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III-4/A-3

DECISION

OF THE CONSTITUTIONAL REVIEW CHAMBER

OF THE NATIONAL COURT

of September 6, 1993

Legislationline Comment: A City Council called for a local referendum to determine whether the locality shall be granted local autonomy within Estonia. The referendum, which actually took place in July 1993, was challenged by the Legal Chancellor before the Constititonal review Chamber of the National court, which ruled in his favour, arguing that first, the referendum could only be of a consultative nature and second, that the granting of a local autonomy within Estonia was a national issue, which could not be subject to a local referendum. The act by which the City Council called for a local referendum wad delcared void in its entirely.

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Review of the petition of the Legal Chancellor, pursuant to Section 142, par. 2 of the Constitution, seeking to declare the resolution of the City Council of Sillamäe dated July 6, 1993, entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993", null and void.

The Constitutional Review Chamber sitting in a panel presided over by the chairman of the Chamber, Chief Justice Rait Maruste and composed of members of the Chamber, associate justices Tõnu Anton, Lea Kalm, Jaano Odar, Jüri Põld, with the Legal Chancellor, Eerik-Juhan Truuväli, and the representative of the City Council of Sillamäe A. Maksimenko appearing, and in the presence of temporary secretary to the Chamber, Katri Hellat and interpreter Virve Heiman, reviewed the petition of the Legal Chancellor seeking to declare the decision of the City Council of Sillamäe dated July 6, 1993, entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993", to be null and void since it is contrary to the provisions of §§ 2, 3 and 154 of the Constitution as they relate to each other.

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

On July 6, 1993, the City Council of Sillamäe passed a resolution entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993". § 1 of the resolution set July 17 as the date for a referendum (public opinion referendum of the residents) which posed the following question: "Do you want Sillamäe to have a status of national-territorial autonomy within the Republic of Estonia, where equal rights would be guaranteed to all residents?". § 2 of the resolution proposed that social organisations and movements present their representatives to the nine member city commission for the purpose of conducting the referendum. On July 7, 1993, the City Council of Sillamäe confirmed the composition of the Commission and formed five voting districts. On July 12, 1993, the Legal Chancellor, relying on § 142, par. 1 of the Constitution, proposed to the City Council of Sillamäe that it conform its resolution of July 6, 1993, entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993", to the Constitution and the laws. The City Council of Sillamäe received the proposal of the Legal Chancellor on July 12, 1993. Two days later, on July 14, 1993, the City Council issued a statement to the President of the Republic. In that statement no mention was made of the proposal submitted by the Legal Chancellor. On August 2, 1993, the Chairman of the Sillamäe City Council informed the Legal Chancellor, without mentioning the respective resolution, that the City Council "found no reason to amend the resolution of July 6, 1993".

The referendum (public opinion referendum of the residents) was conducted on July 17, 1993.

On August 3, 1993, the Legal Chancellor, pursuant to the provisions of § 142, par. 2 of the Constitution and § 17 of the Legal Chancellor's Activities Act, petitioned the National Court. In the petition the Legal Chancellor, according to § 152, par. 2 of the Constitution, asked the National Court to declare the resolution of the City Council of Sillamäe dated July 6, 1993, entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993", to be null and void.

The Legal Chancellor presents the following grounds for his petition:

1. § 2 of the Constitution does not contemplate a national-territorial autonomy within the Republic of Estonia. The absence of an act dividing Estonian territory into administrative units (§ 2 of the Constitution) does not provide a basis for a local government council to determine its own status. Pursuant to § 2 (2) (2) of the Local Government Act, local government is exercised through democratically formed authorities; and, in addition, with respect to local issues, by means of public opinion referendum, popular vote or similar initiative. The calling for a popular vote does not fall within the jurisdiction of a local government.

2. The activities authorised by the City Council of Sillamäe in § 2 of its resolution dated July 6, 1993, are, as a consequence of Paragraph 1 of the petition of the Legal Chancellor, unconstitutional and unlawful.

Having reviewed the documents submitted and having heard the participants, the Court finds:

In the resolution of the City Council of Sillamäe the term "referendum (public opinion referendum of the residents)" was used. In the official Russian translation of the Constitution the equivalent to the Estonian term "popular vote" is "referendum". The terms "popular vote" and "public opinion referendum of the residents" have substantively different legal meanings. Public opinion referendums of the residents are contemplated in § 15 (2) of the Local Government Act. The legal consequences of a public opinion referendum of the residents and a national public opinion referendums are not different. The result of a public opinion referendum of the residents, unlike of a popular vote, is not legally binding on either the national or local government authorities and consists only in determining the opinion of those participating. Using these specific meanings it remains unclear what the City Council of Sillamäe actually had in mind in its resolution of July 6, 1993.

Pursuant to § l54, par. l of the Constitution, local governments decide and regulate all local issues. § 2 (2) (2) of the Local Government Act provides that local government is exercised through democratically elected authorities; and, in addition, by means of public opinion referendum, popular vote or similar initiative, but only with respect to local issues. The creation of a national-territorial autonomous unit is not a local, but a national issue. Therefore the conducting of a popular vote on the question of a national-territorial autonomy is outside the jurisdiction of local government and contrary not only to § 154, par. 1 of the Constitution, but also to § 2 (2) of the Local Government Act.

Pursuant to § 15 (2) of the Local Government Act, a local council is authorised within its territory to conduct public opinion referendums of the residents on important issues. However, by § 2 (2) (2) of the same Act, the referendum is restricted to local issues. Therefore, the conducting of a referendum on the question of a national-territorial autonomy is contrary to § 2 (2) (2) of the Local Government Act.

§ 50 of the Constitution does provide the opportunity for national minorities to establish, in the interests of their national culture, self governing authorities under the conditions and procedures set forth in a cultural autonomy of national minorities act. The Constitution does not provide for a national-territorial autonomy. Lack of mention of such national-territorial autonomy in the Constitution means that such autonomy is contrary to the spirit of the Constitution.

For the above stated reasons the resolution of the City Council of Sillamäe dated July 6, 1993, entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993", is contrary to the Constitution and the Local Government Act. All decisions and activities based on the said resolution, or done in furtherance thereof, are also null and void.

On the basis of the foregoing and pursuant to § 19 (1) (2) of the Constitutional Review Court Procedure Act, the Constitutional Review Chamber has decided:

To affirm the Legal Chancellor in his petition of August 3, 1993, and to declare the resolution of the City Council of Sillamäe dated July 6, 1993, entitled "Regarding the Execution of the Directions of the Participants of the Meeting of June 30, 1993", null and void in its entirety.

This decision is effective from the date of its pronouncement and is not subject to further appeal.

Rait Maruste

Chief Justice of the National Court