The Constitutional Require ments for Averting of a Danger: The Principles of a State Based on Democracy, and the Rule of Law v. Averting of a Danger

• Author: Janar Jäätma
• Position: Magister iuris, Adviser to the Administrative Law Chamber, Supreme Court of Estonia
• Pages: 135-144

135

JURIDICA INTERNATIONAL XIX/2012

Janar Jäätma

Magister iuris,

Adviser to the Administrative Law Chamber

Supreme Court of Estonia

The Constitutional Require-

ments for Averting of a Danger:

The Principles of a State Based on Democracy,

and the Rule of Law v. Averting of a Danger*1

1. Introduction

After the terrorist attacks of 11 September 2001 in the US, countries the world over face new challenges

related to terrorism issues. Also, organised crime in the Schengen countries is able to move easily from one

country to another. Both of the above will force governments and legislators to think more and more about

internal security. There is a continuum with fundamental rights and freedoms at one extreme and internal

security on the other. The values representing both ends of the continuum are both essential—internal secu-

rity and also fundamental rights and freedoms. History has shown that views focusing on either extreme

have not been useful from a long-term perspective. For that reason, balance must be achieved, and it is not

useful if one value is elevated at the expense of the other value.

The Police Act*2 was passed by the Supreme Council of the Republic of Estonia (Eesti Vabariigi Ülem-

nõukogu) on 20th September 1990 and entered into force on 8 October 1990, before the restoration of

Estonian independence. The basics elements of the Police Act remained unchanged until the parliament of

Estonia (Riigikogu) enacted the Police and Border Guard Act*3 (PBGA), in 2009, and then the Order Protec-

tion Act*4 (OPA), in 2011. It should be mentioned here that the OPA has not yet entered into force.

In 2006, the Supreme Court of Estonia issued its informal opinion on a draft of the OPA and averting

of a danger*5:

The law is based on the concept of a danger and danger-handling. But it is not a suitable basis nor

a proper criterion for the Estonian legal system in the fi eld of the protection of order and supervi-

sion. […] The central, basic concept of the draft Order Protection Act is danger, and it handles state

1 In Estonian ohutõrjeõigus. In German die Gefahrenabwehr. The author also uses in the text the term defence against danger

as a synonym for averting of a danger.

2 Politseiseadus. – RT 1990, 10, 113; 2007, 62, 394 (in Estonian). English text available via http://www.legaltext.ee/ (most

recently accessed on 23.3.2012).

3 Politsei ja piirivalve seadus. – RT I 2009, 26, 159; RT I, 29.12.2011, 28 (in Estonian).

4 Korrakaitseseadus. – RT I, 22.3.2011, 4 (in Estonian).

5 In some occasions the parliament of Estonia (Riigikogu) or Ministry of Justice has involved the Supreme Court in legislative

drafting and asked the Supreme Court’s opinion of the concrete draft act. That opinion is not binding and usually it is put

together by the advisers.