Speech in international conference “The Role of National Human Rights Institutions in Developing of National Jurisprudence on Human Rights”, 23.-24.09.2010 Tbilisi
Ladies and gentlemen
In 2009, the Chancellor of Justice received 2729 petitions, on the basis which 2033 cases were opened. As compared to 2008, the number of petitions rose by 6.3%. As at 1 February 2010, 1882 proceedings had been completed, in 47 cases follow-up proceedings were pending and 104 cases were still being investigated. In 449 cases, substantive proceedings were conducted, and in 1584 cases no proceedings were initiated for various reasons. 82 cases were opened based on the Chancellor’s own initiative, and 49 inspection visits were conducted.
To review the constitutionality and legality of legislation of general application, 124 cases were opened, i.e. 6.1% of the total number of cases and 27.6% of the total number of substantive proceedings of cases. Of these, 117 were opened on the basis of petitions and 7 on own initiative.
231 proceedings were initiated for verification of legality of measures of the state, local authorities, other public-law legal persons or of a private person, body or institution performing a public function, i.e. 11.4% of the cases opened and 51.4% of the total number of substantive proceedings. Of these, 156 were based on petitions by individuals and 75 on own initiative.
I will not expound at length on the fact that the institution of the Chancellor of Justice of Estonia is unique by its nature and comprises many functions. (Somebody has asked me whether there are any tasks that I as the Chancellor of Justice do not fulfil.) Without describing all of those tasks, I would like to point out the two main ones: performing the functions of constitutional review, that is, the abstract control over the legislation of general application (Acts, regulations, etc.), and of the classic ombudsman.
Constitutional review derives from the Constitution of Estonia. The role of the ombudsman does not explicitly arise from the Constitution, but is provided at the level of law. It is my subjective opinion that the two major functions of the Chancellor of Justice (constitutional review and the duties of the ombudsman) can be perfectly combined with each other.
Unlike the proceedings of ombudsman that end up with "soft" outcome, constitutional review procedure has "hard" ending. Constitutional review provides the Chancellor of Justice with an output to the Supreme Court judicial panel of constitutional review, in case the institution that approved the legislation of general application does not accept the advice of the Chancellor of Justice to harmonise the legislation with the Constitution. So as not to be vague, I would like to describe a specific case where the Chancellor of Justice performed constitutional review.
There are 226 local governments in Estonia, and the Constitution guarantees a relatively broad independence for them, limiting it only with the requirement of adherence to the law. That is, a local government can approve legislation of general application, but it has no right of decision in the general national issues that can be decided by the parliament – by Riigikogu. For example, only the parliament can establish taxes and public encumbrances. Also, only the parliament can set limits to the fundamental rights of persons at the level of law.
In this particular case, a local government situated by the border – Narva City – essentially established a fee for crossing the state border, formally hiding it behind parking and the organisation of border queue. In essence, it constituted border-crossing for a fee (the external border of the European Union and Russia). Given that long border queues did actually exist, it was indeed necessary to organise the queues and the related parking in Narva and outside of the town. At the same time, no Act provided that a local government or a company could collect a compulsory fee for such organisation. There was no legal basis for such an activity and it violated several provisions of the Constitution of Estonia (e.g. the requirement that state authority be exercised pursuant to law only). Organising the crossing of border constitutes exercising state authority.
Legal disputes on how to organise the crossing of border by vehicles in Narva already started a decade ago. All three Chancellors of Justice appointed to office since the restoration of independence have been involved in them. The first relevant ruling of the Supreme Court dates from the year 2000. At that time, the Supreme Court declared invalid the regulations of Narva City Government that provided priority rights to some persons for entering the border point and a fee for using the transit area. In 2004, the Chancellor of Justice once again contested the regulations of Narva City that regulated unlawfully the issues of border regime and permitted the collection of a fee from those crossing the border. However, given that the issue of border queues needed a complete solution, the Chancellor of Justice summoned a round table that included the representatives of both the ministries and Narva City. Thereby the problem was successfully solved without a court judgment for then. Pursuant to the amendments of the State Borders Act that entered into force at that time, the Ministry of Internal Affairs and Narva City came to the agreement that the organisation of border queues would be funded from the state budget. However, the money that was allotted from the state budget to that purpose kept decreasing year by year. Last year, Narva City once again decided to start collecting a 200-kroon fee from the means of transport waiting for the crossing and a 300-kroon fee from the drivers of passenger cars who wanted to register for the border-crossing queue in advance. The Chancellor of Justice advised the local government to harmonise the legal instrument with the Constitution. Since the local government refused to do so, the Chancellor of Justice was justified in turning to the Supreme Court. Indeed, the Supreme Court declared the legal instruments cited by the Chancellor of Justice invalid, as they were in conflict with the Constitution.
By establishing the fees, Narva City violated a provision of the Constitution of Estonia, pursuant to which a local government can charge a fee from people for performing a task that has been given to it only if a relevant authorisation exists in the Act approved by the Riigikogu. This is a provision that the Supreme Court has explained and applied several times. The constitutional requirement in question has a very clear purpose – a person needs to be able to understand and foresee the occasions when he or she has to shell out for public authority operations. If there was no such requirement, the 226 local governments of Estonia could collect a fee at their discretion, for instance for entering the settlement or going to a city official’s consultation. The Chancellor of Justice cannot not react to a blatant violation of the Constitution such as the collection of a fee from those crossing the border in Narva. To put it simply, a local government is not a principality that can enforce laws. Laws are unequivocally adopted by the Estonian Parliament.
What adds some emotional spice to the matter is the fact that the border in question is the external border of the European Union, and in recent past, there have been slogans concerning the declaration of autonomy of Narva and the rest of the region. That meant that the question of not having the autonomy of the local government develop into something more had to be tackled once again. After the Supreme Court had repealed the unconstitutional legal instruments of Narva, the whole range of problems was covered emotionally by the media. The Chancellor of Justice and also the Supreme Court were accused of disregarding pragmatic and realistic solutions. The local government (as well as the Ministry of Internal Affairs) tolerated the fact that a sign had been posted in the border zone, stating that if anyone had a problem with the queue, they would need to turn to the Supreme Court and the Chancellor of Justice in person.
The establishment of fees by Narva City resulted from a financial issue, among other things. The money allotted from the state budget for the organisation of border queues kept decreasing. The solution of Narva City was pragmatic, but at the same time also disregardful of the legal order – those interested in crossing the border more quickly and conveniently were offered an advance registration service for 300 kroons. However, pragmatic solutions do not justify a direct and even emphatic disregard for the Constitution. Furthermore, the negative effects of the border-crossing queues could have been mitigated also in compliance with the Constitution. Border regime is an important national issue, and the matters related to the crossing of border are subject to regulation by the state. That means that if the task of organising the entry of vehicles to the border point is delegated to Narva City, the state still has to provide the funding for the task. If Narva City found the state funding to be insufficient, they should have used their right to demand the deficient amount from the state, through court even, if necessary.
I described the constitutional review case in question to illustrate the fact that the Chancellor of Justice has a broader range of resources for performing his or her functions than just the ombudsman. By combining the roles of the ombudsman and the Chancellor of Justice, a result more beneficial for the society can be achieved. In certain cases, some institutions (relatively few in Estonia, fortunately) do not respond to the advice of the Chancellor of Justice as the ombudsman. If such an activity is related to the approval of unconstitutional legislation of general application, the Chancellor of Justice has a means for calling the violator to order.
I am not in favour of granting the ombudsman or the Chancellor of Justice the authority of executive power – to sanction or to penalise. In that case the ombudsman would not be an ombudsman. The ombudsman is and has to be an advisor, and his or her advice is followed in accordance with good practice, because this advice is given from good will and at a high professional level (at least I hope so). The maximum that can be done in the case of the Chancellor of Justice model – the right to turn to the Supreme Court by way of constitutional review. I consider this solution to be optimal.
Thank you for your attention.