Protection of Fundamental Rights and Freedoms in Estonian Constitutional Jurisprudence

• Author: Peeter Roosma
• Position: Assistant of Constitutional and Administrative Law, Counsellor to the Constitutional Review Chamber of the Supreme Court
• Pages: 35-44

Page 35

Peeter Roosma

Assistant of Constitutional and Administrative Law, Counsellor to the Constitutional Review Chamber of the Supreme Court

Protection of Fundamental Rights and Freedoms in Estonian Constitutional Jurisprudence

Introduction

In the continental legal tradition the task of a judge has been seen in application of abstract legal rules to a specific factual pattern to achieve the results foreseen by the legislature. This process of subsumption is not purely logical although such claims have been made. In reality, the process of application of law is more complicated, since any legal regulation cannot be absolutely comprehensive and coherent without gaps and contradictions. A question whether or how adequately the rationale of a law can be written down at all - because of the incompleteness of the human language - has been erected¹. In any case, the common understanding seems to be that legal interpretation is inevitably necessary in the process of application of law.

One of the most influential theories of interpretation in the continental legal thought, recognised until today in German jurisprudence as "classical theory of interpretation" is the teaching of Friedrich Carl von Savigny which was first published in 1840 under the title "System des heutigen Römischen Rechts"². The aim of interpretation according to Savigny was reconstruction of the rationale in the law. Four elements of interpretation had to be applied simultaneously to achieve this purpose - grammatical, logical, historical and systematic. It is interesting to mention that different scholars have classified Savigny's theory of interpretation both as subjective and objective theories of interpretation, or as standing outside both of them³.

In principle, similar methods of interpretation are applicable in the process of interpretation, including constitutional interpretation, today, as well,⁴ although different authors offer slightly different classifications of the methods⁵. On a more general level, the theories of interpretation can also be divided into the classes of subjective and objective theories, the basis of the distinction being the intent of the legislator while passing the relevant act, and the reasonable purpose of the law, respectively⁶.

Generally, the courts are free to use the methods of interpretation they deem proper in a specific case, there are only a few laws which stipulate how they should be interpreted. In Germany some older codifications contain such provisions⁷. In the United States, however, many states have passed special laws, determining how statutes adopted by the legislature of the respective states must be interpreted⁸. It has been mentioned that there is also difference between ordinary statutory interpretation and construction of the Constitution in the United States⁹.

The Estonian Constitution does not mention any specific methods of interpretation, but a few laws do¹⁰. In the case of the General Part of the Civil Code Act, Professor Raul Narits has criticised the inclusion of ways of inter-Page 36pretation into a law. He argues that by such legal enactment of specific techniques of interpretation the legislator has chosen some elements from a number of theories of interpretation and has made those selected legally binding. According to Narits the methods of interpretation belong rather to legal science than to the general provisions of a law¹¹.

Attempts have been made to find rules of interpretation also in the text of the Estonian Constitution. Professor Peter Häberle found that § 42 of the draft Constitution of December 1991 (§ 10 of the valid 1992 Constitution)¹² sets forth a rule of interpretation, quite similarly with the 1979 Peruvian or the 1985 Guatemalan Constitutions, and, in fact, with the Ninth Amendment to the Constitution of the United States¹³. Häberle calls this provision a "fundamental rights development clause" and claims that the reference to the "spirit of the Constitution" and the clause "or are in accordance therewith", enable the Constitution to develop more freely and allows better to create new fundamental rights¹⁴. Maybe it would be interesting to call attention to the fact that the section mentioned speaks about "duties" also. It could be called "constitutional duties development clause" as well, if the constitutional rights and legal obligations would not subject traditionally to different ways of interpretation - broad and narrow, respectively.

Generally, it is hard to fix the different methods of interpretation into a strict hierarchy. They can be applied in different degrees in one court decision, as well. There are, however, slight dissimilarities between the traditions in particular countries. For example, in Germany the intention of the framers of the Basic Law and the history of specific constitutional provisions is only of additional importance besides reasonings supported by textual, structural or teleological arguments¹⁵. This may be a result of the originally provisional character of the German Basic Law,¹⁶ I guess. Concerning Estonia, there is no clarity in this question, no case law referring to the drafting of the Constitution is known to the author. This, of course, does not preclude the possibility that some courts have taken advantage of travaux préparatoires silently. It would, however, be interesting if a court had to apply a constitutional provision to which a clearly intentional interpretation of the drafters had been attached. A peculiar example of the kind is the interpretation of § 122 of the 1992 Constitution agreed upon by the members of the Constituent Assembly¹⁷. Such interpretation is hardly binding for a court, but the court would not feel comfortable to construe the provision of the Constitution in a different way, as well.

In German Constitutional jurisprudence, under the concept of the objective value order, the principle of human dignity has been given a higher priority in comparison with other principles¹⁸. One could ask if any similar principles of higher rank can be found also in the Estonian Constitution¹⁹. I am quite dubious in this respect. It has been mentioned in some scholarly works that the Preamble of a Constitution may contain "a precis of the essential contents of the constitution" or that the Preamble may include values and principles which can be useful for the interpretation of the whole Constitution²⁰. In the practice of the Supreme Court of Estonia, we can meet some references to the Preamble. The Preamble is not, however, referred to separately, but together with application of other provisions of the Constitution.

The following treatise attempts to present a short overview of the constitutional jurisdiction of Estonia in the field of fundamental rights and freedoms. A few introductory remarks must be made, first. The most authoritative source of constitutional jurisdiction is, of course, the body of decisions of the Constitutional Review Chamber of the Supreme Court. True, the decisions of the Plenary Session of the Supreme Court would have even greater judicial value, but until 1999 the Plenary Session has made only five decisions. In one of the decisions both the opinion of the Court and a dissenting opinion referred to the Constitution,²¹ and in two more decisions dissenting opinions dealt with constitutional issues²².

The decisions of other Chambers of the Supreme Court - Criminal, Civil and Administrative Law Chambers - are also of some interest. Constitutional questions are not concerned very frequently in these cases, but since the decisions of all Chambers are published, they have still influence of general importance. All the Chambers of the Supreme Court are normally the last judicial bodies hearing a case, thus, although the decisions do not have a formal force of precedent, they are guiding interpretations of law²³.

The case law of neither the Constitutional Review Chamber nor of the other Chambers of the Supreme Court is too voluminous. The first has made 38 decisions, the latter taken together refer to constitutional norms more often than not over the six years of their existence, but in most cases the interpretations of the Constitution by the other Chambers are rather superficial. Thus, the insight into the principles applied by the Supreme Court in the process of protection of fundamental rights and freedoms, cannot go very deep yet. The structure of the present paper below follows an attempt to group the relevant decisions of the Constitutional Review Chamber according to the rights and freedoms mainly concerned. The case law developed by the other Chambers is used as supplementary material.

Fundamental Rights

A Privacy

There are three decisions of the Constitutional Review Chamber where the privacy issue is among the key questions of the case. The first case was initiated by the President,²⁴ the other two - by the Legal Chancellor²⁵.Page 37

The President proposed the Supreme Court to declare the Taxation Act, passed by the Riigikogu²⁶ unconstitutional. The President had already refused to proclaim it once, but the parliament adopted it, unamended, again. The President turned to the Supreme Court, contesting the constitutionality of the law.

Among the grounds for declaring the Taxation Act unconstitutional were the powers given by it to officers of the tax administrator, irrespective of the fundamental rights of everyone. Sections 33 and 43 of the Constitution guarantee inviolability of everyone's dwelling, property and place of employment, and confidentiality of correspondence. These rights extend also to legal persons²⁷. The Taxation Act empowered officers of the tax administrator to install cameras and devices of measurement on the property of a taxpayer without the taxpayer's consent and without any proper legal procedure to be observed, violating, thus, the principle of...