The annual report of the Estonian Human Rights Centre bears an ambitious title: “Human Rights in Estonia 2012” and is the fifth consecutive report on Estonia’s progress regarding nearly all rights recognised by the European Convention on Human Rights within the last year.
Compiling a report like this is a time-consuming, labour-intensive and a necessary task in charting the condition of human rights in Estonia, which presupposes gathering information from various sources, as well as analysing it. The annual reports of state agencies, reports and opinions of non-governmental organisations and international organisations, as well as materials gathered by the Estonian Human Rights Centre have been used. However, having a complete and an objective overview is probably impossible, as for example the European Court of Human Rights can only deal with questions that have reached court. The question is whether the Estonians’ awareness of their rights is sufficient to be able to challenge every injustice? Is the access to justice guaranteed? And are the law enforcement authorities trusted?
It is therefore extremely important that people are informed of their rights, that lawyers receive additional training and in-service training on the European Convention on Human Rights, as well as its implementation and interpretation practice, so that the dissemination and execution of court judgments is guaranteed. The Estonian language summaries of decisions of the European Court of Human Rights and translating the handbook regarding filing complaints with the European Court of Human Rights into Estonian last year are welcome steps in this direction. As well as the fact that the Estonian Government approved the methodology devised by the State Chancellery in cooperation with the Ministry of Justice for evaluating legal acts, which should hopefully improve the quality of legislative drafting and allow to better evaluate the effect the legislation that is being drafted has on human rights.
How seriously are human rights taken in each corner of Europe, including Estonia? Is what we consider a state based on a rule of law on the state level also thought to be one in our everyday lives? Is the vision of protection of human rights, of a state based on rule of law, and of democracy the same in Tallinn and Tartu as it is in the remotest village of Estonia? How are the rights of the most vulnerable guaranteed, such as children and elderly, as well as disabled people and other minorities? May the regretful tone of the probably answer remain on the conscience of each reader.
It is one thing to spout ringing slogans about protection of human rights, but human rights should not be taken as a mere figure of speech. Human rights are not abstract, but very specific rights, which must be respected. Human rights are rights, which belong to each individual person because they are a human being, irrespective of legislation, time and space, and they are inalienable. Human rights are the litmus paper of the actions of the state. Protection of human rights may be costly, but it mustn’t turn into a luxury – it must be guaranteed.
People and their rights ought to always be at the heart of the activity of the public authority. Unfortunately, in Estonian history we have also experienced that a person has no value. Now it is particularly up to us to value every person living here and to guarantee the protection of their human rights.
The best collective is one that is ruled by trust and the spirit of cooperation, where an open dialogue is possible, where persons of different backgrounds, age and gender are in balance, where decision-making is translucent, and each individual and their health, family and wellbeing are valued. This should also be the case for a country.
It is vital that our legislation is appropriate for a state based on rule of law, that the constitution and human rights are respected by all three state powers: the legislative power, the executive power and the judicial power.
According to the valid constitution that was passed on referendum in 1992 Estonia is a state of law. Our constitution is democratic. Its chapter on fundamental rights, fundamental freedoms and fundamental obligations was largely inspired by the European Convention on Human Rights.
The Supreme Court has consistently facilitated the development of principle of state based on the rule of law, has been the importer of the practice of European Court of Human Rights and in conjunction with it has indicated the legislator if something needs to be changed, such as compensate for damage in case of court proceedings that have lasted an inordinate length of time or to give the imprisoned the right to vote.
It is important to take international law into consideration. That is why Estonia ratified the UN Convention on the Rights of Persons with Disabilities last year, and of course, it is natural to abide by conventions that Estonia is already a party to, such as the UN Convention on the Rights of the Child as well as by various sources of EU law. At the same time Estonia has not yet acceded to the Council of Europe Convention on preventing and combating violence against women and domestic violence, for example.
However, it may be that the international principles, legislation and decision alone are not enough, human rights have to be protected in practice and it has to be done every day. The European Court of Human rights has persistently emphasised in its decisions that the European Convention on Human Rights is not meant to guarantee theoretical or illusory rights, but rights, which are effective and can be put to practice. Often, in order to implement these rights, relevant institutions have to be founded (such as the gender equality council) and the existing institutions have to be supported (for example the Gender Equality and Equal Treatment Commissioner). The role of nongovernmental organisations as well as the public discussion is also important. In that regard year 2012 was a remarkable one as it informed the civil society in Estonia. And an indispensible factor for bringing about respect for human rights is the elementary ethical basis for it in the society.
The European Court of Human Rights was filed 301 new appeals against Estonia in 2012. Last year the European Court of Human Rights rendered 277 judgments against Estonia. 265 applications were declared inadmissible by a judge sitting alone and a committee consisting of three judges, and 4 applications were declared inadmissible by a chamber of seven judges. In addition the European Court of Human Rights made 4 decisions on the substance of the case. In total there were 639 cases against Estonia before the European Court of Human Rights as of January 1, 2013. This is more than the average of Council of Europe member states, and puts Estonia on the 27th place among the 47 member states.
Of the decisions on the substance of the case made at the European Court of Human Rights regarding Estonia a violation was found in one instance, a partial violation in another instance, and that there had been no violation in two instances. European Court of Human Rights decided that Estonia had violated a person’s right to fair trial, because the applicant had no access to documents that were kept in the surveillance file about him. In another case against Estonia the European Court of Human Rights established violations regarding the imprisoned being placed in a restraint bed and because his right of appeal was breached in prison.
At the same time it wasn’t considered a violation of the European Convention on Human Rights for the prosecutor’s office to publish reports about (now already a former) judge, nor in another case to revoke the residence permit of an alien who had been repeatedly convicted by criminal procedure, as well as his expulsion, as it was considered to be justified. All decisions on the substance of the case have undeniably touched upon very important and sensitive areas: surveillance, rights and treatment of imprisoned persons, presumption of innocence and expulsion of aliens. Estonia has executed the decisions of the European Court of Human Rights fairly well. Initial legal protection was applied once to an application that came from Estonia last year. It had been the first time it had been applied to a case regarding Estonia and had to do with the so-called child abduction case, where the returning of the child was stayed. However, the application was later deemed inadmissible. The Grand Chamber of the European Court of Human Rights has not heard an appeal against Estonia yet. All decisions on the substance of the case against Estonia have been made in smaller panels. In addition, the European Court of Human Rights recognized the practice of Estonian courts in that the person who finds that criminal proceedings in his case have lasted an inordinate amount of time, must raise the question in all instances of Estonian courts and only after having done so can have recourse to the European Court of Human Rights.
This report refers to several other shortcomings, which may become the basis of disputes in court in the future. Even though in several areas it has been established that there are problems – “a diagnosis” has been given, the next level has often not been reached – how to “cure” the ills, and what is also very important – how to prevent these problems.
Lately the topic at the European Court of Human Rights has been the right to get to know the truth, whether about historical events, about matters concerning the fight against terrorism and the measures used, the choices and proportionality, information about disappearance of loved ones and the role of state authority in it (for example in Chechnya), about information gathered in the course of surveillance, etc. Even though the European Court of Human Rights has not created a separate right to truth, the court has interpreted the rights in the European Convention on Human Rights in such a way that if the court has found that there has been a case of inhuman degrading treatment and the authorities have not been able to find the causer of this violation, the appellant’s right to truth, to get to know who did this to their loved ones and why has also been violated.
The Estonians, if to believe Anton Hansen Tammsaare, should value truth just as highly as justice. We should not let ourselves be deceived by the fact that we successfully left the totalitarian society a few years ago. Democracy, freedom of expression and information as well as protection of human rights are fragile, especially when times are difficult, and they require constant care. Europe that has been ravaged by crises is unfortunately a fertile soil for unrest and extremism and this is why we need to be especially cautious.
Estonia could mould itself into a truly exemplary country in regards to protection of human rights and in protection of a state based on rule of law, a leading model in Europe. Belonging to the UN Human Rights Council is a good platform for that. We are both small enough and big enough to achieve that. Our most important resource are our people, their education, their abilities and intelligence. Estonia could aim higher than minimum standards. We could export the principles of state based on rule of law and protection of human rights elsewhere in Europe and the rest of the world. It is especially important considering Estonia’s geopolitical location and its neighbouring states, which are of different levels of development.
Professor Julia Laffranque
Judge of the European Court of Human Rights