The rule of law
The rule of law means that the state and local authorities only operate on the basis of the Constitution and laws in conformity therewith. This means separation of powers, legal certainty and a prohibition on arbitrarily or wrongly exercising power, i.e. abuse of power. Under the rule of law, unjustified unequal treatment is prohibited, and everyone must have access to fair administration of justice. The state must ensure people’s fundamental rights, which may be restricted only if unavoidably necessary.
The Chancellor keeps an eye on all this by monitoring life in society and resolving petitions from people. Several cases of concern arose where fundamental rights were restricted without a proper legal basis: for instance, the Chancellor investigated interception of radio communication between hunters. The underlying principle should always be that justification must be given for restricting fundamental rights but not for ensuring fundamental rights.
The Chancellor also monitors whether and how the authorities observe the principle of good administration when communicating with people. This means that, in addition to communication which is polite and to the point, the authorities must arrange their work so that no one is left in an information gap due to the authorities’ action or inaction. Unfortunately, state agencies often fail to register people’s petitions or reply to applications.
During the reporting year, the Chancellor received petitions from the elderly and prisoners who were dissatisfied that public services prescribed for them by law are increasingly offered only through e-channels. This allows for the conclusion that for many people it is increasingly difficult to manage their affairs unless they have access to electronic channels. In developing e-government, we should not forget that everyone must be able to obtain the necessary services when communicating with the state, regardless of whether they have the skills, and can or want to manage their affairs through e-channels or otherwise.
Under the Constitution, local authorities must be able to independently decide and administer local matters. Issues of local life are often closest to people’s hearts and essential to them, so that the Chancellor regularly receives questions and complaints about the work of local authorities. The Chancellor verifies whether, in their activities, rural municipalities and cities observe the Constitution and other laws and respect people’s fundamental rights and freedoms.
Complaints often concern matters of applying for and receiving identity documents and the general situation in Police and Border Guard Board service bureaus, e.g. involving very long queues. Everyone in Estonia must have a valid identity document. However, applying for and receiving new identity documents has become more and more complicated.
The Chancellor also had to resolve several situations concerning treatment of foreigners. The process of applying for a residence permit often tends to drag on unjustifiably and it also happens that officials refuse to provide an explanation or information.
During the reporting year, the Chancellor did not have to initiate any disciplinary proceedings related to the work of judges; however, the Chancellor asked for an explanation from a judge about procedural details of specific cases. Petitioners are mostly concerned about judicial proceedings being dragged out. This, however, does not always depend only on the work of a particular judge or court.
Unconstitutional delegation norms
During the reporting year, the Chancellor gave an opinion in constitutional review court proceedings concerning the provisions of the Infections Diseases Prevention and Control Act based on which the Government had imposed restrictions. The Chancellor reached the opinion that the definition of a dangerous novel infectious disease and the power granted to the Government to establish generally mandatory behavioural guidelines aimed at regulating an unlimited number of cases to combat an extremely dangerous and novel infectious disease under the Act was contrary to the Constitution. The Chancellor also found that establishing such behavioural rules by an order (i.e. an administrative act) is unconstitutional.
In line with the first sentence of § 3(1) of the Constitution, fundamental rights may be restricted only on the grounds laid down by law. The non-delegation principle (i.e. the principle of essentiality) arising from the same provision requires that all essential state issues must be decided by the Riigikogu or the people as bearers of supreme state power. Issues that under the Constitution can only be dealt with by the Riigikogu may not be delegated to the executive or to any other person or body. However, the Constitution does not preclude delegating to the executive power matters within the competence of the Riigikogu if the law defines with sufficient clarity the bases and conditions for the executive to act. Less serious restrictions of fundamental rights may be imposed by a government regulation issued on the basis of a delegation norm which is precise, clear and corresponds to the seriousness of the restriction.
In line with the non-delegation principle: the more serious a restriction, the more precise must be the law underlying the restriction of a fundamental right. In principle, this applies equally in a situation where delegating powers are granted to lay down a regulation to restrict a fundamental right as well as in a situation where delegation is granted to issue an administrative act. It is particularly important to observe this principle in a situation where a violator of a restriction of fundamental rights may be subject to punishment.
The Chancellor found that the provisions of the Infectious Diseases Prevention and Control Act contravene the Constitution because they grant 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 level of severity. It must be the Riigikogu that decides in what situations and what kind of restrictions may be imposed. The Government may choose a 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 obligations on an unspecified range of persons in unspecified situations is not compatible with the Constitution. In this context, it is important to distinguish between types of legal acts issued on the basis of a delegation norm. Generally mandatory behavioural guidelines aimed at regulating an unspecified number of cases must be laid down in the form of a government regulation. The combined effect of §§ 3 and 11 of the Constitution gives rise to the requirement that a legislative act of general application must be compatible with the rules of superior law throughout the period of validity of that legislative act of general application. In the case of orders, no such requirement usually applies. In the case of a regulation, constitutional review is assured. Orders are suitable to resolve individual cases.
The Infectious Diseases Prevention and Control Act lays down that violation of restrictions imposed under the Act is punishable. In line with § 23(1) of the Constitution, no one shall be convicted of an act which did not constitute a criminal offence under the law in force at the time the act was committed. A law may not grant delegating powers to impose abstract and generally applicable restrictions by an order.
Administrative fines
The central issue in a debate in connection with administrative fines is whether fines required by European Union law can and should be applied in administrative proceedings, or whether misdemeanour proceedings are more appropriate for this.
The opinion of the Ministry of Justice in this matter has been inconsistent. The explanatory memorandum to the Draft Act (SE 94) on amending the Penal Code and other related Acts currently in the Riigikogu offers justification as to why misdemeanour proceedings should be preferred. For example, it is recalled that “the penal law reform entering into effect on 1 September 2002 merged into the penal law and penal procedure system – under the concept of misdemeanour law – the regulatory provisions on administrative offences which until then had been formally considered administrative law (although essentially they corresponded to the principles of penal law). This constituted a fundamental legal policy decision that punishing persons for offences committed by them is part of penal law and not part of administrative law. […] Considering the fact that such procedural rights are already guaranteed under offence procedure law, as well as the need to ensure the systemic uniformity of the Estonian legal order, it was currently not deemed justified to create a new separate type of procedure. Thus, a possibility is created to impose monetary fines with an enhanced maximum threshold in misdemeanour procedure.”
Despite this conclusion, a Draft Act on amending the Competition Act has been drawn up seeking to establish a competition supervision procedure. The new procedure would enable imposition of punishments in the course of administrative procedure. At the same time, several shortcomings in the misdemeanour procedure still remain uncorrected (e.g. liability of a legal person).
There is no doubt that the state must ensure fair competition and, to this end, be able to detect violations and effectively punish offenders. This is clear both from the viewpoint of the Estonian Constitution as well as European Union law. Violation of the rules of fair competition may not give an advantage to anyone.
Renaming a penal procedure a competition supervision procedure does not relieve the state of the duty to ensure protection of the rights of persons in the same way as is done in penal procedure. Abandoning the rules of offence procedure intended for avoiding mistakes by the public power is not a constitutional solution. The planned administrative fines are − and in view of the specificity of the field, must be − so high that, in line with penal law theory, they qualify as a severe punishment. In order to impose severe punishments, the state must impose rules that help to avoid potential mistakes and harm, and enable the person punished to effectively protect themselves against mistakes and harm caused.
Shortcomings of misdemeanour procedure in punishing a legal person relate not only to fines arising from European Union law. A solution is needed to the overall problem which is particularly acute in the field of data protection and prevention of money laundering. When resolving gaps and problems in the legal order, the complete picture should be kept in mind and cross-sectoral problems should not be resolved by focusing on one sector only since this fragments the legal order. In its opinion on the Draft Act, the University of Tartu has called for discussion on how to increase the effectiveness of all misdemeanour proceedings while remaining within the frame of the Constitution. After all, the objective is an honest and fair competitive environment but not to punish businesses.
Persons must know what the state may do to detect and prove violations of competition rules and for what and on what conditions persons are punished. For example, a search has the same effect on someone’s fundamental rights regardless of how the procedure is termed and in the course of it a person’s workplace, home, computer or the like is searched. Therefore, a prior judicial check and other rules must be equivalent to offence proceedings. A search may only be carried out in conformity with § 33 of the Constitution. Thus, a law must also lay down when and for what purpose a search may be carried out and what the court must check in order to authorise it.
Under Directive (EU) 2019/1 of the European Parliament and of the Council (hereinafter ‘the Directive’), Estonia must create an effective competition supervision procedure covering effective fine proceedings outside criminal proceedings. In this situation, Estonia has several options for implementing the Directive; from among these, preference should be given to the option which simultaneously offers legal clarity and ensures protection of fundamental rights on a level corresponding to the severity of restrictions of fundamental rights and the relevant sanctions.
Terming as competition supervision something which in substance is penal procedure does not relieve the state of the obligation to ensure – through procedural rights – protection of the fundamental rights of persons against abuse of public power and incorrect and unfair decisions. The Estonian Constitution stipulates everyone’s protection from the arbitrary exercise of state power (§ 13(2)) and also places on the executive the duty to guarantee rights and freedoms (§ 14). And in doing so, the essence of the rights and freedoms restricted may not be distorted (§ 11). So far, protection against arbitrary exercise of state power has been provided by those procedural rules which oblige the state to ascertain the facts and prove imputed violations. Only then it is possible to impose a punishment. Protection of fundamental rights may not be seen as an unnecessary inconvenience or an obstacle to effective proceedings. The state must reach a correct and lawful solution and not quickly collect as much money from administrative fines as possible.
For instance, the privilege against self-incrimination applies to all persons in all proceedings. No one is required to provide statements which could somehow incriminate themselves or their next of kin. As a rule, this means that everyone may decline to submit documentary evidence incriminating themselves. Section 22(2) and (3) of the Constitution guarantees a person’s presumption of innocence. In this regard, the interpretation prevalent in the case-law of the European Court of Human Rights (ECtHR) should be taken into account, i.e. within the meaning of Article 6 of the European Convention on Human Rights, what is considered a criminal charge (and thus also protected by the substantive scope of presumption of innocence) may also include court cases which domestically are not seen as criminal but as disciplinary cases (see, e.g. ECtHR judgment 5100/71, Engel and Others v. the Netherlands, 8 June 1976). Within the meaning of the European Convention on Human Rights, the severity of a sanction or the nature of an offence alone may be sufficient for a case being defined as a criminal charge. In view of the amount of administrative fines, a sanction should be deemed severe and consequently the so-called Engel criterion should be the underlying premise in that regard.
Creation of a competition supervision procedure does not do away with parallel procedures. Depending on a person’s procedural status or stage of proceedings, even in the case of competition supervision proceedings it is necessary to carry out misdemeanour proceedings or ordinary administrative proceedings. So creation of a new procedure supplements the list of procedures.
Thus, if in substance it is the rules of misdemeanour procedure that should rather be followed, then it is legally clearer and more understandable if competition supervision – including in terms of its form – is carried out in accordance with the rules of misdemeanour procedure but no separate competition supervision procedure – which is deemed an administrative procedure but which is aimed at attaining penal objectives more easily – is created for this.
Good administration
The Chancellor monitors whether in their work the authorities comply with legislation, including the principles of good administration (see the Administrative Procedure Act). The principle of good administration means, for example, 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 situation as a result of action or inaction by agencies.
People are often dissatisfied with how state agencies resolve their 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 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. For instance, Põhja-Sakala Rural Municipality Government failed to register an application.
Based on complaints by persons, the Chancellor ascertained that the Ministry of Justice, the Ministry of Social Affairs, the Health Board, Tallinn Transport Department, Vinni Rural Municipality Government, and Pärnu City Government failed to respond to memorandums and requests for explanation by deadline. Pärnu City Government, failed among other things to examine in substance a proposal for putting up a traffic sign, i.e. to issue an administrative act.
By law, 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. Even in the case of conflicting interests, administrative proceedings must be carried out within a reasonable time. By weighing all the essential facts and interests, a decision must be made whether to issue or decline to issue an administrative act.
Service of administrative acts
The Chancellor received a complaint that if an individual wishes to receive a land tax notice by post, they must remind the Tax and Customs Board about this every year anew. The Tax and Customs Board replied that, as a rule, it sends land tax notices electronically to people up to 75 years old and by ordinary post to older people.
The Chancellor explained that communication with e-government must be a person’s free choice where possible. The tax authority must proceed from the principle of the purposefulness and effectiveness of administrative proceedings. This means that the Tax and Customs Board should be able to choose how to serve documents but, at the same time, each person should, if they wish, be able to change this default choice and easily obtain relevant information about this.
Problems also occurred with filing a tax return. Specifically, a prisoner sent their tax return to the Tax and Customs Board on paper. Since prisoners have no access to the tax authority’s electronic portal, they can only communicate with the Tax and Customs Board by letter (§§ 28, 31¹ Imprisonment Act). Thus, the prisoner could also not examine the decision submitted electronically, according to which their claim for an income tax refund had been denied.
The Chancellor reached the opinion that if a person has no possibility for electronic communication, it is not appropriate to send essential information to them electronically; this is not compatible with the principle of good administration. The Chancellor recommended that the Tax and Customs Board should change its administrative practice.
Compliance with the duty to explain and assist
The Chancellor was contacted by an individual who on several occasions did not manage to submit an electronic use and occupancy notice of a construction work. Although an official of Tartu City Government instructed the applicant in filling out the data fields by email, they did not offer the person a possibility to send the documents to the city government on paper.
The Chancellor found that once the state has created an online register it must also be responsible for implementing it. If, as a result of reasonable efforts, a person is unable to submit data to the register, they must have an opportunity to give the data to the administrative authority so that the authority itself can enter the data in the register.
A way out from e-government
Petitioners complained to the Chancellor that it is increasingly complicated in Estonia to live and manage one’s affairs without using electronic channels.
The Chancellor explained that e-government expands and speeds up the possibilities of communication with the state. However, this should not lead to a new type of exclusion where those refraining from the digital state can no longer actively participate in the life of society. Thus, the possibility of communicating with the state and receiving services must remain available for everyone in Estonia, regardless of whether they can or want to manage their affairs through e-channels or otherwise. Those who cannot or have no possibility to use e-channels should be supported by the state in improving their skills, and the possibilities of using e-government should be explained to them.
The more people there are who actually prefer e-channels for communicating with the state, the more important cybersecurity becomes, which in turn affects people’s trust in the government. If cybersecurity requirements are fulfilled, people may be certain that data given to the state is properly kept.
The Chancellor was also asked how to obtain a certificate proving recovery from Covid-19 if the health information system lacks laboratory-confirmed data about having contracted and recovered from the disease. First and foremost, this concerned people who due to having had Covid-19 were not vaccinated and who had contracted the disease and recovered without having taken a test or had done so outside the European Union. The absence of a Covid certificate significantly restricted these people’s opportunities in both private and professional life.
The Chancellor explained that, exceptionally, recovery from Covid-19 may also be affirmed by a doctor, and no PCR test is necessarily required for this. People’s rights may not be restricted merely because technical or procedural problems may occur. In line with the principle of good administration, functioning e-solutions must be created for issuing certificates, so that certificates issued in Estonia could be used in conformity with the orders of the Government of the Republic and alongside European Union digital Covid certificates.
The conduct of extra-judicial challenge proceedings
The Chancellor was contacted by a person who was dissatisfied with the dealings of Narva-Jõesuu City Government after the person had contested their parking fine. The Chancellor found that the city government had failed to comply with the principle of good administration (§ 14 Constitution) since it had not properly carried out extra-judicial challenge proceedings. The Chancellor drew the attention of the city government to the fact that an e-mail sent by an individual must be treated as a challenge, and proposed that challenge proceedings should be carried out.
Extension of a weapons permit
The Chancellor was contacted about a problem appearing in the course of replacement of a weapons permit. The Police and Border Guard Board (PBGB) had declined to examine a person’s application even though it had received their application along with documents complying with the requirements laid down by the Weapons Act.
When a weapons permit expires it can be replaced with a new weapons permit. In that case, the permit holder must apply to the PBGB for replacement of the permit at least a month before the expiry of the existing weapons permit. Under § 41(8) of the Weapons Act, the holder of a weapons permit must prove the existence of the weapons indicated on their permit.
However, after timely submission of the documents, the weapons permit applicant had a traffic accident as a result of which they were under hospital treatment for several months. During that period, their weapons permit expired. The PBGB was unable to check the existence of the weapons indicated on the weapons permit. This was done after the end of the hospital treatment when the weapons were delivered to be deposited with the PBGB.
During the proceedings, the PBGB did not ascertain any substantive factors to preclude replacement of the weapons permit. Despite this, the PBGB declined to examine the person’s application and replace the weapons permit with a new one. The PBGB claimed that the procedural steps required in the process of replacing a weapons permit must be carried out before the expiry of the previous weapons permit because an invalid permit cannot be replaced.
In the Chancellor’s opinion, this interpretation of the Weapons Act is not compatible with the Constitution as it fails to take into account essential facts. The PBGB agreed to renew the proceedings and the person’s weapons permit was replaced by a new one.
Good experience
Quite often it is possible to help people so that their concern is already resolved in the course of proceedings. The chaplain of the Defence League asked for the Chancellor’s assistance with ascertaining the father of a child of a serviceman.
The child was born while the father was on a foreign mission, so that he could not officially accept his paternity here on site. However, the child’s parents wanted their child not to be registered as the child of a single parent in birth documents. With the help of the Ministry of the Interior and the office of Tallinn notaries Erki Põdra and Kätlin Aun-Janisk we managed to help this family by using remote identity verification.
Population
Residing and setting up residence in Estonia is regulated by several laws and regulations whose implementation and interpretation raises questions and against which the Chancellor received numerous complaints this year too.
Rights of foreigners
The Chancellor was contacted by an individual to whom the Police and Border Guard Board (PBGB) had refused to issue a residence permit to settle with their spouse. The PBGB had reached the opinion that it was entitled to make that decision based on discretion even though no legal basis existed to refuse a residence permit. Neither the law nor the Constitution confer such discretion on the PBGB.
The applicant’s spouse has lived in Estonia since 2016 and has repeatedly been granted a temporary residence permit. The spouses have close contact with each other via means of communication. They have three children. Both the applicant’s spouse and all the children hold an Estonian residence permit valid to 2025. When refusing to issue the residence permit, the PBGB stated that, since these people had themselves chosen such a visitation marriage, the spouses can meet on the basis of a visa. At the same time, the PBGB was aware that they had also been refused a visa on several occasions.
The Chancellor found that the PBGB violated statutory requirements in refusing to issue the visa. In its decision on refusal, the PBGB failed to provide any justifications as to why the applicant did not meet the conditions laid down by law and under which they would have been entitled to settle with their spouse. The law sets out cases where a residence permit may be refused on account of circumstances arising from an applicant’s person. The issue of a residence permit may be refused if a person poses a threat to public order, national security or public health (§§ 124–125 Aliens Act). If the PBGB ascertains facts on account of which a person may pose a threat to public order or national security, these facts must be set out in the decision and the decision must be reasoned.
To ensure lawfulness and good administration, the Chancellor asked the PBGB to re-examine the application for a residence permit. If the PBGB believes that the person endangers public order or security, or another ground exists to refuse a residence permit, then this must be written down clearly so that, if necessary, it may be verified by the court. The Chancellor asked that the PBGB should also rely on these legal explanations in the future.
Employer’s security
This spring the Riigikogu adopted the Act amending the Aliens Act and the Act on Granting International Protection to Aliens (241 UA) but in doing so did not resolve all the problems related to payment of the employer’s deposit which the Chancellor had pointed out last year. For example, by amending the law the problem of the definition and amount of the employer’s financial security were resolved while failing to set out the procedure for making use of the security, i.e. how the security will actually be used. As a result, it remains unclear how exactly the security (i.e. both the deposit and the guarantee) secures claims in relation to remuneration of particular employees.
The Chancellor sent a new memorandum to the Riigikogu Constitutional Committee, the Ministry of the Interior and the PBGB, asking once again to consider the possibility of adding provisions regulating the procedure for use of the employer’s security in the Aliens Act.
Applying for a legal basis to settle in Estonia
The Chancellor was asked for advice by a person wishing to settle with their partner in Estonia. The applicant was concerned because the PBGB helpline told them that they had no possibility to obtain a residence permit for this and suggested they contact immigration counsellors for advice.
The person held a long-term residence permit in Latvia but they were originally from Estonia and considered themselves to be an ethnic Estonian as they were born and raised in a multi-ethnic family in Estonia and went to school in Estonia. Therefore, they were also interested in acquiring Estonian citizenship.
The Chancellor explained to the petitioner that the response by the PBGB official may have been misleading because not all the relevant facts were ascertained before replying. The person decided to apply for a residence permit based on § 36(3) of the Constitution, under which every Estonian has the right to settle in Estonia. The Estonian legal order does not regulate more specifically the conditions to be fulfilled in order for an Estonian to be able to obtain a residence permit to settle in Estonia in line with § 36(3) of the Constitution.
According to the PBGB, ethnicity is a matter of self-determination with regard to which several circumstances should be taken into account. According to the Minister of the Interior regulation, a residence permit applicant who is an Estonian should submit a document proving that they are of Estonian ethnicity. That document must contain information about the ethnicity of the applicant or their parent or grandparent.
The Chancellor explained that ethnicity is to a large extent a matter of self-determination and cannot be limited only to the ethnicity of someone’s parents. Especially if a person was born in Estonia and their home language is Estonian and they have attended educational institutions providing instruction in Estonian, they may identify themselves as being of Estonian ethnicity. The case-law has also reached the opinion that the concept of ethnicity is broader than merely the Estonian ethnicity of parents or grandparents. When identifying someone’s ethnicity, different circumstances must be assessed in combination.
When resolving the case, it was found that Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents has not been properly transposed into Estonian law. Under that Directive, a long-term resident has the subjective right to reside in another Member State and receive a residence permit for this. The Chancellor also sent the issue to the Ministry of the Interior for information.
The right of a child in Estonia to attend school
The Chancellor resolved a case where the PBGB prohibited a child staying in Estonia without a legal basis from attending school. The child and their mother had an Estonian residence permit which could not be extended because both their residence permits were linked to the residence permit of the mother’s spouse who, however, had been expelled from Estonia. The PBGB had informed the school that the child was not entitled to attend school and had requested the school to notify the PBGB if the child came to the school again. The child having reached the school was taken back home by PBGB officials.
The Chancellor found that the PBGB had violated the law and the child’s rights. The PBGB is not competent to assess whether a child is entitled to attend school. The PBGB also acted unlawfully by removing the child from school since no legal basis existed for this step. The PBGB admitted that the officials had acted unlawfully and informed the school that the child may continue studying at the school.
Every child at the age of compulsory school attendance in Estonia is entitled to education. A child is entitled to attend school for as long as they stay in Estonia.
Applying for a residence permit for a child
The Chancellor was asked for assistance with obtaining a residence permit for a child born in Estonia. A PBGB official had told the mother that the child cannot get a residence permit because illegal alien’s proceedings had to be carried out in their respect, and a legal basis for residence of the child in Estonia must be applied for at a foreign embassy. At the time of the child’s birth, the parents were staying in Estonia on the basis of a long-term visa and were subsequently granted a residence permit.
The PBGB admitted that the official had given the parents misleading explanations and the child was granted a residence permit.
In the course of resolving this case, a more general problem was also found. The law fails to regulate a child’s legal status in a situation where at the time of the child’s birth the parents are staying in the country on the basis of a long-term visa. Naturally, it is not possible to apply for a basis of a child’s stay before the child’s birth, but that basis must still arise from the law. The Chancellor is continuing to deal with the issue.
Placement in an open prison during proceedings for revocation of residence permit
The Chancellor received a petition concerning a person’s transfer to an open prison when the PBGB had initiated proceedings for revocation of the prisoner’s long-term residence permit. According to the petition, the prison had explained to the person that they could not be transferred to an open prison since the PBGB had initiated proceedings for revocation of their long-term residence permit.
The Chancellor explained that initiating proceedings for revocation of a long-term residence permit does not preclude a decision on a person’s transfer to an open prison. Usually, a decision on revocation of a residence permit is made as late as possible during the period of serving a sentence because it is then possible to assess the effect of the sentence on the person’s behaviour (i.e. achieving the objectives of imprisonment).
According to the explanation given by the prison, the prison automatically considers initiation of proceedings for revoking a long-term residence permit as a flight risk. The Chancellor explained that, in order to ascertain the risk of escape, the prison must assess the circumstances characterising the person and their behaviour.
A long-term residence permit may only be revoked if a person poses a threat to public order or security. Committing an offence does not in itself mean that a long-term residence permit may be revoked. Moreover, the decision must also take account of other circumstances: the person’s age, how long they have lived in the country, the potential consequences of their expulsion to them and their family members, as well as their links with the country of residence and absence of links with the country of origin. Even if a long-term residence permit is revoked, this does not mean the person’s expulsion from the country. They may be entitled to a temporary residence permit.
Applying for a residence permit for a parent whose child is an Estonian citizen
The Chancellor was contacted by a citizen of the Russian Federation to whom the PBGB did not wish to issue a residence permit. The applicant was married to an Estonian citizen and their child acquired Estonian citizenship by birth. The applicant applied for a residence permit to settle with their spouse but since the spouse was a prisoner the PBGB said that probably the applicant would not be given a residence permit. In this respect, the PBGB failed to pay attention to the fact that the applicant’s child was an Estonian citizen and the applicant was the child’s only caregiver.
However, in the course of the Chancellor’s proceedings the matter was resolved. The PBGB decided that issuing a temporary residence permit to the applicant was justified considering that the applicant plans to visit the spouse in prison as often as possible and that the applicant and the spouse have a minor child who is an Estonian citizen.
Previously, the Chancellor has drawn attention to the fact that the Aliens Act contravenes the Constitution since the Act fails to lay down a legal basis to apply for a residence permit if an alien’s minor child is living in Estonia (the Chancellor’s memorandum of 28 April 2014 to the Minister of the Interior). To date, the law has not been amended even though European Union law also requires a child’s rights to be taken into account.
The PBGB issued a residence permit to the petitioner.
The duration of proceedings in applications for residence permit
Similarly to the previous reporting year, this year the Chancellor also received several petitions about the PBGB delaying with resolving applications for a residence permit. For example, in one case the proceedings had lasted for 15 months, in another case almost 9 months, and in yet another case 5 months. Moreover, the PBGB had failed to inform the applicants about extending the duration of proceedings or the reasons therefor. The Chancellor is continuing to deal with the issue.
The validity of foreign identity documents
The Chancellor received a letter from a person whom the prison had denied a visit with their spouse. The prison had so decided because it did not consider the foreign travel document of the person applying for the visit to be valid since upon marriage the applicant had changed their surname.
The prison explained that, in assessing the validity of the identity document, the official had relied on § 14(1) of the Republic of Estonia Identity Documents Act, under which the holder of a document must notify the government authority within one month of any change in their data entered in the document. However, in the instant case this was not a document issued in the Republic of Estonia, so that duties laid down by Estonian legislation could not be taken into account. The prison admitted that the officer had failed to correctly interpret the rule. The applicant was allowed to have the visit.
Detention of foreigners
During the reporting year, the Chancellor also monitored treatment of foreigners detained at the Estonian border.
In a letter to the PBGB and Tallinn Airport the Chancellor explained that keeping foreigners who have been denied entry to Estonia in the transit zone in Tallinn Airport amounts to detention of these people and not merely a restriction on their freedom of movement. Despite this, people detained in the transit zone do not necessarily have to be placed in the detention centre. A person may await their departure from the country at the airport primarily when they are departing Estonia in a few hours and placing them in the detention centre is not necessary, for example, to provide medical care.
In 2022, the Chancellor also carried out an inspection visit to the PBGB detention centre for foreigners (the recommendations given as a result of the inspection are dealt with in the chapter on inspection visits).
Applying for personal identity documents
Several people expressed dissatisfaction about applying for and receiving personal identity documents. They were not satisfied with the situation in PBGB service bureaus and very long queues there. The Chancellor’s proceedings regarding these issues will continue.
Applying for documents through an authorised representative
A couple of petitions concerned receiving identity documents on the basis of an authorisation. For example, based on a notarised authorisation a person wanted to receive a document for their next of kin at the PBGB since for the applicant themselves it was extremely complicated to go and collect the document due to their age and health condition. In one case, the document was applied for through the PBGB self-service environment while in another case the authorised next of kin took the application to the PBGB service bureau but the PBGB registered it as an application sent by post.
The PBGB refused to issue the documents to authorised representatives since it followed the rule that documents are issued to an authorised representative only if the applicant personally submitted their application at the PBGB service bureau. However, no such requirement is laid down by Estonian laws. The PBGB found that, in order to maintain the security of documents, officials must have at least one direct contact with the applicant. According to the PBGB, this requirement arises from European Union law.
The Chancellor explained that, as of 2 August 2021, EU Regulation 2019/1157 is applicable to matters concerning identity documents. Article 10(1) of the Regulation stipulates that, with a view to ensuring the consistency of biometric identifiers with the identity of the applicant, the applicant must appear in person at the PBGB at least once during the issuance process for each application. The idea of the requirement is that a person should have at least one direct contact with a state representative. Thus, the PBGB may require that a person should submit an application for a document either in a PBGB service bureau or a foreign representation if they wish the document to be collected by an authorised representative.
On the basis of petitions, the Chancellor concluded that people are not aware of the conditions under which they can receive documents through an authorised representative and what legislation lays down those conditions. In view of the principle of good administration, she recommended that the PBGB should revise the information on its website as well as information presented in the self-service environment and on the application form. To ensure legal clarity, a reference to the relevant EU regulation should also be provided. The Chancellor also asked the PBGB to observe the duty of reasoning. Officials must provide people with explanations which are correct in substance and relevant.
General practitioner’s certificate in delivery of identity documents
The Chancellor was asked to check whether the PBGB may require presentation of a general practitioner’s certificate if due to illness a person cannot go and collect a document at the PBGB service bureau but wishes to receive the document via a social worker. The law does not lay down such a requirement.
The requirement to present a document proving a person’s health status is established in § 22(1) clause 1 of the Minister of the Interior Regulation No 77 of 18 December 2015 on “The list of certificates and data to be submitted in applying for issue of an identity card, a residence permit card, a digital identity card, an Estonian citizen’s passport, a seafarer’s discharge book, an alien’s passport, a temporary travel document, a refugee’s travel document, or a certificate of record of service on Estonian ships, and the procedure and deadlines for their issue”.
The identity Documents Act lays down that a person does have to prove that they cannot collect the documents due to their health condition, but for this they need to submit confirmation from the city or rural municipal government or a social welfare institution (§ 122(11) Identity Documents Act). The law does not require a person to submit a general practitioner’s certificate to the PBGB.
The Chancellor found that § 22(1) clause 1 of the Minister of the Interior Regulation No 77 of 18 December 2015 contravenes § 122(11) of the Identity Documents Act and § 3 and § 94(2) of the Constitution because the law does not authorise the Minister of the Interior to establish such a condition.
The Minister of the Interior agreed with the Chancellor’s proposal to amend the above regulation.
Population records
The Chancellor was contacted with a concern that it is not possible to record in the population register data about multiple ethnicities and mother tongues. The applicant explained that if a child’s parents are of different ethnicities then the child has two ethnic affiliations. The parents wished that the child should retain both their ethnic affiliations and need not choose between them.
Submission of data on ethnicity and the mother tongue to the population register is mandatory. In the applicant’s opinion, the problem could be resolved either by making submission of data voluntary or allowing a record in the register containing two ethnicities and mother tongues.
In the Chancellor’s opinion, the principles of lawfulness and good administration have been violated since people cannot submit to the population register data on multiple ethnicities and mother tongues. Ethnicity and mother tongue form an extremely important part of a person’s identity. If the state collects data in the population register about residents’ ethnicity and the mother tongue, then people must be able to submit correct data. These data must also be reflected in the population register.
In the questionnaire for the 2021−2022 census, it was possible to note two ethnicities and two mother tongues. There is no justification why the population register lacks a similar possibility if data in the population register are collected in a personalised form and the population register is also used for the census. The Chancellor asked the Minister of the Interior to create a possibility to submit data to the population register on two ethnicities and mother tongues.
Submission of a child’s data in the electronic population register
The Chancellor was contacted by a mother who submitted a notice of residence about herself and her two children in the electronic population register and later found out by chance that the notice had been cancelled. When using the e-population register she had the impression that she had submitted the notice but in actuality the system had not sent the notice of residence to the local authority which must pass a decision on amending residence data.
The notice was not transferred to the local authority because one child’s father did not provide consent to changing the child’s residence in the e-population register. At the same time, the mother was not notified through the e-population register about the fact that neither her nor her children’s notice of residence had been transferred to the local authority but were cancelled. Only three months later the mother found out by chance that her and both her children’s actual residence was not recorded in the population register. However, children’s kindergarten and school places as well as access to several benefits and services depend on the registered residence.
Having analysed the relevant legislation and the explanation by the Ministry of the Interior, the Chancellor found that the technical solution for submission of a notice of residence via the e-population register contravenes the provisions of the Population Register Act dealing with examination of a notice of residence. The conflict lies in the fact that the existing technical solution does not enable the e-population register to transfer a child’s notice of residence to the local authority if the other parent has failed to give consent through the e-population register. The technical solution fails to transfer such a notice of residence to the local authority and automatically cancels it after 30 days. The system does not notify the person submitting the notice of residence that the other’s parent’s consent was not obtained and the notice of residence was not processed. This leaves the person with the mistaken impression that they have submitted the notice of residence to the local authority. Thus, in some cases the electronic register may actually render submission of a notice of residence more complicated even though its purpose is to simplify the process.
The Chancellor recommended that the technical solution for the e-population register should be changed so that regardless of shortcomings a notice of residence posted by a person reaches the local authority. In addition, the Chancellor recommended carrying out a comprehensive analysis of the whole procedure for submission of a notice of residence and deciding on it.
Protection of personal data
Section 26 of the Constitution of the Republic of Estonia protects the right to the inviolability of private and family life, an inseparable part of which is the right to protection of personal data. The state may interfere with a person’s private life and, inter alia, process their personal data only in cases laid down by legislation. Any interference must be justified and limited to what is strictly necessary. The stronger the state’s interference with a person’s private life, the more compelling the arguments justifying it must be.
In addition to the Constitution, processing of personal data is regulated by the European Union General Data Protection Regulation. Its principles are further developed by the Estonian Data Protection Act which entered into force in January 2019.
The use of head cameras
The Estonian Association of Roadworthiness Testers asked for the Chancellor’s assessment as to whether the Transport Administration may require the use of personal recording devices by roadworthiness testers. The Transport Administration recommended that companies carrying out roadworthiness tests should also record the test with personal cameras in addition to stationary cameras. Moreover, the Transport Administration wanted to establish this requirement by an administrative contract. The justification given by the Transport Administration was that recording with a personal camera enables verifying whether inspection of vehicles at a roadworthiness testing point meets all the safety and environmental requirements.
The Chancellor explained that personal cameras for the purposes of supervision may only be used if a legal basis exists for doing so. Section 191(3) and (4) of the Traffic Act stipulates that the procedure for installation and use of technical equipment and for processing data for the purposes of such monitoring and recording is established by a ministerial regulation.
The regulation does not deal with the use of personal cameras. Since the procedure for installing and using technical equipment must be established by a regulation, the Transport Administration cannot impose this requirement via an administrative contract. The Chancellor explained that if the conditions regulating supervision of roadworthiness tests are supplemented by a ministerial regulation, then this always requires assessing whether the measures planned are fit for the purpose and proportionate.
Permits for search devices disclosed in the register of cultural monuments
The Chancellor was contacted by an individual who was annoyed by processing of personal data on the homepage of the register of cultural monuments. The homepage of the register discloses in a single list the data of all holders of permits for search devices and diving permits. A search device is understood as technical equipment or a device which enables identifying the location of archaeological finds on or in the ground and under water.
Under § 19(1) of the statutes of the register of cultural monuments, the register data are public unless access to them has been restricted according to the procedure laid down by law. The General Data Protection Regulation stipulates that general principles of processing personal data must be complied with when disclosing any personal data.
The National Heritage Board explained that the landowner’s permission is required for using a search device on someone’s plot of land, and the landowner must be able to verify with minimal effort whether, for example, a person wishing to set out on a search holds a valid permit for the search device. Thus, the purpose of disclosing personal data is to verify the existence of a permit for a search device. This means that both the landowner and officials carrying out supervision on the ground can verify the existence of a permit without logging onto the system with an ID card.
The Chancellor and the Data Protection Inspectorate agree that a person entitled must have a possibility to verify the existence of a permit for a search device. However, disclosure of data must take into account that it should not compromise the right to inviolability of private life. A justified objective must exist for any disclosure of data, and disclosure must always proceed from the principle of minimisation.
According to the assessment of the Chancellor and the Data Protection Inspectorate, the objective can also be attained in a manner which is less intrusive of people’s private life. If the objective is to provide a simple solution for landowners and officials to verify the permit, for instance, a search bar with specific parameters (name, personal identification code, or the like) could be used. In that case, a person searching for a specific name need not be shown the names of all permit holders while the objective of disclosing specific permit holders would be achieved.
Protection of personal data of sole proprietors
The Chancellor has repeatedly drawn attention to problems related to disclosure of personal data of sole proprietors in the commercial register and register of economic activities.
If a sole proprietor enters their residence data in the register, the data become publicly available and may be linked to a specific person. The commercial register and register of economic activities do not require that a sole proprietor should note their home address as the undertaking’s address, but some undertakings are forced to do this as they might not have a reasonable alternative. Several entrepreneurs have contacted the Chancellor with a complaint that such interference with private life is not, in their opinion, justified.
On the basis of an undertaking’s registered address, with a relatively high probability the conclusion can be drawn as to the sole proprietor’s residence (e.g. whether the person lives in an apartment or private house). Some undertakings may object to this. In the same situation are private limited companies with a single shareholder and non-profit associations with a single member of the board who do not need an office or business premises for their operation.
The Ministry of Justice has promised to analyse disclosure of personal data in registers. To date, it is not yet clear whether and when this problem will be resolved.
Disclosure of personal data on a television programme
The Chancellor was asked for assistance by a person who believed that their personal data had been disclosed on a television programme even though no public interest existed for this.
The law does not entitle the Chancellor to intervene in the activities of media channels. In the event of violation of rules of data protection, a person may have recourse to the Data Protection Inspectorate to protect their rights and, in the event of rules of journalism ethics, recourse to the Press Council. If a person believes that their honour and good name have been defamed or false information about them has been presented, they may protect their rights through the court.
The Chancellor explained that if the Google search website displays links to websites containing inappropriate data about a person (e.g. about a TV programme), the person may contact the search engine and request that the link containing their personal data be removed from the list of search results. The link removed does not affect the personal data presented on the television programme but only the list of search results that are displayed.
The issue of assessment of public interest has been clarified by the Supreme Court. The court has held (see Supreme Court Administrative Law Chamber judgment No 3-3-1-85-15, para. 23) that, in view of the nature of freedom of the press, the press enjoy a broad margin of appreciation as to how to define the range of topics concerning public interest.
The court has noted that the existence of overwhelming public interest must be identified on the basis of specific facts by comparing the facts in favour of disclosing the data with the consequences caused to a person. Disclosure of a person’s data cannot be justified merely by private interest or thirst for sensation. A conclusion of lack of public interest might be reached, for instance, if details of private life are disclosed which are in no way linked to public interest or contribute to public debate. And in that case public interest should be clearly and completely absent because otherwise the executive in the course of state supervision would enjoy too broad a discretion in deciding which topics a media publication may or may not write about. This, however, would distort the freedom of the press.
Courts
The Chancellor officially 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, she may initiate disciplinary proceedings in respect of all judges, and additionally, she submits an opinion for the Supreme Court in constitutional review court proceedings.
The Council for Administration of Courts
In the second half of last year, the Council for Administration of Courts convened twice, and in the first half of this year also twice.
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 is made by the disciplinary chamber operating under the Supreme Court.
The Chancellor does not assess substantive issues concerning administration of justice (e.g. court judgments). She can only assess whether a judge has failed to fulfil their official duties or has behaved disreputably. However, the Chancellor is generally contacted about issues in which she cannot intervene. Mostly, people are not satisfied with a court decision and expect the Chancellor to intervene in judicial proceedings and assess the court decision. The Chancellor cannot do this since, under the Constitution, justice in Estonia is administered by the courts, and only a higher court can assess substantive issues of administration of justice.
During the reporting period, on fifteen occasions the Chancellor had to check whether a court had fulfilled all its official duties or whether a complaint about disreputable conduct by a judge was true. On some occasions, 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.
Complaints to the Chancellor mostly concerned the issue that judicial proceedings last too long. First and foremost, this concerned cases dealt with by Harju County Court.
A reasonable duration of proceedings is a legal concept which is not precisely defined and its substance is interpreted on a case-by-case basis. The Supreme Court disciplinary chamber has explained that the reasonableness of judicial proceedings depends on the circumstances. To measure a reasonable time, it is necessary to assess the complexity of a case, the importance of the benefits at stake, and the conduct of parties to the proceedings. Certainly, the workload of a particular court and judge and the resulting objective circumstances must be taken into account: the court’s resources, the availability of support staff, the number of complaints/actions, and the like.
The Chancellor received a complaint from a person whose civil court proceedings in Harju County Court had lasted for a year and eight months. Thus, more than average time usually spent for resolving a civil case had passed (see the statistics of judicial proceedings for 2021) but it was not yet possible to speak of exceeding reasonable duration of proceedings. Examination of cases revealed no inaction on the part of the court. Delays could be justified by a judge’s vacation or being occupied with adjudicating other cases. Moreover, the Code of Civil Procedure (CCivP) also does not lay down specific deadlines for carrying out these procedural steps. Civil court proceedings must ensure that the court resolves a matter correctly, within a reasonable time, and at the minimum possible cost (§ 2 CCivP). The heavy workload of judges in Harju County Court must also be taken into account. For example, the docket of a judge adjudicating civil cases includes 100–200 cases simultaneously.
The guardians of an infant were left without guardian’s allowance and parental benefit for two-and-a-half months because the court had delayed in extending their guardianship. The judge justified the delay by their very heavy workload. In view of the heavy workload of the civil section of Harju County Court, the Chancellor did not consider it justified to initiate disciplinary proceedings and confined herself to a mere observation that compliance with procedural deadlines concerning guardianship affects the parties directly. A delay may affect the guardian’s and child’s ability to cope, and this way it may also remain unclear who may make legal decisions (e.g. those concerning vaccination and medical care) on behalf of the child. The chair of the court can also help avoid such cases and where necessary, for example, reallocate cases.
The Chancellor’s advisers also contacted the Social Insurance Board and the Ministry of Social Affairs to discuss whether it is possible to pay benefits retroactively for a period remaining between two court orders. The Social Insurance Board found a possibility to interpret the Family Benefits Act so that the period of paying benefit granted to the applicant was extended by the time when they did not receive parental benefit. Thus, they are also paid parental benefit for the time remaining between the validity of the two court orders.
Claims for compensation of damage caused by the court are examined by the Ministry of Justice. The law obliges the state to compensate damage caused by the court only if a judge committed a criminal offence in the course of judicial proceedings or if the European Court of Human Rights has satisfied the person’s application (State Liability Act § 15(1) and (31)). Nevertheless, the Ministry of Justice may also pay compensation by agreement for damage caused by the court. On this basis, the Chancellor recommended that the petitioner should consider the possibility to claim compensation from the Ministry.
Petitioners also complained about delays in administrative court proceedings. In none of the cases could the court be found at fault for delayed proceedings. Complaints about delays in proceedings are mostly made by prisoners who – unfortunately, themselves most of all – burden the judicial system with their numerous complaints. For instance, in 2022 alone a prisoner has filed 13 complaints with the administrative court, of which the court has already resolved 12 but one is still pending. The prisoner asserts that for this reason disciplinary proceedings against the judge should be initiated.
The Chancellor received a complaint from an attorney who believed that the court had failed to take into account their vacation when assigning the time of the court hearing. The attorney found that this constituted a violation of their rights as well as a breach of procedural law and sought disciplinary proceedings to be initiated against the judge.
In line with the first sentence of § 342(2) of the Code of Civil Procedure, a court hearing is scheduled without delay after receipt of the court claim, motion or application and of a response thereto, or expiry of the time limit set for responding. Under subsection (3), if possible the court obtains and considers the opinion of the parties to proceedings when scheduling a court hearing. Point 8.1 of the Guidelines for promoting best judicial procedural practice states that the court will take into account vacations of the parties’ representatives when scheduling a hearing. The parties must find a vacancy for holding a hearing no later than within three months from the time suggested by the court, or if this is impossible, then ensure a replacement for themselves.
During the entire proceedings (including when scheduling a hearing), a judge must take into account many circumstances affecting the proceedings – including the justified interests of the participants in proceedings – and ultimately guarantee that proceedings are carried out within a reasonable time. When resolving the attorney’s request for changing the time of the hearing, the reasoning given by the judge for their decision was that this was merely a case management hearing and thus the defendant’s rights were not breached by the fact that they attend the hearing without a representative. According to the chair of the court, this was rather an isolated case arising only from the judge’s active management of the proceedings and the desire to swiftly resolve the case.
When resolving petitions received by the Chancellor, it is noticeable that judges tend to schedule the term for submission of positions or evidence for during their vacation but not after the end of their vacation. This means that in several of their proceedings the judge sets the deadline for the parties to submit their positions and then goes on vacation. This way, applications by the parties to extend the term often remain unresolved in time as well. The Chancellor certainly cannot approve of such a practice.
Opinions submitted to the Supreme Court
The Supreme Court may request the Chancellor’s opinion in a constitutional review case pending in the Supreme Court.
During the reporting period, the Chancellor submitted an opinion to the Supreme Court in a constitutional review case concerning an application by Jõelähtme Rural Municipal Council to invalidate § 39 subsections (1) and (5) and subsection (7) clauses 2–4, § 40 subsections (5) and (8) of the Acquisition of Immovables in the Public Interest Act and § 155 subsection (4) of the Law of Property Act Implementation Act.
The Chancellor found that the provisions of the Acts cited in the application do not impose on local authorities any state-level obligations which, under the second sentence of § 154(2) of the Constitution, must be entirely and verifiably funded from the state budget. Establishing compulsory possession by a city or rural municipality can on the whole be seen as a local authority’s mandatory function, and the money needed to perform this function need not be allocated by the state from the state budget – these expenses must be covered from revenue earmarked for local authorities for resolving local issues.
Under current legislation, the agency arranging establishment of compulsory possession cannot request that procedural expenses should be covered by the person in whose favour compulsory possession in public interest is established. This might not be the best solution. The Riigikogu may decide to lay down different regulatory arrangements but a municipal council cannot request this (under the second sentence of § 154(2) of the Constitution).
The Chancellor submitted to the Supreme Court an opinion in a constitutional review case concerning the possibility for a court to require submission of a (potential) defendant’s data. The Chancellor found that in this case the specific constitutional review initiated by Harju County Court was admissible, and it is contrary to § 17 of the Constitution that the Code of Civil Procedure lacks provisions explicitly granting the possibility to seek the court’s assistance in ascertaining the personal data of a (potential) defendant.
The Chancellor maintained the same position in her opinion submitted to the Supreme Court in case No 5-21-30 concerning a request by the court for submission of the data of a (potential) defendant. The Chancellor found that the specific constitutional review initiated by Tallinn Court of Appeal was admissible, and it is contrary to § 17 of the Constitution that the Code of Civil Procedure lacks provisions explicitly granting the possibility to seek the court’s assistance in ascertaining the personal data of a (potential) defendant.
The Chancellor also submitted an opinion to the Supreme Court in case No 5-21-8 concerning the constitutionality of § 4(4) of the Collective Agreements Act. The issue was whether stipulations agreed under a collective agreement also extend to those employees who are not parties to a collective agreement (e.g. are not associated with trade unions or professional associations). The Chancellor found that § 4(4) of the Collective Agreements Act contravenes the principle of freedom of enterprise laid down by § 31 of the Constitution.
The Chancellor also submitted an opinion in case No 5-21-10 concerning the conflict of the Aliens Act with §§ 26 and 27 of the Constitution, so that it is not possible to issue a residence permit to a foreigner wishing to settle in Estonia with their cohabiting partner residing in Estonia on the basis of a residence permit. The Chancellor concluded that a conflict with the Constitution indeed exists since the rule in the Aliens Act does not enable issuing such a residence permit under any conditions.
The Supreme Court received from the Chancellor an opinion and a supplementary position in case No 5-19-29 concerning the rules of European Union law and Estonian constitutional review proceedings and the right of a person with impaired hearing to work as a prison officer. The Chancellor found that Estonian legal norms may not impede effective protection of the rights arising from European Union law. According to the Chancellor’s assessment, § 4 of the Government of the Republic Regulation and Annex 1 to the Regulation contravene the Constitution since these provisions do not enable an assessment as to whether impaired hearing in actuality prevents a prison officer from performing their working duties.
During the last days of the reporting year, the Chancellor submitted an opinion to the Supreme Court in case No 5-22-2/3 concerning the Minister of Justice Regulation No 16 on “The procedure for paying the state legal aid fee and compensation of expenses to an attorney”. In the Chancellor’s opinion, the provision on the procedure for paying the fee contravenes the Constitution insofar as it does not enable, in justified cases, determination of the fee to take into account the actual scope of the steps performed by the attorney.
The Supreme Court also received the Chancellor’s opinion in case No 5-22-3/4 concerning the Government of the Republic Regulation No 332 on “The procedure for paying remuneration and compensating expenses to participants in proceedings in criminal, misdemeanour, civil and administrative cases”. The Chancellor reached the opinion that the regulation contravenes the Constitution because in establishing the fees the Government has exceeded the powers conferred on it by the Code of Criminal Procedure.
In the field of constitutional review, the Chancellor’s reporting year had a worthy wrap-up in the form of an opinion in case No 5-22-4 concerning the legislative provisions underlying the restrictions imposed under the Infectious Diseases Prevention and Control Act in connection with the spread of the coronavirus SARS-CoV-2. The Chancellor reached the conclusion that several rules in the Act contravene the Constitution.
Lifting parliamentary immunity
During the reporting year, the Chancellor received two applications from the Prosecutor General’s Office to lift the parliamentary immunity of a member of the Riigikogu (MPs Mailis Reps and Mihhail Korb).
Under § 76 of the Constitution, members of the Riigikogu are immune from prosecution, and criminal charges against a member may be brought or judicial proceedings against them continued only on a proposal by the Chancellor of Justice and with the consent of a majority of the members of the Riigikogu. That provision of the Constitution protects members of the Riigikogu, for example, from political persecution and court cases brought for political motives.
In both cases, the Chancellor thoroughly examined the criminal file (in the case of Mihhail Korb also the surveillance file) and decided to make a proposal to lift the parliamentary immunity of Mailis Reps and Mihhail Korb. The Chancellor ascertained that the whole investigation so far had been lawful and no grounds existed to suspect that charges against the members of the Riigikogu could have been impelled by an inappropriate (e.g. political) motive.
The Riigikogu agreed with both of the Chancellor’s proposals.
Enforcement and collection proceedings
Under §§ 14, 15 and 32 of the Constitution, the state is obliged to create a functioning enforcement system and ensure that enforcement proceedings in a specific case can be carried out. The Riigikogu enjoys a relatively free hand in shaping the enforcement system. In Estonia, enforcement of court decisions and other enforceable titles (i.e. legally authorised enforceable measures) is organised by a bailiff who is entitled to implement measures laid down for this by law. For example, a bailiff may attach a person’s bank account and income transferred to the account.
In most complaints, debtors did indeed enquire whether a bailiff may attach a person’s income. Parties seeking enforcement were interested in the possibility of attachment of disbursements from the second pension pillar in a situation where the transfer is made to an account with a foreign credit institution. They were also dissatisfied about the fact that due to expiry of the limitation period debtors can escape claims filed against them.
A bailiff’s profession presumes compliance with the laws, integrity, dignity, and impartiality. A bailiff’s actions should inspire trust in everyone in whose favour or in respect of whom the bailiff takes steps. During the reporting year, however, a shadow was cast over the bailiff’s profession by criminal and disciplinary cases.
The county court convicted a bailiff who had failed to pass on to claimants and had appropriated money collected from debtors. Another bailiff overcharged the statutory amount of enforcement fee payable by debtors. The Minister of Justice removed that bailiff from office (the decision has been contested).
The Supreme Court upheld the directives of the Ministry of Justice imposing on bailiffs a fine as a disciplinary penalty since in attaching a bank account they had failed to leave a minimum non-attachable amount in the debtor’s account (judgment of 20 April 2022 in administrative case No 3-19-1481; judgment of 7 June 2022 in administrative case No 3-19-1255). According to the Supreme Court’s assessment, the law clearly stipulates that in attaching a debtor’s bank account the non-attachable amount must be left in the account. The requirement of leaving the minimum necessary amount in the account also applies even when there is no money in the account. In the event of attaching an empty account in its entirety, the statutory automatic minimum protection for a debtor would not be ensured because when income is received in the account it would also be attached in its entirety and the debtor would have to apply to the bailiff to amend the attachment notice.
With the reform of mandatory funded pensions, people were given a possibility to withdraw their money from the second pension pillar all at once either before or at retirement age. On this basis, the Chancellor was asked to check the constitutionality of § 114 of the Code of Civil Procedure and Code of Enforcement Procedure Implementation Act. Due to the absence of a technical solution, up to 1 January 2023 this provision precludes a bailiff from attachment (including provisional attachment) of a debtor’s claim against the Registrar of the Register of Pensions if the debtor has decided to withdraw their money from a mandatory funded pension fund. The individual contacting the Chancellor asserted that the provision was unconstitutional in a situation where payment from the second pension pillar is made to an account with a foreign credit institution. That is, an Estonian bailiff cannot attach an account opened with a foreign credit institution.
The Chancellor concluded that this provision did not contravene the Constitution. Payment from a mandatory funded pension fund is made only to a person’s bank account. The money in the bank account can be attached in the course of enforcement proceedings, so that a claim by the party seeking enforcement can also be satisfied from the payment made from the second pension pillar. This also applies if payment from the second pension pillar is made to an account with a foreign credit institution. In that case, the party seeking enforcement can enforce the claim in the particular foreign country under the law applicable there. Enforcement proceedings there may be more complicated, more costly and more time-consuming but this does not mean that the party seeking enforcement cannot protect their rights. Most foreign payments have been made within the European Union and a party seeking enforcement can protect their rights by relying on European Union regulation. Attachment (or preliminary attachment) of a debtor’s claim against the Registrar of the Pension Register is not the only possibility to protect the rights of a party seeking enforcement. The debtor may also have other assets in Estonia (and abroad) against which a claim can be enforced (e.g. income, immovable property).
The Act Amending the Code of Enforcement Procedure and Amending Other Acts entering into force in April 2021 simplified termination of enforcement proceedings on account of expiry of the limitation period of a claim 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 a debtor’s application in proceedings on petition. The Chancellor was contacted with a concern that now debtors can escape claims against them more easily than before. The Chancellor did not see a conflict with the Constitution in this respect.
Debts can also be claimed in collection proceedings. The law does not regulate this in substance.
Complaints sent to the Chancellor in this regard concerned first and foremost expiry of claims. For example, the Chancellor was asked to check the constitutionality of § 186 of the Law of Obligations Act. Namely, the Law of Obligations Act fails to stipulate that a debt relationship may also terminate in the event of expiry of the debt, so that no legal certainty and legal clarity exists as regards termination of a debt relationship. The Chancellor reached the opinion that in this regard no conflict exists with the Constitution. The Riigikogu is entitled to decide on what grounds a debt relationship is terminated. By relying on the Constitution, the Chancellor cannot demand precise rules on this.
Debtors were concerned that collection companies require payment of expired debts and at the same time submit personal data to the payment default register. The Chancellor did not consider the relevant legislation to be unconstitutional. When collecting a debt, the creditor (collection company) must act in good faith and comply with legislation regulating processing of personal data. After the expiry of the limitation period of a claim, a collection company may request payment of the debt but the debtor does not have to comply. In addition, the law protects them against being pressured by reminders.
Whether more precise rules are needed for the collection service and extra-judicial collection of debts can be decided first of all by ministries and the Riigikogu. A dispute arising with a collection company can eventually be resolved in court by way of civil court proceedings. Since a collection company does not perform any public duties in recovering debts arising from a relationship in private law, the Chancellor cannot supervise the activities of a collection company (including in processing personal data).
Local authorities
Chapter 14 of the Estonian Constitution guarantees the autonomy of local government, i.e. the right of local authorities to resolve and manage local matters independently. Naturally, rural municipalities 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. Uniform fundamental principles of democratic local government in Europe are determined by the European Charter of Local Self-Government.
A local authority is not a subsidiary body of the Government of the Republic or the ministries, but it is also not a state within the state. The idea of local government is that local matters are resolved by the community itself in a manner most suitable for the particular city or rural municipality. In doing so, a local authority must act lawfully. The state should provide support to a local authority: 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 helped to resolve problems regarding internal working arrangements in local authorities and checked whether local authority legislative acts (regulations) are in conformity with the Constitution and laws. The Chancellor also monitored that rural municipalities and cities perform public functions lawfully and do not violate the fundamental rights and freedoms of persons.
The right to elect a municipal council
Russian aggression against Ukraine starting in February 2022 spurred an extensive public debate about the rights of people holding citizenship of the Russian Federation and Belarus in Estonia. In this situation, members of the Riigikogu submitted to parliamentary proceedings a Draft Act on Amending the Municipal Council Election Act which would deprive foreigners (i.e. third-country nationals who are not European Union citizens, and stateless people) residing in Estonia on the basis of a long-term residence permit or permanent right of residence of the right to vote in municipal council elections.
The Riigikogu Constitutional Committee asked for the Chancellor’s assessment whether such an amendment is constitutional. The Chancellor found that adopting the Draft Act in the form it was presented would lead to a conflict with § 156(2) and § 9(1) of the Constitution in combination. Section 156(2) of the Constitution confers the right to vote in local elections on persons residing permanently within the boundaries of the local authority and not just on Estonian citizens. This stipulation provided by the Constitution has been the underlying basis in all the versions of the Municipal Council Election Act since 1993.
Municipal council working arrangements
Under § 156 of the Constitution, the local authority representative body is the municipal council. This gives rise to the municipal council’s right of self-organisation, meaning that municipal councils are entitled to establish their working arrangements and procedural rules. However, the council’s right of self-organisation is not unlimited; it must be compatible with the Constitution and laws (about the working language, see the opinion “Municipal council’s working language“).
Several matters involving the working arrangements of municipal councils and rural municipality or city governments are regulated by the Local Government Organisation Act whose requirements local authorities must comply with when establishing their working arrangements. Under the Local Government Organisation Act, a municipal council establishes the rural municipality or city statutes specifying the working arrangements of the municipal council and government.
In a state governed by the rule of law, public power observes the rules laid down by itself. Thus, a municipal council, government, officials and staff must be guided in their activities by the provisions of the rural municipality or city statutes. Rules that have been enacted must also be applied in the specific situation. Those rules in statutes which cannot be applied even with the help of interpretation should be amended or annulled by the municipal council.
The Chancellor was asked whether a session of Tapa Rural Municipal Council took place in compliance with the provisions laid down by the statutes of Tapa rural municipality. The session was held on 31 March, i.e. one day before a municipal council becomes incapacitated (under § 52(1) clause 1 of the Local Government Organisation Act) if the rural municipality or city budget has not been adopted by deadline. At the beginning of the session, the council did not approve the session agenda. Then some of the municipal council members left the session. After a recess, the council approved the session agenda.
Under the statutes of Tapa rural municipality, the municipal council approves the agenda of the council session by a majority of votes in favour according to the draft agenda submitted to municipal council members. The session will discuss issues noted in the agenda. The rural municipality statutes prescribe a repeat vote only where votes in favour and against are divided equally as a result of the vote. The statutes do not further regulate the situation where the agenda is not approved.
The Chancellor concluded that even though Tapa Rural Municipal Council had failed to comply with the municipality’s statutes, this procedural error does not incapacitate the municipal council, and for this reason the budget need not be annulled and processed anew. The Chancellor recommended that in the future the municipal council chair or their deputy should precisely observe the requirements of the municipality’s statutes and, if possible, plan the work so that the final vote on the budget is not left for the last moment.
The Chancellor was also asked to assess the proceedings of the supplementary budget of Harku rural municipality. Under the statutes of Harku rural municipality, the municipal council may adopt a supplementary budget at one reading if a proposal for this is made by the lead committee. The Chancellor ascertained that the first supplementary budget of Harku rural municipality in 2022 was not handled in compliance with the municipality’s statutes because the decision of the lead committee did not contain an explicit proposal to adopt the supplementary budget at one reading. Yet this is what the municipal council did. The Chancellor reminded the council that the municipality’s statutes must be complied with.
The Chancellor was asked whether draft legislation on the agenda of Räpina Rural Municipal Council was submitted to the municipality’s office by the deadline prescribed by the statutes of Räpina rural municipality. The Chancellor concluded that this was not the case but non-compliance with the deadline did not require annulment of the legislation adopted at the session. The municipal council must keep in mind that draft resolutions and regulations constitute draft legislation within the generally recognised meaning of this concept. In case of a wish not to observe the council’s prescribed deadline when submitting draft legislation to the municipality’s office, it is possible to submit the draft as a matter of urgency.
In the interests of credibility of the municipality’s dealings, an attempt must be made to respect deadlines and rules of decent management of affairs even if an error or delay need not lead to annulment of legislation. If necessary, a municipal council can revise its rules of procedure.
The Chancellor was asked to assess whether involving experts in the work of municipal council committees complied with the requirements of legislation. The rules of procedure of Saaremaa Rural Municipal Council allow a municipal council committee chair to involve up to two experts in the committee as fully-fledged members.
According to the Chancellor’s assessment, the municipal council rules of procedure can be interpreted so that appointment as committee members of experts selected by the committee chair complies with the procedure for formation of committee membership as laid down by the law (see § 47(1) of the Local Government Organisation Act). The rules of procedure do not change the principle under the Local Government Organisation Act (§ 47(13)) that formation of the composition of a municipal council committee must take into account the share of the representatives of political parties and election coalitions in the municipal council.
The procedure for budget proceedings and implementation
The Local Government Financial Management Act (§ 21(1)) lays down that a rural municipal or city council by its regulation must establish the conditions of and procedure for preparing a draft budget or supplementary budget, and its processing and adoption by the municipal council.
The procedure for preparing, processing and implementing the budget of Kuusalu rural municipality lays down that, after reading of the budget, municipal council committees and members submit to the rural municipality government proposals for amendments and additions by the deadline set by the chair of the municipal council session. The rural municipality government is also entitled to submit proposals for amendments and additions to the draft budget. The procedure for preparing, processing and implementing the rural municipality budget does not oblige the rural municipality government to submit its proposals to municipal council committees and council members by the set deadline.
The Chancellor drew attention to the fact that if the municipal council has set a deadline for the rural municipality government for submission of amendments, then the government must observe the deadline.
Municipal council members on supervisory boards
The Chancellor was asked whether municipal council members as local authority representatives may belong to supervisory boards of companies with rural municipality or city participation or supervisory boards of foundations established by a rural municipality or city. Such practice is widespread in Tallinn as well as other municipalities. It has been justified to ask whether the best representatives of city or rural municipality interests are appointed to supervisory councils, or whether paid positions of supervisory board members are allocated with other objectives in mind.
According to the Chancellor’s assessment, reconciling the work of a municipal council member and supervisory board member may lead to both seeming and substantive conflicts of interest. Attention should be given to becoming aware of them and mitigating them. A member of a supervisory board should understand that they are also liable with their personal assets for decisions passed as a member of the board. If a supervisory board member causes damage by failing to perform their duties with due diligence, the damage must be compensated by them.
The Local Government Organisation Act does not preclude appointing municipal council members to supervisory boards. Under the Constitution, no demand can be made to impose such a ban. However, the Act (§ 48(22)) precludes a member of a municipal council audit committee from performing the functions of a member of the chief executive, director or member of the management board of a company, foundation or non-profit association under the control of the same rural municipality or city, or the head or deputy head of an agency administered by the administrative agency of the same rural municipality or city.
Functions of rural municipalities and cities
The functions of rural municipalities 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 only be restricted if a sufficiently clear legal basis for this exists in view of the nature of the particular restriction.
Maintenance of property and public amenities
It is one of the local authority’s functions to organise maintenance of property and public amenities (§ 6(1) Local Government Organisation Act), i.e. to ensure human-friendly and environmentally-friendly, aesthetic and maintained space in a rural municipality or city. Property maintenance conditions are established by the municipal council through property maintenance rules (§ 22(1) clause 361 Local Government Organisation Act).
The Chancellor was asked to check the lawfulness of a provision in Tallinn property maintenance rules which prohibits feeding in a public place of birds and animals living freely in the city.
According to the Chancellor’s assessment, such a prohibition does not contravene the Constitution. The procedure for assisting stray domestic animals and wild animals and birds in distress has been established separately. In addition to the Animal Protection Act, protection of animals, birds and fish is also regulated by the Nature Conservation Act and other laws. Helping animals in distress is not prohibited, nor can it be prohibited by property maintenance rules. By prohibiting feeding in a public place of birds and animals living freely in the city, the city wishes to prevent fouling of buildings and green areas and harming these birds and animals (e.g. by offering inappropriate food).
Section 157(2) of the Constitution stipulates that local authorities may, on the basis of the law, establish and levy taxes, and impose encumbrances. More specifically, a property maintenance encumbrance is regulated by provisions of the Local Government Organisation Act (§ 36(2)−(9) and § 22(1) clause 4). It does not follow from these provisions that a local authority should impose an encumbrance to ensure property maintenance on their public territory. Several options are available to a local authority. When imposing an encumbrance, the resulting interference with fundamental rights must be taken into consideration.
When resolving a petition from a rural municipality resident, the Chancellor ascertained that Anija Rural Municipal Council had failed to properly regulate the property maintenance encumbrance. The regulatory provisions in the property maintenance rules of Anija rural municipality partly lacked legal clarity. Additionally, it had failed to adopt a legal act which had to be established under the property maintenance rules (“The maps of cleaning areas of apartment buildings, the conditions and scope of discharging the encumbrance shall be laid down by a separate legal act.”) This gave rise to a conflict with the general fundamental right to equality (§ 12(1) Constitution).
The Chancellor asked the rural municipal council to establish an encumbrance that enables equal treatment of people. The Chancellor also recommended that the property maintenance encumbrance as a whole should be regulated in the property maintenance rules, and consideration should be given to amending the rules so that they enable taking into account the specific situation when determining the size of the cleaning area and, if necessary, reducing the area (see also the opinions “Encumbrance imposed by property maintenance rules of Paide city“ and “Encumbrance imposed by property maintenance rules“).
Anija Rural Municipal Council amended the municipality’s property maintenance rules. The rural municipality government was given the right, in justified cases, to relieve people from discharging the encumbrance or to amend the conditions for its discharge.
Outdoor advertising
Outdoor advertising means advertising located in a public place or advertising which can be viewed from a public place (§ 2(1) clause 8 Advertising Act). The Advertising Act (§ 13(1)) authorises a rural municipality or city to establish – by regulation – rules for placing outdoor advertising that set out the requirements as to the manner and place of displaying outdoor advertising.
Kose Rural Municipality Government, when granting a permit for installing advertising, imposed a condition that the advertising may not have a direct or indirect reference to political associations (political parties) or to political views.
The Chancellor found that this condition imposed by the rural municipality government was not compatible with the Advertising Act or the Kose Rural Municipal Council regulation on “The installation of advertising and establishment of the advertising tax in Kose rural municipality“ and restricts freedom of expression (§ 45 Constitution) and freedom of enterprise (§ 31 Constitution). The Advertising Act does not lay down such a condition, nor does it authorise a local authority to impose one.
The Chancellor asked the rural municipality government to abolish this restriction and refrain from imposing unlawful conditions in the future. Kose Rural Municipality Government abolished the unlawful condition.
The Chancellor was contacted by an individual who had applied on behalf of an election coalition to Valga Rural Municipality Government for use of advertising space at Valga bus stops. A rural municipality official replied to the applicant that they were not authorised to submit applications on behalf of the election coalition. The justification given for this assertion contained a reference to § 311 subsections (1) and (3) of the Municipal Council Election Act laying down the definition of an election coalition and stipulating that an election coalition shall be presented for registration to the rural municipality or city electoral committee not earlier than on the 60th and not later than on the 45th day before election day.
The Chancellor found that the rural municipality government incorrectly interpreted and applied the law and asked for the application to be re-examined.
Under § 48 of the Constitution, everyone may form non-profit organisations and associations. The right of association means the right, under the relevant legal basis, to form associations enjoying the status of a legal or non-legal personality (Supreme Court Constitutional Review Chamber judgment of 10 May 1996, 3-4-1-1-96).
The issue whether an election coalition has been formed and who is authorised to represent it cannot be decided by a rural municipality or city government on the basis of the provisions of the Municipal Council Election Act. This Act does not regulate formation of election coalitions. No law restricts the time for forming an election coalition or precludes an election coalition from operating on the rural municipality or city level even during the period between elections in order to express the political interests of its members and supporters.
The procedure for management of rural municipality property on a permanently inhabited small island
The Permanently Inhabited Small Islands Act lays down the specifications arising from the special nature of permanently inhabited small islands and which are not established by other Acts. Under this Act, a permanently inhabited small island is an island with an area below a hundred square kilometres and with a population of at least five inhabitants.
A permanent inhabitant is a person who permanently and predominantly resides on a small island and whose residence data are entered in the population register to a level of accuracy stating a settlement unit located on a small island (§ 2 clause 6, see also the opinion on “The definition of a permanent inhabitant“).
The Chancellor was asked to check the compatibility with the law of several provisions in the Ruhnu Rural Municipal Council regulation on “The procedure for management of rural municipality property“ since the regulation granted advantages to permanent residents.
The procedure for management of rural municipality or city property is established by a rural municipal council (Local Government Organisation Act § 22(1) clause 6; § 34(2)).
Legal rules enabling advantages to be granted to a certain group of persons by placing benefits for the public good (rural municipality property) at their disposal simultaneously restrict fundamental rights, including freedom of enterprise (§ 31(1) Constitution), of persons deprived of it. The Constitution prohibits violation of the fundamental right to equality (Supreme Court Special Panel judgment of 20 December 2001, 3-3-1-15-01, para. 24), but not all kinds of restrictions (Supreme Court Constitutional Review Chamber judgment of 2 May 2005, 3-4-1-3-05, para. 20). The principle of equal treatment may also be violated if unjustified advantages are created for a person by placing municipal property at their disposal (Supreme Court Special Panel order of 20 December 2001, 3-3-1-8-01, para. 23).
The Chancellor found that the provisions checked remained within the frame of a municipal council’s constitutional margin of appreciation. “The procedure for management of rural municipality property” indeed enables municipal property to be placed at the disposal of third parties either for free or below the market price, but this is done for objectives arising from the specificity of the locality (creating jobs and coping possibilities for permanent inhabitants, supporting entrepreneurship, and the like). The grant of advantages alone cannot lead to the conclusion that the regulation discriminates against people who are not permanent inhabitants.
The procedure for participative budgeting
A rural municipality resident asked the Chancellor to check whether it was compatible with the rural municipal council’s regulation that, during the vote on 2022 participative budgeting proposals, the distribution of votes between proposals was public for most of the time of voting.
Jõgeva rural municipality allowed the municipality’s residents to make proposals and vote on which objects would be allocated 30 000 euros from the rural municipality budget. Voting on the proposals took place from 21 January to 4 February 2022, while distribution of votes between the proposals was public from 21 January to 1 February.
The Chancellor ascertained that such a situation indeed contravened Jõgeva Rural Municipal Council regulation No 19 of 1 March 2018 on “The participative budgeting in Jõgeva rural municipality“. The regulation laid down that “the distribution of votes between the proposals shall not be disclosed before the end of voting”. Thus, disclosing the distribution of votes during voting presumed amendment of the regulation on participative budgeting in Jõgeva rural municipality. By now, the municipal council has amended the regulation.