Alari Rammo
Freedom of assembly and freedom of association are close concepts, which are protected by the Constitution of the Republic of Estonia so that everyone can come together peacefully, hold meetings and form associations. In a wider sense these fundamental rights also mean the opportunity to stand up for individuals’ interest and speak up in politics, thereby guaranteeing pluralism that is necessary for democracy.[1]
Political and institutional developments
The main events in the period under discussion took place in livening up of political competition, which was given an extra impulse by Rahvakogu in 2013. The amendment[2] to act of law, which came into force in January of 2014 regarding reduction in minimum number of members brought two new political parties to the scene – the Free Party, which was largely created on the basis of members that left the Union of Pro Patria and Res Publica, and the Party of People’s Unity (RÜE), which was headed by Kristiina Ojuland who had been expelled from the Reform Party.[3] The Free Party made it into the parliament at the 2015 general elections with nearly 9% of votes.[4] The People’s Party of Unity and Estonian Greens, which had made it into Riigikogu earlier were left out with 0.4% and 0.9% of votes respectively. Then again, the Conservative People’s Party of Estonia, which had been created from Rahvaliit returned successfully, gaining 7 seats with 8.1% of the votes. Therefore, instead of the four parties of the previous composition of the Riigikogu, there are again six parties, and the phenomenon of cartel parties is disintegrating.
With the new composition of the Riigikogu the provisions of the Political Parties Act on allocations from the state budget also came into force in 2015. If earlier the parties that did not exceed election threshold received tax payers’ support upon gathering 1 or 4% of the votes respectively 9578 and 15,978 euros, then now the amount for gathering 2–3% of votes is 30,000 euros, with 3–4% of the votes 60,000, and 4–5% of the votes 100,000 euros a year.
The life of political parties has not become easier, however, since the increasingly active Committee for monitoring political parties’ financing (ERJK) has been bolder at taking to task those who operate on the borders of the law. For example, several precepts were made about using the tax payers’ money on election campaign advertising in Tallinn and Valga. Matters have mostly been taken to court, the debate is ongoing.[5] Among other things the ERJK analysed whether the activity of Foundation for Protecting Family and Tradition (SAPTK) before the elections qualifies as forbidden donation, as the association produced and distributed materials recommending certain candidates.[6] Such practice has not been conducted by a NGO is Estonia before.
Legislative developments
In March of 2014 another proposal of Rahvakogu became law, according to which the parliament is obliged to hear collective applications with at least 1000 signatures that meet necessary requirements.[7] This opportunity was taken advantage of on a few occasions over the year and a half, absence of a convenient digital signature seemed to remain one of the obstacles.
On 1 July 2014 the new Law Enforcement Act finally came into force, which also contains provisions on organizing a public meeting.[8] More has been written on this act of law, which has been in preparation and in waiting to be brought into force, in 2011 and 2013 annual human rights reports.
In 2015, after years of debate the rather much changed § 11 of the Income Tax Act came into force, which makes application for income tax incentive for NGOs somewhat clearer and certainly faster and less bureaucratic.[9] The act also clarified several other grey areas regarding statuses of NGOs, among them the issue of giving another legal person assets in the course of conducting objective specified in the articles of association, which is now more clearly exempt from tax. The new government also (in order to fulfil its promises) further reduced the upper limit of private persons’ taxable income (from 1920 euros to 1200).[10] The incentive for natural persons to make donations has thus been brought to a minimum with tax policy.
Court practice
In 2014 the Civil Chamber of the Supreme Court made a somewhat unexpected, but a logical judgment, as for several decades nobody had challenged the requirement in the Non-profit Associations Act that the name of the non-profit association shall contain an appendage referring to the fact that this is an association of persons.[11] The applicant used the abbreviation MTÜ (the English equivalent for NGO), which the registration department of the County Court nor the Circuit Court found suitable. The Supreme Court, however, found that although unlike the Commercial Code the Non-profit Associations Act does not establish using abbreviations as part of the name, such interpretation cannot be excluded. In the appraisal of the Civil Chamber the abbreviation MTÜ is in the orthological dictionary as well as general use, therefore it refers to an association of people and is permissible.
In May of 2015 the Administrative Law Chamber of the Supreme Court made the first substantive judgment on interpreting § 11 of the Income Tax Law, or the meaning of “public interest” and “charitable”.[12] The judgment annulled deletion of Arstide Täienduskoolituse Fond (fund for doctors’ in-service training) from the list of non-profit associations, foundations and religious associations, which may open the possibility for other associations that have come across as business associations so far, in health care as well as other areas that have constitutional protection.
The Supreme Court, upon the application of Chancellor of Justice,[13] found in March of 2015 that three day giving notice of support strike is not lawful.[14] The topic has been up for discussion for years (see annual report for human rights 2013) and although the Constitutional Review Chamber gave the parliament four months to bring the § 18 (3) of the Collective Labour Dispute Resolution Act into concordance with the constitution, it was, nevertheless, not done. As a result, since July of 2015, after the provision was repealed, there is no term for advance notice at all.
Statistics and surveys
Several survey reports were published within the period under focus: Tallinn University published the survey conducted every five years on institutionalization of citizen initiative,[15] Linnalabor in cooperation with Kodukant analysed the current situation of communities,[16] Praxis researched participation in voluntary activity.[17]
All these reports, along with the analysis of the financial year, which had not been done before, were gathered together by EMSL for an overview of the current situation of the civil society.[18] The overview revealed a standstill as well as clear regression in several important figures: within a decade the average number of members of NGOs has been halved, and the number of active members is three times smaller. The income of half the NGOs is less than 5500 euros a year, the income of quarter of the NGOs is more than 11,000 euros a year. Half the NGOs have up to two employees, 4% have more than three employees, around a thousand NGOs pay their management board. In other words, of nearly 10,000 NGOs operating in public interest that have been registered, only probably one or two thousand are active.
It cannot be said that civil activity is on decline, though in institutional form it is true. It can be presumed that citizens are more active in one-off and informal networks.
A standstill was also detected in the 2014 Freedom House report, which also stated that Estonia is a state that has strong democracy, is in second place among post-communist states, after Slovenia.[19] Estonia has been stuck on the same level for ten years and the problem areas are the level of democracy of governance and corruption. Democracy rating has fallen for many states in the world, which, however, is no excuse if no effort is put in for democracy, said the authors.[20]
Good practices
In September of 2015 the Let’s Do It Foundation in cooperation with the Estonian Debating Society and several other partners, and with the support of EEA NGO Fund initiated a new platform for community e-decision-making Citizen OS, which allows anyone to initiate discussions, participate in them and digitally sign decisions.[21] The environment opens up new opportunities for using the aforementioned petition rights as well as hopefully making signing the minutes of general meetings of NGOs and the list of participants more convenient. The latter is still obligatory at making an application for register entry.
In June of 2014 the government authorized the international Open Governance Partnership initiative Action Plan for Estonia.[22] Activities for inclusion, transparency and developing public services are intended for increasing the quality of governance, however, the interim report published in September of 2015 has not yet shown remarkable progress.[23] To be fair, the funding of the action plan is insufficient and significant change shouldn’t be expected.
Noteworthy public discussions
One of the greatest public challenges for civil society and the government was the Work Capacity Reform, where the protests of organizations of disabled persons were not listened to, but the government itself ended up delaying the reform plan. Several speakers for disabled persons run as a candidate for the parliament on the same steam.
As a separate topic before the general elections there was discussion on the openness and inclusion of the parliament itself, where the public outrage stopped some of the ideas that were born from the idea of being closed off (destruction of committee’s session recordings), but the new composition has not brought this topic up yet.[24]
In 2014 as well as in 2015 the society was included in extremely polarizing debates on fundamental rights as well as democracy in the wider sense: first the Civil Partnership Act and then the issue of receiving refugees. In both cases political parties and NGOs formed into irreconcilable sides, and it can be expected that distrust of members of the society for their fellow citizens, NGOs as well as the public authority increased.
Although it would be founded in both cases, it is too easy to place blame on scarce and belated government communication. It is a much more interesting question – which will hopefully be further researched in the future – why guaranteeing the rights of a very small number of people created such a passionate reaction and hate speech in the society.
Trends
Two cases concerning donations can be considered some kind of weather vane if not a trend. In the course of the aforementioned discussions another interesting question arose on the topic of accountability of NGOs: how transparent and public should a private initiative civil organisation be? The extremely successful SAPTK led by Varro Vooglaid became a specific example in 2014, which refused to publicize the names of persons who had made donations to it.[25]
On the same topic of donations an unusual move was made by Swedbank, which publicly apologized at the end of 2014 and asked back the 5000 euros it had donated to Aadu Luukas Foundation when it became apparent that the same SAPTK, which does not share the values of the Swedish bank, which among other things include equal opportunities and non-discrimination, received Luukas’ mission award.
Although there hadn’t been notable scandals in regards to donating for years, in 2014 EMSL put together the good practice for gathering donations,[26] joining of which is already presumed also by Swedbank from candidates in their donation environment.
Recommendations
- Even if the stagnant project of codification of associations law[27] doesn’t come to pass in the planned extent, improvement of the legal environment cannot be limited to competitive business environment, for which a steering group was called together in 2015.[28] Acts of law regarding NGOs and foundations have changed more slowly than the Commercial Code and are therefore partially obsolete. There are also excessive regulations and needless bureaucracy – in organising internal matters of associations as well as in communicating with the departments of the register.
- The public sector has to be persuaded to apply the guidance material of financing NGOs more actively in order to achieve more transparency and decrease bureaucracy and danger of corruption.[29]
[1] Kask, O. and others. PS § 47, 48. Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne [Commented issue of the Constitution of the Republic of Estonia]. Tallinn: Juura 2012.
[2] Erakonnaseadus [Political Parties Act]. State Gazette I, 05.02.2014, 1.
[3] https://ariregister.rik.ee/erakonnad.py (30.09.2015).
[4] http://rk2015.vvk.ee/voting-results.html (30.09.2015).
[5] http://www.erjk.ee/et/dokumendiregister/otsused-ja-ettekirjutused (30.09.2015).
[6] Jaakson, T. „Komisjon: SAPTK-i voldikute näol oli tegu valimisreklaami ja keelatud annetusega“ [Commission: SAPTK’s brochures were voting advertising and forbidden donations]. AK 18.03.2015.
[7] Märgukirjale ja selgitustaotlusele vastamise seadus [Response to Memoranda and Requests for Explanations Act]. State Gazette I, 01.04.2014, 1.
[8] Korrakaitseseadus [Law Enforcement Act]. State Gazette I, 13.03.2014, 4.
[9] Tulumaksuseadus [Income Tax Act]. State Gazette I, 11.07.2014, 5.
[10] Tulumaksuseadus [Income Tax Act]. State Gazette I, 30.06.2015, 1.
[11] Civil Chamber of the Supreme Court 3-2-1-47-14.
[12] Administrative Law Chamber of the Supreme Court 3-3-1-10-15.
[13] Toetusstreigist ette teatamise tähtaeg [term for advance notice for support strike]. Chancellor of Justice application no. 15, 05.11.2015.
[14] Constitutional Committee of the Riigikogu 3-4-1-49-14.
[15] Rikman, E. and others. „Kodanikualgatuse institutsionaliseerumine Eestis 2014″ [Institutionalisation of citizen initiative in Estonia 2014]. Tallinna University. 2014.
[16] Vihma, P., Lippus, M. „Uuringuraport “Eesti kogukondade hetkeseis“ [Research report. The situation of communities in Estonia at the moment.]. Linnalabor. Kodukant. 2014.
[17] Uus, M., Hinsberg, H., Mänd, T., Batueva, V. Vabatahtlikus tegevuses osalemine Eestis 2013 [Participation in voluntary activities in Estonia 2013]. Poliit.Ülikool 2014t. . mi ja keelatud inna linnas, kohtuvaidlused on pooleli.antud ühingust on inna linnas, kohtuvaidlused on pooleli.antud ühingust on
[18] Kübar, U., Rammo A. „23 küsimust Eesti vabakonna kohta“ [23 questions about civil society in Estonia]. Hea Kodanik 5 (63). EMSL. 2014.
[19] „Nations in Transit.” Freedom House. 2015.
[20] Vinni, R. „Eesti demokraatia areng tammub paigal“ [Estonian democracy is standing still]. Vikerraadio päevakommentaar [radio commentary]. 21.08.15.
[21] https://citizenos.com (30.09.2015).
[22] Avatud Valitsemise Partnerlus [Open governance partnership]. Government Office. https://riigikantselei.ee/et/avatud-valitsemise-partnerlus (30.09.2015).
[23] „Eesti tegevuskava avatud valitsemise partnerluses osalemisel. Tegevuskava täitmise vahearuanne“ [Open Governance Partnership initiative Action Plan for Estonia. Interim report on fulfilling the action plan]. Government Office. 2015.
[24] Avatud valitsemise partnerluse ümarlaua pöördumine Riigikogule [Open Governance Partnership roundtable’s address to Riigikogu]. 23.01.15.
[25] Kübar, U. „Hooplevate ja salatsevate annetajate vahel“ [Between the bragging and the secretive donors]. Vikerraadio päevakommentaar [radio commentary]. 1.08.2014. Available at: http://uudised.err.ee/v/arvamus/acf67653-0374-44f1-8b30-2d8c8e268dd1.
[26] “Annetuste kogumise hea tava” [good practice for gathering donations]. Available at: http://ngo.ee/annetamine (30.09.2015).
[27] Ühinguõiguse revisjoni ettevalmistamine [preparation for revision of association law]. Ministry of Justice. Available at: http://www.just.ee/et/eesmargid-tegevused/oiguspoliitika/parem-oigusloome/uhinguoiguse-revisjoni-ettevalmistamine (30.09.2015).
[28] Available at: http://adr.rik.ee/jm/dokument/4425340 (30.09.2015).
[29] Rahastamine [Financing]. Ministry of the Interior. https://www.siseministeerium.ee/et/tegevusvaldkonnad/kodanikuuhiskond/rahastamine (30.09.2015).
