Summaries
Kaie Proode, Anneli Soo, Paloma Krõõt Tupay, Andor Aland, Ann Viirmaa
Protection of the fundamental rights of an extradited person in extradition proceedings between Estonia and the United States of America
The article focuses on the question of whether the legal framework of extradition of Estonian persons to the United States of America, which consists of the relevant provisions of the extradition treaty and the Code of Criminal Procedure, ensures the protection of the fundamental rights of the extradited person to the extent that is mandatory for Estonia under the applicable law. The article concludes that the regulation of extradition proceedings does not provide sufficient clarity as to at what stage of domestic proceedings, if at all, defendants in extradition proceedings can claim the enforcement of their fundamental rights. Thus, there are significant shortcomings in the legal framework of extradition between Estonia and the United States, which may lead to a failure to safeguard the fundamental rights of persons whose extradition from Estonia is sought by the United States.
Keywords: fundamental rights, extradition treaty between Estonia and the United States of America, extradition procedure, criminal procedure, scope of application of European Union law
Martin Triipan
Observations of the party to the constitutional review proceedings
The article discusses procedural issues affecting the conduct of constitutional review. The author points out that, first and foremost, the protection of constitutionality and the fundamental rights of individuals must be ensured in civil, criminal, and administrative proceedings. Therefore, in the debate on the effectiveness of constitutional review, it is important to pay attention to the legal remedies that, in the event of unconstitutionality, are available starting from the court of first instance. The doctrine of relevance applied by the Supreme Court and its impact on constitutional review by the courts will also be examined. The article discusses the shortcomings that have emerged and how they could be remedied.
Keywords: constitutional review, seamless judicial protection, legal remedies, relevance, individual appeal
Lehte Roots
Multiple and dual citizenship in the context of the Constitution of the Republic of Estonia and the European Union citizenship
The question of multiple and double citizenship and the contradiction between the Constitution and the Citizenship Act, which should technically regulate it, has been a relevant topic of debate in Estonia for years. This article analyses the legal clarity of multiple and dual citizenship in the Republic of Estonia. The main research question of this article is how the Citizenship Act and the Constitution of the Republic of Estonia affect multiple and dual citizenship. Based on an analysis of the legal aspects of dual citizenship in the Republic of Estonia, the article proposes changes to the regulations, following the example of other European Union countries, in order to eliminate the contradiction between the Citizenship Act and the Constitution and to bring more legal clarity to the matter. The article also discusses the possibilities of expanding Estonian citizenship based on the practice of citizenship in the European Union, and analyses the practice of dual citizenship in neighbouring countries and the possibilities of implementing similar policies in Estonia.
Keywords: European Union citizenship, multiple citizenship, dual citizenship, constitution, Citizenship Act
Peter Bußjäger
Instruments of direct democracy and citizen participation in Austrian Federalism
This contribution describes at first various types of instruments of direct democracy in Austria: (Binding) referendums, people´s consultations and popular initiatives. The practical significance of these instruments of direct democracy on federal and land level cannot quite keep up with this diversity. The reasons are rooted in a lack of direct democratic tradition and low awareness among the population and added to this, the restrictive jurisprudence of the Constitutional Court. The paper deals also with various other participatory instruments that are commonly used and enable people living in Austria to participate in the political process.
Keywords: citizen’s participation, direct democracy, federalism, people´s consultation, popular initiatives, referendum
Matthias Klatt
Positive rights: Who decides? Judicial review in balance
Positive rights which require the state to take action are often criticized because they give rise to the justiciability problem. Courts, rather than democratic legislatures, decide upon the scope and content of the rights. This article argues that this democratic objection against positive rights is misguided. Judicial review and deference admit of degrees. Hence, it is possible to arrive at a balanced account of judicial review which avoids the problems of both too much and of too little control. The conflict between the competences of the legislature and the courts can be solved by means of a balancing exercise, the details of which are spelled out here. The model of judicial review in balance is further explained using a case analysis which concerns the right to a dignified subsistence minimum. The article provides a sensitive and flexible solution to the problem of how courts should enforce social and socio-economic rights.
Keywords: positive rights, judicial review in balance, balancing competences
Martin Borowski
Structure of fundamental rights. Part 1. Key questions regarding the structure of fundamental rights
This article provides a comprehensive overview of key questions regarding the structure of fundamental rights. The first chapter explores the concept of fundamental rights, establishing a foundation for the discussion that follows. The second chapter examines the distinction between binding and non-binding norms, addressing whether fundamental rights, at least in part, function as non-binding principles. The third chapter delves into the question of whether fundamental rights constitute subjective rights. A crucial aspect of the structure of fundamental rights – the distinction between rules and principles, rooted in the theory of principles – is analyzed in the fourth chapter. The discussion then turns to two competing models of fundamental rights limitations: the restriction-limit scheme, which allows for restrictions, and the preformation model, which characterizes certain rights as not limitable. These models are the focus of the fifth chapter. The article proceeds with a structured examination of various theories concerning the inherent substance of fundamental rights. Finally, the first part concludes with reflections on the interpretation of fundamental rights as an integral component of constitutional interpretation.
Keywords: the concept of fundamental rights, the fundamental rights clause and the fundamental rights norm, human rights, international and supranational fundamental rights, binding and non-binding norms, fundamental rights as subjective rights, rules and principles, fundamental rights as limitable and non-limitable rights, internal and external theory, the restriction-limit scheme, the preformation model, the construction of fundamental rights, the essential core of fundamental rights, the interpretation of fundamental rights
Uno Lõhmus
Rule of Law – what is it?
After World War II, deportations, killings, and the destruction of cultural heritage continued in the Soviet Union, despite international declarations on human rights. Following Stalin’s death, extra-judicial punishments were abolished, and mass deportations ceased. However, the core political system and its anti-patriotic ideology persisted until the Soviet Union’s final years. As a result, by 1988, Estonia faced the challenge of re-establishing the rule of law—building a state founded on legal principles, human and civil rights, and the separation of powers.
Keywords: Stalinist terror, Stalinist repression, rule of law, legality, human and civil rights, separation of powers