Review of the petition of the Valga County Court, dated 9 June 1997, to declare paragraph 3.19 of Part I of the Valga City Rules, approved by the regulation of Valga City Council, dated 10 January 1996, partially null and void.

The Constitutional Review Chamber sitting in a panel

presided over by the Chairman of the Chamber Rait Maruste
and composed of the members of the Chamber Tõnu Anton, Lea Kalm, Jaano Odar and Jüri Põld,
at its session of 24 September 1997,

in the presence of the secretary to the Chamber Piret Lehemets,
reviewed the petition of the Valga County Court, dated 9 June 1997.

From the documents submitted to the Constitutional Review Chamber it appears that:

Valga administrative judge, with his decision of 2 June 1997 pertaining to administrative offence case no 2/19, did not apply paragraph 3.19 of Part I of the Valga City Rules, approved by the regulation of Valga City Council, dated 10 January 1996, to the extent that it prescribed for a restriction of the freedom of movement of persons under 16 years of age, and a decision was taken to initiate constitutional review proceedings to declare the provision null and void. Also, on the basis of § 218 (1) of the Code of Administrative Offences, the proceedings against Aleksander Zahhartš enko pursuant to §§ 142 and 143 of the Code of Administrative Offences, were terminated due to the absence of the elements of an administrative offence.

On the basis of § 5 of the Constitutional Review Court Procedure Act, the Chairman of Valga County Court submitted a petition to the Supreme Court, seeking that due to conflict with Article 34 of the Constitution paragraph 3.19 of Part I of the Valga City Rules, approved by the regulation of Valga City Council, dated 10 January 1996, to the extent that it prescribed for a restriction of the freedom of movement of persons under 16 years of age, be declared null and void. Pursuant to court decision A. Zahhartš enko had been held liable, on the basis of § 142 of the Code of Administrative Offences, for having been, as a person of under 16 years of age, in a public place in Valga at 23.54, unaccompanied by an adult, and on the basis of § 143 of the Code of Administrative Offences because he had not obeyed the orders of a police officer to follow him to prepare the report concerning the an administrative offence. Pursuant to the report concerning the administrative offence, A. Zahhartš enko violated paragraph 3.19 of Part I of the Valga City Rules, approved by the regulation of Valga City Council, dated 10 January 1996. When resolving the administrative offence case, the judge found that the paragraph 3.19 applicable in the case is in conflict with Article 34 of the Constitution to the extent that it prescribes a restriction on the freedom of movement of persons under the age of 16 years. The decision states that although the behaviour of A. Zahhartš enko has the characteristics described in paragraph 3.19 of the Rules and in § 142 of the Code of Administrative Offences, attending a public place unaccompanied by an adult is not unlawful, because paragraph 3.19 of the Rules which forms the grounds for responsibility, is in conflict with the Constitution and must not be applied. Pursuant to Article 34 of the Constitution, everyone who is legally in Estonia has the right to freedom of movement. The right may be restricted in the cases and pursuant to procedure provided by law to protect the rights and freedoms of others, in the interests of national defence, in the case of a natural disaster or a catastrophe, to prevent the spread of an infectious disease, to protect the natural environment, to prevent the leaving of a minor or a person of unsound mind without supervision and to ensure the administration of a criminal proceeding. In Estonia no cases or procedure have been established by law as to when and how to restrict the freedom of movement to prevent the leaving of a minor. Thus, the part of paragraph 3.19 of Part I of the Valga City Rules, approved by the regulation of Valga City Council, dated 10 January 1996, which restricts the freedom of movement of minors, is in conflict with Article 34 of the Constitution.

In the written opinion submitted to the court, the Legal Chancellor finds that the petition of the Valga County Court is justified and that paragraph 3.19 of Part I of the Valga City Rules, establishing restriction on the freedom of movement of minors, has been issued exceeding competence and is thus in conflict with Article 34 of the Constitution. Pursuant to the Constitution, the right to freedom of movement may be restricted in the cases and pursuant to procedure provided by law. In Estonia no cases or procedure have been established by law as to when and how to restrict the freedom of movement to prevent the leaving of a minor. The Code of Administrative Offences provides a delegation rule pursuant to which the local governments are entitled to establish rules for public order, but the Code does not authorise the local governments to establish restrictions to prevent the leaving of a minor. It is noted in the written opinion that as the majority of local governments have provided for analogous restrictions in the public order rules, the Legal Chancellor, on 5 September 1997, reported to the Riigikogu about the need to legalise the restrictions to prevent the leaving of a minor.

In the written opinion submitted to the Court, the Chairman of the Valga County Court holds that the petition is justified, as pursuant to Article 34 of the Constitution the right to freedom of movement may be restricted in the cases and pursuant to procedure provided by law. In Estonia no cases or procedure have been established by law as to when and how to restrict the freedom of movement to prevent the leaving of a minor without supervision. That is why paragraph 3.19 of Part I of the Valga City Rules, establishing restriction on the freedom of movement of minors, is in conflict with article 34 of the Constitution. It is stressed in the written opinion that a new draft of Valga City Rules was being worked out by Valga City Government, which does not contain the said provision.

Having examined the submitted documents the Constitutional Review Chamber finds, that:

I. Paragraph 3.19 of Part I of Valga City Rules establishes, that it is prohibited “for persons under the age of 16 to be in public places from 23.00 - 6.00 unaccompanied by an adult. The directors of ordinary and vocational schools are under the obligation to close the gatherings for the youth so that they would be able to get home by 23.00 the latest.”

Freedom of movement is an accepted and legally protected value in a democratic society, and it is closely related with other constitutional values, such as personal liberty, public security and order, rule of law and the rights and freedoms of other people. On these grounds both the Constitution and international law provide for the possibility to restrict the freedom of movement. Also, Article 14 of the Constitution establishes that the guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments. Although the guarantee of rights and freedoms is the duty of local governments, they are to fulfil this obligation lawfully. Article 13 (1) of the Constitution provides that the law shall protect everyone from the arbitrary exercise of state authority. Local government bodies also exercise state authority. Article 3 (1) of the Constitution establishes that the powers of state shall be exercised solely pursuant to the Constitution and laws, which are in conformity therewith. Thus, the principle that public power should be exercised observing the principle of legality, which is recognised in democratic rule-of-law states, is also valid for Estonia. For the exercise of power the content of a legal act, as well as the procedure and form of exercising power must be legal.

A person exercises his freedom of movement both in time and in space. If we presume that the restrictions of the freedom of movement do not embrace the possibility to restrict a person’s stay in certain places at certain hours, this would mean that it would be impossible to legally assess the imposition of official closing time or a curfew on the basis of Article 34 of the Constitution. This would hardly be compatible with the purpose of article 34 of the Constitution. Thus, the demand that from 23.00 till 6.00 a person under the age of 16 years is only allowed to stay in a public place if accompanied by an adult, can be viewed as a restriction of the freedom of movement in the sense of Article 34 of the Constitution.

Due to the psychological and social immaturity of a minor he may, in certain circumstances, cause harm to himself and others more easily than an adult. Due to the immaturity a minor, unlike the majority of adults, has limited legal liability. This justifies the need to impose on minors such legal restrictions that are usually not imposed on adults. Article 34 of the Constitution allows for the restriction of minors’ freedom of movement to prevent the leaving of a minor without supervision. Certainly, at night the probability of a minor leaving without supervision is greater than during daytime. That is why it is not excluded that it might be reasonable to restrict the minors’ freedom of movement in certain cases to prevent the leaving of a minor without supervision.

It is possible to restrict the minors’ freedom of movement if the restriction is justified with the need to prevent the leaving of a minor without supervision, if it is proportional with the desired goal and it is impossible to achieve the desired goal by other means. A restriction must be enforceable and reasonable and necessary in a democratic society.

Article 34 of the Constitution provides for the possibility to restrict the freedom of movement in the cases and pursuant to procedure provided by law. In this constitutional provision the law means a law in its formal sense and not just any legislative act. The decision of the Constitutional Review Chamber of the Supreme Court of 12 January 1994 deals with the rights guaranteed in Articles 11, 26, 33 and 43 of the Constitution and states that the rights and freedoms may be restricted solely in accordance with the Constitution and in the cases and pursuant to procedure provided by law. In another decision, made by the same Chamber the same day, it is stressed that the possible restrictions on basic rights and freedoms may be imposed only by legislative acts having the force of law. The Chamber found in its decision of 2 November 1994, that locking a wheel of a car, which has been parked improperly or without a valid ticket, constitutes both a local issue and restriction of ownership, and as there was no law giving local governments the right to restrict ownership by such means, the pertinent acts of local government were unconstitutional. Pursuant to the decision of 21 December 1994, the procedure for restricting basic rights and freedoms must be established by law. In the latter decision reference is made to Article 34 of the Constitution, which regulates the freedom of movement. Thus, the Constitutional Review Chamber has consistently been of the opinion that the rights established in Chapter II of the Constitution, which have been referred to in the said decisions, may be restricted solely in accordance with law. The wording of Article 34 gives no ground to conclude that the term “law” used in this provision might have another meaning for minors. Furthermore, it is stressed in the decision of 21 December 1994, that in such extreme situations as a natural disaster or a catastrophe and to prevent the spread of an infectious disease, law must establish the procedure for restriction of the freedom of movement.

Even if prevention of the leaving of a minor without supervision is a local issue, the local government may not impose restrictions on minors’ freedom of movement, because Article 34 of the Constitution unambiguously states that the right to freedom of movement may be restricted solely in the cases and pursuant to procedure provided by law. When the law provides for possible cases and procedure for restricting the minors’ freedom of movement, the local government may be entitled to determine the enforcement of the restrictions on its territory.

Thus, the petition of Valga County Court is justified and has to be satisfied. Paragraph 3.19 of Part I of the Valga City Rules, to the extent that it restricts the freedom of movement of persons under the age of 16 years, is in conflict with Article 34 of the Constitution and is to be declared null and void.

II. The Constitutional Review Chamber considers it necessary to point out that the resolution of Valga Administrative Court decision, dated 9 June 1997, does not make a reference to the Article of Constitution, which paragraph 3.19 of Part I of Valga City Rules is in conflict with. Both the motivation of the administrative judge and the petition of Valga County Court refer to the conflict of this provision with Article 34 of the Constitution, but this reference is not sufficient. Pursuant to the spirit of Article 5 of the Constitutional Review Court Procedure Act, the resolution of a court decision must contain a reference to the specific Article of Constitution, with which the legal act, the court did not apply, is in conflict.

Pursuant to Article 152 (2) of the Constitution and Article 19 (1) (4) of the Constitutional Review Court Procedure Act, the Constitutional review Chamber has decided:

To satisfy the petition of Valga County Court, dated 9 June 1997, to declare paragraph 3.19 of Part I of the Valga City Rules, approved by the regulation of Valga City Council, dated 10 January 1996, null and void to the extent that it restricts the freedom of movement of persons under the age of 16 years.

The decision is effective from the date of its pronouncement, is final and is not subject to further appeal.

Rait Maruste
Chairman of the Constitutional Review Chamber
 

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Article 14 of the Constitution establishes that the guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments. But Article 154 of the Constitution entitles the local governments to manage independently all local issues. Thus, the Constitution imposes on local governments the duty to guarantee rights and freedoms (including the right to safety) and entitles them the right to decide and manage all local issues independently. Legal order is one of the most important local issues. As the legislator – the Riigikogu -- has not unambiguously regulated the issue of minors’ supervision by a legal act having the rank of a law (for example by a Children’s Protection Act), we have to conclude that the issue has temporarily, until the issuance of pertinent legislation, been left for the local governments to decide and manage. Proceeding from the Constitution as a law and from its supremacy, the local governments have been fulfilling their constitutional duty essentially correctly and in accord with the purpose and goals of the Constitution.

At the same time, the restriction of the freedom of movement of minors in Valga by the Valga City Council, has not been imposed by a legislative act having the rank of law, that is by primary legislative act, as it is prescribed by Article 34 of the Constitution. In this aspect Valga City Council has formally not acted in conformity with the Constitution. On this basis the petition is to be satisfied. It is necessary to admit, though, that a legislative act having formal characteristics of law provides high quality protection to basic rights and freedoms and is thus more in conformity with the constitutional principle of legality.

The decision of Valga County Court, Valga City Council, the Legal Chancellor and the Riigikogu, that Valga City Council has not acted on the basis of law and has thus acted in conflict with the Constitution, is correct in formal sense but not in essence. Firstly, the legal ground and competence to restrict the freedom of movement is provided by the Constitution and the European Convention on Human Rights. Secondly, when attaching meaning to the concepts of rights and freedoms one should proceed from the European Human Rights Court treatment of the concept of law. Pursuant to the latter, the rights and freedoms may be restricted also on the basis of a legal act, which does not possess the formal characteristics of law, if such act has the general characteristics of a legal act. The disputed act of Valga City Council possesses these general characteristics.

The principle of legality, especially its formal meaning, is not the only constitutional principle, nor is it a primary one. Constitution has to be read coherently, as a whole. The protection of rights and freedoms is also a constitutional duty of courts. Courts should avoid, without a justified and pressing need, prejudicing the existent legal situation and protection of rights and freedoms. In order to guarantee certainty of law and proceeding from the need not to prejudice the existing legal regulation, I do not consider it right to declare the disputed act null and void from the promulgation of the decision. I consider it right to follow the view taken in a case concerning managing committees, and to give the legislator time to prepare and adopt necessary legislative amendments. That is why I consider it right to suspend the entering into force of the decision until 1 January 1998. This approach would be in conformity also with the method of resolving constitutional disputes used by the European Court of Justice, which was applied e.g. on 07.07.92 in a case no C-295/90, where on the basis of Article 174 (2) of the European Treaty, directive 90/366 EEC, dated 28 July 1990, was quashed. The legal force of the overruled directive was retained until the establishment of correct legal grounds.

Rait Maruste