Protection of Fundamental Rights in Estonian Criminal Law
| Author | Jaan Sootak |
| Position | Professor of Criminal Law |
| Pages | 115-121 |
Page 115
Personal fundamental rights stand for the rights directly stemming from human dignity and expressing the constitutional legal status of a person. Emanating from the principle of human dignity the rights of an individual must guarantee his or her free development in his or her personal sphere of life and the inviolability of his or her personal or private sphere of life.
Attempts to classify personal rights or distinguish them according to their level can be noticed in specialist literature. For example, some authors have tried to distinguish a personal right in a narrower sense of the term (a personal right as the legal status directly connected with human dignity) from the ones in a broader sense (personal rights as the constitutional legal status)1.
An attempt to present personal fundamental rights as a kind of hierarchy is also connected with the aforesaid. For example, firstly, comes the right to life and personal inviolability; secondly, the freedom of thought, conscience and religion; and thirdly, fundamental rights that stem from the principle of a state based on the rule of law (or political freedoms in a broader sense of the term) - the rights to constitutional state order, free political competition and independent administration of justice2.
A question in itself is whether human dignity has to be treated as an independent fundamental right. These who consider it a fundamental right think that human dignity should always be at the top, always the first in the hierarchy of all human rights. Another position (and in my opinion more grounded, at least from the point of view of the protection in criminal law) holds that human dignity is the foundation of the person's legal status and the base of all rights that have different outputs as to the protection in criminal law. Arguments for the latter lie in the fact that human dignity is philosophically defined and, in this form, as a specific right hard to apply3.
In Estonian constitutional law the question of human dignity has remained in the background. For example, if § 1(1) of the German Constitution places human dignity to the top of the value system of human legal order then the Estonian Constitution mentions human dignity only in § 10 of Chapter II ("Fundamental Rights, Freedoms and Duties") pursuant to which fundamental rights, freedoms and duties do not preclude other rights, freedoms and duties that conform to the principles of human dignity.4 But what can be derived from this provision is that human dignity is not a specific right but a general base from which other fundamental rights originate.
Classification and hierarchy of personal fundamental rights is substantially the problem of political law. The problem in criminal law is how to define legally protected interests or more precisely, whether and which fundamental right and freedom can be protected as an interest of independent quality or just as an expression of the person's legal status. Here, in my opinion, there are three possible levels.
1. Fundamental rights or freedoms as independentPage 116interests. For example, the rights to life and personal integrity are protected as independent interests, not as rights. The same applies to the right of one's good name or the right to one's adequate presentation (the right to one's "picture") - this is protected as honour (by the corpus delicti of insult and defamation). One of the expressions of intimate sphere, sexual sphere, is also protected as an independent interest (sexual offences). By this criminal law wants to say that the object of the right or the interest itself rather than the belonging of the right to a person (the right to life) is essential.
2. Realisation of personal fundamental rights in a certain sphere that itself forms an independent and, from these aspects, more important legal interest than the right of an individual. For example, inviolability of a person or his or her good name may be blemished by acts that are performed in the sphere of administration of justice (false accusation and unlawful arrest) and that are incorporated in the chapter on offences against the administration of justice (§§ 170 and 174 of Chapter IX of the Special Principles of the Criminal Code). Personal integrity and health may be damaged by the excess of powers (§ 1611) that is a malfeasance, and others.
3. In between these two levels there are many other constitutional rights that, in essence, just emphasise the person's constitutional legal status and that are of importance from the aspects of protection in criminal law as person's rights as legal categories - the right to privacy, copyright, rights pertaining to one's profession, political rights and others.
The boundaries between these three levels are relative and depend on the systematics of the special part of the criminal code of an individual state. The catalogue of fundamental rights in itself proceeds primarily from two basic acts - the constitution of a state and the European Convention on Human Rights (hereinafter: "ECHR"). But hitherto the systematics of criminal law has not elaborated firm criteria for incorporating personal fundamental rights in the system of the special part of the criminal code. This means that the norms protecting the pertinent rights may be found in different chapters of the code.
The valid Criminal Code contains a separate chapter that directly deals with personal rights - Chapter V of the Special Principles entitled "Offences Against the Person's Political Rights and Rights Pertaining to His or Her Profession". If we take paragraph 2c of the aforementioned classification as the basis, then we can say that most of the corpora delicti protecting fundamental rights are inserted in this chapter.
Constitutionally protected rights in the pertinent chapter of the Criminal Code and norms of criminal law corresponding to them can be classified in the following way: pursuant to the Criminal Code and the catalogue of fundamental rights in the Constitution of the Republic of Estonia (Chapter II entitled "Fundamental Rights, Freedoms and Duties").
1) Suffrage: Chapter II of the Constitution does not provide for such a fundamental right but it can be derived from §§ 1 and 56; §§ 131 (hindrance of the exercise of the right to vote), 132 (forgery of voting), and 1321 (defamation of a candidate) of the Criminal Code.
2) The right to inviolability of one's family and private life and the right to inviolability of the home: §§ 26 and 33 of the Constitution; §§ 133 (unlawful search or eviction), 1331 and 1332 (unlawful surveillance) of the Criminal Code.
3) The right to confidentiality of messages sent or received by commonly used means: § 43 of the Constitution; § 134 (the violation of confidentiality of messages sent or received by commonly used means) of the Criminal Code.
4) The freedom of criticism: the Constitution does not directly foresee it but it can be derived from §§ 41 (the freedom of opinions and beliefs) and 46 (the right to address agencies with petitions); § 1341 (persecution of a person criticising someone or something) of the Criminal Code.
5) The right to secure work conditions: § 29(4) and indirectly also § 28 of the Constitution; §§ 135 (violation of occupational safety and health rules as a general corpus delicti), 206, 2063 and 2064 (violation of occupational safety and health rules in enterprises using dangerous technologies) of the Criminal Code.
6) The copyright: § 39 of the Constitution; Chapter XV of the Special Principles of the Criminal Code entitled "Offences Against Intellectual Property" (§§ 277-284)5.
7) The freedom of religion: § 40 of the Constitution; § 138 (hindrance of the performance of a religious ceremony) of the Criminal Code.
The draft uses here a double system (see also the aforementioned paragraph 2): the protection of rights stemming directly from human dignity is guaranteed by the corpora delicti contained in the chapter on offences against the person (Chapter V) and personal rights in a broader sense of the term are secured by a self-contained chapter (Chapter VI) entitled "Offences Against Social Rights". Chapter V embodies the following divisions: offences against life (Division I), offences against health (Division II), offences against honour (Division III), illegal abortion (Division IV), unlawful treatment of an embryo (Division VI), offences against liberty (Division VIII), offences against sexual self-determination (Division VIII) andPage 117offences against the deceased (Division IX). Offences against social rights can be divided into offences against equality of rights (Division I) - instigation of social hostility and violation of equality of rights; violations of fundamental rights (Division II) - the corpora delicti embodied in it deal with the freedom of religion, confidentiality of personal data, freedom of assembly and association; offences against suffrage (Division III) - hindrance of the exercise of the right to vote, forgery of voting, purchase of a vote, deception of voting, hindrance of agitation and unlawful agitation.
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