Rule of law
The Chancellor of Justice checks whether implementers of legislation – government agencies and local government bodies, courts, bailiffs, and others – respect the laws, including the principle of good administration, in their work.
Several of the Chancellor’s tasks and a large number of petitions relate to the activities of the judiciary. By virtue of office, the Chancellor serves on the Council for Administration of Courts which held two meetings in the second half of 2017 as well as two meetings in the first half of 2018.
The Supreme Court asks for the Chancellor’s opinion in constitutional review court proceedings. During the reporting year, the Chancellor had to prepare six such opinions. These dealt with issues of state legal aid to asylum applicants, absence of implementing legislation for the Registered Partnership Act, reduction of the salary of judges, procedural assistance in civil proceedings, electronic filing of annual reports and judge’s pension for incapacity for work.
The Chancellor supervises state agencies (investigative and security agencies) carrying out covert processing of personal data, so as to ensure that their activities are lawful and respect fundamental rights and freedoms.
The Government wanted to end long-standing disputes between the state and the Estonian Evangelical Lutheran Church and the Estonian Apostolic Orthodox Church with a financial agreement, taking the necessary money from the ownership reform reserve fund. To achieve this, the Government supplemented the regulation on using money in the reserve fund without having the necessary legal basis to do so, and issued two orders to allocate the money on that basis.
The procedure for return of and compensation for unlawfully expropriated property, including rules on the amount of compensation, have been precisely laid down by law. Movable property, including church property or pledge instruments, is not compensated and may not be compensated under the Republic of Estonia Principles of Ownership Reform Act. The Government decided to supplement clause 3 of the above regulation with sub-clause 20 so as to be able to issue orders for allocation of money to the churches from the ownership reform reserve fund to redress the injustice caused during the war and occupation by violation of the right of ownership. No law allows the Government to use money in the ownership reform reserve fund for such a purpose.
Money in the ownership reform reserve fund may only be used for specific purposes set out in § 7 subsections (1) and (11) of the Use of Privatisation Proceeds Act. The purpose for allocation of money mentioned in the regulation falls neither under the scope of § 7 subsection (1) nor of subsection (11) of the Use of Privatisation Proceeds Act. The course chosen by the Government would have deprived the Riigikogu of the statutory prerogative to decide on the purpose of using the money in the ownership reform reserve fund as well as using the balance of the fund once the initial objectives laid down by the Act are fulfilled.
The Chancellor drew the attention of the Government to the unconstitutional clause inserted in the regulation, promising to contest it in the Supreme Court if necessary. Then the Government tried to use a legislative drafting technique to divest the potential Supreme Court judgment of its effect by introducing one more clause – completely unsuitable for allocation of money – as a basis for its orders for allocating money, besides the already contested clause of the regulation. This was an attempt to leave the orders formally in force even if the Supreme Court were to annul the unconstitutional clause and thus affirm the unconstitutionality of allocating money to the churches from the ownership reform reserve fund. Neither the Chancellor nor anyone else would have been able to contest the order as being an administrative act of specific application. The Chancellor explained the essence of legal nihilism of this kind, as well as the fact that those members of the Government who sign allocation of the money to the churches would be accountable for those illegal allocations.
To comply with the Chancellor’s proposal, the Government initiated amendment of the Use of Privatisation Proceeds Act. The second reading of the Draft Act was discontinued on 6 June 2018. Despite amendment of the Act, the Government must annul the unlawful clause in its regulation. Subsequent amendment of the Act will not render that clause constitutional.
The Chancellor never assesses court judgments on the merits or intervenes in the work of the courts otherwise than by simply reacting, where necessary, to a judge’s actions amounting to failure to perform their duties of office or disreputable conduct. The Chancellor cannot assess whether a court’s decision is correct in substance, whether all the necessary facts were ascertained, how the evidence was assessed, etc. Only a higher court can assess issues concerning administration of justice in substance.
During the reporting period, the Chancellor had to check the work of courts on approximately twenty occasions. Most of these cases related to problems arising in criminal proceedings. Most complaints were received against the judges of Harju County Court. Based on the facts available to the Chancellor, she did not find any of the cases sufficiently justified to initiate disciplinary proceedings against a judge.
One petitioner contended that their father had been treated poorly because of their Roma origin. By listening to recordings of court hearings, it was found that the judge had behaved respectfully and impartially towards all participants in the proceedings.
Another petitioner expressed misgivings that a judge had not shown any interest in the case materials when adjudicating a criminal case, and had allegedly fallen asleep during the court hearing. Certainly, such circumstances are difficult to verify in retrospect but based on the case materials and recordings of court hearings no proof was found for the judge’s alleged dozing off.
The Chancellor also received a complaint that a judge had not presented their identity document, the diplomas certifying their education, or the authorisation for holding the hearing despite the petitioner’s request for the judge to do so. On that basis, the petitioner sought disciplinary proceedings to be initiated against the judge. The Chancellor explained that a judge’s powers arise from the law and the court need not prove them at a hearing. The fact that a defendant does not like a judge or their decisions is not sufficient to punish the judge.
The Chancellor received more petitions than previously concerning holding people in custody. These were mostly concerned with Harju County Court rulings by which a person was left in custody even after the pre-trial proceedings were over and the accused was committed for trial, although the judicial hearing was only scheduled to take place, for example, in half a year. The accused interpreted this mostly as acts of spite or attempts to pressure them to agree to a plea bargain. In those cases, the Chancellor verified whether the court had properly assessed the reasons for holding a person in custody. No criticism against the work of judges has been expressed so far, but a matter of concern is delay of proceedings due to the excessive workload of the courts. In the Chancellor’s opinion, criminal proceedings must take place without delay and within a reasonable time, especially if the accused is held in custody.
Constitutionality of judges’ salary reduction
The Supreme Court asked the Chancellor’s opinion as to whether the previous version of the Salaries of Higher State Public Servants Act was contrary to the Constitution in so far as it enabled reducing the salary of county and administrative court judges as compared to the previous year’s salary.
The Chancellor found that the contested rules were compatible with the Constitution. The judges’ salary and the system for calculating the salary is unconstitutional only if it endangers judicial independence. One of the safeguards of independence is a sufficiently large salary and the certainty of the salary system. Safeguards must not be reduced below a certain threshold, compelling judges to look for opportunities to earn additional income. Reducing judges’ monthly salary by 6 euros and 76 cents does not endanger judicial independence. While the issue was being adjudicated, the law was actually amended.
Constitutionality of limitation on procedural assistance
The Supreme Court asked the Chancellor’s opinion as to the constitutionality of a provision in the Code of Civil Procedure that allowed taking into account only the deductions allowed under the same provision for assessing a person’s financial situation when granting them procedural assistance. The Chancellor reached the opinion that deciding on the possibility to grant procedural assistance should take into account all the circumstances affecting an applicant’s financial situation. If a provision can be interpreted in a constitutionally-compliant manner, the provision is not unconstitutional.
The Constitution ensures the right for everyone to have recourse to the courts to protect their rights. This is so even when a person is unable to bear the legal expenses, e.g. pay the state fee. The idea of the system of procedural assistance is that everyone should be able to protect their rights in court without having to suffer economic hardship as a result.
The Chancellor of Justice exercises supervision over state agencies that organise interception of phone calls and conversations, surveillance of correspondence, and otherwise covertly collect, process and use personal data.
Due to the covert nature of surveillance, the wider public does not know much about it. Lack of knowledge gives rise to myths and unjustified speculation, for example about alleged large-scale and illegal surveillance. Insecurity and fear of unjustified surveillance causes problems not only for individuals but damages the democratic decision-making process as a whole. The Chancellor’s task is to carry out systematic checks as to whether covert measures are taken in conformity with applicable rules and in a manner respecting fundamental rights. It is extremely important that, based on the results of these checks, a clear message and sense of security is given to society that the activities of all agencies competent to carry out covert processing of personal data are lawful and conform to the aim sought by the particular measure.
During the reporting year, the Chancellor’s advisers checked how the Police and Border Guard Board and the Tax and Customs Board respected the fundamental rights of individuals when carrying out surveillance. Surveillance files were inspected that reflect surveillance measures taken with a view to detecting a criminal offence within criminal proceedings. Surveillance files were selected from among the files opened in 2016–2017 in which active proceedings had ended by the time of the inspection.
A surveillance measure is lawful and admissible only if the prosecutor’s office or the court has issued an authorisation meeting the statutory requirements, i.e. the requirements of form and reasoning.
Mostly, surveillance authorisations contained in the surveillance files in the agencies inspected contained proper reasoning. They demonstrated that surveillance was indeed necessary to verify suspicion of a criminal offence in particular cases. As regards comparison between files inspected this year and in previous years, it may be noted that the reasoning for surveillance authorisations has improved year by year. Special positive mention should be made of those surveillance authorisations issued by the prosecutor’s office in which reasoning was provided with regard to the necessity of a surveillance measure as well as the impact of the measure on the subject of surveillance and third persons connected to them. Preliminary investigation judges also generally observe the opinion repeatedly expressed in case-law in recent years that the reasoning of a court order authorising surveillance must include clear and understandable arguments by the court as regards, inter alia, the necessity of surveillance as a measure of last resort (the principle of ultima ratio).
However, in some cases no reasoning had been provided as to the necessity for a specific surveillance measure and the ultima ratio consideration. For example, questions arose in connection with a file in the frame of which the telephones of a person engaged in illegal fishing had been tapped. However, in surveillance files inspected in the East Prefecture, the Chancellor’s advisers discovered several court orders issued by a Viru County Court preliminary investigation judge containing standardised and declarative reasoning which was essentially identical to the reasoning used in previous authorisations. These authorisations lacked clear reasoning linked to specific circumstances and supporting the overriding need to use a surveillance measure. The Chancellor informed the chair of Viru County Court as well as the Chief Justice of the Supreme Court about the problem.
Covert surveillance of persons not identified in authorisation by the prosecutor’s office
All the surveillance measures inspected had been carried out in line with the purpose, and no measures were taken without authorisation by a prosecutor or preliminary investigation judge. Nevertheless, inspection of two surveillance files in the North Prefecture revealed that the conditions laid down in an authorisation for covert surveillance had not been scrupulously observed. Even though authorisation had been given only for covert surveillance of the suspect, other persons who had met with the criminal suspect were also subjected to surveillance. The Chancellor drew the attention of the North Prefecture to the need for surveillance measures to always comply with the specific surveillance authorisation and the scope specified in it.
A positive observation was made with regard to competent conduct by officers of the South Prefecture in ensuring the lawfulness of surveillance proceedings and respecting fundamental rights. For example, in one instance a surveillance officer refused to carry out a surveillance measure based on an authorisation lacking the necessary reasoning.
Notifying a surveillance measure
Under the Code of Criminal Procedure, a surveillance measure is notified to the persons with respect to whom the surveillance measure was carried out, as well as persons identified during the proceedings whose private or family life was significantly interfered with by the measure. Notification may be waived only in specific circumstances set out by law if permission by a prosecutor or the court to do so exists.
Timely notification ensures effective protection of the fundamental rights of persons caught in the sphere of influence of surveillance. Inter alia, this provides the right to contest the lawfulness of surveillance measures for suspects and the accused.
In previous years, the Chancellor’s advisers found numerous cases where no such notification was done or persons were notified too late. Now, things have improved in this regard as well. A major shortcoming was found in a surveillance file in the East Prefecture, where notification of eight persons (about surveillance measures carried out under eight surveillance authorisations) was unjustifiably delayed by more than a year. In the other instances, the delay was shorter, remaining mostly within three to six months.
Processing of personal data in the police information system
Upon inspection of the KAIRI subsystem of the police information system POLIS, the Chancellor’s advisers concluded that, through internal legislation, implementation of the system of support persons and regular log checks, the Police and Border Guard Board had introduced measures that ensure access to personal data (including covertly collected data) in KAIRI on a need-to-know basis, as well as the lawfulness of data processing. Random checks were aimed at monitoring, inter alia, whether access rights and access restrictions for users of KAIRI were operational. With a view to ensuring better protection of fundamental rights and effective supervision, the Chancellor nevertheless proposed that the legislation regulating the use of KAIRI should be revised so as to improve the traceability of surveillance measures.
Verifying suspicion of unjustified surveillance
Besides carrying out supervision over surveillance agencies, the Chancellor also resolves complaints concerning surveillance measures and, if necessary, verifies other publicly raised claims (e.g. in the media) about illegal surveillance.
For example, during the reporting year, the Chancellor had to verify suspicions against the activities of the Central Criminal Police based on a petition by an advocate’s law office. These concerned possible “massive” surveillance of a person since 2009, i.e. before criminal proceedings against the person were brought in 2016. Verification revealed no violation of the rights of the specific person.
The Chancellor also verified a suspicion raised by a public figure that illegal surveillance measures had been carried out during criminal proceedings in connection with their business. The suspicion turned out to be unfounded.
The principle of good administration means, inter alia, that state and local government officials communicate with people politely and to the point. State and local authorities must also organise their work so that no one is left uninformed or in an uncertain or simply confusing situation as a result of action or inaction by the state.
A state agency must operate smoothly, swiftly and reasonably, and avoid causing any inconvenience for individuals. Among other things, they should help people understand their duties and accurately present their requests to the authorities. The activities of state and local government should not mislead people or raise false expectations. If no assistance can be offered to an individual, the authorities must say so. The principles of good administration are set out in the Administrative Procedure Act.
Reasonable length of proceedings
An owner of land is not treated in line with the principles of good administration if the state is unable to establish a species protection site around the nesting tree of a flying squirrel within a reasonable time. If establishing a habitat for the flying squirrel is delayed for years, the state thereby violates the owner’s right to use their land.
The Police and Border Guard Board (PBGB) delayed with examining a person’s application for a residence permit and issuing a residence permit card. In the absence of a valid residence permit card, an alien is unable, for example, to use e-services or travel. As a rule, when extending a temporary residence permit the PBGB tries to ensure that an applicant is not left without an identity document. This time the reason given for the delay was amendment of the Aliens Act which, in turn, led to the need to change the PBGB databases. However, development of the databases was also delayed and thus the rights of the individual who was left without a document were violated.
Making additional demands burdening individuals
Public servants are often criticised for passivity and for failing to resolve people’s concerns sufficiently quickly. However, problems are sometimes caused by the excessive eagerness of officials in the shape of gold-plating statutory minimum rules with new requirements burdensome for individuals.
For example, the Environmental Board requested animal keepers to provide detailed information on building manure stacks even though no such obligation is laid down by law. Such self-initiative on the part of state agencies does not contribute to fulfilling legal requirements. This is burdensome on persons submitting information as well as on officials who have to analyse it. Guidelines drawn up by an agency should also not restrict the legal norm that is being implemented or change the substance of the norm. The Chancellor found that guidelines drawn up by the Agricultural Registers and Information Board, which a farmer asked to check, restricted the scope of the ministerial regulation being implemented. The technical interpretation presented in the guidelines did not coincide with the instructions given in the regulation or the policy established by the European Commission, and ultimately reduced agricultural support.
The Police and Border Guard Board imposed a requirement as from June 2017 that individuals should book a time slot in a service bureau to file their application for a residence permit. The requirement was justified by the need to better plan the workload of officials. The Chancellor found that such a requirement to book a time for filing applications was not lawful and was not in line with the principle of good administration. The Chancellor proposed that service bureaus should also accept applications when an applicant has not booked a time slot but is willing to wait in a queue on the spot. Accepting and processing applications for a temporary residence permit or to extend it belongs among the tasks of the PBGB. Therefore, service bureaus must also be prepared to accept those applications on general terms. The PBGB did not agree with the Chancellor’s proposal.
The investigative principle
The principle of good administration and the investigative principle laid down by the Administrative Procedure Act require that an agency should ascertain all the facts necessary to form an opinion.
There are still cases where a person tries to scrupulously follow the instructions given by an official but later finds themselves in a difficult situation exactly because of having followed the instructions. A company wanted to renew a waste recovery permit to continue its previous activity (combustion of wood waste in a boiler plant) and began to deal with all the necessary procedures well in advance of expiry of the existing permit. Substantive processing of the application lasted for several months but was abruptly discontinued because the person had forgotten to pay the state fee.
Paying the state fee is a precondition for examining an application and this must be checked before examination of the application begins. This saves the time of the relevant agency as well as of the applicant, who may by mistake have failed to pay the fee before filing the application. After return of the initial application, the applicant paid the state fee and filed the same application again. However, the second application was not registered in line with legal requirements so that processing was not continued from where it had previously discontinued due to breach of the principle of good administration. The Environmental Board also called into question the recovery operation code which the applicant had provided by following the recommendation given by the Environmental Board itself.
Justification and hearing
The Administrative Procedure Act requires that reasoning must be provided for a discretionary decision and the participants in proceedings must be heard.
Pärnu City Government made procedural mistakes in connection with building a cycle and pedestrian track connecting Pärnu city centre and the Lotte Village theme park outside the city. The city government did not justify the choice of location of the track and did not involve persons concerned in the proceedings. The Chancellor recommended that the city government should modify its procedures in future.
Exhaustive and timely reply to enquiries
Administrative authorities must reply to memorandums and requests for explanation promptly but not later than within 30 calendar days as of their registration. Depending on the complexity of the reply, the deadline for replying may be extended up to two months. In line with the principle of good administration, a person should be informed of extension of the deadline and the reasons for it at the first opportunity but definitely within the initial 30 calendar days.
An administrative authority must resolve an extra-judicial administrative challenge within ten days. This deadline may be extended by 30 days by informing the person filing the challenge.
If an administrative authority is not competent to resolve an application, an explanation should be given to the applicant as to who is competent to deal with the issue. The initial recipient of an application may itself transmit the application to the right authority while also informing the applicant.
The Chancellor had to intervene in a bureaucratic ‘merry-go-round’ when an applicant wanted to contest a decision in an art competition organised by the State Real Estate Company (RKAS). Under the law, the decision should have been contested with the authority that made it, i.e. the RKAS. The applicant was not aware of the law and initially sent the challenge to the public procurement dispute committee, then the Ministry of Culture, and only as a “Cc” copy to RKAS to take note of.
The public procurement dispute committee returned the challenge because the Ministry of Culture is competent to carry out supervision over art tenders. The Ministry also refused to review the challenge because it did not find a basis to initiate supervision, and noted that in this case the challenge should have been lodged with RKAS as the body that took the relevant administrative measure. RKAS, in turn, replied to the applicant that the challenge could not be examined since it had been filed with the Ministry of Culture for resolution and RKAS had only received a copy of the challenge sent to the Ministry.
The Chancellor found that the public procurement dispute committee, the Ministry of Culture as well as RKAS had all acted contrary to the principle of good administration. Several state agencies wasted a lot of working time in drawing up a reply that was completely useless for the applicant. Moreover, deadlines for filing a challenge and for having recourse to an administrative court had also passed by then. The Chancellor made a proposal to revise the „Guidelines for implementing the Commissioning of Artworks Act“ drawn up by the Ministry of Culture.
The Chancellor had to reprimand the Põhja-Sakala Rural Municipal Government which had failed to reply to a local resident’s questions concerning the school and kindergarten.
The Chancellor explained to Maardu Town Government that a person who wishes to file a complaint seeking annulment of a decision issued in expedited procedure by an extra-judicial body conducting proceedings – i.e. the town government – should be promptly informed (but not later than within five working days from registration of the request) of the possibility of recourse to the court. If the town government replies to the person’s request only after 30 days, the time limit for appeal has passed.
Inspection revealed that Kohtla-Järve City Government had also not always complied with the statutory time limit when replying to memorandums and requests for explanation.
The Chancellor was asked whether a decision by the Ministry of Social Affairs to forego preparing an impact assessment for the planned pharmacy reform renders the reform unconstitutional. An impact assessment is required by the principles of good law-making set out in the Government Regulation on „Rules for good law-making and legislative drafting“, the Board of the Riigikogu decision on „Legislative drafting rules for draft legislation in the Riigikogu“ and the Riigikogu decision „Legal policy development guidelines to 2018”.
Although breach of good law-making principles, the fundamental principles of legal policy and legislative drafting rules are worthy of reproach, this does not render the rules automatically unconstitutional.
In enforcement proceedings bailiffs enforce obligations under public law as well as claims under private law. Enforcement proceedings play an important role in a state governed by rule of law, helping to ensure the rights of creditors and debtors. In this regard, with a view to finding and maintaining a balance, choices must be made which may seem unfair to both sides.
Both creditors and debtors turn to the Chancellor of Justice Act for assistance. Someone is in a difficult financial situation and quickly needs compensation ‒ for health damage inflicted on them ‒ from a person who avoids payment. Some debtors also find themselves in a situation where nothing can be taken from them to cover their debts. An effective enforcement procedure must protect the rights of people, which includes ensuring that the persons concerned and their dependants have the minimum funds needed in order to subsist.
It is clear that partial attachment of income or eviction from a dwelling leads to deterioration of the standard of living, often accompanied by immediate economic difficulties. On the other side of the scales lie the interests of creditors. In the case of claims under public law, failure to comply with a decision imposing a fine means that a person is trying to avoid a sanction imposed for an act of which society disapproves.
In enforcement proceedings, the debtor must be aware of their rights, options and duties. Problems often arise when a debtor fails to make timely use of the possibilities relevant for their financial situation. It is often found that bailiffs apply the law differently. However, the fate of a person in a difficult situation should not depend on the personality of the bailiff dealing with their case. Therefore, the Ministry of Justice is planning to introduce changes in the enforcement system,
Attachment of income
Under the Code of Enforcement Procedure in force to 8 January 2018, a debtor’s income could not be attached if it did not exceed the minimum wage (in 2018, the minimum monthly wage is 500 euros).
To better protect the interests of creditors, on 9 January 2018 an amendment to § 132(12) to the Code of Enforcement Procedure entered into force, making it possible also to attach a debtor’s small income. Thus, 20% of income could be attached but so that the income would not fall below the subsistence level (140 euros in 2018). That amendment further reduced the ability of persons with a small income (e.g. pensioners or recipients of work ability allowance) to cope. The provision in question gave bailiffs discretion in determining the portion of income to be attached. A bailiff had to weigh the interests of debtor and creditor and also take into account that the debtor should still be able to lead a decent life after attachment of income. In actuality, bailiffs usually attached the debtor’s income to the maximum possible extent, failing to consider the amount of the debtor’s income and their needs. According to the Chancellor’s assessment, even though the main objective of enforcement proceedings ‒ to protect a claimant’s legitimate interests ‒ is lawful, this may place a debtor in a situation which is not compatible with the principle of human dignity under § 10 of the Constitution.
To remedy the situation that had arisen, the Riigikogu swiftly amended the law. On 10 June 2018, an amendment to § 132(12) of the Code of Enforcement Procedure entered into force, aimed at ensuring that persons under enforcement proceedings would be better able to cope. According to the amendment, up to 20% of income a month may be attached. Income is not attached if it is below the estimated subsistence minimum published by Statistics Estonia (in 2017, this was 207.23 euros a month).
The Riigikogu has decided that different types of income (thus also having a different purpose) are protected differently in enforcement proceedings. For example, work ability allowance may be attached in enforcement proceedings, while unemployment allowance may not. This is compatible with the Constitution. The Constitution relies on the premise that an adult person is primarily personally responsible for their livelihood. Work ability allowance constitutes income supplementing or replacing the work-related income of someone with partial capacity for work and it may be attached (just like, for example, a pension). A person with partial capacity for work is partially themselves able to earn their livelihood. Thus, allowing attachment of their remuneration as well as the work ability allowance paid to them is justified. The law does not allow attaching unemployment allowance (Code of Enforcement Procedure § 131(1) clause 5). Unemployment allowance constitutes assistance in the event of destitution as receiving this allowance depends on the size of a person’s income (Labour Market Services and Benefits Act § 26(1)). Similarly, a claim may not be enforced against social benefits (e.g. subsistence benefit).
Enforcement proceedings under a court decision on a parent’s right of access to a child
In March 2015, the Chancellor of Justice sent a memorandum to the Minister of Justice and the Minister of Social Protection, noting that the procedure for a parent’s right of access to a child laid down under the Code of Enforcement Procedure was contrary to the Constitution and the Convention on the Rights of the Child. Under the law, a bailiff could not decline to enforce measures even if these were against the best interests and will of the child, presuming that the child was capable of such an expression of will and if it was assessed by a person with specialist knowledge. The law gives priority to the interests of a parent seeking access over the interests of the child, thereby depriving the child of the right to express a substantive opinion. The Code also allows use of coercion against a child in certain cases. All this is contrary to the child’s fundamental right to inviolability of private life.
In May 2018, the Chancellor reminded the Ministers that the problem was still unresolved. Instead of use of coercion and other steps ignoring the will of a child, the focus should be more on counselling parents. Efforts should also be made with a view to achieving pre-judicial settlements. The planned amendment should determine whether and how in future to apply provisional legal protection in enforcement proceedings, i.e. how to ensure protection of the rights and interests of all parties, first and foremost those of the child, at a time when no court decision yet exists. It is also necessary to analyse whether some other agency would be better equipped to enforce rulings on access arrangements and more professionally protect the interests of children than is currently the case with bailiffs, who have not received the relevant training.
Until no new solution exists, the current practice of enforcing rulings on access arrangements should be improved.
In a system of e-government, citizens, businesses and the state communicate with each other to a large extent by means of communication technology, and information is filed, stored and transmitted primarily via electronic channels. National information systems must significantly facilitate dealings between state and local government bodies as well as between people. However, sometimes the rigidity of information systems and out-datedness or inadequate functionality of applications restrict the rights of individuals.
Among other things, the Chancellor tries to ensure that life in Estonia and communication with the state would also be possible without the internet; that people’s rights and fundamental freedoms would be protected even without a computer or network access.
Parent’s right of access to a child’s personal data
A parent whose right of custody is restricted by a court cannot view the personal data of their child recorded in the population register in the eesti.ee portal. The Chancellor received a letter from a parent who, under court order, had to pick up and take the child under their care from a kindergarten or the place where the child is permanently residing. However, the parent had no possibility to view the child’s residence data because the technical solution in the population register either completely allows or completely denies access to those data. The technical solution fails to take into account the rights of a parent arising from a court ruling, under which a parent may also be granted partial access to their child’s data.
The Ministry of the Interior, which is responsible for the population register, has prepared a Draft Act amending the Population Register Act and promised to organise information technology-related development work.
The obligation of non-profit associations to electronically file annual reports
The Supreme Court asked the Chancellor’s opinion as to the constitutionality of the requirement under which non-profit associations must file their annual reports with the non-profit associations and foundations register electronically via the website https://ettevotjaportaal.rik.ee/. In the event of failure to comply with the requirement, a non-profit association may be struck from the register without the right to be reinstated.
In the instant case, the complainant had submitted documents to the court by post. Since according to the register data no annual reports had been filed, the non-profit association was struck from the register. A situation arose where the state actually had (even though with delay) the information required by law, but this was not taken into account when adjudicating the appeal against the court order on striking from the register, because the data were not in the register.
In the Chancellor’s opinion, the state cannot claim that the necessary report is absent if it actually has the information from the report, even though submitted, for example, as an e-mail attachment or in paper format. If a non-profit association is struck from the register and its activities are terminated for this reason, the consequence is disproportionately severe for the association and interferes with its constitutionally guaranteed rights.
The Chancellor also investigated the proportionality of the restriction concerning electronic filing or reports and filing through the e-reporting environment in 2011 and 2017. Then the Chancellor concluded that the obligation to file reports electronically is compatible with § 48 and § 11 of the Constitution only if flexible opportunities to prepare the report electronically are available and the person filing the report can obtain effective guidance and assistance.
As an alternative to electronic reporting, a report may also be filed through a notary. The obligation to file reports is, first and foremost, in the public interest, not in the interest of the non-profit association itself. Thus, it may be unfair to leave the costs of reporting for non-profit associations to bear. Non-profit associations must spend their money on attaining the objectives set out under their statutes. Therefore, forced use of a notary service cannot remain the only legal alternative to filing reports electronically.
By the time of completion of the Chancellor’s annual report, the Supreme Court had not yet delivered its judgment in this case.
Estonian e-State Charter
The National Audit Office and the Chancellor of Justice published a jointly drafted new version of the Estonian e-State Charter, in which every user of public services in Estonia can look up what rights they have when communicating with administrative agencies in a system of e-government, and check whether those rights have been observed.
Based on the Charter, each agency can also revise its own operations and set clear and easily measurable objectives for introducing more people-centred administration. The Charter also lists the criteria based on which everyone can assess whether their rights were reckoned with while providing public services in the system of e-government.
Additionally, the principles set out in the Charter help to ensure the simplicity and logicality of electronic administration. The principles and criteria contained in the E-government Charter are also applicable outside electronic channels of communication.