The Estonian Evangelical Lutheran Church (EELK) received millions of euros from the government even though it has never been legally determined whether the church even has a right to the Tallinn St. Nicholas’ Church. Cultural circles are relieved nonetheless.
“The dispute between the Republic of Estonia and Tallinn city government got as far as the Supreme Court where EELK’s right to the church was confirmed. Despite this, it took the government years to take the final step,” said Archbishop Urmas Viilma late last year, when commending the government for its €6.8 million payment to the church. “When Prime Minister Jüri Ratas and his coalition took office, negotiations were relaunched in early 2017 and lasted the entire year,” the archbishop wrote.
Ratas stated at the government’s press conference that the dispute regarding St. Nicholas’ Church has been concluded, saying a solution had to be found because “legal clarity and certainty are important aspects”.
In truth, the Supreme Court has never deliberated whether EELK has a right to the church on Toompea Hill or not. What will be perpetuated instead of legal clarity is legal stalemate as it is easier for the government to pay EELK nearly seven million euros. In return, the latter promises to relinquish all claims to what is today a museum even though the question of whether it has a right to the church will remain unresolved.
“It is hypocrisy,” said sworn lawyer Alar Eiche who represented the Ministry of Culture in the dispute. The dance around St. Nicholas’ Church is rightly a dance macabre.”
Eiche is convinced the millions allocated to EELK cannot be tied to the ownership reform as the decision to return St. Nicholas’ Church to EELK has never been made nor official compensation ordered. Including by the Ratas government.
“If the government wants to donate sums to the church, it should do so and call things what they are. The law applies to everyone, including the church. The government has bypassed that principle here and simply given the church money outside the law for so-called injury. This has not taken place based on the ownership reform that has to be simple and uniform,” the sworn lawyer explained.
To understand how a false claim has by now become a widely-known fact, we need to go back in time some ten years.
Tallinn City Archives sent the following message to the Art Museum of Estonia operating out of St. Nicholas’ Church in the spring of 2008: “Not a single archival document on the nationalization or other type of illegal expropriation of the Tallinn St. Nicholas Church from June 16, 1940 to the March bombing of 1944 can be found. There is furthermore no evidence of documented data (proof) to point to the nationalization or other type of illegal expropriation of the ruined church after the restatement of Soviet authority on September 22, 1944.”
The archival notice was issued by then city archives director Urmas Oolup who left office a few weeks later.
“I trust the work my predecessors or colleagues have done,” said current director, Center Party member Küllo Arjakas. “I’m sure researchers prepared the decision having gone over the documentation, and that it should be treated as authentic.”
The document, signed by Oolup and archivist Kalmer Mäeorg, also reads that opposite, mistaken conclusions have been drawn based on the archives’ answer in the past. Nationalization only concerned two small buildings on the same property that were destroyed during the war. Not the church itself, researchers maintain. The archivists mention a decision by the city committee for return and compensation for unlawfully expropriated property from 2002 as one example of misinterpretation. It states that all buildings on the property were nationalized, misinterpreting the city archives’ letter, Oolup and Mäeorg write.
They stress on several occasions: the main building of the St. Nicholas Church and its historical chapels are not described or listed in the nationalization file. Therefore, the church cannot be treated as property subject to restitution.
“The city archives is a Tallinn city department. No manner of conflicting statements by lawyers in the St. Nicholas’ Church case can change the content and value of the archival notice in terms of appraising the truth based on archival documents,” Eiche said. The sworn lawyer believes the notice from 2008 constituted sufficient grounds to annul the decision according to which the church is an object of the ownership reform. That was not done.
Next, Eiche turned to the Tallinn Administrative Court as a representative of the Ministry of Culture that started the action referenced by Archbishop Viilma. The case ended in a legal vacuum.
The ministry wanted the city committee to annul its decision because the church building was not unlawfully expropriated and because EELK cannot be a subject of ownership reform as it was not the church’s owner. The last owner of the church was the independent St. Nicholas congregation.
Had the property been nationalized, it would have showed up in someone’s balance sheet. However, it did not when restoration work commenced,” Eiche said.
These facts were neither confirmed nor overturned in court as the administrative court found the ministry does not have the right to contest the city committee’s decision in April of 2009. The court concluded that finding the church to be an object of ownership reform is not yet in violation of the rights of the church’s owner – the Republic of Estonia. The court explained that restitution of expropriated property will be decided in two stages. First, a decision from the city committee is required, after which the local government must decide whether to return the property or not. The mere fact the church has been designated as an ownership reform object and EELK as a subject does not give EELK right to the church. Which in turns means a mere subject decision could not have violated the interests of the state, the court pointed out.
The ministry would be in its right to contest a decision to return the church to EELK. Only then could it contest proceedings and demand the city committee’s decision to be changed. Not sooner.
The circuit court agreed. Designating the church as an object of ownership reform is not in violation of the state’s rights. Only return of property can violate rights.
The Supreme Court did not accept the case. Therefore, a legal vacuum had been created: the state wanted to use city archives materials to contest St. Nicholas’ Church’s designation as an ownership
reform object, while the courts found it was too soon. The city committee’s decision stood. Principal debate over whether the church was nationalized in the first place did not take place.
Relieved despite everything
The culture ministry’s legal department told Postimees that the only thing that could have been contested was a decision to return the church. No such decision has ever been made.
While the lawyers are right to call the transaction between the government and the church a dance macabre, it remains a fact art circles are relieved. Bernt Notke’s “The Dance Macabre” will remain in state hands for which gratitude is owed to the negotiation skills of PM Jüri Ratas.
The finance ministry is working on a contract in which EELK would clearly state that by accepting the major donation it relinquishes all claims to the St. Nicholas’ Church, and what is even more important, its priceless art collection in comparison with which €6.8 million is a trifling sum.
In addition, it was agreed that €2 million of the support sum will be spent on renovation of the St. Mary’s Cathedral in Toompea the condition of which is worrying the government.
The contract will have to be signed by Minister of State Administration Jaak Aab and notarized. An appointment had not yet been scheduled last week.
The judge who presided over the culture ministry’s action in the first instance court, Kristjan Siigur, said that the final decision of whether St. Nicholas’ must be returned to EELK has not been made, and that is something the government’s so-called present will not change.
“I understand the state and EELK have been negotiating for years the result of which could be that EELK relinquishes its restitution claim in exchange for a sum from the government,” Siigur said. He agrees with Eiche in that the sum would not be compensation for unlawfully expropriated property in the sense of the ownership reform acts.
That is why legal experts are slow to say the current contract can rule out future court action. “If EELK drops its return claim, the church can probably remain in state hands as there are no other applicants. However, these decisions still need to be made, and only time will tell whether we will see further court action,” the Tallinn Administrative Court chairman said.