07 Mar Discrimination based on using Ijekavian in court proceeding

In the case Paun Jovanović v. Serbia (application no. 41394/15, 07.02.2023) the Court found a violation of the Article 1 of Protocol No.12. (Prohibition of discrimination) of the European Convention on Humana Rights. The application concerned the official use of two standard variants of the Serbian language, Ekavian and Ijekavian, in judicial proceedings. In particular, the applicant, a practising lawyer and a speaker of the latter variant, complained that he had been discriminated against and been denied the opportunity to speak it by an investigating judge while acting on behalf of his client, a defendant, in the course of criminal proceedings. At the same time, the lawyer representing the victim in the same proceedings was permitted to use Ekavian without any hindrance. The standard Serbian language is the principal language in official use in Serbia. This language has two equal variants: Ekavian and Ijekavian. The Serbian spoken outside of Serbia, in the territory of the former Socialist Federal Republic of Yugoslavia including Montenegro, is predominantly Ijekavian, while in Serbia itself, including the town of Bor, which is where the criminal proceedings at issue took place, it is the Ekavian variant which is used by the population in general and by the respondent State’s judicial and other authorities.

The Court found that the applicant was treated differently from the Ekavian speaking lawyer, who had acted on behalf of the victim. This difference was based on a ground of distinction covered under Article 1 of Protocol No. 12, namely his use of Ijekavian as one of the two variants of the Serbian language in equal official use domestically. It is also clear, in this context, that while “language” has specifically been mentioned as a ground of distinction in Article 1 of Protocol No. 12, an officially recognised variant thereof.

Since the Government have not admitted that the applicant had been a victim of any differential treatment, they also offered no explanation as to why such treatment would have been legitimate, reasonable or proportionate. They have therefore not discharged the burden of proof incumbent on them. The Court nevertheless reiterates that it is clearly legitimate for a State Party to the Convention to regulate matters involving the official use of a language or languages in court proceedings and that the same should apply, mutatis mutandis, to different variants of the same language, such as in the present case. This must, however, be distinguished from “the right” to use an unofficial language of one’s choice in communication with public authorities, which right, as such, has never been recognised by the Court in its case-law.

The Court, furthermore, notes that Matica srpska, as the oldest linguistic authority in Serbia, and the Government themselves have both acknowledged that the Serbian language “has two equal variants”, that is Ekavian and Ijekavian, and that both can be used officially.

In these circumstances and having already established that the applicant had been treated differently from another lawyer in an analogous or relevantly similar situation, based on his use of Ijekavian, the Court is of the opinion that there could not have been an objective and reasonable justification for such treatment.

Lastly, the margin of appreciation, could only have been of relevance in terms of possible linguistic policy choices, as regards how to legally regulate the use of an official language in court proceedings, but not in a situation where, such as in the present case, there was a failure on the part of a judge to implement the undisputed interpretation of the already existing legislation on this matter. There has accordingly been a violation of Article 1 of Protocol No.12.

Reference from the official website of the European Court of Human Rights