Chancellor of Justice
International accreditation status and SCA recommendations
The Estonian NHRI was accredited with A-status in December 2020. The SCA welcomed the legislative changes from 2019 that allowed the Chancellor of Justice to act as the NHRI in Estonia. The SCA encouraged the NHRI to advocate for the formalization and application of clear, transparent and participatory process for the selection and appointment of the Chancellor of Justice. It also called on the NHRI to advocate for amendments to its enabling law to provide for limits to the term of office of the Chancellor of Justice.
Impact of 2020 rule of law reporting
Follow-up by State authorities
There has not been any direct follow-up action that could be traced back to the 2020 ENNHRI Rule of Law Report.
Impact on the Institution’s work
The 2020 ENNHRI Rule of Law Report has not directly impacted the Chancellor’s work.
Follow-up initiatives by the Institution
As part of the Chancellor’s 2018/2019 Annual Report, the issues raised by the Chancellor in the 2020 ENNHRI Rule of Law Report had been, as usual, already presented to the Parliament, and the contributions disseminated widely.
Independence and effectiveness of the NHRI
Changes in the regulatory framework applicable to the Institution
The national regulatory framework has not changed since the 2020 ENNHRI Rule of Law Report.
The Chancellor of Justice is able to carry out the institutional mandate, as also explained and illustrated in the recent SCA report.
Developments relevant for the independent and effective fulfilment of the NHRIs’ mandate
COVID-19 related issues have increased the workload of the Chancellor of Justice but have not hindered the effective fulfilment of the institutional mandate. There was a foreseeable adjustment period − e.g., figuring out how to safely carry on with NPM inspection visits, how to continue in-person meetings with people who need to file an application etc.
The Chancellor wrote in the section “Chancellor’s year in review” of the Annual Report 2019/2020:
“(…) For years, the complaint was heard that those at the head of the state often strive for goals with a view to the long-term gain of the nation, yet do not bother to explain clearly why something is done that does not seem either convenient or right at the time but will still be useful later. Now the situation is different: rational decisions are too often swept aside by perceptions of what voters might like at the moment. (…) The Chancellor’s Office does not let itself be disturbed by this irrational confusion and will do its best to contribute to preserving the rule of law. This will be done within the limits of the Chancellor’s mandate and powers, just as the Chancellors of Justice of the Republic of Estonia have done their work since 1993. Competently, swiftly, and as clearly as possible. If possible, by pre-empting problems and not picking up the pieces trying to be wise after the event.”
The central task of the Chancellor of Justice – constitutional review – is supported by the Chancellor’s roles as ombudsman, the Ombudsman for Children, national preventive mechanism against cruel treatment, supervisor of surveillance agencies, human rights institution, and promoter of the rights of people with disabilities. The Office of the Chancellor has not expanded but thanks to their professionalism and commitment, the staff was able to withstand the pressure and cope with new, unexpected duties while working remotely.
Human rights defenders and civil society space
All public meetings were prohibited during the emergency situation. The Chancellor was asked repeatedly whether the prohibition on holding (political) rallies due to the emergency situation was indeed constitutional.
The freedom of assembly stipulated in § 47 of the Constitution may be restricted to prevent the spread of an infectious disease. The prohibition on public meetings was imposed with a view to protecting the life and health of people, by preventing physical assembly and movement. Even in the event of compliance with the 2 + 2 rule (up to two people can move together keeping a 2-meter distance, excluding families or if the rule cannot be reasonably ensured), the state has the right to prevent gatherings of crowds.
The Chancellor noted in her reply concerning the restriction of (political) rallies that during the emergency situation declared because of the epidemic, everyone’s right under § 45 of the Constitution to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means was not and could not be restricted. Freedom of expression is a basic principle of a democratic society. However, restriction of freedom of assembly does not necessarily excessively inhibit freedom of opinion and freedom of expression. It is possible to express one’s views otherwise than through physical assembly. Not every form of expression of one’s views in a public space (for example, distributing leaflets or carrying posters) can be considered a public meeting.
The general day-to-day human rights work of the Chancellor is, inter alia, geared towards making sure that the civic space is indeed defended, even though there are not any specific initiatives in that regard. The Chancellor reacts to restrictions and uses its mandate also to prevent disproportionate restrictions.
Checks and balances
The Estonian National Electoral Committee (NEC) analysed legal, technical and budgetary aspects in view of a referendum planned for October 2021 and local elections. A memorandum to this effect was sent to the Minister of Finance and several Riigikogu (Estonian Parliament) committees. The NEC also analysed all the proposals made by the committee set up by the Minister of Economic Affairs and Communications to remedy the alleged shortcomings in the organisation of online voting in elections in Estonia.
Functioning of the justice system
The following are examples from the Annual Report 2019/2020:
The Chancellor receives many complaints about the justice system. The reason of the complaints is mostly discontent and disagreement with court judgments. Under the Constitution, courts are independent, and the Chancellor does not intervene in the substantive work of administration of justice. The Chancellor initiates disciplinary proceedings if a judge behaves disreputably or fails to fulfil their duties of office. Every year there are also cases where the Chancellor examines the work of judges more specifically in order to decide whether to initiate disciplinary proceedings against a judge. During the reporting period, there were 15 such cases.
The Chancellor also analysed conformity with the Constitution of the provisions of the current statutes of the courts’ information system and whether there exists a conflict between the Courts Act and the procedural codes. The Chancellor found no conflict between the Courts Act and the procedural codes. However, a conflict with the Courts Act and the Constitution exists in the case of those provisions of the statutes of the courts’ information system which entitle the Ministry of Justice to request judges to amend information in the system and lay down supervisory competence of the Ministry over the judges in using the information system. To ensure compliance with the requirements, the Chancellor made a proposal to the Minister of Justice to amend the statutes of the information system of the courts.
The Chancellor also had the opportunity to deal with a complaint concerning court fees and access to justice. In particular, a petitioner asked the Chancellor to verify whether the requirement to pay a security guarantee of 3000 EUR for an appeal in cassation filed with the Supreme Court was constitutional. The Chancellor found that the amount in question, whose payment was imposed in connection with a claim amounting to 300 000 EUR, was not to be regarded as per se disproportionate. However, the Chancellor pointed out that, if paying that sum proves to be burdensome in the case at hand, the party should have the possibility to request legal aid to pay the security guarantee.
Media pluralism and freedom of expression
The Chancellor has drawn attention to media and privacy in its Annual Report. It has done so also during the state of emergency.
The Chancellor was contacted in connection with publication of health data in the media. Unless an individual agrees to disclosure of their data, disclosure of their health data in the media is normally prohibited. An exception is laid down in § 4 of the Personal Data Protection Act, when certain criteria are fulfilled. The media channel must be convinced that three main criteria are fulfilled simultaneously: public interest exists for disclosure of the data of the particular person; principles of journalism ethics are observed in disclosure; and disclosure of personal data does not cause excessive damage to the rights of the data subject.
The Estonian Code of Journalism Ethics lays down that data and opinions about the health (both mental and physical health) of specific individuals shall not be disclosed. As an exception, the Code sets out cases when disclosing data is allowed; if a person consents to disclosure of their data or if disclosure of their data is required by the public interest. To disclose such data, it is not merely sufficient that the public is in principle interested in a particular topic (e.g., spread of the coronavirus). Disclosure of personal data must contribute to the debate on an important public issue, not merely to satisfy people’s natural curiosity or serve the economic interests of a media publication.The Chancellor of Justice was persistently against the disclosure of data of infected persons. The Health Board was asked for information about infected persons, which was due to a natural and understandable fear of the virus. For example, people enquired who was infected and where that person lived. Stigmatising infected people does not in any way help to combat the coronavirus since it would encourage people to hide their symptoms. Disclosure of such sensitive health data is unequivocally prohibited.
To highlight one example from anti-corruption activities: In September 2019, the Chancellor made a proposal to the Riigikogu to bring the Local Government Organisation Act into conformity with the Constitution insofar as it did not allow a contractual employee of an administrative agency of the same rural municipality, town or city to be a municipal council member. The Riigikogu did not support this proposal so the Chancellor submitted an application to the Supreme Court. In April 2020, the Supreme Court satisfied the Chancellor’s application and declared invalid a part of the sentence containing the words “or working in an administrative agency of the same rural municipality, town or city on the basis of an employment contract” in § 18(1) clause 6 of the Local Government Organisation Act. The court postponed the entry into force of the judgment by six months, to enable the Riigikogu to review the restrictions on the municipal council members as a whole. The court emphasised that “regulation should take into account the principle of equal treatment of local authority employees. A conflict between the interests of the mandate and of the place of employment as well as public and private interests may arise not only for employees of a local government administrative agency but also for employees of an agency administered by a local authority’s administrative agency”. The principle of equal treatment requires, inter alia, that the Riigikogu should give a clear and reasoned answer to the question whether a conflict of interest of contractual employees of a rural municipality, town or city administrative agency elected to a municipal council is more severe than a conflict of interest of heads and deputies of an agency administered by a local authority’s administrative agency elected to a municipal council. To regulate the issue, on 11 June 2020 the Riigikogu Constitutional Committee initiated a Draft Act (212 SE) amending the Local Government Organisation Act.
Impact of measures taken in response to COVID-19 on the national rule of law environment
Most significant impacts of measures taken in response to the COVID-19 outbreak on the rule of law and human rights protection
The Annual Report of the Chancellor includes a full summary in English on the impacts and measures taken in response to the COVID-19 pandemic.
Although there is currently no state of emergency, some of these issues are still relevant since there are pandemic-related restrictions in place (from schools being closed to limitations in health care). Also electing the Board of the Riigikogu and organising municipal council sessions were affected by the pandemic.
During the emergency situation, the Estonian National Electoral Committee (NEC) had to offer flexible solutions to members of the Riigikogu for the regular election of the Board of the Riigikogu. To accommodate the necessary precautions, six voting places were set up in the Riigikogu, enabling members of parliament to make their choice in compliance with all the requirements of social distancing. The Chancellor had supported this solution being of the opinion that those members of the Riigikogu who feel sick or are considered as posing a risk of infection should still be entitled to participate in the elections of the Board.
During the emergency situation, many municipal councils held their sessions over the internet. The lack of familiarity with digital technologies sometimes caused problems, and one such complaint was also heard in July by the NEC. The NEC had to decide whether a member of Peipsiääre Rural Municipal Council could be deemed to have been absent from three consecutive municipal council sessions or not, and whether the alleged absence was sufficiently proved in order to suspend the mandate of the particular municipal council member. The Committee reached the conclusion that the member had actually not participated in the work of the municipal council during three consecutive months and dismissed the complaint.
The COVID-19 outbreak is still ongoing, which makes it hard to make a reliable assessment of the long-term implications on education, health (especially mental health) etc. However, some of these themes will be addressed in our Annual Report 2020/2021 that will be published in September 2021.
Most important challenges due to COVID-19 for the NHRI’s functioning
Despite the increased workload, the Chancellor of Justice has been able to carry out its mandate. The Office has been using online meetings (for example the advisory bodies of the Chancellor have been meeting via Internet) and telework. Inspection visits have been carried out with extra safety measures – such as testing and rigorous use of personal protective equipment.