodox Church churches (ROC). The Latvian government at the legislative level has decided to separate the Orthodox Church from the ROC and organize its own Latvian Orthodox Church. According to practice, the decisions of the ECHR on these issues, in many cases, are limited to protecting religious associations from state interference and preventing violations of the provisions of the Convention on Freedom of Religion. Earlier Court decisions were positive in relation to religious associations, but they were also adopted in other political realities.

The ECHR also considers cases concerning the languages of national minorities ^[7]. I. F. Valiullina ^[8] cites a number of approaches in which the term "language policy" combines state policy and state ideology in relation to language. Depending on the purpose of state policy, specific measures are being taken and implemented that can both strengthen the position of a particular language and, conversely, remove it from the legal field. The experience of the Republic of Latvia is the embodiment of the second goal of language policy, when, as N. M. Mezhevich notes ^[9], the Latvian language is recognized as one official language, strict requirements for proficiency in the state language are prescribed by law according to professions and positions, thereby the second largest Russian–speaking community goes beyond the legal field. According to the legislation of the Republic of Latvia, the languages of national minorities are not recognized at the state level, as for Russian-speaking residents ^[10], they were not given the status of a national minority themselves. Russian Russian is also the subject of new amendments to the Law on Education. The Republic of Latvia, after the end of the transition period, when pre–school and school education was conducted in two languages – Russian and Latvian, switches to education only in Latvian. V. V. Vorotnikov ^[11] notes that the Republic of Latvia, like other Baltic countries, initially sought to "sever" ties with the Russian Federation and recognize its Soviet past as a catastrophe. At the moment, the Latvian government, acting on behalf of the state, positions itself as experts on Russia. It is important to note that the Soviet past is interpreted in the context of "occupation" and "terror", which is also used in domestic political discourse, including when adopting legislative initiatives aimed at Russian citizens and the Russian-speaking population living in Latvia.

In the context of historical, political and politically motivated cases where the defendant was the Republic of Latvia, it is impossible not to mention the case "V. M. Kononova v. Latvia", which was written about by such authors as A. H. Abashidze ^[12], A. O. Inshakova ^[13], E. S. Alisievich ^[14]. In the decision on this case, the ECHR ruled in favor of Latvia, finding the applicant guilty. The authors note that in argumentation, the Court uses various evidentiary tools that are the most convenient, thereby distorting international legal norms. The Doctrine is also used by the Court in the most convenient and free interpretation. In turn, the ECHR does not accept controversial points in favor of the applicant. The authors conclude that the Court makes decisions in the absence of clear legal norms, using an interpretation based on its own beliefs, practices and interests.

Materials and methods. The formal legal research method is applied to cases considered by the ECHR against Russian citizens and Russian-speaking residents against Latvia: the Podkolzin case ^[15]; Slivenko v. Latvia ^[16]; the Petropavlovsk v. Latvia case ^[17]; Gaponenko v. Latvia ^[18], the Zhdanok case ^{[19; 20]} and other cases, related to the ban on entry to Latvia ^[21], as well as the decision of the ECHR to restrict the use of the Russian language in educational institutions in Latvia ^[22]. The ECHR rulings pay special attention to the opinion of judges in relation to Russian-speaking residents of Latvia, as well as how the ECHR considers the provisions on the threat to national security from these persons, and how questions about knowledge of the state language are taken into account and resolved. It is important to consider the political conjuncture and historical retrospect that the ECHR uses in cases based on the controversial issue of discrimination.

Results. According to the ECHR ruling of 2002 in the case of Podkolzini, a Russian–speaking Latvian citizen against Latvia, who was denied participation in the general elections due to insufficient knowledge of the state language, the applicant was unable to confirm her knowledge of the Latvian language at the highest level to the inspector, provided that at the time of registration as a candidate she had a valid certificate of knowledge the Latvian language is at the highest level. In turn, the Court found that Latvia had violated Article 3 of Protocol No. 1 to the ECHR on free elections, since at the time of the audit it had a valid certificate.

In 2003, the Grand Chamber of the ECHR ruled in the Slivenko case that the Latvian authorities violated article 8 of the ECHR on the human right to respect for private and family life, namely, there was interference by the authorities in family life by severing "family ties" by separating the victim from her parents. The victim was the wife of a serviceman, and from the family of a Soviet army officer who moved to Latvia in early childhood – by the time of her expulsion, she had the status of "citizens of the former USSR" and had no citizenship. Article 8 indicates the admission of a violation of this right in the event of a threat to national and public security, which was not proven in this case. Since the case concerned the obligation to leave the territory of Latvia for military personnel and their family members, it is important to note the opinion of the Court on this issue, which indicated that the need to expel persons falling under the general rules on national security cannot be considered without taking into account personal circumstances, which are subject to consideration under Article 8. The Court also took into account the fact that a family member, a former Soviet officer, staying in Latvia after completing his service was not previously recognized as a threat to national security. The Court considered the degree of integration of the victim sufficient to take into account the fact of her connection with Latvian society and the possibility of leading a normal daily life, since there was no evidence that the applicant was insufficiently proficient in the State language.

In 2015 The ECHR issued a final decision in the Petropavlovsk case – the applicant actively participated in the education reform in Latvia, which provided for the introduction of an education system in the state language. In particular, Petropavlovsk was the leader of the protest movement "Headquarters for the Protection of Russian Schools", and also participated in the work of the political party "For Human Rights in United Latvia". During the same period of time (2003 – 2004), the applicant began the naturalization procedure for obtaining Latvian citizenship by submitting all necessary documents and passing exams. In turn, the Cabinet of Ministers decided to exclude the applicant from the list for obtaining Latvian citizenship. In the Administrative District Court, the Cabinet of Ministers argued that the applicant had not demonstrated loyalty to Latvia by his actions. Petropavlovsk was also accused of having no genuine connection with Latvia and that he did not want to establish it, and his actions were politically motivated. The Cabinet of Ministers pointed out that the applicant was a threat to national security due to his participation in the above-mentioned organizations, whose activities, according to representatives of the Latvian authorities, were aimed at disturbing public order. The Government of the Republic of Latvia, explaining the actions of the Cabinet of Ministers in not providing Latvian citizenship to the applicant, stressed that he could not refer to ensuring freedom of expression by opposing the education reform. In turn, the actions of the Cabinet of Ministers were characterized as a measure to protect democracy. The ECHR ruled in favor of the Republic of Latvia, arguing that the articles of the Convention on Freedom of Expression and Freedom of Assembly (articles 10 and 11), as well as article 13 on legal protection, are inapplicable. In its decision, the Court referred to the internal rules on granting citizenship, which are determined by each State independently and no special requirements are established by international law, as well as to the fact that the applicant was not denied expression of opinion and participation in public organizations, since he was not persecuted, but could continue opposition activities unhindered.

In 2018, Latvian citizen A. Gaponenko was arrested in Latvia in the case of posting information on social networks threatening national and public security. His posts concerned Russian-Latvian relations, as well as the actions of the Latvian government towards Russian-speaking residents. Gaponenko's actions were regarded by the security authorities as directed against the independence of Latvia. In turn, the applicant filed a complaint with the ECHR about the violation of freedom of expression. The Court found that his detention was justified due to the fact that his actions were aimed at organizing riots. The resolution also noted the actions of the Russian Federation in relation to Georgia and Ukraine, expressing the opinion of the members of the European Union.

Latvian politician T. Zhdanok, who sets herself political goals related to the protection of Russian-speaking residents of Latvia, has repeatedly submitted applications to the ECHR, due to the fact that she was denied the right to run for election. The Latvian security services referred to the fact that T. Zhdanok adheres to pro-Russian views and may pose a threat to national security by his actions.

In 2023, the ECHR registered a case against Latvia by a journalist who was banned from entering the territory of Latvia to a pro-Russian activist with whom the applicant was in a relationship. The Ministry of Internal Affairs of Latvia referred to the fact that the applicant poses a threat to national security because she supports the policy of the Russian Federation and distributes pro-Russian information.

In 2023, the court ruled in the Valiullina v. Latvia case on increasing the proportion of subjects taught in Latvian with a reduction in the use of the Russian language, after amendments to the Education Law in 2018. In its decision, the Court referred to the fact that Latvian is the only official language in Latvia and that the Latvian Government thereby provides equal opportunities for all students to education. In turn, the Court did not find violations of Article 14 of the European Convention, i.e. it did not find discrimination on the basis of language against Russian-speaking students. According to the Court, the amendments provide Russian-speaking students with equal rights with Latvian-speaking students. The Court also considered it appropriate to note that the amendments are also aimed at eliminating the consequences of segregation, which, in the opinion of the court, took place during Soviet Latvia. In turn, the Constitutional Court of Latvia ruled that the amendments are intended to protect the Latvian language and enhance its use, which is a legitimate goal on the part of the Latvian Government. Referring to historical facts, the Court found it necessary to note that during the Soviet Union the use of the Latvian language was limited in favor of the Russian language, including for this reason, today it is necessary to protect the Latvian language. The Constitutional Court of Latvia continues to operate in the Soviet period, arguing that the socio-political consequences of language and migration policy still take place on the territory of Latvia. Thus, the ECHR argues that the actions of the Latvian government are aimed at eliminating the consequences of the activities of the USSR government in relation to Latvia, and also that the state can independently make decisions on the protection of the national language depending on specific conditions, including historical retrospect.

Discussion. The case from 2002 shows exactly how the Latvian authorities continued their campaign against representatives of Russian-speaking residents who are citizens of Latvia and, accordingly, have the right to participate in electoral processes. The ECHR, in turn, proved without contradiction the violations committed by the Latvian institutions. As for the Slivenko case, Latvia's policy towards Russian–speaking residents who were related to the Soviet army and their descendants is observed here. It is important to note that the Latvian government in such cases relies on national security and makes it dependent on knowledge of the state language, i.e. on the degree of integration into Latvian society. The ECHR made its decision in 2003, relying not on historical and political discourse, but adhering, among other things, to the position of Latvia, which for a long time did not pay attention to the alleged "threat to national security" on the part of the applicant. The Court considered the level of integration of the victim, who had lived in Latvia for a long time, to be sufficient.

In the decisions of the ECHR from 2015 onwards, if we correlate them with the geopolitical agenda and the aggravation of relations between the Russian Federation and the countries of the European Union, as a result of which the rhetoric against Russia and everything related to it began to be "unfriendly", we can find separate politically biased actions of the Court against Russian-speaking applicants. Thus, in the Petropavlovsk case, the Latvian side argued about the threat to national security on the part of the applicant, referring, among other things, to his relationship to organizations that represented the interests and rights of the Russian-speaking population, which was eventually recognized by the Court as positive and characterized as having the opportunity to participate in socio-political organizations. And the fact of refusal to undergo the naturalization procedure was completely ignored in view of his active socio-political activities within the framework of organizations and movements defending the rights of Russian-speaking residents of Latvia.

In subsequent cases, the ECHR directly refers to the geopolitical situation and justifies its own decisions, characterizing the foreign policy actions of the Russian Federation. Thus, the Court creates a precedent in relation to applicants when their case is considered in the context of characterizing the actions of the State to which they belong on civil and/or national grounds. The political and historical retrospective used by the ECHR is most vividly represented in the Valiullina case, where the Court directly refers to the interpretation of the actions of the Soviet Union on the territory of Latvia and their consequences, based on national rhetoric, which in general indicates the political bias inherent in judges when making decisions.

Conclusion. The ECHR takes into account the socio-political and historical context adopted at the national level in its decisions. The Court also relies on the geopolitical conditions interpreted by the European Community, based on the hostile attitude towards the Russian Federation. The practice of the ECHR in cases against Latvia shows that the Court proceeds from nationally accepted socio-political attitudes in which the Russian-speaking population is declared a threat to national security. The policy of Russophobia, in turn, manifests itself through the prohibition of the use of the Russian language, as well as through restrictions on conducting human rights and socio-political activities to improve the situation of the Russian-speaking population. Despite the fact that the Court does not directly indicate the provisions of national security in the decisions that were rendered in favor of Latvia, to which the Latvian side resorts as a defendant, the Court, in further argumentation of the decision, justifies the conclusion in one way or another, citing arguments referring to national security. The issues of national security and its provision in the rhetoric of the Latvian side directly follow from the interpretation of the actions of either modern Russia or the actions of the Soviet Union, and the Russian-speaking population living in Latvia is characterized as a "continuator" of Russian and/or Soviet policy. Thus, when the ECHR does not directly point to national security, but provides arguments, characterizing Russia and/or the Soviet Union, the Court thereby agrees with Latvia's position, which entails justifying discrimination against the Russian-speaking population in the context of protecting national and public security. Based on the established precedents, it can be assumed that one should not expect a positive Court decision against Russian citizens when filing claims of discrimination by the Latvian government, when the Latvian government and national courts argue their own position based on the protection of national security.