Decision of the Constitutional Court concerning the constitutionality of several provisions of Law no. 100-XV of April 26, 2001 “Concerning civil status documents” and of the Law no. 382-XV of July 19, 2001 “Concerning the rights of persons belonging to the national minorities and the legal status of the organizations thereof”

No. 28 of 05.30.2002

 
 After having examined the filed documents and having heard the information of the judge-rapporteurs and the arguments of the parties delivered in an open session,
 The Constitutional Court has found as follows:
 1. On April 26, 2001 the Parliament adopted Law no. 100-XV “Concerning civil status documents”. The Parliament adopted Law no. 382-XV “Concerning the rights of persons belonging to the national minorities and the legal status of the organizations thereof” (hereinafter “National minorities law”) on July 19, 2001.
 In their notification to the Constitutional Court, the authors claim that several provisions of the aforementioned laws disagree with the provisions of the Constitution. Upon the request of the authors, the Court shall examine the following provisions:
 - Art. 5.4 of the Law on civil status documents, which provides that civil status documents and the filling out thereof shall be executed in the official language and in Russian.

- Art. 6.1 of the National minorities law, stipulating that the state shall guarantee the exercise of the right of persons belonging to the national minorities to primary, secondary (general and vocational), higher, and postgraduate education in the Moldovan and Russian languages, and shall further provide conditions for the exercise of said right to education and instruction in the mother tongue (Ukrainian, Gagauz, Bulgarian, Jewish, Yiddish etc.).

- Art. 8.1 of the National minorities law, providing that the state shall ensure the publication of normative acts, official communiqués and other information of national importance in the Moldovan and Russian languages.

- Art. 8.3 of the National minorities law, providing that in regions where persons belonging to the national minorities make up a substantial percentage of the population, the documents of local public administration authorities shall be published, where necessary, in the language of the respective minority, as well as in Moldovan and Russian.

- Art. 10 of the National minorities law, stipulating that the names of localities, streets, and public institutions shall be inscribed in both Moldovan and Russian, and in localities with a special autonomy status also in the other official languages, as provided for in the laws granting such autonomy status.

- Art. 11.1, stipulating that public information directly concerning the protection of health, public order and the security of citizens, as well as visual information displayed in the institutions of the Ministry of the Interior, Ministry of Justice, General Attorney, in health institutions in the important cities and towns, in means of transportation, stations and ports, in airports and on the highways, shall be inscribed in both Moldovan and Russian.

- Art. 12.1 of the National minorities law, providing that persons belonging to the national minorities have the right to communicate with public institutions, both orally and in writing, in the Moldovan and Russian languages, and to be replied to in the same language in which the communication was originally delivered.

The authors of the notification believe that the aforementioned regulations are in effect investing the Russian language with a status equal to that of the official language of the state, and thus also distinguish it from other languages spoken on the territory of the Republic of Moldova. In the authors’ opinion, the contested provisions considerably enlarge the area of official application of the Russian language, providing for the Moldovan citizens of Russian nationality or ethnic origin a privileged regime as compared to members of other national minorities, thus violating the constitutional principles of equality and nondiscrimination.

The authors of the notification claim that the contested provisions are contrary to the provisions of Art. 13.1 and 13.2 of the Constitution, which establish a single language of the state and acknowledge only the right to preserve, develop and use Russian and other languages spoken on the territory of the state. The contested norms are also said to disagree with Art. 16.2 of the Constitution, which establishes the citizens’ right to equality before the law and the public authorities, irrespective of their race, nationality, ethnic origin, language, religion, sex, opinion, political association, wealth or social origin, while establishing a different regime for the Russian language as compared to other minority languages spoken on the territory of the country.

2. In relating the contested legal provisions to the constitutional and domestic laws, as well as to the relevant international norms, the Court finds as follows:

As a participant to the Organization for Security and Cooperation in Europe (OSCE), the Republic of Moldova has to harmonize the legislative framework with international human rights standards. For the purpose of establishing a legal framework securing a minimum of guarantees for the protection of the rights of national minorities, the Parliament adopted the National minorities law.

One should also note that the Republic of Moldova is a party to several international human rights instruments, of which the following are directly related to the issue at hand: OSCE’s Document of the Copenhagen Meeting on the Human Dimension of June 29, 1990; and the Framework Convention for the Protection of National Minorities of February 1, 1995 (Strasbourg) (hereinafter “The Framework Convention”).

Article 4.1 of the Basic Law stipulates that constitutional provisions concerning human rights and freedoms shall be interpreted and implemented in accordance with the Universal Declaration of Human Rights, and with the other agreements and treaties endorsed by Moldova; paragraph (2) of the same article provides that where there are any disagreements between the human rights agreements and treaties endorsed by Moldova and the domestic laws of the country, the former shall enjoy priority.

By endorsing such international documents the Republic of Moldova undertook an obligation to respect them unconditionally and in good faith.

As a participant to the OSCE Document of the Copenhagen Meeting on the Human Dimension, the Republic of Moldova undertook to guarantee persons belonging to national minorities, independently of their obligation to learn the official language or languages of the state, the opportunity to learn and receive instruction in the mother tongue, as well as the opportunity to use it, where possible or necessary, in their relations with authorities (point 34).

At the same time, as a party to the Framework Convention, the Republic of Moldova undertook a series of responsibilities toward persons belonging to national minorities. In accordance with Art. 4.2 and Art. 5.1 of the Framework Convention, the parties should adopt, where necessary, adequate measures to promote, in every area of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and persons belonging to the majority; to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. Under Art. 10.1, Moldova undertakes to acknowledge the right of every person belonging to a national minority to use freely and without interference his or her minority language, in private and in public, orally and in writing.

The constitutional principles concerning the use of the official language and of other minority languages spoken on the territory of the Republic of Moldova in accordance with international standards are set forth in the Preamble, Art. 1.3, Art. 4, Art. 7, Art. 10.2, Art. 13, Art. 16, Art. 35.2, as well as Art. II and Art. VII of Title VII of the Constitution.

The deputies in the Parliament, who are the representatives of the people of the Republic of Moldova, adopted the Constitution on July 29, 1994. The Basic Law of the society and the state acknowledges in the Preamble the desire to satisfy the interests of citizens of different ethnic origin, who, together with the Moldovans, make up the people of Moldova. The Preamble proclaims the Republic of Moldova as a democratic state, in which the rule of law, human dignity, human rights and freedoms, the unimpeded development of the human personality, justice, and political pluralism are supreme and guaranteed values.

In setting out the principles of the unity of the people and the right to identity in Art. 10 of the Constitution, the state acknowledges and guarantees the right of every citizen to preserve, develop and express their ethnic, cultural, linguistic and religious identity.

In accordance with Art. 13 of the Constitution, the official language of the Republic of Moldova is Moldovan, written in the Latin alphabet. At the same time, the state recognizes and protects the right to preserve, develop and employ the Russian language as well as other languages spoken throughout the state’s territory, the use of which shall be regulated through an organic law. Art. VII of Title VII of the Constitution recognizes the Law concerning the use of languages spoken throughout the territory of the Republic of Moldova no. 3465-XI of September 1, 1989 (hereinafter Law on the use of languages) as a fundamental act still in force to the extent that it does not disagree with the Constitution. The special status of this law, as compared to other normative acts, is confirmed in paragraph (2) of said article, in accordance with which the law may be amended over a period of 7 years ensuing from the date when the Constitution comes into force, if it has been passed by a two-thirds majority.

Art. VIII of Title VII consolidates these constitutional stipulations, in accordance with which the final and transitory provisions are considered to be an integral part of this Constitution; while Art. II of the same Title provides that the Parliament was due to examine the law’s compatibility with the Constitution within 1 year of the coming into force of the Constitution.

By establishing the terms for the revision of the Law on the use of languages (“over a period of 7 years ensuing from the date when this Constitution comes into force, if it has been passed by a two-thirds majority”) in a manner that is different from terms provided for the revision of other laws, a certain degree of rigidity and superiority is conferred upon the former.

The Court notes that the Law on the use of languages establishes the status of Moldovan as the official language of the state, contributing to the achievement of full state sovereignty and to creating necessary guarantees for the general use of the language in all areas of political, economic, social and cultural life, and as a language of interethnic communication throughout the Republic’s territory. The law further sets forth that besides the Moldovan language, Russian should also serve as a language of interethnic communication, and that the state undertakes the obligation to ensure the necessary conditions for the development throughout the territory of Moldova of the languages of other ethnic groups living in the Republic (Ukrainian, Russian, Bulgarian, Jewish, Yiddish, Gypsy) with a view to satisfying the latter’s national and cultural needs.

3. In relating the provisions subject to this constitutional control to relevant normative acts in the field, the Court finds as follows:

The provisions of Art. 6.1 of the National minorities law, through which the state guarantees the right to education in a minority language, are based on Art. 35.2 of the Constitution, providing that the state shall guarantee, under the law, the right of persons to choose the language of education and instruction. The same guarantee is provided in Art. 18 of the Law on the use of languages, in accordance with which the Republic of Moldova guarantees the right to pre-school, general primary and secondary, vocational secondary, professional and higher-level education in Moldovan and Russian, and undertakes to create the necessary conditions for the exercise of the right of citizens of different nationalities living in Moldova to education in their mother tongue (Gagauz, Ukrainian, Bulgarian, Jewish, Yiddish etc.).

The constitutionality of these provisions is further confirmed by Art. 14.2 of the Framework Convention, setting out that in areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the parties shall endeavor to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language.

The provisions of Art. 8 of the National minorities law concerning the languages in which normative acts, official communications and other information of national importance are published should be examined in conjunction with Art. 10 of the Law on the use of languages, which provides that the norms issued by the state, the administration and civic organizations shall be executed and adopted in the language of the state and shall be translated in Russian, while norms issued by the local authorities, local administration and local civic organizations in areas inhabited by a majority of Ukrainian, Russian, Bulgarian or other descent may be adopted in the minority or another accepted language, and shall be translated into the language of the state.

One should also mention in this context the provisions of the Law on the publication and coming into force of official acts no. 173-XIII of July 6, 1994, Art. 1.1 of which stipulates that official acts shall be published in the official language of the state, and shall be translated in Russian and in other languages, in accordance with the legislation in force.

In view of the provisions quoted above, the Constitutional Court finds that Art. 8.1 and 8.3 of the National minorities law do not cause any significant inconvenience to the speakers of other languages and agree therefore with the provisions of the Constitution and of other relevant laws.

The Court also notes that the provisions of Art. 12.1 of the National minorities law concerning the right of persons belonging to national minorities to communicate with public institutions, both orally and in writing, in the Moldovan and Russian languages, and to be replied to in the same language in which the communication was originally delivered, reiterates the provisions of Art. 6 of the Law on the use of languages, which entitles citizens to choose the language of oral or written communication with the state, the administration, civic organizations and other companies, institutions and organizations on the territory of Moldova. In localities where the majority belongs to the Ukrainian, Russian, Bulgarian or another nationality, the language of communication shall be the language of the respective minority or another accepted language.

The constitutionality of the provisions of Art. 12.1 of the National minorities law is also confirmed by Art. 11 of the Law on the use of languages, providing that written communications delivered by the state authorities and civic organization to the citizens shall be effected in Moldovan or Russian. In localities with a substantial Gagauz population the languages shall be Moldovan, Gagauz or Russian. Documents shall be issued, upon the request of the citizens, in Moldovan and/or Russian, while in localities with a substantial Gagauz population the languages shall be Moldovan, Gagauz and/or Russian.

In turn, state authorities, the administration, civic organizations, companies, institutions and organizations shall receive and examine documents delivered by citizens in Moldovan or Russian. In localities with a substantial Gagauz population, the languages shall be Moldovan, Gagauz or Russian. Documents delivered in another language shall have attached a translation into Moldovan or Russian.

The provisions of Art. 10 and Art. 11.1 of the National minorities law will be examined from the perspective of Title VI of the Law on the use of languages and in relation to Art. 11.2 and 11.3 of the Framework Convention, providing that parties undertake to recognize that every person belonging to a national minority has the right to display in his or her minority language signs, inscriptions and other information of a private nature visible to the public; and that in areas traditionally inhabited by substantial numbers of persons belonging to a national minority, the parties shall endeavor, in the framework of their legal system, including, where appropriate, agreements with other States, and taking into account their specific conditions, to display traditional local names, street names and other topographical indications intended for the public also in the minority language when there is a sufficient demand for such indications.

In determining the constitutionality of the aforementioned provisions, the Court notes that the Law on the use of languages establishes a different legal regime for the matters considered here.

According to Art. 24 and Art. 25 of the Law on the use of languages, localities and other geographic sites on the territory of the Republic of Moldova have a single official name, which is either the original Moldovan name or the original name in Gagauz (without any translation or adaptation), depending upon the historical traditions in the respective locality. The names of squares, streets, alleys, city quarters, as well as of institutions and other public places shall be inscribed in the official language and shall be translated in Russian (and, in localities with a substantial Gagauz population, also in Gagauz).

Public information which, under Art. 28 and Art. 29 of the Law on the use of languages, includes plates displaying the names of state authorities and civic organizations, companies, institutions and other organizations, market squares, streets, alleys, localities and other geographic markers, the names of goods and food products, product labels, trade marks, instructions for the use of products made in the Republic, as well as any other visual information on public display in the Republic, shall be inscribed in the language of the state and in Russian (and in localities with a substantial Gagauz population, in the official language, in Gagauz and in Russian). The texts of posters, public announcements, publicity banners and other visual content shall be translated in Russian only where necessary. In villages inhabited by majorities of Ukrainian, Russian or Bulgarian ethnic descent, this information may also be displayed in the language of the respective population.

Therefore the provisions of Art. 10 and Art. 11.1 of the National minorities law, in accordance with which the names of localities and streets are inscribed in Moldovan and Russian, and public information is provided in Moldovan and Russian, constitute an exception from the provisions of the Law on the use of languages, which stipulates that the names of localities have only one official name in Moldovan, while public information, with the meaning indicated in Art. 11.1 of the National minorities law, as well as visual content as defined above, are written in Moldovan and translated in Russian only where necessary.

The Court also notes that Art. 10 and Art. 11.1 of the National minorities law mark out for the Russian language an area of application that is more extensive than the area provided under the Constitution and the applicable laws. Rather, the Basic Law established Moldovan as the official language in order to create guarantees for its use in all areas of political, economic, social and cultural life.

4. With respect to the provisions of Art. 5.4 of the Law concerning civil status documents, which provides that civil status documents and the filling out thereof shall be executed in the official language and in Russian, the Court finds as follows:

In accordance with Art. 11 of the Framework Convention, the parties undertake to recognize that every person belonging to a national minority has the right to use his or her surname (patronymic) and first names in the minority language and the right to official recognition thereof. These international regulations are reflected in the National minorities law, Art. 16.1 of which provides that persons belonging to the national minorities have the right to employ their names, first names and patronymic (provided the latter is used in their mother tongue) in official documents, in the form accepted in the respective language on the territory of the Republic of Moldova. Thus, Art. 5.4 of the Law concerning civil status documents, which provides that such documents be executed and filled out in the official language and only one of the minority languages spoken on the territory of Moldova, infringes upon the right of representatives of other minority languages to use their name and first name (patronymic) in the form accepted in their mother tongue.

At the same time, the contested provisions are in disagreement with the principles which guarantee the rights of national minorities, as well as with the principle of citizens’ equality before the law, as provided for under Art. 10 and Art. 16 of the Constitution.

The Court therefore rejects the arguments of the authors of the notification with respect to the unconstitutionality of Art. 6.1, Art. 8.1 and 8.3, Art. 10 where its concerns the names of public institutions and places, and Art. 12.1 of the National minorities law, and believes these provisions to be in compliance with the relevant constitutional and legal provisions.

At the same time, the Court notes that in the provisions of Art. 10, where it concerns the names of streets and localities, and Art. 11.1 of the National minorities law, as well as of Art. 5.4 of the Law concerning civil status documents, the legislative overstepped the constitutional and legal limits with respect to the use of the Russian language in social life. These provisions generate conflicts between the national minorities inhabiting the territory of the Republic of Moldova. For these reasons and in accordance with Art. 140 of the Constitution, Art. 26 of the Law on the Constitutional Court and Art. 62 and Art. 68 of the Constitutional Code,

The Constitutional Court rules as follows:

1. The provisions of Art. 6.1, Art. 8.1 and 8.3, Art. 10, Art. 11.1 and Art. 12.1 of Law no. 382-XV of July 19, 2001 “Concerning the rights of persons belonging to the national minorities and the legal status of the organizations thereof”, with the exception of the phrase “… and Russian” in Art. 10, where it refers to the names of localities and streets, and the phrase “… and Russian” in Art. 11.1, are constitutional.

2. The phrase “… and Russian” in Art. 10, where it refers to the names of localities and streets, and the phrase “… and Russian” in Art. 11.1 of Law no. 382-XV of July 19, 2001 “Concerning the rights of persons belonging to the national minorities and the legal status of the organizations thereof” are unconstitutional.

3. The phrase “… and the Russian language” in Art. 5.4 of Law no. 100-XV of April 26, 2001 “Concerning civil status documents” is unconstitutional.

4. This Decision is final and irrevocable and shall come into force on the date of its publication in the Official Gazette of the Republic of Moldova.

Separate opinion of Constitutional Court Judge Mircea Iuga delivered in accordance with Art. 27.5 of the Law on the Constitutional Court and Art. 67 of the Constitutional Code.

In point 1 of its May 30, 2002 Decision, the Constitutional Court declared constitutional the provisions of Art. 6.1, Art. 8.1 and 8.3, Art. 10, Art. 11.1 and Art. 12.1 of Law no. 382-XV of July 19, 2001 “Concerning the rights of persons belonging to the national minorities and the legal status of the organizations thereof”, excepting the phrases “… and Russian” in Art. 10, where it refers to the names of localities and streets, and in Art. 11.1.

In point 2 of said Decision, the Court declared unconstitutional the aforementioned phrases, as well as the phrase “… and the Russian language” in Art. 5.4 of Law no. 100-XV of April 26, 2001 “Concerning civil status documents”.

Without contesting the broader arguments and conclusions of the Decision, I believe that the Court’s declaring the provisions of Art. 8.1 and 8.3 of Law no. 382-XV, and implicitly the phrases “and Russian” and “where necessary”, constitutional is mistaken.

Art. 8.1 of Law no. 382-XV stipulates that “the state shall ensure the publication of normative acts, official communiqués and other information of national importance in the Moldovan and Russian languages.” Art. 8.3 of Law no. 382-XV provides that “in regions where persons belonging to the national minorities make up a significant percentage of the population, the documents of local public administration authorities shall be published, where necessary, in the language of the respective minority, as well as in Moldovan and Russian.”

In accordance with Art. 13.1 of the Constitution, the official language of the Republic of Moldova is Moldovan, while in accordance with Art. 16.2 all citizens of the Republic of Moldova are equal before the law.

Thus, the Basic Law of the Republic expressly and imperatively provides for only one official (state) language – Moldovan. In acknowledging and protecting in Art. 13.2 the right to develop and use the Russian and other languages spoken throughout the country, the Constitution does not attribute to the latter the status of official languages. The provisions mandating the publication of laws also in the Russian language in Art. 8.1 of Law no. 382-XV, on the other hand, turn Russian into an official (state) language. This contravenes Art. 13.1 of the Constitution. Moreover, these provisions lead to the unequal treatment of national minorities in the Republic, thus contradicting Art. 16 of the Constitution, which sets forth the equality of all citizens before the law. It follows that the phrase “and Russian” in Art. 8.1 of the Law 382-XV is unconstitutional.

The condition embedded in the phrase “where necessary” in Art. 8.3 of Law no. 382-XV concerning the publication of the acts of local public administration authorities in the language of the national minorities in regions where the latter constitute a substantial part of the local population, infringes on the right of national minorities to use their mother tongue. The phrase “and Russian” at the end of the same paragraph grants Russian language the same official status as Moldovan. The arguments outlined in the preceding paragraph apply here as well.

The Court’s reference, in the descriptive part of its Decision, to Art. 10 of the Law on the use of languages and Art. 1.1 of the Law concerning the publication and coming into force of official acts, which are called upon to support the constitutionality of Art. 8.1 and Art. 8.3 of Law no. 382-XV, is mistaken. The former, unlike the contested laws, do not make the Russian language official as a language of the state. Rather, they provide that normative acts be translated in Russian and other spoken languages, which therefore enjoy a status different from that of Moldovan, the official language in the Republic of Moldova according to Art. 13.1 of the Constitution.

I therefore believe that the phrase “and Russian” in Art. 8.1 and the phrases “where necessary” and “and Russian” in Art. 8.3 of Law no. 382-XV of July 19, 2001 “Concerning the rights of persons belonging to the national minorities and the legal status of the organizations thereof” are, in the light of the arguments above, unconstitutional.