Constitutionality Review of Estonia's draft Non-Profit Associations Act 1996
Constitutional Review Chamber of the Supreme Court of Estonia
10 May 1996
Article 1: Definition of a child and the age of majority
Article 3: Best interests of the child a primary consideration
Article 15(1): Rights to freedom of association and peaceful assembly
Estonian Constitution, Section 11: Rights/freedoms only to be circumscribed in accordance with the Constitution and must be necessary in a democratic society
Estonian Constitution, Section 40: Freedom of religion and membership of a religion
Estonian Constitution, Section 48: Right to form non-profit associations
The President of Estonia declined to ratify the draft Non-Profit Associations Act 1996 on the basis that certain provisions therein did not conform with various provisions of the Estonian Constitution or with the CRC (which has supremacy over Estonian domestic law under Section 123 of the Estonian Constitution). One of the issues raised by the President was that Sections 5 and 26(2) of the draft Act provided that only persons with “active legal capacity” might found or lead non-profit associations. As Section 9(1) of the General Part of the Estonian Civil Code defines a person with “active legal capacity” as generally someone of at least 18 years of age, it was argued that the draft Act would thereby deprive children of the right to form non-profit associations in contradiction to Section 48 of the Estonian Constitution and Article 15 of the CRC.
Issue and resolution:
Freedom of association of children. The Estonian President referred the draft Non-profit Associations Act to the Estonian Supreme Court, who concluded that the bill was indeed unconstitutional.
The Court found that Section 48 of the Estonian Constitution was intended to guarantee the right to form associations to children, that non-profit associations are a manifestation of the right to form associations, and that the draft Act "restricts the freedom to form associations [that is] established by the Constitution and international agreement [because it] does not allow persons under 18 years of age to found non-profit organisations".
Regarding the CRC, the Court noted that the text of the Convention had not been officially published in Estonian (despite Estonia having acceded to the Convention some five years previously), but nevertheless found that it was fully binding on Estonia. The Court further noted that, under Article 1 of the Convention and in the context of the age of majority in Estonia, a child "means every human being below the age of eighteen years" and that, under Article 3 of the Convention, actions undertaken by courts or legislative bodies should make the best interests of the child a primary consideration. The Supreme Court therefore found that accession to the Convention required that Estonia recognise "the rights of the child to freedom of association, and the obligation of the state authority to establish pertinent legal mechanisms in national legislation". The draft Act was therefore found to also conflict with Article 15(1) of the Convention.
Excerpts citing CRC and other relevant human rights instruments:
"[…] The President also argued that §§ 5 and 26(2) of the draft Act were in conflict with § 48 of the Constitution, which establishes that everyone has the right to form non-profit undertakings and unions, as well as with Article 15(1) of the UN Convention on the Rights of the Child, which makes it a duty of the States Parties to recognise the rights of the child to freedom of association. The aforesaid provisions of the Act provide only persons with active legal capacity may found non-profit associations and belong to the leadership thereof, and this excludes the possibility of children to form associations." [This describes a submission]
"In the introductory part of the petition submitted to the Supreme Court the President of the Republic explained that he had based his refusal of 13 March 1996 on the fact that the Non-profit Associations Act was in conflict with the UN Convention on the Rights of the Child, to which Estonia acceded on 26 September 1991. Pursuant to the spirit of § 123 of the Constitution international agreements and conventions have supremacy over national law. The President of the Republic also takes the position that the conflict of the Act with the European Union legal system is just as serious but has even more devastating effect on Estonia’s status as a society governed by the rule of law. He is of the opinion that the Act does not take into consideration the sacred structure of churches, and instead treats a church as a special type of non-profit association. He also refers to the fact that the Act is in conflict with a Europe Agreement, proclaimed on 17 August 1995, on the basis of which (Article 68) Estonia is seeking to gradually harmonise its legislation with that of the European Community." [This describes a submission]
"The Republic of Estonia acceded to the Convention on the Rights of the Child on 26 September 1991 (RT 1991, 35, 428). The accession became effective in regard to Estonia on 20 November 1991. The text of the Convention has still not been published in the Riigi Teataja. Clause 5 of the resolution of the Supreme Council of the Republic of Estonia of 26 September 1991 on accession to international treaties, the depository of which is the UN Secretary General, reads: “To publish in the 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 resolution.” So far, the Convention on the Rights of the Child has not been published. Currently used Estonian texts of the Convention are unofficial translations. Thus, the resolution of the Supreme Council on publishing international acts has not been executed. According to Article 24(1) of the Vienna Convention on the Law of Treaties (RT II 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 foreign treaty is not a precondition for its entry into force, 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.
Article 15(1) of the Convention on the Rights of the Child 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. According 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. With the accession to the Convention Estonia has recognised the rights of the child to freedom of association, and the obligation of the state authority to establish pertinent legal mechanisms in national legislation. On the basis of the aforesaid, § 5 of the Non-profit Associations Acts is in conflict with Article 15(1) of the Convention." [This focuses upon the decision reached]
A new draft of the Non-profit Associations Act was passed on 6 June 1996, entered into force on 1 October 1996, and has been periodically amended thereafter:
The only relevant reference to active legal capacity in that Act is that the association must be managed and represented by a management board comprised of natural persons with active legal capacity (Section 26). An association may, however, be founded by any two natural persons or legal persons (Section 5).
CRIN believes this decision is consistent with the CRC. Article 15 guarantees children the right to freedom of association, and any restrictions to this right must be necessary in a democratic society in the interests of national security, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Given that there is no reason why the formation of a non-profit association by a child should interfere with these public goals, a restriction of this kind would be a disproportionate limitation to the right to freedom of association.
Constitutional Judgment 3-4-1-1-96
Link to Full Judgment:
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