The pandemic

The spread of the coronavirus SARS-CoV-2 among humans was first detected at the end of 2019 in China. However, the general belief is that a few people already carried the virus some months earlier. It is not known precisely, and with great probability we will also never know, who was actually the first person who contracted the disease, i.e. patient zero from whom the pandemic outbreak started that has now affected the lives of us all. Similarly, it is not known precisely where the virus came from and what will happen to it next.

Such uncertainty is rather the rule than the exception. Do we know precisely where the coronavirus SARS-CoV-1 (2002) came from or why it faded away and did not develop into a global epidemic? Do we know why the coronavirus MERS (2012) that was detected for the first time has to date not been able to successfully spread among people? Do we know precisely the origin of the new pandemic flu virus (2009)? Why is it precisely now that the monkeypox virus has started to spread in Europe being previously merely a distant, exotic and relatively insignificant viral infection seldom caught while travelling?

These are exciting questions to which scientists are trying to find accurate answers. In general, the answers still remain hypothetical because ascertaining the absolute and final truth is complicated. It may be difficult to imagine but despite enormous scientific developments the knowledge of humankind about infectious diseases, including details of their spread and mutation, is still limited. One might think that modern molecular genetic methods or the revolution of bioinformatics enable ascertaining the links between cause and effect and also do so retrospectively or prospectively. Yet currently this is still not the case.

During the whole of its existence, humankind has lived with infectious diseases. This so-called cohabitation is enabled, on the one hand, by the extremely adaptable and complicated human immune system and, on the other hand, by the ability of infectious diseases simultaneously to mutate and adapt. It is futile trying to investigate whether this cohabitation is friendly or hostile, useful or harmful. Living nature is grounded on rules-based processes, and not on feelings and judgements. However, it is important to understand that constant changes and adaptation to them do occur in this cohabitation.

In general, an important change in the usual balance of cohabitation between humans and infectious diseases emerges precisely when a new infectious disease or one with significantly changed qualities has appeared which is able to spread sufficiently well among humans and against which people do not have sufficient immunity acquired from previous cohabitation. It is precisely these two prerequisites that led to the latest global pandemic. The result was the rapid and extensive spread of an infectious disease and higher than average morbidity, need for treatment, and mortality.

However, as we know, change is followed by adaptation, which may take place in several stages leading towards the usual balance. Thus, fortunately, no pandemic can last forever. The coronavirus pandemic starting in early spring 2020 could be justifiably considered to be over once that SARS-CoV-2 no longer exists or when it is possible to reach the judgement that further cohabitation between humans and the virus will take place in a reasonable and usual balance. In line with the overall scientific consensus, the first condition cannot be achieved, and the reasons for this are several. However, the second condition is achievable, and according to the assessment of several countries this condition is already fulfilled.

Thus, we, including the Estonian state, are faced with the question: do we still have a coronavirus pandemic? There is no single and clear answer to this because it would presume a uniform understanding of the definition of a pandemic. No such uniformity exists in Estonian or European Union legal space. Although we are able to speak of the classic, or the most widespread, definition of a pandemic, even this is still used and understood differently, which has already previously caused critical debate.

In general, definitions of a pandemic in any case involve the global spread of a new infectious disease but fail to describe its accompanying effects in more detail. At the same time, definitions of a pandemic do focus on the exceptionally harmful effect of a new infectious disease on human health and on the functioning of healthcare systems. An infectious disease which is able to spread globally at great speed but rarely causes any health problems would probably not attract much attention as a pandemic.

The World Health Organisation has a legal instrument for determining events or public health emergencies of international concern. In the Estonian legal system, the concept of an emergency (hädaolukord) is used. Thus, now – approximately two-and-a-half years after the start of the pandemic – we should seek the answer to a much more specific question. That is, whether the spread of the coronavirus causes – or in great likelihood may still cause – an emergency. If this is not so, then we may consider at least the acute stage of the pandemic to be over. Taking into account that our – as well as the whole of humankind’s – inevitable cohabitation with SARS-CoV-2 will continue at least for some time, we should also describe what such post-emergency cohabitation means.

During this reporting year, too, the Chancellor had to deal with this as well as other issues − in particular the lawfulness of restrictions imposed for combating the pandemic − by replying to numerous petitions and, where necessary, providing legal advice both to those imposing the restrictions as well as those whose everyday life the restrictions significantly affected.

The rules during the pandemic

Despite many still unanswered questions, certain unchanged rules apply to the coexistence of people and infectious diseases. These rules help us so that we can continually make sense of a changing situation and understand what can or should be done in that situation.

Thinking about the rules applied or still applicable in the pandemic, a clear distinction must be drawn between rules created by nature and rules imposed by people. Yet for some reason we tend either unintentionally or intentionally to confuse them.

It is not the virus that closes schools, hobby groups, sports halls, theatres or cinemas. Nor does the virus require a certificate or wearing a mask. These are decisions made only by people. Thus, only people can bear responsibility for whether and in what form these decisions are needed, justified and proportional in the narrow sense. Debating about rules established by people must be possible − and is often also necessary − because it must be possible to amend or abolish rules which are insufficiently justified.

A virus is a phenomenon on the borderline of living and inanimate nature and whose spread may cause infection and disease among people. Risks and their consequences can be partly influenced and partly not. For instance, people cannot change such risk factors of a serious form of the coronavirus infection as age or reduced immunity resulting therefrom. However, people can reduce the risks of being infected and contracting the disease.

We may of course argue about these simple rules set by nature but in general such disputes are futile as, in principle, these rules cannot be changed or abolished. It is wiser to try and better understand these rules − in order for people themselves to be able to establish justified and balanced rules for achieving reasonable objectives.

To date, we do not know which specific mandatory restriction – and to what extent, or in combination with what – actually reduced the likelihood of catching the coronavirus, morbidity, the need for hospital treatment and deaths. Despite a large number of studies − mostly based on modelling − conclusions still remain speculative. For example, the European Centre for Disease Prevention and Control (ECDC) recently carried out a methodological consultation among Member State experts, revealing that most experts considered it extremely important to find an answer to the question of the effectiveness of the measures and restrictions imposed on the population: closing of establishments, wearing of masks, requirement for certificates, and so on.

According to a consensual expert assessment developed even before the spread of the coronavirus, the primary and most effective – but also the most unjustified – curbing measure in terms of the spread of the virus, is isolation of the infected person until their recovery. This means that a person who has already been found to carry the infection or who has contracted the disease is recommended or required to refrain from contact with other people, i.e. stay in isolation until recovery. At the same time, people are identified who have been in close contact with them and who with great likelihood may also be infected. They too are recommended or required to refrain from contact with other people, i.e. to stay in quarantine until the onset of symptoms, i.e. the end of the incubation period. Isolating an infected or ill person and quarantining someone suspected of being infected is a fundamental truth in epidemiological case management of infectious diseases and combating the further spread of infection.

All other activities, including in the form of mandatory restrictions, can only have an indirect effect. They do not help us to deal with specifically known cases of infection or illness. The aim is to affect people’s behaviour and activities in general, in order to help mitigate the risks of spread of infection. For example, the objective might be avoiding casual physical contact between people, which in turn would reduce the probability of incidental spread of the virus.

When imposing such rules, every government must always decide whether a rule formulated for combating the spread of infection is optional or mandatory. Prior to the appearance of SARS-CoV-2, expressions such as total lockdown or border closure were generally not used in international debates, training events and meetings in the field of epidemiology. On the contrary, earlier international legal agreements stipulated that in the event of the emergence of risks related to new infectious diseases, the approach must be balanced, prior mutual consultation is needed, and any disproportionate restrictions should be avoided. It was not even considered necessary to discuss issues such as recommending people to wash their hands or requiring them to wear a mask.

Yet why did previous consensual practice and understanding of resolving threats related to new infectious diseases eventually lead to complete or partial – and also repeated – closure of state borders, many businesses and activities? Whether and what did states achieve with such mandatory restrictions or what harm resulted from them? Did the benefits gained from mandatory restrictions outweigh the resulting harm? These are extremely important questions and seeking an answer to them should not be bogged down in mutual accusations, self-justification or entrenched beliefs.

During the reporting period, the Chancellor received many petitions related to the corona pandemic. They arose from different circumstances and were also differently emotionally charged.

The majority of complaints concerned restrictions and requirements laid down by government orders. In some cases, people in their complaints also pointed out obvious shortcomings regarding the substance of restrictions as well as the manner of their enactment. However, the Chancellor lacks the statutory right to assess the lawfulness of rules established by government orders. In justified cases, the Chancellor has drawn attention – both at government meetings as well as publicly – to problems related to restrictions. The Chancellor has been able to recommend to petitioners that, to ensure the best protection of their rights, they should have recourse to the court.

Even though many petitioners believed that the government restrictions and requirements were not justified in this form, a frequent problem was actually understanding them. The way orders were drawn up, including their wording, and their frequent amendment, resulted in a situation where several petitioners simply did not understand what restrictions or exceptions applied or did not apply to them specifically. Thus, people needed an explanation of the applicable requirements and to be given recommendations for finding a reasonable solution in a particular situation.

The corona passport

In Estonia, the requirement for a Covid certificate was in force for more than six months and the conditions for the issue, validity and presentation of the certificate were changed several times by the Government. For this reason, the Chancellor also received numerous complaints about the Covid certificate requirement. Petitioners pointed out essential and fundamental shortcomings in terms of the certificate’s substantive, organisational and technical aspects, which were mostly interrelated. When replying to petitions concerning the conditions and exceptions for issuing the certificate, the Chancellor explained the applicable requirements and, where necessary, provided recommendations on how to act in a particular situation.

“Wrong” contraction of and recovery from corona

If we were to ask whether it is possible to contract and recover from an infectious disease in a so-to-say wrong way, then with the coronavirus this indeed seemed to be the case. The Chancellor received numerous complaints from people who seemed to be deemed to have somehow wrongly contracted and recovered from the coronavirus, thus placing them in a kind of an anecdotic but complicated and unfair situation.

The circumstances of the complaints came down to a fundamental contradiction reflected in the fact that, on the one hand, a doctor was also entitled to give a Covid-19 diagnosis without a laboratory confirmation, while, on the other hand, a diagnosis given without a laboratory confirmation did not enable a person to obtain a European Union digital Covid certificate proving recovery from the disease. Specifically, in the European Union it was initially agreed that a digital Covid certificate would be issued only if the diagnosis was confirmed by a laboratory and only by methods enabling detection of the presence of the ribonucleic acid (RNA) of the virus. To detect the nucleic acid of the virus, the polymerase chain reaction method, i.e. the PCR test, is mostly used.

This contradiction between the possibilities for diagnosis of the disease and the conditions for issue of the European Union digital Covid certificate resulted in a kind of absurd situation where a number of people had, figuratively speaking, wrongly contracted and recovered from the coronavirus. This means that even though they had been ill and they also had a doctor’s diagnosis to confirm it, this was not sufficient to obtain the EU digital Covid certificate.

In this respect, it is important to note that these people had been diagnosed with Covid-19 absolutely legitimately, i.e. in accordance with international and national guidelines and in compliance with the relevant applicable legal act. When giving the diagnosis, the doctor could rely on the disease symptoms and/or known close contact with someone whose Covid-19 diagnosis had been confirmed by a laboratory.

For instance, a situation where at first one family member became ill and their PCR test confirmed the coronavirus. Then other family members became ill. There was no practical necessity for them to undergo a PCR test in a laboratory because, based on disease symptoms and contact with family members, it was possible to conclude with sufficient certainty that all the family members had contracted corona. Reaching a diagnosis of an infectious disease this way without a laboratory analysis is not something exceptional but common practice. As a rule, a laboratory analysis is carried out on the basis of a doctor’s decision. A laboratory confirmation of a disease pathogen may be necessary, for example, for a doctor to be able to decide which medication to prescribe for the patient. However, so far no specific medication exists for treatment of corona at home, so that as a rule corona treatment means mitigating acute symptoms (cough, fever, head or muscle aches, and the like) with common medication prescribed for this.

Very narrow and limited conditions for issuing the European Union Covid certificate also raised questions because at the same time a uniform case definition for corona disease had been agreed in the European Union. According to this definition, a disease case was confirmed if it was proved by laboratory analysis. The laboratory criterion was – and still is – that the coronavirus nucleic acid (RNA) or antigen was found in a patient’s clinical specimen. Thus, according to the case definition, an antigen test would also have been sufficient to provide a laboratory confirmation of the disease, but this was not sufficient for issuing the Covid certificate. Consequently, if the Covid-19 diagnosis had been confirmed by a laboratory and by using the method detecting the presence of the virus antigen, then this would still not have been sufficient to obtain an EU digital Covid certificate.

In early spring 2022, the European Commission changed the conditions for issuance of the Covid certificate. These conditions set out the possibility to issue a certificate even if the Covid-19 diagnosis had been confirmed on the basis of an antigen test. This raises the justified question as to how serious were the arguments based on which the requirement for issuance of a digital Covid certificate had previously been imposed.

Even more bewildering is the fact that the conditions for European Union Covid certificates enabled issue of a valid Covid-19 test certificate to a person based on a rapid antigen test. This certificate was considered sufficiently reliable to confirm that in the event of a negative test result the person was not a coronavirus carrier at that moment. Yet an antigen test was not suitable to confirm recovery from the disease.

It is generally known that, in comparison to a PCR test, antigen tests are less sensitive. This means that with an antigen test the likelihood of a false negative result is higher. A false negative result means that a person is actually infected but the test is not sufficiently sensitive to detect it. Thus, antigen tests would actually be better suited to confirming a disease diagnosis than excluding the infection or disease.

The contradiction between the requirements and possibilities for disease diagnosis and the conditions for issuing the EU digital Covid certificate was also exacerbated by the widespread misconception that the conditions agreed for issuing the EU digital certificate were absolute and overriding, and that actually doctors should proceed from them in deciding how to diagnose the disease. Several technical reasons have been given to justify why exactly these conditions were set for issuance of EU Covid certificates. However, as a rule, technical conditions should be defined in line with medical knowledge and not vice versa.

Under the law, the Chancellor cannot supervise European Union legislation. During the debate on and approval of such legal EU-wide agreements, a Member State is represented by the responsible ministry.

In Government orders, the requirements and derogations from them were laid down uniformly both for people having received a laboratory-confirmed as well as non-confirmed Covid-19 diagnosis. Thus, everyone with a Covid-19 diagnosis was considered to be recovered. For people who had recovered, Government orders set out derogations under which they did not have to quarantine after being in contact with a Covid-19-diagnosed person. According to the orders, that person could thus also participate in activities for which a valid Covid certificate was required.

However, those having received a Covid-19 diagnosis from a doctor but unable to obtain a digital Covid certificate in line with European Union requirements found themselves in a complicated situation. Estonia had created electronic solutions only for issuing digital Covid-19 certificates. Certificates issued on other conditions, including recovery certificates without a laboratory confirmation, had to be applied for from a doctor and were issued on paper. Proving the authenticity of a paper certificate caused problems both for holders of the certificates as well as for businesses who had to check them.

Antibodies acquired through “wrong” contraction and recovery

The Chancellor received several petitions from people who had a laboratory confirmation of detection of antibodies to the coronavirus but who, because of this, had found themselves in an even more contradictory situation. That is, according to the conditions for EU digital certificates, issuing a recovery certificate based on a positive test result as to the presence of antibodies was also not possible. This recommendation was also given by the European Centre for Disease Prevention and Control (ECDC), citing primarily technical considerations and knowledge gaps related to immunity and its duration.

Fortunately, no fundamental doubt was cast on the overall suitability and reliability of antibody tests. At the same time, the Health Board did not recommend giving a Covid-19 diagnosis on the basis of an antibodies test, for some reason citing its unreliability.

On certain conditions, the presence of the infection or recovery from disease can also be confirmed by laboratory methods if the person is no longer infectious or ill and the disease pathogen can no longer be found in their body. If people have developed an immune response to a pathogen, this can be detected under certain conditions. Most frequently used are study methods which are able to detect antibodies generated in the human body against the pathogen, i.e. so-called antibody tests. Antibodies mostly also appear after vaccination. Thus, if a person is not vaccinated against Covid-19 but antibodies against the pathogen are detected in their body, then it actually means that at some point previously the person was infected with the coronavirus.

People pointed out various reasons why they did not receive a laboratory-confirmed Covid-19 diagnosis at the time when the disease pathogen would still have been detectable in their body. For instance, petitions revealed that some people did not undergo a laboratory analysis because they did not have a vehicle to drive to the testing point. As a responsible person, they did not want to use public transport while ill and infectious, so that they failed to undergo testing. At the same time, people were constantly reminded that if they felt ill they should stay at home and keep their distance from others.

Another reason given by petitioners was that, since the onset of the disease was severe and they felt very poorly, they failed to go to the testing point. Moreover, before the establishment of the Covid certificate, PCR testing was not considered as important and people stayed at home while recovering.

The Chancellor also received letters describing cases where all family members fell ill one after another but some of them had a borderline PCR test result and the subsequent repeat test was already negative. A borderline PCR test means that the result does not enable confirmation of the presence of the pathogen with sufficient reliability. However, the PCR test result may depend on the stage of infection or disease when the sample is taken. For instance, if someone is already recovering the sample might no longer contain sufficient pathogenic material.

However, all these people subsequently had a positive laboratory antibodies test result, which enables retrospectively to confirm with fair reliability that their disease was actually caused by the coronavirus. Naturally, there were also those who went to do the antibodies test simply out of curiosity and their test result turned out to be positive. It is generally known that a large number of people may have and recover from the coronavirus with very modest disease symptoms that they might not even notice, or with symptoms not usually characteristic of the disease so that people would not think of linking them to the coronavirus.

At the same time, a blatant contradiction could be seen between the recommendations given to these people and the applicable restrictions. That is, in professional recommendations and guidelines a positive antibodies test result was treated as (sufficient) confirmation of recovery from the disease. For example, this was the case in recommendations provided by the immunoprophylactic expert committee of the Ministry of Social Affairs and guidelines for healthcare professionals issued by the Health Board.

The recommendation based on medical arguments set out that these people should be considered as recovered from the disease and should be vaccinated against Covid-19 only with one vaccine dose six months after the antibodies were detected. This recommendation was given with a view to both the effectiveness and safety of vaccination. Thus, the recommendation on vaccination concluded that a person with a positive antibodies test result is proved to have recovered from the disease, while at the same time in terms of retrospective diagnosis of the disease the antibodies test result did not seem to be treated as sufficiently suitable or reliable and was not recommended. The antibodies test result was also not deemed sufficiently reliable to be used as a basis to relieve a person of the quarantine obligation or enable them to participate in activities for which a Covid certificate was required.

This contradiction put a number of people in a situation where they were forced to choose between two options. One was to observe their doctor’s medically reasoned recommendation to vaccinate themselves only six months after receiving a positive antibodies test result. In this respect, they had to take into account that during those six months they were subject to the quarantine requirement and the ban – punishable if violated – on participating in controlled activities imposed by Government orders. Another possibility was to disregard the medically reasoned recommendation and still get vaccinated before the expiry of six months so as to be relieved of the quarantine restriction and be able to participate in controlled activities.

Adjusting the legal space

As in all other fields organised by the state, in a situation involving the emergence and spread of infectious (i.e. communicable) diseases the state also relies on laws and other legal norms. Issues of infectious diseases are regulated separately by the Infectious Diseases Prevention and Control Act (IDCPA).

After the outbreak of the corona pandemic in spring 2020, it became clear that the IDCPA in force at the time was not best suited to deal with such an unknown infectious disease. If the epidemiological situation requires extensively restricting the fundamental rights and freedoms of the whole population, all activities in this regard must comply with the Constitution and be subject to strict supervision.

Soon after the pandemic outbreak, debates also began about amending the IDCPA. The latest extensive package of amendments was completed by the Government in February 2022 and submitted to the Riigikogu for debate. The Chair of the Riigikogu Social Affairs Committee asked for the Chancellor’s opinion about the Draft Act on amending the IDCPA and amending other related Acts.

In her opinion, the Chancellor identified problems in relation to the Draft Act as well as the IDCPA as a whole.

Somewhat overlapping with this opinion, the Chancellor also had to prepare an opinion for the Supreme Court in constitutional review case No 5-22-4. This dealt with an application by Tallinn Administrative Court to declare the provisions of the IDCPA unconstitutional insofar as they enable imposing restrictions based on recovery from disease and vaccination, define the conditions for vaccination against an infectious disease and recovery from it, and oblige people to undergo health examination and diagnostics based on Government Order No 305.

In an extensive opinion, the Chancellor ascertained that the contested provisions of the Infectious Diseases Prevention and Control Act (IDCPA) contravene the Constitution since they confer on the executive overly broad, unspecified and undefined powers for restricting fundamental rights. A delegation norm is impermissible if it leaves a free hand to the executive in choosing restrictions, their purpose and their level of severity. It must be the Riigikogu in a parliamentary Act that decides in what situations and what kind of restrictions may be imposed. If a situation described in the law emerges, then it is the task of the executive to choose purposeful and proportionate restriction from among the restrictions allowed by law and apply it only where necessary and only as long as necessary.

A statutorily prescribed form for an order intended to impose generally applicable obligations on an unspecified range of persons in unspecified situations is not compatible with the Constitution. It is important to distinguish between types of legal acts issued on the basis of a delegation norm. Generally applicable mandatory behavioural guidelines aimed at regulating an unspecified number of cases must be laid down in the form of a government regulation. Regulations are published in the Riigi Teataja gazette and their factual grounds must be regularly reviewed. In the case of a regulation, constitutional review is assured. Orders are meant to resolve individual cases.

In the Chancellor’s opinion, Tallinn Administrative Court was correct in initiating constitutional review proceedings to check the constitutionality of the provisions of the IDCPA. The lawfulness of restrictions imposed under an order is assessed by the administrative court, so that in the frame of constitutional review of the IDCPA rules it is not necessary to analyse in detail the purposefulness and proportionality of the orders issued on the basis of these rules, i.e. assess the lawfulness of the orders themselves.

Fundamental problems with the IDCPA

The coronavirus pandemic has very clearly highlighted shortcomings in the current Act which cannot be remedied with a draft only specifying or supplementing the provisions of the Act. The shortcomings of the Act are fundamental and extensive, so that a new modern law meeting the needs of practical life needs to be prepared.

To resolve the situation related to an outbreak of disease, the need may arise to extensively restrict the fundamental rights and freedoms stipulated by the Constitution. This means that a law must be formulated so that everyone can understand how and who may restrict the fundamental rights and freedoms of individuals in the case of what threats, for what purposes and on what conditions.

The spread of infectious diseases and people catching the disease is not an extraordinary phenomenon but our everyday reality. One idea of the IDCPA is to precisely organise this reality in the best possible way.

The spread of infectious diseases and people becoming ill fluctuate constantly and, under certain conditions, this may also mean an extraordinary threat. To combat precisely these kinds of threat, the state must have the right and duty to impose restrictive rules in order to protect human health and ensure the functioning of the healthcare system.

In order to successfully combat a threat in connection with the spread of infection, the threat must be formulated in the law with sufficient clarity and justification. The current law uses the concepts of an extremely dangerous infectious disease and a dangerous novel infectious disease for this. The law also stipulates that it is precisely these infectious diseases in the case of which it may be necessary to restrict people’s fundamental rights and freedoms. The problem arises in interpreting these concepts.

Under the law, an extremely dangerous infectious disease means a disease with a high level of infectiousness which spreads rapidly and extensively or which is serious or life-threatening. This sentence in the law offering a uniform characterisation of extremely dangerous infectious diseases is followed by a list: the plague, cholera, yellow fever, viral haemorrhagic fevers, and tuberculosis.

We see that the list lacks several highly infectious diseases which spread rapidly and extensively. This cannot be justified because, for example, seasonal infectious diseases also possess a rather high level of infectiousness and spread rapidly and extensively. Infectious diseases mentioned in the law as extremely dangerous also spread in different ways, to different extents, with a different intensity and in different regions of the world. For instance, the yellow fever virus spreads via vectors that are specific species of mosquitoes. Thus, yellow fever does not spread directly from human to human and its main endemic regions are tropical countries in Africa and South America. Based on available information, the yellow fever virus does not spread endemically in Europe and thus Estonia, with those having the disease being first and foremost people who caught it during travel.

The list set out in the law is far from containing all infectious diseases which may be serious or life-threatening. It should also be kept in mind that most infectious diseases may run a mild, moderate, serious or extremely serious course. The likelihood of serious and extremely serious life-threatening forms of disease depends on many factors, often including individual factors such as concurrent diseases. What the likelihood should be of an infectious disease causing serious and extremely serious forms in order to be included in the list of extremely dangerous infectious diseases – is not clear from the law, nor has it been uniformly defined internationally.

Inevitably, the question arises whether the qualities uniformly characterising extremely dangerous infectious diseases under current law are defined with sufficient justification. One should also ask whether the particular selection of extremely dangerous infectious diseases in the law is simultaneously justified and also exhaustive. In part, the list contains infectious diseases which have previously internationally been considered significant in terms of combating their global spread. On the other hand, the current IDCPA was drawn up in 2003 so that the list of extremely dangerous infectious diseases has remained unchanged for almost 20 years.

Constant changes occur in the common spread of infectious diseases and their morbidity. Over time, previous knowledge about infectious diseases may also change and effective possibilities may appear for their prevention and treatment. The importance of the substantive and legal meaning of an extremely dangerous infectious disease should be kept in mind: on this depends whether fundamental rights and freedoms can be restricted.

When coronavirus SARS-CoV-2 appeared, the concept of a dangerous novel infectious disease was introduced to the IDCPA. The law does not name any specific infectious disease as a dangerous novel infectious disease and this was also not the aim when introducing the concept. Thus, an infectious disease can be considered a dangerous novel infectious disease when it conforms to the conditions mentioned in the definition of the concept. For example, SARS-CoV-2 can be considered a dangerous novel infectious disease if it has the features of an extremely dangerous infectious disease, if it has no effective treatment or if no effective treatment for it is available or its spread may exceed hospital treatment capacity.

The additional conditions for a dangerous novel infectious disease (i.e. no effective treatment exists or is available or its spread may exceed hospital treatment capacity) also allow for a very broad interpretation and application of the concept in many situations of a different nature and different threat levels. For instance, no uniform criteria exist as to the kind of treatment results in the case of which treatment (including medication) is considered generally effective or the other way round. The effectiveness of treatment also depends to a large extent on a patient’s overall condition, including concurrent diseases. Treatment of a patient’s symptoms may also be successful and effective even if no medication exists against the pathogen. On the other hand, no pathogen-specific treatment exists against most viruses causing acute respiratory diseases, or even if such treatment exists its effectiveness generally remains moderate.

Thus, this is another uniformly undefined condition which varies in the case of different individuals. Hence, the importance of such a condition in designating an infectious disease as novel and dangerous remains questionable.

The desire to introduce the concept of a dangerous novel infectious disease in the law may be understood since new and changed threats related to infectious diseases cannot be predicted. And this is what makes these diseases novel and dangerous. Therefore, a new legal space needs to be created to enable action in a situation where, for example, a new infectious disease (such as Covid-19) or even a previously known but significantly mutated one (a new strain of the influenza virus) begins to spread among humans. At least initially, the actual properties, possible effects, treatment possibilities, and so on, of a newly spreading infectious disease are unknown. Consequently, we do not know whether that infectious disease is or may develop into an extremely dangerous infectious disease. Knowledge about a novel infectious disease or one with mutated properties improves over time. Until then it may be necessary to rely on existing knowledge and risk assessments and treat the infectious disease as a special threat.

However, introducing this concept into a law requires it to be defined in even more detail. Among other things, the conditions need to be set out as to when and in what circumstances an infectious disease can be treated as novel and dangerous and when this can no longer be done.

By autumn 2022, we have reached a somewhat peculiar situation where several countries no longer deem SARS-CoV-2 as dangerous under their legal order and consider it as a seasonal viral infection. The legal situation in Estonia has remained ambiguous since the IDCPA does not lay down who – and based on what specific criteria – should provide a reasoned assessment as to whether a spreading infectious disease is still novel and dangerous.

Flexibility is understandable when defining primary concepts but flexibility cannot mean unjustified ambiguity. It is important to keep in mind once again that it depends on the interpretation of a concept whether restricting people’s constitutional rights and freedoms is possible or not.

Special threats and their resolution

Coping with special threats accompanying the spread of infectious diseases begins from setting understandable and achievable objectives. These two conditions are interrelated. If objectives are unclear then it is also very difficult to achieve them. Or conversely, if objectives are not achievable then solutions, including restrictions, also become incomprehensible. Thus, in the event of the emergence of a threat related to a new infectious disease it is necessary first to identify what this threat means.

Acute respiratory viral infections, such as the flu virus and corona virus infections, may most likely cause global pandemics. Contributing to this are the effective ways in which these infections spread (airborne, droplet and contact spread) as well as the rapidly mutating properties of the pathogens. In a situation where a novel viral infection has already emerged, where it can successfully spread from human to human, and where no sufficient immunity to it exists, the possibilities of preventing a pandemic are actually very limited.

Besides the natural abilities of such viral infections to spread, factors contributing to their global spread should also be taken into account. The world population is approximately eight billion people, more than half of whom live in urbanised areas. Intense and widespread international traffic means that an infectious disease that has begun to spread in one corner of the world may reach another corner in less than 24 hours and even before the disease was detected. The abilities of states to detect and prevent infectious diseases and limit their spread differ in the extreme. For example, to date we have been unable to eradicate even infectious diseases which can be relatively well controlled by vaccination, such as measles and polio. Risks caused by human activity which facilitate the emergence and spread of novel infectious diseases or those with mutated properties are, however, even more diverse.

The context described helps to understand how and whether at all the spread of a novel infectious disease can be contained justifiably and proportionately. In other words, what objectives can be justified and achievable. At the beginning of the pandemic of the SARS-CoV-2 viral infection, among other measures the zero-Covid policy was gaining ground aimed at completely stopping and eradicating the spread of the virus. Even though no prerequisites whatsoever exist to achieve this objective, thus making it impossible, this policy is still in effect in China. To that end, unprecedented extensive and expensive work was launched for detecting the virus and justifications were offered for extensive restrictions on fundamental rights and freedoms.

Although European countries did not officially pursue a zero policy, several restrictions looked as if they were imposed in order to achieve this objective. For example, it is clear that if the local spread of an infectious disease has been detected in all countries, then closing state borders or restricting border crossings cannot serve the desired objective. None of the countries that closed their state border or restricted border crossings was able to prevent the spread of SARS-CoV-2 or its new strains locally. This objective was not achieved by measuring people’s body temperature, testing, the quarantine requirement, or checking Covid certificates. In other words, this objective is unattainable. However, the state should not set unattainable objectives at the expense of people’s fundamental rights and freedoms.

A precise and up-to-date conceptual apparatus

In the context of the IDCPA and its amendment, all this is worth emphasising because the most important principles should be defined on the level of the law. For instance, the law must enable imposing only restrictions which are unavoidably necessary for achieving the objective sought. As repeatedly mentioned above, objectives must in turn be comprehensible and attainable. Each restriction, both individually and as part of all restrictions, must be logically justified and based on methodologically correctly achieved and correctly interpreted scientific results and facts. Understandably, the benefits gained from imposing restrictions must outweigh the resulting harms.

A law must by all means support avoiding special threats of infectious diseases and mitigating their consequences. For this purpose, essential concepts can be used in the law and by defining them they are assigned unequivocal meaning in both the legal and substantive sense. Terminological imprecision and lack of essential concepts leads to confusion in implementing the law and does not facilitate resolving problems.

In the field of prevention, monitoring and control of infectious diseases, several essential concepts are used. Over time, most of them have also become harmonised internationally. Unfortunately, the list of concepts in the current IDCPA in Estonia is not sufficiently exhaustive and several concepts still remain undefined. Nor are several concepts defined in the way in which they are normally used in international practice.

During the coronavirus pandemic, everyone in Estonia has heard the word quarantine. Those who are ill, as well as those who have been in contact with someone who is ill must remain in quarantine. Quarantine is established presumably throughout the whole country and, within the meaning of the law in force in Estonia, quarantine can also be established on provision of services.

However, such an ambiguous and fuzzy use of the concept of quarantine is unjustified and significantly differs from its professional meaning as well as how this concept is used internationally. In common international practice, quarantine means only restriction of the activities of a healthy person who may have been infected and/or segregation of that person from others in order to prevent the possible further transmission of the infection. Under the same principle, quarantine may also be imposed on animals that may be infected or on goods that may be contaminated with pathogens. However, what is important is the uniform meaning of the concept – in the case of quarantine the possibility and suspicion exists of infection or contact with pathogens, which may or may not be subsequently confirmed.

However, restricting the activities of someone who is already ill and segregating them from others in order to prevent further spread of infection is internationally defined by the concept of isolation. Where necessary, this concept is also used for segregation of an infected animal or goods contaminated with a pathogen. However, the Infectious Diseases Prevention and Control Act lacks a concept to denote isolation.

This is by no means excessive diligence aimed at defining all the possible concepts in a law, because these concepts do have a substantive and legal meaning and an important fundamental distinction from one another. For instance, it should be taken into account that a quarantined person is healthy and restricting their activities and segregating them from others can be justified to the end of the incubation period. However, a person subjected to isolation is ill and they have been diagnosed. Thus, restricting their activities and segregating them from others can be justified until their recovery and end of the risk of infection.

Thus, in terms of risks of the spread of infection and the consequent severity of a restriction, these are also rather different situations.

Restrictions must arise from laws

The current IDCPA confers on government agencies sufficiently unlimited powers for combating the spread of infectious diseases. If it is known in advance what restrictions and under what conditions need to be established to combat the spread of an infectious disease then they must be laid down by law. Thus, this must be done by the Riigikogu through exercising the function of law-making assigned to it in a country governed by the rule of law.

Delegating powers to the executive by law for restriction of fundamental rights is constitutional only if in doing so a clear frame is imposed on the executive, i.e. the conditions, compliance with which is subject to judicial scrutiny. The law must also be clear and noncontradictory in allocating roles.

Distance learning and vaccination of children

An individual contacting the Chancellor asked for an explanation whether introduction of distance learning in all schools in Tallinn was lawful. In her reply, the Chancellor explained on what legal basis and who is entitled to apply distance learning in schools. Since the beginning of academic year 2020, the Chancellor has repeatedly provided similar explanations to parents, pupils as well as teachers (see the annual report for 2020/2021). The legal framework was the same at the time of replying to this petitioner, but the situation to which the rules apply had significantly changed as compared to autumn 2020.

Distance learning as a health protection measure is in principle allowed but only if its use is justified in view of the particular epidemiological situation. In this regard, a school can only proceed from its own specific situation when implementing this health protection measure, including information about the proportion of vaccinated and recovered people among pupils and teachers. Neither the school director nor the owner of the school is competent to assess the situation of the spread of the virus and the anticipated hospital burden.

The Chancellor was also asked to assess implementation of distance learning in schools in Pärnu city. The Chancellor found that, formally, Pärnu city as the owner of the schools did not adopt a legislative act by which it would have decided to apply distance learning in schools or oblige heads of schools to make such a decision. The decision on transfer to distance learning had to be made by each head of school themselves. Yet it should be taken into account that a head of school may understand an instruction given by the owner of the school as binding even though formally this is not so. The owner of the school and the Health Board provided information to heads of schools in a manner that may have inclined them to apply distance learning while at the same time not taking responsibility for justifying this.

During the reporting period, the Chancellor was often also asked whether parental consent is needed to vaccinate a child at school. People also asked whether schools may exert pressure on children to vaccinate against Covid-19.

The Chancellor explained (see e.g. vaccination of schoolchildren against Covid-19) that the same rules apply to vaccination against Covid-19 as to vaccinations in general. Vaccination is voluntary. The principle of voluntariness applies equally to adults and young people.

A patient may be examined and healthcare procedures administered to them (including vaccination) only with their consent. This means that a patient must be informed about the purpose of medical procedures as well as possible risks and consequences. Then the patient themselves can decide whether to consent or refuse.

Parental consent must be sought to vaccinate a minor patient, but the child themselves must also approve the vaccination (see paras 17 and 18 of the guidelines on child patients). However, a doctor who deems that a young person has sufficient capacity to reason must proceed from the young person’s own decision. In that case, a parent may not decide on the child’s vaccination.

Age may be one criterion for assessing a child’s capacity to reason, but it cannot be the only criterion. A child’s capacity to reason must be assessed on the basis of the specific situation and the specific child, because children reach maturity and independence at different ages. If a child comes to a doctor’s appointment together with a parent or with parental approval, and the child and parent are unanimous about the issue needing to be decided, then the doctor has no reason to assess the child’s ability to reason (see in more detail the guidelines).

A school nurse vaccinates children at school in line with the Minister of Social Affairs regulation, under which the consent of a parent or other legal representative is asked for vaccination.

Under the Minister of Social Affairs regulation, the school informs a parent about planned vaccination at least one week in advance and also asks for their consent. Consent or refusal is recorded in writing and is maintained among the pupil’s health documents. If a pupil’s vaccination is held off for some reason, the school healthcare provider proceeds from a parent’s previous consent and informs them about the new time of vaccination at least one week before it takes place.

If one of the parents provides consent, a school nurse may also presume consent from the other parent. If the other parent refuses, the child cannot be vaccinated on the basis of consent by one parent.

Under current legislation, a school cannot oblige children to be vaccinated but it may provide information about organisation of vaccination and study at the school. For instance, the rules on quarantine of a pupil who was a close contact depended on whether the pupil was vaccinated or not and whether they allowed themselves to be tested for the coronavirus. When providing explanations, school staff must remain as neutral as possible. The school may not actively promote vaccination. Nor may the school allow unvaccinated pupils to be bullied at school.

Rapid test at school

Several parents asked the Chancellor about rapid testing of pupils.

The Chancellor’s advisers explained that testing is not mandatory for pupils. If a child or parent does not consent to testing, the school must be notified about this. A parent’s refusal may be written in free form. If for some reason a parent has not been able to notify the school about their refusal but the child does not wish to take the test then it is sufficient that the child simply does not take the test. The school cannot oblige any pupils to take a rapid test. A child who has refused a rapid test is not excluded from face-to-face tuition in a classroom.

Pupils themselves carry out a rapid test by following the instructions. At home, assistance is provided by a parent and at school by a teacher, if necessary. Self-testing with a test for the SARS-CoV-2 coronavirus causing the Covid-19 disease is not a healthcare service which should be provided by a healthcare professional. Therefore, the provisions of the Law of Obligations Act regulating provision of healthcare services are not applicable to self-testing with a rapid test.

No mandatory form has been laid down for obtaining consent for rapid testing. It is also important that both children and parents have been informed in advance about testing, and both children and parents can always refuse testing.