Chancellor’s Year in Review

Dear Reader

It is shortcomings in the rule of law in Estonia that mostly attract attention in the Chancellor’s report even though the report also always mentions many things that we may be satisfied with. Of course, it is also true that one can always do better.

However, let us start with positive things.

Even one person caught in the cogwheels of bureaucracy is too much. Therefore, we do not shy away from complaints just seeking a solution to a problem of one individual only. For example, with the help of the Ministry of the Interior and a notary, by using remote identity verification we managed to register a child born during the father’s foreign mission as the child of that father. The child’s parents wanted their child not to be registered as the child of a single parent. While for some this might seem like a minor detail, for this family it was a matter of support and understanding by their own country.

The situation is similar with a fair parental benefit, an allowance for children starting school, or adaptation of a person’s home – even an isolated mistake that is quickly rectified speaks of readiness on the part of the state or local authority to acknowledge their mistake and treat the person concerned fairly and with dignity. Luckily, such individual cases are but few. There was also one successful conciliation proceeding as a result of which a bank was prepared to acquire a voice-operated PIN calculator that would facilitate use of its internet bank by individuals with a visual disability.

On 1 September 2022, the State-Funded Family Mediation Services Act entered into force. For years, we have explained that separated parents should not sort out their relationship at the expense of their child’s well-being, and that even after the divorce the child’s interests must be the primary consideration. By the time of a court dispute, however, the relationship may unfortunately already be so strained that no reasonable solution is reached. This is evidenced by numerous complaints received by the Chancellor concerning contact arrangements. The national family mediation service should help separated parents to reach agreement with a view to the well-being of children before going to court.

Although enough suitable kindergarten places are still unavailable for everyone interested, rural municipalities and cities have on several occasions taken into consideration the Chancellor’s proposal and rectified the rules contained in regulations on allocation of kindergarten places that contravened the law.

Signs of maturity of society are also noticeable in the field of protecting and promoting the rights of people with disabilities as ever more people understand the need to support those with special needs so as to enable them to lead an independent life as far as possible. The Chancellor still needs to explain that a rural municipality or city cannot remain a bystander without showing initiative but must find out how to really help someone in need.

We can start the report of an inspection visit to almost any general care home with words of praise for caring and kindly staff. However, regrettably the recurring conclusion in the summaries of these visits is also a shortage of carers and activity supervisors everywhere, as well as their excessive workload. It is positive that all the general care homes inspected had made the nursing care service available for their residents. This is great progress.

The living conditions of people in need of 24-hour special care under a court order are improving. All of them now live in up-to-date family houses enabling more privacy at Viljandi, Sillamäe and Merimetsa.

For years, we have been urging prisons to stop strip searches of children prior to a visit with their parent. It is the prisoner and not the child who may be thoroughly searched. Tallinn Court of Appeal has affirmed this position. There can be no excuse for a condescending attitude to a prisoner and their children. After serving their sentence, a former offender must be capable of leading a law-abiding life, with family, home and work being extremely important for this.

An end has been put to unlawful interception by the Environmental Board of radio communication between hunters. There is also good news resulting from supervision carried out over surveillance and security agencies. The Chancellor carries out regular supervision to ensure that no one can be lightly and without restraint subjected to interception or surveillance.

The year in terms of constitutional review was diverse. For instance, a rural municipality paid support for a child on first starting school only to those parents whose child was that municipality’s resident and entered a school of that municipality. However, the municipal council had failed to notice that there also exist children with special needs who, due to their disability, cannot attend that municipality’s school and must therefore choose another school. The municipal council understood the problem and resolved it quickly.

Many concerns exist in the area of construction and planning, in particular in Tallinn. A dispute about the constitutionality of regulations guiding construction in Tallinn is still ongoing. Constitutional review also had to be initiated to check the Acquisition of Immovables in the Public Interest Act.

These are just some examples to illustrate the daily work of the Chancellor’s Office. You will find a more detailed overview of resolved as well as pending cases in the specific chapters of this report.

I would like to thank members of the Riigikogu and the Government, judges, officials, scientists and entrepreneurs who have helped to resolve both major and minor problems that have ended up on the Chancellor’s desk. I can still confirm that there are many of those who spare no effort to help make Estonia a better place.

Unfortunately, we can still also witness arrogance, disrespect for the law, worship of public opinion or expecting political guidance where an official should reach a decision independently, only by relying on the law, facts and logic.

Unfortunately, the health of the rule of law in the country has significantly deteriorated in the past couple of years. Something that we knew we should fear has now happened: violations of national constitutions and EU law spurred by the corona fear encourage new violations. We hear the excuse ‘So what, even worse things were done during the corona pandemic’. Such a change in attitude is even worse than damage caused to people, businesses and the natural environment by unlawful restrictions.

Independent institutions everywhere are under overall attack while trying to protect the rule of law. At first sight, this systemic shift in attitude seems insignificant, perhaps even temporary. However, in the longer-term perspective it will hit everyone hard. We must learn from history that people easily tend to become barbarised and treat their fellow humans as senseless building material for the future. For a seemingly noble goal, freedoms may easily be withdrawn. Especially so if there are no restraining or counterbalancing mechanisms or if these have been eliminated. Public opinion may at first even favour violation of fundamental rights because of sufficiently strong fear or anger. Stirring up the flame of anger is not at all difficult in the era of flash media. Violating another person’s rights and attacking the rule of law also seems appropriate to those who actually lack other power besides the megaphone of social media. A firm hand seems necessary, even welcome, to many. It also seems safe until it grabs one’s own throat. But by then it is too late.

We also saw many situations where a law is in force but is not observed. And not because the law is incomprehensible. For instance, we had to draw the attention of the city of Narva to the fact that municipal council sessions must be held in the state language. The fact that elected municipal councillors either do not know Estonian or do not wish to speak in Estonian cannot justify the violation. A mandatory examination for all candidates running for municipal councils would not solve the problem. Instead, the requirement to hold municipal council sessions in the state language must be complied with. After all, one might also ask whether resolutions passed at an illegally-held session are lawful.

We can witness state agencies increasingly using the devious technique of not passing an official decision concerning the rights and duties of people and in this way forcing people, for example, to withdraw their application for a permit. By doing so they avoid the need to justify a decision on refusal and the risk that a dissatisfied applicant would have recourse to the court. Such practice in a country governed by the rule of law is completely impermissible. 

During the last reporting year, an old problem sharply arose once again: the law exists but the situation is like in an old joke. A judge tells one of the disputing parties that he is right. The other party objects. The judge affirms that he is right as well. “But both of us cannot be right at the same time,” the parties wonder. “You are right again,” the judge concludes.

A law that does not change anything for anyone is probably not needed at all. The situation is even worse if the law ends up being so confusing that everyone interprets it as they like. Sometimes confusion is also caused by cowardice or cunning: it is good to tell people with opposing interests that it was their right that prevailed. For example, this is what happened with the Hunting Act and allocation of rights to use hunting districts.

A rather sad issue is a knowingly wrong interpretation of the Constitution or a law. People are free to debate whether the principle of the social state gives rise to a duty to cover an individual’s electricity and heating bills if that individual themselves is unable to do so. It is possible to argue both ways as to how we should understand social justice, the minimum level of dignified life, and solidarity, and how it should be expressed in society. However, we cannot express opinions in the same way about facts. For example, the list of mandatory grounds set out in the Constitution and the law for resignation of a prime minister from office is a fact. A person either knows it or not. We can only debate about how it could be or what we would like. The situation is the same with Schengen visa regulations. 

The issue of a patient’s last will (also termed a ‘living will’ or ‘advance directives’) is still unresolved. This means that the fundamental right to decide over one’s life and health does not exist in reality, i.e. the legal order does not preclude issuing a directive about one’s future but at the same time it does not guarantee that the person’s will reaches a doctor in time so that it is actually respected. What legal and technical solutions should be created so that a patient’s will is visible is for the Riigikogu to decide. What is important is that a patient’s illusory possibility to decide themselves about the healthcare services provided to them would be replaced with an actual possibility. Estonia has also incurred the obligation to protect a person’s right of bodily self-determination under international treaties.

For years, decisions shaping people’s rights and duties and the business environment have shifted outside the laws, i.e. sidelining the Riigikogu. The best-known example is probably the case concerning the Infectious Diseases Prevention and Control Act, where the executive was given a free hand in significantly restricting fundamental rights. Generalised delegated powers which actually fail to impose limits on the executive are useless and do not conform to the Constitution. It is for the Supreme Court to decide whether the provisions of the Infectious Diseases Prevention and Control Act are too general and whether directives not subject to constitutional review and aimed at an unlimited number of people for resolving an unlimited number of situations may be used to lay down orders and prohibitions secured by the threat of punishment.

Estonia’s governance is through the Riigikogu. The frame for restricting fundamental freedoms, including freedom of enterprise, must be provided with sufficient clarity by the people’s representative assembly, while resolving specific crisis situations and individual cases must remain in the hands of the executive. Since in the event of a crisis politicians – including in the Riigikogu – are placed under heavy public pressure to do something decisive, it is wise to leave implementation of laws in the hands of independent officials. The Riigikogu provides the frames but seeking scientifically-based solutions best suited for each specific situation should remain for officials and experts who also dare to ignore public opinion where necessary.

The rule of law should indeed be protected to avoid passing ill-considered decisions on the spur of momentary emotions under the pressure of public opinion. Estonia is founded on everyone’s freedom and accountability. The Constitution is wise, it takes into account the psyche of people in our value space. Recognising the freedoms of others, respecting different views and ways of living brings success, leads to a better future, and holds Estonia together. Excessive restrictions, orders and prohibitions cause new divisions in society and incite people against each other and against the state. A person of voting age is responsible for their country. This responsibility may not be blurred and people should not be lightly impelled towards the spirit of protest, into the claws of conspiracy theories, or passivity.  The Estonian state must respect the dignity of its citizens, their individuality, and freedom. The Constitution requires this.

The Constitution also requires that independent institutions – among them the Chancellor of Justice – should tirelessly and fearlessly work in the name of fulfilling this requirement. Officials in the Chancellor’s Office do their best in order to effectively fulfil their constitutional duty.

Ülle Madise

Chancellor of Justice of the Republic of Estonia

Chancellor of Justice as the National Human Rights Institution

Under the Act supplementing the Chancellor of Justice Act passed on 13 June 2018, the Riigikogu decided that 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 (GANHRI), more specifically its Sub-Committee on Accreditation (SCA). Since December 2020, the Chancellor has held A-status, i.e. the highest level.

In July 2022, ENNHRI, the umbrella organisation uniting all the human rights institutions in the European region, provided an overview of all the countries, depicting the situation in 2021.

Work of the Advisory Committee on Human Rights

The Advisory Committee on Human Rights advising the Chancellor met twice during the reporting year: in October 2021 and May 2022.

The meeting in October focused on the issue of promoting and protecting human rights in practice and the question: “How to bring about change?” Protecting and promoting human rights means identifying and becoming aware of problems, and accepting that a solution needs to be found and changes brought about. The debate at the meeting focused on how to find effective solutions to complicated problems, how to change attitudes, cooperate, overcome seemingly insurmountable obstacles.

Experts in healthcare and the social, cultural and educational sphere shared their experiences. Among other things, members of the Advisory Committee together with presenters and the Chancellor’s advisers discussed what tasks in promoting and protecting human rights should be undertaken by museums, what a future architect should know about equal treatment and human dignity, why young people while receiving sexual health services need centres specifically intended for young people, how to bring about change in strongly hierarchical institutions closed to new ideas, how to change attitudes and patterns of behaviour, and how to fight stereotypes.

In May 2022, a joint meeting was held of the Advisory Committee on Human Rights with the Chancellor’s Advisory Committee of People with Disabilities. The meeting took place in cooperation with the Gender Equality and Equal Treatment Commissioner. The topic was equal treatment, focusing more specifically on what constitutes equal treatment and discrimination and why not every instance of unequal treatment amounts to discrimination. What legal instruments are available and how do they protect equal treatment in Estonia? What are the shortcomings? Also discussed were issues of accessibility and equal treatment in the context of services, education, culture and healthcare.

International information and awareness raising

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 hearing of Estonia in May 2021.

Among other things, 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 UPR cycle continued in the second half of 2021 when the plenary session of the UN Human Rights Council took place, as a result of which other countries offered several recommendations to Estonia. Recommendations also include those previously offered by the Chancellor. For example, the Chancellor recommended that Estonia should ratify the Optional Protocol to the UN Convention on the Rights of the Child and the Optional Protocol to the UN Convention on the Elimination of All Forms of Discrimination against Women, both of which enable individual complaints.

In February 2022, the Chancellor delivered oral positions to a delegation from the GREVIO (the organisation monitoring implementation of the Istanbul Convention, i.e. the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence).

In February, a meeting took place with representatives of the European Commission to discuss the situation of the rule of law in Estonia. The European Commission has now published a report dealing with significant developments in connection with the principles of the rule of law in all European Union member states.

In April 2022, the Chancellor submitted written comments to the relevant UN committee monitoring how well countries comply with the duty to combat racial discrimination (UN International Convention on the Elimination of All Forms of Racial Discrimination).

The book “Human Rights”

In April 2022, under the leadership of the Chancellor’s Office, the compendium “Inimõigused” (Human Rights) was published, being the first comprehensive treatment of the field of human rights in Estonian. The book consists of 26 chapters dealing with the main human rights issues: the history of human rights, the international human rights protection system, the methodology of studying human rights, the freedom of assembly and speech, the rights of children, the rights of people with disabilities, violence against women, sexual and reproductive rights. The book is freely available on the website www.inimoigusteraamat.ee and on the same page it is also possible to download a pdf version of the book.

The 33 authors of the book include the Chancellor’s advisers, researchers from Estonian and several foreign universities, judges, attorneys, experts from other state agencies and non-governmental organisations. For the editor-in-chief and the Chancellor of Justice it was important to include – among both authors and reviewers – experts with backgrounds as diverse as possible so that this significant book would not be written by an existing established circle of people, i.e. by the usual suspects. The aim was that the range of authors should be cross-disciplinary and that writing about human rights would not be the privilege of lawyers only. This means that even though the book is a compendium, each chapter is autonomous and reflects the face of its author(s). Every author represents their own views (and not those of the Chancellor or their employer) and the issues treated in the chapters reflect the authors’ education, professional training and everyday work.

Of course, the book is intended to be read and used by everyone interested. Since it is a referenced research text, the main addressees are lecturers and students but certainly also practitioners ranging from the social sphere to healthcare (not to mention the legal sphere).

The approach applied in the chapters is as interdisciplinary as possible, so that the book is definitely not intended only for those with legal education. The compendium could potentially be used in universities, courts, law offices, local authorities as well as ministries. For instance, every child protection worker in Estonia might read the chapter on children’s rights, every care home manager the chapters on the rights of the elderly and prevention of degrading treatment, every member of the Riigikogu the chapters on human rights protection in Estonian constitutional space and on human rights and the European Union. Universities might find relevance in the chapters on the history of human rights and the methodology of human rights studies.

The book provides an overview on the theory of human rights protection and offers examples from Estonian and international practice, while numerous references to the most contemporary scientific literature are also provided. Scientific literature on human rights helps to understand the nature of human rights and presents an overview of existing national and international human rights protection mechanisms, thus contributing to promoting human rights education and better protecting human rights. Through the angle of human rights, the book also investigates those topics which for a long time have not been seen as human rights protection issues, such as poverty reduction and environmental protection.

This compendium should not be treated as a (technical) handbook describing all the relevant conventions and legal norms or providing a complete overview of judicial case-law in connection with each topic. Although case-law and international conventions are mentioned in the relevant chapters, the authors additionally offer a critical analysis about the birth and shortcomings of various human rights protection instruments, analyse the processes and development in the relevant fields, and – as is characteristic of scientific literature – ask the questions “why?” and “how?”. The book also acknowledges (including through the choice of topics in the chapters) how social processes affect human rights protection, how the birth of one or another legal norm was preceded by political struggle, and often through selfless work by NGOs and academics, a wider political (protest) movement, and how everyone’s human rights are still not protected equally effectively, despite the lengthy time-span of the human rights protection system.

More information about the birth of the book can be found in the foreword by the editor-in-chief and comments.

In addition to the book, the same website includes a blog on human rights, offering regular shorter posts to support the issues covered in the book.

Presentations and interviews

On 22 September 2021, the head of NHRI activities Liiri Oja delivered a presentation “Mida tähendab inimõigustepõhine lähenemine noorte seksuaal- ja reproduktiivtervisele?“ (What does a human rights based approach mean for the sexual and reproductive health of young people) at the annual health promotion conference of the National Institute for Health Development.

On 24 September 2021, Liiri Oja delivered a presentation “Soopõhine vägivald. Istanbuli konventsioon ja Euroopa Inimõiguste Kohtu praktika“ (Gender-based violence. The Istanbul Convention and case-law of the European Court of Human Rights” at a seminar “EU Gender Equality Law“ for members of the judiciary organised by the Academy of European Law (ERA) and the Supreme Court.

On 10 December 2021, the Chancellor of Justice Ülle Madise delivered a presentation at the annual human rights conference.

On 2 February 2022, Liiri Oja participated in the debate “Rahvusvahelistest inimõigusalastest konventsioonidest tulenevad Eesti rahvusvahelised kohustused ja nende täitmine. Inimõiguste olukorra monitoorimine ja edendamine“ (Estonia’s international obligations arising from international human rights conventions and their implementation. Monitoring and promoting the human rights situation) at a conference in commemoration of the Tartu Peace Treaty organised by the Ministry of Foreign Affairs. She spoke about the NHRI’s activities and accreditation experience.

On 17 June 2022, Liiri Oja gave an interview to the feminist online portal Feministeerium and introduced the compendium “Inimõigused“ (Human Rights). “Analysis of human rights should be an inherent part of legislative drafting,” Liiri Oja said in her interview.

International cooperation

Since 2001, the Estonian Chancellor of Justice has been a member of the International Ombudsman Institute (IOI). The Institute includes over 200 national and regional ombudsmen from over a hundred countries worldwide. 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), the International Conference of Ombuds Institutions for the Armed Forces (ICOAF), the police ombudsmen (IPCAN) and National Preventive Mechanisms (NPM).

In 2022, the following mandates come to an end: the mandate of the Chancellor of Justice Ülle Madise as the Estonian representative in the Council of Europe Commission against Racism and Intolerance (ECRI) and the mandate of the head of the International Relations and Organisational Development of the Chancellor’s Office, Kertti Pilvik, as the Estonian representative on the Management Board of the EU Agency of Fundamental Rights (FRA).

Cooperation and meetings

After the restrictions imposed due to the corona pandemic, international communication picked up again.

In September, in the frame of the training programme for judges, the Chancellor was visited by judges from France, Germany and Romania. On the Estonian side, the training programme is implemented by the Supreme Court. In October, the Chancellor received a visit from Mirjam Graf, the Data Protection Ombudsperson for the city of Bern. Also interested in data protection issues were the representatives of the Hungarian National Authority for Data Protection and Freedom of Information visiting Estonia in April. In February, the Chancellor welcomed a delegation of prosecutors from Ukraine, in May members of the CSU (Christian Social Union) parliamentary group of the State of Bavaria, and in June Frontex independent fundamental rights monitors. In May, the Chancellor was also visited by Nino Lomjaria, the Public Defender of Georgia, together with two deputies and the head of the children’s rights department.

More actively than before, international conferences, seminars and other meetings were organised, both online and on-site. For instance, in September and June meetings of the European Network of Ombudspersons for Children were held in Athens and Warsaw, in October a fundamental rights forum organised by the EU Fundamental Rights Agency took place in Vienna and a seminar of the Council of Europe Commission against Racism and Intolerance in Strasbourg. In April, a conference of the European Network of Ombudsmen took place in Strasbourg and in May the General Assembly and conference of the International Ombudsman Institute in Sounio.

In March and April, extraordinary online meetings of members of the European Network of National Human Rights Institutions and the European Network of Ombudspersons for Children were held in order to discuss the situation in Ukraine. Both networks expressed support for their Ukrainian colleague and condemned the Russian armed attack against Ukraine (see ENNHRI statement on ensuring that humanitarian law and human rights are respected and protected in the context of the current armed attack on Ukraine; ENOC calls for urgent action to protect children’s rights in Ukraine).

International information and awareness raising

The Chancellor participated in drawing up several international reports. For example, the Chancellor submitted her positions to GREVIO, i.e. the organisation monitoring implementation of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, the UN Committee on the Elimination of Racial Discrimination, and the European Commission, which drew up a report on the situation of the rule of law in European Union member states.

The Chancellor participated in Estonia’s third universal periodic human rights review (UPR). The third UPR cycle continued in the second half of 2021 when the plenary session of the UN Human Rights Council took place, as a result of which other countries offered several recommendations to Estonia (see, in more detail, the sub-chapter “Chancellor of Justice as the National Human Rights Institution”).

International conferences and training

On 13–16 June, the European congress of the International Society for the Prevention of Child Abuse and Neglect (ISPCAN) was held in Tallinn on the topic “Child Protection for the Most Vulnerable Children and Families“, which the Children’s and Youth Rights Department of the Chancellor’s Office also participated in organising. The congress focused on mental health, ill-treatment of children, domestic violence, children in closed institutions, protection of children of parents in prison and suffering from addiction, cross-border cooperation, and use of digital services. The participants were welcomed by the Chancellor of Justice, Ülle Madise.

On 16 June, the Chancellor’s Office in cooperation with the Ministry of Justice organised a training event on “The children of parents in prison: their rights and needs” for prison service officers, probation supervisors, child protection specialists and policy-makers. The debates focused on why children whose parents are in prison need special attention; how to receive and support children in prison; what information children need and in what form it should be provided; what opportunities should be used for contact between a child and a parent, and how to support a child outside prison. Also explored was the issue how a child’s well-being and contact between a child and their parent in prison affects the aims of re-socialising the parent.

The training was carried out by the head of the network Children of Prisoners Europe, Liz Ayre, and the project manager of the Probacja Foundation, Ewelina Startek. Estonian experts were also given the floor. The training was funded from the 2014–2021 European Economic Area and Norway grants programme under the heading “Local development and poverty reduction” (the project on creating a system for special treatment of juveniles).