6 - chapter

Freedom of assembly and association

Author: Alari Rammo

 

Freedom of assembly stated in section 47 of the Constitution[1] is used to protect pluralism necessary in a democratic state, allowing all interest groups to publicly form and express their opinions.[2] The authors of the annotated edition of the Constitution now mean by assembly essentially all kinds of peacefully organised events for the purpose of forming views and attitudes, and expressing them – from song festivals to mass demonstrations and spontaneous meetings.

This right may be restricted in cases stated in law to safeguard national security, maintain public order, uphold public morality, ensure the safety of traffic and the safety of participants of the meeting, or to prevent the spread of an infectious disease. In Estonia the restrictions are stated in the Law Enforcement Act and in legislation of the local authority regarding public order, which are moderate and primarily focused on traffic safety and people’s safety at meetings in public places. Freedom of assembly also includes the positive obligation of the state itself to guarantee safety at assemblies.[3]

Freedom of association, which is closely related to freedom of assembly, but which has a wider area of protection is established by section 48 of the Constitution, the goal of which is to allow persons to form associations, foundations or civil law partnerships – permanent organisations, in order to protect or promote their interests.[4] Restrictions can be posed on only the associations possessing weapons, and military organisations, on memberships to political parties and in case of aiming to change Estonian constitutional order by force, or if there are contradictions with a law providing criminal liability. Associations and federations can be dissolved only by the court.

In Estonia the relations between the public authority and citizens’ initiative are in addition to a functioning legal environment framed by the Estonian Civil Society Development Concept[5] approved by the Parliament in 2002, which is the basis for civil society development plan formed since 2004 at curation of the Ministry of the Interior. These documents are complemented by government-approved good practices on inclusion and funding of non-governmental organisations.[6]

Political and institutional developments

Even though the world is looking on with worry at the shrinking of Civic Space right here in Europe as well, to the point of predictions that free democracy and human rights might have been a passing phase in global history,[7] there has been no tangible regression in Estonia. The new Government that assumed office in November of 2016 rather continued liberal and even more social policies, making several promises in their action programme, which the third sector has asked for for years.[8]

One of the more important activities planned is to organise funding of NGOs by making it more stable and goal-driven; also to create a clearer policy for supporting inclusion and participation of NGOs, and facilitate social entrepreneurship. Specific activities that have been named include the following:

  • analyse and make proposals for diversifying funding sources for NGOs;
  • increase strategic partnership between the public sector and the NGOs;
  • develop proposals for diverting funds allocated via the Council of the Gambling Tax;
  • realise the Action Plan for Open Government Partnership for 2016–2018;
  • take into account the proposals of the task force for developing public sector and social innovation;
  • carry out a review of company law.

These activities are largely the same as the proposals of the Network of Estonian Nonprofit Organizations, but not entirely.[9] Half the activities have to do with funding, where the source diversification is meant as incitement to include more private funding via tax policy. The other two activities have to do with organising funding – to dissolve the Council of the Gambling Tax consisting of politicians, and use the money more for activity support (strategic partnership). The last three activities were taking place already anyway and will be discussed in the following subchapters.

Legislative developments

The Estonian legal environment has remained relatively favourable for more than twenty years in the context of both observable freedoms, where only cosmetic changes have been made. Although, the volume and level of detail has constantly increased, inevitably making navigating the legal environment more difficult. Since there are few specialized lawyers and little court practice in issues related to the NGOs, the organizations themselves solve many of the problems themselves by interpreting the law, often leaving, for example, the tax risks.

The requirement in company law that at least half the members of the management board have to reside in the European Economic Area was also relaxed for NGOs in the course of discussing e-residency issues, making Estonia even more favourable as headquarters for people fighting against, for example, regimes east of here, who cannot be active in their homelands.

In July of 2017 the long-awaited by the NGOs amendment to the Income Tax Act came into force, section 13 subsection 3 clause 17 of which allows organisations that have income tax incentive to pay posted volunteers exempt from tax daily allowance.[10]  So far the opportunity had been available only for persons with contracts of employment, and especially organizations active in development cooperation had to also pay income tax on volunteers on longer posts, which paradoxically made involving free workers in foreign countries more expensive than using paid workers.

Other repeated proposals for facilitating donations and simplifying income tax incentives went unheeded again by the Ministry of Finance in 2016.[11] Nevertheless, the government that assumed office in 2016 did restrict deductions from income by imposing a special limit of 300 euros to mortgage interests. The amendment theoretically allows for greater tax incentives on donations than 1200 euros total restriction, although the limits also include training expenses.

Review of company law, which had been initiated years ago and stopped for a while was once again picked up in 2016, but an outcome is not expected until 2020.[12] Of the expectations of NGOs the issues that made it into the brief were: finding a solution to social enterprises’ legal status, easier communication with the Business Register, and less regulation of internal matters of organisations.

The new consolidated text of the Public Procurement Act came into force in September of 2017, which, for the first time, makes it possible to reserve procurement contracts in social spheres, including for NGOs. The list of procurement procedures now includes innovation partnerships, which allows, also largely in cooperation with NGO service providers, to develop the new and better service before procurement.[13] This is not an obligation, but an opportunity, implementation of which requires contracting authority’s will, skills and courage.

Court practice

In 2016 the first court decisions came into force qualifying the campaign organised from public funds ahead of the 2013 municipal elections as election advertising and forbidden donations, and requiring refund of expenses. Among the discussions regarding mainly Tallinn and the Centre Party the one involving Edgar Savisaar’s obligation to refund 116,643 euros[14] became the best known. Along with earlier court cases arose the public discussion on the need for possible restrictions on political parties, candidates and public sector authorities convicted in criminal procedures.

As of 2014 the penal law no longer prescribes compulsory dissolution for unconstitutional activities, terror offences, promising or arranging a bribe, and for money laundering. Neither does a criminal conviction prevent a person from running as a candidate or belonging to municipal council, or working at local governments and their divisions, which was discussed ahead of the 2017 elections and the Chancellor of Justice proposed imposing certain restrictions.[15]

Economic activity in non-profit organisations was discussed in two court decisions – not to remarkable effect, but rather as confirming the practice, as for some people non-profit cannot include earning any kind of profit. In an unprecedented move the proceedings in County Court will once again continue regarding an application by a private limited company for compulsory dissolution of a competing non-profit association.[16] The outcome may provide interesting instruction on which conditions a non-profit association may abuse its legal form of action to gain competitive advantage, and when can a violation indeed lead to compulsory dissolution. There is also discussion over how to interpret section 1 of the Non-profit Associations Act according to which objective or main activity shall not be the earning of income from economic activity. The definition of ‘objective’ as well as ‘the main activity’ separately and together offer rather different interpretations.

With its second judgment the Supreme Court once again unequivocally affirmed that entrepreneurship is not precluded from non-profit associations, and may be 100% included, along with the right to deduce the entire input value added tax.[17] Such interpretations pave the way to clarification of status of social entrepreneurship, who have thus far been mainly ineligible for enterprise support because of their form of action even if purposes of support measures are achieved.

Statistics and surveys

There were few relevant surveys carried out in the period of interest. Estonia continued to be the first among the Eastern European and former Soviet states in the CSO Sustainability index in 2016, however, after eight years its grade dropped by 0.1 points on a seven-point scale.[18] The drop was caused by increase of chasm between strong organisations and those in a precarious state, although, the evaluation is based on focus group interviews, and indeed even in the report it is called cognitive rather than based on reason.

They survey on Russian working language NGOs’ operational capacity conducted on the order of the National Foundation of Civil Society conceded, based on interviews, as the major shortcoming little association between associations of different working languages.[19]  Even though in the last few years information in Russian is more accessible for NGOs and provision of support services in Russian has continued, it is necessary to consider the habits of information consumption of the Russian-speaking population – the older people do not use the internet, they do not feel they are the target group for the news, and differentiating between broadcasting channels may reproduce separation of information spheres. The recommendations particularly point out importance of motivating umbrella organisation to include Russian-speaking colleagues more in order to create more joint activities and a shared information sphere.

Good practices

Since 2016 the Centre of Registers and Information Systems enables also the NGOs to use the inexpensive accounting software created by the government, even though access was limited to small enterprises in the beginning. The government deserves recognition in creating such opportunities in the increasingly digital age of administration and with the adoption of e-invoicing in 2017. At the same time, in 2017 the service bureaus of county court registration department were closed, which may make life inconvenient for people who do not use internet and consider notaries to be too expensive.

The pessimistic predictions in the overview of the previous period (see Human Rights in Estonia 2014–2015) held true and the Open Governance Partnership initiative Action Plan for Estonia did not bring about significant or ambitious initiatives.[20] Perhaps the only larger activity was the founding of web environment www.rahvaalgatus.ee in 2016 by the Foundation Estonian Cooperation Assembly (established under the President) in cooperation with CitizenOS, which makes it convenient to hold discussions and gather the necessary 1000 digital signatures necessary for the Parliament to accept a petition. The first topic of discussion was solving problems related to aging of the population.

The Ministry of the Interior ordered methodology with which to evaluate appropriateness of state support for NGOs to principles of funding, from the University of Tartu in 2017 as a continuation of the Network of Estonian Nonprofit Organizations shadow report[21]. Since more governmental authorities will be using the comprehensive SAP software it will soon be possible to analyse the funding data itself for the first time.

Noteworthy public discussions

The period, but maybe also the current decade in general can be characterized by the fact that the larger the topic or problem, the more faith-based the public discussions and polarization between the state and the citizens. While before the polarizing topics were same-sex cohabitation and immigration policy, in 2016–2017 the same topics were cause for fierce debate as were for example the following topics: forestry policy, high-speed rail link Rail Baltica, Haabersti crossing and construction of Reidi road in Tallinn. People actively take part in discussions, however including them is clearly becoming increasingly difficult for the public authorities if each interest group has suitable experts and surveys at hand that they passionately make use of. The immigration discussion turned somewhat more positive after the Human Development Report was published in the summer of 2017, when the decrease of tax payers and need for imported workers was confirmed by entrepreneurs and politicians alike.

Since it was mentioned above that associations attempting to violently overturn constitutional order are forbidden, a more worried citizen might pose the appropriate question regarding the Conservative People’s Party of Estonia (EKRE). Namely, constitutional order is understood to mean not only the changing of the regime for example, but all the important constitutional values, which are the general principles of the Constitution (freedom, equality, human dignity, democracy, social democratic government founded on the rule of law, separation of powers) and existence and functioning of constitutional institutions in their essence.[22] At the same time or even opposing the discussion that arises now and again on for example greater regulation of hate speech EKRE has not held back with its own rhetoric. The party has expressed an expectation at a Parliamentary session that “judges’ heads will roll” as well as fundamental opposition to liberal democracy.[23] Although these points of view are not in concordance with values protected by the Constitution it cannot yet be claimed that in addition to colourful use of language EKRE as an organisation is attempting to violently change these values.

Trends

They say Estonia is ready, but the period under review can be characterized with following words: chaos, panic and confusion. Presidential and municipal elections took place, there was a change of government along with several new tax ideas and preparations for Administrative Reform, which forms 79 rural municipalities out of more than 200. Moreover, for many it was confusing even in September of 2017 what will happen in January when in addition to new borders to rural municipalities the county governments will disappear and all kinds of local and regional cooperation will have to be rebuilt in the light of changing roles up to the design of public services, not to speak of inclusion of citizens and funding of NGOs in new regions.

Recommendations

  • Establish clear rules on inclusion of citizens and their associations as well as rules on funding in the new local authorities and local authorities’ associations, which follow the guidelines for funding for NGOs created on the initiative of the Ministry of the Interior.[24]
  • Continue making state funding of NGOs more transparent and independent, this includes ending allocation of protection money to activities of Council of the Gambling Tax at the Parliament.
  • Finally make use of the existing database on funding of NGOs by tying accounting information with document registers of agencies (applications, protocols, reports) and the Business Register for even greater transparency and displaying persons and connections between persons.
  • Further develop opportunities of e-democracy in addition to the rahvaalgatus.ee website, because the participation website osale.ee is essentially not used and the information system for draft acts has not been developed for years.
  • Bring back the discussion on establishing lobbying rules to better achieve a balance in business and public interests in policy shaping.

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[1] Põhiseadus [Constitution of the Republic of Estonia]. 1992. State Gazette 1992, 26, 349. Available at: https://www.riigiteataja.ee/akt/PS#para47

[2] Madise, Ü. and others. § 47. Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne. [Annotated edition of the Constitution of the Republic of Estonia] Tallinn: Juura 2017. Available at:  http://www.pohiseadus.ee/index.php?sid=1&pt=&p=47

[3] Madise, Ü. and others. § 47. Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne. [Annotated edition of  the Constitution of the Republic of Estonia] Tallinn: Juura 2017. Available at: http://www.pohiseadus.ee/index.php?sid=1&pt=&p=47#c14

[4] Eesti Vabariigi põhiseadus [Constitution of the Republic of Estonia]. 1992. – RT 1992, 26, 349. Available at: https://www.riigiteataja.ee/akt/PS#para48

[5] Eesti kodanikuühiskonna arengu kontseptsiooni heakskiitmine. [Approval of the Estonian Civil Society Development Concept] State Gazette I 2002, 103, 606. Available at: https://www.riigiteataja.ee/akt/231276

[6] Available at: https://www.siseministeerium.ee/et/eesmark-tegevused/kodanikuuhiskond/eesti-kodanikuuhiskonna-arengu-kontseptsioon

[7] Mölder, M. Martin Mölder: Tulevikupoliitika – pessimistlik kontseptsioon.[Martin Mölder: politics of the future – pessimistic concept]. Postimees. 07.10.2017. Available at: https://arvamus.postimees.ee/4265659/martin-molder-tulevikupoliitika-pessimistlik-kompositsioon?_ga=2.9980726.2020760289.1508828585-886796413.1505379449

[8] “Vabariigi Valitsuse tegevusprogrammi 2016-2019” kinnitamine. [Approval of Government’s Action Programme for 2016–2019]. State Gazette III, 29.12.2016, 1. Available at: https://www.riigiteataja.ee/akt/329122016001

[9] Vabaühenduste liidu ettepanekud koalitsioonileppesse [Proposals of the Network of Estonian Nonprofit Organization for the coalition agreement]. 14.16.2016. Available at: http://heakodanik.ee/uudised/vabauhenduste-liidu-ettepanekud-koalitsioonileppesse/

[10] Tulumaksuseaduse muutmise ja sellega seonduvalt teiste seaduste muutmise seadus [The act amending the Income Tax Act and other associated acts]. State Gazette I, 07.07.2017, 3. Available at: https://www.riigiteataja.ee/akt/107072017003

[11] Ettepanekud vabaühenduste tegevust puudutavate tulumaksuseaduse sätete muutmiseks. Siseministri kiri 1-21/241-1 rahandusministeeriumile [Letter of Minister of Interior Affairs to the Ministry of Finance] 22.11.2016. Available at: https://adr.siseministeerium.ee/sisemin/dokument/853837

[12] Available at: https://www.just.ee/et/eesmargid-tegevused/oiguspoliitika/kodifitseerimine-ja-oigusloome-arendamine/uhinguoiguse-revisjon

[13] Riigihangete seadus. [Public Procurement Act]. 2017. – State Gazette I, 01.07.2017, 1. Available at: https://www.riigiteataja.ee/akt/RHS

[14] RKHKo 3-3-1-50-16. Available at: https://www.riigiteataja.ee/kohtulahendid/detailid.html?id=206133063

[15] Korruptsiooni ohjeldamine kohalikus omavalitsuses [Curbing corruption at local authorities]. 13.09.2017. Available at: http://www.oiguskantsler.ee/sites/default/files/field_document2/Korruptsiooni ohjeldamine kohalikus omavalitsuses.pdf

[16] RKTKm 2-16-17452. Available at: https://www.riigiteataja.ee/kohtulahendid/detailid.html?id=214187501

[17] RKHKo 3-3-1-10-16. Available at: https://www.riigiteataja.ee/kohtulahendid/detailid.html?id=206132813

[18] 2016 CSO Sustainability Index for Central and Eastern Europa and Eurasia. USAID 2017. Available at: http://heakodanik.ee/vabauhenduste-elujoulisuse-indeks/

[19] Nimmerfeldt, G. and others. Projekti „Vene töökeelega vabaühenduste tegevusvõimekuse uuring“ aruanne [The report of project on occupational capability of NGOs’ with Russian working language]. Tallinn University Institute of International Social Studies. 2016.

[20] 2016 CSO Sustainability Index for Central and Eastern Europa and Eurasia. USAID 2017. Available at: http://heakodanik.ee/vabauhenduste-elujoulisuse-indeks/

[21] Lauring, M. and others. Variraport vabaühenduste riigieelarvest rahastamise juhendi järgimisest 2013-15. [Shadow report on following the guideline for funding NGOs from state budget] Tallinn: EMSL 2016. Available at: http://heakodanik.ee/rahastamise-variraport/

[22] Madise, Ü. and others. § 48. Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne [Annotated edition of the Constitution of the Republic of Estonia]. Tallinn: Juura 2017. Available at: http://www.pohiseadus.ee/index.php?sid=1&pt=&p=48#c17

[23] Helme, M. Mart Helme vastab Kersti Kaljulaidile: Meie ei toeta liberaalset demokraatiat, sest see moonutab demokraatia mõistet [Mart Helme’s answer to Kersti Kaljulaid: We do not support liberal democracy as it distorts the meaning of democracy]. Delfi. 06.10.2017. Available at: http://www.delfi.ee/news/paevauudised/eesti/mart-helme-vastab-kersti-kaljulaidile-meie-ei-toeta-liberaalset-demokraatiat-sest-see-moonutab-demokraatia-moistet?id=79751310

[24] Matt, J. and others. Ühenduste rahastamise juhendmaterjal [Guidelines for funding of associations]. Tallinn: Praxis Center for Policy Studies. 2013. Available at: https://www.siseministeerium.ee/sites/default/files/dokumendid/yhenduste_rahastamise_juhendmaterjal_parandatud.pdf


Author

  • Alari Rammo on lõpetanud Tartu Ülikooli ajakirjanduse ja kommunikatsiooni osakonna ning on omandanud õigusteaduste magistrikraadi Tallinna Tehnikaülikoolist. Ta on töötanud Riigikogu Kantseleis, ärisektoris ja ajakirjanikuna, alates 2004. aastast vastutanud peamiselt vabaühenduste liidus huvikaitse eest. Veel on ta abiks Arvamusfestivali, Kinoteatri ja Terve Eesti Sihtasutuse tegemistes.