Statehood

The last reporting year was characterised by turmoil and anxiety in the daily work of the Riigikogu as well as in the internal climate of political parties elected to parliament. As a result, citizens who are worried about the state of democracy in Estonia were asking how votes received in elections are divided up into Riigikogu seats, i.e. mandates. People also enquired what happens to those people’s representatives who were elected to the Riigikogu as part of a political party list, but who decided to leave the party or have been excluded from the party.

The proportional electoral system in place in Estonia must ensure that support received in elections is subsequently more or less accurately reflected in the number of mandates in the Riigikogu. Since, according to the Constitution, a member of the Riigikogu is not bound by their mandate or, consequently, tied to their political party, an elected people’s representative has no statutory obligation to remain true to the positions of the majority of their party in all situations. Divergence does not lead to a member of the Riigikogu losing or relinquishing their mandate but may lead to their leaving the party and/or its parliamentary group. 

All decisions important for fundamental rights and Estonia’s development must take the form of an Act by the Riigikogu. The Constitution provides for a balanced consensus democracy: the broadest possible support for changes must be sought both in the Riigikogu and in society, mitigating injustice. The principle “winner takes all, the loser loses all” must not apply in Estonia (see the Chancellor’s opinion). Of course, it is not possible to achieve a situation where everyone is in favour of a chosen solution. You cannot go in different directions at the same time, so in the end the majority will decide, even in a consensus democracy. A broad understanding must at least be sincerely pursued, and assurances backed by deeds given to those who were outvoted that they have been heard. In this way, the emergence of a sufficiently strong counterforce is avoided, which, figuratively speaking, would lead to a pendulum democracy, where important decisions are constantly reconsidered and confidence is lost. 

After the 2023 Riigikogu elections, so-called steamroller politics, arrogant attitudes and creation of artificial confrontations took on an even harsher form than before. The opposition rightly reacted to this with obstruction, which unfortunately grew into a threat to the constitutional order (see the Chancellor’s opinion). The constitutional review system, with the Supreme Court at its peak and with the President of the Republic and the Chancellor of Justice as its preliminary stages, helped to rediscover the necessary constitutional balance (see the Chancellor’s opinion).

The threat to the constitutional order imported into Estonia as a means of attracting voters has three main manifestations: denial of the legitimacy of the election result; unfounded attacks on the independence and activities of constitutional institutions; attacks on the functioning of the constitutional order. Once election complaints have been resolved, the relevant court decisions have entered into force and the election result has been announced, allegations of dishonesty of elections and the illegality of the election result are no longer appropriate (see the opinion on “Obstruction and the Estonian election system”). Court judgments and the election result must be respected. It is also inappropriate to create misperceptions in the electorate about the functioning of independent institutions governed by the rule of law. Non-committal to picking a side must not be interpreted as picking a side, impartiality must not be interpreted as bias, or compliance with the Constitution and the law interpreted as a violation of professional duties. 

Yet again, the issues of online voting, the timing of advance voting and other issues of constitutionality had to be clarified. If, for political or other reasons, a political force with considerable support in society repeatedly asserts before and after elections that one of the lawful forms of voting is not fair and/or legitimate, then many voters of that political force can be expected to take the same view. It can also be assumed that voters supporting that party do not use the method of voting considered “dubious” as readily as others. 

Judges, officials, politicians, and especially election organisers and those responsible for their integrity, including independent IT auditors with international certification, have a duty to investigate impartially all suspicions and possible violations. It is certainly important to explain the electronic voting system and to refute misconceptions and untruths that are spread about it. In addition, electoral laws must, if necessary, be amended, clarified and supplemented (see the Chancellor’s opinion). Once Supreme Court decisions on election complaints have entered into force, they must be respected in a country governed by the rule of law, so that questioning the election result is not appropriate.

While secrecy of voting in Riigikogu elections is a constitutional requirement and, in this connection, offers an important guideline for choosing a technical solution for electronic voting, then the procedure for electing city and rural municipality mayors can be determined by law. Currently, the law requires that the mayor of a city or rural municipality must be elected by secret ballot. This means that a municipal council member may not be put directly or indirectly in a situation where their choice becomes known to others (see the opinion on “Secrecy of voting”).

Estonian and European Union legislation

The European Union Affairs Committee of the Riigikogu’s current composition has commendably strived to ensure that everyone understands the actual impact of European Union legislation on the Estonian people and economy. During the reporting year, the Chancellor of Justice also analysed situations where the requirements of the Estonian Constitution had not been or could not be sufficiently protected when discussing European Union legislation. 

Most public attention was attracted by the Draft Act on so-called administrative fines, but that is not the only concern. There is nothing wrong with the fact that, 20 years after joining the European Union, we analyse the relationship between the Estonian Constitution and European Union law based on our own experience. Quite the opposite. Nor should unjust criticism be raised against officials who participate in negotiations and coordinate the entire process at the Government Office. During preparation of the Constitution of the Republic of Estonia Amendment Act (CREAA) before accession, it was possible to rely only on a theoretical idea of functioning as a full member of the European Union and on an understanding of the essence of European Union law at that time. To date, we have enough practice to allow us to act with more nuance than before in defending our interests. 

Under § 1 of the CREAA, Estonia may belong to the European Union proceeding from the fundamental principles of the Constitution of the Republic of Estonia. Upon Estonia’s membership in the European Union, the Constitution of the Republic of Estonia is applied taking into account the rights and obligations arising from the treaty of accession. In line with the principle of the primacy of European Union law, the effectiveness and implementation of Union law in Member States must be ensured.

Section 1 of the CREAA further explains that the principle of the primacy of European Union law applies to the national law of Estonia as a whole to the extent that it does not conflict with the fundamental principles of the Constitution (Supreme Court en banc judgment in case No 5-19-29, para. 41). The principle of primacy applies only to those rules of European Union law that have already been adopted. During negotiations on draft legislation, what must be followed is the Constitution and not the Constitution of the Republic of Estonia Amendment Act.

In the European Union legislative process, Estonia must stand for the survival of the Estonian language, Estonian culture and the Estonian nation. It is also necessary to take into account the peculiarities of Estonia’s geographical location on the periphery of the European Union, its sparse and small population and, consequently, small companies. This is precisely as provided by Article 4 of the Treaty on European Union, according to which the European Union must respect the national identities of the Member States, which are inherent in their fundamental structures, political and constitutional.

In order to ensure comprehensive implementation of the Estonian Constitution, it is important to analyse the compatibility of all initiatives concerning European Union law with the Constitution. This analysis is necessary to determine:

1. whether protection of fundamental rights is guaranteed in the manner prescribed by the Constitution. Among other things, a check must be carried out to see whether implementation of the proposed restrictions on fundamental rights – for example, possible additional penalties, reporting obligations or restrictions on freedom of enterprise – would be proportionate in Estonian circumstances;
2. whether European Union legislation can be implemented so that the structure and operating logic of constitutional institutions is observed; 
3. whether a European Union legal act can be implemented without fundamental changes in the organisation of affairs of the state; 
4. whether, if negotiations on a European Union draft legislative act fail to achieve conformity with all the provisions of the Constitution, §§ 1 and 2 of the CREAA can be relied upon. 

If the analysis shows that an initiative of European Union law may conflict with the Constitution, then the analysis must state the exact substance of this conflict. The negotiations must then seek to amend the initiative or leave a choice or derogation to the Member State. If the negotiations fail to achieve this objective, it is necessary to analyse whether it is still possible to implement the directly applicable act with the support of the CREAA. If a European Union legislative act has to be transposed by a law, the Riigikogu may ask for an opinion from the Supreme Court. 

An official is not authorised to formulate a definitive position on whether a provision of the Constitution amounts to a fundamental constitutional principle, nor on the question how to interpret the Constitution in compliance with European Union law. The following positions of the Supreme Court should be followed:

• “From the fact that the provisions are compatible with European Union law, it cannot be inferred that the same provisions are also compatible with the Constitution of the Republic of Estonia” (Supreme Court en banc judgment No 3-2-1-71-14, para. 81). “Estonian laws, including the contested provisions, must comply with both EU law and the Constitution, and no reason exists not to assess their constitutionality on the sole ground that they may also be contrary to EU law” (Supreme Court Constitutional Review Chamber judgment No 5-20-10, para. 42). 
• “If EU law confers an objective on a Member State, but the means to achieve it remain in the hands of the Member State, the means chosen must comply with EU law as well as be compatible with the Estonian Constitution” (Supreme Court Constitutional Review Chamber judgment No 3-4-1-5-08, para. 36). 

The Estonian legal order confers the power to interpret the Constitution on the Supreme Court. Thus, when participating in negotiations, officials must act sustainably and try to achieve a situation where the legislative act is, as far as possible, compatible with all the provisions of the Constitution to which the Supreme Court has not yet given a different interpretation.

To this end, it is necessary to carry out a constant and comprehensive analysis of the constitutionality of European Union legislative initiatives. If it is found that a provision of proposed European Union legislation may conflict with one of the norms of our Constitution, the Government of the Republic and the Riigikogu must be briefly and clearly notified of this. 

In conclusion: Estonian officials and ministers involved in creation of European Union legislation are obligated to follow the main text of the Constitution. The Constitution of the Republic of Estonia Amendment Act does not allow reliance on the Act in preparing European Union legislation. The CREAA is intended for cases where, despite great effort, it has not been possible to achieve consistency with the main text of the Constitution. 

Reducing bureaucracy and law-making

Transposition of European Union legislation into Estonian legal space, as well as preparation of our own draft laws, is often preceded by drawing up a legislative intent. In the opinion of the Chancellor of Justice, it is possible to reduce such an excessive administrative burden related to draft legislation.

The Chancellor finds that in cases where it is necessary to correct an error in a law or to solve a problem that has arisen, drawing up a legislative intent could be replaced by preparing a clearly worded small-scale draft and explanatory memorandum. In this way, those affected by the amendment can be given sufficient time to put forward concrete proposals to improve the draft. This would save time for everyone concerned.

Therefore, if it is clear that solving a problem requires regulating the situation by a legal act but this does not involve an innovative solution, and if preparing a draft act can be expected to take less time than drawing up a legislative intent, then preparing a draft should begin immediately and drawing up a legislative intent should be abandoned.

Amendments to the Competition Act 

Pending before the Riigikogu is the Draft Act on amending the Competition Act and other related acts (384 SE), which transposes into Estonian law a European Union directive (ECN+ Directive) whose purpose is to create functioning competition supervision throughout the European Union. 

The Chancellor has repeatedly drawn attention to concerns in connection with this Draft Act. The issue was also dealt with in previous annual reports (e.g. 2022/2023, 2021/2022, 2020/2021). The most important questions are whether and why we need a new procedure – a competition supervision procedure – and how the fundamental rights of individuals are guaranteed in this procedure. 

Competition supervision can also be carried out more effectively than before if supervision is performed in accordance with the rules of misdemeanour proceedings. What is lacking is a frank analysis to find out which procedure – administrative procedure or misdemeanour procedure – would be suitable for transposing the ECN+ Directive so as to guarantee the fundamental rights of individuals in a situation where penalties are very severe. Problems referred to in the explanatory memorandum, which relate, for example, to the concept of entrepreneur or to the application of intent and negligence in misdemeanour proceedings, also need to be resolved in administrative proceedings. So far, no analysis has been prepared and/or made public to take into account the changes already made to the general part of the Penal Code (the possibility of liability of a legal person). 

Two issues in particular have been of concern – protecting the confidentiality of messages and the right not to incriminate oneself. The Ministry of Justice introduced amendments to provisions on protecting confidentiality of messages, eliminating the apparent incompatibility of the Draft Act with the Constitution. However, it is not possible to eliminate the substantive problem. Section 43 of the Constitution allows confidentiality of messages to be breached only with permission of the court in order to prevent a crime or to ascertain the truth in criminal proceedings. Competition supervision proceedings are an administrative procedure, and the Constitution does not allow breaching the confidentiality of a person’s messages in administrative proceedings.

The second problem concerns the privilege against self-incrimination. The wording of the norm is now better than in the previous version of the draft, as it takes more account than before of a person’s right not to testify against oneself. The wording of the norm offers an opportunity to implement it constitutionally, but the explanatory memorandum to the draft (p. 7 et seq.) nevertheless indicates a desire not to allow the privilege against self-incrimination to be invoked. 

In the context of this particular draft, the question must be answered as to whether a party to proceedings is also permitted to rely on the privilege against self-incrimination in answering questions other than 'Have you committed a violation of competition law?'. If only that one question can be left unanswered, the privilege against self-incrimination is essentially non-existent in the case of legal persons (see also H. Sepp, E. Kergandberg. Comment on § 22 of the Constitution, 40 ff. – Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne [Constitution of the Republic of Estonia. Annotated edition, 2020]). Unfortunately, the explanatory memorandum to the Draft Act supports exactly this kind of solution. 

It should also be kept in mind that this procedure is likely to serve as a model when administrative fines are extended to other areas. Therefore, all fundamental decisions based on this draft must be thought through especially carefully and clearly written down in the draft. For example, it should be unequivocally clear to what extent the privilege against self-incrimination can be invoked and whether this is compatible with the Estonian Constitution. It must also be clear how exactly court proceedings will take place when an administrative fine is challenged. 

When considering alternatives, it could be taken into account that from the point of view of protecting fundamental rights it is immaterial whether imposition of a fine related to competition supervision proceedings is heard in an administrative or district court. What is important, however, is that the procedural regulation protecting fundamental rights is as tight and offers the same effective guarantees as the regulation of misdemeanour procedure. This is not the case in the current draft.

Elections and the National Electoral Committee

The National Electoral Committee has been set up on the basis of the Riigikogu Election Act and its main task is legal supervision of all decisions and steps taken in connection with elections. In addition, the Committee organises elections for the President of the Republic and the Board of the Riigikogu.

The Electoral Committee ascertains the voting results in elections for the Riigikogu and for the European Parliament or in a referendum, and also registers members of the Riigikogu and members of the European Parliament elected from Estonia. The Electoral Committee handles election-related complaints as well.

The mandate of the Electoral Committee lasts for four years. Under the law, members of the Electoral Committee include a first instance judge appointed by the Chief Justice of the Supreme Court, a second instance judge appointed by the Chief Justice of the Supreme Court, an adviser to the Chancellor of Justice appointed by the Chancellor, an official of the National Audit Office appointed by the Auditor General, a State Prosecutor appointed by the Prosecutor General, an official of the Government Office appointed by the Secretary of State, and an information systems auditor appointed by the Board of the Estonian Auditors’ Association. Every member of the Electoral Committee also has a substitute member.

On 1 June this year, the mandate of the new composition of the National Electoral Committee began. Olari Koppel, the Deputy-Chancellor of Justice-Adviser, Director of the Chancellor’s Office, will continue as representative of the Chancellor of Justice on the Electoral Committee.

During the reporting year, elections took place for the European Parliament and for the Board of the Riigikogu. Since the Vice-President of the Riigikogu, Jüri Ratas, was elected as a member of the European Parliament, early election of the Vice-Presidents of the Riigikogu had to be carried out.

During the reporting period, the Electoral Committee held 25 meetings, of which about half dealt with decisions concerning European Parliament elections and resolving election complaints. Decisions and minutes of meetings of the Electoral Committee are accessible in the document register of the Chancellery of the Riigikogu.

Deposit and voting age in European Parliament elections

Under the European Parliament Election Act, among the documents required to register as a candidate, political parties and independent candidates running in an election must also submit proof of payment of deposit. Representatives of the Estonian Green Party presented nine persons as party candidates but only paid a deposit for two candidates. As a result, the National Electoral Committee refused to register seven candidates.

The Green Party then filed an election complaint, contesting the constitutionality of the deposit requirement. The Electoral Committee dismissed the complaint, so the Green Party appealed the decision to the Supreme Court.

On 14 May 2024, the Supreme Court issued an order, stating the need to check the compatibility of the deposit requirement with European Union law and deciding to refer the matter to the Court of Justice of the EU for a preliminary ruling. The Supreme Court found that the Green Party’s appeal is not without prospect of success: it raises an important legal issue. In the opinion of the Supreme Court, the deposit applied in Estonia in European Parliament elections is one of the highest in Europe and is also significantly higher per candidate in view of the Riigikogu elections.

Since the ruling of the European Court of Justice would not have entered into force before the European Parliament elections, the Supreme Court decided to grant interim protection to the Green Party and ordered the National Electoral Committee to also register those Green Party candidates for whom no deposit had been paid. The Electoral Committee registered the Green Party candidates on the day the court order was made public.

Should the Court of Justice find that the deposit or the amount thereof applicable for European Parliament elections contravenes European Union law, all political parties and independent candidates who have paid a deposit will have their deposit refunded. In that case, the Riigikogu will also have to amend the deposit provisions in the European Parliament Election Act.

Another fundamental issue about the relationship between the Constitution, the Constitution Amendment Act and European Union law arose in connection with the plan of Riigikogu members to lower the voting age in European Parliament elections, following the example of several other Member States. The Chancellor of Justice is convinced that in elections to the European Parliament, citizens of the European Union voting in Estonia do not exercise the state power of the Republic of Estonia, so § 56 of the Constitution does not restrict lowering the voting age. In the opinion of the Chancellor of Justice, the opposite conclusion would be contrary to the nature of the European Parliament and also unconstitutional, since state power in Estonia may only be exercised by citizens of the Republic of Estonia.

Secrecy of elections

In connection with the election of the Tallinn mayor held in Tallinn City Council on 14 April 2024, the National Electoral Committee and the Chancellor of Justice had to assess whether this election was legitimate and in line with the general principle of secrecy of elections.

According to a representative of the Centre Party faction, which was recently left in opposition in the Tallinn City Council, the parties of the ruling alliance had agreed on a pattern for marking ballots before the third round of the mayoral election. This deprived council members, at least in theory, of their freedom to vote, as it allowed the faction leaders to control how members of their faction voted in the mayoral election.

In the first two rounds of voting, the mayor had not been elected as he had not received the support of all the coalition councillors present. The pattern of marking the ballots allegedly set out which corner of the empty box after the candidate’s name on the ballot was to be ticked.

The complaint alleged that city council members were also pressured to take a picture of their ballot paper and later share that photo with others.

The National Electoral Committee found that resolving this issue did not fall within the Committee’s competence since, according to the law, no complaint can be filed with the Electoral Committee against a municipal council internal act. The complaint was forwarded to the Ministry of Justice for analysis.

In her reply, the Chancellor of Justice emphasised that, as long as the City of Tallinn has not decided otherwise by its statutes (for example, that the mayor is elected by public vote), the general principle of secrecy of elections also extends to internal acts of the Tallinn City Council, thus also to the procedure for electing the mayor. This means that pressure on voters is not allowed. Nor do the Tallinn statutes limit the number of rounds of voting that may be held in the city council in the mayoral election.

E- and m-elections

At the initiative of the Ministry of Justice, the Riigikogu supplemented the electoral laws by introducing into them norms laying down the technical organisation of e-voting, which were previously set out in the procedures and instructions approved by the National Electoral Committee. By doing so, a legal solution was found to the observation made by the Supreme Court in 2019 that the rules for determining the results of electronic voting must be laid down more clearly in legislative acts.

When dealing with election complaints after the 2023 Riigikogu elections, the Supreme Court stated that the task of the Riigikogu is “to stipulate in the electoral laws a sufficiently tight regulation regarding all important issues related to elections, in order to ensure the control of the legislator and the public trust in the elections by means of organisational, procedural and substantive legal requirements”.

These amendments also created a legal basis for the situation that, starting from the 2025 municipal council elections, it will also be possible to use Smart-ID as a means of identification (in addition to ID-cards and mobile-ID) in e-voting.

The third fundamental amendment concerns m-voting, i.e. the possibility to also e-vote with mobile devices, which are usually mobile phones and tablets. To this end, a provision was added to the Riigikogu Election Act, providing an opportunity to create a voter application for the most common mobile operating systems in the future. Their use is decided by the National Electoral Committee prior to elections.

The National Electoral Committee, which was involved in preparing the Draft Act, drew the attention of the Riigikogu to several security risks involved in voting with a mobile or smart device. The main risk concerns the compilation and publication of the mobile voter application. While the entire process of regular e-voting is under the control of the state – the voter application is compiled by the State Electoral Office and the application can be downloaded from the state-managed web environment valimised.ee – then in the case of m-voting these operations are performed in online stores of mobile operating system operators (Google Play, Apple Store).

The Electoral Committee concluded the following: “It must be taken into account that it is possible for different parties to upload alternative or malicious voter applications to app stores. In the case of such voter applications, the electoral service cannot guarantee their correct operation, and the removal of these applications requires a quick response from the app store manager. […] Penal norms cannot prevent malicious voter applications from being uploaded if they are uploaded outside Estonia. It is possible that some of these applications will only be made available outside Estonia, which allows influencing the correctness and receipt of electronic votes cast abroad, but makes it difficult for competent state authorities to quickly detect violations.”

The size of electoral districts in Riigikogu elections

In the autumn of 2023, the National Electoral Committee commissioned an analysis from the University of Tartu on whether and in what way it would be possible to change the electoral districts valid for the Riigikogu elections since 2002 and the number of mandates to be distributed in them. In theory, all districts could be more or less the same size in terms of the number of voters and the number of mandates that can be distributed there, since this would ensure the equal weight of each vote.

Demographic processes in the last two decades have led to a situation where the electoral districts for the Riigikogu elections are of very different sizes. For example, nearly 47 000 voters in Lääne-Virumaa district will determine 5 seats in the Riigikogu, while 151 200 voters in Harju-Rapla County will determine 16 seats. The size of the districts thus differs more than three times.

An important difference comes into play when seeking a personal mandate: while an independent candidate standing for election in Lääne-Viru County has to collect 20 per cent of all votes cast and valid in the district in order to be elected to the Riigikogu, then in Harju-Rapla County, 6.25 per cent is enough. Consequently, in recent years, repeated studies have looked into whether this distribution of mandates and the treatment of candidates is still compatible with the Constitution.

The Chancellor has previously drawn the attention of the Riigikogu to this problem and recommended that the districts be changed. So far, there has been no reason to initiate constitutional review.

In July 2024, the University of Tartu announced that the analysis is complete. In September, the National Electoral Committee began to examine the conclusions of the analysis and proposals for reshaping electoral districts. The Electoral Committee has promised to make a proposal to the Riigikogu once that is done.

Good administration 

The Chancellor monitors whether the authorities comply with legislation in their work, including the principles of good administration (Administrative Procedure Act). This means, inter alia, that state and local government officials communicate with people politely and to the point. State agencies must also organise their work so that no one is left uninformed or in an uncertain situation as a result of action or inaction by the agencies. 

People are often dissatisfied with how state agencies resolve their applications. In carrying out its tasks, an authority is obliged to comply with deadlines set by legislation. 

According to the 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 (Response to Memoranda and Requests for Explanations and Submission of Collective Addresses Act, § 6). The following institutions had problems with responding to memorandums and requests for clarification on time: the Ministry of Education and Research, the Ministry of Justice, the Ministry of Climate, the Ministry of Finance, the Ministry of the Interior, the Land Board, and in addition Kohila Rural Municipality Government, Mustvee Rural Municipality Government, Narva-Jõesuu Rural Municipality Government, Pärnu City Government, Põhja-Sakala Rural Municipality Government, Põltsamaa Rural Municipality Government, Raasiku Rural Municipality Government, Rõuge Rural Municipality Government, Saarde Rural Municipality Government, Tallinn City Government, and Tartu City Government.

The Chancellor of Justice also received complaints against the Land Board, which had failed to respond to letters. The issue concerned the conduct of proceedings for acquisition of an immovable in the public interest. 

The Administrative Procedure Act stipulates that a participant in administrative proceedings must be answered promptly, i.e. within a reasonable time. The definition of a reasonable time depends, first and foremost, on whether the request complies with requirements, on the complexity of the case and the steps to be taken to resolve it, as well as other circumstances which may objectively affect the duration of proceedings. In this case, the Land Board should also have taken into account that acquisition of an immovable in the public interest is likely to interfere seriously with a person’s rights (§ 32 Constitution). The Chancellor found that the Land Board failed to comply with the law and good administrative practice in responding to the petitioner’s letters. 

The Chancellor of Justice received a complaint that the Environmental Board did not respect the deadlines for registering forest notifications. According to available information, the Environmental Board informed the parties about exceeding the procedural deadline and, for example, in June 2024 informed them that the procedural deadline would be extended until December 2024. The procedural deadline was therefore set at up to six months. Under the current law, a forest notification should be registered or refused within 15 to 30 working days. If necessary, it is possible to extend the deadline for registering a forest notification, but a decision must be made no later than on the 90th day. The Chancellor asked the Environmental Board to comply in future with the deadlines laid down in legislation. 

The Chancellor received a complaint that the Strategic Goods Commission at the Ministry of Foreign Affairs had not resolved an application for an import licence for military goods for nearly four years. The law stipulates that the relevant application must be resolved within 30 days (§ 17(1) Strategic Goods Act). According to the Commission, the applicant was repeatedly informed of shortcomings in the application and asked to provide additional information but failed to do so. In the case of deficiencies in an application, the applicant must be given a specific time limit for eliminating them. It must also be explained to the applicant that if deficiencies are not remedied, the authorities may decline to examine the application (§ 15(2) Administrative Procedure Act). 

The Strategic Goods Act expressly lays down that proceedings of an application will be terminated if the applicant fails to submit the relevant additional data required by the Commission within 30 working days as of receipt of a request (§ 17(6)). Therefore, the Commission should have given the applicant an appropriate explanation about processing the application and avoided leaving the applicant in a vague situation. 

An adult adoptee contacted the Chancellor of Justice with a concern that the National Archives would not issue them with a primary birth certificate without the consent of their biological mother’s other children, as the file contains private personal data and circumstances of adoption secrecy. The petitioner stated that their parents and adoptive parents are deceased and asserted that issuance of their birth certificate could not be made dependent on the other children of the biological parent born about a decade later than the petitioner. 

The Chancellor reached the opinion that the National Archives and the Social Insurance Board had not lawfully resolved applications for access to the origin data of adoptees in cases where the biological parents of the adoptees have died. No law imposes a condition that an adoptee whose biological parents have died can access their origin data only if the other children (or heirs) of the parents agree. 

If an adoptee whose biological parents have died wants the Social Insurance Board or the National Archives to give access to their origin data, the General Data Protection Regulation must be applied and the person must be given an opportunity to access their origin data, provided that this does not damage the rights and freedoms of other people (e.g. other children of biological parents). Weighing different interests is the responsibility of the Social Insurance Board and the National Archives. 

The Chancellor received a complaint about proceedings of a notice for correction of the data of an apartment building in the building register. The building register must reflect the actual situation as accurately as possible – in which case the register data are useful in practice and reliable. The Chancellor explained that the data entered in the register have informational significance and that true data do not need to be removed from the register, even if they reflect illegal or unauthorised alterations. 

The Chancellor also dealt with a case of administrative bullying. The petitioner complained that Luunja Municipality Government had issued to them a series of disproportionate precepts, which the petitioner had to challenge in court. The Chancellor reached the opinion that a person must not feel that the municipality has picked them out and is looking for ways to bully them. The municipality must ensure that its activities are in accordance with the law, purposeful, honest and humane, and must also convincingly, impartially and cordially explain this to the parties in proceedings.

The Chancellor was contacted by the guardian of an adult disabled person with the concern that the guardian must submit to the municipality monthly bills from the special care institution, fuel cheques and a bank account statement in order to receive support for their ward. The guardian considered it humiliating and burdensome. The Chancellor found that although the rural municipality government pays the support voluntarily, it still has to follow the principles of good administration and provide reasoning for its decisions. Nor may the rural municipality government impose superfluous conditions on receiving support. The Chancellor recommended that the municipality should consider whether requiring fuel cheques was justified from the point of view of both the municipality and the guardian. 

When resolving the guardian’s complaint, it was further revealed that the municipality had assessed the ward’s need for assistance three times in the past five years. The assessment of the ward’s need for assistance had not changed during that period and the decisions to grant assistance based on those assessments were also substantively the same. At the same time, each social service was assigned a different deadline: from half a year to two to three years. Therefore, every now and then, the guardian had to submit a new application for assistance to the rural municipality government in order to ensure consistent assistance to the ward.

Under the Social Welfare Act, a person does not need to apply to a rural municipality or city for a separate assessment of the need for assistance and corresponding individual services: submission of one application for assistance is enough. When resolving an application, a rural municipality or city must comprehensively assess a person’s need for assistance and offer the corresponding assistance, having also heard the person’s own opinion beforehand. This is also required by the general principle of administrative procedure, according to which a person’s application must be resolved purposefully and efficiently, and as simply and quickly as possible, avoiding excessive expense and inconvenience for the person. 

The Chancellor asked the municipality to consider whether it was justified to carry out a regular assessment of the need for assistance so frequently. She suggested assessing whether it would be possible to determine, in a single decision and on a uniform basis, what services the municipality organises for a person in need and what support it provides. The Chancellor explained that a municipality must justify why it assigns a service to a person for a specific period and how it meets the person’s need for assistance.

The Chancellor also criticised a rural municipality government that failed to consider objections raised as an extra-judicial administrative challenge against a decision to reduce subsistence benefit, failed to give the person the opportunity to remedy possible deficiencies and failed to make a decision on the challenge.

If someone submits a manifestation of intent to the rural municipality government to amend or annul a decision within the time limit for challenge, it should be presumed that the individual wishes to lodge a challenge. An application must also be regarded as a challenge even if it does not expressly request that the administrative act be amended or annulled, but it is clear from the content of the application that this is what the person actually wants.

Correct Estonian usage

Compatibility of the new dictionary of standard Estonian ÕS with the Language Act

Widespread problems with ensuring legality also appeared in preparing the new edition of the dictionary of standard Estonian Õigekeelsussõnaraamat (ÕS). The Chancellor of Justice asked the Institute of the Estonian Language (EKI) to proceed from the requirements of the Language Act and the Government of the Republic regulation when compiling the 2025 edition of the dictionary of standard Estonian ÕS. 

Under § 4 of the Language Act, official language usage must comply with the norms for standard written Estonian. According to the law, standard written language is understood as a system of spelling, grammatical and lexical standards and recommendations. This system must ensure uniformity and clarity in the official use of language and encourage implementation of good language usage. 

By normative standard written language, the Language Act means restrictive and guiding norms, compliance with which is mandatory in official communication. Under § 2 of the Government of the Republic regulation on “The procedure for implementing the norms of standard written Estonian”, the norm for standard written language is determined by the latest dictionary of standard Estonian (the Õigekeelsussõnaraamat) published by the Institute of the Estonian Language, the decisions of the language committee of the Estonian Mother Tongue Society, and the orthography rules, normative manual and grammar approved by the language committee. Specialists at the Institute of the Estonian Language were planning to abandon fixing word meanings and offering recommendations on word choices in the ÕS which will be published in 2025. 

We reached a consensus with the Institute of the Estonian Language and the Ministry of Education and Research (which has a supervisory duty) that neither the law nor the regulation allows the norm for standard written language to be fused into an overview of actual language usage or to abandon vocabulary norms and recommendations (see the Chancellor’s letter). The requirement of the standard written language norm must not be drained of substance as a result of interpretation, so as essentially amounting to absence of a norm. The law stipulates that norms and recommendations also apply to the meaning and use of words. 

The standard written language norm must be followed in official language use, while other texts aimed at the public must be based on best language usage practice. This does not violate freedom of expression: the standard written language norm is mandatory only in official texts because they must be understandable to as many members of society as possible. Following best linguistic practice supports clarity of the message and preservation of the Estonian language as the common language and basis of the identity of our people.

Unfortunately, during the online test examination of Estonian, basic school graduates were given the possibility to use the combined dictionary of the Estonian Language Institute’s Sõnaveeb portal as reference material, but not the dictionary of standard Estonian, the Õigekeelsussõnaraamat. The search engine of the Sõnaveeb portal does not show a match for the searched keyword in the Õigekeelsussõnaraamat. However, assessment, including of the online test examination, is based on the norm for standard written Estonian, one of the main sources of which is the Õigekeelsussõnaraamat. The Chancellor was told that since the test examination gave pupils the opportunity to use the Sõnaveeb portal, this time possible differences between the standard written language norm and the combined dictionary on the Sõnaveeb would be resolved in favour of pupils. 

The Chancellor emphasised that reference material available during the examination must be the latest dictionary of standard Estonian, Õigekeelsussõnaraamat (ÕS) or its online version. Schools must ensure that basic school graduates know how to use the ÕS, know its significance and are able to distinguish it from other supporting language sources.

Estonian in public space

From the point of view of survival of the Estonian nation and its language and culture, use of the Estonian language in all areas of life is extremely important. A small unique language should not be seen as an obstacle, but as a great advantage: after all, language is also a means of sharing thoughts and a perception of the world. Appreciation of the Estonian language was demonstrated by statements complaining about the excessive influence of foreign languages. The Chancellor of Justice affirmed that it must be possible to conduct all affairs in Estonian in Estonia.

The eventual abandonment of the segregated school system primarily serves the interests of pupils with other mother tongues, creating equal opportunities for them to realise themselves in the best possible way. 

According to the Constitution, the official language of Estonia is Estonian and children are entitled to free basic education in Estonian. International law binding on Estonia also does not stipulate that a child or a young person must be guaranteed free basic education in their mother tongue which is not the official language. These legislative instruments stress that the state must establish a uniform educational system and ensure learning of the country’s official language so that people can participate in the life of society. 

Of course, a person cannot be prohibited from speaking in their mother tongue. The problems that have accompanied the preservation of two separate education systems are known: the learning outcomes of pupils in schools where the language of instruction is Russian tend to be poorer than those of Estonian schools, so that children with Russian as the language of instruction also have poorer prospects of continuing their education and choosing a suitable profession and work, and people whose mother tongue is Russian are more often excluded from the life of society. The Chancellor of Justice gave a thorough opinion on this issue to the Supreme Court Administrative Law Chamber. The Supreme Court reached a similar opinion as the Chancellor and did not stop the transition to instruction in Estonian.

No reform – in the substantive sense of the word – can proceed without legitimate concerns, setbacks and conflicts. Thus, some Estonian parents are rightly concerned that in some classes the proportion of children with a different mother tongue may turn out to be very high. Transition to Estonian-language school education requires a great deal of effort on the part of pupils, teachers and parents alike, and the school is obliged to provide the best possible teaching and support to all pupils (see the Chancellor’s opinion).

At the same time, one must not go to extremes, for example by prohibiting pupils from speaking to each other in a language of their choice during breaks. Everyone has a constitutional right to preserve their national identity, and a break between lessons is intended to take a rest from studying (see the opinion on “Language of communication between pupils”).