Chancellor of Justice's speech in Second international conference of the ombuds institution of armed forces in Vienna

Second international conference of the ombuds institution of armed forces, 25th-28th April 2010, Vienna


Dear ladies and gentlemen!
The Chancellor of Justice of Estonia has quite unique model, because it enjoys combined powers. The main function of the Chancellor of Justice is to exercise supervision over the constitutionality and legality of legislation passed by the legislative and executive powers and by local governments. The types of legislation that the Chancellor of Justice supervises are the Acts of the Riigikogu (Parliament), decrees of the President of the Republic, regulations of the Government of the Republic, regulations of Ministers, and regulations of local governments.
The second main function of the Chancellor of Justice is to serve as an ombudsman and to verify whether agencies and officials who perform public functions comply with the constitutional rights and freedoms of persons and the principles of good administration The agencies whose activities the Chancellor of Justices supervises are the ministries, boards and inspectorates and their local subordinate bodies, as well as local governments.
The Chancellor of Justice is also the national preventive mechanism in Estonia designated under the Optional Protocol to the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment (OPCAT).
In Estonia there is no separate ombudsman for Defense Forces, therefore it is the Chancellor of Justice's obligation to fulfill this function of supervision. However, we do have something similar to ombudsman institution within the Defense Forces (peainspektorteenistus), but due to the lack of resources (mostly human), this institution is not up to its tasks and to be honest, it is not clear on the level of the legal framework what tasks this institution is supposed to perform.
So the Chancellor of Justice is the main institution supervising the level of protection of human rights in the Defense Forces.
As I mentioned earlier, the Chancellor of Justice enjoys combined powers. So we have many tools and many different opportunities how to promote and protect the human rights oriented thinking within the Defense Forces.
At the same time, the protection of human rights and freedoms in the Defense Forces is still not yet at a satisfactory level. The main reason for dissatisfaction is the absence of the legal framework for restricting the fundamental rights and freedoms of conscripts. According to the Constitution of the Republic of Estonia, the fundamental rights and freedoms can be restricted only by the law. The same principle applies also for conscripts. Based on the results of inspection visits and ombudsman proceedings the Chancellor of Justice has for many years emphasized the need to develop appropriate legal framework. The Chancellor of Justice has done close cooperation on this matter with the Ministry of Defense and today I can assume with certain confidence that the problem is getting decent solution as the draft of amendment to the Armed Forces Act has been filed to the Parliament and with that draft, the Parliament is trying to set legal framework for restricting conscripts' fundamental rights and freedoms.
Another topic the Chancellor of Justice has been closely monitoring is the issue of social guarantees of the members of the Defense Forces. I started the proceeding to investigate whether wounded or killed soldiers and their close-ones and relatives have adequate social guarantees. I also investigate whether these incidents where the member of the Defense Forces got wounded or killed are examined in sufficient depth in order to make valid conclusions to avoid these incidents in the future. Since this proceeding is in the working stage, I can't state any conclusions yet, but I find it to be a very important issue to draw our attention to.
Since the Chancellor of Justice is also the designated NPM, it is my obligation to make an inspection visits to military units. During these visits I have found out, that considerable amount of maladministration is caused due to the lack of legal knowledge of the members of the Defense Forces. It does not necessarily mean, that only military officials who have caused maladministration lack legal knowledge, but it also means, that, for example conscript who has been or is being subjected to maladministration lack legal knowledge and sometimes he/she does not even realize that he/she has been or is being subjected to maladministration. Lack of sufficient legal knowledge is, from my point of view, serious obstacle which everyone must overcome to diminish maladministration in military organizations.
My experience shows, that almost in all cases military personnel does not violate the rights and freedoms deliberately, but because of the lack of knowledge. Usually they do not even realize that they have violated someone's rights or freedoms. To tackle this "problem of lack of legal knowledge" I have, in cooperation with the Defense Forces, launched an initiative to arrange a series of seminars on the fundamental rights and freedoms of military personnel. My approach has always been, one should not only criticize, but also teach how to do better. Because at the end of the day, I can be satisfied only then, when there is nothing to criticize anymore.
Thank you for your attention.