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Indrek Teder, ettekanne rahvusvahelisel konverentsil „Independence and Integrity of Ombud Institutions“ Novi Sad’is

Indrek Tederi ettekanne rahvusvahelisel konverentsil „Independence and Integrity of Ombud Institutions“ Novi Sad’is (6.11.2008).

 

The unique model of the Chancellor of Justice in Estonia

Introduction

This presentation will provide an overview of the essence, history, functions and activities of the institution of the Estonian Chancellor of Justice (ombudsman). I would also like to share with you some of my thoughts and suggestions considering our (Estonian) experience.

The institution of the Chancellor of Justice was already established in the Estonian Constitution that entered into force in 1938. The impact of the fathers of all ombudsmen -  Sweden and Finland was recognizable. According to the regulation back then the Chancellor of Justice was a higher level official with the rights of a Minister under the Office of the President of the Republic. His task was to assure the legality of the activities of state and consult the President if needed.

The first Chancellor of Justice of Estonia was Anton Palvadre whose term remained unfortunately very short as the very institution was eliminated when the Soviet Union occupied Estonia in the summer of 1940. The Chancellor of Justice Anton Palvadre himself was sentenced to death and died in a death camp in 1942. During the Soviet occupation the position of the Chancellor of Justice by the Estonian Government in exile was maintained by Ricard Övel and Artur Mägi.

The institution of the Chancellor of Justice was recreated on the basis of continuity in the Estonian Constitution that entered into force in 1992. In 1993 Eerik-Juhan Truuväli was appointed as the Chancellor of Justice. He was followed by Allar Jõks in 2001. Since 2008 the Chancellor of Justice of Estonia is Indrek Teder.

The position and functions of the Chancellor of Justice

The Chancellor of Justice is appointed by the Riigikogu (Estonian Parliament) on the proposal of the President of the Republic for a term of seven years. In the light of diverse tasks of the Chancellor of Justice, an interesting question is, what is the Chancellor of Justice’s position in the traditional three-pillar separation of powers. The institution of the Chancellor of Justice in Estonia is not part of the legislative, executive or judicial powers. It is also not a political or a law enforcement body. Hence, the Chancellor of Justice is a constitutional body outside traditional principle of the separation of powers.

According to the Constitution the Chancellor of Justice is a sole and independent institution that naturally combines the function of the guardian of constitutionality and the rights of a petition body worldwide known as ombudsman. If I tried to describe my activities in human, not too legalistic, language, then I would use the words of Serbian Nobel-prize winner Ivo Andric: "From everything that man erects and builds in his urge for living nothing is in my eyes better and more valuable than bridges. They are more important than houses, more sacred than shrines. Belonging to everyone and being equal to everyone, useful, always built with a sense, on the spot where most human needs are crossing, they are more durable than other buildings and they do not serve for anything secret or bad.". And my work as well is to build bridges between state and people in order to secure the existance of good and fruitful communication. In order to build smoothly running and efficient democratic society there has to be cooperation between people and state which I time to time have to mediate."

The Chancellor of Justice is an official who is independent in his activities and who reviews the legislation of general application of the state’s legislative and executive powers and of local governments to verify its conformity with the Constitution and the laws.

The issue concerning financing political parties in Estonia as an example would be the case where the Chancellor of Justice performed his function of the guardian of constitutionality. Namely, the Chancellor of Justice found the Political Parties Act to be in contrary with the Constitution. The Political Party Act in Estonia does not constitute a precise supervisory body that would have an extensive, content based, continuous and politically independent expert control over the sources and amount of the financial support received by political parties. The Chancellor of Justice stated that such lack of a supervisory body does not comply with the fundamental right of political parties and violates the requirement for the equal treatment of political parties.

Since 1999 the Chancellor of Justice is fulfilling the function of the ombudsman monitoring whether public power, e.g state agencies, local governments, legal persons in public law and private persons performing public functions comply with people’s fundamental rights and freedoms and with the principles of good governance.

I will bring you a brief and good example about bad governance. An applicant requested information from one local government in Estonia, but never received a response. It turned out that notwithstanding the rainy summer weather in Estonia, this local government decided to go on a collective vacation leaving only one assistant to be responsible for all in- and outcoming issues. Hence, during the collective vacation, the local government failed to fulfill its tasks entrusted to it by the Constitution and the laws. The Chancellor of Justice found that such activity is not compatible with the principles of good administration and recommended to the local government to avoid such activities in the future.

These two functions of the Chancellor of Justice may contradict. On the one hand, as ombudsman, the Chancellor of Justice needs support from the Riigikogu (Estonian Parliament). On the other hand, as guardian of constitutionality, the Chancellor of Justice may, needless to say, confront interests of political parties in parliament. In order to perform these two functions effectively, it is very important for the Chancellor to have a balancer instinct. The Chancellor of Justice cooperates equally and applies same rules for everyone as he is focused on legal issues and keeps distance from political speculations.

Since 2007, according to the article 3 of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment the Chancellor of Justice is the national preventive mechanism. Some of you may be rather skeptical about the Chancellor's OPCAT function. I must confess that even in 2007 during my inspections to different institutions I had to witness such living conditions, but also attitudes of some officials that have still a long way to go before we can state them as satisfactory.

Additionally, the Chancellor of Justice has a distinctive function in the field of criminal law.  This function is different from the status of the public prosecutor or to the status of courts. Notably, the Chancellor of Justice has the right to propose to the Riigikogu to bring criminal charges against some higher state officials, e.g a member of the Riigikogu, the President of the Republic, a member of the Government of the Republic, the Chief Justice of the Supreme Court, or a justice of the Supreme Court. In addition, the Chancellor of Justice enjoys the right to propose to the President of the European Parliament to bring charges against the Estonian member of the European Parliament in order to deprive the MP of having the privileged immunity.

In those proceedings the Chancellor of Justice has the right to supervise the legality of a proceeding but does not enjoy the right to evaluate the evidence. However the practice shows that it is almost impossible to analyze the legality of a criminal proceedings without studying collected evidences.

In addition to the function of an ombudsman and exercising supervision over the constitutionality of legislation, the Chancellor of Justice also performs other functions that have been entrusted to him by law. The most important of these are the submission of his opinion to the Supreme Court in constitutional review proceedings, the initiation of disciplinary proceedings against judges, promoting of equality and equal treatment, responding to inquiries submitted by the Members of the Riigikogu, participation in the meetings of the Government of the Republic and of the Riigikogu, and committees of the Riigikogu, with the right to speak at the meetings.

In the case of discrimination disputes between private individuals the Chancellor of Justice has the right to carry out conciliation proceedings.

If necessary, the Chancellor of Justice can make a proposal to the General Assembly of the Riigikogu to declare the President of the Republic incapable of performing his or her duties for an extended period. The Chancellor of Justice monitors the conformity between domestic law and international agreements.

Thus, the set of tasks arising from the Constitution and other laws is highly extensive for the Estonian Chancellor of Justice and you may be wondering is there anything that the Chancellor does not do.

The activities of the Chancellor of Justice

In order to fulfill his extensive tasks the Chancellor of Justice has professional and skilled advisors. The Office of the Chancellor of Justice is divided into four: it comprises of three field-specific departments and one general department. The departments cover all the necessary fields of national and local government issues. At the same time it is important to emphasize that the institution of the Chancellor of Justice is directly and fully individual based. The Chancellor of Justice and only him makes the final decisions and holds the responsibility.

The approach and the way of work is always content-based and excessive formality is being avoided. The proceedings of the Chancellor of Justice are purposeful and enjoy the freedom of choice of the form. Additionally, the Chancellor of Justice also proceeds from an investigative principle. The main procedural actions available to the Chancellor of Justice are requests for information and taking of explanations and statements, but also regular and ad hoc inspections. Just few weeks ago I had my advisors making an ad hoc inspection to one of the police departments in Tallinn. No one really expected such a visit as it was Saturday and 7:00 in the morning. If necessary, the Chancellor can also use other types of procedural measures, including requests for expert opinions.

The outcome of one or another proceeding depends on the type of procedure carried out by the Chancellor. If the Chancellor of Justice finds that a piece of legislation is in conflict with the Constitution or a law, he may propose to the body that passed the legislation to bring the legislation into conformity with the Constitution or the law, allowing a deadline of twenty days for this. If the legislation is not brought into conformity, the Chancellor has the right to make a request to the Constitutional Review Chamber of the Supreme Court, to declare the legislation invalid. During last few years the Chancellor of Justice has used this right about a couple of times a year.

The Chancellor of Justice has the right to make presentations in order to draw the attention of legislative power to the weaknesses of laws.

The Chancellor of Justice’s ombudsman proceedings end with the statement of the Chancellor in which he expresses his opinion on whether the activities of the body subjected to supervision were legal and compatible with the principles of good administration. The Chancellor of Justice can criticize, make recommendations and express his opinion in other ways, as well as make a proposal to eliminate the violation, change the administrative practice or interpretation of a norm, or to amend the norm itself. The Chancellor of Justice notifies the applicant and the relevant body in writing of his opinion. Although the recommendations of the Chancellor are not legally binding, the proposals made in the Chancellor’s memorandum are almost always complied with. The Chancellor of Justice’s opinion is final and it cannot be contested in court.

General outline of statistics of proceedings

As to the statistics, in 2007 the Chancellor of Justice received 2266 petitions. On the basis of communications received by and information submitted to the Chancellor, 1740 cases were opened. Compared to year 2006, the number of petitions increased slightly, yet basically remained in the same range as in 2004 and 2005.

In 2007, the Chancellor of Justice found in 26 cases the legislation to be in conflict with the Constitution and the laws. The Chancellor of Justice expressed criticism with the aim to eliminate violations or improve administrative practice in 81 instances.

Most issues brought to the attention of the Chancellor of Justice were concerned with social welfare and social law, as well as criminal enforcement procedure and prison law. There were continuously many complaints about the ownership reform issues, as well as issues of medical and health care law and education law.

There are about 400 institutions in Estonia that the Chancellor of Justice must monitor. The number of inspection visits in 2007 increased significally. Performing OPCAT functions the Chancellor of Justice made four times more visits than in 2006, i.e 18 inspections.

The number of persons who came to the reception of the Chancellor of Justice (343) dropped as compared to the previous years (751 in 2005, 467 in 2006). In most cases, individuals used the meetings to request legal advice and a clarification of the law. Some of the questions also gave rise to subsequent investigations, while others remained, for various reasons, beyond the limits of the Chancellor’s jurisdiction (e.g., disputes between private persons that cannot be solved in conciliation proceedings). Where necessary, the Chancellor’s advisor assisted the individual in drawing up a written petition.

Summary

To sum up my presentation, I would like to share with you some of my thoughts and suggestions considering our (Estonian) experience.

The status, activities and goals of the Chancellor of Justice are provided by the Constitution and the laws and are familiar to the people of the society.

  1. It is clear, that the Chancellor of Justice does not have any kind of executive power but it has the power of independent opinion.
  2. The opinions of the Chancellor of Justice are recognized and respected only when the public see that the Chancellor of Justice is not running a political campaign nor "selling a product", but stands up for the Constitution and for the protection of fundamental rights.
  3. The goals and aspirations of the Chancellor of Justice should be clear and noble.
  4. It is very important for the Chancellor to cooperate with every state body and every political party applying the same rules for everyone.
  5. In order to be successful the Chancellor of Justice should not make mistakes. Every statement presented by the Chancellor of Justice should be thorough and well-founded. For that, a very good prior analysis and highly professional personnel are needed.
  6. The relationship between the Chancellor of Justice and the media should be open, operative and constructive. The Chancellor of Justice should not make indecisive statements without well-founded and clear opinion on the topic.

Conclusion

All in all, what does the unique model of the Chancellor of Justice of Estonia actually mean?

Firstly, the uniqueness of the Chancellor of Justice is characterized by the function of the general body of petition and the guardian of constitutionality that are combined in one body which is not subjected to any other state institution. Such uniqueness raises questions from the systematic point of view and with regard to the extent of competencies of this body, because there is no direct example or counterpart to our Chancellor of Justice’s institution anywhere.

We have very positive experience from the combination of the general body of petition and the guardian of constitutionality. It helps to avoid disputes regarding competences, because in the ombudsman proceedings very often the questions about the legality of legislation appear.

At last and very simply answered, in Estonia we use less money and less people than those countries who use the plurality of ombudsmen, but we still achieve great - if not even better- results in the protection of fundamental rights.