Statistical data: 1 May 1996 - 31 August 1996

Number of decisions: 1

Important decisions

Identification: EST-96-2-001
a) Estonia / b) Supreme Court / c) Constitutional Review Chamber /d) 10.05.1996/e)/f) Declaring unconstitutional of the Law on Non-profit Unions / g) Riigi Teataja I (Official State Bulletin I) 1996, no. 35, Article 737 / h).

Keywords of the systematic thesaurus:
Sources of Constitutional Law - Categories – Written rules - Convention on the rights of the Child.
Sources of Constitutional Law-Hierarchy-Hierarchy as between national and non-national sources – Treaties and legislative acts.
Institutions - Legislative bodies - Relations with the Head of State.
Fundamental Rights - General questions – Entitlement to rights - Natural persons - Minors.
Fundamental Rights - General questions – Entitlement to rights - Legal persons.
Fundamental Rights - Civil and political rights - Freedom of association.

Keywords of the alphabetical index:
Non-profit association, membership/Treaties, publication / Vienna Convention on the Law of Treaties, 1969.

Headnotes:
Freedom of association, known from international law, is established in the Constitution. Article 48.1 of the Constitution reads: "Everyone has the right to form non-profit undertakings and unions. Only Estonian citizens may belong to political parties." For the purposes of the Constitution "everyone" implies all natural persons (individuals) falling within the jurisdiction of a legislative act. Pursuant to Article 9.2 of the Constitution, the rights, freedoms and duties as set out in the Constitution shall extend to legal persons.
The Constitution does connect the right to form non-profit associations to an individual's capacity under civil law. Therefore, according to the Constitution, freedom of association must also be guaranteed to minors.

Summary:
On 21 February 1996 the Riigikogu (Parliament) passed the Non-Profit Associations Act. The President of the Republic did not proclaim it, and sent it back to the Riigikogu for further discussion and re-adoption. The Riigikogu re-adopted the Act without any amendments to it, and the President subsequently petitioned the Supreme Court for a declaration that the Non-profit Associations Act was unconstitutional. He argued in the petition that several provisions of the Act were ambiguous, allowing for misinterpretation of the rights and freedoms of the members of non-profit associations, including religious societies. He also held that the Act was in conflict with the UN Convention on the Rights of the Child.
The Constitutional Review Chamber of the Supreme Court held that pursuant to the Constitution non-profit associations and their unions constitute one form of exercising the right of association. Article 2.1 of the Non-profit Associations Act recognises non-profit associations that have the status of a private law legal person and Article 5 of the same act provides that only capable natural or legal persons may be the founders of such associations. Therefore, the Act restricts freedom of association as it has been established by the Constitution and by international treaties. The Non-profit Associations Act does not allow persons under 18 years of age to found non-profit associations and thus does not give them the possibility to realise their constitutional right of association. Persons of full age who do not want to associate as private law legal persons or who, because of religious beliefs, cannot associate as private law legal persons, are also deprived of the possibility to fully realise their constitutional right of association. The Act deprives the aforementioned persons' right of association of constitutional protection.
Article 16.2 of the Act provides: "A member of a non-profit association may be excluded from the association, irrespective of what has been provided in the Statutes of the association, upon his failure to fulfil the provisions of the Statutes, decisions of the General Assembly or the board of the association or other authority, when he has caused essential damage to the association or for other weighty reasons." This provision is not in accordance with Article 14 of the Constitution which establishes that the guarantee of rights and freedoms is the duty of the legislature, because the regulation provided by the Act is inconsistent and indefinite. The provision makes it possible to exclude members from an association on the basis and according to procedures that have not been stipulated by the Act or by the Statutes.
The Constitutional Review Chamber also found the Act to be in conflict with the UN Convention on the Rights of the Child. The Republic of Estonia acceded to the Convention on the Rights of the Child on 26 September 1991 (Riigi Teataja 1991, 35, 428). The accession became effective on 20 November 1991. Article 15.1 of the Convention provides that States Parties recognise the rights of the child to freedom of association, which embraces the freedom to form associations and freedom of peaceful assembly. Pursuant to Article 1 of the Convention, a child means every human being below the age of 18 years. According to Article 3 of the Convention, in all actions concerning children, whether undertaken by courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. By its accession to the Convention, Estonia recognised the rights of the child to freedom of association and the obligation of the State power to establish a pertinent legal mechanism for its protection. Proceeding from the aforesaid, Article 5 of the Non-Profit Associations Acts was held to be in conflict with Article 15.1 of the Constitution. The Constitutional Review Chamber therefore upheld the petition of the President and declared the Non-Profit Associations Act to be unconstitutional.

Supplementary information:
Pursuant to Article 3.2 of the Constitution, only published laws have obligatory force. Paragraph 5 of the decision of the Supreme Soviet of the Republic of Estonia, dated 26 September 1991, on accession to international treaties, the depository of which is the UN Secretary General, reads: "To publish in Riigi Teataja the UN Charter, the Statute of the International Court and the texts of all the treaties and declarations included in the appendices 1, 2 and 3 of this decision." Up to now, the decision of the Supreme Soviet on publishing international instruments has not been fulfilled. Pursuant to Article 24.1 of the Vienna Convention on the International Law of Treaties (Riigi Teataja //1993,13/14), an international treaty enters into force in such manner and upon such conditions as established by the treaty. Thus, publication of a international treaty is not a condition for its implementa-tion, and the Convention on the Rights of the Child is binding on Estonia irrespective of the fact that it has not been published in the Riigi Teataja.

Languages: Estonian.