Church Autonomy and Religious Liberty in Estonia
| Author | Merilin Kiviorg |
| Position | Assistant of International Law and European Community Law |
| Pages | 93-99 |
Page 93
Today's religious picture in Estonia is a mosaic of different faiths and denominations. Along with traditional Christian churches, which have existed in Estonia for centuries, many new religious movements have appeared.
In Estonia the right to freedom of religion is protected by the Constitution of 1992 and by international instruments that have been incorporated into Estonian law. Starting with protection from international instruments, § 3 of the Estonian Constitution stipulates that universally recognised principles and standards of international law shall be an inseparable part of the Estonian legal system. Section 123 states that if Estonian Acts or other legal instruments contradict foreign treaties ratified by the Riigikogu (parliament), the provisions of the foreign treaty shall be applied. Estonia is party to most European and universal human rights documents.
The Estonian Constitution also provides express protection to freedom of religion. Section 40 sets out that: "Everyone has freedom of conscience, religion and thought. Everyone may freely belong to churches and religious associations. There is no state church.
Everyone has the freedom to practise his or her religion, both alone and in community with others, in public or in private, unless this is detrimental to public order, health or morals."
Section 40 of the Constitution is supplementary to § 45 concerning the right to freedom of expression, § 47 concerning the right to assembly and § 48 concerning the right to association. Section 9 paragraph 2 of the Constitution states that "The rights, freedoms and duties set out in the Constitution shall extend to legal persons in so far as this is in accordance with the general aims of legal persons and with the nature of such rights, freedoms and duties."
The Churches and Congregations Act (hereinafter CCA) deems churches, congregations and associations of congregations to be legal persons and stipulates the legal bases for their activities. Churches, congregations and associations of congregations must be registered by the Ministry of Internal Affairs in the Estonian Church Register (an abbreviation of the Registry of Churches, Congregations, Associations of Congregations). Churches, congregations and their associations are considered to be non-profit organisations. The activities of religious societies are not regulated by the CCA but rather by the Nonprofit Organisations Act and they must be registered by a court in the Register of Non-profit Organisations and Foundations. The Ministry of Internal Affairs has written a draft Act on Churches and Congregations (hereinafter the draft Act), according to which the Estonian Church Register and its respective functions are delegated to the courts. The law does not regulate the activity of religious organisations which are not registered. The main obstacle for these entities is the fact that they cannot present themselves as legal persons2.
Section 40 of the Constitution states, inter alia, that "there is no state church". The 1920 Constitution of the Estonian Republic set out that "there should be no state religion". The 1920 statement followed the principle of the separation of State and church more clearly. It was stated that all religious organisations had to be equally protected and that none of them could receive preferential treatment from the State. All religious organisations, including churches, had equal status with other private legal persons3.The 1938 Constitution stipulated that "there is no statePage 94church" but added that the "state can grant status in public law to large churches".
Estonia is re-establishing its legal order on the principle of restitution, taking into account the legal situation before the Soviet occupation, as well new developments and obstacles and the principles of European and International Law. Nevertheless, the question of the autonomy of the churches (religious organisations) is debatable in Estonia and finding a solution will take time.
These regulations have to be in accordance with regulations of the Government or ministries, because they are issued outside the scope of autonomy. The fulfilment of mentioned functions belong to supervision and co-ordination by the administration of the State9. These additional responsibilities can, for example, be the registration of marriages of civil validity by churches, social care, etc. The preferred position is that the competence of Government and autonomous subjects must be clear in order to avoid conflicts10. But sometimes it is difficult to identify what is the autonomous sphere of the subject and what is beyond the autonomy and belongs to State supervision.
The term "autonomy" is difficult to define and, as a result, the question of autonomy in Estonia is more than unclear. Legal theorists from the past and the present have different opinions. Autonomy in administrative law and theory is generally understood as the right to self-government and the right to issue regulations4. Both of these components have to be present for autonomy. The right to issue regulations means the delegation of legislation5. The opinions stem from different interpretations of the Constitution. Maruste and Truuväli are of the opinion that the Constitution of Estonia does not allow delegated legislation. According to them, state administration and autonomous corporations in public law have right to adopt only intra legem regulations (Durchführungverordnungen) on the basis of a special delegation of authority6. In theory, researchers are of the opinion that intra legem regulations may only specify the regulation of areas which are regulated by law7. The delegation rule must precisely specify the content of the corresponding authority and the intended purpose and scope of the regulation. The Supreme Court also supports this position. However, the Supreme Court has not said anything about regulations issued within internal competence. The prevailing position is that the internal matters of an administrative organisation may be subject to praeter legem regulations on the basis of the general delegation of authority. Regulations of this type are not substitutes for laws in a specific area and their effect only extends to the point at which regulation by law commences. Autonomous subjects have the right to issue praeter legem regulations (gesetzesvertretende Verordnungen) on the basis of a general delegation of authority8. The right to issue praeter legem regulations is in theory restricted with the autonomy of the subject. The regulations adopted within such autonomy do not have to be in accordance with regulations of the Government or ministries, but they must be in accordance with the Constitution and with the principles of the delegating law and laws which regulate similar questions. Under the authorisation of the law state can delegate some of its functions to autonomous subject. For fulfilment of these functions, the State pursuant to the law, delegates to autonomous subject the authority to issue regulations.
3.1. Subsection 10(2) of the Churches and Congregation Act (CCA) states that boards of churches and associations of congregations have the right to adopt instruments which regulate their activities. It should firstly be mentioned that, from a linguistic point of view, this is a badly drafted provision. It leaves unanswered the question of whether these boards have the right to regulate their own or religious organisation activities. This is a matter of the inaccuracy of the legislator and, in practice, that provision has been interpreted as the right to regulate the activities of a church or association of congregations. Subsection 10 (2) excludes the boards of congregations (both congregations of churches and so-called single congregations) and religious societies from the aforementioned right. Section 2 of the CCA gives legal definitions of the following:
(1) A church is a congregation or association of congregations which has episcopal structure and is didactically bound by three common church confessions, functioning on the basis of statutes under the elected or appointed leadership of a board and registered as provided by law.
(2) A congregation is a voluntary association of natural persons confessing the same faith, functioning on the basis of statutes under the elected or appointed leadership of a board and registered as provided by law.
(3) An association of congregations is a voluntary association of at least three congregations confessing the same faith, functioning on the basis of statutes under the elected or appointed leadership of a board and registered as provided by law.
Section 3 of the CCA states that:
"A religious society has only partly the same characteristics as a congregation. Religious societies are voluntary associations of natural persons and...
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