THE RULE OF LAW
Under the rule of law, we understand a system where people are governed by laws (not by other people), where laws are observed and where all the people regardless of their social status and economic situation are equal before the law. A state governed by the rule of law has a judicial system which is independent of the executive. Rights can be circumscribed and freedoms restricted only in cases and under procedures laid down by law.
In a state governed by the rule of law, representatives passing decisions on our behalf come into elected office on equal grounds and fairly. The activities of key actors in a representative democracy, i.e. political parties, as well as their financing, must also be subject to control during the period between elections.
According to the interpretation of the Venice Commission, which advises Council of Europe Member States in the field of constitutional law, the rule of law comprises six core elements:
- legality, including a transparent, accountable and democratic process for enacting law;
- legal certainty;
- prohibition of arbitrariness;
- access to justice before independent and impartial courts, including judicial review of administrative acts;
- respect for human rights;
- non-discrimination and equality before the law.
The Chancellor of Justice checks whether implementers of legislation – government agencies and local government bodies, courts, bailiffs, and others – respect the laws and the principles of good administrative practice in their work.
The principles of good administrative practice mean, inter alia, that state and local government officials communicate with people politely and to the point. The 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.
This year, the Chancellor had to assess several shortcomings in the Political Parties Act that the Political Parties Financing Surveillance Committee has had to deal with in its work.
One of the shortcomings in the Act concerns sanctions laid down for political parties for accepting a prohibited donation, which in the Chancellor’s assessment are not clear, implementable or effective. This is contrary to the principle of legal clarity. The Chancellor contacted the Minister of Justice with a request to initiate amendment of the Political Parties Act.
Consequences of accepting a prohibited donation
The Political Parties Financing Surveillance Committee (PPFSC) asked the Chancellor whether default interest applicable (at the daily rate of 0.85% of the overdue amount) for delay in transferring a prohibited donation to the state budget was compatible with the Constitution.
The Chancellor found that this rate of default interest was not unconstitutional. In order to prevent political corruption and ensure fair and democratic competition, it is particularly important that the financing of political parties should be transparent and the rules intended for ensuring this be respected. Consequences of violations should be sufficiently harsh as to make political parties resist the temptation of a prohibited donation. Measures applicable to a violation may only be established and changed by the Riigikogu.
When analysing the issue of default interest, the Chancellor found that the sanctions laid down under the Political Parties Act for making a prohibited donation cannot be unequivocally understood and cannot be effectively implemented. Compliance with the rules has, to a large extent, been left to the conscience of political parties. On that basis, the Chancellor sent a memorandum to the Ministry of Justice recommending that precepts issued by the PPFSC for return ‒ or transfer to the state budget ‒ of a prohibited donation should be compulsorily enforceable. The Chancellor also recommended harmonisation of coercive measures, including considering transfer of a prohibited donation to the state budget instead of returning it; specifying the conditions and procedure for reducing a state budget allocation in the event of violation of the rules, and expanding the rights of the PPFSC to request information from third persons.
The Minister of Justice found that the initiative for resolving these problems should come from the Riigikogu.
Restrictions on office and activities of members of the PPFSC
The Political Parties Financing Surveillance Committee asked for the Chancellor’s opinion as to restrictions on office and activities by members of the Committee.
The Chancellor found that the Political Parties Act does not prohibit appointing a person connected with a political party, including a member of the board or of the audit committee of a political party, to be a member of the PPFSC. Persons otherwise connected with a political party, for example an attorney providing services to a political party, may also serve as members of the PPFSC. In the interests of independence of the Committee, such restrictions should be considered, but the decision can be made by the Riigikogu.
Since elections in 2019 took place for the Riigikogu as well as for the European Parliament, many election-related issues were raised.
Compatibility of electronic voting with constitutional principles
The Chancellor was asked to check whether the Estonian electronic voting system meets the requirements for democratic voting.
The Estonian Constitution stipulates that elections must be free, uniform, general, direct, and secret (§ 60). These principles must also be respected in the case of electronic voting. For this, electronic voting must comply with the following conditions: a voter’s identity and eligibility to vote is established, each voter has one vote, a voter is able to vote freely, secrecy of the vote is ensured, the vote cast is counted, and the results of voting and elections are correctly established. In brief: the system must ensure an honest result and, in the interests of credibility, monitoring and verifying it must be possible.
The Chancellor explained that the system of electronic voting in Estonia complies with the constitutional principles set for elections. Individual verifiability of a vote is not an end in itself. This is also not possible when voting by paper ballot. In order to reduce the risk of selling votes, Estonia uses a system of combined control in electronic voting.
Certainly, the technical solution (including verifiability) for electronic voting needs continuous critical assessment and development. Also important are maximum transparency and clear explanation of the system for the public.
Secrecy of voting
Several people asked the Chancellor whether secrecy of voting is indeed ensured in Estonia. The Chancellor explained that the procedure for electronic voting (§ 484 Riigikogu Election Act) meets the principle of secrecy of elections (§ 60(1) Constitution). Secrecy of voting is intended to ensure freedom of election. On the one hand, secrecy of voting means anonymity of the vote and, on the other hand, privacy of voting. In the case of electronic voting, the anonymity of a vote is ensured through encryption of the e-vote. To ensure privacy of voting, a so-called virtual polling booth has been created, meaning that a voter may also change their vote when voting electronically.
One individual contacted the Chancellor doubting whether it was lawful that during advance voting outside the polling division of the voter’s residence a person is given two envelopes, one of which has the voter’s personal identification code written on it. The Chancellor affirmed that a voter’s identity is not linked to their choice through that envelope. The outer envelopes with the personal identification code and the inner envelopes with the ballot paper are not opened at the same time. Noting a voter’s data on the outer envelope is necessary because that way the polling division committee of the voter’s residence can verify that the voter has not voted several times.
Entering voters on the list
During the last election, confusion arose from the new Population Register Act. This resulted in a situation where some people could not vote due to absence of their residence data. That is, at the beginning of 2019 earlier residence data changed at the request of the owner of a dwelling and recorded in the register to a level of accuracy stating the city, city district or rural municipality or settlement unit became invalid. As voter lists are drawn up on the basis of the population register data, people who had not renewed their data were excluded from the list of voters.
The Chancellor explained that during an election a person’s residence can be registered through a simplified procedure; based on a notice of residence submitted during the election a person’s address is entered in the population register immediately, and if necessary also to the level of accuracy of a city, city district or rural municipality. After that the person is also entered on the list of voters.
Prohibition on outdoor advertising and active campaigning
This time, the prohibition on political outdoor advertising during the active campaign stage caused confusion because of the very close temporal proximity of elections for the Riigikogu and for the European Parliament. The Chancellor was asked to assess the opinion of the Police and Border Guard Board according to which outdoor advertising of the European Parliament election was also banned during the Riigikogu election.
The Chancellor found that the opinion was not contrary to the law. Those running in the Riigikogu election cannot circumvent the prohibition on outdoor advertising that way. If an advertisement presents an independent candidate, a political party or a person standing as a candidate on a political party list running in the Riigikogu election, or their logo or distinctive mark and programme, this cannot be substantively distinguished from advertising in the Riigikogu election. Therefore, it should be regarded as advertising for the Riigikogu election even if the advertising has an additional purpose.
Since the restriction on outdoor political advertising does not fulfil aims set beforehand and restricts the rights of candidates to introduce themselves, the Chancellor repeated the proposal to abolish the restriction in her written report to the Riigikogu. The Chancellor also asked the Riigikogu to abolish the prohibition on active campaigning on election day (except in or close to polling divisions), as this no longer corresponds to the current situation. Ever more people use the opportunity to vote before election day and it is also very difficult if not impossible to control dissemination of advertising in social media on election day.
By the time of drawing up the annual report, the Government had approved the proposals prepared by the Ministry of Justice to abolish the restriction on outdoor political advertising and the prohibition on campaigning on election day.
Covering the election campaign on Estonian Public Broadcasting
Prior to the 2019 Riigikogu election, the Richness of Life Party contested a provision in the arrangement established by the Board of the Estonian Public Broadcasting (ERR), on the basis of which the ERR gives preference for participation in election debates on its main channel (i.e. ETV) to political parties submitting a full list, i.e. including 125 candidates.
The Richness of Life Party claimed in its complaint that since the election legislation in force in Estonia does not recognise the concept of a “full list” the ERR has also no right to distinguish between political parties based on such a parameter or discriminate against any of the political parties.
The Chancellor replied to the Richness of Life Party that the ERR has the right and under the Estonian Public Broadcasting Act also the obligation to establish rules for covering election campaigns on its channels. In doing so, all political parties and independent candidates should be ensured an opportunity to present their views on ERR channels before the election. The ERR also has the obligation to ensure the journalistic content and wide audience appeal of campaign programmes (including debates). Thus, in the specific case, the ERR violated neither the Constitution nor the law.
However, the Chancellor conceded that the ERR should be consistent and predictable in its rules on covering campaigns and should not change the rules. By establishing the requirement of a “full list” for participation in some election debates, the ERR indirectly directs political parties to expand their lists. Since a deposit is payable for every candidate, which, in the event of failure to exceed the election threshold is non-refundable to political parties (or to independent candidates), this entails a considerable financial risk for political parties not represented in the Riigikogu (and not receiving support from the state budget) as well as smaller political parties.
Deposit paid by political parties at the Riigikogu election
The Chancellor recommended that the Riigikogu should consider whether the requirement of a deposit imposed on political parties participating in the Riigikogu election is justified.
Establishing the requirement of a deposit was motivated by the wish to avoid fragmenting the political landscape while seeing strong, stable and economically well-off political parties as participants in the political process. It was also considered important that votes are not dispersed between the candidates of too many political parties in elections and that an excessive proportion of votes not remain below the election threshold. The election threshold functions effectively as a measure to avoid fragmentation of the Riigikogu and the consequent risk of internal political instability. However, a uniform amount of deposit is financially more burdensome on new and smaller political parties which, inter alia, do not receive support from the state budget. This results in an unequal situation before elections and may therefore diminish the desire of smaller and new political parties to run in elections.
Reform of electoral districts
The Chancellor also drew attention in her report to the difference in the number of mandates distributed in electoral districts and recommended that the Riigikogu should consider changing electoral districts so as to equalise their size based on the number of voters. The Riigikogu could also consider the possibility to rephrase § 6 of the Riigikogu Election Act and, as of the 2023 Riigikogu election, assign the duty of forming electoral districts to an independent institution, such as the National Electoral Committee. Such a decision would curb the effect of current politics and political party preferences on the organisation of elections and would facilitate implementing changes.
The Chancellor explained to a petitioner that the Constitution does not preclude holding a referendum. The Constitution directs putting issues of national importance to a referendum and not extensive draft legislation itself.
The decision of the people is compulsory for all state bodies to comply with. For example, it is reasonable to ask whether dual citizenship should be allowed but not to put to a referendum a Draft Act amending the Citizenship Act.
A Riigikogu that has held a referendum on an issue of national importance need not dissolve either in the case of an affirmative or a negative answer. Thus, without fear of dissolution, the Riigikogu may ascertain the will of the people, a decision that is binding. That decision can be changed only by a new referendum. If the Riigikogu were to put to a referendum a Draft Act (and not an individual issue or issues), then in the event of a negative answer an extraordinary election of the Riigikogu should be announced.
The Riigikogu may hold a referendum on all issues within its competence, and which are not prohibited from being put to a referendum, and for which no specific constitutional procedure has been laid down.
National Electoral Committee
The National Electoral Committee monitors that elections in Estonia observe the principles of free, general, uniform and direct elections, as well as secrecy of voting. The electoral committee verifies the activities of the national election service organising elections, adopts regulations, procedures and guidelines necessary for organising elections, and resolves election complaints. The National Electoral Committee also confirms national election results and registers candidates for the Riigikogu and European Parliament elections.
According to the law, the Chancellor of Justice appoints her representative to the seven-member committee. Since June 2016, the Chancellor has been represented on the National Electoral Committee by the Deputy Chancellor of Justice-Adviser, Olari Koppel.
In 2019, elections for the Riigikogu and the European Parliament took place in Estonia. The electoral committee held 22 meetings. The committee resolved 30 complaints in connection with the Riigikogu election and 9 complaints in connection with the European Parliament election. Almost all persons and organisations who had filed a complaint used the right of appeal to the Supreme Court. With one exception, the Supreme Court upheld all the decisions of the National Electoral Committee.
Based on complaints submitted to the National Electoral Committee as well as proposals sent directly to the Chancellor of Justice, in spring 2019 the Chancellor drew up a written report to the Riigikogu and an application to the Minister of Justice. The Chancellor proposed amending or clarifying the substance of the laws underlying the elections, as well as the Political Parties Act.
Supervision over financing of political parties
Under the Political Parties Act, the Chancellor of Justice appoints one member to the Political Parties Financing Surveillance Committee (PPFSC). The Chancellor appointed Kaarel Tarand, who has also acted as deputy committee chairman for several years. The committee and its members are independent and have no obligation to account for their activities to the institutions or persons who appointed them. The work of the committee is public.
During the reporting year, the committee mostly focused on events related to municipal council elections that took place in October 2017. In cooperation with the National Audit Office, the committee carried out a comprehensive audit, investigating whether election campaigning in the information bulletins of local authorities should be deemed a prohibited donation. Although court cases in this area have already occurred in connection with violation of the Political Parties Act prior to and during the 2013 election, the check carried out in 2017 showed that necessary conclusions had not been drawn from previous mistakes and precepts. During the election campaign in 2017, too, political parties and candidates gained advantages over their competitors by exploiting their office and position of power. Several precepts issued by the PPFSC have by now been contested in court.
In 2019, the PPFSC has again been analysing the political balance in information channels financed from the budget of local authorities. The review period this time covers the time prior to the Riigikogu and European Parliament elections. The results of the check will not be ready before late autumn.
Despite repeated calls and applications, the XIII composition of the Riigikogu until the end of its mandate in March 2019 managed to avoid amending and supplementing the Political Parties Act, on which the work of the PPFSC is based, so as to eliminate obstacles encountered in the work of the committee. The law needs to be changed to maintain transparency of the Estonian political system at least at its current level.
Apart from this, it is necessary to be prepared for new risks arising from the development of technology and the practice of using it in political competition elsewhere in the world. If Estonia fails to deal with new threats and mitigate new risks, then already in the next few years we may find ourselves in the situation where Estonian political parties and the whole political system may be financed and influenced, for example, by foreign countries or multinational technology companies who know more about Estonian political parties and voters than we do ourselves.
The election campaigns in 2018−2019 and the expenditure incurred to organise them pointed to problems in the financing model of the Estonian political system. Income that political parties receive from legal sources (state budget, donations and membership fees) has remained stable over the years while the expenses of political parties have grown. Therefore, after elections political parties are burdened with the highest levels of debt they have ever had. It is questionable whether some political parties will be able to pay their bills at all. Financial problems increase the risk of political corruption and reduce transparency of political party funding. The actual financial situation of political parties, their income and expenditure are no longer reflected in their public reports, but instead in the accounting of partner companies providing them services, although these are not subject to supervision by society.
In February 2019, the PPFSC had to issue the biggest precept so far in its existence, to the Centre Party to the monetary value of some one million euros. Sums claimed from just one political party on the basis of precepts and court judgments amount to two million euros. This has seriously damaged the credibility of the whole political system in the eyes of citizens. Credibility can be restored by increasing the transparency of the financing system and strengthening the legal basis of supervision.
In April 2019, the Chancellor of Justice resolved an application by the Prosecutor General’s Office to lift the immunity of Kalev Kallo, a member of the Riigikogu. Under § 76 of the Constitution, members of the Riigikogu are immune from prosecution, and criminal charges against a member may be brought or judicial proceedings against them continued only on a proposal of the Chancellor of Justice and with the consent of a majority of the members of the Riigikogu. That provision of the Constitution protects members of the Riigikogu, for example, from political persecution and court cases brought for political motives.
The Chancellor thoroughly examined the materials of the criminal file and the surveillance file opened within its frame, and decided to make a proposal to the Riigikogu to deprive Kalev Kallo of his parliamentary immunity. The Chancellor ascertained that the whole investigation so far had been lawful and no grounds existed to suspect that charges against Kallo could have been impelled by an inappropriate (e.g. political) motive.
The Riigikogu agreed with the Chancellor’s proposal and on 14 May 2019 consented to lift the immunity of Kalev Kallo and for continuation of the judicial proceedings relating to him.
The Chancellor of Justice has the duty to check whether implementers of legislation – government agencies and local government bodies, courts, bailiffs, and others – respect the laws, including the principles of good administrative practice, in their work.
The principles of good administrative practice mean, 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 may not mislead people or raise false expectations in them. If no assistance can be offered to an individual, the authorities must say so. The principles of good administrative practice are set out in the Administrative Procedure Act.
By resolution adopted on 20 February 2019 under the title „Underlying principles of state reform and good administrative practice“, the Riigikogu affirmed that the functioning of public administration must be person-centred and effective, involving a minimal administrative burden. That is, people’s problems should be resolved as quickly as possible and people should not be burdened with excessive bureaucracy.
Replies to petitions
Often people are dissatisfied with how state and local government bodies resolve their problems. This has meant that the Chancellor had to reprimand the Ministry of Justice and the Ministry of Social Affairs, which had failed to reply to several memorandums and requests for explanation by the deadline.
Põhja-Sakala Rural Municipal Government failed to register a request for an explanation and sought to justify its refusal to reply on the basis that the request lacked a digital signature. However, no legal act stipulates that only documents signed digitally or manually are to be registered. In this case, the rural municipal government was requested to provide information on the draft development plan drawn up by the municipal government, so that no legal basis existed to demand a signature.
Kadrina, Lääne-Harju, Rae and Tori rural municipalities and Tartu City disregarded several memorandums and requests for information submitted by residents. Toila Rural Municipal Government failed to meet the deadline to examine an administrative challenge filed by an individual. The law stipulates that memorandums and requests for explanation must be replied to promptly but no later than 30 calendar days as of registration. In complicated cases, the deadline for reply may be extended to two months. An extra-judicial administrative challenge must be resolved within ten days. If it needs a more thorough investigation, the deadline for examining a challenge may be extended by up to 30 days. In line with the principles of good administrative practice, an individual must be informed at the first opportunity about a delay in replying or extension of the deadline for reply and reasons for it.
Again under the principles of good administrative practice, a reply should be comprehensive, informative and reasoned, and should contain all the relevant substantive information. The Chancellor reprimanded the Government of Kohtla-Järve Town for having failed to justify in its reply why an individual’s opinions and proposals had not been taken into account.
One petitioner contacting the Chancellor was dissatisfied with the activities of the Government of Narva-Jõesuu Town about ascertaining the location of their grandfather’s grave plot. The town resident discovered years after the burial organised by the town that maybe their grandfather was not buried on the plot known to them.
The Chancellor found that the Government of Narva-Jõesuu Town had failed to fulfil its duties with sufficient care. Even prior to entry into force of the Cemeteries Act on 1 January 2012, local authorities had to document a person’s burial spot so as to be clear where it is located. When replying to an emotionally important question, the authorities must demonstrate empathy. Proceeding from the investigative principle, town government must ascertain all the essential facts. Good administrative practice also includes willingness to help and kindness, i.e. citizen-friendliness in its broadest sense. By limiting its response to merely forwarding a letter issued by the foundation managing the cemetery, which moreover did not contain replies to the person’s questions, the town government failed to comply with these principles.
The state increasingly requires exclusively electronic administration. If no alternatives exist, it is particularly important to ensure the operational reliability and user-friendliness of information systems as well as assistance in the case of problems. The Chancellor has received letters about problems with information exchange between information systems (see also the chapter “Protection of privacy”) as well as glitches in using information systems.
In the European Union, Estonia stands at the forefront in terms of electronic public procurement in all tender procedures. Approximately 10 000 public tenders a year are organised in Estonia with a total value of 2.3 billion euros. In 2018, an amendment to the Public Procurement Act entered into force establishing the requirement that all information exchange in relation to a public tender between the contracting entity and the economic operator (including submission of tenders) must take place electronically, unless otherwise laid down by law. The amendment was based on a presumption that the electronic public procurement register is sufficiently functional, user-friendly and convenient.
The Chancellor was contacted by an architect's office which had failed to submit a tender because due to a technical glitch they did not manage to send their competition project to the public procurement register. When trying to upload their work to the public procurement register, the architect’s office encountered a technical malfunction related to a temporal restriction on performing operations. The restriction resulted in a situation that if the file could not be uploaded within 60 seconds the operation was discontinued. Unfortunately, this meant that users of a slower internet connection could not submit their tender.
The Chancellor analysed the incident and ascertained that the public procurement register could indeed not accept files forwarded through a slow data communication channel. Regrettably, this information did not reach the tenderer, so that the architect's office did not succeed in submitting a competition project completed as a result of several months of work. Since the automatic error message did not contain a possible reason for the upload failure and the help desk did not explain this as a possible problem, the principles of good administrative practice were violated. The manager of the public procurement register must ensure that a tenderer is informed of all technical requirements, including those related to submission of documents, and in the event of a technical failure would also receive information about the reasons for failure and possibilities to rectify it.
In proceedings for a permit for use of a building, a local authority may not request documents which have no relevance for the case. In accordance with the regulation so far in force in Tallinn, in order to obtain a permit for use of a building, it was always required to submit a waste certificate to prove proper handling of construction waste. That requirement increased the administrative burden and prolonged the time needed for processing a permit for use. A waste certificate was also required when no waste could have been generated (for example, when changing the designated use) or when construction had been completed a long time ago and it was not possible to prove retroactively how waste had been handled. The Chancellor found that issuing a permit for use necessarily involves assessing that the building complies with requirements, but this does not include compliance of construction or handling of construction waste. The city has to verify the handling of construction waste but other, more suitable, measures should be found for this. Tallinn took the Chancellor’s memorandum into account and amended the regulation.
The procedure for declaring a missing person dead is laid down by the General Part of the Civil Code Act. That decision presumes that no information about a person being alive or dead has been found within five years. An application to declare a person dead must be submitted by an interested person, such as an heir.
This year, the Chancellor was contacted by a person who had been officially declared dead by a court decision at the beginning of the 2000s. Now the person sought to have the decision reversed. As the relevant proceedings should be arranged by the court, the Chancellor recommended that the person should have recourse to Harju County Court. The court must ascertain the essential facts, collect evidence if necessary, and on that basis either identify or not identify the person. If the court ascertains that a person once declared dead is actually alive then the declaration of death is reversed. The court is in charge of the whole proceedings.
To the Chancellor’s surprise, Harju County Court referred the person to a law office providing legal assistance on favourable terms to Estonian residents in cooperation with the Ministry of Justice, in order to “properly formulate the application”. However, on formal grounds the court rejected a defective application drawn up by the law office, without giving instructions for further steps. After continued intervention by the Chancellor, the person eventually managed to reverse the decision on declaration of their death.
This incident is a telling example of how a person inexperienced in dealings with the authorities is forced to run back and forth between several institutions and in the end might still receive no help. The principles of good administrative practice stipulate that government agencies must ascertain a person’s real concern and wishes and then resolve the problem.
By virtue of office, the Chancellor serves on the Council for Administration of Courts, which held five meetings in the second half of 2018 (two meetings were held electronically) and two meetings in the first half of 2019. Under the Courts Act, alongside chairmen of the courts and the Supreme Court en banc, the Chancellor of Justice is the only institution outside the court system that may initiate disciplinary proceedings in respect of a judge. The final decision in a disciplinary case is made by the disciplinary chamber operating under the Supreme Court.
When considering initiation of disciplinary proceedings, the Chancellor does not assume the role of a judge, i.e. the Chancellor does not assess a court decision on the merits. However, if necessary, the Chancellor can react to a judge’s actions when a judge has failed to fulfil their official duties or has behaved disreputably. Despite this, people mostly seek the Chancellor’s assistance concerning substantive administration of justice. Usually, people are dissatisfied with a court judgment or contend that the court has failed to ascertain all the facts essential for a case. In such cases, the Chancellor does not initiate proceedings.
During the reporting period, the Chancellor had to deal with a couple of dozen petitions complaining against a judge’s activity. No disciplinary proceedings were initiated by the Chancellor. Several petitioners suspected a judge of partiality, finding that the judge had unjustifiably given preference to the arguments of one party during the proceedings. However, when examining the case materials the Chancellor had no misgivings concerning the impartiality of these judges. Certainly, it is also emotionally difficult for parties to a dispute to bear court proceedings, for example in divorce cases and child custody cases.
The Chancellor also received a complaint concerning a delay in judicial proceedings on the right to custody of a child. Having heard explanations from the judge, the Chancellor saw no reason to initiate disciplinary proceedings. Judicial disputes concerning children must assuredly be resolved swiftly while also observing the provision of the Child Protection Act under which the best interests of the child must be a primary consideration in all child-related matters.
With regard to criminal proceedings, most complaints concerned keeping a person in custody and additional restrictions imposed on people in custody. The Chancellor does not intervene in substantive procedural decisions passed by judges.
In one case, the Chancellor received a complaint about inhuman conditions for holding a court hearing. Initiation of disciplinary proceedings against the judge was sought by an accused for whom, due to their health problems, it was difficult to stay in one position and who had to lie down every now and again. Allegedly, the judge had been condescending about the person’s health concerns. However, examination of the case materials did not confirm that opinion. Audio recording of the court hearing disclosed, inter alia, the judge’s explanation that if the defendant were to inform the court about their health problems, more suitable conditions for them could be created.
Information collected under the Security Agencies Act as evidence in criminal proceedings
Section 63(11) of the Code of Criminal Procedure lays down that submission of information collected under the Security Agencies Act as evidence in criminal proceedings is decided by the Prosecutor General. The Chancellor verified how this type of evidence had been used in practice during the last four years (i.e. during the term of office of the current Prosecutor General).
The Prosecutor General was found to have submitted information collected under the Security Agencies Act as evidence in a criminal matter only in isolated cases (on five occasions as at January 2019) and only when the Prosecutor General found that the criminal offence in question really undermined the foundations of democracy and/or directly endangered national security. Contrary to suspicions raised in public, the Prosecutor General has always ensured the existence of authorisations for collecting information. The Chancellor ascertained that the practice implemented by the Prosecutor General to date and the relevant procedure ensure that information collected under the Security Agencies Act is indeed submitted as evidence in criminal proceedings only in exceptional cases and based on a well-considered decision.
Supervision of surveillance
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. As a rule, that part of the Chancellor’s work involves information classified as a state secret or for internal use only, so that detailed summaries of the inspection visits and recommendations are only accessible to the inspected agencies themselves and those competent to carry out constant and complete supervision. (See also the chapter “Supervision of surveillance”.)
The Chancellor also resolves complaints against surveillance measures and, if necessary, verifies, for instance, claims disseminated in the media about unlawful surveillance.
For example, when resolving a petition by an individual, it was found that the prosecutor’s office had failed to comply with the requirements of § 12613 of the Code of Criminal Procedure when notifying the person of surveillance measures. Consequently, the person could not access the materials collected on them in time and could not file a complaint against them. The Chancellor sent a memorandum to the Prosecutor General about this.
Due to incomplete notices sent by the security agencies, people could not exactly understand why and to what extent surveillance measures affecting them had been carried out. The notice did not indicate whether they themselves or another person communicating with them had been under surveillance. One petitioner, after having examined the surveillance information, could not understand whether their activity had also been recorded or filmed in the course of surveillance.
The Chancellor reminded the surveillance agencies that informing people about surveillance measures affecting them always requires clearly distinguishing the target of the measure – whether they are the person under surveillance or a so-called third party whose privacy was interfered with by the surveillance measure. Inter alia, this gives the person an opportunity to decide whether and how to protect their rights.
Undoubtedly, the state must create conditions to combat money-laundering, but in doing so we cannot forget the principle of the rule of law and protection of fundamental rights. During the reporting year, a Draft Act was submitted to the Riigikogu for discussion, seeking to introduce so-called administrative confiscation into the Estonian legal order and to impose an obligation on persons to prove the source of their assets. If a person does not wish to do so or is unable to convince the state of the origin of their assets, the state would have had the opportunity to seize those assets. The Chancellor drew attention to problems of principle arising from the Draft Act. The Draft Act subsequently disappeared from the Riigikogu proceedings.
- The Chancellor made a proposal to the Riigikogu to bring the Code of Misdemeanour Procedure into line with the Constitution as it fails sufficiently to protect the rights of persons having suffered damage as a result of a misdemeanour. The Code of Misdemeanour Procedure lacks rules to enable a person suffering damage as a result of a misdemeanour to access information collected in misdemeanour proceedings. A person suffering damage as a result of a misdemeanour is not a participant in misdemeanour proceedings. Compensation of damage caused through a misdemeanour can be sought in court through civil procedure. However, evidence of damage incurred and the amount of damage must be submitted to the court. Unfortunately, a person suffering damage as a result of a misdemeanour has no access to materials on the misdemeanour file containing the data needed to protect their rights. Where misdemeanour proceedings were initiated to investigate the circumstances in which damage was incurred and, in the course of those proceedings, the state has already collected evidence, then no good reason exists why the person who suffered damage may not access the evidence and use it when filing their claim for damages. The Riigikogu supported the Chancellor’s proposal and tasked the Legal Affairs Committee with initiating a Draft Act amending the Code of Misdemeanour Procedure.
- The Chancellor analysed a restriction in the Traffic Act prohibiting issue of a provisional driving licence to someone convicted of a traffic offence laid down in Chapter 23 of the Penal Code. The Chancellor found that even though this restricts the freedom of movement of an individual and, in certain cases, also the right to freely choose one’s area of activity, profession and place of work, the regulation is compatible with the Constitution. The established restriction also protects the life, health and property of others. The restriction is not for life; its term depends directly on a person’s own law-abiding conduct: payment of a fine, performance of community service, and above all on how the person refrains from further violations.
- The Chancellor analysed the constitutionality of a provision in the Code of Criminal Procedure under which a victim has the right of appeal in cassation only as regards a civil claim. The Chancellor found that the provision is not unconstitutional since a victim has no subjective right to demand from the state that a person having harmed their legal rights be convicted and punished, and the Constitution allows circumscribing the right of appeal by law in justified cases.
- The Chancellor analysed whether, under the Compensation for Damage Caused in Offence Proceedings Act, a victim is entitled to compensation from the state when the statute of limitation for a criminal offence has expired. The Chancellor found that, under the current law, a victim may file an application for compensation of damage if a criminal offence expires because of wrongful conduct by the body conducting the proceedings. Under § 7 of the Compensation for Damage Caused in Offence Proceedings Act, anyone to whom damage was caused in the course of offence proceedings may seek damages from the state.
- The Constitution does not provide an unequivocal answer to the question how far the state should protect a person from themselves. An E-cigarette may indeed be a safer alternative to smoking but this is an area in need of more research. In that case, the Riigikogu may establish restrictive measures. The process of preparing the Draft Tobacco Act was at times faulty but the mistakes and omissions were not so fundamental as to consider the restrictions established to be unconstitutional.
- The Supreme Court asked the Chancellor’s opinion on a provision in the Weapons Act under which the weapons permit of someone who violates the requirements for handling a weapon and ammunition is revoked. In the Chancellor’s opinion, the provisions are constitutional considering that the restriction is temporary, firearms and ammunition are sources of serious danger and the holder of a weapons permit must comply with all the requirements applicable to a weapon and ammunition. A single bullet is sufficient to kill or cause serious damage to health. The Supreme Court reached the same conclusion in its judgment.
- The Chancellor was asked to analyse whether a confidentiality clause in a compromise agreement was compatible with the Constitution. In a dispute with Tartu University Hospital over a medical treatment error, the parties agreed that the hospital would pay compensation and the patient, in turn, would not disclose information to third parties about the dispute and the agreement. The Chancellor did not see in this any incompatibility with the Constitution as the person had voluntarily waived protection of their fundamental rights (the right of recourse to the court and the right to claim compensation). Also, no coercion could be seen regarding the agreement, as the compromise had been entered into to resolve the dispute more quickly. However, a compromise agreement does not and cannot prevent state supervision over the quality of healthcare. Nor does the duty of confidentiality, whether arising from law or as an element of an agreement, prevent hospitals from sharing with the media information about the number of claims filed and compromises concluded or amounts paid as compensation.