On Thursday, 21 January 2021, the Constitutional Court delivered Decision no. 4 on the constitutional review of Law no. 234 of 16 December 2020 on the usage of languages spoken on the territory of the Republic of Moldova (applications no. 207a / 2020 and no. 213a / 2020).
Circumstances of the case
The case originated in two applications lodged with the Court by Mr. Octavian Țîcu, Mr. Dinu Plîngău and Mrs. Maria Ciobanu, MPs of the Republic of Moldova.
The authors of the applications requested the Court to review the constitutionality of Law no. 234 of 16 December 2020 on the usage of languages spoken on the territory of the Republic of Moldova.
The Court's analysis
The Court began its analysis, verifying the compliance of the impugned Law with Article 13 of the Constitution.
According to Article 13 para. (1) of the Constitution, in the interpretation of the Constitutional Court Decision no. 36 of 5 December 2013, the State language of the Republic of Moldova is Romanian. The constitutional endorsement of Romanian as a State language grants it the status of the official language of the State. The second paragraph of the same Article provides that the State recognizes and protects the right to the preservation, development and use of Russian and other languages spoken on the territory of the State. The mention of Russian in this constitutional text, is merely an example and does not give Russian, in the Republic of Moldova, a more special status than that of other languages spoken on the territory of the country (Ukrainian, Gagauz, Bulgarian, Romani, etc.). Para. (4) of Article 13 of the Constitution stipulates that the usage of languages on the territory of the Republic of Moldova shall be established by organic law. From this paragraph, the existence of a positive obligation of the Parliament to regulate by organic law the use of languages on the territory of the Republic of Moldova can be deduced. In this respect, the margin of the Parliament's discretion is limited by the constitutional provisions.
From the provisions of Article 13 of the Constitution it can be deduced that it recognizes and protects two values: (i) the official nature of Romanian as a State language and (ii) the right to the preservation, development and usage of other languages spoken within the country.
The Court noted that the Preamble to the Constitution of the Republic of Moldova establishes, inter alia, as an objective to fulfill the interests of citizens of different ethnic origin who constitute the people of the Republic of Moldova, and Article 10 para. (2) of the Constitution requires the State to recognize and guarantee the right of all citizens of the Republic of Moldova to the preservation, development and expression of their ethnic identity.
In order to settle the applications, the Court used the statistical data collected in the 2014 Population Census on the structure of the population by mother tongue and those on the structure of the population by mother tongue in territorial profile. The Court noted that the obligation imposed to the State by Article 13 para. (2) of the Constitution to acknowledge and protect the right to the preservation, development and usage of other languages spoken on the territory of the State takes into account the mother tongues of its citizens, not the languages usually spoken by citizens.
Therefore, according to the data on the structure of the population by mother tongue obtained in the 2014 Census, out of a total population of 2 804 801 citizens, of which 2 723 315 declared their mother tongue, 1 544 726 speak Moldovan as their mother tongue, 639 339 - Romanian, 107 252 - Ukrainian, 263 523 - Russian, 114 532 - Gagauz, 41 756 - Bulgarian, 7 574 - Romani and 4613 - other languages. Starting with the assumption that the glossonym "Romanian" comprises the term "Moldovan", in the Republic of Moldova, Romanian is the mother tongue of 2 184 065 citizens. By percentage, Romanian is the mother tongue of at least 77.86% of the citizens of the Republic of Moldova. Russian is the mother tongue of at least 9.39% of the citizens of the Republic of Moldova, Gagauz is the mother tongue of at least 4.08% of the citizens, Ukrainian is the mother tongue of at least 3.82% of the citizens, and Bulgarian is the mother tongue of at least 1.48% of the citizens.
The Court also noted the data on the structure of the population according to the Romanian, Ukrainian and Russian mother tongues in territorial profile, obtained from the 2014 Census. Thus, out of a number of 2 723 315 citizens who declared their mother tongue, the weight of Ukrainian in territorial profile is greater than the weight of Russian in nine districts. Apart from these districts, the difference between the weights of Russian and Ukrainian is not more than 2% in 15 of the 32 districts.
The Court examined the impugned law on the basis of Article 13 of the Constitution, in particular from the perspective of two issues: (a) the existence of a balance between Romanian, the State language of the Republic of Moldova, and Russian, the language of an ethnic minority; and (b) the legal position of other ethnic minorities languages in the Republic of Moldova, taking into account the constitutional guarantees.
The Court noted that the aim pursued by the regulation of Articles 10 and 13 in the Constitution is explained by the need to guarantee the identity and unity of the people of the Republic of Moldova. The State language is considered, in this aspect, as having a constitutional value, as a symbol of the people's unity, being an integral part of the constitutional identity of the Republic of Moldova.
The Court noted that the protection and establishment of a State language aims at addressing the identity needs of the majority of State citizens and aims at establishing a language that ensures communication between different parts of the population in all areas of life and throughout the State’s territory. The protection and promotion of the official language of the State also aims at achieving social cohesion and the integration of ethnic minorities. Every citizen who lives on the State’s territory and tends to integrate into society, to effectively participate in the democratic processes of the State, to benefit from the opportunities provided by the State of the Republic of Moldova needs to know the State language. In this context, the Venice Commission emphasized that it is legitimate and commendable for states to promote the consolidation of the State language, its mastery by all citizens and the adoption of measures to promote its learning by everyone, in order to redress the existing inequalities and facilitate the effective integration into society of persons belonging to national minorities.
At the same time, the Court noted that the interest of protecting and promoting the State language must be balanced with the interest of recognizing and protecting the linguistic rights of citizens belonging to ethnic minorities.
The Court noted that Article 2 of the Law grants Russian a privileged status over other languages of ethnic minorities in the Republic of Moldova, a status that does not derive from the Constitution. There are districts (e.g. Briceni, Drochia, Edinet, Falesti, Glodeni, Hancești, Ocnita, Rascani, Soldanesti) where Ukrainian, for example, carries more weight than Russian. It can be seen that, in some districts, Russian carries a small weight, of less than 3% (e.g. Cantemir, Calarasi, Criuleni, Dubasari, Hancești, Ialoveni, Nisporeni, Orhei, Straseni, Soldanesti, Telenesti). However, being elevated to the level of interethnic language of communication, Russian, the language of an ethnic minority, acquires along Romanian a quasi-official status. Also, some Articles of the impugned Law emphasize the dominant role of the Russian language throughout the territory of the Republic of Moldova in relation to the languages of other ethnic minorities, without distinguishing between districts where its weight is unsubstantial and districts where its weight is significant, in order to establish such strict legal obligations.
The Court notes that the provisions of Article 13 of the Constitution recognize only one State language and do not contain the phrase "language of interethnic communication". The constitutional status of the State language precisely implies the function of the State language to be the language of communication between all the citizens of the Republic of Moldova, regardless of their ethnic origin. In this sense, there are also the provisions of Article 10 para. (1) of the Constitution, according to which the State is founded on the unity of the people of the Republic of Moldova, which is the common and indivisible motherland of all its citizens.
Despite this fact, the impugned Law grants Russian a status similar to that of the State language. This status is observed from Article 2 para. (2) of the Law, which mentions that Russian is the language of interethnic communication on the territory of the Republic of Moldova, used at the same level as the State language.
Under the impugned Law, Russian benefits from such preferential treatment regardless of the number of members of ethnic minorities who use it in the country's districts. People have to choose, in the great majority of cases, between Romanian and Russian. This fact practically supposes that Romanian will not be able to fulfill its function as a State language. The Court noted that Article 13 of the Constitution of the Republic of Moldova does not authorize such an option. By granting Russian a status similar to Romanian, the impugned Law diminishes the integrative force of the official language.
The preferential treatment of Russian compared to other ethnic minorities languages, by placing it at the level of the State language, is contrary to Article 13 of the Constitution. This treatment is not in accordance with the principles enunciated by the Preamble of the Constitution and renders the prescription of Article 10 para. (2) of the Constitution devoid of substance in respect to other ethnic minorities who speak another language than Russian.
The impugned Law does not contain a stable, sustainable and clearly defined language policy, from the perspective of constitutional requirements. The lack of such policy damages the interests of society and makes the Parliament not respect its positive obligation that arises from Article 13 para. (4) of the Constitution with the legislature failing to settle one of the major challenges in the political and social life of the Republic of Moldova, in terms of constitutional principles. Therefore, Law no. 234 of 16 December 2020 on the usage of languages spoken on the territory of the Republic of Moldova is contrary to Article 13 of the Constitution.
The Court noted that in order to ensure the application of the provisions of the impugned Law, the State authorities will have to allocate additional financial means, which have not been estimated yet, e.g. for the translation of official documents of the State and public administration bodies, for the translation of the public institutions names, for the preparation of the name inscriptions on the public authorities plates, for the translation of the names of the products, of the instructions, as well as any other visual information on manufactured products in the Republic of Moldova, for the training of officials in learning Russian, for the employment and remuneration of translators, etc. In accordance with the provisions of Article 131 paras. (4) and (6) of the Constitution, any legislative proposal which entails the increase of the budget expenditures may be adopted only following an approval by the Government and no budget expenditure may be approved without prior specification of the funding source.
In its case-law, the Court found that the adoption of a law with a budgetary impact in the absence of the Government's advisory opinion leads to a violation of the procedure provided by Article 131 para. (4) and Article 6 of the Constitution, which obliges the State authorities to exercise their competences on the established limits of the Constitution.
The Court noted that no document was attached to the section reserved for the Government's advisory opinion on the Parliament's website, to the draft Law preceding the impugned Law. Neither does the Informative note on the draft Law indicate any source of funding for the implementation of the Law. On the contrary, it states that “in general, the implementation of the adopted legislative act will not imply any financial expenses at the organizational level other than those provided in the budget”.
In this respect, the Court found a violation of Articles 6 and 131 paras. (4) and (6) of the Constitution. Thus, the Court was exempted from further examining the observance of the procedure for adopting the impugned Law based on Articles 1 para. (3), 64 and 73 of the Constitution, invoked by the authors of the application.
Judgment of the Court:
Based on the raised arguments, the Court admitted the applications lodged by Mr. Octavian Țîcu, Mr. Dinu Plîngău and Mrs. Maria Ciobanu, MPs of the Republic of Moldova.
The Court declared unconstitutional Law no. 234 of 16 December 2020 on the usage of languages spoken on the territory of the Republic of Moldova.
This Judgement is final, cannot be appealed, enters into force on the date of adoption and shall be published in the Official Gazette of the Republic of Moldova.
The full reasoning of the Judgement will be available on the website of the Constitutional Court http://www.constcourt.md/