The situation got worse.
- The new government is more democratic, and less attack-minded, while less harassment of NGOs has also taken place.
- Restrictions during the crisis did not significantly infringe upon fundamental rights and freedoms.
- However, the reasons behind the restrictions were often difficult to understand and it is almost impossible for parliament, the Chancellor of Justice, or the courts to verify their appropriateness.
Political and institutional developments
On the one hand, the development during the reporting period was the result of a normalisation of the political situation, with the government changing at the beginning of 2021 and those parties which had rather selectively supported fundamental rights and freedoms not continuing in the coalition. On the other hand, the period was marked by a constant stream of restrictions and support measures following the spread of coronavirus. Even by 20 March 2020 the government had informed the Council of Europe that it may not respect the ECHR, including the freedoms. The move itself received criticism, although disproportionate interference cannot be identified in practice. Although the police were sometimes accused of overreacting to threat assessments, violations were also found at various demonstrations.
In the Kaja Kallas government, the Minister of Population who had been curating the field of civil society for almost two years did not continue, and the topic remained with the Minister of the Interior. Due to the change in power at the top, the already-approved development plan for the field was opened, family policy and other topics were taken out of it and, under the new title of ‘Coherent Estonian Development Plan 2021-30’, the Ministry of Interior Affairs and the Ministry of Culture sent a joint document to parliament for discussion in the summer. No significantly new topics on the subject of civil society were included in the development plan, but the topics of integration and adjustment and global Estonianness found a place next to civil society.
One of the amendments to the law which was more favourable to NGOs was caused by the virus itself, together with restrictions on gatherings, in light of which possibilities regarding all legal entities to hold general and management meetings online came into force on 24 May 2020. Within the framework of the revision of company law, similar changes would probably have been made somewhat later anyway, but the deadlines for the revision kept being postponed due to the crisis. In addition, the rapid amendment of the law made it possible to postpone deadlines for submitting annual reports in 2020, from July to October, and at the same time the period of office for members of the governing bodies, which had expired in the meantime, was considered to have been extended due to difficulties in holding election meetings.
In other respects, the government reacted relatively neutrally to the crisis from the point of view of civil society; no special assistance was offered to NGOs, but most of the sectoral support measures also included non-profit organisations and foundations. An exception involved several subsidies in the field of entrepreneurship, where NGOs were discriminated against only on the basis of their legal form of activity. For example, in the tourism sector only business associations were classed as being qualified to receive compensation for damages. The Ministry of Economic Affairs and Communications only partially eased the conditions in the spring of 2021. The Supreme Court supported the position of the administrative court and declared to be unconstitutional one of the unreasonable technical conditions which had been set out by the Ministry of Culture when it came to qualifying for support.
While nothing changed in the distribution of regional support funds, the EKRE Minister of Finance forbade the ‘State Shared Service Centre’ from making contractual payments to several strategic partners of the Ministry of Social Affairs in the field of equal treatment as an unexpected political intervention including, inter alia, with the argument supported by the National Audit Office that the Gambling Tax Act does not allow these issues to be financed. The NGOs considered the behaviour to be that of bullying, while the Ministry of Social Affairs found a short-term solution to the problem, and a more long-term solution should be found in 2022, when tax revenues will be fully decoupled from costs.
Again, no changes were made in the tax policy in favour of donations, although with the abolition of the tax exemption on housing loan interest from the 2022 income, EUR 300 per year can now in theory become added to the deduction of donations. The topic was also discussed at a traditional joint sitting of the three committees of the Riigikogu. In terms of foreign funding, the reserve of the Active Citizens’ Fund which is supported by the European Economic Area was increased by two million euros.
At the end of 2019, the Supreme Court provided a newer interpretation to the Public Procurement Act (RHS), which until now was strictly understood according to the instructions of the Ministry of Finance, meaning that almost every public interest NGO must comply with the RHS if more than half of its funding comes from taxpayers. Now the administrative chamber seemed to state more clearly that the performance of a public task must be imposed on the association by law, not simply assumed cognitively, but there is no information regarding the use of the interpretation in practice.
Once again, a name dispute reached the court, this being one of the few options for the state when it comes to hindering the freedom of association upon the registration of associations (albeit this particular dispute came through the courts). It was found that, in the application which had been filed on 13 September 2019, the intended name contradicts good morals. The registry official saw the discrepancy in the desired name of MTÜ Süvariik (‘Deep State’); the position was supported by the county judge, who forwarded the appeal against the ruling to the Tallinn Circuit Court for resolution. The latter asked for advice from the Estonian Language Institute and found on 11 June 2020 that the county court had incorrectly interpreted the meaning of ‘deep state’ and had not substantiated its considerations ie. the reasoning of the name being inappropriate. The association was entered into the register on the day after the ruling by the circuit court.
Statistics and surveys
No major studies have been completed regarding civil society. The ‘NGO Viability Index’, which was published in autumn 2020, continued to recognise overall capacity and freedom of action, with concerns about attacks against NGOs and about growing inequalities between more and less able NGOs. In the index, Estonia again held first place according to most indicators, compared to twenty-four other Eastern European and Eurasian countries. In the subsequent year’s report, Estonia remained at the same high level, surpassing all eighty-two countries which had been included in the index.
In its report on social entrepreneurship, the OECD recommended that entrepreneurship education should be improved, that the capacity of associations should be built up, and that equal access to finance should be ensured.
In 2021, the strategic partnership development programme was completed after having been delayed due to the crisis, as implemented by the Network of Estonian Non-Profit Organisations and the Centre for Applied Anthropology on behalf of the state chancellery. The aim was to improve permanent partnership with NGOs in at least three ministries which, to some extent, is an aim which succeeded despite the crisis. The Ministry of Education and Research, which was criticised in the previous report, has come a long way in developing a completely new concept, one which will go through a reality test at the end of 2021. During the programme, a handbook for officials was prepared, which helps to make sense of the whole process from setting goals to reporting.
At the end of 2020, the first civic initiative was launched which focused on the promotion of liberal values in Estonia: the ‘Liberal Citizen Foundation’ (SALK). This, amongst other things, monitors the transparency of party funding, both in terms of donations, and social media advertising.
Major public debates
Over the years, freedom of assembly has been the subject of debate. Even the concept of a ‘police state’ has been used, because in order to prevent the spread of the virus, almost all public gatherings were temporarily banned, including the opportunity to demonstrate peacefully, even against those very restrictions. At the beginning of the crisis, the Chancellor of Justice found that the intrusions were justified as long as the general movement restrictions which had been established in order to prevent the spread of the virus remained in force, and that there were other ways in which the individual expression of freedom of opinion could be realised.
Religious associations reacted painfully to the ban on collective worship, but again the Chancellor of Justice found that freedom of religion itself was not restricted, while the ban on gatherings of more than two people was indeed justified. The ‘Foundation for the Protection of the Family and Traditions’ (SA Perekonna ja Traditsiooni Kaitseks) compiled a comprehensive guide to the rights of demonstrators, even going to court (see the case study at the end of the chapter).
Trends and outlook
While the focus of the previous report was on ongoing conflicts between developers, activists, and neighbours, now newer issues and gaps have emerged during the crisis, especially regarding colliding fundamental rights. From a legal point of view for society, as well as from a practical point of view, the fact that there exists a lively public debate around this subject is something which should be welcomed, especially where it involves institutions and even the courts when it comes to the rights and freedoms which are covered by this chapter, which is something that may allow some restrictions to be set earlier, before any intrusion has a chance of becoming serious.
At present, however, it is still difficult to assess the extent to which the recent protests, mainly against masks, vaccinations, and restrictions, are exacerbated by general confusion, information noise, mistrust, and boredom, or whether case law may nevertheless reveal fundamental problems with the restriction of rights. Observers have explained the split society by using, amongst other things, the term ‘envy populism’.
While most of the recommendations in terms of the company law review focused on reducing the regulation and reporting obligations for NGOs, the government’s action programme includes the sentence: ‘We consider it important to increase the accountability and transparency of politically-orientated foundations and NGOs’, referring to plans to analyse and make proposals, which will probably again begin to address the disclosure of donors (especially foreign ones) to advocacy organisations.
Throughout the period in question, a more fundamental legal problem became clear in terms of there being no parliamentary scrutiny of the government’s general arrangements when it comes to imposing restrictions, nor could those restrictions be challenged by the Chancellor of Justice, who was left to instruct people to go to court to air their grievances. Parliamentary parties remained sceptical about extending the Chancellor of Justice’s mandate. The first corresponding court decision arrived on 01 October 2021, in which Tallinn Administrative Court dismissed the identification appeal against the government’s order of 19 August 2020, considering both the form of a general order – meaning an individual act itself – and the restrictions being imposed on demonstrations to be lawful.
The general courts took a contrary view regarding the protection of rights in the matter of an individual act versus a government regulation: ‘The form of the order provides individuals with even better opportunities to protect their interests and rights, as anyone whose rights it violates can directly challenge the order by means of a court action. There would be no availability of such an immediate option if the same restrictions were imposed by means of a regulation. In the latter case, a judicial review of similar restrictive clauses would only be possible within the context of a constitutional review procedure’. However, the courts stated that the epidemiological situation and the pace of change in terms of restrictions may make judicial review of restrictions virtually impossible, even in the case of expeditious court proceedings; and neither is a prohibition appeal conceivable, as future events are difficult to predict.
The courts agreed with the applicant that the lack of knowledge cannot ‘justify all sorts of preventive measures forever’. The appellant – ie. the ‘Foundation for the Protection of the Family and Traditions’ (SAPTK) – promised to appeal against the judgement. As a remark, the government questioned the (popular) right of appeal by the foundation as a memberless organisation, a remark which the courts did not accept because any legal entity can organise a meeting and every advocate is included in the protection of the right to freedom of assembly. Nor did the courts agree with the respondent in terms of an identification appeal not being processed against an administrative act which has been annulled in the meantime, finding that such an appeal has a preventive purpose in order to protect rights in the future. EKRE submitted a similar complaint to the courts regarding the restriction of fundamental rights and freedoms, taking umbrage against the government’s order of 23 August 2021.
SAPTK, being in the process of building up its strategic litigation capacity, was more successful in another dispute. In this one the county court annulled a fine of 160 euros which had been imposed by the PBGB for violating the requirements for public meetings. The core of the dispute, however, was not freedom of assembly but sloppy misconduct proceedings by an over-eager official. Therefore case law where it covers restrictions is still in its infancy in Estonia, while in several other European countries such cases were resolved as long ago as the summer of 2020.
- Continue the debate regarding a more effective solution to the constitution-related review of restrictions on fundamental rights and freedoms.
- Be extremely careful about state regulation regarding the disclosure of NGO donors, as this tends to be an act which is more likely to be carried out by autocratic regimes.
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