Fundamental Rights and Freedoms in Estonian Constitution
| Author | Raul Narits |
| Pages | 25-34 |
Raul Narits
Fundamental Rights and Freedoms in Estonian Constitution
The Republic of Estonia shapes and develops its statehood on the basis of the principles of a democratic state and the rule of law. This, inter alia, means that fundamental rights and freedoms form an inherent part of the Estonian national legal order. At the same time, fundamental rights and freedoms are not connected only with domestic legal orders but for substantive reasons go beyond them. This, in essence, means that the contemporarily substantiated catalogue of fundamental rights and freedoms fixed in the valid law stands in for in many respects for a catalogue of human rights. Human rights as a phenomenon of natural law are actually imprescribable. Natural law as compared to positive law is considered to offer the supreme order, while positive law itself is really valid only in cases where it corresponds to natural law1. Therefore, it is absolutely normal that in drafting Chapter II of the current Constitution2 entitled "Fundamental Rights, Freedoms and Duties", various relevant sources of international law as well as constitutions of democratic states were taken as basis.
The structure of the Estonian Constitution lays an emphasis on fundamental rights and freedoms. An emphasis highlighted by the fact that the primary chapter comes right after the seven general provisions of Chapter I. Chapter II of the Constitution contains 48 sections, more than a quarter of the total 168 sections of the Constitution. Thus, we can conclude that the scope and position of Chapter II indicate that the legislator considers the constitutional fixing of contemporary fundamental rights and freedoms very important. But several other provisions of the Constitution (for example, § 57, § 60(1) and others) not contained in Chapter II also regulate fundamental rights and freedoms. The fact that the chapter on fundamental rights and freedoms is the second chapter of the Constitution emphasises, in essence, that the society holds a person-centred attitude. The state as an organisation exists for a person and constitutions of democratic state systems stress the person-centred attitude of their society by placing the provisions on fundamental rights at the beginning of their constitutions. Hereby, the Republic of Estonia has a certain historical experience. In both the 19203 and the 1938 Constitutions4 the relevant chapter was also the second chapter which clearly reveals that fundamental rights and freedoms have always been of central importance in the Estonian Constitutions. Therefore, it can be seen that the emphasis of fundamental rights by way of their external structure has significance as to both form and content.
In Estonian legal literature it has been observed that the analysis of the Constitution and its implementation requires primarily a clarity in methodological and procedural issues. As is known, it has been attempted to resolve these issues by relying on the principles of a systematic approach5. Indisputably the catalogue of fundamental rights and freedoms incorporated in the Constitution needs systematic analysis. In connection with the necessity to elaborate the Constitution, a very necessary step was taken. Namely, on 14 May 1996, the Government of the Republic established on the proposal of the Riigikogu, a Committee on the Legal Expertise of the Constitution6. By now this body, acting with the status of a governmental committee, has completed its work and submitted the corresponding analysis to the Government. The level of conformity of the Estonian Constitution with the European Union standards, possibilities of more explicit determination of constitutional institutions, proposals for the liquidation of deficiencies in the Constitution are analysed. Some of the materials (concerning the analysis of Chapter II of the Constitution) that were at the disposal of the aforesaid committee have been used in the present overview.
Comparing the contents of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)7 with the catalogue of fundamental rights and freedoms contained in the Constitution of the Republic of Estonia, it can be concluded that the fundamental rights constitutionally valid in Estonia are in compliance with the internationally recognised human rights and freedoms8.
Consequently, it is possible to present fundamental rights and freedoms incorporated in the Estonian Constitution in correlation with the ECHR9: the right to life - § 16 of the Constitution, Article 2 of the ECHR; the liberty not to be subjected to torture or to inhuman or degrading treatment or punishment - § 18 of the Constitution, Article 3 of the ECHR; the liberty not to be held in slavery or servitude, and required to perform forced labour - § 29 of the Constitution, Article 4 of the ECHR; the right to liberty and security of person - §§20 and 21 of the Constitution, Article 5 of the ECHR; the right to fair trial within a reasonable time by an independent and impartial court established by law - §§ 15, 22 and 24 of the Constitution, Article 6 of the ECHR; the right to non-retroactive application of criminal law - § 23 of the Constitution, Article 7 of the ECHR; the right not to be punished again for an act for which a person has already been acquitted or convicted - §23(3) of the Constitution, Article 4 of Protocol No. 7 of the ECHR; the right of appeal - §24(5) of the Constitution, Article 2 of Protocol No. 7 of the ECHR; the right to respect for one's private and family life, home and correspondence - §§ 26, 33, 42 and 43 of the Constitution, Article 8 of the ECHR; the freedom of thought, conscience and religion - §§ 40 and 41 of the Constitution, Article 9 of the ECHR; the freedom of expression - § 45 of the Constitution, Article 10 of the ECHR; the freedom of assembly and association - §§ 47 and 48 of the Constitution, Article 11 of the ECHR; the right to marry and found a family - §27 of the Constitution, Article 12 of the ECHR; the right to effective remedy for damage caused by public authorities - § 25 of the Constitution, Article 13 of the ECHR; the right not to be discriminated - § 12 of the Constitution, Article 14 of the ECHR; the right to peaceful enjoyment of one's possessions - § 32 of the Constitution, Article 1 of Protocol No. 1 of the ECHR; the right to education - §§ 37 and 38 of the Constitution, Article 2 of Protocol No. 1 of the ECHR; the freedom of movement - §§ 34, 35 and 36 of the Constitution, Articles 2, 3 and 4 of Protocol No. 4 of the ECHR.
In connection with Chapter II of the Constitution as the most comprehensive structural part of the Constitution, I would like to draw attention to the phenomenon that in legal literature is referred to as underpinning reasons. As a result of generalisation we can say that Chapter II of the Constitution is the most principal justifying basic norm. If this is acknowledged and if, in addition to that, certain socio-legal conditions are met10, then there will be no problems with the observance of the basic norm. But those who do not want to commit themselves to that basic norm are not supporters of the western ideal of law. The situation does not change if we have to deal with principles, as is often the case with the Constitution. And although the formal validity and efficiency of the norms and maybe even the recognition of norms are different in the case of a positive norm and legal principle, underpinning reasons are also considered in the case of constitutional norms establishing fundamental rights and freedoms.
Systematic treatment of fundamental rights and freedoms must be based on the idea of oneness or coherence of the legal order as the whole and its supreme law - the constitution. Thereby, attention should be drawn, firstly, to the principles ensuring the consistency and, secondly, to contextual principles. Fundamental rights must be interpreted in such a way so as to avoid discord within the fundamental rights themselves or between other parts of the constitution (consistency), and so that one is left with a clear idea of a fundamental right provision and its place in the text of the constitution (contextuality)11. Such substantiation of fundamental rights can be characterised as a conceptual-systematic approach. In addition to that, fundamental rights may also be substantiated according to certain principles12. Therefore, one should not forget that, by nature, fundamental rights are similar to principles in that many aspects stem from natural law. Therefore, their validity as principles cannot strictly depend on the level or degree of their objectification. Pure rules of law also help to form a systematic understanding of fundamental rights. The basic rule here is the principle: legibus, non exemplis iudicandum. Law must be interpreted (understood) on the basis of laws, not on the basis of precedents. The second basic idea is: lex est exercitus iudicum tutissimus ductor. A law is the most reliable guide for a judge (the applier of law). The presented standpoints do not exclude prejudication in developing a systematic understanding of fundamental rights. The principle of equal treatment established in the Constitution (§ 12(1)) requires that decisions made in similar court cases can not be ignored without sufficient grounds. A comparative approach...
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