New analyses find proposed Soviet monuments act constitutional

Soviet monument in Haapsalu.
Soviet monument in Haapsalu. Source: Juhan Hepner/ERR

The Estonian Ministry of Justice has commissioned two further analyses of the proposed Soviet monuments act, which had been on the receiving end of a scathing assessment from the Riigikogu's Legal and Research Department. However, law firms Sorainen and Levin both concluded that the proposal is constitutional.

In mid-February, the Riigikogu approved a bill allowing for the removal of Soviet era monuments from public space. However, an analysis by the Riigikogu's Legal and Research Department concluded, that the concept of a non-compliant building was too vague and therefore the draft was unconstitutional. It also identified a number of other shortcomings in the draft bill.

Last week, the Ministry of Justice commissioned two further analyses of the draft, costing the state a total of €9,600, plus VAT.

Minister of Justice Lea Danilson-Järg (Isamaa) told ERR, that the reason for ordering the new analyses was the need to obtain the opinion of external experts on the draft.

"According to the experts at the Ministry of Justice, who drafted the bill, there is no conflict with the Constitution. However, since constitutional compliance is an extremely important issue, which the President has to take into account when promulgating the law, I, as Minister of Justice, considered it necessary to solicit the opinion of external experts in order to clarify the matter. The arguments put forward and conclusions drawn in the analyses conducted by the two law firms confirm that the law is constitutional," Danilson-Järg said.

The new analyses were conducted by two law firms: Levin and Sorainen.

In his analysis, Levin lawyer Paul Keres, confirmed that the aforementioned criticisms of the draft by the Riigikogu's Legal and Research Department were unfounded.

According to Keres, the criticism was based on an interpretation of the draft, which considers it possible for an entire building (from the Stalinist era for example) to incite violence, support or justify an occupying regime, as well as the commissioning of an act of aggression, genocide, crimes against humanity or war crimes.

Keres' analysis also disagreed with the criticism that the draft lacks clarity on the grounds that it is not possible for the average person to determine whether a part of a building is inciting hatred, or to what extent a part of a building is publicly visible. The lawyer did not find any reason to consider this aspect of the draft unconstitutional.

According to a recent analysis, moves to legally define, which objects and symbols are considered hateful or not, creates the risk, that at some point it would become illegal to use those, which  were once considered hateful but no longer are once the law comes into force.

The list of objects and symbols identified in the law would also exclude those, which could in future, come to take on the meaning of glorifying or reinforcing the the occupation.

Keres said, that questions regarding, which parts of building are visible from public space and whether, this would also include those, which can be seen from a drone for instance, are legitimate. However, he pointed out, that any disputes of this kind would be best assessed on a case-by-case basis.

Keres cited the example of a bust of a genocidal dictator located between some hedges in the courtyard of a private house as not being considered publicly visible, because only a small number of people can see it. On the other hand, a symbol painted on the roof of an apartment building near the airport is clearly visible to the public, as it can be seen by everyone during landing and take-off.

Sorainen's analysis also found the draft to be constitutional in both its form and substance. Norman Aas, the lawyer who conducted the analysis for Sorainen, pointed out that laws are usually abstract and that it is not always possible to conclusively define all the concepts involved.

According to the Ministry of Justice, the aim of the draft is not to demolish any Stalinist building in its entirety.


Follow ERR News on Facebook and Twitter and never miss an update!

Editor: Michael Cole

Hea lugeja, näeme et kasutate vanemat brauseri versiooni või vähelevinud brauserit.

Parema ja terviklikuma kasutajakogemuse tagamiseks soovitame alla laadida uusim versioon mõnest meie toetatud brauserist: