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DECISION

OF THE CONSTITUTIONAL REVIEW CHAMBER

OF THE NATIONAL COURT

of 4 November 1998

Legislationline Comment: the legal issue raised in this case is the same as that of the case of February 1998 also displayed on Legislationline (accessible from the same web page) and the legal reasoning held by the Chamber does not depart from that followed in the previous case: the language requirements that pose restrictions on the right to stand as a candidate in an election (namely, all candidate are required to certify in writing their proficiency in the Estonian language) shall be regulated by law (in the instant case, as it refers to local elections, a constitutional law is required), and not left at the discretion of the executive.

Review of the petition of Harju County Court seeking to declare section 3 (3) and subsection 7 (1) of section 26 of the Local Government Council Election Act, subsection 5 (1) of the Language Act, and regulation no. 188 of the Government of the Republic, named " Enactment of the description of the level of the command of Estonian language necessary to work in the Riigikogu and local government councils" partially invalid.

The Constitutional Review Chamber sitting in a panel presided over by the Chairman of the Chamber Jaano Odar and composed of members of the Chamber, associate justices Tõnu Anton, Lea Kalm, Ants Kull and Jüri Põld, at its session of 21 October 1998, in the presence of the secretary to the Chamber Piret Lehemets reviewed the petition of Harju County Court, dated 4 September 1998.

From the documents submitted to the Constitutional Review Chamber it appears, that:

By its resolution no. 15, dated 25 October 1996, the Maardu city election committee registered the members of the council elected in Maardu city electoral district no. 1 pursuant to the Appendix to the resolution. On 25 June 1997 the National Election Committee filed a protest with the administrative judge of Maardu County Court seeking to annul the said resolution of Maardu city election committee with regard to registration of Juri Šutenko for the reason that he is not proficient in Estonian pursuant to the required level.

During the examination of the protest the court noted that the language requirements for the members of local government councils are established by the Local Government Council Election Act, the Language Act and regulation no. 188 of the Government of the Republic, named "Enactment of the description of the level of the command of Estonian language necessary to work in the Riigikogu and local government councils". Pursuant to section 3 (3) of the Local Government Council Election Act, a person who is proficient in Estonian pursuant to the level provided for in the Language Act, may run as a candidate for member of the local government council. Subsection 7 (1) of section 26 of the same Act establishes that a candidate must confirm in writing that he or she is proficient in Estonian at least at the level provided for in subsection 5 (1) of the Language Act. The Language Act, though, does not specify this level, instead it requires that the members of local government councils be proficient in Estonian at the level the description of which shall be provided by the Government of the Republic. The court found that by this provision the required level of proficiency in Estonian is being given to the Government of the Republic to determine.

The court also found that with regard to local government councils the language requirement pertains to the council members’ passive right to vote, in regard to which the Constitution establishes no qualifications. Thus, the requirements of the level of language proficiency for local government council members must be established by law. Considering the fact that pursuant to subsection 2 (4) of Article 104 of the Constitution the Local Government Council Election Act is a constitutional Act, it is not allowed in this Act to make references to simple laws nor to delegate to the executive power the right to decide on issues pertaining to the field of regulation of constitutional laws. As the decision-making on issues pertaining to right to vote and determination of conditions for elections belong to the competence of the legislator, it is only possible to establish language proficiency requirements by the Local Government Council Election Act.

On the basis of the aforesaid the Harju County Court decided not to satisfy the protest of the National Election Committee, and due to the conflict with Articles 4, 87 (6) and 104 subsection 2 (4) of the Constitution, not to apply:

1.Section 3 (3) and subsection 7 (1) of section 26 of the Local Government Council Election Act to the extent that these establish the requirement of proficiency in Estonian for a candidate for member of the local government council at the level provided for in the Language Act;

2.Section 5 (1) of the Language Act to the extent it delegates the Government of the Republic the right to establish the procedure for providing the level of proficiency in Estonian required for working in a local government council; 3.The regulation of the Government of the Republic no. 188, dated 16 July 1996, to the extent it describes the level of the knowledge of the Estonian language necessary for working in a local government council.

Harju County Court seeks that the Supreme Court annul the said provisions to the extent specified in the petition.

It appears from the opinion of the chairman of the Riigikogu, sent to the Supreme Court, that language requirements for members of local government councils should be established by the Local Government Council Election Act, and that the delegation norm provided for in section 5 (1) of the Language Act should be annulled.

Pursuant to the opinion of the Legal Chancellor, submitted to the Supreme Court, the language requirement established by section 3 (3) and subsection 7 (1) of section 26 of the Local Government Council Election Act is in conformity with the Constitution, as this requirement proceeds from Articles 6, 52 (1) and 156 (1) of the Constitution in their conjunction. The delegation to the Language Act established by section 3 (3) and subsection 7 (1) of section 26 of the election Act is unconstitutional.

Pursuant to the opinion of the Minister of Justice all electoral qualifications must be established by electoral acts, and thus the fact that language requirements are provided for by a simple law or that the establishment of language proficiency level is delegated to the Government of Republic, is in conflict with the Constitution.

Having examined the submitted materials the Constitutional Review Chamber found that:

I. Section 3 (3) of the Local Government Council Election Act determines the general right to vote and establishes, inter alia, that a person who is proficient in Estonian pursuant to the level provided for in the Language Act, may run as a candidate for member of the local government council. Pursuant to subsection 7(1) of section 26 of the same Act, upon presentation for registration of a candidate the standard format consent of the candidate certified by his or her signature has to be appended to the application, in which the candidate must confirm that he or she is proficient in Estonian at least at the level provided for in subsection 5 (1) of the Language Act. Pursuant to subsection 12 of section 26 of the Local Government Council Election Act, if there is no such confirmation, the candidate shall not be registered. If after the registration of candidates it is established that the candidate does not meet the requirements provided for in the election Act, a candidate has not confirmed that he or she is proficient in Estonian at least at the required level, or he or she is not proficient in Estonian at the required level, the candidate may be excluded from among the registered candidates under subsection 3 (4) of section 27 of the election Act.

Thus, section 3 (3) and subsection 7 (1) of section 26 of the Local Government Council Election Act establish the general requirement of proficiency in Estonian for the candidates and make a reference that the Language Act provides for the level of the knowledge of Estonian that meets the requirement.

Pursuant to section 5 (1) of the Language Act, in order to work in a local government council, oral and written knowledge of Estonian is required, whereas "a description of the level of language knowledge shall be provided pursuant to procedure established by the Government of the Republic".

As section 5 (1) of the Language Act authorises the Government of the Republic to establish the procedure for the description of the level of language knowledge, the Riigikogu has, as a matter of fact, abstained from determining the level of the knowledge of the Estonian language by law.

On the basis of this provision, the Government of the Republic, on 16 July 1996, by regulation no.188, approved "The description of the level of the command of the Estonian language necessary to work in the Riigikogu and local government councils". Section 2 of the description provides that the knowledge of Estonian must enable to participate in the council meetings and in the work of commissions and factions. It is explained in the same provision that thus the knowledge of Estonian must enable a member of a local government council to understand legislation and other texts, express his or her opinion, and participate in negotiations, draw up draft legislation, submit enquiries and proposals, and give reports pertaining to the agenda of a session, fulfil tasks given by a council commission or faction, communicate with electors and colleagues and reply to appeals, petitions, enquiries and complaints. Section 3 of the description stipulates a requirement that the knowledge of Estonian of a member of a local government council must correspond to communicative situation in its style and function, and that his or her speech must be comprehensible and his or her written expression correct.

II. In its decision of 5 February 1998 the Constitutional Review Chamber of the Supreme Court found: "Pursuant to Article 104 (2) the election acts are among the laws which may be passed only by a majority of the membership of the Riigikogu. To decide on the right to vote and to establish the conditions for elections are the competencies of the legislative power which may not be delegated to the executive power. The Government of the Republic issues regulations on the basis of and for the implementation of law, and it is not allowed to establish the use of the right to vote by the decisions of the executive power. To do this would mean ignoring the principle of separated powers." With regard to the requirement that a member of a local government council must command Estonian the Chamber found in the same decision: "Pursuant to Article 104 (2) (4) of the Constitution, Local Government Election Act is a constitutional law, too. To regulate relations which belong to the sphere to be regulated by constitutional laws, is unconstitutional. In constitutional laws, neither the norms referring to simple legislation, nor delegation norms allowing the executive to issue general acts in matters which essentially belong to the sphere of regulation by constitutional laws, are not allowed. Consequently, it is possible to establish requirements for the command of Estonian only by the Local Government Act."

Thus, for the reasons stated in the Constitutional review Chamber decision of 5 February 1998, section 5 (1) of the Language Act is in conflict with subsection 2 (4) of Article 104 of the Constitution with regard to the determination of the level of language proficiency and also to the extent it authorises the Government of the Republic to establish the procedure for the description of the knowledge of Estonian.

Also, resolution no. 188 of the Government of the Republic, dated 16 July 1996, is in conflict with Articles 3 (1), 87 (6) and subsection 2 (4) of Article 104 of the Constitution to the extent it establishes the description of the command of Estonian necessary to work in a local government council.

The Harju County Court suggests in its petition that the Supreme Court declare section 5 (1) of the Language Act and regulation no. 188 of the Government of the Republic, dated 16 July 1996, partially invalid. As pursuant to section 4 (3) of the Constitutional Review Court Procedure Act the Supreme Court examines the constitutionality and legality of legislation and foreign treaties only to the extent requested in the petition, the Supreme Court is not competent to examine the constitutionality of section 5 (1) of the Language Act and regulation no. 188 of the Government of the Republic, dated 16 July 1996, in their entirety.

III. Pursuant to section 1 of Article 52 of the Constitution the official language of state agencies and local governments shall be Estonian. Under section 1 of Article 51 of the Constitution, everyone has the right to address state agencies, local governments, and their officials in Estonian and to receive responses in Estonian. The requirements referred to in the Constitution may, in substance, serve as a basis for electoral qualifications affecting the passive right to vote. To establish such qualifications the pertinent requirements and conditions have to be provided for by an electoral law as a constitutional act. The conformity of language qualifications with the Constitution proceeds from the preamble of the Constitution, pursuant to which one of the aims of the Republic of Estonia is to guarantee the preservation of the Estonian nation and culture throughout the ages. As the Estonian language is an essential component of the Estonian nation and culture, without which the preservation of the Estonian nation and culture is not possible, the enacting of electoral qualifications guaranteeing the use of Estonian by the Local Government Council Election Act is constitutionally justified. That is why section 3 (3) of the Local Government Council Election Act, which establishes the general requirement of the command of Estonian, is also in conformity with the Constitution. The delegation norm referring to Language Act within the same provision, though, is unconstitutional, because pursuant to Article 104 (2) of the Constitution a constitutional act must not make references to simple laws. Subsection 7 (1) of section 26 of the Local Government Council Election Act is also unconstitutional to the extent that it refers to section 5 (1) of the Language Act.

IV. The general requirement of the command of Estonian and the language qualification for local government council elections are conditions restricting the right to vote and as such these must meet the constitutional aim of guaranteeing the preservation of the Estonian nation and culture, and also the bases for requirements concerning the use of Estonian established by Articles 52 (1) and 51 (1) of the Constitution. Such restriction must not distort the bases of local government, which proceed from Articles 154 (1) and 156 (1) of the Constitution, namely that the representative body of a local government, which shall resolve and manage all local issues, shall be elected in free, general, uniform and direct elections. Also, the constitutionally justified electoral qualification guaranteeing the use of Estonian may – due to the extent of the restriction – prove to be in conflict with the referred provision of the Constitution or infringe the principle of the representative quality of a local government representative body. Pursuant to Article 11 of the Constitution the restrictions of rights and freedoms – and electoral qualification is essentially a restriction – must be necessary in a democratic society and must not distort the nature of the rights and freedoms restricted.

On the basis of the aforesaid, and pursuant to Article 152 (2) of the Constitution and subsections 1 (2) and 2 of section 19 of the Constitutional Review Court Procedure Act, the Constitutional Review Chamber has decided:

To satisfy the petition of Harju County Court of 4 September 1998, and to declare invalid:

1.section 3 (3) of the Local Government Council Election Act to the extent that it refers to the Language Act (the words "…pursuant to the level provided for in the Language Act"):

2.subsection 7 (1) of section 26 of the Local Government Council Election Act to the extent that it refers to the Language Act (words of the second sentence "…at least at the level provided for in subsection 5 (1) of the Language Act");

3.second sentence of subsection 5 (1) of the Language Act ("The description of the level of the command of Estonian shall be provided for according to the procedure established by the Government of the Republic");

4.Regulation no. 188 of the Government of the Republic, named " Enactment of the description of the level of the command of Estonian language necessary to work in the Riigikogu and local government councils" to the extent that it establishes the description of the level of the knowledge of Estonian necessary for working in a local government council.

The decision is effective as of its pronouncement, is final and is not subject to further appeal.

Jaano Odar,

Chairman of the Constitutional Review Chamber