Freedom of assembly and association

Alari Rammo

2012 went down in history as another year of awakening for the civil society – one of the largest protests since restoration of independence took place and a never before noted outspokenness of citizens could be detected. This probably indicates continued optimism towards the state and society, although such has been the opinion almost every year. As freedom of assembly and freedom of association more specifically face few problems judging from inside Estonia as well as by charts measuring international democracy and freedoms, this chapter also generally discusses events that took place in the third sector. In a democratic e-state more and more discussions and groupings together take place on the internet and in networks, which renders physical gathering and formal grouping less important.

Political and institutional developments

Positive appraisals to civil initiative stemmed from a never ceasing debate over the future of democracy, which was largely fuelled by spirit of protest. The initiative of Constitutional Committee of Riigikogu made in December of 2011 allowing political parties to found Foundations for Developing Democracy (FDD, later Foundations for Developing Outlook) can be considered the ideological source of the tensions. The state budget assigned them appropriations in the worth of 900,000 euros and the main object of discussion became the question why these four organisations were the best to distribute certain outlooks in Estonia or elsewhere. An active discussion with tens and hundreds of participants lasted until the beginning of summer.[1]

In the beginning of 2012 the discussion of public authority[2] and activists and lawyers[3] over whether joining the Anti-Counterfeiting Trade Agreement (ACTA) would influence legislation and practice in Estonia or not started to flare up. The sharply contrasting views of the parties repeatedly brought people to the streets and the politicians’ despaired[4] or failed[5] statements became increasingly de-contextualized memes, only increasing the politicians’ poise of arrogant ignorance, thereby decreasing hope for a rational discussion.

The mutual taking of defensive positions between the governors and more vociferous citizens increased once more due to the political parties’ funding scandal[6] at the end of May, which ended up lasting or over six months. A certain truce was brought on by drawing up of Harta 12[7] in November, the resignation of the Minister of Justice,[8] the so-called Jääkeldri process and creation of Rahvakogu,[9] in order to discuss, in the course of wide-based consultations, at least the questions concerning funding of political parties, political competition, elections and inclusion.

Legislative developments

There were no amendments to regulation regarding freedom of assembly within the previous year. One of the most significant limitations to freedom of assembly is still the obligation to register the assembly with the police in written form at least two hours in advance as per § 7 of the Public Assemblies Act. Other more questionable limitation established in § 6 of the Public Assemblies Act are the conditions set for the organiser of the public assembly, who must be an adult person with active legal capacity, who is an Estonian citizen or an alien staying in Estonia on a long term or permanent residence permit.[10] This means the realisation of the right of everyone stated in § 47 of the Constitution is not guaranteed as it does not extend to persons staying in Estonia on temporary residence permits or visas, and to minors.

The new maintenance of law and order act that had been in preparation since 2007 and which the parliament passed in February of 2011 failed to come into force in 2012. The draft of the implementing provision dropped out of Riigikogu’s procedure in March of 2011 for expiration of composition and the Ministry of Justice sent the draft act amending and implementing maintenance of law and order to another approval round. According to the draft act it should have come into force (and solely invalidated the Public Assemblies Act) 1 June 2013, but the draft act did not even reach the processing round of the parliament within the year. Three authorities failed to approve the draft act, six gave approval with notices. It can, therefore, be concluded that the work is still ongoing and the possible effects of the draft act are too early to tell.[11]

Several amendments to the Non-profit Associations Act, the Foundations Act, the Churches and Congregations Act, which had to do with non-governmental organisations came into effect due to reorganisation of functioning of the commercial register.[12] All new associations (except religious societies, political parties and apartment associations) have to notify the register of their main field of action and the time of beginning and ending their financial year in the interest of a more precise statistics and monitoring.

The limitation to residence (probably for safety reasons) of members of management board of religious societies that had been in force based on § 23 of the Churches and Congregations Act for ten years was made less strict – now, similarly to other forms of association, the residence of at least half the members of management board, in addition to Estonia, may also be another Member State of the European Economic Area or in Switzerland. The motion to amend came from religious societies themselves and the Ministry of Internal Affairs eventually agreed to this, having tried to ban registering of religious societies that were governed from a foreign state as recently as in year 2000. The President of the Republic considered the latter unconstitutional limitation of autonomy of religious societies and refused to proclaim the law.[13]

The limitation to residence is still in force for the ministers of religion – § 20(1) of the Churches and Congregations Act allows only persons who have the right to vote in local government elections to be ministers of religion of a religious association, which means the person has to have a long term or permanent residence permit to live in Estonia.

Court practice

There were no procedures regarding freedom of assembly and association in the Chancellor of Justice’s jurisdiction or in the court practice within the previous year. However, the court practice did contain two judgments about the wider sphere of activities of non-governmental organisations, both of which had to do with right of appeal.

Administrative Law Chamber of the Supreme Court explained the difference between relevant and popular complaint in the discussion of revocation of mining permit that was applied for by the representative of the local village.[14] The chamber found among other things that according to the Århus convention, in questions of environmental protection, it is possible for natural persons to file complaints as representatives of the public without the obligation to prove they represent other residents of the village. On the other hand, according to the convention the village cannot by default be considered to be a non-governmental environmental organisations and the village elder or village representatives to be considered interested representatives of the public as it cannot be established that the village residents have formed an association.

Tallinn Administrative Court[15] also found (the same was confirmed in January of 2013 by the Supreme Court)[16] that upon exclusion of non-profit organisations, foundations and religious societies from a list of associations with income tax incentive only the order of government, but not the resolution of the Estonian Tax and Customs Board to exclude the organisation from the list can be contested in court, as it is an act that does not change the rights of the association. Lower courts had accepted complaints about resolutions of tax administrators.

The new interpretation does make the protection of rights of associations on the list somewhat more complicated. The tax administrators submit their proposals to the Ministry of Finance by June 1^st and December 1^{st [17]} and the resolution comes into effect in the beginning of the following month, often before being published in Riigi Teataja. This means the rights of the association come to an end even before it is notified of the resolution, not to mention before it has the opportunity to challenge it before it comes into force. Procedurally it is even more confusing to challenge a resolution refusing to add the association to the list, as the court does not prescribe the right of appeal to resolutions of tax administrators,[18] but the orders of the government do not include the names of associations not to be added to the list.

Statistics and surveys

The survey carried out by the Centre for Civil Society Research and Development of Tallinn University charted the values and views on civil initiatives.[19] One of the results found that although the views are receptive to “ideals of participation democracy” presented in “the concept of development of Estonian civil society” it does not reflect in activities of persons. Civil initiative is related to social communication rather than getting something done, especially in chiming in in matters of the society. For Russian speaking residents the circle of communication is limited to one’s own family.

It can be concluded that participation in non-governmental organisations is not on the rise in comparison to five years ago. It isn’t hindered by values or views, but rather by demographic factors. The low level of self-participation did not stop the people questioned from being critical of passive members of the society or of the governors for including them. The recommendations of the survey emphasize creating positive cooperative activities, facilitating volunteering, increased participation of Russian speaking residents and working out of approaches outside of organisations.

Other surveys worth mentioning that were carried out in 2012 were Tartu University’s Centre for Applied Social Sciences analyses on citizens’ education and activity of volunteers;[20] analysis of  Praxis Centre for Policy Studies on activity of volunteers;[21] and survey conducted by the Good Deed Foundation, Estonian Social Enterprise Network  and Network of Estonian Non-profit Organizations on social entrepreneurship.[22]

Good practices

A new web environment called Valitsemise Valvurid was brought to life in the beginning of the year in cooperation with Praxis, the Open Estonia foundation and Estonian Public Broadcasting where non-governmental organisations, experts and persons who are interested can appraise the government’s fulfilment of the plan of activities.[23] It is the first attempt to appraise the entire activity of the government in an independent and ongoing manner.

The customary dense media coverage was afforded to  most protests, which probably made a greater impression for the large number of participants and higher level of organisation (for example there were protests at the same time or on the same topic in several places in Tallinn and Tartu). Among others there were protests against ACTA, NATO, the wage gap, unification of schools, European Stability Mechanism, bus lanes and free public transport in Tallinn, study support, amendments to the Collective Agreements Act and fraudulent politics. There were protests supporting Tibet’s rights and the journey of farmers of the Baltic States to Brussels with a tractor in the name of harmonisation of agricultural refunds garnered quite a lot of attention.

People also gathered to support teachers, whose three-day support strike was joined by representatives of other professions in March, the result of which caused the public transportation to stop in the entire capital. The over three week long strike of health care workers in October was even more far-reaching. The strike of the pilots that was announced at the end of the year gave perhaps the most tense impression, which, however, unlike the other strikes did not gather very much support from the public. As usually, the work stoppage was claimed to be illegal by the employers or state representatives, the parties also actively took advantage of the media to shape the public opinion with information suitable for them.[24]

The Chancellor of Justice analysed the term for advance notice of support strikes after the debates in March and once again found that a three-day advance notice is unconstitutional, as providers of vital services cannot re-organise their work in that time.[25]

A big step was taken in organising of the funding of non-governmental organisations, which had taken almost ten years, for which the Ministry of Internal Affairs ordered guidance materials from Praxis.[26] The new good engagement practices, which were approved by the government at the end of 2011 and good rules of legislative drafting[27] which came into force in 2012, and which establishes the methodics for appraising effects[28] as of 2013 can also be considered to be positive advancements. All that should increase the quality of legislative drafting in the future, especially via more effective engagement and appraisal of effects.

Public discussions of note

In the course of the year the discussion over Foundations for Developing Democracy turned into a wider discussion over funding of political parties themselves, possibilities for reducing campaign costs, specification of budgetary support and potentially tying that to the ability to collect membership fees. Finally the debate reached the more general topic of political competition, where it was also discussed whether a political party should be allowed to be founded if there are fewer than 500 members, also the possible increase of budgetary support for political parties that are not in the parliament.

The discussion was also influenced by the funding scandal of the Reform party. The conclusion of the enquiry and publishing of a regulation to that effect by the prosecutor’s office, which were later joined by interrogation records, only exacerbated the debate. The public was probably irritated by the rigid, self justifying poise of the party and the attempt to marginalise the protesters with rhetoric,[29] but also obstructing the protesters by registering a fictitious meeting in front of the office of the party beforehand. Such competitive registration of public assemblies, which allows holding just one protest at the same place was already condemned in the human rights annual reports 2008-2009 and 2010 and by the Chancellor of Justice.[30]

Shortly after publication of Harta 12 (which gathered 17,000 signatures in support on the internet in a month)[31] president Tooma Hendrik Ilves assembled the parties, and the sources of main tensions regarding elections, forced politization, funding of political parties, etc were finally put to discussion at Rahvakogu. Along with shortcomings of representative democracy a constant debate over questions of ethics took place, as precisely the suspicions of lying turned out to be central in the financing scandal, and created discussions over another disrupted enquiry of suspicion of corruption. In the light of all this, the drawing up of a code of ethics for members of Riigikogu proposed by Transparency International Estonia understandably did not proceed too swiftly.[32]

Trends in 2012

2012 was the first year in the history that the number of non-governmental organisations registered in Estonia decreased.[33] Even though more than a hundred new organisations were added each month the register deleted nearly three and a half thousand organisations, most of which were organisations that had repeatedly not filed their annual reports.

Vagueness in legal environment of activity of non-governmental organisations, where regulation is often not clear, the interpretations of administrative organs differ and there is a lack of court practice could be considered an increasing trend. Grey areas, most of all in taxation of volunteers’ activities and social enterprises, as well as years’ long opposing opinions between the Estonian Tax and Customs Board and Ministry of Finance on for who and on what conditions the income tax incentives are meant for can be pointed out. Despite the specific proposals of the Minister of Regional Affairs Siim Kiisler that were drawn up in March,[34] the government could not agree upon a new vision by the time specified – by the end of the year – in its activity plan.

The new interpretation of the Public Procurement Act given by the Ministry of Finance did not make the situation clearer regarding the effect of it on non-governmental organisations as possible suppliers.[35] The obligation of non-governmental organisations, which are mainly supported by public funds to adhere to regulation of public procurement also in using donations and their own proceeds, can be considered a breach of freedom of association. The Chancellor of Justice replied to the application of the Network of Estonian Non-profit Organizations for survey of norms that since the relevant provision of the Public Procurement Act defining suppliers is based on the EU directive, making it correspond with the Constitution is not in the jurisdiction of the Chancellor of Justice.[36]

The practice in Tallinn continued where persons with Keskerakond background organised a protest against the government and invited participants using resources of the city government, and the persons inviting protesters were the authorities.[37] The information was spread by the official press service[38] as well as regular officials and high ranking politicians.[39] The city of Tallinn also organised a sort of protest of solidarity[40] at the time of the teachers’ strike in March and members of Keskerakond argued the Security Police in court whether and in whose interest and what kind of lobby work was done with the Legal Information Centre for Human Rights precisely.[41] The background of the NGO Russian School in Estonia has also remained interesting over the years.[42] Such occurrences play their part in confusing the understanding of to what extend certain associations and assemblies represent genuine civil initiative and when they are mere representations of orchestrations of opposing political forces.

The topic of merging raised similar questions, alongside the usual discussion about greater involvement of the civil society in politics, the question of redefining the role of members of society and re-thinking representation were repeatedly discussed. For example, one of the topics causing perplexity to members of Riigikogu at the discussion of development of the civil society was: just who does Tarmo Jüristo, who spoke of vertical and horizontal involvement, himself represent.[43] The political parties were themselves confused on several other occasions as to how to take the “voices from civil society” who had not gathered into organisations or did not have an apparent common denominator, a leader, nor a plan to enter party politics. There are quite a few like that: the single protesters against Foundations for Developing Democracy, the persons who signed Harta 12, the Internet Society Estonia Chapter and the Memokraat “group”.[44]

Many of these questions were answered by Mikk Mägi[45] who organised a protest against deceitful politics, thereby proving, as an unknown person to the public, that anyone can be an active citizen and be as effective in informal networks as well as official organisations.

Recommendations

• Legal environment of activity of non-governmental organisations must be specified and interpretations by administrative organs of provisions of law must be harmonized, including the understanding regarding taxation of volunteer work and social enterprises and the extent of income tax incentives.
• Limitations to everyone’s right to public assembly set by the Public Assemblies Act must be reviewed. For example, as a result of limitations set by § 6 this right does not belong to everyone in Estonia, but to a limited circle of persons. This is not in coordination with the human right to public assembly.