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04.06
2018

The Court Examined the Constitutionality of Certain Legal Provisions on the Use of Russian Language in the Territory of the Republic of Moldova and on the Inapplicability of Constitutional Review of Laws Passed Prior to the Entry Into Force of the Constitution

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On Monday, 4 June 2018, the Constitutional Court of Moldova was called upon to deliver on the constitutionality of certain provisions of the Law on the use of languages spoken on the territory of the Moldovan Soviet Socialist Republic, Law on publishing and enactment of official acts, Law on the rights of individuals belonging to national minorities and legal status of their organisations, Parliament’s Rules of Procedure, Code of Constitutional Jurisdiction and the Law on the Constitutional Court.

Circumstances of the case:
According to Article 13 of the Constitution, in the Republic of Moldova the state language is Romanian. Hence, Russian language enjoys a special status, manifested particularly by (i) the obligation to translate all the laws and other normative acts into Russian language; (ii) safeguarding the implementation of the rights of national minorities to pre-school education, elementary, secondary school, higher and post-university education in Russian language; and by (iii) the possibility granted to individuals from national minorities to communicate with public institutions in Russian language and to be answered in this language.

These legal provisions ensuring a special status for Russian language were challenged by a group of MPs who based their critique of unconstitutionality on Articles 13 and 16 of the Constitution. The last Article thus provides that all the citizens of the Republic of Moldova are equal before the law and before public authorities, regardless of their race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property or social origin.

According to the applicants, the challenged provisions affect the status of Romanian language as the official language of the Republic of Moldova. At the same time, this would amount to discrimination for other minorities than the Russian one, as the languages spoken by them do not enjoy the status granted to Russian language.

Analysis of the Court:
The Court undertook firstly an analysis of the Law on the use of languages spoken in the territory of the Moldovan Soviet Socialist Republic. Given the title itself of this law, the doubts involved by its wording, but also practical considerations, the Court had to refine its practice on the admissibility of applications. It had to firstly verify whether this law is in force, in general, and subsequently to find whether there is a need to deliver on the compliance with the Constitution. The Court noted that the name itself of the law is obsolete (fallen into desuetude): the name “Moldovan Soviet Socialist Republic” ceased to exist since 23 May 1991, when the name of our State changed to the ”Republic of Moldova.”

The Court observed that preserving the same name for the law induces a paternalism for the use of languages overall, inconsistent with the current European reality in the field of fundamental rights. The Court also found in the preamble of the law another proof of the obsolete nature thereof: the obligation to use Russian language as a language of communication between the nations of the Union of Soviet Socialist Republic. The Union of Soviet Socialist Republics collapsed on 26 December 1991. Further, should there be accepted that this law is in force, such an obligation would amount to the imposition of a conception of paternalist nature, atypical for the contemporary period. On contrary, the nations of the successor states of the Union of Soviet Socialist Republics may use any language of communication they wish, as it is the act of understanding which is important.

The Court further brought forward more examples from the law, outweighed by the actual reality.

According to the Court, the transitory nature of this law, valid solely for the times it was passed, is proven also by numerous subsequent laws taking over provisions thereof. Thus, the Law on the rights of persons belonging to national minorities and on the legal status of their organisations, the Law on the special legal status of Găgăuzia [an autonomous region of Moldova – translator’s note] and the Law on the basic provisions of the special legal status of the region of the left bench of Nistru river, the Law on advertisement, the Law on state registration of legal entities and of individual enterprisers, the Law on regulating by authorisation the work of enterprises and the Law on the freedom of conscience, thought and religion develop or even radically change the provisions of the Law on the use of languages in the territory of the Moldovan Soviet Socialist Republic. However, the civil and criminal procedural laws come out with an approach differing from that of the Law on the use of languages spoken in the territory of the Moldovan Soviet Socialist Republic as what regards the language the requests are submitted in and the language that the judicial procedures take place in the Republic of Moldova.

All these considerations made the Court find the obsolete and useless nature of the Law on the use of languages spoken in the territory of the Moldovan Soviet Socialist Republic. On the one hand, it is not its provisions that produce effects, but the provisions of subsequent special laws. On the other hand, the community of the Republic of Moldova lives in another state, a new, democratic, independent, rule of law based state, where the then momentary raison d’être of the Law on the use of spoken languages makes no sense anymore.

The Court emphasized that the effect of declaring a law obsolete amounts to its repeal. Accordingly, it declared as inadmissible the part of the application on this law.

Next, the Court had to examine the applicability of Article 13 of the Constitution.

The Court noted that the official character of Romanian language in the Republic of Moldova does not preclude the translation of normative acts adopted or issued by certain central authorities of the Republic of Moldova in other languages, the safeguard by the state of the right to education in Russian language, publication of normative acts, official communication and other information of national importance in Russian language and displaying the names of institutions and public use places in Russian language. From this point of view, the challenged legal provisions do not provide for the publication of normative acts, teaching or displaying the names of institutions and public use places exclusively in Russian language, but first in Romanian language, and then in Russian as a subsequent option.

Examining the disputed legal provisions in this sense, the Court did not attach significance to the allegation that the official character of Romanian language would be affected. The Court mentioned that should it accept this critique of the applicants, this would amount to a formal fallacy. The conclusion on the violation of Article 13 of the Constitution by an auxiliary use of Russian language in certain areas does not follow from the premise that Romanian language is the official language of the Republic of Moldova. Accordingly, the Court noted that as long as there is a number one priority to publish normative acts, carry out teaching or display the names of institutions in Romanian language, Article 13 of the Constitution is not applicable.

On the applicability of Article 16 of the Constitution, which provides for the equality of the citizens before the law and of the public authorities, the Court emphasized the importance for the Republic of Moldova to observe the provisions of international conventions on the protection of national minorities.

Although the European Charter for regional or minority languages does not guarantee a blanket right for the speakers of regional or minority languages to communicate with authorities in their languages, it however requires the states, in Article 10, to take a positive stand on the use of a regional or minority language in people’s contacts with administration and public services, when possible, with no excessive constraints from public authorities.

The issue of an alleged discrimination of minorities against other languages than Russian language does not have to lead to the removal of Russian language from the challenged provision. The Court also emphasized this fact in light of those provided by the Charter of Paris for a New Europe, in that there shall be fostered the rich contribution of national minorities to the life of our societies and that their situation shall be further improved. Signing this Charter, the Republic of Moldova reaffirmed its deep conviction that peace, justice, stability and democracy require that the ethnic, cultural, linguistic and religious identity of national minorities be protected and conditions for the promotion of that identity be created. The Republic of Moldova undertook that questions related to national minorities will only be satisfactorily resolved in a democratic political framework.

The Court emphasized that the Declaration of Independence of the Republic of Moldova opened the way for the country to join the Charter of Paris for a New Europe. As a result, safeguarding linguistic rights of national minorities of the Republic of Moldova is part of its constitutional identity, a conclusion deriving from the Judgment of the Constitutional Court of Moldova no. 36 of 5 December 2013, para. 86.

The Court took into consideration binding international treaties for the Republic of Moldova that provide for minimum standards on the rights of linguistic minorities. It emphasised the importance of bringing this issue before the lawmaking authority.

The Court mentioned that it cannot allow for the constitutional mechanism of fundamental rights protection to ensure the MPs in opposition disappointed by a state policy – which is in line with international standards in the field – a victory before the Constitutional Court, a victory they could not secure in the lawmaking and democratic fora, where international conventions provide that the issue of national minorities shall be debated. 

The Court further examined the legal provisions precluding from constitutional review normative acts adopted prior to the entry into force of the Constitution. Irrespective of the amendment or lack of amendment of the laws passed prior to the entry into force of the Constitution, the competence of the Court covers all cases where the laws are in force. It treats these laws the same as it treats the laws adopted prior to the entry into force of the Constitution.

As long as a piece of legislation passed prior to the entry into force of the Constitution is not repealed in line with Article II of the final and transitory provisions of the Constitution, the Constitutional Court may apply a constitutional review thereof. It is motivated to proceed so based on the principle of effectiveness it shall grant to the fundamental rights and based on its statute as guardian of the Constitution.

The solution of the Court:
The Court has partially admitted the application made by the MPs Mihai Ghimpu, Lilian Carp, Petru Cosoi, Valerian Bejan, Roman Boțan, Ion Apostol, Ion Casian, Alina Zotea-Durnea and Ștefan Vlas;

it has declared unconstitutional Article 4 (2) of the Code of Constitutional Jurisdiction adopted by the Law no. 502 of 16 June 1995 and Article 31 (2) of the Law no. 317 of 13 December 1994 of the Constitutional Court;

it found as fallen into desuetude the Law no. 3465 of 1 September 1989 on the use of languages spoken in the territory of the Moldovan Soviet Socialist Republic;

and

it has declared as inadmissible the other grounds of the application.

The full Judgment of the Constitutional Court of Moldova can be accessed here.

This is an English language courtesy translation of the original press-release in Romanian language.

 
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