Holders and Addressees of Basic Rights in the Constitution of the Republic of Estonia
| Author | Madis Ernits |
| Position | LL.M.,Candidate for a doctor's degree at the Christian-Albrecht-University Kiel |
| Pages | 11-34 |
Page 11
The aim of the following article is to analyse two chosen topics of the general dogmatics of the basic rights1 of the Põhiseadus (hereinafter referred to as the Constitution): the holders and the addressees of the basic rights. Those two different topics could be treated in two different articles. The reason to treat them in a single one is to identify both sides of the legal relations created by a basic right as a subjective right2.
It is recommendable to distinguish between three dimensions of legal problems: empirical, analytical, and normative3. The empirical dimension concerns the recognition of the positive valid law. The positive valid law used here consists mainly of basic rights of the Estonian Constitution. The analytical dimension comprises a conceptual and systematic investigation of the valid law. The normative dimension includes criticism of the valid law, especially of court decisions, and proposals for better solutions de lege ferenda. The main emphasis of this paper shall lie on the analytical dimension. Particular interest shall hereby belong to two kinds of arguments. Since German basic rights discussion will be used, the comparative arguments play a significant role. Besides, systematic arguments will be used frequently, since one of the starting points of the present paper is the requirement that a legal system should be consistent, i.e. contain no contradictions, and be coherent, i.e. be connected. This requirement derives from the principle of Rechtsstaat4 which is as a constitutional principle anchored in § 10 of the Constitution.
A holder of a right is the beneficiary of the right, the entitled subject.
The holders of the basic rights are the entitled subjects of the basic rights. Somebody can only be entitled to a right if he has the corresponding capacity to carry that right. A holder of a basic right is consequently somebody who has the corresponding passive legal capacity.
In the law the passive legal capacity is attached to persons. Every human being is a person in the sense of the law, a natural person. In addition according to the law there are legal persons, e.g. a public limited company. These are artificial persons created by the law itself. In following it shall be clarified as to what kinds of persons are holders of basic rights under the Constitution of the Republic of Estonia.
According to § 9 first paragraph of the Constitution the rights, freedoms and duties of each and every person,
First of all it states that the holders of basic rights of each and everybody are natural persons. Only natural persons can be citizens or stateless persons. Every natural person is either a citizen of some state or a stateless person, every citizen is either an Estonian citizen or a citizen of a foreign state. Therefore, the mentioned rights are provided for every natural person or respectively every natural person shall have these rights.
Secondly, the provision states that following the concept of the holdership of basic rights there are two kinds of rights: there are rights of each and every person and there are rights that do not apply to each and every person.
Basic rights can be divided on the basis of the holder- ship of the right into rights of each and every person on the one hand and citizen's rights on the other hand. Whether there are other kinds of rights, shall be clarified as well.
(1) Rights of Each and Every Person
The rights of each and every person are rights borne by every person. The rights of each and every person can also be called human rights because every human being is a holder of these rights. However, they should be called rights of each and every person to avoid a possible confusion between the constitutional rights and rights included in the European Convention on Human Rights5.
(a) "Everyone" or "No One"
The rights of each and every person derive primarily from the following paragraphs of the second chapter of the Constitution: §§ 12, 13 second sentence of the first paragraph, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28 first paragraph, 29 second paragraph, 32, 35, 37, 40, 41, 43, 44 first paragraph, 45, 46, 47, 48 first sentence of the first paragraph, 49, 51 of the Constitution. In these provisions "everyone" or "no one" is mentioned expressis verbis. In §§ 27, 28 paragraph 4, 29 paragraph 5, 33, 38, 39, 113 of the Constitution "everyone" is not directly referred to but since the number of justified subjects is not restricted, it must be perceived that also these provisions are the basis for rights of each and every person which are equally borne by Estonian citizens, foreigners and persons without citizenship.
Rights described in § 28 first sentence of the second paragraph together with the third sentence of the second paragraph of the Constitution, § 29 first sentence of the first paragraph together with the third sentence of the first paragraph of the Constitution, § 31 first sentence together with third sentence of the Constitution, § 44 second and third paragraphs together with the fourth paragraph of the Constitution are also provisions containing rights of each and every person. Sections 28 third sentence of the second paragraph, third sentence of the first paragraph, 31 third sentence, 44 fourth paragraph of the Constitution mean that the legislator may restrict the corresponding rights of non- citizens only on the basis of non-possession of Estonian citizenship. But in order to restrict something, the corresponding rights of non-citizens shall result from these provisions of the Constitution. These provisions are therefore lex specialis with respect to the principle of equality which is anchored in § 12 first sentence of the first paragraph of the Constitution.
The Constitutional Review Chamber of the Estonian Supreme Court has defined everyone in a passage as "all natural persons (individuals) who are subject to the jurisdiction of a legal act"6. In so far as all natural persons and individuals respectively are meant, I fully agree with the Court. The question is what does it mean if these individuals are required to be subject to the jurisdiction of a legal act? Does a legal act have a jurisdiction? And what legal act is actually meant? If the term "legal act" means an act of parliament that encroaches upon the rights of individuals, then the question is concerned, whether the parliament is an addressee of that right. In any case it is superfluous to enlarge the definition of everyone with the feature "subject to the jurisdiction of a legal act".
(b) Rights to Estonian Citizenship, § 8 first and second Paragraphs of the Constitution
Although in § 8 second paragraph of the Constitution everyone is mentioned, it may seem problematic to classify § 8 first and second paragraphs of the Constitution as rights of each and every person. Since in these provisions Estonian citizenship is mentioned, citizen's rights may be concerned. However it is not so, since the legal consequence of § 8 first and second paragraphs of the Constitution is the gaining of Estonian citizenship. The preconditions of a norm cannot logically stipulate the existence of some precondition that itself derives from the legal consequence of the same norm. This kind of norm would be senseless.
Moreover, § 8 first paragraph of the Constitution brings forward a question concerning the meaning of the term "every child". According to this provision every child shall be the entitled person. At first glance it may seem that this provision contains a particular child-right. Unfortunately it is not determined, how old a person shall be in order to be a child in the sense of § 8 first paragraph of the Constitution. Is a person a child until he goes to school, until he gets a passport, until he is a major, or does he stay a child of someone else forever? Since § 8 first paragraph of the Constitution is a right to Estonian citizenship, there is no rational reason why this right should not be exercised after reaching some certain age. This formulation should rather be understood that even a child has the right to Estonian citizenship. Of course, an adult has the right as well.
Therefore, § 8 first and...
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