Chancellor’s year in review

Dear Reader

During this reporting year, i.e. from 1 September 2020 to 31 August 2021, the Chancellor received 5018 different petitions, requests and letters. The year before, their number was about a thousand less, i.e. 4026. Of the 5000 and more messages received this year, 3045 required a substantive solution (2473 a year earlier).

Over six years, the volume of the Chancellor’s work, i.e. the number of cases resolved, has grown as much as twofold, along with similar growth in the number of petitions. At the same time, the number of staff in the Chancellor’s Office has remained almost as big, or rather, as small, since in terms of staffing and budget we are still one of the smallest state agencies and have the smallest budget among independent constitutional institutions.

If at all within our capacity, we try to help fellow citizens who have expressed their concerns to us, by exploiting the shortest possible lawful avenue to do so. We leave readers of this annual report to decide whether and to what extent we succeeded.

The advantage of the Chancellor’s Office consists of independent, effective and creative action in all areas of work entrusted to us. We can focus on a solution which is fair and reasonable in substance – finding a solution and not merely processing a matter. Many thanks to members of the Riigikogu and the Government as well as state and local government officials who have shared the same principle. Preventing and resolving needless conflicts, helping people and making Estonia better overall can succeed only through cooperation between different branches of government.

Even during the most difficult crisis, constitutional institutions, including the Chancellor of Justice, must proceed from the Constitution and the laws. Public opinion and political will cannot be ignored in a democratic country but one must remain faithful to one’s oath of office. This, by the way, holds true for everyone. And it is particularly important during a crisis because it is then that “simple” ideas tend to come hastily to one’s mind, and it is then that people themselves tend to call for a heavy hand and violation of fundamental rights. The core principles of the Constitution come precisely in this order: freedom, justice, and only then legal norms. Always, even during a pandemic, restrictions and removal of liberties must be justified, and not vice versa.

Jurisprudence is not and may not involve mere formal study of norms. When assessing the constitutionality of restrictions on fundamental rights – including during a pandemic – first of all the facts and essential circumstances must be ascertained, the results of research in different areas studied, and experts from other fields involved. That way, assessment of constitutionality is the result of logical interdisciplinary argumentation.

Corona restrictions have been established by a general order, which looks like a law but can only be contested as an individual precept – only each person themselves may have recourse to the administrative court. The Chancellor would be ready to contest problematic rules in the Supreme Court, which would be swift and free of charge for people. In the interests of fairness, I emphasise that in most cases the Government itself has resolved many problems even in the process of work at the request of the Chancellor.

After all, no one means any harm, and if a mistake is found it can mostly be smoothly rectified. Let the court resolve differences of opinion if necessary. The same could be the case with corona restrictions. However, people themselves do not wish to enter into long and costly judicial disputes, so they ask the Chancellor to go to the court instead. Perhaps it would be useful for Estonia to follow the example of countries where the orders and prohibitions necessary for combating the pandemic are established by a parliamentary Act. This would ensure both public debate and effective constitutional review.

During the reporting year, the issue of separation of the Riigikogu from management of the state often had to be dealt with as well. The state budget is incomprehensible to the parliament nor can the parliament amend it meaningfully. The budget is so general that, according to colleagues from the National Audit Office, it is actually impossible to violate. This proves that the role of the representative assembly in directing national issues has been relegated to almost complete insignificance. Yet the Constitution stipulates that the state budget must contain all the state’s most important items of expenditure and revenue.

Systemic mistakes and shortcomings caused by probable oversight can also be found in laws dealing with collection and use of people’s data. In particular, with respect to sensitive databases, which in the event of abuse could even turn out to be dangerous, the laws only contain, figuratively speaking, a frame into which any picture can be inserted without much effort and hidden from public view. Only an insignificant part is written into the law while the significant details are fixed elsewhere. This should not be so.

According to the Constitution, all issues important in terms of people’s rights, freedoms and duties must be decided by the Riigikogu, and the format of those decisions is a law. It is the representative assembly that must determine what data are to be collected on people, where, how, and for how long the data are kept, what they are used for, and how security as well as effective internal and external control is guaranteed. Substantive restrictions on entrepreneurship have also silently slipped from laws into governmental regulations and other acts. Many complaints are raised and the procedure for protecting rights is often unclear to the public.

Estonia’s governance must be through the Riigikogu, says the Constitution. The Chancellor’s experience affirms that there is no reason to consider the role of members of the Riigikogu – be they from the coalition or from the opposition – as merely following instructions or giving decisions their required form. It is not seldom that in the course of debates errors have been found and corrected and drafts submitted by the Government rejected. Different life experience among the 101 members of the Riigikogu should actually help to identify the best solutions to advance Estonia, and most voters should also notice representation of their interests and views in parliamentary debates. Issues of justice compete in elections and finally the Riigikogu decides.

We view every complaint first of all from the angle of constitutional review: whether the origin of a person’s concern was an unconstitutional norm. This year we found most of such norms in local authority regulations.

If a norm is constitutional, the fault may lie in the work of an official or, put more elaborately, in the implementing practice of a norm. However, the hope that careful proceedings in a matter would provide the best result regrettably tends to be rather widespread. Life is much more diverse than any creator of norms can ever imagine, so that room should be left for discretion in applying norms. I have actually often observed that a frontline official fails to familiarise themselves with real-life circumstances, does not try to resolve a person’s concern but simply somehow do something. In part, this is also due to long-term management errors as well as excessive workload.

This problem, which has unfortunately become increasingly painful over the years, could be resolved by acknowledging so-called frontline workers in terms of wages, trust, as well as attention and the accompanying responsibility. For this, we need professional state agencies: boards and inspectorates.

People’s well-being depends on frontline officials perhaps even more than on ministries. Hospitals should not be optimised to the extreme so that a nurse is forced to run between several places of work, worn out through overwork. Diseases and accidents may happen and we must be prepared for this. The same holds true for the police, rescue workers and many other vital occupations.

With my colleagues in the Chancellor’s Office, I try to offer reasonable and feasible solutions, to alleviate tensions in society and reduce conflicts. We need to inject, in each other and – as much as we can – in the whole population as well, the confidence that in Estonia actually everyone is equally cared for, equally precious, even when something has gone wrong in someone’s life or luck has left them.

To keep informed of the daily work of the Chancellor’s Office, you can access the Chancellor of Justice website. I also post Facebook summaries of selected debates I personally consider important and interesting.

The Office of the Chancellor of Justice is located in Tallinn, at 8 Kohtu Street, in Toompea. You may email us at [email protected] or write to us at our postal address Kohtu 8, 15193 Tallinn. You may call us at (+372) 693 8404.

Ülle Madise

Chancellor of Justice of the Republic of Estonia

Chancellor of Justice as the National Human Rights Institution

Accreditation: granting A-status, i.e. the highest level

Under the Act supplementing the Chancellor of Justice Act passed on 13 June 2018, the Riigikogu imposed new duties on the Chancellor: as of 1 January 2019 the institution of the Chancellor of Justice is simultaneously the National Human Rights Institution (NHRI).

Every national human rights institution may seek official international accreditation status, which gives the institution additional rights within the UN human rights protection system and links it more strongly to other human rights institutions and international organisations. In charge of the accreditation process is the Global Alliance of National Human Rights Institutions, more specifically its Sub-Committee on Accreditation.

In January 2019, the Chancellor submitted to the Sub-Committee on Accreditation an official request to start the accreditation process. In October 2019, the process moved swiftly forward and the Chancellor sent all the necessary documentation to the Sub-Committee on Accreditation. The documents contained a detailed overview of the Chancellor’s work (examples of protecting and promoting human rights) and mandate, as well as explanations as to how the Chancellor’s institution meets the Paris Principles laid down by UN General Assembly resolution.

The last step of accreditation, i.e. an interview with the SCA, was to have taken place in March 2020. Due to the Covid-19 pandemic, this was postponed and took place online in December 2020. The Chancellor sent to the Sub-Committee on Accreditation a summary of the activities having taken place in the meanwhile and an overview of the effect of the Covid-19 pandemic on protecting and promoting human rights in Estonia. In the interview, the Sub-Committee asked questions about the functioning (budget, election of the Chancellor, immunity) as well as the practice of the Chancellor’s Office. For instance, the Sub-Committee asked for examples of the Chancellor’s activities in promoting human rights (campaigns, training) and protecting social and economic rights.

Based on the documents submitted and the interview, the Sub-Committee on Accreditation decided that the institution of the Chancellor of Justice meets the Paris Principles and conferred on the Chancellor the highest, i.e. A-status. An institution with A-status may participate in sessions of the UN Human Rights Council and make oral presentations under any agenda item, participate in plenary debates through a video message, submit documentation and written opinions, and organise events in the areas of activity of the Human Rights Council. An institution with A-status may also submit comments on Estonia’s Universal Periodic Review (UPR) report, or in other words, give an assessment of the human rights situation in Estonia. That is, opinions submitted by the Government and non-governmental organisations would be complemented by analysis from the Chancellor of Justice as the Estonian National Human Rights Institution.

Advisory Committee on Human Rights

The Advisory Committee on Human Rights advising the Chancellor met twice during the reporting year: in October 2020 and March 2021. The meeting in October focused on issues of the rights and well-being of children. During the meeting, presentations were made by members of the Advisory Committee, the Chancellor’s advisers, and external experts. A broad range of issues was covered: the Covid-19 pandemic and the impact of the spring 2020 emergency situation on children and young people, asking for the consent of children in healthcare, children and access to spaces, the right to family life of children whose parents are in prison, the safety of LGBT+ young people and children in general education schools in Estonia.

The Advisory Committee chose domestic violence against the elderly as the topic for the meeting in March 2021. Presentations were given by experts from the Social Insurance Board, the police, the prosecutor’s office, and non-governmental organisations. For example, the Advisory Committee discussed how to notice domestic violence against the elderly as a concealed type of violence, the awareness of local authority social workers and healthcare professionals, existing services and assistance to people suffering from violence, and what studies would help to increase awareness of this kind of violence.

International report

The Chancellor participated in Estonia’s third universal periodic human rights review (UPR). In October 2020, the Chancellor submitted a brief written report to the UN, to which reference was made in the summary drawn up by the UN and on which other countries relied during the oral examination of Estonia in May 2021. In her report, the Chancellor highlighted concerns related to protecting the rights of children, accessibility of social services in rural areas, access to public buildings and transport, and the need to amend the Equal Treatment Act. The third cycle of UPR will continue in the second half of 2021, when a regular session of the Human Rights Council will take place and where additional questions can also be put by the Chancellor of Justice as the national human rights institution with A-status.

Human rights education

In the autumn semester of the academic year 2020/2021, the Chancellor’s advisers taught a unique interdisciplinary subject “Human rights and design: an introduction” at the Estonian Academy of Arts, the substance and structure of which had been developed at the Office of the Chancellor of Justice. This is an optional subject that explores the meaning of a human rights based approach to design and the role and responsibility that designers have or could have in protecting and promoting human rights. During the course, students deal with various issues: for instance, how to design healthcare services so that patient privacy is better protected; what would a code of ethics of Estonian designers look like; how to take gender-based violence better into account in urban planning; how to design a playground by taking into account the rights of children with disabilities; what kind of prison (space) prevents degrading treatment? The subject has been extremely popular among students and has inspired smart course papers.

The Office of the Chancellor is preparing the first original volume on human rights. The book will be published in February 2022 as an online version where it can be read by all those interested. The book comprises 28 chapters dealing with the main human rights topics: such as the history of human rights, the UN human rights protection system, the methodology of the study of human rights, freedom of religion, the environment and human rights, freedom of speech, the rights of children, the rights of people with disabilities. The authors include the Chancellor’s advisers, researchers from Estonian and foreign universities, judges, attorneys, experts from other state agencies and non-governmental organisations. This is an interdisciplinary volume intended for use in higher educational institutions as well as by practitioners. The book provides an overview of the theory of protection of human rights and Estonian as well as international practice with references to the most up-to-date scientific literature.

International cooperation

Since 2001, the Estonian Chancellor of Justice has been a member of the International Ombudsman Institute (IOI). The Institute was established in 1978 and includes over 200 national and regional ombudsmen from over a hundred countries worldwide. The IOI operates in six regions – Africa, Asia, Australasia and the Pacific, Europe, the Caribbean and Latin America, and North America – and is governed through worldwide and regional Boards.

The Chancellor of Justice, Ülle Madise, was elected to the seven-member Board of the IOI European region on 30 September 2015 and was re-elected on 27 July 2016. From November 2017, Ülle Madise was also a member of the IOI Worldwide Board. Ülle Madise’s mandate on the Boards ended in May 2021.

Chancellor of Justice Ülle Madise also represents Estonia in the Council of Europe Commission against Racism and Intolerance (ECRI). The Head of the International Relations and Organisational Development of the Chancellor’s Office, Kertti Pilvik, participates as Estonian representative in the work of the Management Board of the EU Agency of Fundamental Rights (FRA).

In addition, the Chancellor of Justice is a member of the European Network of National Human Rights Institutions (ENNHRI), the European Network of Ombudspersons for Children (ENOC) and the networks of European Ombudsmen (ENO), International Conference of Ombuds Institutions for the Armed Forces (ICOAF), police ombudsmen (IPCAN) and National Preventive Mechanisms (NPM).

Cooperation and meetings

Due to the corona pandemic, many planned international meetings and events were postponed to following years or were carried out online. For example, for the first time the IOI World Conference and the General Assembly, the conference and seminars of the European Network of Ombudsmen, meetings of the UN Committee on the Rights of Persons with Disabilities, accreditation interviews of the human rights institutions, and meetings of several other international organisations took place online. Cooperation among ombudsmen, NHRIs and NPMs also continued online.

In September 2020, the Chancellor of Justice received a visit by judges from several countries in the frame of the exchange programme of the European Judicial Training Network. In December, the Chancellor’s accreditation interview with the UN Sub-Committee on Accreditation (SCA) of national human rights institutions took place. On the basis of the accreditation application and the interview, in January the Sub-Committee granted the Chancellor of Justice the highest status (“A”) as the national human rights institution.

In spring 2021, the Chancellor participated online as an independent monitoring body in meetings of Estonia’s review by the UN Committee on the Rights of Persons with Disabilities and, as the human rights institution, in Estonia’s third universal periodic review (UPR) in the UN Human Rights Council. In spring, monitoring visits by the Executive Directorate of the UN Counter-Terrorism Committee (CTED), the Council of Europe Commission against Racism and Intolerance (ECRI) and the Council of Europe Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC) also took place online.

UN resolution on ombudsmen

On 16 December 2020, the UN General Assembly adopted a resolution on ombudsman and mediator institutions. The resolution supports the main principles of ombudsman institutions, such as independence, objectivity, transparency, fairness and impartiality, and emphasises their importance in ensuring good governance, protecting human rights and promoting the rule of law.