Juristica International

Fundamental Rights and Freedoms as Problem Demanding Systematic Approach

The Republic of Estonia shapes and develops its statehood on the basis of the principles of a democratic state and the rule of law. This, inter alia, means that fundamental rights and freedoms form an inherent part of the Estonian national legal order. At the same time, fundamental rights and freedoms are not connected only with domestic legal orders but for substantive reasons go beyond them. This, in essence, means that the contemporarily substantiated catalogue of fundamental rights and freedoms fixed in the valid law stands in for in many respects for a catalogue of human rights. Human rights as a phenomenon of natural law are actually imprescribable. Natural law as compared to positive law is considered to offer the supreme order, while positive law itself is really valid only in cases where it corresponds to natural law. *1 Therefore, it is absolutely normal that in drafting Chapter II of the current Constitution *2 entitled “Fundamental Rights, Freedoms and Duties”, various relevant sources of international law as well as constitutions of democratic states were taken as basis.

The structure of the Estonian Constitution lays an emphasis on fundamental rights and freedoms. An emphasis highlighted by the fact that the primary chapter comes right after the seven general provisions of Chapter I. Chapter II of the Constitution contains 48 sections, more than a quarter of the total 168 sections of the Constitution. Thus, we can conclude that the scope and position of Chapter II indicate that the legislator considers the constitutional fixing of contemporary fundamental rights and freedoms very important. But several other provisions of the Constitution (for example, § 57, § 60(1) and others) not contained in Chapter II also regulate fundamental rights and freedoms. The fact that the chapter on fundamental rights and freedoms is the second chapter of the Constitution emphasises, in essence, that the society holds a person-centred attitude. The state as an organisation exists for a person and constitutions of democratic state systems stress the person-centred attitude of their society by placing the provisions on fundamental rights at the beginning of their constitutions. Hereby, the Republic of Estonia has a certain historical experience. In both the 1920 *3 and the 1938 Constitutions *4 the relevant chapter was also the second chapter which clearly reveals that fundamental rights and freedoms have always been of central importance in the Estonian Constitutions. Therefore, it can be seen that the emphasis of fundamental rights by way of their external structure has significance as to both form and content.

In Estonian legal literature it has been observed that the analysis of the Constitution and its implementation requires primarily a clarity in methodological and procedural issues. As is known, it has been attempted to resolve these issues by relying on the principles of a systematic approach. *5 Indisputably the catalogue of fundamental rights and freedoms incorporated in the Constitution needs systematic analysis. In connection with the necessity to elaborate the Constitution, a very necessary step was taken. Namely, on 14 May 1996, the Government of the Republic established on the proposal of the Riigikogu, a Committee on the Legal Expertise of the Constitution. *6 By now this body, acting with the status of a governmental committee, has completed its work and submitted the corresponding analysis to the Government. The level of conformity of the Estonian Constitution with the European Union standards, possibilities of more explicit determination of constitutional institutions, proposals for the liquidation of deficiencies in the Constitution are analysed. Some of the materials (concerning the analysis of Chapter II of the Constitution) that were at the disposal of the aforesaid committee have been used in the present overview.

“European” Nature of Fundamental Rights and Freedoms

Comparing the contents of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) *7 with the catalogue of fundamental rights and freedoms contained in the Constitution of the Republic of Estonia, it can be concluded that the fundamental rights constitutionally valid in Estonia are in compliance with the internationally recognised human rights and freedoms. *8

Consequently, it is possible to present fundamental rights and freedoms incorporated in the Estonian Constitution in correlation with the ECHR *9 : the right to life – § 16 of the Constitution, Article 2 of the ECHR; the liberty not to be subjected to torture or to inhuman or degrading treatment or punishment – § 18 of the Constitution, Article 3 of the ECHR; the liberty not to be held in slavery or servitude, and required to perform forced labour – § 29 of the Constitution, Article 4 of the ECHR; the right to liberty and security of person – §§20 and 21 of the Constitution, Article 5 of the ECHR; the right to fair trial within a reasonable time by an independent and impartial court established by law – §§ 15, 22 and 24 of the Constitution, Article 6 of the ECHR; the right to non-retroactive application of criminal law – § 23 of the Constitution, Article 7 of the ECHR; the right not to be punished again for an act for which a person has already been acquitted or convicted – §23(3) of the Constitution, Article 4 of Protocol No. 7 of the ECHR; the right of appeal – §24(5) of the Constitution, Article 2 of Protocol No. 7 of the ECHR; the right to respect for one’s private and family life, home and correspondence – §§ 26, 33, 42 and 43 of the Constitution, Article 8 of the ECHR; the freedom of thought, conscience and religion – §§ 40 and 41 of the Constitution, Article 9 of the ECHR; the freedom of expression – § 45 of the Constitution, Article 10 of the ECHR; the freedom of assembly and association – §§ 47 and 48 of the Constitution, Article 11 of the ECHR; the right to marry and found a family – §27 of the Constitution, Article 12 of the ECHR; the right to effective remedy for damage caused by public authorities – § 25 of the Constitution, Article 13 of the ECHR; the right not to be discriminated – § 12 of the Constitution, Article 14 of the ECHR; the right to peaceful enjoyment of one’s possessions – § 32 of the Constitution, Article 1 of Protocol No. 1 of the ECHR; the right to education – §§ 37 and 38 of the Constitution, Article 2 of Protocol No. 1 of the ECHR; the freedom of movement – §§ 34, 35 and 36 of the Constitution, Articles 2, 3 and 4 of Protocol No. 4 of the ECHR.

Chapter II of Constitution as Justifying Basic Norm

In connection with Chapter II of the Constitution as the most comprehensive structural part of the Constitution, I would like to draw attention to the phenomenon that in legal literature is referred to as underpinning reasons. As a result of generalisation we can say that Chapter II of the Constitution is the most principal justifying basic norm. If this is acknowledged and if, in addition to that, certain socio-legal conditions are met *10 , then there will be no problems with the observance of the basic norm. But those who do not want to commit themselves to that basic norm are not supporters of the western ideal of law. The situation does not change if we have to deal with principles, as is often the case with the Constitution. And although the formal validity and efficiency of the norms and maybe even the recognition of norms are different in the case of a positive norm and legal principle, underpinning reasons are also considered in the case of constitutional norms establishing fundamental rights and freedoms.

Systematic treatment of fundamental rights and freedoms must be based on the idea of oneness or coherence of the legal order as the whole and its supreme law – the constitution. Thereby, attention should be drawn, firstly, to the principles ensuring the consistency and, secondly, to contextual principles. Fundamental rights must be interpreted in such a way so as to avoid discord within the fundamental rights themselves or between other parts of the constitution (consistency), and so that one is left with a clear idea of a fundamental right provision and its place in the text of the constitution (contextuality). *11 Such substantiation of fundamental rights can be characterised as a conceptual-systematic approach. In addition to that, fundamental rights may also be substantiated according to certain principles. *12 Therefore, one should not forget that, by nature, fundamental rights are similar to principles in that many aspects stem from natural law. Therefore, their validity as principles cannot strictly depend on the level or degree of their objectification. Pure rules of law also help to form a systematic understanding of fundamental rights. The basic rule here is the principle: legibus, non exemplis iudicandum. Law must be interpreted (understood) on the basis of laws, not on the basis of precedents. The second basic idea is: lex est exercitus iudicum tutissimus ductor. A law is the most reliable guide for a judge (the applier of law). The presented standpoints do not exclude prejudication in developing a systematic understanding of fundamental rights. The principle of equal treatment established in the Constitution (§ 12(1)) requires that decisions made in similar court cases can not be ignored without sufficient grounds. A comparative approach helps to understand the spatial unity of understanding of fundamental rights. Today, bearing in mind the comparative understanding, everything concerning the European vision of fundamental rights has become especially topical. Thus, the Constitutional Review Panel of the Supreme Court held that in democratic states both legislative drafting and implementation of law, including interpretation of law, are to be guided by the laws and historically established general principles of law.  In forming and developing the general principles of Estonian law, principles shaped by the Council of Europe and institutions of the European Union must be taken into consideration alongside the Estonian Constitution. These principles have been derived from general principles of law of the Member States with developed legal cultures. The validity of principles of a democratic and social state based on the rule of law means that these general principles of law recognised in the European legal space are valid in Estonia. *13

A systematic understanding of fundamental rights incorporated in the Constitution of the Republic of Estonia does not preclude legal disputes. This is not only a problem of the Estonian legal order. The situation in other democratic constitutional states is similar. Conflicts may arise on the basis of the freedom of speech, the protection of honour and dignity, the freedom of property, etc. At the same time, conflicts are resolvable where, in fundamental rights dogmatics, arguments revealing the real nature of the state can be used. *14

Rights, Liberties, Duties

As a rule, the construction ‘rights and freedoms’ is used in the Constitution (§11(1), §14, §15(2), §45, etc.). In addition many provisions refer to rights and freedoms but also to duties (§§ 9 and 10). Indeed some sections refer only to duties (§ 55). A question arises: what relationship do these categories have with regard to the purpose and purport of the Constitution? It should be added that the Constitutional Assembly approached the formulation of Chapter II of the Constitution very seriously. The head of the drafting committee of the Constitutional Assembly said that Chapter II was the most complicated part of the Constitution, as its provisions had to be formulated most precisely. *15 It should be mentioned that with regard to the rights provided in the Constitution, we primarily have to deal with subjective rights in the formal sense of the term. In the present case, subjective law is incorporated in public law and is, in principle, a legally guaranteed degree of liberty. This is the relationship that develops and is realised between the holder of the right and the addressee of the right considering the object of law at that. According to legal theory this just means that we have to deal with a legally protected benefit. Substantially the freedoms incorporated in the Constitution are so-called negative freedoms: freedoms to do something or to avoid doing something. Such an understanding correlates to the approach of a state based on the rule of law in which these negative freedoms are directly guaranteed. There are no commands or prohibitions that could impede legal freedom. For example, if everyone has the right to freely obtain information disseminated for public use (§ 44(1) of the Constitution), which is neither a command nor a prohibition, then it is permitted to obtain that information as much as it is permitted not to obtain the information. But relations between fundamental rights and fundamental duties are of different nature as duties always restrict rights in some way. As with fundamental rights, for which the Constitution more often uses the simpler term ‘rights’, it uses the denotation ‘duties’ in the case of fundamental duties. The formal character of fundamental duties contained in the Constitution should be pointed out, which means that they are the duties of the holders of fundamental rights. Fundamental duties may be connected with guaranteeing either individual rights or general welfare.

The most general duty to guaranteeing individual rights is established in §19(2) of the Constitution – everyone must honour and consider the rights and freedoms of others, and observe the law, in exercising his or her rights and freedoms and in fulfilling his or her duties. It should be stressed that the obligation to ensure individual rights is here connected with obedience to the law. For example, §27(3) of the Constitution provides that parents have the right and the duty to raise and care for their children, and § 27(5) provides that the family has a duty to care for its needy members. The aforesaid duties are, foremost, directed at safeguarding individual rights being in its final stage still connected with the guarantee of public welfare. The obligation to compensate damage caused to other holders of fundamental rights is established by § 25 of the Constitution. In essence, it means the constitutional establishment of a tenet of civil law – a claim. But as to its nature, the obligation belongs to the catalogue of duties for guaranteeing individual rights.

The most traditional fundamental duty for guaranteeing public welfare is embodied in § 19(2) of the Constitution and this concerns the obedience to the law. By its nature, this obligation is connected with the most general obligation for guaranteeing individual rights. But it seems that §54(1) of the Constitution extends the possible scope of § 19(2), because the former obliges loyalty to the constitutional order. At the same time, it is not possible to generate loyalty to the national legal order by using coercive legal measures. Which does not mean that the state could not react to the attitude when it has materialised. Fundamental duties for guaranteeing public welfare have also been provided for in § 32(2) of the Constitution – property may not be used contrary to the public interest; §37(1) of the Constitution – education is compulsory for children to the extent specified by law; § 53 of the Constitution – everyone has a duty to preserve the human and natural environment; § 54(1) of the Constitution – an Estonian citizen has a duty to defend the independence of Estonia; § 55 of the Constitution – citizens of foreign states and stateless persons who are in Estonia have a duty to observe the constitutional order of Estonia.

Fundamental duties must not be confused with restrictions of fundamental rights in the sense of legal grounds. *16 At the same time, fundamental duties are still certain restrictions of fundamental rights stemming from the Constitution itself. Whereas a fundamental right allows a general freedom to act, a fundamental duty is definitely a restriction of a fundamental right. Often one fundamental duty restricts several fundamental rights.

Classification of Fundamental Rights

The rationality and systematic nature of any classification is based on classification or a certain firm main idea on the basis of which it is possible to study the entire object, not only as a whole, but also, with the help of the constituent parts of the whole. Treatment of fundamental rights and freedoms has relied on various grounds of classification. If we take the holder of a fundamental right as the ground for classification, it is possible to distinguish between human and civil rights. If the ground is the content of fundamental rights, rights may be categorised as freedom-rights, equality-rights and social rights. But it has to be mentioned here that this classification is conventional because to freedom-rights and equality-rights there could also be added protection-rights. In the catalogue of freedom-rights, rights of a person have an important place. Within the protection-rights there are fundamental rights of special quality concerning court procedure. The afore-mentioned types of fundamental rights can mostly be connected with the liberal tradition of substantiation of fundamental rights *17 that does not exclude a separate characterisation of social fundamental rights.

Freedom-rights

Subsection 19(1) of the Constitution establishes everyone’s right to free self-realisation. This very provision of the Estonian Constitution emphasises the European tradition on the person’s own role in his or her self-realisation as a member of a society. In the context of § 10 that does not preclude other 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 and of a state based on social justice, democracy and the rule of law, a comprehensive catalogue of constitutional freedom-rights can be compiled. As a result of generalisation it can be alleged that freedom-rights are most comprehensively fixed in the Constitution. With regard to the notion “freedom”, the Constitution uses wording with different degrees of precision. Firstly, examples of more precise wordings of freedom can be seen in §29(5) which provides that everyone may freely belong to associations and unions of employees and employers; § 34 provides that everyone who is legally in Estonia has the right to freedom of movement; § 38(1) provides that science and art and their instruction is free; §40(2) provides that everyone may freely belong to churches and religious societies; § 44(1) provides that everyone has the right to freely obtain information disseminated for public use. It has to be mentioned that in these and similar cases, the provisions neither obligate nor forbid anything. Moreover, if belonging to associations and unions of employees and employers is free, this implies that citizens have the right to protect themselves against the interference of the state with that constitutional guarantee. The freedom in the present case is nothing qualitatively different from the right, the wording is just more flexible. Secondly, abstract wordings of freedom may be mentioned. In these cases the provisions do not establish any concrete freedom (right), the freedom is presupposed to exist. Subsection 9(2) of the Constitution provides that the rights, freedoms and duties set out in the Constitution extend to legal persons in so far as in accordance with the general aims of legal persons and with the nature of such rights, freedoms and duties. It should be added that very often the Constitution mentions rights and freedoms together, for example, in § 11 regarding the restriction of the rights and freedoms. In such formulations the word ‘freedom’ does not include anything different from the word ‘right’. But the semantic construction ‘rights and freedoms’ may be interpreted in such a way that for the legislator these categories are of the same level. Thirdly, so-called mixed wordings can be distinguished. Subsection 29(1) of the Constitution establishes that an Estonian citizen has the right to freely choose his or her sphere of activity, profession and place of work. Law may prescribe the conditions and procedure for the exercise of this right. Subsection 45(1) of the Constitution provides that everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. A general provision of the freedom-rights (§ 19(1) of the Constitution) also contains a mixed wording. But mixed wordings clearly reveal that rights and freedoms are closely connected with each other. On the basis of the aforesaid it can be supposed that in the case of freedoms we have to deal with fundamental rights which are special – legally guaranteed – benefits in a politically organised democratic society.

Freedom-rights – either formulated as ‘rights’ or ‘freedoms’ or in combination – provide for the subjects of law a general freedom to act. The whole problem is whether the constitutional provision ‘the right to free self-realisation’ does cover a general freedom to act. It is understandable that free self-realisation is in the broad meaning of the word connected with the aspiration and development of a person towards something higher and rather abstract. Therefore, it would be rational to hold that the idea of the Constitution as to everyone’s right to free self-realisation is legally framed by these provisions of the Constitution that concern the fundamental rights and freedoms. At the same time no one can deprive a person of the option. The state has never been and will never be able to finally restrict what is necessary and what not for the development of personality. But the state must, by the principles of human dignity, guarantee the general freedom to act (§10 of the Constitution). In political-legal reality such a standpoint may entail the increase in the number of court disputes. At the same time, the number of court disputes cannot depend on legal dogma or development of multilevel approaches in the cognition of law. *18

Besides freedom-rights, rights of a person may be distinguished. Rights of a person are directed to the protection of these conditions that are necessary for free self-realisation of personality. These are the rights that, figuratively speaking, are with regard to the general freedom-right (§19(1) of the Constitution) so-called special rights. For example, § 17 that protects honour and good name; § 26 that protects the inviolability of private and family life; § 42 that protects the privacy of the beliefs of Estonian citizens, belong to this category.

A German jurist R. Alexy who presented a systematic analysis on the fundamental rights of the Estonian Constitution drew attention to the fact that § 26 of the Constitution, due to its wide content, had to be interpreted widely. For example, notes of a diary and medical files should be covered by §19(1) in case §26 does not cover them. In addition to that, R. Alexy suggested that the right to free informational self-realisation be subjected to the right to self-realisation, provided for in § 19(1) of the Constitution. This would mean that an individual him or herself may, in principle, decide when and within what limits his or her personal data will be disclosed. A citizen must be protected against the dangers that modern information processing entails. Thus, there can be few doubts about the right of a person as such. What reveals a potential problem is the scope of the field that protects the conditions necessary for free self-realisation of a person. It should be mentioned that free self-realisation as a fundamental right is a general provision for both the freedom-right and the right of a person.

Equality-rights

The general provision for equality-rights is § 12(1) of the Constitution providing that everyone is equal before the law. Such an approach has always been characteristic of liberal constitutions. The principle of equality established in the Estonian Constitution does not violate two other important legal principles. This concerns the character of resolutions embodied in the laws. They may be based on the principles of ius commutativa or ius distributiva. In both these cases we have, in principle, to deal with regulations corresponding to law, i.e. with fair regulations. Semantically, § 12(1) of the Constitution does not contain the word ‘right’ but that does not mean as if the provision does not contain the constitutional subjective right. The aim of the legislator in this case has been to state that the subjective right of an individual is in correspondence to legal duties of the state. But with regard to equality-rights, it is important to pay attention to the fact that in the present case the purport of the provisions contains equal application of law for everyone. As we have mentioned before, the resolutions of laws may be based on the ideas of ius commutativa or ius distributiva. This means that equality-rights are not connected with the equality of legislative drafting. The equality of legislative drafting would require that the resolutions of laws be all ius commutativa which in fact they are not. In legal practice rather the problem of uniform application of law becomes important. The Constitution itself requires it, as § 3(1) provides the principle according to which the powers of state must be exercised solely pursuant to the Constitution and laws which are in conformity therewith. Pursuant to the idea of substantive justice, the equal must be treated equally and the unequal unequally – iustitia cernitur in suum cuique tribuendo. The normative basis for treatment can be the pertinent provision of the law.

In addition to the above-mentioned, §§ 9(1) and 27(2) of Chapter II of the Constitution are also equality-rights. Pursuant to § 9(1), human rights are equal for Estonian citizens and for citizens of foreign states and stateless persons in Estonia. It is absolutely natural that the Constitution stresses everyone’s equality in the field of human rights. If a fundamental right or freedom is established by a semantic construction ‘everyone has the right’ (for example, §§ 15(1) and 16(1); § 25), then this wording covers everyone uniformly, and § 9(1) only draws attention to one of the most important principles of the whole Constitution. It should be mentioned that by fixing natural law in the text of the law, the aforesaid emphasis was, in fact, unnecessary as it is not, in principle, possible to deprive a person of an imprescribable right. But unfortunately activities of public power at different times have often revealed that it ignores natural law. Therefore, all contemporary constitutions, including the Estonian Constitution, contain a catalogue of human rights.

With regard to Estonia, § 9(1) of the Constitution is of special importance because a considerable number of Estonia’s inhabitants do not have Estonian citizenship but many fundamental rights and freedoms are just connected with this institution. The Constitution, for example, provides that exclusively Estonian citizens abroad are protected by the Estonian state (§ 13(1)); Estonian citizens may not be expelled from Estonia and extradited to a foreign state and they have the right to settle in Estonia (§ 36); the Constitution protects the beliefs of Estonian citizens (§ 42); only Estonian citizens may belong to political parties (§48(1)). A number of fundamental rights for persons who are not Estonian citizens depend on how the legislator decides the concrete issue. Such rights include, for example, the right to state assistance (§ 28(2)); the right to freely choose profession (§ 29(1)); the right to hold office in public agencies (§ 30(1)); the right to engage in enterprise (§31); the freedom to acquire property (§ 32(3)); the right to freely obtain information disseminated for public use (§ 44(4)).

The question is whether the requirements of the Citizenship Act *19 established for the acquisition of Estonian citizenship (prerequisites for naturalisation) can be regarded as the infringement of § 12(1) of the Constitution. As is known, § 6(3) of the Citizenship Act provides for the knowledge of the Estonian language as a prerequisite of acquiring Estonian citizenship. *20 Here it should be mentioned that the Preamble of the Constitution stresses the preservation of the Estonian nation and culture as the fundamental task of the state. The fulfilment of the task presupposes the preservation of the Estonian language. Moreover, the preservation of the Estonian language is a question of independence due to the small number of Estonians. Considering all that, the Constitution provides that the official language of Estonia is Estonian (§ 6). But apparently the constitutional prescription on the language is not sufficient to restrict fundamental rights without any reservation. Any restriction must be proportional. On the one hand, to acquire the required knowledge of Estonian is quite a difficult task for non-Estonians. On the other hand, this is not a problem one cannot cope with. It should be mentioned that just the acquisition of the knowledge of the Estonian language is required which does not endanger the principle of national identity guaranteed by the Constitution (§49). The right of national minorities, in the interests of their national culture, to establish self-governing agencies (§ 50 of the Constitution) helps to preserve national identity. The language of instruction in national minority educational institutions is chosen by the educational institution (§ 37(4) of the Constitution), etc. Therefore it seems that there is no more suitable means to substitute for the constitutional language requirement and that means the consideration of the requirement of proportionality. *21

The presented example with regard to the problems of fundamental rights, language and citizenship allow us to draw a more general conclusion that the prohibition to be discriminated against on the basis of nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status or on other grounds (§ 12(1) of the Constitution) is not absolute. In case the rights are restricted, this must be done for the protection of values that constitute basic rights and the principle of proportionality must be considered at that.

Protection-rights

Contemporary treatment of fundamental rights connects it with the protection of fundamental rights and freedoms. Primarily we have to deal with a general protection-right that means that everyone has the right to the protection of the state and the law. In the catalogue of fundamental rights of the Estonian Constitution we can also find a section providing for a general protection-right (§13(1)). The semantics and syntax of the provision allows us to conclude that the general protection-right means the universal right to be protected by the state against the attacks of other persons. The protection by the state should be stressed because the wording of § 13(1) refers to the protection of both by the state and the law. As the state may act only on the basis of the law *22 , then in the present case the provision merely stresses one of the formal characteristics of a law-observing state – the role of the law in everyone’s right to the protection. If in the case of freedom-rights there is a connection between a citizen and the state, then in the case of protection-rights there is a connection between a citizen and a citizen, and between a citizen and the state. By establishing protection-rights, the state can ‘produce’ trust in public power. But at the same time we cannot find anything about the content of the general protection-right in § 13(1). The systematic analysis of the Constitution reveals that the general protection-right is aimed at the protection of any interest provided by the Constitution. Consequently, § 13 of the Constitution can never be verified by itself, this can be done only in the context of other constitutional provisions. What should be distinguished is the strength or level of the constitutional protection in the case of freedom-rights in comparison with special protection-rights. Here it should be mentioned that besides a general protection-right provision there are other sections containing so-called special protection-rights. *23 As a result of the comparison of the levels of freedom-rights and protection-rights, it can be said that the level of the latter is considerably higher. But why is it so? The problem becomes clearer if we acknowledge that subjects participating in the conflict generated by a protection-right originally have equal legal protection, meaning that the state protecting the rights must be active in the sense that it must draft relevant laws. This concerns the laws that prescribe certain legal protective mechanisms for the state to be applied by it in order to enable sufficient protection. Substantive law (for example, Copyright Act *24 ) is not sufficient in this case. In order to enable the state to offer the effective protection against the interference of one private person in other private person’s constitutionally protected benefits, the protection-right must go beyond the frames of substantive law and take the procedural form. The field of protection-rights as the whole must cover both public law and private law.

As we have mentioned, the Constitution also contains special protection-rights. One example of these is the second sentence of § 13(1) that establishes the protection of the Estonian citizens abroad. Although, on the basis of the wording of that section it might seem as if there were no limits to the aforesaid protection-right, the provision should foremost be interpreted as the guarantee of diplomatic protection of the Estonian citizens abroad. Evidently the state is not able to guarantee any other protection. The objective reality itself sets certain limits to the protection-right. And therefore, the Constitution does not state specifically that this right is protected by the law. For example, in the case of the protection of the right to life, the Constitution emphasises the role of law in guaranteeing the protection of life (§ 16). In the case of the protection of the marriage and the family (§§ 27(1) and (4)) it should particularly be mentioned that, pursuant to § 27(4) of the Constitution, the parents’ right to the protection means the constitutional protection of parents against their children. In other words, as the parents must care for their children, so the children must care for their parents. In the case of the protection-right of parents and children, the Constitution stresses again the role of law, which means the acknowledgement of the legislator’s competence in working out the relevant regulations. The protection of property as a special protection-right (§ 32(1)) has, in Estonian context, gained a new value of place. The Constitution establishes here the principle that everyone’s property is inviolable and equally protected. It is absolutely clear that if the property is acquired legally it is of no importance whose the property is – the property is equally protected. In the light of the Estonian ownership reform, the value of the place of the provision becomes clear. Namely, in the course of the ownership reform of Estonia, properties have been reverted to their former owners (during the Soviet period nationalisation was carried out) within the last seven years. In some cases, the legality of such reversions has become questionable. For example, in the cases when the property was reverted to a subject who had once already voluntarily relinquished his or her property. If the property has really been reverted unlawfully, then these decisions must be reviewed. But the principle of the equal protection of the property is also important because of the fact that the Constitution does not differentiate the forms of property. As is known, during the Soviet period that differentiation was very important from the aspect of the protection of property. The protection of the rights of the author (§ 39 of the Constitution) is connected with the protection of the property and although the Constitution does not state that law must guarantee this right, this proceeds from the spirit of the Constitution.

We referred to the necessity of a procedural form of protection-rights. The constitutional ground for that stems from §§ 14 and 25 and § 15(1) of the Constitution. Thus, a protection-right presupposes a certain prescriptive and procedural side. It should be clear that it does not suffice to fix protection-rights in the Constitution without providing for how the procedural protection of these rights is to be carried out. Therefore, §14 of the Constitution may be treated as a general procedural fundamental right in the broader meaning of the term. Pursuant to the above-mentioned provision, all state powers and local governments must guarantee the protection of fundamental rights and freedoms. Section 14 of the Constitution must be substantiated by systematic interpretation or within the context of other fundamental rights provided in the Constitution.

Social Fundamental Rights

The Estonian Constitution contains a catalogue of social fundamental rights based on a so-called minimum conception of social fundamental rights. By nature, social fundamental rights are an individual’s rights, to guarantee which it is not sufficient just to respect these rights. Certain activities of the state are required in addition. To carry out the relevant activities the state needs resources, which may entail a situation where the guaranteeing of social programmes for some categories of people impairs freedom-rights of other categories of people. *25 Another problem in connection with social rights is related to the fact that the social state is more dynamic than the state based on the rule of law. With regard to the establishment of these rights this means that the legislator can use its discretion more freely. The balance of interests as well as equal development of anyone’s welfare and equal distribution of anyone’s fiscal burden must be borne in mind thereat. But if the weaker are protected more comprehensively this means, as it rightly has been observed in legal literature, that in some aspects freedom-rights will be restricted.^*26 At the same time, in providing for social fundamental rights, the Estonian Constitution has taken into consideration the task of the public power to perform its duty in creating tolerable living conditions within the existing financial and material possibilities. In addition, the state has established a system of institutions which help an individual, if necessary, to manage his or her life in the case of illness, unemployment, etc. But besides that (legislative drafting, formation of corresponding institutions), it is a duty of the state to see to it that everyone is treated with respect to their human dignity and equality. As it has been justifiably noted in legal literature, a person should not, under circumstances not conditioned by him or her, fall into unequal conditions as compared to others. *27

The most important social fundamental rights embodied in the Estonian Constitution are the right to the protection of health (§ 28(1) of the Constitution); the right to state assistance in the case of old age, inability to work, loss of a provider, or need (§ 28(2)); the right to be assisted by the state in finding work (§29(3)); the right to education (§ 37(1)).

The right to the protection of health (§ 28(1) of the Constitution) requires a narrower interpretation because the provision is formulated with a view to providing free medical treatment or care for everyone. Perhaps such a resolution is possible in welfare societies. In any case, the wording of that constitutional provision offers a possibility to extend the scope of the protection of health. Essentially the right to the protection of health reinforces the general right to state assistance in the case of old age, inability to work, loss of a provider, or need (§ 28(2) of the Constitution). The right to the protection of health is embodied also in §18 of the Constitution that prohibits torture, cruel or degrading treatment, cruel or degrading punishment and medical or scientific experiments against a person’s free will.

The right to state assistance in the case of old age, inability to work, loss of a provider, or need (§ 28(2) of the Constitution) is similar to the general freedom-right or general protection-right in its social meaning. The citizens have this social fundamental right, but the right may be extended to everyone if the legislator wishes. The right to state assistance is guaranteed in four vital situations for which the legislator has given the meaning of a legal fact. These vital circumstances are old age, inability to work, loss of a provider and need. The latter must usually be generated either by one of the first three circumstances or by all of them. But atypical situations may also occur. In Estonia as in any society with a market-economy there is unemployment. This is a vital circumstance that might not be caused by the first three above-mentioned conditions. At the same time we have to deal with the situation of a legal fact as unemployment entails need. Would it be rational to talk about the right to state assistance in the meaning of § 28(2) of the Constitution in this case? The right to state assistance exists for those who come under the status of formally unemployed. Through various categories and extent of assistance and the conditions for the receipt of assistance (§ 28(2)) it is possible to realise or at least to help to realise fundamental rights proceeding from other sections of the Constitution. So, for example, the right to free self-realisation (§ 19(1)); the right to human dignity (§ 10); the right to the protection of health (§28(1) can be realised. It is clear that in welfare societies the right to state assistance can be more broadly guaranteed. But also in the Estonian legal order material resources necessary for humane existence constitute the object of the right to state assistance.

The obligation of the state to assist persons who seek employment in finding work (§ 29(3) of the Constitution) is not the state guarantee to the right to work. The task of the state is not to interfere in details, i.e. on the level of the Constitution, with the field regarding work, but still it cannot just stand by. The constitutional provision obligates the state to plan the activities and take legally guaranteed measures in order to find work for those who seek employment. That kind of state assistance can by no means be in correlation with the right to state assistance in the case of need, although it does not exclude it if this is the situation of need provided for in §28(2) of the Constitution.

The right to education is a social fundamental right of a limited scope. The problem is that everyone’s right to education corresponds to the obligation of compulsory education for school-age children to the extent specified by law (§ 37(1) of the Constitution). Such a unity of the right and obligation implies that education is the benefit for both an individual and the state. Subsection 37(1) of the Constitution refers to the limited character of the right to education providing that compulsory education is free of charge in state and local government general education schools. Consequently, we can talk about the right to education as the social fundamental right only in connection with general compulsory education. In the Estonian legal order, education is not the monopoly of the state, as a number of private schools have emerged in the educational landscape in recent years providing secondary school and higher education.

On Restriction of Fundamental Rights and Freedoms

In the Estonian legal order, the primary source of law is legislation of general application (containing legal norms) in the hierarchy of which laws occupy the highest position. Provisions of Chapter II of the Constitution emphasise the principle that rights and freedoms may be restricted only by the law. The basic norm here is § 11 of the Constitution providing that rights and freedoms may be restricted only in accordance with the Constitution. These restrictions are necessary in a democratic society and they may not distort the nature of the rights and freedoms restricted. Consequently, proceeding from this basic norm, the legislative acts invading fundamental rights must be in conformity with the Constitution both formally and substantively. But along with this general provision for the restriction of fundamental rights and freedoms, the Constitution contains another three general provisions concerning the restraints: the powers of state must be exercised solely according to the Constitution and laws which are in conformity with it (§ 3(1)); the law must protect everyone from the arbitrary exercise of state authority (§ 13(2)); everyone must honour and consider the rights and freedoms of others, and observe the law, in exercising his or her rights and freedoms and in fulfilling his or her duties (§ 19(2)). Thus, we can allege that there must be a legal ground for restricting fundamental rights and freedoms.

In several cases, the Constitution contains a two-level wording for fundamental rights where firstly the fundamental right is formulated without restrictions and only after that the restricting clause follows (in the cases and according to the procedure provided by law). For example, the following provisions of the Constitution contain the pertinent wording: § 20(2) – security of person; § 21(1) – the right of a person suspected of a criminal offence to notify those closest to him or her about his or her deprivation of liberty; § 26 – privacy of private and family life; §§32(1) and (2) – inviolability of the property; § 33 – inviolability of one’s dwelling, place of employment and real or personal property under his or her control; § 34 – freedom of movement; § 35 – freedom to leave Estonia; § 43 – confidentiality of messages; § 44 – obtaining information from agencies of public power; § 45 – freedom of speech; § 47 – freedom of assembly;

§ 48 – freedom of association. The Constitution contains provisions that refer to laws by which the fundamental rights and freedoms may be restricted. The wordings “unless otherwise provided by law” and “conditions and procedure for the exercise of this right may be provided by law” are used (for example, §§ 28(2); 29(1); 30(2); §§31; 50; §52(2)).

Court practice, namely a decision of the Constitutional Review Panel of the Supreme Court, confirms the validity of the legal ground for the restriction of fundamental rights stemming from the Constitution. The decision concerns the Government of the Republic Regulation No. 223 of 23 July 1993 that regulated the temporary procedure for the implementation of operational-technical special measures by the police and that were meant to be replaced by subsequent regulations at the level of law. The Constitutional Review Panel held that these approved operational-technical special measures and the procedure for their implementation vindicated the restriction of constitutional rights and freedoms – for example, the rights to the inviolability of private and family life, to the inviolability of the home, to confidentiality of messages sent or received by commonly used means. The court decision justifiably referred to the general clause of the Constitution (§ 11) under which rights and freedoms may be restricted only in accordance with the Constitution. But § 26 of the Constitution prohibits state agencies, local governments and their officials from interfering with the private or family life of any person, except in the cases and pursuant to procedure provided by law. The Constitution does not foresee other possibilities for the restriction of fundamental rights and freedoms. *28 The principle of legal ground is absolute and precludes the establishment of restrictions on fundamental rights and freedoms by legislative acts of lower levels. The Constitutional Review Panel of the Supreme Court has also interpreted to what extent the legislator may delegate authority, imposing restraints on fundamental rights and freedoms. *29 In its decision, the Constitutional Review Panel noted that pursuant to §§ 11, 26, 33 and 43 of the Constitution, rights and freedoms may be restricted only in accordance with the Constitution and in the cases and pursuant to procedure provided by law. The Riigikogu itself should have established in which concrete cases and according to which explicit procedures operational-technical special measures be applied and what the possible restraints of the corresponding rights be, instead of delegating the task to the officials of the Security Police and justices of the Supreme Court. That justified by the Constitution or obligated upon the legislator, may not be delegated to the executive power, not even temporarily or on condition that it be reviewed by the court.

But § 11 of the Constitution concerns material criteria as well. The reasons for material restrictions can be found in §19(2) of the Constitution being a general material restriction provision, but also in special restriction provisions derogating certain single fundamental rights (for example, §21(1), §§ 26, 34, 45).

Conclusion

The presented overview of fundamental rights and freedoms that are incorporated in the Estonian Constitution, makes us conclude that namely the catalogue of fundamental rights is the substance of the Constitution that shapes and forms the substantive basic order. The denotation “constitutional order” is not defined in the Constitution. But at the same time the substantive basic order forms the most important part of the constitutional order. As the Estonian legal order itself is young there is no comprehensive practice of interpreting the Constitution. At the same time, in its final end, only court practice is able to resolve conflicts and misunderstandings arising from the Constitution. The amendment of the Constitution should come into question only if it is impossible to resolve a problem by interpretation of the Constitution, including interpretation of fundamental rights and freedoms.