Today, the Harju County Court made a decision upholding the fine imposed for the use of the expression “From the river to the sea”. According to the court’s ruling, it is widely known in Estonia that using this expression is prohibited and punishable. The complainant, their lawyer, and the Estonian Human Rights Centre view the court’s approach as a threat to freedom of speech and will appeal the decision to the Supreme Court.

In November last year, a demonstration titled “In Solidarity with Palestine” took place at Freedom Square in Tallinn. The police detained and interrogated five people, some of whom had signs and some who said the phrase “From the river to the sea”. All these individuals were fined by the Police and Border Guard Board under Section 151(1) of the Penal Code. This means that young people calling for an end to violence were fined under a section that accuses them of supporting and justifying international terrorism.

Four of the fined youths approached the Estonian Human Rights Centre (EHRC). EHRC decided to represent them in a strategic lawsuit, arguing that receiving fines for using a widely used phrase at international protests threatens freedom of speech in Estonia. Moreover, since there has been no debate about the prohibited expressions outside the context of the Russian war against Ukraine, this case could set a precedent where the prohibition of an expression is determined by an official on duty. Therefore, anyone could unexpectedly become a supporter of terrorism in the eyes of the state. In cooperation with attorney-at-law Ronald Riistan, we appealed the decision of the Police and Border Guard Board in court.

Today, the Harju County Court ruled to uphold the fine imposed on Leore Klõšeiko. The court found that the expression “From the river to the sea” is not protected by freedom of expression in Estonia and that the police had the right to restrict its use. This was despite the fact that Klõšeiko does not support Hamas and was unaware of the symbol’s associations with Hamas.

Kelly Grossthal, head of strategic litigation at EHRC, explained that the predictability and foreseeability of legal provisions that restrict freedom of speech are of utmost importance in a state that respects human rights. “Today’s court decision is disappointing and incomprehensible. A fine for an expression that lacked prior societal debate was not foreseeable – ironically, even the police officer who issued the fine had to admit in court that he heard about the prohibition of the phrase for the first time only during the demonstration! Yet, his own fine decision stated that its prohibition in Estonia was known to everyone last November,” she highlights the contradictions revealed during the court proceedings.

Sworn lawyer Ronald Riistan, who represented Klõšeiko, finds the court’s decision problematic in several ways. “Unfortunately, the court, as the guardian of the Estonian Constitution, missed the opportunity to analyze the constitutionality of Section 151(1) of the Penal Code, on which the fine decision was based, ignoring most of the defender’s arguments about the provision’s constitutionality. The court has resolved the constitutional issue formally, without delving into the substance of the problem. Considering that the court found that Klõšeiko acted out of negligence, not intentionally, it is incomprehensible that the court failed to analyze whether it is constitutional for the legislator to not intend to punish people for unintentional acts, yet the final wording of the law allows for this possibility. The court also ignored the question of whether it is lawful to delegate the selection of punishable symbols to the police. The Supreme Court has repeatedly found that the legislator should not delegate the decision of details of the law affecting fundamental rights (in this case, freedom of expression) to the executive power. In this case, neither the legislator nor the executive has analyzed the infringement of the complainant’s fundamental rights, and the court essentially failed to do so as well. Such a situation is definitely not in accordance with the Constitution,” Riistan explained the broader issue with Section 151(1) of the Penal Code.

Klõšeiko and the Estonian Human Rights Centre, in cooperation with sworn lawyer Ronald Riistan, will appeal the decision to the Supreme Court and believe that the Supreme Court will take on this complex and socially significant case. Please donate to help cover court costs.