I THE PROTECTION OF MINORITIES
8. The legislative process following the independence in 1991 was largely guided by the principle of restoration, which meant, inter alia, that automatic acquisition of Estonian citizenship required a connection to the pre-Soviet era Estonia. Consequently, hundreds of thousands of persons who had settled in Estonia during that era did not acquire citizenship automatically, and had to go through a naturalisation process. Although various measures have been taken in recent years to improve the access to Estonian citizenship, the population census conducted in the year 2000 indicated that more than 170.000 persons still had the status of non-citizens, while 117.000 had been granted citizenship since 1992. Of the total population of approximately 1.370.000 persons, 80 percent have Estonian citizenship, 7 percent have a citizenship of another country (mainly Russian), and 12 percent are “persons whose citizenship is undetermined”3 , which in practice means that they do not have citizenship of any state.
3 Terminology used in the 2000 population census.
9. The lack of citizenship deprives these persons of a number of rights, mainly in the field of political rights, and carries an increased risk of social exclusion. Although non-citizens have the right to vote in local elections, they do not have the right to vote in national elections, establish political parties, or become members in political parties. Moreover, the enjoyment of the rights guaranteed under the Framework Convention for the Protection of National Minorities, was limited by Estonia to those who have Estonian citizenship when it ratified the Convention.4 Whilst I was informed that with regard to social security, there are no legislative differences between citizens and non-citizens, there are still some citizenship criteria in certain (notably public) areas of employment – at least some of which however could be seen as justified. It is also to be underlined, that non-citizens, like citizens, contribute to the society in a similar manner as taxpayers.
4 While welcoming that the Estonian authorities appeared to take de facto a considerably more inclusive approach, the Advisory Committee noted that this declaration was restrictive in nature and not suited for the existing situation in Estonia. See Advisory Committee on the Framework Convention for the Protection of National Minorities, Opinion on Estonia, doc. ACFC/INF/OP/I(2002)005, adopted on 14 September 2001, para. 17.
10. The slow pace of naturalisation was explained both by the difficulties that some persons continue to experience in passing the examinations required for the acquisition of Estonian citizenship and by the relatively limited motivation of some of the non-citizens to seek naturalisation.
11. Further measures are needed to ensure that all newborn children of non-citizen parents acquire a nationality after birth, the possibility of which is guaranteed by the law on the basis of an application by the parents.5 I was, however, informed that many parents do not apply for Estonian citizenship for their children or, apparently, for any other citizenship, and leave it up to the child to decide whether to apply for citizenship through naturalisation when she or he turns 15. I would like to recall that the right to acquire a nationality entails a positive obligation for the State to ensure an effective exercise of this right. Consequently, a state should not accept a situation where newborn children are rendered stateless on the basis of a mere option available for the parents to apply for another citizenship.
5 According to Estonian Citizenship Act of 1995 “a minor under 15 years of age who was born in Estonia after 26 February 1992 shall acquire Estonian citizenship by naturalisation if: 1) his or her parents apply for Estonian citizenship for him or her and if the parents have legally resided in Estonia for at least five years at the time of submission of the application and are not deemed by any other state to be citizens of that state on the basis of any Act in force”.
12. In order to ensure the effective enjoyment of the right of the child to acquire a nationality from birth6 , I proposed during the visit, that the interpretation of the Law on Citizenship be modified so that the registration of a new-born child of non-citizens would be automatically considered as an application for Estonian citizenship, unless the parents of the child declare in writing that they have applied for citizenship of another state, under which laws the child is entitled to acquire citizenship of that country. Such a solution would ensure that every child acquires a citizenship at birth, instead of subjecting the child to statelessness at least until she or he turns 15 and becomes eligible for a naturalisation process on his or her own right. This interpretation would ensure that a child acquires one citizenship or another from birth, without the effect of imposing Estonian citizenship on those who apply for another citizenship.7 Several official interlocutors during my visit expressed openness to examine this proposal.
6 Article 7 of the Convention on the Rights of the Child states that ‘1. The child shall be registered immediately after birth and shall have the rights from birth to name, right to acquire a nationality… 2. States parties shall ensure the implementation of these rights in accordance with their national law and their obligation under the relevant international instruments in this field, in particular where the child would be other wise stateless.
7 In this context, I would also like to recall that the United Nations Human Rights Committee recommended that Estonia “should seek to reduce the number of stateless persons, with priority for children, inter alia by encouraging their parents to apply for Estonian citizenship on their behalf’. See Concluding observations of the Human Rights Committee on Estonia, 15 April 2003, Doc. CCPR/CO/77/EST.
13. An alternative might be to modify the birth registration forms so as to permit the expression of the desire of the parents to request or decline Estonian citizenship for their newborn child. The expression of the corresponding desire would thus constitute an application for naturalisation. If the parents decline Estonian citizenship for their child, they should provide proof of having applied for citizenship of another state, under which laws the child is entitled to acquire citizenship at birth.
14. Many of my interlocutors noted that the level of language proficiency required for acquiring Estonian citizenship continues to be too high for some persons, particularly for the elderly, and for many those who live in regions prominently inhabited by Russian-speakers. It was estimated that 20 percent of candidates do not pass the language exam. I find it imperative to strengthen the efforts to ensure that the language requirements do not constitute an insurmountable obstacle for obtaining citizenship. While welcoming the fact the elderly (those born before 1 January 1930) are exempt from the written test, I would like to suggest that successful participation in a language course would be regarded as sufficient proof of their knowledge of the language without having to pass the exam. In this context, I would like to recall the recommendation made by the OSCE High Commissioner for Minorities already in 1996, in which he called for the abolishment of the oral test for the elderly.8 I was also informed that, although the legislation grants significant exemptions for persons with certain disabilities from compliance with the requirements set forth for the naturalisation, the pace of naturalisation is strikingly low among persons with disabilities.9 Further efforts appear therefore important to promote the access to the naturalisation process for these persons.
8 See the letter dated 28 October 1996 by Mr Max van der Stoel, OSCE High Commissioner on National Minorities to the then Minister for Foreign Affairs of the Republic of Estonia, Mr Siim Kallas, published on 2 January 1997.
9 See Article 34 (2) (3) and (4) of the Citizenship Act relating respectively to visually impaired persons, hearing and speech impaired persons, and persons without active legal capacity.
15. I was able to observe, that substantive efforts have been undertaken to facilitate the learning of the Estonian language for the purposes of improving access to citizenship. Further efforts are however needed to ensure that all individuals have effective access to such education. Since the costs of language exams have created impediments to some persons, I was pleased to learn that as of 1 January 2004, the total costs of the language exams will be reimbursed within three months to all those who passed the exam10. I would, however, like to suggest that the exams be made free of charge irrespective of whether the person succeeds in the exam or not. A fear of failure in the exam, and the corresponding costs, may provide an unwelcome disincentive for taking the exam. Financial constraints should not create an obstacle for the effective realisation of such a fundamental right as the right to nationality.
10 The amendment adopted to the Citizenship Act on 10 December 2003.
Preservation of minority languages, identities and cultures
25. I encourage the Government to take further measures to address the situation of the Roma, and in this respect, would like to refer to the recommendations of the Round Table on Roma in the Baltic States organised by the the Council of Europe Specialist Group on Roma/Gypsies in year 2000 in Estonia, which inter alia, called for the establishment of “an
effective consultative/communication body between the national authorities and the Romani representatives in order to encourage Roma participation in all decision-making processes and to ensure the sustainability of policies and projects launched by the authorities”.
61. Since its accession to the Council of Europe in 1993, Estonia has made commendable efforts in respect of human rights promotion and protection. It is, moreover, evident that the authorities remain committed to undertaking further efforts in areas where problems persist. In order to provide assistance to Estonia in promoting the respect for human rights, the Commissioner, in accordance with Article 8 of Resolution (99) 50, makes the following recommendations:
1. Take further measures to make naturalisation of non-citizens more accessible, by, inter alia,
- a. ensuring that the language requirements required for obtaining Estonian citizenship do not create an insurmountable obstacle for obtaining citizenship;
- b. by adapting the application procedures for citizenship for newborn children so as to ensure that all new-born children of non-citizens acquire a citizenship from birth;
62. This report has been presented to the Committee of Ministers’ Deputies of the Council of Europe on 12 February 2004. At the end of this presentation, and in the light of the comments brought to by the Permanent Representative of Estonia, the Commissioner decided to add the following information about recent progress relating to issues dealt with in the report:
1. Several steps have been taken under State Integration Program, inter alia, to facilitate procedures and speed up processing of applications for citizenship. Concerning the questions of citizenship for children different possibilities are under discussion by competent authorities (§§ 11 – 12 of the Report).
2. The system of language exams and tests is a process which has to be constantly developed and adapted for improvement. The Estonian language tests, developed under the guidance of Council of Europe experts, have been improved under supervision of relevant working group of university experts since 2001. In 2003 a number of changes were introduced in tests with a view to take account of specific problems identified previously (§§ 14-15);
63. The Commissioner welcomes these developments.
Document data: 12.02.2004; CommDH(2004)5 Link: https://rm.coe.int/ref/commdh(2004)5