Supreme Court: Theater missing out on COVID-19 state aid unconstitutional

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Von Glehn Theater in Nõmme Source: Google Maps

The Supreme Court has upheld an administrative court ruling that conditions attached to a crisis aid package for theaters and other cultural institutions in the original spring COIVD-19 wave were in practice unconstitutional, at least in the case of one particular theater.

The deadline and overall turnaround time which the Ministry of Culture put in place were unrealistic, the court found in its ruling Tuesday, considering the case of the Von Glehn Theater in Pärnu, which submitted its application too late and missed out on obtaining support. 

The court rejected the culture minister's claims that both time and money were lacking when the measure was put in place. 

Deadline for applications predated measure coming into force 

Minister of Culture Tõnis Lukas issued the measure setting up the aid, aimed at both cultural and sports organizations hit by the pandemic, on April 30.

The measure entered in force on May 3, and the culture ministry announced the opening of the application round three days later. 

However, the deadline for applicant theaters to submit figures for 2018 and 2019 was May 1, i.e. a date which passed before the measure came into force. The requirement for submitting the data was also behind the decision on the unconstitutional nature of the regulation. 

The NGO which runs the Von Glehn Theater submitted its statistics on May 6 with its application, but the minister rejected the request, citing the missed deadline. 

Culture minister: Time and money was of essence, hence short deadline 

The deadline, he said, was justified by the shortage of time and money during the initial wave of the coronavirus in spring, adding that it was needed to ascertain who the potential applicants were and so forecast the funds likely to be needed, with the aim of ensuring that as many performing arts institutions as possible received sufficient crisis support. 

The theater appealed to the second-tier administrative court, which annulled the minister's directive on October 26, and ordered that the application be reconsidered.  

That court held that the requirement to submit data by May 1 at the latest was unconstitutional, violating the theater's right to equal treatment in that the appellant had not previously been obliged to provide repertoire statistics at any time. 

Court: Unequal treatment in criteria for receiving aid 

This had only been a requirement for theaters receiving regular operating support from the state had to do so; in any case the Von Glehn Theater had been treated less favorably in the distribution of crisis aid due to non-submission of data, the Supreme Court, based in Tartu, found. 

Other performing arts institutions had voluntarily provided the data, for whatever reason, the court found. 

Additionally, the Supreme Court agreed that the minister has a wide degree of discretion in setting conditions for support. However, the Von Glehn Theater was left without support altogether because of the deadline applied, despite business having demonstrably suffered as the result of the coronavirus restrictions. 

Ministry hampering its own goals 

This meant that the unequal treatment itself was incompatible with the ministry's aims of mitigating issues arising from the restrictions. 

The Supreme Court's constitutional review chamber thus upheld the administrative court's ruling, adding there was no reasonable and relevant reason to treat the Von Glehn Theater unequally. 

Better and fairer ways of narrowing down the field of potential beneficiaries could have been put in place by the culture ministry, the court added. 

The Supreme Court often rules on pieces of legislation declared unconstitutional; the particular measure in question here was a government directive rather than a law which went through due process at the Riigikogu. 

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Editor: Andrew Whyte

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