Estonian Public Broadcasting, 13 May 2019
Ülle Madise, the Chancellor of Justice, calls upon the Riigikogu to amend laws in such a way that the rights of all members of the councils of local authorities would be safeguarded, for instance, the right to participate in the work of the committees of the council as well as the right to defend their rights in court.
“If the rights of a member of a local council are infringed upon, they cannot effectively defend their rights, because they cannot take the matter to court. I ask you to consider initiating legislative amendments required for protecting the rights of local council members,” says Madise in a letter sent to the Constitutional Committee of the Riigikogu.
Madise finds that a local council member should be entitled to bring legal disputes arising in the local government structure before an administrative court where the council or the administration of a municipality knowingly infringes upon the rights of the council member and the intra-authority appeal procedure does not provide sufficiently effective protection to the council member.
The Chancellor of Justice says that she has been addressed by council members mainly in connection with the right of a council member to belong to at least one local council committee and with the right to receive answers to their written questions from the municipality’s administration or a municipal agency within the statutory time limit.
“The rule of law involves a principle according to which everyone who has rights and obligations must be ensured the impartial implementation thereof. An important part of the principle of the rule of law is legal certainty that makes the legal order reliable. This principle also applies within the public authority organisation. The legal order is not sufficiently reliable where a right granted to a member of a representative assembly of a constitutional institution, i.e. the local authority, by law cannot be exercised in practice, because there is no impartial body that could enforce the rights arising from the status of a council member,” notes the Chancellor of Justice.
Madise points out that such provisions have been established for members of the Riigikogu in the Judicial Constitutional Review Court Procedure Act and, therefore, the legislature should establish similar provisions also for members of the councils of local authorities.
She also makes a reference to Article 7 of the European Charter of Local Self-Government, according to paragraph 1 of which the conditions of office of local elected representatives shall provide for free exercise of their functions.
“I urge you to consider granting local council members the right to file a claim with an administrative court. I consider such a solution advisable, because it will help to improve the functioning of the (representative) democracy and protection of the rights of local council members,” says Madise in her letter, adding that the judicial right of appeal of local council members may be provided for either in the Code of Administrative Court Procedure (CACP) or in the Local Government Organisation Act (LGOA).
Madise pointed out that she submitted the same opinion to the former composition of the Riigikogu in December 2017 in connection with an enquiry by members of the Riigikogu, but the Parliament failed to reach the legislative amendment.
Situations where the council of a local authority does not appoint the council’s committee members of the opposition have occurred, for instance, in Narva, Kohtla-Järve and Viimsi.
Full text of the Chancellor of Justice’s proposal in Estonian: Volikogu liikme õiguste kaitse halduskohtus