Supervision
The principle of legality
Under § 3 of the Estonian Constitution, state power is exercised solely on the basis of the Constitution and laws in conformity therewith. In simple terms, this means that the state and cities and rural municipalities cannot come up with and make mandatory something for which the law does not empower them. So, for example, regulations imposing additional obligations on individuals that are not laid down by a law are not compatible with the principle of legality.
The principle of legality is also tested by official guidelines, recommendations and action plans, as well as, for example, by a coalition agreement. Although following these is not mandatory, and formally they should not play any role, at times real life tends to prove otherwise. In practice, guidelines sometimes have greater significance than a legal norm.
The Chancellor’s supervision of such guidelines and instructions of a general nature is limited to ombudsman proceedings. For example, the Chancellor of Justice can check whether guidelines comply with the principles of good administration. However, since guidelines are not formally a legislative act, it is not possible to initiate constitutional review proceedings.
Cities and rural municipalities have no right to impose additional restrictions on obtaining a place in kindergarten. In the opinion of the Supreme Court, the condition that a family is granted a place in kindergarten only if there are vacancies is unconstitutional. The court reasoned that this could lead to depriving children of their statutory right to a place in kindergarten. In the opinion of the Chancellor of Justice, cities and rural municipalities must repeal such conditions. They should also repeal illusory restrictions that could mislead a parent and leave an impression that a kindergarten place may be denied or postponed. The Chancellor recommended that the Ministry of Education and Research should look for additional ways to help local authorities in predicting the need for kindergarten places and ensuring places.
The Minister of Education and Research agreed with the Chancellor of Justice and, on 8 January 2023, annulled a regulatory provision according to which a vocational educational institution could request a pupil to reimburse expenses arising from re-issue of a pupil’s card if the card has been damaged, destroyed, lost or stolen. According to the law, the minister must establish the procedure for issuing a pupil’s card, but the law does not regulate charging a fee for it. Nor does the law give the Minister of Education and Research the power to regulate it. A pupil studying in a vocational school is entitled to receive a pupil’s card so that they can prove their pupil status. The regulation must be enacted on the basis of a law.
Until 6 May 2024, the law did not regulate the conditions for excluding a pupil from a vocational educational institution. Under a regulation of the Minister of Education and Research, a first-year pupil in a vocational educational institution had to be excluded from school if, without a compelling reason, the pupil had not started studying within two weeks of the beginning of studies. The Chancellor was asked to assess whether this regulatory condition complied with the law. The Chancellor concluded that the law did not provide for the condition of exclusion from school as laid down by the regulation. The Minister of Education and Research agreed that the regulation must be based on the law. The Riigikogu laid down the same condition for exclusion in § 341 (1) clause 3 of the Vocational Educational Institutions Act.
A problem also appeared in the evaluation of the guide “Defining gin, distilled gin and London gin of the categories of spirit drinks” prepared by the Agriculture and Food Board. Under § 19(1) of the Chancellor of Justice Act, the Chancellor of Justice can check whether an authority follows the principles of good administrative practice in its activities (including instructions and guidelines that it issues) and whether the fundamental rights of individuals are protected in doing so. Against this background, the Chancellor of Justice examined whether point 4.1 of the Agriculture and Food Board guideline complies with the principles of good administration and is in line with the provisions of Regulation (EU) 2019/787 of the European Parliament and of the Council of 17 April 2019. This regulation concerns the definition, description, presentation and labelling of spirit drinks, protection of geographical indications for spirit drinks, and the like. The definition of gin given in the Agriculture and Food Board guideline differs from that given in the regulation and may thus lead to unnecessary confusion.
Through its interpretation provided in the guideline, the Agriculture and Food Board may not restrict the rights of gin producers or distort the spirit of the rules on which the guideline is based. The Chancellor therefore asked the Agriculture and Food Board to amend point 4.1 of the guideline. Although the guideline states that its author is not responsible for any interpretations of the guideline and their consequences, its implementation may nevertheless begin to limit lawful application of the legal norm or lead to administrative practice that does not comply with the norm. In accordance with the principles of good administration, guidelines must be reliable and may not result in a disadvantage compared with the legal norm.
Last year, the Chancellor issued an opinion on regulation No. 24 “Procedure for the construction of publicly used construction works and their financing” (hereinafter the regulation), adopted by Tallinn City Council on 15 December 2022. Under § 131(21) of the Planning Act, the regulation should deal with agreements between the city and a developer entered into in relation to constructing publicly used civil engineering works or in relation to bearing the cost of constructing them. Unfortunately, with this regulation, the city government imposes its obligations on the developer.
Although the principle of legality in general is dealt with in analysis of the substance of legislative acts, sometimes cases where a city or rural municipality regulation is based on an invalid legal act also attract the Chancellor’s attention. The Chancellor has to address this issue in connection with the Pärnu City Government Regulation No. 10 of 16 April 2018 on the “Procedure for the seasonal extension of a point of sale and installation of a temporary point of sale”. This regulation was not lawful because it was based on the repealed Trading Act and the Pärnu City Property Management Procedure. For the sake of legal clarity, the city government must repeal the regulation.
The Chancellor of Justice checked whether the regulation of the Minister of Regional Affairs on the “Hourly rate charged for the performance of food, feed and veterinary supervision activities in 2024” was in conformity with the Constitution. In particular, examination covered whether the regulation complies with the principles for determining the supervisory fee laid down by § 493 of the Food Act and § 87 of the Veterinary Act, and whether the fact that the hourly rates for food and veterinary supervision are set by the Minister is compatible with the Constitution.
The Chancellor of Justice concluded that the hourly rates may be set by the Minister by regulation, as the conditions for setting the fee are laid down in sufficient detail in Regulation (EU) 2017/625 of the European Parliament and of the Council and in law. The Minister is essentially implementing a predetermined calculation, not making fundamental choices. However, it turned out that the hourly rates for food and veterinary supervision laid down in the regulation were established on unclear grounds.
In a memorandum to the Minister of Justice, the Chancellor of Justice drew attention to the fact that the provisions on law enforcement and processing of personal data need to be clarified (see also the subsection on “Protection of personal data” in the chapter “E-Estonia“) Among other things, the Chancellor proposed laying down the exact grounds for intervention in order to resolve frequently arising problems of law enforcement, since the very general basis for intervention (general empowerment) laid down by § 28 of the Law Enforcement Act is not intended to apply in typical situations, but in exceptional situations. In his response, the Minister of Justice expressed readiness to tackle this problem.
Covert processing of personal data
The Chancellor of Justice regularly checks the work of those agencies that organise interception of phone calls and conversations, surveillance of correspondence, and otherwise covertly collect, process and use personal data. With constant supervision, we wish to ensure that all covert measures are carried out for a reason, i.e. in accordance with applicable rules and by respecting fundamental rights. Even when the actions of the relevant agencies are formally lawful, the Chancellor tries to ensure that people’s fundamental rights are always taken into consideration.
During the reporting year, the Chancellor’s advisers checked the work of the Internal Control Bureau of the Police and Border Guard Board (PBGB), the Central Criminal Police and prefectures, as well as the investigation department of the Tax and Customs Board.
Detailed summaries of inspection visits to surveillance agencies are not public since they contain information classified for internal use only. These summaries are sent to inspected agencies as well as public authorities (the court, the Security Authorities Surveillance Select Committee of the Riigikogu) which are responsible for the legality of activities of surveillance and security agencies.
Inspection of Police and Border Guard Board surveillance files
During the past reporting year, the Chancellor’s advisers made a total of 18 inspection visits to the Internal Control Bureau of the PBGB, the criminal bureaus of prefectures, and the Central Criminal Police, and inspected surveillance files opened in 2021-2023. A total of 132 files were examined across all structural units (including the regional divisions of the Central Criminal Police and the Internal Control Bureau), for which active proceedings had been completed by the time of inspection. Data contained in paper files as well as in the surveillance information system were examined and compared, and officials of the surveillance authorities were interviewed on the spot.
The Chancellor’s advisers assessed the guarantee of fundamental rights and interests of those persons who became objects of covert data collection (i.e. a surveillance measure) in the course of criminal proceedings either as suspects or as ‘third parties’ (including entirely by chance). The assessment focused primarily on whether, in each specific case, opening a surveillance file and conducting the surveillance measure for the purpose of collecting information about a criminal offence had been lawful, as well as unavoidable and necessary. Also examined was how the surveillance agencies complied with requirements to notify people about a surveillance measure.
During the inspection visits, interviews with heads of surveillance also covered the issues of planning, carrying out and internal control of surveillance measures. In terms of protection of fundamental rights, it is important to note that no structural unit of the PBGB lightly makes decisions on use of surveillance measures. The decision takes into account the type and danger of the criminal offence and whether evidence can also be collected by so-called overt measures. Existing resources and technical capabilities are also taken into account.
For the purpose of more effective protection of fundamental rights of individuals (including to enable effective supervision), the Chancellor made some proposals to the PBGB and the prosecutor’s office for improving the quality of organising surveillance measures. All proposals were based on specific circumstances identified in surveillance files and from interviews with officials.
Organisation of surveillance measures
The overall quality of processing of surveillance files has improved significantly compared to the past. When surveillance files were opened, the reasonableness of suspicion of a criminal offence and other relevant circumstances justifying interference with fundamental rights had been sufficiently assessed. This was also the case for those entities that had previously had problems justifying the opening of a file.
The Chancellor’s advisers were satisfied that all surveillance measures had been carried out legally, i.e. in accordance with an authorisation issued by the prosecutor and the preliminary investigation judge. Based on the files, it may be concluded that without surveillance and without interfering with people’s fundamental rights it would indeed have been complicated, and at times even impossible, to gather the evidence necessary to verify a particular suspicion of a criminal offence.
A surveillance measure is lawful only if the prosecutor’s office or the court has issued an authorisation meeting the statutory requirements. Authorisations for surveillance contained in the surveillance files examined were generally justified. They demonstrated that surveillance measures were indeed necessary to verify suspicion of a criminal offence. Special mention should be made of those authorisations containing reasoning for the existence of a suspicion of a criminal offence, the necessity of a surveillance measure (the principle of ultima ratio), as well as the impact of measures on the subject of surveillance and third parties linked to them.
However, not all surveillance authorisations were properly substantiated: some authorisations issued both by a court as well as a prosecutor’s office were found where sufficient reasoning was not given to justify an overriding need to carry out surveillance. Typically, the problem was that the ultima ratio reasoning was too general and did not meet the standards adopted in case-law.
Officials in charge of surveillance must always follow the specific surveillance authorisation. In addition to deadlines, the conditions imposed on a measure by the authorising authority must be observed. So it is extremely important that all surveillance authorisations are properly substantiated and also formally correct. For example, the operative part of each authorisation must set out clearly (measure by measure) and comprehensibly which surveillance measures may be carried out and to what extent. Similarly, any permissible measure must be justified in terms of its objectives and necessity.
From some of the authorisations issued by a prosecutor, it was not completely clear which of the surveillance measures mentioned in § 1265 of the Code of Criminal Procedure were authorised, since this section deals with three different measures: covert surveillance, covert examination of items, and covert collection of reference material. In contrast to normal practice, the operative part of some court orders also failed to clearly distinguish whether authorisation was granted for interception of telephones and other means of communication or for interception of other information (including on-the-spot conversations between people).
Examination of surveillance files revealed that in the case of some surveillance measures still no substantive summary had been included in the file. Although the situation has improved from year to year, some files did not contain a summary at all, or the summary was limited to a laconic statement that the data obtained had been transmitted to the authority in charge of proceedings digitally or added to the police database. In those cases, it was not possible to carry out a full assessment of the legality and justification of surveillance on the basis of the surveillance file.
Notifying a surveillance measure
Under the Code of Criminal Procedure, a surveillance measure is notified to people with respect to whom the surveillance measure was carried out, as well as individuals identified during the proceedings whose private or family life was significantly interfered with by the measure. Notification may be postponed or waived only in specific circumstances set out by law if permission for this has been given by a prosecutor or the court.
The PBGB Internal Control Bureau and the West and the South Prefectures had informed all people of the surveillance measures in a timely manner. This ensured the rights of defence of suspects and accused persons. Suspects and accused persons, as well as other persons whose rights had been significantly interfered with by surveillance, were thus guaranteed access to the information gathered about them and exercise of the right of appeal laid down by law.
The Central Criminal Police and the East and North Prefectures had delayed notification in some cases. In these cases, people had been notified of surveillance 5 to 11 months later than the prescribed time limit. This concerns those people directly subject to the measure, as well as those whose rights were significantly interfered with by the measure.
However, the wider problem was that the notice sent to people did not meet the statutory requirements: for example, instead of the time of surveillance, the notice indicated the period of validity of the authorisation. Many notices did not state clearly what type of surveillance measure had actually been carried out. Sometimes it was also not distinguished whether the notification was sent to a person directly subject to surveillance or a person whose right to inviolability of family or privacy was significantly affected by surveillance. A misleading notice does not enable the recipient to understand the circumstances of surveillance concerning them or to decide whether and how they need to protect their rights.
Inspection of Tax and Customs Board surveillance files
The Chancellor’s advisers examined surveillance files opened in 2021–2023 at the investigation department of the Tax and Customs Board (a total of 31 files were examined) and on that basis assessed whether surveillance had been carried out lawfully.
When inspecting the surveillance files, the advisers focused on the justification for opening a surveillance file as well as justification for authorisation of a particular surveillance measure (ultima ratio or the necessity of the measure), and whether surveillance had been carried out in accordance with an authorisation granted by a judge or prosecutor and within the time limit specified in the authorisation. Also monitored were whether the fundamental rights of third parties were protected and whether all the requirements for notification of surveillance and presentation of the collected material were met.
Also assessed was whether the Chancellor’s previous comments and proposals had been taken into account and to what extent surveillance files had been checked by the prosecutor’s office.
Similarly to the PBGB, the opening of surveillance files by the Tax and Customs Board was justified. The files had been processed in compliance with the requirements of the Code of Criminal Procedure and other legislation. Based on the files, it may be concluded that without surveillance and without interfering with people’s fundamental rights it would have been complicated or even impossible to gather the evidence necessary to verify suspicion of a criminal offence.
Surveillance had been carried out under authorisation by a prosecutor and a preliminary investigation judge and by complying with the conditions and time limits set out in the authorisation. In general, the authorisations complied with the rules adopted in case-law, i.e. they set out in sufficient detail the reasons why surveillance was absolutely necessary. In only two files were some authorisations found where the reasoning given by the authorising body was too scant and general. It had not been justified why it was absolutely necessary to carry out each specific measure authorised in the operative part.
The surveillance files of the Tax and Customs Board contained (with two exceptions) substantive summaries of surveillance measures, enabling an overview as to the persons in respect of whom and to what extent surveillance had been carried out. The summaries also reflected whether and what evidence or other relevant information was obtained through the measures. Inclusion of such summaries in the file is extremely important in terms of fundamental rights protection since the summaries enable retroactively – and without having to re-examine the materials in the criminal case – assessing the effectiveness of the surveillance measure, the intensity of instances of interference involved, and other essential facts.
Although in most cases people had been informed of surveillance measures in a timely manner, some delays were also detected during the inspection. Two people had been notified 11 months later than prescribed; in other cases, notice of the surveillance had been sent with a delay of 5-6 months. Everyone who so wished had also been enabled to access data collected on them in the course of surveillance.
Timely notification and access to surveillance material ensures effective protection of the fundamental rights of persons caught in the sphere of influence of surveillance. Inter alia, this provides the right to contest the lawfulness of surveillance measures for suspects and the accused.
Resolving petitions by individuals
Besides carrying out own-initiative supervision over surveillance agencies, the Chancellor also resolves complaints concerning surveillance measures and, if necessary, verifies other publicly raised claims (e.g. in the media) about illegal or insufficiently justified surveillance. The Chancellor of Justice is occasionally also contacted by people who believe that their rights have been violated when notifying them of a surveillance measure or giving access to the data collected by surveillance.
Courts and judicial proceedings
The Chancellor comes into contact with the work of the courts in three ways. The Chancellor of Justice participates in the work of the Council for Administration of Courts; she may initiate disciplinary proceedings in respect of all judges, and she submits opinions for the Supreme Court in constitutional review court proceedings.
In the second half of 2023, the Council for Administration of Courts convened twice, and in the first half of this year also twice.
Complaints against the work of judges
Under the Courts Act, alongside the chairs of the courts and the Supreme Court en banc, the Chancellor of Justice is the only institution outside the court system that may initiate disciplinary proceedings in respect of a judge. The final decision in a disciplinary case is made by the disciplinary chamber operating under the Supreme Court.
The Chancellor does not assess substantive issues concerning administration of justice. She can only assess whether a judge has failed to fulfil their official duties or has behaved disreputably.
However, the Chancellor is mostly contacted about issues in which she cannot intervene. Most often, people are not satisfied with a court decision or how the court has assessed evidence. For that reason, people expect the Chancellor to intervene in judicial proceedings and assess a court decision. The Chancellor cannot do this since, under the Constitution, justice is administered by the courts, and only a higher court can assess substantive issues of administration of justice.
Nevertheless, every year there are also cases where the Chancellor examines the work of judges more specifically in the information system of the courts in order to decide whether a reason exists to initiate disciplinary proceedings. During the reporting period, there were ten such cases. On some occasions, the Chancellor also asked for an explanation from a judge and/or chair of the court. 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 become protracted. In particular, this concerned civil proceedings; one complaint also concerned a delay in administrative court proceedings. While in previous years the issue of a reasonable duration of proceedings primarily arose in relation to cases pending before Harju District Court, in the past reporting year complaints were also filed about the activities of Viru District Court and Pärnu District Court.
A reasonable duration of proceedings is an undefined legal concept and its substance is interpreted on a case-by-case basis. The Supreme Court disciplinary chamber has explained that assessment of the reasonableness of judicial proceedings depends on several circumstances. In order to conclude whether judicial proceedings took place within a reasonable time, it is necessary to assess the complexity of a case, the importance of the benefits involved, 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, availability of support staff, the number of complaints, and the like.
During the reporting year, the Chancellor of Justice considered initiating disciplinary proceedings against one judge, as one of the judge’s cases has been ongoing for six years. After examining the explanations by the chair of the court and the judge, the Chancellor decided not to initiate disciplinary proceedings.
This is a complex case whose delay has been caused by a combination of several adverse circumstances. In this case, the court has received a large number of applications, evidence and positions, which, unfortunately, have constantly changed over time. As a result, the delay in the case is largely caused by the parties themselves, who have overwhelmed the court with their submissions. In addition, in the course of judicial proceedings, professional participants in the proceedings – attorneys assigned under the state legal aid procedure – have changed repeatedly.
The chair of the court assured the Chancellor of Justice that they would follow the proceedings until the final judgment and would react decisively if necessary.
A number of complaints concerned disputes between separated parents over allocation of custody, payment of maintenance, as well as individual issues concerning practical living arrangements. One such issue, for example, is travelling abroad with a child if the other parent does not give permission for this. In such cases, parents are often dissatisfied with the judge’s decision and question the judge’s impartiality. After examining the case materials (including listening to the recordings of the court hearing), in none of the instances did the Chancellor find the judges to have been biased in resolving the case.
Avoiding court proceedings and § 15 of the Constitution
Section 15 of the Constitution of the Republic of Estonia states that everyone has the right of recourse to the courts in case of violation of their rights and freedoms. As a rule, this right is indeed guaranteed, and it is also clear to the parties to the dispute what needs to be challenged. At the same time, in several cases it has become clear that, either accidentally or maliciously, obstacles have been created to the possibility of recourse to the court to protect one’s rights, and a separate dispute needs to be entered into to overcome those obstacles.
Restrictions on the activities of coaches
The Chancellor of Justice has been asked what to do if the board of a sports federation has imposed a ban on a person to act as a coach, but the person has not been deprived of the profession of coach.
In sport, as in other walks of life, the established requirements and rules must be observed. The field of sport is largely governed by private law; sports organisations are predominantly autonomous, i.e. they have the right to organise their activities themselves, as well as to establish rules on the imposition of penalties (e.g. bans on competition and disqualification from professional activity). If the prohibitions resulting from these rules prevent or restrict a person’s – in this case, a coach’s – constitutional right to free self-realisation, they can defend their rights through the court. The Chancellor explained how rights are protected in such a situation and what are the limits of federations in imposing prohibitions.
The Sport Act regulates the activities of a coach through professional qualifications. Decisions to award and withdraw the profession of a coach must be based on the Professions Act. Under the Act, the professional qualifications committee may propose to revoke a professional certificate if there is reason to believe that the activities of the coach do not meet the requirements of the professional standard. So, the professional qualifications committee only makes a proposal; the decision can be made by the awarder of the profession, i.e. the Estonian Olympic Committee.
The coach concerned may challenge the decision to revoke their professional certificate. To do this, they must lodge a challenge with the awarder of the profession or a complaint with the administrative court. A sports federation cannot revoke a coach’s professional certificate.
Ensuring access to civil proceedings
The Chancellor of Justice made a proposal to the Riigikogu to bring § 182(2) clause 1 of the Code of Civil Procedure into line with the Constitution. The Chancellor considered that this provision in the Code of Civil Procedure is unconstitutional as it does not allow the costs incurred by a person when obtaining essential food and medicines, as well as communication and hygiene supplies, to be taken into account when granting procedural assistance to a natural person in non-contentious proceedings. The Riigikogu supported the Chancellor’s proposal and has started to prepare a legislative draft to amend this provision.
In her memorandum, the Chancellor drew the attention of the Minister of Justice to a number of other problems concerning civil procedure. According to the current Code of Civil Procedure, an application for interim protection of a court claim must be denied if deficiencies are found in the statement of claim. Refusal to grant interim protection of a claim does not depend on whether or not the deficiency in the statement of claim was material in substance. The Chancellor pointed out that this could lead to irreversible adverse consequences. She suggested that, in such a situation, the court could be given discretion in deciding whether to deny the application for interim protection of the claim, or provide for refusal to grant the application for interim protection of the claim only in the case of material defects.
Another problem concerns the situation when a kindergarten violates a child’s rights: for example, the right to choose another peaceful activity instead of a midday nap. If a parent decides to have recourse to the district court to protect the rights of their child, they must pay a state fee in the usual amount. Similarly, a high state fee must be paid, for example if an adult under guardianship is in a care home and their guardian wishes to have recourse to the court against the care home in order to protect them. The Chancellor considered that, in such situations, access to the courts should be facilitated. To this end, the case could be exempted from the state fee or at least the amount of the state fee reduced, the case could be resolved in non-contentious proceedings, or adjudication of the case could be assigned to the administrative court instead.
Thirdly, the Chancellor asked that rules be added to the law concerning suspension of the deadline for remedying deficiencies if an application for procedural assistance has not yet been resolved.
In his reply, the Minister of Justice thanked the Chancellor of Justice for her observations and promised to take them into account where possible.
Closing a bank account
Recourse to a court may be hindered by the fact that a person’s bank account has been closed. A state fee must be paid when applying to the court. Under the State Fees Act, the body charging the state fee is required to accept a state fee of up to 10 euros in cash, if the payer of the state fee so requests. However, in most cases the fee is higher.
If a person’s bank account has been closed, for example under the Money Laundering and Terrorist Financing Prevention Act or another law, it may be difficult, if not impossible, for the person to have access to the court because they cannot pay a state fee higher than 10 euros.
As a result, many cases do not even reach the court. This also inhibits development of case-law and limits the possibility that concerns about closing a bank account (or refusing to open an account) could be resolved through the courts without changing the law. In sum, the court cannot initiate review of the constitutionality of both the rule on state fee and the rules on prevention of money laundering.
To ensure that everyone has the possibility of access to the court to defend their rights – for example if only to challenge closure of a bank account – the Chancellor of Justice submitted a proposal to the Riigikogu. The state fee must be paid, for example for issuing a driving licence (§ 19 Constitution), registering a marriage (§ 27 Constitution), applying for recognition of professional qualifications (§ 31 Constitution), making an entry on ownership in the land register (§ 32 Constitution) and issuing an identity document (§ 35 Constitution).
A difficult situation arises for someone in respect of whom a harmful decision has apparently been made, but that person themselves is not aware of this because they have not been made informed of the decision. This means that the person is not able to challenge anything to protect their rights. The Chancellor found such examples in the field of financial supervision and nature conservation.
Supervision of the Financial Intelligence Unit
The Chancellor of Justice checked the administrative proceedings completed by the Financial Intelligence Unit (FIU) and made some recommendations to facilitate access to court proceedings.
According to explanations by FIU officials, background checks of persons are also based on data that are not disclosed to the applicant or the inspected person. At the same time, the reason why the data cannot be released is also not disclosed. Unfortunately, it was also not explained to the Chancellor’s advisers exactly which databases are used for such activities and on what legal basis. Thus, an applicant for an activity licence cannot verify the data on the basis of which the FIU makes its decisions.
The Chancellor recommended that the FIU refrain from informally influencing the representatives of an applicant for an activity licence in the future. The FIU may draw up a written opinion on a person, which is also submitted to the person themselves, so that they would be able to defend their rights if they so wish. The FIU can also submit a draft refusal to the applicant with assessments of the persons named in the application for an activity licence. In that case, the person can decide, based on verifiable and specific data, what they wish to do with regard to their application in the future.
The Chancellor recommended that the Ministry of Finance assess whether the regulatory provisions on assessing a person’s reputation sufficiently ensure protection of the rights of persons whose reputation is assessed by the Financial Intelligence Unit. People’s rights would be better protected in a procedure where preliminary assessments of their reputation must also be submitted to the person themselves and where they would have the right to submit objections. This also contributes to the self-monitoring function of administrative authorities, as the FIU is able to assess its decision on the basis of concrete evidence and explanations. The sources of information based on which a person’s reputation is assessed should also be clearly delineated.
Opinions in constitutional review court proceedings
The Supreme Court may ask for the Chancellor’s opinion in constitutional review court proceedings. During the reporting year, the Chancellor of Justice prepared the following opinions for the Supreme Court.
Opinion in case No 5-23-29 (11 September 2023)
The Supreme Court asked the Chancellor of Justice’s opinion on whether § 111³(14) of the Electricity Market Act is compatible with the Constitution insofar as it lays down a transition period shorter than nine months for implementing the security deposit specified in § 87¹(1) of the Act.
The contested provision lays down 60 days from the date of entry into force of the legislative amendment for implementing the security deposit for generation-oriented connection to the power grid. That period began to run on 17 March 2023 and expired on 17 May 2023. The court case involved a number of complex procedural issues (initiation of constitutional review proceedings by an order for interim relief, jurisdiction of the administrative court).
In the Chancellor’s opinion, this constitutional dispute before the Supreme Court needs to be resolved on its merits. The legal relations in question are a combination of private and public relations. Although the relationship between the two parties in this case is framed in the legal sense by a private contract, it must be borne in mind that the state intervened in that private relationship by adding a public obligation within the meaning of § 113 of the Constitution, the implementation and consequences of which do not depend on the contracting parties. Thus, in the present case, the jurisdiction of the administrative court can be affirmed in the light of maximum protection of fundamental rights and the possibility of effective legal protection. In doing so, the administrative court effectively ensured the task of protecting the rights of the person before it, within a limited time frame.
The Chancellor asked the Supreme Court, taking into account the principles of legal protection and the economy of court proceedings, to accept the application of the administrative court (§ 15 Constitution) and to assess the constitutionality of the contested norms in the course of specific constitutional review.
Opinion in case No 5-23-38 (5 December 2023)
The Supreme Court asked for the opinion of the Chancellor of Justice on the assessment of Räpina Rural Municipal Council, Põlva Rural Municipal Council and Tartu City Council that with § 221(2) and (5) of the Social Welfare Act the Riigikogu unconstitutionally increased the financial obligations of local authorities in organising 24-hour general care service provided outside the home.
The Chancellor found that the contested provisions were not unconstitutional. The Riigikogu restricted the local authority’s ability to decide on the amount of the fee for a place in a care home (i.e. 24-hour general care service provided outside the home), i.e. a person’s own contribution. A person’s own contribution must cover the costs of accommodation, meals and other expenses. A local authority was obligated to cover the costs related to carers from its budget.
If the income of a person in need of a place in a care home (pension, work ability allowance and income subject to social tax) is not sufficient to pay for accommodation, meals and other expenses, the rural municipality or city must cover this difference under the conditions and to the extent provided by law. The rest must be paid by the person themselves if they and their next of kin have enough assets to do this. It should also be taken into account that people must have money left to buy, for example, prescription medicines, assistive devices, etc., as well as money for their petty expenses.
Thus, the share of a rural municipality or city in paying for a place in a care home may turn out to be greater than just covering the costs related to carers. All in all, people’s own contribution should decrease, but the expenses of a rural municipality and city increase. This limits the local authority’s possibility to use the budget money for the purposes set by itself.
The aim of the Riigikogu has been to make the 24-hour general care service provided outside the home more financially accessible to people. To this end, with § 221(2) and (5) of the Social Welfare Act, the Riigikogu made the rules for charging for the 24-hour general care service more favourable for people.
This aim is in accordance with Article 14 of the Revised European Social Charter, binding on Estonia, as well as §§ 10, 11, 12 and 28(2) and (4) of the Estonian Constitution. Better enforcement of fundamental rights is a compelling aim that outweighs the accompanying restriction on the right of local government self-organisation, by which the state restricts local authorities’ possibilities to decide how to make the social service available (affordable) to people who need it.
Opinion in case No 5-24-1 (29 January 2024)
The Supreme Court asked for the opinion of the Chancellor of Justice at the request of the President of the Republic to declare the Act amending the Land Tax Act and the Taxation Act unconstitutional. The crux of the matter was not so much substantive issues related to the land tax but rather the extensive manifestations of obstruction, i.e. barriers that occurred in the work of the Riigikogu, as well as the decisions of the majority of the Riigikogu in overcoming these barriers.
The Chancellor found that the Act amending the Land Tax Act and the Taxation Act adopted by the Riigikogu on 18 December 2023 (hereinafter also the Amendment Act) is unconstitutional. It is probably not possible in a law to regulate the techniques used to deliberately block the work of the Riigikogu or the measures to overcome barriers to work in detail, ruling out all future disputes. Nor can positions or explanations precluding all future disputes in these cases be given in a court judgment. Clearly, if necessary, the Supreme Court should continue to decide on the relevant applications based on the circumstances of a particular case.
When deciding on promulgation of an Act, the President of the Republic is also entitled to evaluate the procedure for adopting the Act and, in the event of significant procedural errors, to refer the Act back to the Riigikogu for debate and decision. If the Riigikogu re-adopts the Act without correcting the procedural error indicated, the Head of State has the right to apply to the Supreme Court for constitutional review.
The Government of the Republic linked adoption of the Amendment Act to the matter of confidence, arguing that swift adoption of the Act was necessary for adopting the 2024 state budget before the beginning of the financial year. Some members of the Riigikogu had started to block the work of the Riigikogu as a whole and for a prolonged time, wishing to artificially bring about extraordinary elections in this way. On the basis of amendments tabled to the draft Amendment Act, it can be said that the work blockage was not directed against the substance of this law.
This type of work blockage should be treated differently from blocking work for other purposes. This time, the fact that the Amendment Act was not relevant to adoption of the annual state budget would be sufficient to render linking adoption to the matter of confidence unconstitutional. Linking to the matter of confidence in this case would not have been constitutional even if the purpose of the work blockage had been substantive opposition to passing the Amendment Act: achieving a more favourable outcome for the social groups represented, or at least showing the struggle for their interests and sense of justice.
In the Chancellor’s opinion, in addition to procedural issues, the substantive amendments introduced by the Amendment Act also deserved the attention of the Supreme Court.
Opinion in case No 5-24-5 (9 May 2024)
The Supreme Court asked the Chancellor of Justice for an opinion on whether § 29(5) of the European Parliament Election Act is compatible with the Constitution and European Union law and what the legal consequences would be for the 2024 European Parliament elections should the Supreme Court conclude that this legal norm is not in accordance with the Constitution and/or European Union law.
Under § 29(5) of the European Parliament Election Act (EPEA), before registration of candidates, a political party or an independent candidate must transfer to the Ministry of Finance bank account a deposit in the amount equal to five minimum monthly salaries established by the Government of the Republic for each person (candidate) submitted for registration.
The Chancellor of Justice concluded that § 29(5), (3) clause 3 and (4) clause 2 of the EPEA (hereinafter also referred to as the deposit requirement) were constitutional. The deposit requirement does not excessively restrict the right to stand as a candidate in elections to the European Parliament. In the 2024 European Parliament elections, the deposit is five minimum monthly wages, i.e. 4100 euros. Those party electoral lists and independent candidates who receive at least 5 per cent of the vote nationwide will have their deposit refunded.
There is one electoral district in the European Parliament elections and seven deputies are elected from Estonia. To be elected, a significantly higher vote result than 5 per cent is required. The purpose of the deposit requirement is to prevent too many voters from being left unrepresented because their votes went to a list or to an independent candidate who was not elected to the European Parliament.
Opinion in case No 5-24-3 (7 June 2024)
The Supreme Court sought the opinion of the Chancellor of Justice on whether the sanction imposed by § 141(2) clause 1 of the Penal Code is constitutional.
Section 141 of the Penal Code deals with rape. Under subsection (2) clause 1, commission of this criminal offence against a person of less than eighteen years of age is punishable by at least six years’ imprisonment.
By its judgment of 29 April 2024, Tartu Circuit Court of Appeal declared this provision unconstitutional (criminal case No. 1-23-2431). In this criminal case, the Circuit Court of Appeal held that the minimum penalty disproportionately restricts the fundamental right to liberty and does not take into account the seriousness of the offence committed and the person’s degree of guilt.
The Chancellor of Justice considered that the penalty laid down by § 141(2) clause 1 of the Penal Code was not unconstitutional. The Constitution, by its very nature, does not prohibit imposition of a minimum penalty of six years’ imprisonment for commission of serious crimes, including for the rape of a person under the age of 18. Therefore, such a penalty is clearly not excessive.
Opinion in case No 5-24-7 (5 August 2024)
The Chancellor of Justice found that § 19(2) of the Regulation No 7 of 26 February 2020 of the Minister of Public Administration on “The conditions and procedure for the use of support for achieving energy efficiency of local government buildings” (hereinafter: ministerial regulation) contravenes §§ 94 and 113 of the Constitution.
Põltsamaa rural municipality applied for support from the national measure to improve the energy efficiency of an educational building and organised a public tender for implementing the project. The State Shared Service Centre identified deficiencies in conduct of the tender, due to which the municipality was requested to return part of the grant. The State Shared Service Centre decided that 10 percent of the grant amount would be recovered. The reason given for the recovery rate was, inter alia, that it was not possible to apply a lower recovery rate under § 19(2) of the ministerial regulation.
The Act contains no sufficiently clear and precise delegating norm corresponding to the severity of the restriction that would confer on the Minister the power to establish recovery rates and define the principles according to which the Minister must set those rates.
Given that Tallinn Administrative Court considered one of the allegations of violation to be well founded, but the other unfounded, the application of a recovery rate lower than 10% may be relevant in this case. However, the recovery rates set out in the ministerial regulation do not allow applying a lower rate. As the Riigikogu has not empowered the Minister to establish recovery rates, the rates have been set unconstitutionally.
Proceedings respecting fundamental rights
Every administrative proceeding affects our rights. Petitions to the Chancellor of Justice reveal that the fundamental rights of individuals are not always respected. The state sometimes communicates unpleasantly with the citizen, time and money are wasted due to mutual distrust, and sometimes the result is poor as well.
Respect for fundamental rights is based on civility and the golden rule that do not do to others what you do not want to be done to you. That is why, in proceedings concerning an individual and their rights, the individual must be kept informed of the progress of matters and decision-making: in other words, involved. Of course, legitimate decisions must be based on convincing and reproducible evidence. Mostly, a person’s problem does not concern state secrets, which is why withholding information and secrecy is inappropriate. If a person in need of assistance makes a mistake in submitting an application, the official must instruct them on how to correct the application. It is not right to put an applicant in an unnecessarily awkward position, for example because it is not clear when their application will be resolved.
The actions of the state must also be well-considered if an obstacle arises in the procedure: for example, the electronic environment does not withstand the load. It is unacceptable to mislead a person: for example, not initiating a statutory tax procedure and instead sending out a request that is essentially similar to a measure in tax proceedings. In this case, the person is pressured to provide information outside the tax proceedings, suggesting that if the person fails to provide information voluntarily, it is also possible to initiate tax proceedings.
Notifying about land inventory
Landowners are concerned that the state does not inform them about the inventory of land. As a result of the inventory, the state may decide to take land under nature conservation or to tighten the current protection regime and thereby restrict the right to property.
The Chancellor explained that staying on a plot of land owned by another person is allowed only with permission of the owner. This requirement also applies to the state. The law does give a state representative or inventory taker permission to stay on protected land, but this does not mean that notifying the owner is unnecessary. If the owner has marked or enclosed their land, then in order to take an inventory outside the protected area, consent of the landowner is required anyway.
Informing the owner complies with good administrative practice; besides, it is simply polite. The state may not act behind a person’s back, but this is exactly how the state’s actions may seem to a person if the state sends an inventory taker to make an inventory of the natural values on the plot, but fails to notify the owner. The Environmental Board confirmed that it is looking for ways to improve notifying landowners.
Determining a species protection site for rare species
The Chancellor of Justice received a petition, pointing out that it is becoming increasingly common for habitats of protected species (e.g. the eagle owl) to be determined solely on the basis of allegations that the sound of a representative of the species was heard there. This means that a species protection site is formed in a place where the voice of a protected bird is said to have been heard a couple of times, but the bird’s nest has not been identified. There is also no evidence (recordings) allowing subsequent verification of occurrence of the bird song (sound) and identification of the place and time of the song (sound).
This situation raises the question whether protection of property is guaranteed in such a procedure and how the state’s conduct can be verified in retrospect. Until now, there has been a rule that the existence of a detected natural value must be demonstrated in an appropriate, reliable and verifiable manner. This will help to prevent arbitrary decisions that lead to unnecessary and unlawful restrictions on the right to property.
The Chancellor of Justice recommended that before imposing property restrictions for protection of nature, evidence of the particular natural value be collected and presented in a reproducible and verifiable form. Even if collecting the relevant evidence is more complex or costly compared to the current administrative practice, it ensures the lawfulness of the restriction on property and gives both individuals and the state confidence that establishing a species protection site in that place is necessary and appropriate. If the property restriction turns out to be unlawful, it will reduce the credibility of the state in people’s eyes and may result in the state being obliged to compensate for damage.
Financial Intelligence Unit proceedings
Companies have contacted the Chancellor of Justice with concerns that the Financial Intelligence Unit (FIU) does not comply with the statutory procedural deadlines, so that proceedings for applications for activity licences become excessively prolonged. In addition, it has remained unclear to undertakings applying for an activity licence, on what basis the FIU assesses the reputation of the persons associated with them in activity licence proceedings. Applicants are dissatisfied because, instead of making a decision on the merits, the FIU asks them to withdraw their application.
It is important that proceedings for an activity licence should ensure equal and legitimate treatment of companies and natural persons associated with them, as well as provide an opportunity to defend their rights in the manner prescribed by the Constitution and the laws.
The Chancellor’s advisers examined the materials of the licence applications, submitted to the FIU from January to June 2023, in which proceedings had ended. The materials of ongoing proceedings were not analysed.
Based on the findings, the Chancellor drew up a comprehensive summary which included recognition, as well as observations and recommendations for better and legitimate organisation of work. The results of the inspection are dealt with in more detail in the chapter on “Money and taxes”.
Proceedings for amending a detailed spatial plan
Pärnu City Government had prepared a draft of design specifications aimed at amending the detailed spatial plan. The Chancellor explained that a detailed spatial plan cannot be changed through design specifications. To do this, the procedure for processing a detailed spatial plan must be followed.
Under § 27 of the Building Code, where a detailed spatial plan exists, design specifications may be issued if these are used to specify a condition in the detailed spatial plan without essentially changing the planning solution. This is an exceptional procedure which can only specify a detailed spatial plan to a limited extent. Another condition is that five or more years must have passed since establishment of the detailed spatial plan but implementation of the plan has not yet started.
The law also sets out the aspects which can be dealt with in this way (§ 27(4) Building Code).
Declining to examine a building notice due to a valid building permit
The Chancellor explained the legal difference between a building notice and a building permit by the example of solar panels installed on the roof of a building. A building permit is a permissive administrative act, while a building notice is an act that may reveal the need to issue an administrative act with mandatory content.
The general rule of administrative law is that an administrative act can only be amended through the procedure for an administrative act, i.e. a building permit can also be amended only in the building permit procedure.
Although, under Annex 1 to the Building Code, a building notice (and building design documentation) should be submitted for installing a solar panel on the roof of a house, a building notice cannot be submitted if the building permit for constructing the same house is still valid. During the period of validity of the building permit, in order to obtain the right to install solar panels, the need to amend the building permit must be assessed instead. So, no need exists to submit a building notice during the period of validity of the building permit. However, if a person nevertheless submits a building notice during the period of validity of the building permit, the city must return the building notice to the person without examining it, because the wrong procedure has been chosen.
The validity of a building permit expires when the building permit has been revoked or when the building permit has been exhausted, i.e. when the building constructed on the basis of the permit has been properly completed and this is confirmed by an occupancy permit. Legally, a building is considered to be in progress as long as it has a valid building permit, even if the building is actually complete and is in use.
Involvement of affected persons in building right proceedings
The Chancellor drew attention to a mistake in building permit proceedings. Specifically, an authority in Tallinn failed to involve the representatives of an apartment building in the vicinity of a planned apartment building in building permit proceedings. Only neighbours directly adjacent to the building were involved in the proceedings.
The city erred in failing to correctly assess the impact of the planned building. The need for privacy was not taken into account (from the windows of the new house it is possible to look across the street to the windows of the other house) as well as the need for natural light (the new house would have started to block the daylight).
All persons whose rights may be affected by an administrative act must be involved in the proceedings of that administrative act. Thus, in addition to direct neighbours adjacent to the building, those whose rights are likely to be affected by the proposed construction must be involved in building right proceedings.
Tallinn city guidelines for planning a good apartment building
The Chancellor explained that guidelines (administrative rules) cannot resolve issues that need to be resolved by a spatial plan. This position of the Chancellor of Justice was prompted by a petition alleging that the city makes unlawful demands in building permit proceedings arising from guidelines prepared by city officials.
Administrative bodies may draw up guidelines for the organisation of their work, but these must comply with legislation and facilitate legitimate implementation practice. No new law may be created by guidelines. Guidelines cannot be used to resolve problems that should be resolved by other means. For example, a building permit must be granted if the application and the accompanying building design comply with the legislation and the spatial plan. A building permit cannot be refused because it is contrary to guidelines.
The guidelines at issue addressed a number of urban building issues. These should be dealt with in the spatial planning procedure. If urban design perceptions and needs have changed and the current spatial plan no longer meets them, then the spatial plan must be changed.
In the proceedings of new detailed spatial plans, the principles of designing a good and high-quality urban space can already be taken into account. The city may also consider amending or repealing existing but essentially outdated detailed spatial plans. Guidelines cannot solve the shortcomings of a spatial plan.
According to the principle of legality, all questions must be resolved in the correct procedure and in compliance with the prescribed procedural requirements. This will ensure that only those requirements are imposed that arise from a generally valid legal act (a law, or a regulation established on the basis of a law and complying with it) or a spatial plan. This will also ensure that everyone has the opportunity to defend their rights and interests.
Rules for distribution of support
The Chancellor of Justice was contacted about the conditions for submitting applications and resolving them in the frame of the project “Construction of water and sewerage infrastructure for private individuals”. The project is carried out by the Environmental Investment Centre and financed by the European Union Cohesion Fund.
The petitioner was concerned about how a technical failure in the e-environment for submitting applications would affect resolution of their application. The petitioner also wanted to know why applications were granted in the order in which they were received.
The Minister of the Environment regulation on “The conditions for support for connecting to the public water supply and sewerage system” lacks a legal basis according to which a choice is made between eligible applications. This contravenes the constitutional requirement of legal clarity. If the Minister wanted to impose a condition according to which applications are dealt with in the order in which they were received, this should have been expressly set out in the regulation.
The Chancellor proposed to the Minister for Climate that the criteria on which selection is based be established in a ministerial regulation. The Ministry promised to take the Chancellor’s proposal into account when preparing regulations concerning this support in the future.
Unfortunately, the country as a whole lacks a broader understanding of how it would be best to process applications submitted through the e-environment and distribute support in a situation of numerous applicants. In spring, problems arose in distributing support for reconstruction of small houses. The conditions for granting this support (§ 11) were the same as those which the Chancellor of Justice had recommended to the Ministry of Climate to revise in another regulation.
At the same time, the regulation on support for renewal of heating equipment for small houses is a good example of how the criteria for selecting projects have been written down and how attempts have been made to resolve cases where failures occur when applying in the e-environment.
When establishing selection criteria, first of all it should be taken into account to whom support is granted and for what purpose. In addition to equal treatment of applicants, careful consideration should also be given to whether, in granting support to private individuals, it is most appropriate to take into account the order in which applications arrive. The time allowed for submission of applications should not be unduly limited; in addition, the time for submitting an application should not coincide with working time. Otherwise, for example, teachers, medical professionals and bus drivers, who cannot be at the computer at a certain time on a certain date in order to submit an application because they have to do their job at the same time, will be put at a disadvantage.
However, if it is nevertheless decided to satisfy applications in the order in which they are received, the reliability of the e-environment created for applying must be ensured. If it happens that, due to circumstances beyond a person’s control, a technical failure occurs in submission of the application, then the person is immediately at a disadvantage compared to others. The risks arising from technical failure cannot be left to the applicant to bear.
Requesting information and documents outside tax proceedings
The Chancellor of Justice was approached with a concern that the Tax and Customs Board asks companies by e-mail for information and documents in the same volume as is usually requested in tax proceedings.
Explanations provided by the Tax and Customs Board revealed that the Board has sent thousands of e-mails to persons to obtain information outside tax proceedings.
The Chancellor found that the Tax and Customs Board may not ask for information and documents from persons without a legal basis. The Taxation Act allows the Tax and Customs Board to request such information only in the course of tax proceedings. Otherwise, the Tax and Customs Board violates the principles of good administration and fails to protect a person from the arbitrary exercise of state power.
The legal meaning of an e-mail sent to request information and documents is not always understandable to a person. For example, it was not possible to find out from the e-mails from the Tax and Customs Board that replying to these letters and submitting information and documents is not mandatory. Where the Board communicates with a person and asks them for information outside tax proceedings, the rights of the taxable person and of third parties are not protected to the extent that they are protected in tax proceedings. In this case, the person’s ability to defend their rights is also limited.
In its reply to the Chancellor of Justice, the Tax and Customs Board agreed that it must be unambiguous for a person whether or not tax proceedings are being carried out in respect of them. The Board affirmed it will thoroughly review its work processes and interactions with taxpayers.
Supervision over financing of political parties
Under the Political Parties Act, the Chancellor of Justice appoints one member to the Political Parties Financing Surveillance Committee. The Chancellor has appointed the editor-in-chief of the cultural paper Sirp, Kaarel Tarand, as a member of the Committee. The Committee and its members are independent, they have no obligation to report their activities to the persons or institutions appointing them, and they also do not accept or receive instructions from the persons appointing them.
Kaarel Tarand: “Like any machine, every law affecting the way people live begins to age and depreciate from the moment of adoption. This also surely applies to the laws that determine the structure, power and decision-making mechanisms of a democratic state. They need regular maintenance and, as the living environment, technology, customs and practices are constantly changing, they also need to be updated and some elements improved. Otherwise, the law will lose its closeness to life and will no longer fulfil its original meaning and task.
The Political Parties Act is an example of how and what risks materialise if a law remains unmaintained for a long time. A lame law not only affects the activities of the political parties themselves, but forces those who implement the law to do meaningless work.
For years, the Riigikogu has been in a wait-and-see position as regards amending and supplementing the Political Parties Act, hoping that the Ministry of Justice will present a ready-made solution to the parliament through the government. However, officials cannot make big political choices, the place to discuss and decide them is in the Riigikogu.
One example. Worldview has become a free, flexible and dynamic phenomenon. In the Riigikogu, this manifests itself in the movement from the doors towards the windows. Worldviews change, people move, but money does not. Is it a fair and satisfactory situation for all – and not only for political parties and members of the Riigikogu, but also voters – that state budgetary support for political parties does not depend at all on where someone actually belongs and who they represent, but only on the election result?
More similar questions can be raised about the political reality and the consistency or inconsistency with it of the Political Parties Act. With regard to some sections, the issue is again actually urgent, as only a year is left until the municipal council elections.”
Allegedly illegal donation by a legal person
Among the dozens of questions submitted to the Political Parties Financing Surveillance Committee, the case of the Liberal Citizen Foundation (SALK) stood out due to its exceptional nature and the high level of public attention. After the 2023 Riigikogu elections, the attention of the Political Parties Financing Surveillance Committee was drawn to the allegation that SALK had made a prohibited donation to some political parties by allowing them to get acquainted free of charge with the data of studies and analyses conducted by the foundation.
At its meeting on 25 September 2023, the Surveillance Committee examined the responses received from political parties on the way in which they had accessed the SALK materials and how they had used that data. Tarmo Jüristo, the head of SALK, also gave testimony to the Surveillance Committee, presenting the work and goals of the foundation, as well as the conditions under which SALK allowed access to its work. SALK argued that in principle the foundation does not do contract work for political parties. However, the foundation had decided that some of the parties running in elections to the parliament would not be allowed access to the surveys.
This gave the Surveillance Committee a basis to investigate whether the political parties that were part of the SALK information circle had received a free service from the foundation in the run-up to the elections, which under the Political Parties Act qualifies as a prohibited donation by a legal person.
A month later, the Surveillance Committee decided that indeed four political parties that ran in elections – the Reform Party, Estonia 200, the Social Democratic Party and the Centre Party – had received a prohibited donation in the run-up to the 2023 elections, which, according to the law, must be returned to the donor. SALK objected that the foundation is not engaged in provision of services, but strives to attain the goals set out under its statutes. These goals are to represent a liberal worldview and to identify the views and preferences that exist in society.
By July 2024, the Surveillance Committee had calculated the amount of the alleged prohibited donation based on SALK’s financial reports and overviews of the cost of specific surveys, and sent a precept to four political parties to refund that amount. Since the results of the surveys had also been partially available to the public, the Surveillance Committee decided that the political parties should pay 80 percent of the money spent on carrying out the surveys.
Three political parties – the Reform Party, the Social Democratic Party and Estonia 200 – were asked to repay 26 449 euros and the Centre Party 13 225 euros. The difference arose from the fact that the Centre Party had gained access to a smaller amount of data compared to the other parties.
The Chair of the Surveillance Committee, Liisa Oviir, commented on the Committee’s decision: political parties should think more carefully about accepting services from legal persons that can be measured in money.
The head of SALK, Tarmo Jüristo, however, felt that the Political Parties Act should be updated and ways in which the third sector can have a say in politics should be formulated.
At the time of completion of the annual report, it was not known whether the political parties that received the claim for refund would challenge the Surveillance Committee’s decision or not, and how the case will affect amendment of the Political Parties Act. In a presentation to the Riigikogu in 2017 (see para. 20 et seq.), the Chancellor of Justice already pointed out that the provisions regulating prohibited donations may excessively restrict the freedom of action of non-governmental organisations.