Fundamental Rights, Right of Recourse to the Courts and Problems Connected with the Guaranteeing of the Right of Recourse to the Courts in Estonian Criminal Procedure

• Author: Eerik Kergandberg
• Position: Member of the Supreme Court, Visiting Professor of the University of Tartu
• Pages: 122-131

Page 122

Eerik Kergandberg

Member of the Supreme Court, Visiting Professor of the University of Tartu

Fundamental Rights, Right of Recourse to the Courts and Problems Connected with the Guaranteeing of the Right of Recourse to the Courts in Estonian Criminal Procedure

I

1. The analysis of a certain element of the system of fundamental rights is complicated because of the fact that, as is known, there is no uniquely acceptable understanding of the structure of genetic "area of origin" of fundamental rights, i.e. of the system of basic values of mankind. There is even no minimum universally acceptable way to rank the (basic) values according to their significance. And obviously they cannot be ranked at all. Hereby it would be appropriate to refer to Eero Loone who gives a possible explanation to that in Estonian specialist literature. Having first of all explained that the opposite of rational is extra- rational as well as irrational, he observes that so far there is no generally adopted and well-grounded answer to the question whether the "genuine", intrinsic values exist. As is known, David Hume claimed that value-decisions cannot be derived from factual theses and corroborated empirically by the examination of the phenomenon under evaluation. If Hume is right then there is no possibility to ground the choice of something as the basic good and consequently to ground the choice of main goals (differently from the examination of the relationship of elements of variety of goals). In this case the valuation and the choice of goals would contain an extra-rational component and the classification of values and goals into extra-rational and irrational would be unreasonable (non-applicable)¹.

Let us admit that at first sight the acknowledgement that it is not in principle possible to rationally construct the hierarchy of values of man's world may seem rather unacceptable. But if we consider that the pertinent hierarchy should reflect human nature then, upon calm consideration, the extra-rational element should not irritate us. Or can anyone give an exhaustive and rational explanation to human nature? I hope not.

2. But the aforesaid does not mean that there have been no attempts to establish the hierarchy of universal values in the history of human thought - the task is far too tempting lest to try. It is almost as tempting as the creationPage 123of perpetuum mobile.

2.1. One of the finest attempts to establish the pertinent hierarchy was made by John Mitchell Finnis, one of the most famous contemporary jurists of natural law who, surprising indeed, considers that a rational approach to natural law is possible. Finnis holds that his approach is rational because, relying on purely practical rationality, it is possible to explain certain self-evident basic values (humane goods) that can be and must be protected by law and the institutions thereof². Finnis's self-evidence of the basic goods means that in his opinion we will all reach the affirmation of these basic goods if we have adequate life experience and if we bother to cogitate thereupon³.According to Finnis the following constitute the basic goods of human beings: life, knowledge, game, aesthetic experience, communication and friendship, practical rationality and lastly religion⁴. Finnis regards all these basic values as objective (they are respected in every society), fundamental (all other goods - courage, goodness, etc. - stem from them) and absolute. The latter, according to Finnis, means that there is no hierarchy between them⁵.

Accepting, in principle, in every respect such man's world of ontological "poly-value" one cannot but notice in the context of our theme that from the aspect of protection of basic values it is not possible to manage without gradating them, without raising a question of hierarchy thereof.

2.2. The Estonian philosopher of law Ilmar Tammelo has also, in principle, admitted the possible existence of the hierarchy of values. He has, inter alia, alleged that justice as the good stands at the same level as the benevolent, true, correct, beautiful and fair and only spiritual values such as the noble, holy and celebrated are of higher level⁶.

3. If the study of a basic-values level of human existence has been, as a rule, treated with a certain piety (what could be more unattainable than human nature!) then the treatment of a human-rights level has been considerably sweeping. Commentators and advocates of human rights do not willingly want to confess that ultimately the question is just about the model of basic values of human existence. In itself, there is nothing condemnable in such modelling. On the contrary, in shaping the protection mechanism of basic values of human existence such modelling is evidently unavoidable. But hereby we should also admit that "the biggest disservice was done to the thought of natural law by the natural law codifications of the 18th and 19th centuries. The establishment of natural law by positive laws subjected natural law to human will and turned natural law into written law. Law established by the laws is not natural law any more"⁷. There is no reason to allege that there is no element of disservice to natural law in the adoption of the European Convention on Human Rights (hereafter the ECHR) and in the quite positivist-bureaucratic mechanism established to guarantee the implementation of the ECHR - there absolutely is. Proceeding from that, the main problem in my opinion is to find an "independent third" that would every now and then be able to compare the basic-values level of human existence with the model thereof, e.g. with the mechanism of guaranteeing the implementation of the ECHR, and amend the model if necessary. True, this proposal may seem inconsistent. One may ask if codification of natural law is a disservice to the latter then how can the amendment to codification reduce the disservice? On a general theory level the problem as such undoubtedly exists. But here rather more pragmatic considerations, if they altogether exist in this field, should be taken as the basis.

Namely, there is no reason to believe that the ECHR should be final and constant and that, e.g., practice of the Court of Human Rights develops spontaneously and always linearly with natural law. Apparently it is not easy to refute the understanding that an essential aim of the study and interpretation of even the most perfect model must be its elaboration. This paragraph could end with the question: would not the right not to foreknow one's future, cognised in recent decades by mankind as the basic good, and the right to informational self-determination, connected with the former, deserve codification in natural law?

4. All the aforesaid applies to the treatment of fundamental rights in so far as the system of fundamental rights of a state must, pursuant to contemporary generally recognised understanding, involve human rights. It should be admitted that there is no generally recognised conception in the current Estonian writings of political law as to how many fundamental rights (and/or human rights) a person living in Estonia has and what the system of these fundamental rights looks like.

4.1. Rait Maruste has listed 16 allegedly effective fundamental rights in Estonia and then added that this catalogue is not exhaustive, inter alia, because, proceeding from § 10 of the Constitution, there may be other rights (read: fundamental rights), freedoms and duties "which arise from the spirit of the Constitution or are in accordance therewith, and conform to the principles of human dignity (emphasis added - E. K.) and of a state based on social justice, democracy, and the rule of law"⁸. The quotation of the Constitution is precise and on the basis of § 10 of the Constitution we really cannot doubt that we may have more fundamental rights than expressis verbis fixed in the Constitution. Is it good or bad? Certainly the predominant and first reaction is that it is good. It is always good to think that somewhere there may be some more rights, such rights that the drafters of the Constitution could not think out while drafting the Constitution. But let us fancy that someone wants, relying on § 10 of the Constitution, to introduce a new fundamental right that is not explicitly fixed therein. I might be wrong but it seems to me that the wish to realise such a novel fundamental right may actually arise only in a conflict with a certainPage 124other and expressis verbis fixed fundamental right. In principle, hereby there may be two possibilities to realise the novel fundamental right.

4.1.1. Pursuant to the first possibility, a so-called novel fundamental right "will be found" in the ECHR or other international treaty. And now it is difficult to agree with R. Maruste's statement that, pursuant to § 123(2) or § 3(2) of the Constitution, in the case of a conflict the provisions of the international treaty apply⁹. I have not heard of any "legal-national" agreement acknowledging the primacy of international treaties over the Estonian Constitution¹⁰.

4.1.2. The other possibility naturally is that a so-called novel fundamental right will be found, let us say, somewhere else. I tend to think that this kind of so-called fundamental right as compared to the one expressis verbis fixed in the Constitution will have even less hope to get realised than the novel fundamental right described in 4.1.1. But evidently a more thorough discussion of these issues should await the "emergence" of these so-called novel fundamental rights.

4.2. Raul Narits alleges that the catalogue of fundamental rights and freedoms contained in the Constitution of the Republic of Estonia is in compliance with the internationally recognised catalogue of human rights and freedoms. But at the same time he notes that although there is no internationally recognised catalogue of human rights this could be derived from valid...