Rule of law
A large part of the Chancellor’s work consists of supervising the activities of state agencies. More specifically, this involves monitoring whether laws and other legislation organising the lives of people, institutions and companies are compatible with the Constitution and other laws and whether applicable rules are also lawfully implemented. The core of the state based on the rule of law is the principle that everyone is equal before the law. The principle of separation of powers and independent institutions must guarantee a situation where the lawfulness of norms can be checked and, if necessary, contested.
Corona restrictions and a general order
Rule of law needs care and attention at all times. No compromises may be made on that account even when combating an infectious disease or money laundering, distributing benefits or doing some other necessary things. However, in the crisis situation it has happened that rules established for safeguarding fundamental rights have been bent or disregarded because it is said that this is what the crisis requires and that a different approach is not possible. This kind of argumentation, primarily emotionally underlining the need to resolve the crisis and thus turn a blind eye at the expense of the rule of law, will lead to a situation where life will be shaped by a single instruction instead of a norm, and a directive instead of a law.
Decision-making based on a single case gives a blow to equal treatment and enables administrative arbitrariness. Fundamental features of essential national issues must be established by the Riigikogu and, in principle, this should be done uniformly for all. The executive power must stay within the boundaries of the rules established by the Riigikogu.
For example, the Chancellor had to draw attention to the fact that a local authority cannot impose restrictions on fundamental rights without a legal basis by merely referring to the corona situation. The Chancellor also noted that the law does not allow a police prefect to enact a restriction overnight on sale of alcoholic drinks by simply notifying the public about the order.
During the reporting year, the Chancellor explained repeatedly the general points of departure for imposing restrictions with a view to combating the spread of SARS-CoV-2. In the case of combating an infectious disease, it should be kept in mind that the principle of proportionality enshrined in § 11 of the Constitution allows imposition only of those restrictions which are unavoidably necessary to prevent the spread of the infection. Each restriction has to be assessed individually as well as the aggregate of all the restrictions simultaneously imposed.
Prohibitions and orders must have a causal link to decreasing the infection in view of their actual anticipated effect. If a choice can be made between several effective restrictions to combat the risk, the measure which least restricts fundamental rights should be chosen. If a new unknown, and presumably grave, threat appears, it is conceivable that initially restrictions are imposed based on the precautionary principle, but if the threat persists the restrictions must be revised and updated in line with newly acquired knowledge. If a threat is no longer unknown, only restrictions with proven effect may be imposed to combat it.
At the latest after adoption of a legal act, studies and analyses underlying the decision must be disclosed. The effect of restrictions must be assessed both prior to imposing the restriction and periodically afterwards. Those restrictions which are not unavoidably necessary or have become excessive due to a negative side-effect must be abolished immediately. The constitutionality of a restriction depends on how much the restriction is currently needed, i.e. whether the need for that restriction outweighs restricting people’s fundamental rights.
Certainly, the epidemic spread of an infectious disease affects the functioning of the healthcare system and may endanger the possibility of all people to obtain the necessary healthcare. In such a situation, the need for restrictions changes. The Chancellor carefully monitors the situation, including, on the one hand, the tendency of the spread of infection and progress of vaccination and, on the other hand, the risk linked to mutation of the coronavirus and resistance of potential new virus strains to vaccines.
The Chancellor dealt in more detail with restrictions imposed on catering establishments.
The Chancellor also had to explain repeatedly the legal nature of the corona restrictions imposed by order of the Government of the Republic.
Legislation is divided into general legislative acts, i.e. legislative acts of general application, and individual legal acts. Section 87 clause 6 of the Constitution states that the Government of the Republic issues regulations and orders on the basis of laws. A regulation is a legislative act of general application while an order is an individual act. Acts of general application are usually general rules of conduct established for an unspecified range of people for an unlimited time. An individual act usually regulates the activities of a specific person or a specific situation. If an individual act restricts a person’s rights, a legal basis to issue it, i.e. a legislative act of general application, must have been established beforehand.
Distinguishing between legislative acts of general application and individual acts is complicated in legal terms because every atypical situation is special and it is impossible to draw a clear line between what is individual and what is general (see, in more detail, M. Ernits. Määruse mõiste. [The concept of a regulation] Õiguskeel 2010/3). By nature, a general order which is a subcategory of an individual act remains between an act of general application and an individual act.
When categorising acts of general application and individual acts, the Supreme Court has considered several aspects: the range of persons and size of territory covered by the legal act, the scope of rights related to the type of legal act (in particular as regards possibilities for involvement in proceedings and contesting the legal act), and others. In doing so, the court has not considered it important how the Riigikogu itself has classified a legal act. The court may even declare the Riigikogu’s choice to be unconstitutional (Supreme Court en banc judgment of 31 May 2011 No 3-3-1-85-10).
The Communicable Diseases Prevention and Control Act (§ 28 subsections 2, 5 and 6 in combination) allows the Government of the Republic to establish certain corona restrictions by order, i.e. an individual act. When granting such powers to the Government, the Riigikogu has proceeded from the presumption that, even if nationwide restrictions need to be imposed in respect of an unidentified number of persons, those restrictions are presumably valid for a fixed term because at some point the spread of the virus ends or no longer poses a threat that would justify continuation of restrictions. However, the spread of the coronavirus has shown that such restrictions might not be in force only for a short period. In view of this, it remains for the court to decide whether restrictions are specific enough so that the relevant orders from the Government can be deemed general orders. It is possible that the restrictions should have been established via a regulation.
Corona restrictions remaining in force for a long time also raises the question whether it is justified that the Government of the Republic still decides on restrictions − perhaps the decision should lie with the Riigikogu. Certainly, the fact that resolving an epidemic situation has been left for the Government has some advantages. In particular, this enables a quick response in a changing situation.
However, on the other hand, it has brought about decisions passed at very short notice (sometimes essentially overnight). This does not leave any possibility for public debate. It is not normal if undertakings are given only 24 hours to express an opinion concerning an important change that affects them significantly (see article). It would be understandable if such overnight changes were due to an unexpected change in the epidemic situation requiring extremely rapid intervention. However, such rapid changes cannot be acceptable when the emergence of a situation was known long in advance (in which case planning the changes should have started earlier) or if the situation allows giving those concerned a reasonable time for expressing an opinion.
The majority of restrictions with a significant impact which are presumably established for a long time should be adopted by the Riigikogu (many other countries where initially restrictions were imposed by the executive have now also chosen the path of increasing the role of the parliament). The parliament can do this in a procedure enabling public debate and, after adopting a legislative act, give people enough time to rearrange their life (sufficient vacatio legis complying with constitutional requirements).
Since the Chancellor of Justice cannot contest a general order (Supreme Court Constitutional Review Chamber order of 22 November 2010 No 3-4-1-6-10), petitioners with issues related to the corona crisis had to be repeatedly asked to have recourse to the court even when the petitioner’s decision to contact the Chancellor had been clearly considered. There were not many undertakings during the corona crisis who ventured or deemed it reasonable to protect their rights in the court. Indeed, an opinion about the lawfulness of applicable rules is needed quickly because theatres, shops and cafés which are closed cannot reclaim lost time. Even if compensation is later awarded to an undertaking, the state must find that money on account of other expenses, so that something else important for society remains undone.
If recourse to the court is considered pointless, such a situation requires everyone’s attention under the rule of law. The reason might be that court proceedings have been made too cumbersome, judges are overburdened, or a dispute and defending one’s interests seems frightening. It may also be that judicial proceedings last too long and a clear solution for urgent concerns is not obtained quickly enough. It would be especially regrettable if the fear of some undertakings turns out to be true that, in granting support, some representatives of public authorities take into consideration as a negative factor that a particular undertaking has previously had recourse to the court against the state to defend its rights. Any of the above reasons undermines the health of the rule of law in the country.
A question also arose how to effectively contest the conditions for crisis support. Such support can be applied for within a very limited period. This means that equal treatment of applicants cannot be checked before the round of support is already over. If an undertaking wishes to obtain support but the conditions for support do not enable this, the only solution seems to be to apply for support regardless and to contest a negative decision in the administrative court.
In view of the nature of the crisis and, inter alia, lack of time and legal assistance, the conditions for such support measures must be as clear as possible and without any debatable formalities. (See also the Chapter “Money”.)
The Chancellor also had to deal with a case where the Agricultural Registers and Information Board disregarded a Supreme Court opinion and replied that the Board would continue to resolve applications for area payments according to the principles used so far. The Board also explained that it intends to ask for an assessment from the European Commission concerning the opinions expressed in the Supreme Court judgment and, based on that assessment, would develop its future practice.
An executive authority cannot disregard interpretations by the court. Under the rule of law, justice is administered by the court and, where necessary, it also provides substantive interpretations of rules. A court’s interpretations create clarity as to how a certain norm is to be understood and applied in a specific situation. If a government agency disregards the court’s interpretation, the need to have recourse to the court for enforcement of one’s rights actually increases.
In line with the principle of separation of powers, no agency can take the court’s place and decide that it complies with case-law only selectively. A final court judgment is one of the foundations of administrative practice. First and foremost, the court resolves a specific dispute but Supreme Court case-law guides all future judicial practice. This comes down to the issue of legal certainty which an administrative body must take into account in its decisions.
A person is entitled to presume that legal norms in respect of them are applied by relying on Supreme Court judgment, and they should not need to have recourse to the court to claim this. Administrative practice which is in conflict with a court judgment and forces persons to repeatedly have recourse to the court in the same situation means an additional burden both for the judicial system and the Agricultural Registers and Information Board. If an executive authority is dissatisfied with applicable law, an adequate solution would be to initiate amendment of legal rules.
In connection with paying crisis support, the Chancellor was asked what rules should apply to activities of the Estonian Rural Development Foundation. Specifically, undertakings enquired how they could contest the Foundation’s decision not to grant them a loan for mitigating economic difficulties caused by the pandemic. The undertakings also found that the reasoning given for refusal to grant a loan was too succinct.
The Rural Development Foundation must observe the principles of good administration and thereby ensure equal treatment of undertakings and fair competition (§ 12 Constitution). If the Foundation denies an undertaking’s loan application, the reasons for refusal must be set out in the decision. Lawful administrative procedure is not merely a formality but an important safeguard for the principles of transparency and consistency in granting loans and thus for uniform, fair and lawful treatment of undertakings. Without comprehensible explanations or reasoning, judicial review is complicated. Nevertheless, undertakings must be ensured the opportunity for judicial appeal against refusal to grant a loan. The court, in turn, must be enabled to assess the lawfulness of refusing a loan, including whether decisions were made by taking into account public interests and objectives.
The Chancellor also explained to undertakings the activities of the Rural Development Foundation in granting loans.
The obligation to wear masks in a care home
On 11 September 2020, the Government of the Republic adopted Order No 308 on “Amending the Government of the Republic Order No 282 of 19 August 2020 on “Restrictions on the freedom of movement and on holding public meetings and public events as necessary for preventing the spread of the COVID-19 disease””. In her analysis the Chancellor reached the conclusion that the Order lacked a legal basis, nor was it sufficiently precise or sufficiently reasoned.
As the basis for the Order, § 28 subs (6), subs (5) clause 3, and subs (8) of the Communicable Diseases Prevention and Control Act had been cited, under which other restrictions on freedom of movement may be temporarily established to prevent a dangerous novel infectious disease. Section 28(5) clause 3 of the Act does not provide a basis for imposing an obligation to wear masks since freedom of movement mostly includes issues of moving and not of conduct in one or another place. For example, Article 12 of the UN International Covenant on Civil and Political Rights understands the right of movement as the right to move from one place to another (see the UN Human Rights Committee General Comment No 27).
Imposing the obligation to use personal protective equipment affects people’s behaviour (they must use or wear something). For example, the Occupational Health and Safety Act lays down the obligation to use personal protective equipment. Section 3(5) of the Act stipulates that if the risk of an accident or illness cannot be avoided otherwise, then the employer must provide an employee with personal protective equipment. In that case, the employee must use the prescribed personal protective equipment properly and keep it in working order. In this case, it is not the employee’s movement that is restricted but their freedom to behave and dress to their liking, as well as their private life, i.e. the right to decide themselves about their health. According to the same principle, for example, theatres have imposed the requirement to switch mobile phones to silent mode during a performance, or the requirement imposed in traffic to drive a vehicle in good technical condition.
How the obligation to wear a mask was notified to care homes cannot be considered lawful either. Namely, one day before the Order was adopted (10 September 2020), at 19.06 a notice was published on the website of the Government of the Republic: “By Government decision, all care home employees and visitors must begin wearing protective masks.” The same notice was published on the corona crisis website kriis.ee on 10 September 2020 at 21.20.
The public register of documents of the Government Office does not show when and with what content the Order was issued. According to the Riigi Teataja gazette, the Order reached the editor’s office on 11 September at 22.56. No one had informed the Riigi Teataja editorial team that orders concerning the spread of Covid-19 might arrive late on Friday evening. Therefore, the Riigi Teataja formalised and published the orders and the related full texts only on 14 September 2020 at 9.29. Thus, the Order was adopted on 11 September 2020 (Friday) and published on 14 September 2020 (Monday) when it had already entered into force.
It is obvious that the obligation to wear a mask affects an establishment’s working arrangements and entails additional expense. No known, relevant, reasonable and compelling reason exists why the obligation to wear a mask had to be imposed overnight. That Order could also have been sent to care homes by e-mail, in addition to publication in the Riigi Teataja.
Draft Administrative Fine Procedure Act
As a rule, the Chancellor does not deal with draft legislation nor does she prepare a legal analysis on draft legal acts. An important exception during the reporting year was the Draft Administrative Fine Procedure Act. The Draft Act sought to create a new institution for responding to offences – an administrative fine procedure. Several analyses (an analysis commissioned from the University of Tartu in 2020, presentations on administrative penalties during the 2020 days of legal scholars, and others) have shown a lack of clarity concerning the administrative fine. It is not known how to understand the definition of “administrative” in this context, and it remains unclear in what respect the rules for administrative fine procedure should be different from rules for offence proceedings.
In her opinion, the Chancellor noted, inter alia, that merely giving a punitive procedure a different name does not relieve the state of the duty to guarantee fundamental procedural rights. From the point of view of a body conducting the proceedings, an effective penalty imposed in simple proceedings may seem like something good because simpler proceedings require less effort. However, this cannot be the state’s point of view because the Estonian Constitution stipulates everyone’s protection from the arbitrary exercise of state power (§ 13(2) Constitution) and also places the duty of guarantee of rights and freedoms on the executive (§ 14 Constitution). And in doing so, the essence of the rights and freedoms restricted may not be distorted (§ 11 Constitution).
Until now, protection from the arbitrary exercise of state power has been offered by procedural rights which require that the state should ascertain the facts and prove violations − only then can the court impose a punishment. Protection of fundamental rights should not be considered an impediment to effectiveness or an inconvenience.
The work of the courts
The Chancellor comes into contact with the work of the courts in three ways. The Chancellor of Justice is a member of the Council for Administration of Courts; the Chancellor may initiate disciplinary proceedings in respect of all judges, and the Chancellor prepares an opinion for the Supreme Court in constitutional review court proceedings.
By virtue of office, the Chancellor serves on the Council for Administration of Courts, which convened for a session twice in the second half of 2020 and four times in the first half of this year (all four sessions were held online).
Complaints against the work of judges
Under the Courts Act, alongside the chairs 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 deciding on initiation of disciplinary proceedings, the Chancellor does not assess substantive issues concerning administration of justice but only a judge’s actions amounting to failure to perform their duties of office or disreputable conduct. However, the Chancellor is mainly contacted about substantive issues of administration of justice, in which the Chancellor may not intervene. Mostly, people are not satisfied with a court decision. Petitioners expect the Chancellor to assess the correctness of a court judgment, which is, however, precisely what the Chancellor cannot do. Under the Constitution, justice is administered by the courts, and only a higher court can assess issues concerning administration of justice in substance.
Nevertheless, every year there are also cases where the Chancellor examines the work of judges more specifically in the information system of the courts in order to decide whether to initiate disciplinary proceedings in respect of a judge. During the reporting period, there were 15 such cases. With regard to some cases, the Chancellor also asked for an explanation from a judge and/or chair of the court. During the reporting year, in none of the cases did the Chancellor find a reason to initiate disciplinary proceedings in respect of a judge.
In one case, complaints were raised in connection with a judge’s conduct during a court hearing. According to the complaint, the judge was allegedly impolite, had raised their voice and given inappropriate value judgements. Under para. 13 of the Code of Ethics of Judges, a judge must be patient and polite with all participants in proceedings, colleagues and court employees. Para. 14 requires a judge to be impartial and fair in administering justice and try to appear as such to a reasonable observer. For that purpose, a judge must treat participants in proceedings equally, and refrain from unnecessary and irrelevant comments or remarks. The judge must avoid becoming irritated, getting angry, raising their voice, letting their facial expression and body language reveal their attitude, and other such behaviour that could leave the impression of partiality.
In an explanation sent to the Chancellor, the judge denied having used improper language or providing inappropriate value judgements. The judge’s words were also confirmed by the secretary of the court hearing. At the hearing, the judge allegedly had to thoroughly explain circumstances which the petitioner's representative for some reason had failed to explain to the petitioner. Since the petitioner in their statement of claim had failed to prove their claim in substance, the judge was forced to clarify all the facts at the hearing.
The judge conceded that such examination may have caused discomfort and left an impression that the judge was aggressive or emotional. The judge may also have spoken at a higher volume since they wanted to be better heard through the video link (some people attended the hearing on site while others participated via a video link).
The Chancellor expressed regret that the hearing had caused annoyance to this person. Unfortunately, the Chancellor could not ascertain what and how precisely the judge said during the hearing since this was a preliminary hearing which was not recorded and an audio recording of which is also not required.
A petitioner also sought initiation of disciplinary proceedings in respect of a judge who had not allowed into a public hearing in March 2021 people wishing to listen to the hearing. The hearing took place in a courtroom with attendance of, in addition to the judge, the secretary of the hearing, the plaintiff, the defendant, the defendant’s representative, and two persons who had also been called to give statements. The size of the courtroom is 34 m2, which means that, according to restrictions imposed for combating the spread of the coronavirus at that time (considering the 50% occupancy requirement), four to five people simultaneously could be present in that room. Therefore, the judge could not allow observers into the hearing, and (relying on § 44 of the Code of Civil Procedure) asked them to leave the courtroom.
The Chancellor explained to the petitioner that courts cannot exist in isolation from the rest of society. Measures for combating the virus must also be observed in court, thus ensuring protection of the health of court officials, people summoned to the court as well as those voluntarily coming to the court. According to the minutes of the hearing, the judge also offered the petitioner an opportunity to postpone the hearing since the court could also not arrange a video link to another courtroom so quickly. However, the petitioner did not wish postponement.
A person complained that they had not been ensured proper interpretation at an administrative court hearing. However, the materials of the case file revealed that the person, who was in the detention centre, participated in the hearing via video conference. An interpreter participating in the hearing interpreted the participants from Estonian into Persian and vice versa. The interpreter holds a master’s degree in the Persian language and has worked as an interpreter for more than ten years. Based on an audio recording of the hearing, it can be said that during the hearing the petitioner did not raise any complaints about interpretation to the court. Communication between the petitioner and the judge was seamless; no misunderstandings occurred. There was never a situation where the petitioner did not understand the interpreter or vice versa. Moreover, also present at the hearing was the petitioner’s representative who actively defended the petitioner’s interests. On that basis, the Chancellor had no criticism against the activities of the judge.
In one court case, a person found that judicial proceedings of a civil case had lasted too long. Examination of the materials of the case showed that, in comparison to the average duration of proceedings, the proceedings in this case had indeed lasted longer but this was not due to failure by the judge to perform their duties, or inadequate performance of duties, but due to the large number of participants in proceedings. The number of persons concerned in this civil case is 73, and serving the procedural documents on all of them simply takes time.
Service of procedural documents is time-consuming and complicated but an unavoidable process in judicial proceedings, which is most often the cause for delay in civil cases. According to the information system of the courts, interruptions in performing procedural steps by the courts have sometimes occurred, but in view of the workload of judges in Harju County Court (a judge and the procedural team simultaneously deal with proceedings of many cases), prolonging the duration of civil proceedings is inevitable.
Disclosure of court decisions
The Chancellor was contacted with a concern that judicial decisions in administrative court proceedings concerning the social sphere are often not disclosed, so that people cannot examine the case-law.
The Chancellor explained that the principle of public court proceedings also includes public pronouncement of a court decision, which contributes to ensuring the right to fair court proceedings. The public must be able to examine case-law and, as a rule, court decisions should be accessible to everyone. This means that the public nature of court proceedings and disclosure of court decisions should be restricted as little as possible. At the same time, § 24 of the Constitution of Estonia allows restricting public access to court proceedings and disclosure of court decisions if the court believes that this is necessary, for example, to protect a minor or privacy. Therefore, procedural codes contain a possibility to restrict disclosure of a court decision: for instance, the name of a person participating in proceedings may be replaced with initials in the court decision.
However, sometimes replacing a name with initials or removing from a court decision data concerning private life is not sufficient if the context of the decision still enabled identifying the person. In that case, non-disclosure of a court decision is justified. Yet this does not mean that court decisions concerning some spheres of life are not disclosed at all. In such cases too, judges should still consider whether it would be possible to disclose that part of the court decision which concerns interpretation of legal norms or legal reasoning. Otherwise, it is impossible to acquaint oneself with case-law. The practice of disclosure of decisions of administrative courts has changed by now.
The Chancellor received a complaint that the website of the Riigi Teataja gazette discloses old court decisions which, in the petitioner’s opinion, should no longer be public.
The Chancellor explained that, in a disclosed court decision concerning a criminal offence or a misdemeanour, the court replaces a person’s name with initials or characters upon arrival of the deadline for deleting data concerning a person’s punishment from the register (§ 28 Criminal Records Database Act). Names of persons having committed certain types of criminal offences are not replaced.
As a rule, personal data should automatically disappear from court decisions disclosed on the website of the Riigi Teataja. If this is not so, a person may request removal of their name from court decisions concerning expired punishment data within the meaning of the Criminal Records Database Act. This is also supported by the general principles of personal data protection which require that personal data should be processed only to the extent necessary for the purpose of processing. If no reason exists for continued disclosure of a person’s name, the name must be replaced with initials or characters. Thus, the person concerned should apply to the court that made the relevant decision.
Different treatment of witnesses in court
Under § 152 of the Code of Civil Procedure, a witness is paid compensation for participating in civil proceedings. This is compensation for lost wages or loss of other permanent income, and it is also paid even if the witness did not lose income due to giving testimony or if they are unemployed or have no income.
On the other hand, paying compensation to a witness in offence proceedings is regulated by § 178 of the Code of Criminal Procedure, which does not enable claiming compensation for lost income by a witness who has not lost their income or is unemployed. The Chancellor was asked to assess the compatibility of this provision with the principle of equal treatment (§ 12 Constitution).
The Chancellor found that § 178 of the Code of Criminal Procedure does not contravene the principle of equal treatment and a reason exists for different treatment of witnesses participating in different types of judicial proceedings. Unlike in civil proceedings, the purpose of criminal proceedings is not to resolve private disputes. The purpose of criminal proceedings is to ascertain whether someone has committed a crime, i.e. harmed essential legal rights by their conduct. Participating as a witness in offence proceedings is an extremely important civic duty on which depends ascertaining the perpetrator of the offence and preservation of the legal order. Performance of this kind of civic duty does not need to be remunerated with additional compensation (i.e. witness compensation paid to an unemployed witness).
However, a witness participating in civil proceedings is forced to intervene in a private dispute. Therefore, witness compensation paid to an unemployed witness in civil proceedings is intended as symbolic additional compensation. As a rule, a witness is involved in a private dispute at the request of a party to civil proceedings. Therefore, expenses related to a witness appearing (including witness compensation) are borne not by the state but by the person seeking examination of the witness or by the person on whom procedural expenses are left to be borne according to the court decision.
Imposition of aggregate sentence
An aggregate sentence is the final sentence imposed on a person for committing several criminal offences. Where a need should arise to punish a convicted person for an additional criminal offence, imposition of an aggregate sentence is regulated by § 65 of the Penal Code. This constitutes subsequent imposition of an aggregate sentence.
The Chancellor was asked to clarify within the limits of her competence whether an aggregate sentence may be imposed if one of the sentences to be aggregated has been imposed by a court judgment which has not yet become final.
The Chancellor explained that subsequent imposition of an aggregate sentence is not possible if one of the sentences to be aggregated has been imposed on the person by a judgment reached in different criminal proceedings and it is not yet final (i.e. has been appealed). Aggregating a sentence imposed by a judgment which is not yet final would mean that an as yet legally non-existent sentence would be included among the aggregate punishment.
This would contravene the principle of the presumption of innocence (§ 22(1) Constitution). The Supreme Court has also emphasised that imposing an aggregate sentence is logically possible only if both of the aggregated sentences exist.
Offence proceedings
On a proposal by the Chancellor of Justice, in spring 2021 the Code of Misdemeanour Procedure was amended so that a person suffering damage as a result of a misdemeanour may access the misdemeanour file after the court decision in the case.
Compensation of damage caused through a misdemeanour can be sought in court through civil procedure. Evidence of damage incurred and the amount of damage must be submitted to the court. Unfortunately, a person suffering as a result of a misdemeanour had no access to materials in the misdemeanour file containing the necessary data for protecting their rights. The amendments to the Code of Misdemeanour Procedure entered into force on 30 April 2021.
Regrettably, petitions received by the Chancellor revealed that even after the amendment to the Code of Misdemeanour Procedure, when issuing a copy of the file, officials of the Police and Border Guard Board still also cover other information in the file, such as the contact data of the person causing the damage or witnesses. Since this is contrary to the aim of amending the Code of Misdemeanour Procedure, the Chancellor recommended that the Police and Border Guard Board should comply with the provisions of § 62 subsections (3) and (4) of the Code when presenting the misdemeanour file or issuing copies from it. This means that a person who has directly suffered damage as a result of a misdemeanour is entitled to examine the entire file (subs. (3)). Only special categories of personal data of other persons contained in the misdemeanour file should be covered. Contact data of another person (e.g. the person subject to proceedings or a witness) do not constitute special categories of personal data. Under § 62(4) of the Code of Misdemeanour Procedure, where an application is made, the body in charge of proceedings issues a complete copy of a procedural document or the case file to the person entitled to access it.
The Chancellor was asked to check whether the head of a bureau in the Central Criminal Police breached the principle of the presumption of innocence when in the Ringvaade programme on the public ETV television channel they called a person a member of a criminal organisation even though no court judgment had yet been reached in respect of the person.
The Chancellor explained that under § 22 of the Constitution, no one may be deemed guilty of a criminal offence before they have been convicted by a court and before the conviction has become final. The requirement of the presumption of innocence is binding on police officers, prosecutors, judges and other public officials.
The Supreme Court has emphasised that it is not compatible with the presumption of innocence if a representative of public authority draws public attention to the accused before a court judgment. The authority possessed by the state may give a different weight in the eyes of the public to information disseminated by a public authority. Therefore, in statements concerning charges, words and expressions must be extremely carefully chosen. Thus, the Chancellor concluded that the statement by the head of a bureau of the Central Criminal Police contravened the principle of the presumption of innocence. A person whose rights are violated in this way may claim compensation of damage from the Police and Border Guard Board.
The duty to submit data of the actual traffic violator
In the event of suspicion of an offence, the burden of proof lies on the state. Thus, an accused is not required to prove their innocence (see, the presumption of innocence, § 12 Constitution). This applies both in criminal and misdemeanour proceedings. However, neither the presumption of innocence nor a person’s right not to prove their innocence in proceedings for offence is not absolute.
The Chancellor analysed the compatibility with the principle of the presumption of innocence of the duty arising from § 545(3) of the Code of Misdemeanour Procedure that, in the event of contesting a penalty notice, it is required to submit to the body in charge of proceedings the data of the person who was actually using the motor vehicle at the time of violation. The duty to submit the data of the actual traffic violator interferes with a person’s right not to prove their innocence in offence proceedings. Thus, in the event of contesting a cautionary fine, the burden of proof must be partially (i.e. as regards identifying the person using the vehicle at the time of violation) borne by the owner or authorised user of the vehicle. However, this duty does not contravene the principle of the presumption of innocence.
Due to the enhanced risk posed by motor vehicles, road users and those responsible for motor vehicles have a duty of care towards fellow road users. If someone grants another person use of a vehicle, the person responsible for the vehicle must, inter alia, collect and maintain data about the actual user (Traffic Act § 72(1) and (2)). At the request of the body in charge of proceedings, the person responsible for the vehicle must submit those data to the body in charge of proceedings. Although this duty interferes with the presumption of innocence, the purpose of the duty is to protect the life and health of others. This duty ensures that a vehicle does not end up with a person who does not have the right to drive or about whose trustworthiness the person responsible for the vehicle has misgivings.
Enforcement procedure
In most petitions about enforcement proceedings, the Chancellor is asked about the right of bailiffs to attach income or an immovable, but also about the size of the fee bailiffs can charge. Petitioners also ask for an assessment as to whether a bailiff has acted lawfully in enforcing a court decision regulating access arrangements. A number of petitions received during the reporting year concerned expiry of claims arising from enforceable titles.
In April 2011, an amendment to the General Part of the Civil Code Act (§ 157(1)) entered into force stipulating that the limitation period for enforcing a claim which has been recognised by a judicial disposition that has entered into effect or which is inherent in another enforceable title is ten years, instead of the previous 30 years. Thus, April 2021 saw the expiry of tens of thousands (estimated 80 000) of claims arising from enforceable titles entering into force prior to that date.
Several debtors contacted the Chancellor with a concern that, prior to expiry of the limitation period of a claim, a party seeking enforcement had lodged an application with the bailiff for termination of enforcement proceedings, and subsequently lodged a new enforcement application concerning the same enforceable title. The parties seeking enforcement interpreted the law (§ 159(2) of the General Part of the Civil Code Act) so that, if enforcement proceedings are terminated on the basis of an application by the party seeking enforcement and the same enforceable title is repeatedly submitted for enforcement, then the limitation period for enforcement can be repeatedly prolonged by ten years. Bailiffs also went along with that interpretation.
However, that interpretation is not compatible with established case-law (Supreme Court judgment of 13 December 2018 No 2-15-16664, para. 21; judgment of 16 December 2013 No 3-2-1-141-13, para. 29). Namely, the Supreme Court has repeatedly expressed the opinion that, under the law, the period of limitation is not deemed to have been interrupted if enforcement proceedings are terminated on the basis of an application by the party seeking enforcement. In that case, the period of limitation is calculated from the time when the claim arising from an enforceable title became enforceable. This prevents the period of limitation being dragged out unreasonably. The Ministry of Justice criticised the bailiffs that no fee for termination of enforcement proceedings was charged from parties seeking enforcement. To prevent further misinterpretation, the grounds for interrupting the period of limitation were clarified in the law (see the Act Amending the Code of Enforcement Procedure and Amending Other Acts).
The Act Amending the Code of Enforcement Procedure and Amending Other Acts, entering into force on 1 April 2021, simplified termination of enforcement proceedings on account of expiry of the limitation period of a claim arising from an enforceable title and made the proceedings cheaper for debtors. Bailiffs now obtained the possibility to terminate enforcement proceedings on the basis of a debtor’s application in the case of expiry of the limitation period. The court examines the application in proceedings on petition. It is worth recognition that the Ministry of Justice and the Estonian Chamber of Bailiffs and Trustees in Bankruptcy provided explanations and guidance to debtors as to how to apply for termination of enforcement proceedings on account of expiry of a limitation period for a claim.
This legislative amendment applies to all the enforceable titles mentioned in the Code of Enforcement Procedure, including public-law claims (§ 2(1) of the Code), for which no period of limitation has been established different from the period mentioned in § 157 of the General Part of the Code of Civil Procedure Act (as a rule, ten years), or special regulation (e.g. § 202 Code of Enforcement Procedure). For instance, simplified proceedings entering into force on 1 April 2021 cannot be applied in the case of expiry of a claim for payment of expenses awarded in favour of the state in civil proceedings. The period of limitation for expiry of enforcement of that claim differs from the period laid down by § 157 of the General Part of the Civil Code Act. Legislation should treat equally all the essentially similar public-law claims (procedural expenses awarded in favour of the state in different types of proceedings) and situations of expiry of the limitation period for their enforcement. Nor does state interest in applying the expiry of the period of limitation for public-law claims and their enforcement generally require significantly different protection in comparison to private claims (e.g. only protection guaranteed by the court).
The Chancellor considered it possible to interpret the provisions of the Code of Enforcement Procedure and the Code of Civil Procedure (§§ 202 and 209 CEP, and § 179(7) and (8) CCivP) in conformity with the Constitution. A bailiff themselves can terminate enforcement proceedings in a claim for payment of procedural expenses awarded in favour of the state if the claim has not been enforced within three years from the entry into force of the court decision awarding the money and if no circumstances exist requiring interruption of the period of limitation.
The Chancellor asked the Ministry of Justice to consider the possibility of the interpretations provided above, as well as the need to clarify the law. The Chancellor also asked the Ministry to check whether current law has other claims to which the provisions entering into force on 1 April 2021 do not apply, and to analyse whether lodging an action seeking a declaration of inadmissibility of compulsory enforcement is justified in the case of them, or whether legislation needs to be changed.
Traffic management
Speed limit for electric scooters
Among personal light electric vehicles are electric scooters. These were introduced as a new vehicle category among the legal provisions by amendments to the Traffic Act entering into force at the beginning of 2021, and new traffic rules for them were also established. The maximum speed limit for a personal light electric vehicle was set at 25 kilometres an hour (§ 15(1) clause 11 of the Traffic Act).
Unlike in the case of a personal light electric vehicle, the law does not impose a maximum speed limit for a bicycle. Therefore, the Chancellor was asked to assess whether the restriction imposed on personal light electric vehicles was compatible with the principle of equal treatment.
The Chancellor found that imposing a speed limit on personal light electric vehicles does not violate the principle of equal treatment. Riding an electric scooter does not presume physical preparation or skills from the driver. The characteristic features of an electric scooter are small wheels and a narrow handlebar which make it more unstable in comparison to a bicycle. Increasing the speed only requires pressing a button. Therefore, an electric scooter is more dangerous, the risk of an accident is higher, and the reasonable justification for the restriction is the need to protect the life, health and property of the driver as well as other traffic participants.
Measuring location of a speed camera
Under the Traffic Act, traffic supervision may be carried out, inter alia, by a portable speed camera whose purpose is to constantly check whether drivers comply with the speed limit, and to react to all violations.
Before legalisation of portable speed cameras in 2019, the Ministry of Justice found, for example, in the explanatory memorandum to the Draft Act, that the measuring location of a speed camera should be marked with a traffic sign. This gives a driver a possibility to change their behaviour and refrain from a violation. Therefore, the Chancellor has been repeatedly asked whether the measuring location of a speed camera must be marked with the “Automatic control” traffic sign.
The Chancellor explained that explanatory memorandums and the views expressed in them are not legal acts. Neither the Traffic Act nor the Government of the Republic regulation establishing the requirements for installation, the measuring procedure, and processing the measurement results of speed cameras require a speed camera’s measuring location to be marked with a traffic sign.
The driver of a vehicle must choose a speed suitable for traffic conditions which is not higher than the maximum speed allowed on the specific section of road – regardless of whether an “Automatic control” sign has been placed in front of the speed camera or not. The absence of an indicating sign does not render a traffic violation non-existent.
Local authorities
Chapter 14 of the Constitution guarantees the autonomy of local government, i.e. the right of local authorities to resolve and manage local matters independently. Naturally, rural municipalities, towns and cities must observe the Constitution and other laws in their activities. A local authority must respect people’s fundamental rights and freedoms, save taxpayers’ money and be honest in its dealings.
Local authorities are not a local extension of the arm of national Government or ministries. The idea of local government is that local matters are resolved by the community itself in a manner most suitable for the particular city, town or rural municipality. The state should provide support in this process: matters should be arranged so that local authorities have enough money to promote local life. The state may also impose functions of the state on local authorities by law, but in that case sufficient funds should be provided from the state budget to fulfil those functions. Local and state budgets are separate.
During the reporting year, the Chancellor contributed to resolving problems occurring in the internal working arrangements of local authorities and supervised conformity of local authority legislative acts of general application (i.e. regulations) with the Constitution and laws. The Chancellor also verified that rural municipalities, towns and cities perform public functions lawfully and do not violate the fundamental rights and freedoms of persons.
Working arrangements of local authorities
According to § 156 of the Constitution, the municipal council is the representative body of a municipality. This gives it the right of self-organisation, including the right to establish rules on arranging its work. However, the council’s right of self-organisation is not unlimited; it must be compatible with the Constitution and laws, as well as the European Charter of Local Self-Government.
Several issues relating to the working arrangements of the municipal council and government are regulated by the Local Government Organisation Act whose requirements must be observed when establishing the working arrangements of local government bodies. The Chancellor was asked to check the constitutionality of the second and third sentence of § 35(3) of the Local Government Organisation Act. Under these provisions, a rural municipal, town or city government appoints the members of supervisory boards of foundations, private limited companies or public limited companies and exercises other rights of a founder or shareholder. If a private limited company does not have a supervisory board, the rural municipal, town or city government nominates the members of its management board. The Chancellor reached the opinion that those provisions of the law are compatible with the Constitution.
Competence of a rural municipality mayor
The Chancellor proposed to Põltsamaa Rural Municipal Council to bring into line with the law and the Constitution a provision in the statutes of Põltsamaa rural municipality which authorised a rural municipality mayor who had not yet obtained all mayoral powers to submit to the municipal council a draft amending the rural municipality’s statutes and the composition and categorisation of posts.
Under § 28(3) of the Local Government Organisation Act, a rural municipality, town or city mayor obtains the powers prescribed by law and the statutes of the rural municipality, town or city as of the date when the appointment of the municipal government to office is confirmed. Thus, prior to forming the rural municipal government, a rural municipality mayor has only one right and duty – to assemble the rural municipal government and submit its composition in time for approval to the municipal council. The council cannot change by the municipality’s statutes what has been laid down by law.
Põltsamaa Rural Municipal Council removed this contradiction from the municipality’s statutes.
Convening a municipal council session
The Chancellor explained that the municipal council chair may also convene a municipal council session on the day requested by at least a quarter of the members of the council who have proposed convening the session. However, the municipal council chair has no obligation to do so.
Section 43(4) of the Local Government Organisation Act lays down that the chair or deputy chair of a municipal council shall convene a municipal council session on a proposal by the rural municipal, town or city government or of not less than one-fourth of the membership of the municipal council. The time of the session shall be determined by the municipal council chair or their deputy, taking account of the provisions of the statutes of the rural municipality, town or city, but the session shall be held no more than one month later. Nor do the statutes of Valga rural municipality or the rules of procedure of Valga Rural Municipal Council require that the municipal council chair should convene the council session more quickly.
Compliance with procedural requirements in the work of a municipal council
The Chancellor found that neither Haljala Rural Municipal Council nor the Rural Municipal Government had complied with the Local Government Financial Management Act, the statutes of the rural municipality or the rural municipality’s financial management procedure when formulating the draft explanatory memorandum to the first supplementary budget of Haljala rural municipality for 2021 and conducting the proceedings of the 2020 annual report.
The explanatory memorandum to the municipality’s 2021 supplementary budget does not contain reasons concerning the necessity for a supplementary budget. However, this is required by the Local Government Financial Management Act (§ 26(1) (second sentence)) as well as the municipality’s financial management procedure. The municipal council should have approved the annual report on 30 June 2021 at the latest, but this was not done.
The Chancellor asked that, in the future, the rural municipality should comply with the law and the municipal council should approve the annual report as soon as the council convenes (see the “explanatory memorandum to the draft supplementary budget, and the annual report“).
The Chancellor drew the attention of Tori Rural Municipal Council to shortcomings in the municipality’s statutes concerning the competence of the audit committee.
Under the law (§ 48(5) Local Government Organisation Act), the audit committee must submit both an audit report and the committee’s decision concerning the result of its work to the rural municipal, town or city government. Along with the opinion of the rural municipal, town or city government, the audit committee will subsequently submit to the municipal council its decision, the audit report and draft council legislation, so that the council can pass a resolution on the results of the audit.
According to the statutes of Tori rural municipality, the audit committee only sends the audit report to the municipal government. The statutes entitle the audit committee to assess whether the documents submitted by it to the council should also include the draft municipal council legislation necessary for passing a resolution.
The Chancellor also ascertained that for a long time Tori Rural Municipal Council had not had an audit committee with the required number of members. At the time of the check (May 2021), the municipal council’s audit committee had only held one meeting. Such a situation is not lawful and may lead to the risk of corruption.
According to law (§ 48(1) Local Government Organisation Act), the audit committee must have at least three members. The audit committee fulfils the function of scrutinising the local authority’s financial records. The committee’s effective work helps to ensure that the local authority proceeds from the interests and aims of local residents and properly performs its tasks.
The Chancellor asked that the municipal council should immediately assemble a three-member audit committee.
Tori Rural Municipal Council informed the Chancellor that it had elected the committee chair and deputy chair.
The Chancellor recommended that Valga Rural Municipal Council should re-elect the audit committee chair and deputy chair as quickly as possible. The municipal council audit committee must have a chair and deputy chair. The law (§ 47(16) Local Government Organisation Act) stipulates that in the event of termination of the powers of the chair or deputy chair of the committee due to an expression of no confidence in them, their resignation, expiry or suspension of term of office as a member of the municipal council, both the chair as well as the deputy chair must be elected anew.
Releasing restricted information to a municipal council member
The Chancellor was asked whether a rural municipal government should release to a municipal council member information collected in the course of ongoing misdemeanour proceedings, which under the Public Information Act (§ 35(1) clause 1) has been classified as information intended for internal use.
The Chancellor explained that a municipal council member is entitled to receive legal acts, documents and other information of the municipal council and government, except information whose release is prohibited by law (see § 26(1) Local Government Organisation Act). When providing information about misdemeanour proceedings, the provisions of the Code of Misdemeanour Procedure must be complied with. Release of personal data must comply with the principles of data processing laid down by the General Data Protection Regulation.
Access to information classified for internal use only presumes that such information is necessary for a municipal council member for performing their duties, i.e. for exercising public power.
One of the duties of a municipal council member is to check the activities of the rural municipal council. This, however, does not entitle them to intervene (politically) in ongoing misdemeanour proceedings. The extra-judicial body conducting proceedings in cases laid down by law is the rural municipality, town or city government (§ 9 clause 2 Code of Misdemeanour Procedure). A municipal council member may also initiate amendments to the legislation of a rural municipal, town or city council. For this, it may be necessary to obtain information about the implementing practice of legislation.
Thus, unless releasing information would excessively compromise ongoing misdemeanour proceedings, and if it is in the public interest (see § 62 Code of Misdemeanour Procedure), information should be given to a municipal council member. However, if that information contains personal data, it may be appropriate to cover those data (the principle of minimum processing of personal data). As a rule, to perform their duties, a municipal council member does not need to know in respect of whom misdemeanour proceedings are currently being conducted. Refusal to release information must be reasoned.
Prohibition on withdrawal of a motion of no confidence
The Chancellor checked compatibility with the law of the provisions in the statutes of Jõhvi rural municipality according to which a draft decision on expressing no confidence cannot be withdrawn from proceedings.
The Chancellor found no conflict with the law.
The procedure for expressing no confidence is regulated by § 46 of the Local Government Organisation Act. However, that provision does not state whether the initiators of an expression of no confidence may withdraw the motion of no confidence. Although the provisions of the statutes which prohibit such withdrawal restrict the free mandate of (a) municipal council member(s), that restriction is not excessive.
Functions of rural municipalities, towns and cities
The functions of rural municipalities, towns and cities are divided into local government functions (§ 154(1) Constitution) and state-level functions (§ 154(2) Constitution). Local government functions, in turn, are divided into voluntary and mandatory duties.
Performance of public functions must comply with the principles of lawfulness. People’s fundamental rights and freedoms may not be restricted unless a sufficiently clear legal basis for this exists in view of the nature of the particular restriction.
Rural municipalities, towns and cities must also keep the requirement in mind in combating the spread of the coronavirus (see “Memorandum concerning measures taken to combat the spread of the SARS-CoV-2 virus in Peipsiääre rural municipality“).
The ban on grilling on balconies and terraces
It is the local authority’s function to organise maintenance of property and facilities (§ 6(1) Local Government Organisation Act), i.e. to ensure a human- and environmentally friendly, aesthetic and maintained space in a rural municipality, town or city. To ensure maintenance of property, the municipal council lays down property maintenance rules (§ 22(1) clause 361 Local Government Organisation Act).
The Chancellor was asked to check the lawfulness of a ban on grilling on a balcony and terrace in an apartment building imposed by Saue rural municipality’s property maintenance rules. The Chancellor found that such a blanket ban contravenes the Administrative Procedure Act (§ 4(2)2; § 90(1)), the Local Government Organisation Act (§ 22(1) clause 361) and the Apartment Ownership and Apartment Associations Act (§ 30(1) clause 1).
Although the municipal council enjoys discretion in determining the substance of property maintenance rules, fundamental rights may not be restricted excessively or arbitrarily. Proportionate restrictions on grilling might be imposed by property maintenance rules where the smoke and smell excessively annoy people in the vicinity of buildings, as well as with a view to maintaining the aesthetic external appearance of public space. The principle of equality must also be complied with. For instance, the effects caused by grilling on a balcony or terrace of a private house do not significantly differ from the effects arising from grilling on a balcony of an apartment building. Naturally, the precondition for it should be compliance with the necessary fire safety regulations.
The Chancellor proposed that Saue Rural Municipal Council should bring into line with the laws and the Constitution that part of the property maintenance rules which bans grilling on a balcony and terrace of an apartment building.
The municipal council did so in the municipality’s property maintenance rules adopted on 25 February 2021.
Property maintenance encumbrance
The Chancellor recommended that Paide Town Council should consider amending the town’s property maintenance rules so that they would enable taking into account different circumstances in determining the size of the area to be maintained, and in justified cases also to reduce that area. The duties imposed on a town by law may not be extended to the owner of an immovable.
Cities, towns and rural municipalities may impose an encumbrance to ensure property maintenance (§ 157(2) Constitution); § 36 Local Government Organisation Act) and decide on its substance at their own discretion. In doing so, the constitutional requirements must be complied with, including the principles of legality and proportionality (§ 154(1), § 11 Constitution).
Depending on the location, in some cases the territory to be maintained may be very large and the relevant encumbrance may turn out to be disproportionate. Proportionality is ensured by flexibility of property maintenance rules, for example the possibility to mitigate the encumbrance in some cases.
Paide Town Council informed the Chancellor that the town’s property maintenance rules were in need of an update in their entirety. To date, this has not yet been done.
Cemetery administration
The rules on use of a cemetery administered by a local authority are established by the rural municipal, town or city council (§ 7(1) Cemeteries Act). The Chancellor drew the attention of Tallinn City Council to legal problems in connection with permit requirements laid down in the rules on the use of cemeteries in Tallinn.
If a permit is required for a vehicle to enter a cemetery or to provide paid services there, the rules must set the conditions for granting a permit and lay down the procedure for applying for and granting a permit (§ 14, § 31(1) Constitution), otherwise people are not protected from arbitrariness. Granting a permit cannot be an arbitrary decision by a public authority. With reasonable effort, a permit applicant must be able to understand from the established rules what the exact substance of the permit is and what conditions they must fulfil to obtain the permit.
Tallinn City Council acknowledged that the Chancellor’s opinion was relevant and stated that it was planning to adopt new rules on the use of cemeteries in 2021.
Paying a kindergarten fee
In April 2020, Narva City Council supplemented the regulation on “Setting the rate for part of other expenses to be covered by parents in Narva city preschool municipal childcare institutions“. In doing so, the city council delegated the city government to decide on the amount of other expenses (maintenance costs, staff wages, social tax, costs of teaching aids) of municipal childcare institutions to be covered by parents during the emergency situation.
In June 2020, the Chancellor proposed to Narva City Council to bring the council regulation into conformity with the Preschool Childcare Institutions Act and the Constitution, and also explained § 27(3) and (4) of the Preschool Childcare Institutions Act (see “Narva City Council Regulation No 6 of 17 January 2008 on “Setting the rate for part of other expenses to be covered by parents in Narva city preschool municipal childcare institutions“, § 4(3)“).
The Preschool Childcare Institutions Act states (§ 27(39 and (4)) that the conditions on the amount of the parents’ own contribution in a preschool childcare institution must be laid down by the municipal council.
Narva City Council repealed the unlawful provision of the regulation.
Public financial obligations
Under § 157(2) of the Constitution, a local authority may establish a local tax, duty or other public financial obligation only if permitted by law.
The Kadriorg Park Authority, which administers cemeteries in Tallinn, charged a fee for preparing grave plots, imposed by a directive of Tallinn Urban Environment and Public Works Department. The fee was charged if a new plot was allocated for burial or an old grave plot was taken into use. Without paying the fee it was not possible to bury a deceased person in any of the municipal cemeteries in Tallinn since a grave plot needs to be prepared for burial, and those works could only be done by the Kadriorg Park Authority. No fee had to be paid for preparing a grave plot only if the grave plot needed for burial existed previously (e.g. a family burial site). The next of kin of a deceased person had no possibility to affect the rate of the fee. This means that no contractual relationship was involved. Nor did the fee for preparing a grave plot depend on the actual costs. In essence, next of kin had to pay a fee for allocation of a grave plot.
The Chancellor reached the opinion that no legal basis existed for charging a fee for preparing a grave plot. Neither the Cemeteries Act nor any other law authorises a rural municipality, town or city to establish such a fee. Under the Cemeteries Act (§ 9(8)), the costs of burial must be borne by a deceased person’s next of kin; however, fees for preparation of a grave plot established by the city department were not directly related to burial but to adjusting the land on the cemetery so as to make it usable, i.e. general administration of a cemetery.
Tallinn Urban Environment and Public Works Department informed the Chancellor that the fee in question is no longer charged.
Fee for vehicle entry to cemeteries in Tallinn
The Chancellor was also asked to assess whether undertakings providing maintenance services may be charged a fee for entry of vehicles to cemeteries in Tallinn.
The Chancellor found that imposing such a fee contravenes § 157(2) of the Constitution and restricts the fundamental right to property without a legal basis (§ 32(1)−(3) Constitution) and freedom of enterprise (§ 31 Constitution). Undertakings providing maintenance services in a cemetery could be charged a fee for entry to a cemetery with a motor vehicle only if the law explicitly authorised a local authority to establish a fee for vehicle entry to a cemetery. However, no such basis exists in the law.
Tallinn Urban Environment and Public Works Department agreed with the Chancellor’s opinion and annulled the provision in the directive laying down a fee for vehicle entry to a cemetery.
Social infrastructure fee in Kiili rural municipality
The Chancellor was asked to assess the Kiili Rural Municipal Council resolution on “Establishing a social infrastructure fee” by which the municipal council had imposed a fee for those wishing to initiate a detailed spatial plan for a development involving four or more dwelling units (an apartment, a terraced house section, a residential building). The municipality justified the decision by the need to reduce the negative effects on the municipality’s budget arising from new residents.
The Chancellor noted that, although the municipality’s viewpoint was understandable, all aims must be reached by lawful means. No law (the Local Taxes Act, the Planning Act, or others) authorises a local authority to establish a social infrastructure fee. Thus, the municipal council resolution contravenes § 157(2) of the Constitution.
The Chancellor dealt with the same issue in the 2017−2018 annual report.
The Chancellor recommended that the Riigikogu should consider a legislative amendment laying down a possibility to impose on developers duties in the public interest, and authorising local authorities to establish by a legislative act of general application the methodology and conditions for setting so-called development compensation, and its rate (or e.g. the maximum rate).
Good administration in the activities of rural municipalities, towns and cities
Procedural deadlines
The right to speedy proceedings is one of the principles of good administration (§ 14 Constitution). Administrative proceedings must be conducted without undue delay (§ 5(2) Administrative Procedure Act). A local authority must set up its working arrangements and procedures so that they would enable complying with statutory procedural deadlines.
- The Chancellor ascertained that Märjamaa Rural Municipal Government had erred against the principle of good administration in proceedings concerning design specifications organised for building a special care home in Märjamaa town since it failed to choose the right type of procedure. In the instant case, the statutorily required proceedings for a detailed spatial plan could not be replaced by proceedings for design specifications. This error caused unnecessary loss of time and possibly also other unjustified expenses.
The choice of the right procedure is extremely important in complying with the principle of good administration. Even if the municipality at first started with proceedings for design specification, those proceedings should have been discontinued as soon as it became clear that no design specifications could be issued. This would have saved valuable time and enabled initiating a detailed spatial plan.
Under § 31(2) of the Building Code, a decision to issue or refuse design specifications should have been made within 60 days in proceedings conducted by open procedure.
Although the Administrative Procedure Act (§ 5(2); § 41) enables prolonging the procedural deadline, in doing so the proceedings still have to be conducted without undue delay and avoiding superfluous costs and inconvenience to persons.
The proceedings for design specifications lasted more than a year, which is unacceptably long.
- A resident of Kohtla-Järve city complained to the Chancellor that the city would not reply to their application for municipal housing. The petitioner lacked any housing of their own and was receiving incapacity for work allowance.
The Chancellor ascertained that the city had failed to resolve the application lawfully. The city government failed to register the application in the document register by the deadline, failed to assess the applicant’s need for assistance, failed to draw up a proper decision concerning their application, and failed to duly notify the applicant of the decision.
Applications and other documents must be registered in the document register no later than on the following working day after their receipt (§ 12(1) clause 1 Public Information Act). A decision on the social service to be provided must be made within ten working days (§ 25(1) General Part of the Social Code Act). If a local authority sees that the prescribed deadline cannot be complied with, it must promptly notify the participants in proceedings of the reasons for delay and of the time of issue of the administrative act (§ 41 Administrative Procedure Act). A service pertinent to the need for assistance must be ensured within a reasonable time.
- The Chancellor drew the attention of Kose Rural Municipal Government to the fact that documents must be properly registered. Replies to memorandums must be issued in writing, or otherwise by agreement, and no later than within 30 calendar days as of registration of the memorandum (§ 5(8) (first sentence); § 6 Response to Memoranda and Requests for Explanations and Submission of Collective Proposals Act). No option exists not to reply to a person’s memorandum.
- The Chancellor received a complaint that the city of Tallinn did not always comply with the Building Code: significantly more time is spent on proceedings than prescribed by law.
The Chancellor recommended that the city should revise its working arrangements and procedural principles and develop them so that the city is able to comply with statutory procedural deadlines. By making appropriate changes, the number of proceedings requiring intervention can be cut, the duration of proceedings shortened, and the burden on both the city and persons reduced. The Chancellor also recommended that guidance material concerning building issues on the city’s homepage should be updated.
Tallinn Urban Planning Department did not agree with the majority of the Chancellor’s recommendations.
- A Tallinn resident complained to the Chancellor that they had sought assistance from Tallinn City Centre District Government in obtaining housing but the city had failed to assist them. The city had placed them in the queue for applicants for municipal housing one and a half months after submission of the application, but had failed to give them housing even more than eight months later. At the same time, as far as is known, the applicant lacked any housing of their own and their pension did not enable them to rent an apartment.
The Chancellor concluded that Tallinn city had unjustifiably delayed in deciding on provision of assistance and ensuring housing to the person in need. The Chancellor asked that Tallinn city should immediately provide appropriate housing to the person in need and also ensure that in the future the city district government would make decisions on provision of housing within the statutory deadline.
Where a person has given notice to the city that they need welfare assistance, a city district government must assess comprehensively whether and what assistance the person needs, and decide no later than within ten working days whether and how the city can help the person (§ 15(1) Social Welfare Act; § 25(1) General Part of the Social Code Act). The necessary assistance, including suitable housing, must be provided to a person if they need it (§ 3(1) clause 1; § 41 Social Welfare Act).
By order of 21 April 2021, Tallinn City Government temporarily rented a dwelling to the person in need.
- The Chancellor found that Lüganuse Rural Municipal Council and Government had failed to act lawfully in conducting proceedings of a draft council resolution submitted by municipality’s residents since the municipal council and government had failed to comply with the statutory deadlines, and had not justified the missed deadline to the initiators of the draft.
Section 32 of the Local Government Organisation Act lays down that no less than one per cent of the residents – but not less than five residents – of a rural municipality, town or city with the right to vote may initiate passing, amending or repealing legislation of the rural municipal, town or city council or government concerning local issues. Such initiatives must be debated no later than within three months. The initiative is to be presented to the rural municipal, town or city government in the form of a corresponding draft to which a list with the signatures of the initiators is to be appended. If the issue initiated is within the competence of the municipal council, the municipal government shall, within one month, submit the issue together with its position to the municipal council for resolution.
The Chancellor asked that Lüganuse Rural Municipal Council should put the draft swiftly for debate and pass a decision on it. The municipal council complied with the proposal.
State supervisory proceedings
The Chancellor found that Peipsiääre Rural Municipal Government had unjustifiably delayed a decision to initiate state supervision proceedings. The municipal government also provided unclear and misleading information to petitioners and state bodies about initiating the proceedings.
A law enforcement body must act swiftly, with appropriate due diligence and consistently, both for protecting private and public (the general public) interests. A decision on initiating proceedings must also be made within a reasonable time.
Since Peipsiääre Rural Municipal Government had failed to act in this way, the Chancellor proposed that the municipal government should comply with the principle of good administration. The Chancellor called on the municipal government to quickly organise state supervision proceedings in line with all the procedural requirements, and asked to be regularly notified about the progress of the proceedings (and be sent the newly added procedural documents). The Chancellor recommended that in the future the municipal government should also comply with the principles of administrative procedure (the investigative principle, the duty to carry out proceedings as quickly and effectively as possible, and the like – § 6; § 5(2) and (4) Administrative Procedure Act; § 8 Law Enforcement Act) and provide precise information about the proceedings.
Justification for rejecting a proposal
The Chancellor was asked to check whether proceedings concerning a proposal submitted within the participative budgeting procedure in Elva rural municipality had been carried out properly. The participative budgeting procedure is regulated by the Elva Rural Municipal Council regulation on “The procedure for carrying out participative budgeting proceedings“. This lays down that an object of participative budgeting must provide public benefit, be in public use, and may not lead to unreasonable future expenses in the municipal budget.
The Chancellor found that the relevant committee of the rural municipal government had failed to properly assess the application and recommended that the municipal government should reconsider the proposal and properly justify its decision. For instance, the procedure for participative budgeting does not require that a building concerning which a proposal is made must belong to the municipality and be administered by the municipality (which was the reason given for rejecting the proposal).
The mayor of the rural municipality informed the Chancellor that the municipal government intended to revise the procedure for participative budgeting and amend it where necessary.
Good administration
The Chancellor’s task is to monitor whether the authorities comply in their work with legislation, including the principle of good administration. The principles of good administration are set out in the Administrative Procedure Act. The principle of good administration means, inter alia, that state and local government officials communicate with people politely and to the point. State agencies 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 agencies.
People contacting the Chancellor are often dissatisfied with how state agencies deal with their requests and applications. The problem starts right from an agency’s failure to register a person’s application. Applications and other documents must be registered in the document register no later than on the working day following their receipt. This requirement is laid down by the Public Information Act (§ 12(1) clause 1). The requirement of registering documents is not an end in itself but helps to ensure that each application leaves a trace and is also dealt with. It is unlawful to keep an application simply on an official’s desk or in the e-mail inbox. Due to failure to register applications and requests, the Chancellor had to admonish the Agricultural Board, Kohtla-Järve City Government as well as Kose Rural Municipal Government.
Põlva and Rakvere town and Tallinn city and Valga rural municipality failed to reply by deadline to people’s memorandums and requests for explanation. Problems with following deadlines also occurred in the Ministry of Justice, the Ministry of the Interior, the Ministry of Social Affairs, and the Health Board. 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. In line with the principle of good administration, an individual must be informed at the first opportunity about a delay in replying or extension of the deadline for reply and the reasons for it.
Problems over compliance with the principle of good administration also occurred in organising social services. This was particularly evident in a case in Toila rural municipality where a petitioner complained about being taken to a care home.
According to the Chancellor’s assessment, in terms of applicable law Toila rural municipality clearly violated the petitioner’s rights while the municipality’s activities in organising the general care service were not lawful. The rural municipal government failed to draw up a record of the petitioner’s alleged oral request to obtain the general care service, failed to present data on involving the petitioner in the proceedings for provision of the social service, ensuring their right to be heard and taking account of their will, nor did it prepare an all-round assessment of the petitioner’s need for assistance. It also remained unclear in this case in what condition the petitioner was at the time of signing the contract with the care home and whether and what kind of will they expressed at all.
Kohtla-Järve city also failed to resolve an application for housing in line with applicable law. The petitioner requested housing from the city because they lived in an unheated garage and had been identified as lacking capacity for work. The Chancellor found that Kohtla-Järve city had failed to lawfully resolve the petitioner’s application for housing. The city government failed to assess the petitioner’s need for assistance, failed to draw up a proper decision concerning the petitioner’s application, nor did it duly notify the petitioner of the decision.
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. The Chancellor has appointed the editor-in-chief of the cultural paper Sirp, Kaarel Tarand, as a member of the Committee. The Committee and its members are independent, they have no obligation to report their activities to the persons or institutions appointing them, and they also do not accept or receive instructions from the persons appointing them.
In spring 2021, ten years had passed from setting up the Political Parties Financing Surveillance Committee in its present form. This has been a sufficiently long time to reveal whether and how well the established procedure leads to the desired objective, and whether supervision is effective and economical and supports law-abiding behaviour by political parties and election coalitions equated with them. And not only this. Supervision is also a sort of a mirror: it shows that statutory financing rules − not only control − contribute to fair competition and the development of representative democracy exercised through political parties.
When an attempt was made a year ago in the Riigikogu to change the current procedure for supervision, unfortunately the approach initially pursued was not of the kind that would have led to a solution. Instead, as of this spring, work has been ongoing on remedying shortcomings in the Political Parties Act based on the so-called traditional approach, beginning from collecting and analysing data and preparing a draft by experts in the Ministry of Justice. However, regardless of who does the preparatory work, final political decisions are for the parliament to make. Both sides must be weighed in combination, i.e. both financing of political parties and supervision thereof. The choice of tools provided for supervision depends on what is allowed and what is prohibited in financing political parties.
The period of the global corona pandemic has very well revealed why every detail in the structure of state power is important. The idea and purpose of supervision over financing of political parties is not to undermine the authority of political parties. Likewise, it cannot be the aim of political parties to discredit supervision. Cooperation carried out in line with clear and precise rules should ensure that public power in its entirety, including political parties as its building blocks, enjoys sufficient trust in the eyes of citizens. There could be more trust in political parties, and shortcomings in this respect also cast a shadow on state institutions. If citizens do not trust political parties, they do not trust the state, which in turn affects the state’s ability to succeed: this time in dealing with the health crisis, next time with some other crisis originating independently of Estonia which, nevertheless, the Estonian state must deal with. Thus, in establishing rules for financing and supervising political parties, human lives and openness of society are indirectly at stake.
Possible changes in the set-up and financing of institutions must be weighed carefully, yet quickly, because the entry into force of the changes should not hamper election of the next composition of the Riigikogu. Everyone concerned − recipients, donors and guardians of money − must be given time and opportunity to prepare and get adjusted. After all, it is in the interests of everyone involved that competition is fair and a corrupt act by a single individual involved in the system should not cause unfair reputational damage to their colleagues who abide by the rules.
As is usual in years when elections of municipal councils take place, the focus of supervision also falls on local authorities. Compared to the time four years ago, some improvement in the conduct of candidates running for municipal councils may be perceived, including in the use of communication channels of local authorities, or to be precise, in non-use of those channels for political advertising.
Based on complaints received by the surveillance committee, room for improving the situation still exists, but undoubtedly the persistent work of the Political Parties Financing Surveillance Committee, precepts issued by it and court rulings have had an effect at least on the conduct of political parties in power in larger local authorities. At the same time, we should not forget the question whether resources spent in the course of supervision to investigate misuse of an insignificant monetary amount have indeed been used for a good purpose and whether an indirect consequence of burdening the committee with these acts might not be that a larger – in monetary terms more significant – violation, creating an unfair advantage for the perpetrator, might evade proper scrutiny.
In this case, an example of citizens seeing most directly how extensive the effect of changing just one detail in the law can be is the abolition of the restriction on outdoor political advertising during the active campaign period. This should inspire the Riigikogu to deal swiftly and properly with other details of political competition as well.
National Electoral Committee
The National Electoral Committee has been set up on the basis of the Riigikogu Election Act and its main task is legal supervision and control of all the decisions and steps taken in connection with elections. In addition, the Electoral Committee organises and carries out elections for the President of the Republic and the Board of the Riigikogu.
The Electoral Committee ascertains the voting results in elections for the Riigikogu and for the European Parliament or in a referendum. It also registers members of the Riigikogu and members of the European Parliament elected from Estonia. The Electoral Committee also handles election-related complaints.
The mandate of the Electoral Committee lasts for four years; the mandate of the current members began on 1 June 2020. Under the law, members of the Electoral Committee include a first instance judge appointed by the Chief Justice of the Supreme Court, a second instance judge appointed by the Chief Justice of the Supreme Court, an adviser to the Chancellor of Justice appointed by the Chancellor, an official of the National Audit Office appointed by the Auditor General, a State Prosecutor appointed by the Prosecutor General, an official of the Government Office appointed by the Secretary of State, and an information systems auditor appointed by the Board of the Estonian Auditors’ Association. Every member of the Electoral Committee also has a substitute member.
From 1 September 2020 to 31 August 2021, two elections for the Board of the Riigikogu and election of the President of the Republic took place in Estonia. In addition, the National Electoral Committee also dealt with preparing the municipal council elections taking place on 17 October 2021.
During the reporting period, the Committee held 15 meetings.