DECISION no. 112 of April 9, 2001

concerning the un-constitutionality of the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 68.2, Art. 90.2 and 90.3, Art. 106.8, and Art. 145-148 of the Law of local public administration

 

            The Constitutional Court has been notified and requested by a number of 71 deputies to start, in accordance with Art. 144.a of the Constitution, the constitutionality control procedures with respect to the Law of public local administration.

            The notification puts forward the following un-constitutionality criticisms of several provisions of the Law of local public administration:

            1. The provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art. 106.8 and Art. 110 are un-constitutional because “these articles render the Hungarian language an official language in this country, against the provisions of Art. 13 of the Constitution, which specifies that ‘In Romania, the official language is Romanian.’”

            2. The same provisions of the Law of public administration also violate the provisions of Art. 72.1 and 72.2 of the Constitution, as “Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art. 106.8, and Art. 110 of said Law are implicitly revising Art. 13 of the Constitution.”

            3. The aforesaid provisions of the Law of local public administration replace “the concept of “individual” rights with that of “collective” rights, i.e. they replace the individual with the group of individuals belonging to national minorities, which is contrary to international law practices.” It is also argued that “persons belonging to national minorities may not benefit from the rights provided in Art. 6.1 and Art. 16.1 of the Constitution unless they belong to communities which make up at least 20% of the total number of inhabitants of a particular administrative-territorial unit.”

           

            In accordance with the provisions of Art. 19.1 of Law no. 47/1992, republished, the un-constitutionality notification was communicated to the presidents of the two Houses of the Parliament, as well as to the Government, so that the latter may deliver a written opinion on the matter.

           

The President of the House of Deputies indicated that the notification is essentially ungrounded for the following reasons:

            1. The provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration provide for “the ability to use the mother tongue of citizens belonging to national minorities in their relations with the representatives of local public administration authorities, to the extent that several terms are met under the law. The acknowledgement of the right of persons belonging to national minorities to use the mother tongue is one of the main instruments for the recognition and preservation of identity, and is simultaneously a means to exercise the individuals’ freedom of expression. As such, the use of the languages of national minorities in the relations with the representative of local public administration authorities, as qualified by the meeting of certain terms under the law, does not in any way affect the status of the official language of the state, which is Romanian.”

            It is also noted that “it is difficult to see how persons belonging to national minorities may exercise their right to their own culture, to the use of the mother tongue, to their own religion and, finally, to preserve their national identity, in the absence of their participation in public life, in its political, social, economic and cultural dimensions.” It is also shown that the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration comply with the international norms in the field – the European Charter of Regional and Minority Languages, the 1993 Recommendation 1201 of the Council of Europe, and the Framework Convention for the Protection of National Minorities.

            2. With respect to the argument of the authors of the notification alleging that Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration violate the constitutional provisions in Art. 72.1 and 72.2, it is pointed out that this criticism is “erroneous, since Art. 13 of the Constitution has not been in any way modified, and the language of the state continues to be Romanian even after the Law of local public administration comes into force.”

            3. The provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration agree with the provisions of Art. 6.1 and Art. 16.1 of the Constitution. It is pointed out that “Art. 6.1 of the Constitution makes no distinction between persons belonging to different national minorities and guarantees to all such persons, to an equal degree, the right to their own identity. The provisions subject to notification actually come to support the exercise of this constitutional right, in particular of the rights to access to information in the mother tongue and to use the mother tongue in the relations with local public administration authorities, whenever citizens belonging to a national minority make up a significant percentage of the total number of inhabitants of a certain administrative-territorial unit, as provided for in international norms and in the principle of local autonomy.”

           

           

The Government’s opinion also finds the notification essentially ungrounded, for the following reasons:

            1. The un-constitutionality criticism leveled against the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration (which, in the authors’ opinion “render the Hungarian language an official language in this country”) is unfounded, since the principle expressed in Art. 13 of the Constitution with respect to the official language is actually strengthened by the Law of local public administration. Art. 17 of said Law provides that “In territorial-administrative units in which citizens belonging to a national minority make up 20% of the number of inhabitants of said unit, the local public administration authorities shall ensure the use of the mother tongue as well, in accordance with the provisions of the Constitution, of this law, and of the international agreements to which Romania is a party.”

            It is also shown that “Art. 43.3 does not in any way exclude the official character of the Romanian language” but merely acknowledges the right of councilors belonging to a national minority to also use their mother tongue. Similarly, the fact that according to Art. 40.7, 43.3 and 106 of said Law the agenda of a session is translated in the language of a national minority, or that a different language is used during those sessions, does not entail any violation of the provisions of Art. 13 of the Constitution. For the same reasons, the publication of the decisions of the local council in the mother tongue of national minorities (Art. 51), the use of the mother tongue by the officials who speak this language, the drafting of requests in that language (Art. 90.2 and 90.3 of the Law), which “provide for already existing social practices, may not be considered breaches of the provisions of Art. 13 of the Constitution.”

            The opinion also notes that the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration do comply with those of Art. 11 and Art. 20.2 of the Constitution. Finally, the Government supports its arguments by referring in detail to international provisions concerning the right of national minorities to use the minority language – the Framework Convention for the Protection of National Minorities, the European Charter of Regional and Minority Languages, and the 1993 Recommendation 1201 of the Council of Europe.

            2. The criticism alleging that provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration, an organic law, would revise Art. 13 of the Basic Law, is equally unfounded. According to Art. 148.1 of the Constitution, the provisions concerning the official language may not be the object of Constitutional revision. As a matter of fact – reads the Government’s opinion – “the stipulations of the aforementioned articles are based on constitutional provisions and agree with the latter, which makes it impossible to argue that said norms violate the Constitution.”

            3. With respect to the un-constitutionality criticism alleging a violation of Art. 6.1 and Art. 16.1 of the Constitution, the Government indicated that this criticism is also erroneous since these constitutional provisions actually “acknowledge the rights of national minorities to use their mother tongue as well as the citizens’ equality of rights.” The new legal provision comes to support the exercise of this constitutional right, in particular the right to access to information in the mother tongue and to use of mother tongue in the relations with local public administration authorities, provided the citizens of that minority make up a significant percentage of the number of inhabitants in the administrative-territorial unit in question, in accordance with the relevant international standards and with the principle of local autonomy.

            The President of the Senate failed to communicate any opinion.

 

            THE CONSTITUTIONAL COURT,

            after due examination of the un-constitutionality notification, of the written opinions of the President of the House of Deputies and of the Government, of the judge-rapporteur’s report, of the stipulations of the Law of local public administration, read in conjunction with the constitutional provisions, as well as the provisions of Law no. 47/1992 concerning the organization and operation of the Constitutional Count, notes the following:

            The Court has been duly notified with respect to a matter which it is competent to adjudicate, in accordance with the provisions of Art. 144.a of the Constitution, as well as Articles 2, 12 and 17 of Law no. 47/1992, republished.

            The object of the notification are the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8, Art. 110 and Art. 145-148 of the Law of local public administration, which read as follows:

-         Art. 17: “In the administrative-territorial units in which citizens belonging to a national minority make up a percentage of at least 20% of the number of inhabitants of the respective unit, the local public administration authorities shall ensure the use, in its relations with said citizens, of the minority’s mother tongue, in accordance with the provisions of the Constitution, of this law, and of the international conventions to which Romania is a party.”

-         Art. 40.7: “In towns or cities in which citizens belonging to a national minority make up a percentage of at least 20% of the number of inhabitants, the agenda shall be made public in the mother tongue of said minority as well.”

-         Art. 43.3: “The sessions shall take place in Romanian language, which is the official language of the state. In local councils in which councilors belonging to a national minority make up at least one third of the total number of councilors, their mother tongue may be employed in the council sessions as well. In such cases the mayor shall ensure that the proceedings are translated into Romanian. The documents of the council sessions shall at all times be drawn up in Romanian.”

-         Art. 51: “In the administrative-territorial units in which citizens belonging to a national minority make up at least 20% of the number of inhabitants, normative decisions shall be made public both in Romanian and in the language of the respective minority, while decisions regarding individuals shall be made known, upon request, also in the mother tongue.”

-         Art. 90.2: “In the administrative-territorial units in which citizens belonging to a national minority make up at least 20% of the number of inhabitants, they may address the local public administration authorities and their specialized services, whether in written or orally, also in their mother tongue, and shall be answered both in Romanian and in the respective minority language.”

-         Art. 90.3: “Under the terms of paragraph (2) above, the public relations departments shall also employ persons who speak the mother tongue of individuals belonging to the respective minority.”

-         Art. 106.8: “In counties in which the citizens belonging to a national minority make up at least 20% of the number of inhabitants, the agenda shall be made public in the mother tongue of the respective minority as well.”

-         Art. 110: “The provisions of Art. 43, Art. 45-54 and Art. 56 shall be duly enforced.”

            The analysis of the notification shows that its authors put forward three types of un-constitutionality criticisms, as follows:

            1. With respect to the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration, which regulate the use of mother tongue in the relations between citizens belonging to a national minority and the local public administration authorities, the charge of un-constitutionality is supported by reference to the breach of Art. 6.1, Art. 13, Art. 16.7 and Art. 72.1 and 72.2 of the Constitution, reading as follows:

-         Art. 6.1: “The State recognizes and guarantees the right of persons belonging to national minorities, to the preservation, development and expression of their ethnic, cultural, linguistic and religious identity.”

-         Art. 13: “In Romania, the official language is Romanian.”

-         Art. 16.1: “Citizens are equal before the law and public authorities, without any privilege or discrimination.”

-         Art. 72.1: “Parliament passes constitutional, organic, and ordinary laws.”

-         Art. 72.2: “Constitutional laws shall be pertaining to the revision of the Constitution.”

           

I.1. With respect to the criticisms brought by the authors of the notification concerning the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration, in relation to the provisions of Art. 13 of the Constitution, the Court notes that none of the provisions cited states that the language of a national minority is an official language. On the contrary, paragraph (3) of Art. 43 provides that the official language of the state is Romanian, and quotes from Art. 13 of the Constitution. Furthermore, the text of the articles subject to notification expressly states that, when the percentage of citizens belonging to a national minority exceeds 20% of the total population of the relevant administrative-territorial unit, the use of mother tongue shall be ensured in the relations with the local public administration authorities, as well as in public documents, without thereby violating the official status of Romanian language.

As a matter of fact, Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2, Art. 106.8 of the Law unequivocally employ the phrase “also in the mother tongue” or “in the mother tongue as well”. Also, Art. 43.3, which provides that in local councils in which councilors belonging to a national minority represent at least one third of the total number of councilors, their mother tongue may be employed in the council sessions, explicitly states that “the mayor shall ensure that the proceedings are translated into Romanian.” The text also sets forth that “The documents of the council sessions shall at all times be drawn up in Romanian,” precisely due to the fact that Romanian is the official language. All these provisions doubtlessly acknowledge the official status of the Romanian language.

Art. 17 of the Law of local public administration provides that in administrative-territorial units in which citizens belonging to a national minority make up at least 20% of the number of inhabitants, the local public administration authorities shall ensure the use of the mother tongue as well in the relations with said authorities, in accordance with the provisions of the Constitution and those of the “international conventions to which Romania is a party.” With respect to this matter, the Court notes that, the provisions of Art. 10.2 of the Framework Convention for the Protection of National Minorities (ratified by Romanian through Law no. 33 of April 29, 1995, published in the Official Gazette, Part I, no. 82, May 4, 1995) states that “In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if those persons so request and where such a request corresponds to a real need, the Parties shall endeavor to ensure, as far as possible, the conditions which would make it possible to use the minority language in relations between those persons and the administrative authorities.”

This shows that the Law of local public administration merely states and fixes the details of the enforcement of the provisions in Art. 10.2 of the Framework Convention for the Protection of National Minorities, which, according to Art. 11.2 and 20.2 of the Constitution, may be directly enforced.

As a matter of fact, the provisions of the Law of local public administration come in the line of a long democratic tradition of the use of mother tongue in the relations between citizens belonging to national minorities (provided they make up a significant proportion of the total population) and the local authorities. The Resolution of November 18 / December 1, 1918, of the National Assembly in Alba Iulia, concerning the Union of Transylvania and Romania, provided, among the fundamental principles of the building of the new Romanian State, “Full national freedom to all cohabiting peoples.” It simultaneously set forth that “Each people shall instruct, administrate and judge in its own language…”. The norms concerning minority rights established by the Gazette of the Council of Ministers of August 4, 1938, provide, at pt. 13: “Citizens of the minorities who do not speak the language of the state may also submit to local city halls requests in their mother tongue. If such be the case, the requests shall be accompanied by a notarized translation into Romanian.” Point 16 of the same document provided that “Public authorities in minority towns shall also speak the language of the respective minority.”

Later on, Art. 10 of Law no. 86 of February 6, 1945, concerning the Status of National Minorities (published in the Official Gazette, no. 30, February 7, 1945) provided that: “Town and county authorities with territorial competence over an administrative district in which, according to the latest population census, citizens speaking a mother tongue other than Romanian make up at least 30% of the total number of inhabitants, shall: (a) Accept any documents from citizens belonging to the 30% minority, without asking for a translation in the official language of the state; (b) Decide with respect to said documents in the same language; (c) Hear the party in his or her mother tongue; (d) In the town or county councils of such territorial districts, the chosen or appointed members of the  nationalities making up 30% of the population may speak in their mother tongue…” Art .12 of the same law provided that “Magistrates and officials in the courts and administrative authorities provided for in Art. 9 and Art. 11 above shall speak the language of the respective nationalities.” Along the same line, Art. 17.2 of the Law provided that “Codes, ordinances and communiqués issued by the local authorities shall be published in the language of the nationality which makes up at least 30% of the population of the relevant county or locality.”

This Court further stresses that each and all of the previous laws acknowledged Romanian as the official language of the state, as stipulated in Art. 126 of the 1929 Constitution, as well as in Art. 94 of the 1938 Constitution.

With respect to the argument of the authors of the notification alleging that the introduction of the use of mother tongue by citizens belonging to national minorities which make up a certain percentage of the population would violate the provisions of Art. 13 of the Constitution, the Court notes that the 1991 Constitution itself allows citizens belonging to national minorities to use the mother tongue in the courts, without considering that this practice would impair the official status of the Romanian language. Art. 127 of the Constitution notes at para. (1) that “Procedure shall be conducted in Romanian”; and at para. (2) that “Citizens belonging to national minorities, as well as persons who cannot understand or speak Romanian have the right to take cognizance of all acts and files of the case, to speak before the Court and formulate conclusions, through an interpreter; in criminal trials, this right shall be ensured free of charge.”

 

I.2. The Court also sees as ungounded the un-constitutionality charge which alleges the breach of the provisions of Art. 72.1 and 72.2 of the Constitution, by arguing that “Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration are implicitly revising Art. 13 of the Constitution.” The examination of the text of the Law, as well as of the final version adopted by the House of Deputies and by the Senate, shows that said Law is an organic law and was adopted in accordance with the provisions of Art. 74.1 of the Constitution. Furthermore, an analysis of the contents of the legal provisions subject to criticism does not convincingly prove that the official status of the Romanian language has been impaired. On the contrary, the Law of local public administration explicitly acknowledges this status. It follows that the charge that the legal provisions subject to notification operate a revision of Art. 13 of the Constitution by means of an organic law, rather than by means of a constitutional law as provided in Art. 72.1 and 72.2 of the Basic Law, does not match the real meaning of the provisions of the Law of public administration. The Court also notes that, according to Art. 148.1 of the Basic Law, constitutional provisions concerning the official language may not be revised.

 

I.3. The authors of the notification also argue that the provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration conflict with the provisions of Art. 61 and Art. 16.1 of the Constitution, as “the Law of local public administration conditions the exercise of these rights on the existence of a “collectivity” of 20%, or of a one third percentage.”

This Court believes that this criticism is also unsupported. Granting citizens of a national minority who make up a certain percentage of the total population of certain administrative-territorial unit the right to use the mother tongue in their relations with the local public administration authorities is not only not a violation of the right to identity enshrined in Art. 6 of the Constitution, but, on the contrary, an enhancement of their right to express their linguistic identity.

The Court also notes that the reference in the notification to the granting of “collective right” misconstrues the real contents of both the constitutional provisions and the criticized legal provisions. Indeed, both the provisions of Art. 6 of the Constitution and the legal texts subject to notification grant rights to “persons” or “citizens” rather than “collectivities.” In particular, Art. 6 of the Constitution guarantees the “right of persons belonging to national minorities” to express their ethnic, cultural, linguistic and religious identity. Art. 17, Art. 40.7, Art. 51, Art. 90.2, Art. 106.8 and Art. 110 of the Law of local public administration provides for the right “to use the mother tongue as well” in one’s relations with the local public administration authorities to “persons belonging to a national minority” who make up at least 20% of the number of inhabitants of a certain administrative-territorial unit. Similarly, Art. 43.4 grants the “right to use the mother tongue as well” to “councilors belonging to a national minority”, whenever they represent at least one third of the total number of councilors. The fact that the use of the mother tongue “as well” by these citizens in their relations to local administration is conditioned on their being a substantial percentage of the population in the respective administrative-territorial unit, or, in the case of councilors, on their being a third of the total number of councilors (as provided for in Art. 43.3), does not entail that the granted rights are collective rights. Those percentages are simply criteria for granting the right to use “the mother tongue as well” in one’s relations to the local public administration or within the local or county councils. These criteria are accounted for by the practical ability to ensure, in the context of a right to linguistic identity, the use “of the mother tongue as well” in one’s relations to local administration authorities, and are based upon considerations of cost. Moreover, the principle of equality of rights set forth in Art. 16 of the Constitution is not violated because, as indicated by the jurisprudence of the Constitutional Court and by the European Court of Human Rights’ interpretation of Art. 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms, equality does not entail uniformity, and differences in legal treatment which are justified on reasonable objective grounds do not constitute discrimination.

With respect to this matter, this Court believes that the condition of a substantial percentage of citizens belonging to a national minority (which the law-maker fixed at 20% at least) is a rational and objective justification for the use “of the mother tongue as well” in the relations between citizens and local public administration authorities. There is a similar justification behind the use “of the mother tongue as well” during council sessions, provided the number of minority councilors make up one third of the total number of councilors. As a matter of fact, the Framework Convention for the Protection of National Minorities, ratified by Romania, refers itself to the use of the mother tongue by persons belonging to national minorities in their relations to the local public administration authorities and conditions this ability on the existence of “areas inhabited by persons belonging to national minorities traditionally or in substantial numbers” (Art. 10).

Considering the above, and in view of the provisions of Art. 144.a of the Constitution, as well as those of Art. 13.1.A.a. and Art. 17 and following of Law no. 47/1992, republished,

            THE CONSTITUTIONAL COURT HEREBY DECIDES IN THE NAME OF THE LAW

            The provisions of Art. 17, Art. 40.7, Art. 43.3, Art. 51, Art. 90.2 and 90.3, Art 106.8 and Art. 110 of the Law of local public administration are constitutional.

            This Decision shall be communicated to the President of Romania and shall be published in the Official Gazette of Romania, Part I.