The Riigikogu approved a bill allowing the removal of Soviet era monuments, including architectural and artistic works, despite the harsh criticism from the legislature's own legal and analytical section.
According to the analysis, the amendment violates the Constitution in multiple ways.
The legal and analytical department of the Riigikogu concludes in its analysis that the concept of a non-compliant building is already vague and hence unconstitutional.
The consultant who authored the analysis, Triinu Põdramägi, said that the average person cannot discern, under the new law, how much of a building is visible to the public and whether or not that portion is in turn offensive.
Põdramägi reported that the local authority should analyze a building's compliance with the law, although not all local authorities have the competence to perform such a semiotic and penal assessments and to differentiate between symbols that should be removed and those that should not be removed.
There is also a problem with the role and competence of the government commission responsible for the removal of Soviet symbols, the report states.
Under the new law, the government commission will, if necessary, determine the conformity of a building and may, as a last resort, order the building's demolition.
"Such a clause of the proposed legislation reeks of arbitrariness and state-level arbitrariness. At the same time, the prohibition of arbitrariness in the Constitution requires that the exercise of state power must be predictable for the individual. Such commissions are rather reminiscent of the bodies of totalitarian regimes that assessed the conformity of art with the ideology of the regime in power," Põdramägi states in her assessment.
"According to the explanatory memorandum, the government commission is a consultative body with the authority to deem a structure noncompliant. In addition, it is uncertain whether the Commission can commence actions on its own. The proposal does not indicate if the government commission will be established on an ad hoc basis, i.e. as needed, or whether it will be a permanent government commission," she added.
"It is also unclear whether the government committee refers to the working group on Soviet monuments that has already been established at the Government Office," the report states.
"Such secret or semi-secret commissions with broad decision-making powers are not appropriate in a democratic society and are in no way compatible with the letter and spirit of the Constitution."
The study goes on to argue that it may not be constitutionally permissible to oblige property owners to remove offensive symbols with their own money, especially when, in the judgment of the study's author, the removal of the symbols would not have the desired proportional effect.
"Removing individual (Soviet) symbols from publicly visible parts of buildings does not reduce the hostility of certain unfriendly countries or social groups toward the Republic of Estonia, nor does it condemn an occupation regime, an act of aggression, genocide, a crime against humanity, or a war crime," Põdramägi argued.
In Põdramägi's view, the demolition of a building under coercion is not proportionate.
"It is not needed to demolish a structure whose public areas are adorned with Soviet symbols, because they do not constitute an imminent danger. The infringement is all the more intense if the building is owned by a natural person and is a residential building, and the person also has to bear the costs associated with bringing the building into compliance," the analysis states.
Moreover, according to Põdramägi, there is a problem with the deadlines, as the three-month deadline for bringing a building in line with the requirements is not sufficient. The adopted law extended this deadline to six months instead.
On the whole, Põdramägi assessed it as a failed draft, "The content of the draft is unclear; the definitions too vague. The more serious the violation of a fundamental right, the more compelling the justifications must be. I was unable to see any justifiable explanations in either the draft or the explanatory memorandum."
"The suggested measures are not proportionate, nor can a Stalinist dwelling be compared to occupation monuments in public space. If legislators wish to amend the Building Code and Planning Act in relation to Soviet symbols, they might consider installing a neutral information board or covering the symbols on 'inappropriate' buildings," Põdramägi added.
The Riigikogu approved amendments to the Building Code and Planning Act initiated by the government on Wednesday, allowing the removal of Soviet monuments from public space and broadening the scope of the objects to be removed to include architectural and artistic works.
In order for the law to take effect, it must be promulgated by the President.
Editor: Huko Aaspõllu, Kristina Kersa