Merilin Kiviorg, Estonia

• Citation: Vol. 19 No. 2
• Publication year: 2005
• topic: Constitutional Law

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF IN ESTONIA

Merilin Kiviorg^*

In 1991, Estonia reclaimed its independence and removed itself from the shadow of Soviet occupation. Although Estonia is a country with a predominantly Christian background and history, it cannot be called religiously homogeneous. Today's religious picture in Estonia is a mosaic of different faiths and denominations. Secularization has also played a significant role, especially in the last 100 years and has shaped the attitudes of contemporary society toward religion. Today, only approximately 23% of the Estonian population (in January 2003 estimated to be 1,356,045 people¹) are officially connected with various Christian Churches.²The Estonian Evangelical

Lutheran Church has been the dominant church in Estonia since the middle of the 16th century. Today, only about 11% of the population officially belongs to this church.³The next largest religious community is the Orthodox Church (about 10% of the population), which also has a long historical tradition.⁴There are smaller communities of Roman Catholics, Baptists, Jews, Methodists, Muslims, Buddhists, and others. Interaction between and among the churches and religious congregations is generally amicable, which helps stabilize church-state relations.

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In the last dozen years, the Estonian people have created a new central government based upon a new Constitution adopted in a 1992 referendum that embraces religious freedom and a commitment to human rights in conformity with the western European model. Yet the effects of both the first independence period (1918-1940) and the Soviet occupation (which lasted over fifty years) are reflected in Estonia's legislation and court practice. Estonia is still a country in transition.

At the beginning of the1990s the Estonian state clearly expressed its desire to join the European Union. On September 14, 2003, 66.8% of Estonians voted in favor of joining the European Union.⁵Estonia joined the European Union on 1 May 2004.⁶Estonia is also a member of many international organizations, including the United Nations, European Council and OSCE, and has ratified key conventions protecting freedom of religion or belief. A half- century of Communism did not diminish the desire for religious freedom and

Estonia's core constitutional and legislative provisions provide the basic level of protection for freedom of religion.

The Estonian Constitution of 1992 has special provisions dedicated to freedom of religion and belief. Article 40, emphatically provides:

Everyone has freedom of conscience, religion and thought. Everyone may freely belong to churches and religious societies. There is no state church. Everyone has the freedom to exercise his or her religion, both alone and in community with others, in public or in private, unless this is detrimental to public order, health or morals.⁷

In addition, Article 41 protects "the right to remain faithful to his or her opinions and beliefs. No one shall be compelled to change them."⁸Article 42 further provides that "[s]tate agencies, local governments, and their officials shall not gather or store information about the beliefs of an Estonian citizen against the citizen's free will."⁹In addition to the religion-specific limitation in Article 40 ("detrimental to public order, health or morals"), Article 41 also

2005] ESTONIA 755 states that while no one may be held legally liable because of "his or her beliefs,"¹⁰"[b]eliefs shall not excuse a violation of the law."¹¹

I. SOURCES OF LAW ESTABLISHING AND LIMITING MANIFESTATION OF

RELIGION OR BELIEF

There are several legal sources of the law on religions in Estonia. In order of significance, they are: (1) provisions set forth in national law,¹²including the Constitution of the Republic of Estonia, the Non-profit Associations Act,¹³the Churches and Congregations Act ( hereinafter CCA),¹⁴and other acts directly or indirectly regulating the individual and collective freedom of religion; (2) provisions set forth in international law; and (3) interpretation of fundamental freedoms and rights by courts, including decisions of the European Court of Human Rights and the European Court of Justice.

A. Constitutional Law

Article 40 of the Estonian Constitution expressly protects freedom of religion.¹⁵Even during a state of emergency or a state of war, the rights and liberties in Article 40 of the Constitution may not be restricted (Article 130).¹⁶

Article 41 on freedom of belief and Article 42 on the privacy of one's religion and belief add strength to the commitment to freedom of religion. In addition, other constitutional provisions complement the basic freedom of religion. For example, Article 45, which concerns the right to freedom of expression, Article

47, which concerns the right to assembly, and Article 48, which concerns the right to association, each provide specific protections for aspects of religious freedom.¹⁷"Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means," states

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Article 45.¹⁸The dissemination of religious ideas is not excluded. Likewise, the right to "assemble peacefully" and to "conduct meetings"¹⁹and the right to form "non-profit undertakings and unions"²⁰buttress the collective aspects of religious life.

The religious freedom guarantee of Article 40 of the Constitution has to be interpreted in conjunction with the other articles of the Constitution as one reflects on the relations between State and Church (or, more precisely, the State and religious communities). The principle of equality is anchored in the first sentence of the first paragraph of Article 12 of the Constitution, which sets forth that all persons shall be equal before the law.²¹The second paragraph of

Article 12 of the Constitution sets forth the principle of non-discrimination, prohibiting discrimination, among other things, on the basis of religion or belief.²²As the Constitution protects both the individual and the collective freedom of religion, as seen above, these principles also must be applied to religious communities. The principle of non-discrimination is a special equality right and is deemed to protect religious minorities. Article 19(1) of the Constitution states that "[e]veryone has the right to free self-realization," which can be interpreted as an additional guarantee for the autonomy of religious organisations.²³

There are provisions which limit the various freedoms for religion. Article

40 itself states that freedom of religion, "alone and in community," is assured "unless this is detrimental to public order, health or morals."²⁴In addition, the Constitution contains four general limitation clauses: the first sentence of Article 3(1),²⁵Article 11, Article 13(2),²⁶and Article 19(2). Article 11, however, is the central and most important limitations clause: "Rights and freedoms may be restricted only in accordance with the Constitution. Such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted."²⁷Thus, every case of restriction

2005] ESTONIA 757 of rights and freedoms must be justified and pass the test of proportionality. Article 19(2) constitutionalizes the common sense idea that, in exercising their rights and liberties, all persons must respect and consider the rights and freedoms of others ("and observe the law").²⁸

Although the freedom of religion clause in Article 40 permits limitations only with the legitimate aim of protecting public order, health or morals, the general limitation clauses should also be taken into account. In addition the rights of assembly and association have their own forms of limitations. Article

47 allows restriction of assembly in accordance with "procedure provided by law to ensure national security, public order, morals, traffic safety, and the safety of participants in a meeting, or to prevent the spread of infectious disease."²⁹Article 48 has specific bars concerning certain military associations as well as associations for rebellion or criminal activity."³⁰

The Constitutional Review Chamber of the Supreme Court has already provided some important interpretative principles.³¹First, many restriction clauses in the Fundamental Rights, Freedoms, and Duties Chapter of the Constitution permit reservations in accordance with law.³²The term "law" as used in the restriction clauses of the Fundamental Rights, Freedoms, and Duties Chapter of the Constitution means an act of Riigikogu (Parliament). This means that restrictions must appear in the Constitution or as set forth in laws enacted by Parliament. Setting limits on rights and freedoms in lower administrative or executive acts would be unconstitutional. In this regard, the

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Supreme Court has adopted higher standards for the protection of fundamental freedoms and rights than the European Court of Human Rights itself.³³

Second, relating to the former principle, the Supreme Court has also ruled that Parliament may not delegate its legislative powers regarding duties specifically vested in it by the Constitution.³⁴Third, restrictions on fundamental freedoms and rights are unconstitutional if they are not clear and detailed enough to enable the putative subjects of law to determine their conduct on the basis of informed choice.³⁵

B. International Law

1. The Role of International Law According to the Constitution

It is theoretically debatable whether Estonia has adopted a moderate dualist approach or a moderate monist approach to international law. Article 3 of the Estonian Constitution stipulates that universally recognized principles and norms of international law shall be an inseparable part of the Estonian legal system.³⁶The prevailing view among scholars is that Article 3 of the Estonian

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