Legal principles

Legal principles derive mostly from the highest legal source of the state – the Constitution.

Principles on the basis of the Constitution of the Republic of Estonia

**The principle of democracy **

In democratic countries, legislative power is based on the activity of the parliament. State authority belongs to the people and emanates from the people. The people have the right to form the highest state authorities – to shape the country’s policies through their elected representatives. Pursuant to section 1 of the Constitution, the supreme power of state is vested in the people in Estonia. The supreme power of state is exercised by the people through citizens with the right to vote, by means of election of the Riigikogu and referendums. In a democratic regime, the overwhelming majority can use their political and human rights and the protection of those rights is judicially guaranteed; general, periodic, fair and free elections shall take place.

The principle of republicanism

Estonia is a parliamentary republic. It is a characteristic feature of republican forms of government that the head of state be elected periodically. Section 65 of the Constitution provides that the President of the Republic shall be elected by the Riigikogu. The Government must have the confidence of the Parliament. The Parliament is entitled to express no confidence in the Government (subsection 65 (13) of the Constitution). The President is an institution of executive power, but is not at the head of it. The head of state is controlled by the Parliament and his or her main function is to represent the state in international relations with other countries.

The principle of unitary state

Subsection 2 (1) of the Constitution stipulates that the land, territorial waters and airspace of the Estonian state are an inseparable and indivisible whole. Pursuant to subsection 2, Estonia is politically a unitary state wherein the division of territory into administrative units shall be provided by law. Hence, Estonia is a unitary state by its form of public order, which shows the division of the administrative territory of the state, the nature of the mutual relationships between administrative units and with the country as a whole. Unitary states have a single parliament, legislation and court system. Pursuant to the Constitution of the Republic of Estonia, there can be no autonomous national-territorial units within the Republic of Estonia.

The principle of legality

Subsection 3 (1) of the Constitution provides that the power of state shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith. Thus the principle recognised in democratic countries, according to which the principle of legality shall be observed in exercising public authority (legislative, executive as well as judicial power), applies in Estonia. All major decisions made by the public authority shall be based on law. There are also other provisions of the Constitution that supplement the principle of legality. For example, pursuant to section 146 of the Constitution, justice shall be administered only by a court that is independent in its activity and administers justice in accordance with the Constitution and the laws. People’s rights and freedoms, too, can be restricted only in accordance with the Constitution and in cases stipulated by the law. Section 15 of the Constitution provides that everyone whose rights and freedoms are violated has the right of recourse to the courts. The exercise of power shall be legal with regard to the content of legislation as well as the manner and form of the exercise of power.

The principle of the primacy of the generally recognised principles and rules of international law

Pursuant to section 3 of the Constitution, the generally recognised principles and rules of international law are an inseparable part of the Estonian legal system. These general principles consist in international common law, the rules of international conventions that the civilised world considers to be binding for a country even if the country has not committed to them (such as rules prohibiting racial discrimination).

The principle of the separation of powers

The principle of the separation of powers can be divided into two: the traditional separation of powers and the personal separation of powers. Traditional separation of powers means the separation of the legislative, executive and judicial power. The legislative power belongs to the parliament, the executive power to the government (the President is also part of the branch of executive power), judicial power is exercised by courts. However, this separation is usually not absolute. One power branch may to a certain extent deal with issues belonging to the competence of another branch. For example, the government also performs a legislative function by issuing regulations. Such a right of the government must have a constitutional basis and the main legislative function must still remain with the parliament. The opposite case may also be true. The legislative power has been given the functions of executive power to some extent. For instance, pursuant to subsections 65 (7) and (8) of the Constitution, the Riigikogu appoints the Chief Justice of the Supreme Court, the Chairman of the Supervisory Board of the Bank of Estonia, the Auditor General, the Chancellor of Justice, and the Commander or Commander-in-Chief of the Defence Forces on the proposal of the President of the Republic; the justices of the Supreme Court on the proposal of the Chief Justice of the Supreme Court. It is necessary that each power branch deal with its main function and the performance of other functions be in accordance with the Constitution. The independence of judicial power is important for ensuring independent and unbiased legal proceedings. Pursuant to section 146 of the Constitution, courts shall be independent in their activity and justice shall be administered in accordance with the Constitution and the laws. The relationships of the judicial power with the other power branches are quite limited to ensure that the administration of justice be consistent with the principle of the rule of law. Personal separation of powers means that a person shall not be in the service of several power branches at the same time. Section 84 of the Constitution provides that upon assuming office, the authority and duties of the President of the Republic in all elected and appointed offices shall terminate, and he or she shall suspend his or her membership in political parties for the duration of his or her term of office. Pursuant to subsection 147 (3), judges shall not hold any other elected or appointed office, except in the cases prescribed by law.

The principle of human dignity

The principle of human dignity is derived from section18 of the Constitution, which provides that no one shall be subjected to torture or to cruel or degrading treatment or punishment.

In addition to the principles above, the generally recognised legal principles that are derived from law itself and with which legislation as well as the exercise of law must be in accordance should also be distinguished. Public authority is related to law as a whole which also encompasses the generally recognised legal principles that the Constitution as well as other legislation must comply with.

The principle of equal treatment

In Estonia, this principle is first laid down in the manifesto “To All Peoples of Estonia”. According to the principle of equality of treatment, equal situations shall be treated in the same way. Unequal treatment of identical circumstances is discrimination.

The principle of proportionality

The principle of proportionality is derived from section 11, which provides that rights and freedoms may be restricted only in accordance with the Constitution and such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted.

The principle of legal certainty and legitimate expectation

According to the principle of legitimate expectation, a person shall have the right to exercise his or her rights with the reasonable expectation that the promises given to him or her will be upheld (for example, if a person has been awarded certain benefits, this principle helps to avoid the premature cancellation of the benefits). According to the principle of legal certainty, a person has the right to, for instance, resolve a dispute pursuant to the law that was effective during the event that constitutes the object of the dispute, and it is prohibited in criminal law to retroactively apply rules that impair the person’s situation.

Hearing of a matter within a reasonable time

This principle applies in judicial proceedings as well as administrative proceedings and is implemented above all in cases where the law does not specify the time limit for hearing the matter. The criterion of a reasonable time is based on estimation and depends on specific circumstances (such as the complexity of the case).

Compiled by: Ministry of Justice