14 - Peatükk

Human rights and COVID-19

Author: Liina Laanpere

Key issues

  • COVID-19 restrictions have affected freedom of movement, assembly, and association, the right to respect for private and family life, the right to education, and the right to engage in business.
  • Various data protection issues have arisen in connection with the pandemic, while Estonia has kept privacy rights central in the formulation of fresh solutions (such as in the case of the HOIA mobile application, for example).
  • The spread of misinformation is tending to cause problems in the fight against the pandemic, especially issues relating to vaccination often polarising society.

A summary of the situation and related restrictions

On 12 March 2020, the government declared a state of emergency in Estonia due to the COVID-19 pandemic, and this state of emergency ended on 18 May 2020. As of 12 August 2021, a fresh healthcare emergency has been in force within the country.[1]

In March 2020, Estonia informed the Council of Europe that it was exercising its right to derogate from its obligations under Article 15 of the ‘European Convention for the Protection of Human Rights and Fundamental Freedoms’. Estonia announced the suspension of a number of rights, including the right to liberty and the security of the person, the right to a fair trial, the right to respect for private and family life, freedom of assembly and association, the right to education, and the right to freedom of movement.[2] The use of the derogation ended at the conclusion of the state of emergency on 18 May 2020.[3]

Most of the COVID-19 measures which have been introduced by the state have been widely implemented, focussing generally on restricting freedom of movement, assembly, and association, and measures which serve to restrict business operations. Restrictions on freedom of movement were imposed on people who had been diagnosed with COVID-19 and people who were living with them, along with people who were crossing the Estonian state border, while movement in public spaces was also restricted (known as the 2 + 2 rule).[4]

Restrictions on movement particularly affected vulnerable groups. In April 2020, people who were living in general care homes and special care homes were prohibited from leaving the care home grounds until the emergency situation had been concluded.[5] Restrictions on care homes also concerned the right to respect for private and family life, as residents of care homes were unable to meet their relatives for a long time due to the ban on visiting care homes.

The restrictions also significantly affected the rights of detainees. The Chancellor of Justice criticised the ban on walking in fresh air and reductions in the opportunity to call on relatives to just once a week, a situation which was established during the state of emergency.[6]

During that state of emergency, all public gatherings were banned, raising questions about the constitutional validity of the ban on political demonstrations and worship. The Chancellor of Justice expressed the opinion that, during the state of emergency, freedom of opinion and expression as provided for in the constitution was not in fact being restricted, as it remained possible to express one’s mind in forms other than through a physical gathering. The Chancellor of Justice also explained that the ban on public gatherings prevented the holding of religious services, but the holding of religious services were still permitted if one did it alone or in private, while no churches or shrines were closed during the emergency, and no prayers were banned.[7]

The corona restrictions also concerned the right to education. During the special situation, distance learning was introduced into schools, while in some places distance learning was applied even after the end of the state of emergency. The lack of contact learning placed those students who have special educational needs in a particularly vulnerable position. The Estonian Chamber of Disabled People has found that the closure of contact schools, dormitories, and social services in schools and special schools resulted in a sharp increase in the care burden being borne by the parents of children who have disabilities, with parents stating that school support for distance learning was for the most part insufficient.[8]

Legislative developments

In May 2020, a clustered draft act for several legal amendments which were related to the COVID-19 pandemic all came into force together, amending more than thirty legal acts in the process.[9] The Chancellor of Justice criticised the fact that the package of urgently-needed amendments also included changes which were not urgent, and the impact of which extends beyond the emergency situation itself. Of particular concern was the amendment to reduce the period of judicial review regarding involuntary treatment and involuntary placement in a psychiatric hospital, as it made it possible to exclude people from being heard in such court proceedings.[10]

The Estonian Refugee Council and the Estonian Centre for Human Rights condemned the amendment which was contained in the cluster draft act, according to which the detention of applicants for international protection would be allowed without extraordinary justification if there were an exceptionally large number of applications.[11]

In addition, the ‘Act Amending the Communicable Diseases Prevention and Control Act’ was passed in May 2021. The draft specifies the competence of the government and the Health Board, and adds a legal basis to the law which makes it possible to ensure that people are under an obligation to follow the precautionary infection safety measures in the event of the spread of an infectious disease. The act also adds to the current raft of legal acts the possibility of being able to involve the police and other law enforcement agencies in the performance of the tasks of the Health Board.[12] Before the law was passed, people protested on Toompea against the draft act. Protesters expressed the fear that the draft act would allow the law to be used to evict people, especially children, by force. Legal experts have confirmed that this is not in fact the case, and the new law will change the procedure only to a minimal extent.[13]

Case law

The COVID-19 pandemic did not interrupt the Estonian judicial system. In the event of an emergency, preference was to be given to written procedures and the holding of essential court hearings by technical means of communication.[14]

Many issues which could be related to corona restrictions have not reached the Estonian courts; complaints have rather been directed to the Chancellor of Justice. The Chancellor of Justice has questioned the fact that restrictions have been established by means of a general order, over which the Chancellor of Justice does not have the opportunity to initiate a constitutional review; in the event of there being any cases which involve a violation of rights, the individual concerned must go to court to address the matter.[15] In this regard, the Tallinn Administrative Court has taken the position which dictates that the form of the general order is correct in terms of restrictions, while ensuring better opportunities for people to be able to protect their rights and interests. By means of the same decision, the court dismissed the complaint by the ‘Foundation for the Protection of the Family and Tradition’ regarding the legality of the coronavirus restrictions, finding that the disputed restrictions regarding the number of participants at public meetings were indeed appropriate, necessary, and moderate in order to make it possible to prevent the spread of COVID-19.[16]

Judgments regarding corona restrictions can be found in various areas such as, in particular, concerning complaints about the rights of prisoners, and restrictions on freedom of movement and communications. Based on the available court rulings, the prevailing view is that restrictions regarding prisons, such as bans on long-term visits, are indeed proportionate, as the public interest in preventing the spread of the virus outweighs the impact of the restrictions on the rights of detainees.[17][18]

Statistics and surveys

In June 2021, the Praxis think tank published a study entitled: ‘The socio-economic impact of the COVID-19 pandemic on gender equality’, which found that gender inequality had increased during the pandemic. With the closure of schools and childcare facilities, most of the burden of caring for children and carrying out domestic work was borne by women, with their opportunities to be able to undertake paid work being reduced. The analysis revealed that not enough measures have been taken in Estonia to support gender equality during the pandemic.[19]

In the summer of 2020, the Estonian Chamber of Disabled People conducted a mini-study entitled ‘Disabled people coping during the crisis’. The recommendations which were made on the basis of the study emphasised the need to provide basic social services for people with disabilities even during a crisis, as well as the need to provide contact learning opportunities for children who have special educational needs. In addition, emphasis was placed on the importance of providing accessible communications, and preventive organisation in terms of social work.[20]

Promises and good practice

In August 2020, the mobile application, HOIA, was introduced in Estonia, with it informing users when they have come into close contact with a carrier of coronavirus. Although it is difficult to assess the impact of the application, it is a positive fact that special attention has been paid to the protection of personal data in terms of the application’s development. It is not possible to identify users or their location through the application, and the state does not receive any information about the identity of those people who are infected or their close contacts.[21] The Data Protection Inspectorate and the Office of the Chancellor of Justice have also praised the HOIA application in this regard.[22]

Major public debates

Disputes over vaccination and masking are widespread on social media and beyond. Some people see the restrictions which have been raised in relation to COVID-19 as a deprivation of liberty and a violation of human rights. The spread of misinformation has contributed to this; misinformation which is related to the vaccination programme has enjoyed a particularly high area of dissemination in Estonia.

The vaccination programme raises a number of issues which have been widely discussed in the media, in particular the COVID-19 certificate, or what is known as the requirement for a vaccination passport. Since the autumn of 2020, a COVID-19 certificate must be presented in Estonia to permit holders to participate in various activities, including public meetings or events, and visits to entertainment establishments and catering establishments. The opinion articles which have been published by media sources have been analysed in some detail, in particular regarding compatibility with the right to equal treatment in regard to the use of vaccination passports for non-medical purposes, as well as issues which are related to the protection of personal data.[23]

Professor Mart Susi of Tallinn University has expressed the opinion that the use of a vaccine passport does not violate human rights if its presentation is not an unavoidable condition for access to certain services or events, and practically everyone can obtain a vaccination passport.[24] In May 2021 the Chancellor of Justice explained that requesting an immunity certificate from consumers who are attempting to access certain services is a justifiable act in order to reduce the risk of infection, but should still remain a temporary solution which lasts only as long as the epidemiological situation requires it.[25]

Case study

The Chancellor of Justice was approached by a kindergarten teacher who had been infected with coronavirus. The teacher had reported their positive test result to their superiors at the kindergarten. The kindergarten’s principal informed parents of the teacher’s name, which triggered resentment and some hostility in the parents. In the opinion of the Chancellor of Justice, there was no justification for disclosing the name of such an infected person; the disclosure of sensitive health information is unequivocally prohibited. The Chancellor of Justice explained that if a person believes that a private body is unlawfully processing their data, the Data Protection Inspectorate must be notified, which has the obligation to monitor compliance with those requirements which have been established for the processing of personal data pursuant to the Personal Data Protection Act.[26]

Recommendations

  • The response to the COVID-19 pandemic must be thoroughly analysed and publicly justified in terms of human rights and levels of proportion. The impact of restrictions must be considered both before and, periodically, afterwards, with a possible analysis also being conducted on a regular basis regarding possible side effects.
  • The specific nature of and messages which were included in the measures, and information which has been shared in regard to those measures, are all important areas, including for the purposes of mitigating the risk of misinformation.
  • In a crisis situation, special attention should be paid to the protection of the rights of vulnerable groups, including the rights of people with special needs, by cooperating with relevant organisations and, amongst other things, following the recommendations of the Estonian Chamber of Disabled People.[27]

[1] Vabariigi Valitsus. 2021. Koroonaviirus ja selle vältimine .

[2] Eesti Vabariigi alaline esindus Euroopa Nõukogu juures. 2020. Note verbale nr 1-16/6, 20.03.2020.

[3] Oja, B. 2020. Eesti teavitas Euroopa Nõukogu eriolukorra lõppemisest, ERR, 16.05.2020.

[4] Riigi Teataja. 2021. Meetmed koroonaviiruse SARS-CoV-2 leviku tõkestamiseks.

[5] Riigi Teataja. 2020. Eriolukorra juhi korraldus hoolekandeasutustes liikumisvabaduse piirangu kehtestamise kohta, 17.05.2020.

[6] Õiguskantsler. 2020. COVID-19 haigust põhjustava viiruse leviku tõkestamise meetmed,  nr 7-7/200489/2001899, 06.04.2020.

[7] Õiguskantsler. 2020. Õiguskantsleri aastaülevaade – Õigusriik eriolukorras.

[8] EPIKoda. 2020. Puudega inimeste toimetulek kriisiajal, 14.09.2020.

[9] Riigi Teataja. 2020. Abipolitseiniku seaduse ja teiste seaduste muutmise seadus (COVID-19 haigust põhjustava viiruse SARS-Cov-2 levikuga seotud meetmed), 06.05.2020.

[10] Õiguskantsler. 2020. Tähelepanekud abipolitseiniku seaduse ja teiste seaduste muutmise seaduse (COVID-19 haigust põhjustava viiruse SARS-Cov-2 levikuga seotud meetmed) eelnõu kohta, nr 18-1/200565/2001935, 07.04.2020.

[11] Eesti Inimõiguste Keskus, Eesti Pagulasabi. 2020. Arvamus abipolitseiniku seaduse ja teiste seaduste muutmise seaduse (COVID-19 haigust põhjustava viiruse SARS-Cov-2 levikuga seotud meetmed) eelnõu 170 SE kohta, 13.04.2020.

[12] Riigi Teataja. 2020. Nakkushaiguste ennetamise ja tõrje seaduse muutmise seadus, 22.05.2021.

[13] Ellermaa, E. 2020. Meeleavaldajate ja õigusekspertide tõlgendus seaduseelnõust läheb lahku, ERR, 08.04.2021.

[14] Kohtute haldamise nõukoda. 2020. Kohtute haldamise nõukoja soovitused õigusemõistmise korraldamiseks eriolukorra ajal, 16.03.2020.

[15] Õiguskantsler. 2021. Õiguskantsleri aastaülevaade.

[16] Nael, M. 2021. Halduskohus ei rahuldanud SAPTK kaebust koroonapiirangute kohta, ERR, 01.10.2021.

[17] Tartu Ringkonnakohtu 21.12.2020. a määrus haldusasjas nr 3-20-2343.

[18]  Tallinna Ringkonnakohtu 18.01.2021. a määrus haldusasjas nr 3-20-2267.

[19] Haugas S.,  Sepper, M-L (Mõttekoda Praxis). 2021. COVID-19 pandeemia sotsiaal-majanduslik mõju soolisele võrdõiguslikkusele.

[20]  EPIKoda. 2020. Puudega inimeste toimetulek kriisiajal, 14.09.2020.

[21] Sotsiaalministeerium. 2020. Tänasest saab laadida nutitelefoni koroonaviiruse levikut piirava mobiilirakenduse HOIA, 20.08.2020.

[22] R. Liive. 2020. AKI peab eestlaste koroonaäppi sobilikuks, õiguskantsleri büroo jagab tunnustust. Digigeenius, 19.08.2020.

[23] Luik-Tamme, I., Šipilov, V. 2021. Ingeri Luik-Tamme ja Vitali Šipilov: vaktsineerimispassi mõju põhiõigustele, ERR, 05.03.2021.

[24] Susi, M. 2021. Mart Susi: vaktsiinipass versus inimõigused, Postimees, 14.05.2021.

[25] Õiguskantsler. 2021. Lihtsustatud juurdepääs teenustele immuunsustõendi alusel, nr 14-1/210929/2103416, 18.05.2021.

[26] Õiguskantsler. 2021. Õiguskantsleri aastaülevaade.

[27]  EPIKoda. 2020. Puudega inimeste toimetulek kriisiajal, 14.09.2020.


Author

  • Liina Laanpere on omandanud õigusteaduse bakalaureusekraadi Tartu Ülikoolis ja magistrikraadi rahvusvaheliste inimõiguste alal Corki ülikoolis Iirimaal. Liina osaleb õiguseksperdina Euroopa Liidu Põhiõiguste Ameti uurimisvõrgustiku FRANET-i jaoks uuringute tegemisel.

Cart
  • No products in the cart.