7 - Chapter

The right to free elections

Author: Egert Rünne

The situation has remained the same.

Key issues

  • The first elections after 2005 took place when the ban on outdoor political advertising had been lifted, with this ban having previously and unreasonably restricted freedom of expression.
  • Nothing has been done to lift the restriction for all prisoners on the right to vote.
  • Discussions have been regurgitated regarding the security and accessibility of e-elections.

Political and institutional developments

Local government elections took place in Estonia during the reporting period. For the first time, the voter list was electronic, so voters were no longer affiliated with a particular polling station and voters had more flexibility to vote.[1] The polling station was not pre-determined and everyone could go to the polling station of their choice within their district; e-voters were given the opportunity to change their vote on election day itself.[2]

Several previous human rights reports have indicated that the right to vote for all prisoners should not automatically be restricted. There was no discussion at the national level regarding this, but such discussions certainly did take place at the international level. For example, in a shadow report which was submitted by the Estonian Equal Treatment Network to the UN Human Rights Council, human rights NGOs in Estonia suggested that the ban for prisoners regarding their right to vote should be lifted.[3] During the UN Human Rights Council’s regular review of Estonia, both Canada and Sweden proposed that the total ban on elections be lifted.[4] Estonia’s response to the proposal was not promising, stating that the Ministry of Justice would analyse whether the current restrictions should be changed and how that might be achieved.[5] Therefore the situation is not expected to improve in the near future.

In the autumn of 2021, Eduard Odinets, a member of the Riigikogu, addressed the Chancellor of Justice, raising the issue of the political neutrality of educational institutions during local elections. More specifically, the director of the Narva Language Lyceum had sent out a call to parents to support his candidacy in the election, using the schoolchildren to take a letter home and giving the children chocolate for doing so. The Chancellor of Justice found that candidates were not prohibited from presenting their political goals and election promises via an educational institution. At the same time, the Chancellor of Justice also referred to the fact that advertising in the school building is generally prohibited and that the Consumer Protection and Technical Surveillance Authority can assess the act.[6]

At the end of 2021, after several failures, the Ministry of Economic Affairs and Communications found a bidder to analyse the implementation of proposals for ensuring security and raising public awareness of the system, as proposed by the Electronic Voting System and Electronic Voting Task Group which has been convened in 2019 by the Minister of Foreign Trade and Information Technology.[7]

Legislative developments

The local government elections of 2021 were the first after 2005 to lift the ban on outdoor advertising, which unreasonably restricts freedom of expression.[8] Candidates were allowed to campaign anywhere on election day except in the polling station itself. Since the introduction of the ban, the Estonian Centre for Human Rights has emphasised in various reports the fact that the ban was disproportionate.[9] It was also criticised by the Chancellor of Justice, who in 2017 asked the Riigikogu to lift the ban.[10]

Case law

The Electoral Commission and the courts were, for the most part, approached due to problems which were related to e-voting. For example, the Constitutional Review Chamber of the Supreme Court rejected a complaint by EKRE and Silver Kuusik regarding the claim that e-votes should be cancelled in certain elevation district constituencies because the translation application changed the names of candidates on the election website; the courts considered that a translation problem could not significantly affect the electronic voting result.[11]

The Supreme Court also dismissed a complaint in which the complainant requested that electronic voting not be initiated. A complaint was lodged with the Electoral Commission, in which the complainant asked the commission not to start up electronic voting on 11 October.[12] The complainant alleged, inter alia, that electronic voting was not sufficiently secure or reliable because the voting software and the voter application had not been audited. The Electoral Committee did not agree with this complaint, and the Supreme Court also considered that no circumstances had arisen which would have provided any relevant reason for cancelling electronic voting.[13] Still, the Supreme Court recommended that the organisers of the elections be more transparent, and that they also consider the possibility of disclosing audits and analyses of the system where these were carried out before the start of any electronic voting, and within such a scope which would not compromise security considerations due to that disclosure.[14]

Statistics and surveys

In 2020, the possibility of being able to conduct e-voting with a mobile phone was studied, in research which had been commissioned by the state. The analysis found that e-voting by telephone is technically possible, but various risks needed to be mitigated before it could be implemented. For example, devices which are running iOS and Android could use m-voting, although they must have the latest version of the software installed. Additionally, general cyber hygiene was pointed out as a threat (hackers, and the possibility of m-voting making it easier to vote on behalf of someone else).[15]

The analysis of facial recognition technology which was commissioned by the State Information System Board (RIA), and which was carried out by AS Cybernetica, found that facial recognition is a technically complex issue, one which requires sweeping technical changes. Adding it would increase the risk of e-voting failures, while also significantly increasing the system’s performance requirements, whereas it would be impossible to reduce the error rate to zero. The study found that the e-voting service would become more inconvenient for the user, as it would require the presence of equipment which includes a proper camera and the requisite ability to use it, as well as additional privacy breaches. In conclusion, it has been found that instead of providing facial recognition, there are lighter measures which can be installed with which to combat attacks against e-voting. These include informing the person by email or text message that a vote has been cast on their behalf, as well as creating good practice for nursing homes when it comes to their being able to store ID cards.[16]

Promises and good practice

In order to involve various groups of people and to share information, the National Electoral Committee, in co-operation with the Alarm Centre, opened a 24-hour election hotline on the +372 631 6633 number. The hotline provided answers to general questions which were related to the elections. In the period between 7-18 October, a total of 3,395 calls were answered via the election hotline. The highest number of those calls involved questions regarding how to take part in e-voting, along with the contents of the election information sheet, the location of the voting booth in the relevant polling station, and the right to vote.[17] The helpline was available for callers between 7 October and 18 October 2021, and questions were answered in Estonian, Russian, and English.[18]

Major public debates

Since the first availability of e-elections, various technical issues which have interfered with the e-voting processes have attracted a degree of public attention. This election itself did not progress without there being some level of error. As soon as the elections began, people who voted using the latest macOS operating system found they were having problems, receiving an error message and not being able to vote. The problem was fixed on the same day as the error was discovered.[19] The election application also displayed incorrect information to the first e-voters, as if their vote had not been taken into account, with the application displaying a message that it was a test vote.[20] The reason for the incorrect information being displayed via the e-voting voter application was incorrect server programming which concerned the time at which the message was displayed; however, all votes which were cast were indeed counted.[21]

There were also problems and bottlenecks in terms of the accessibility of e-voting. A problem which arose had already been highlighted. This concerned the 2019 Riigikogu elections and European Parliament elections, where the attention of the Electoral Committee was drawn to the fact that the screen reader cannot read the text in the election application using the macOS operating system. A representative from the Electoral Committee admitted that the matter had been investigated; nevertheless, the application was not improved during the next two years.[22]

Another issue which limited the user-friendliness and availability of the election application arose in the local elections of 2021. The election application is only available in Estonian. However, everyone who permanently resides in Estonia is allowed to participate in local government elections, although they may not all understand Estonian.[23] According to the State Electoral Service, there are currently no plans in place to add the option for the voter application to be made available in English or Russian.[24]

Case study

On 13 October, the newspaper Postimees published a piece which stated that the translation application changed the names of those candidates whose names were being displayed on the election website.[25] In fact the names only changed if someone used the Google Chrome web browser and had the automatic translation feature turned on. For example, Hõbe Kuusik was displayed instead of Silver Kuusik.[26] On the same day a software patch was made available via valimised.ee, which eliminated the shortcoming.[27]

On 14 October, the Estonian Conservative People’s Party (EKRE) and Silver Kuusik, a candidate who is on their list, filed a complaint with the National Electoral Committee, asking them to cancel the results of electronic voting in those election districts which had been affected by the translation problem.[28] The Electoral Committee did not satisfy the complaint, responding that there were only any problems with automatic translation on the ‘valimised.ee’ website.[29] The same group appealed against the decision via the Supreme Court. The Supreme Court’s Constitutional Review Chamber dismissed this appeal by EKRE and Silver Kuusik because the translation problem could not significantly affect the results of electronic voting.[30] According to the court, it is arguable in principle whether the party which was responsible for displaying the names in translated form is the voter who set up automatic translation in their browser or the National Election Service which did not exclude the possibility on their website of it being translated.

According to the Supreme Court, the Electoral Service violated the right of applicants to stand as a candidate by failing to ensure that the act of displaying the list of candidates on its website was not in some way distorted. The fact that the correct list was displayed in the voter application also does not invalidate this conclusion. At the same time, the Supreme Court did not annul the results of electronic voting because the probability that someone did not vote for the desired candidate due to the Election Service’s failure to act is so small that the results could not significantly be affected.[31]

Recommendations

  • Amend the relevant legal acts so that the ban on elections applies only to prisoners to whom this ban has been applied as an additional form of punishment.
  • Contribute to the accessibility of polling stations and e-elections.

[1] Vabariigi Valimiskomisjon. 2021. Valijate nimekiri.

[2] Ploompuu, A. 2021. Kohalikud valimised tulevad mitmete muudatustega, Postimees, 14.06.2021.

[3] Eesti võrdse kohtlemise võrgustik. 2020. Ühisaruanne Eesti kolmanda üldise korralise ülevaatuse (UPR) jaoks.

[4] UN General Assembly. 2021. Report of the Working Group on the Universal Periodic Review – Estonia (A/HRC/48/7).

[5] UN General Assembly. 2021. Report of the Working Group on the Universal Periodic Review – Estonia, Addendum (A/HRC/48/7/Add.1).

[6] Õiguskantsler. 2021. Valimisreklaam koolis, 15.10.2021.

[7] Liive, R. 2021. Riik tellis auditi, mis selgitab välja, kuidas on Kert Kingo e-valimiste töörühma ettepanekuid rakendatud, Digigeenius, 28.10.2021.

[8] Riigi Teataja. Euroopa Parlamendi valimise seaduse, kohaliku omavalitsuse volikogu valimise seaduse, Riigikogu valimise seaduse, rahvahääletuse seaduse ja karistusseadustiku muutmise seadus (valimispäeval valimisagitatsiooni piirangu ja välireklaami keelu kaotamine), 13.01.2020.

[9] E. Rünne. 2015. Inimõigused Eestis 2014 – 2015, õigus vabadele valimistele.

[10] Õiguskantsler. 2019. Euroopa Parlamendi valimise seaduse, kohaliku omavalitsuse volikogu valimise seaduse, Riigikogu valimise seaduse ja karistusseadustiku muutmise eelnõu, 17.06.2019.

[11] Riigikohtu põhiseaduslikkuse järelevalve kolleegiumi 28.10.2021. a otsus kohtuasjas nr 5-21-16.

[12] Riigikohtu põhiseaduslikkuse järelevalve kolleegiumi 21.10.2021. a otsus kohtuasjas nr 5-21-15.

[13] Ibid.

[14] Ibid.

[15] Cybernetica. 2020. Mobile voting feasibility study and risk analysis.

[16] ERR. 2021. Uuring näotuvastust e-hääletamisel veel ei soovita, 15.07.2021.

[17] Riigi valimisteenistus, e-kiri, 01.10.2021.

[18] Lomp, L. 2021. Sügisel nõustab valijaid infotelefon, Postimees, 27.05.2021.

[19] Alas, B.. 2021. E-valimisi häirisid esimesed tehnilised rikked, Postimees, 11.10.2021.

[20] Pau, A. 2021. E-hääletamine algas tehnilise praagiga: 900 kasutajale anti teada, et nende hääl ei lähe arvesse, Delfi, 11.10.2021.

[21] Vabariigi Valimiskomisjon. 2021. Kõigi kell 9 e-hääletanute hääled läksid arvesse, 11.10.2021.

[22] Koitmäe, A. ja Arm, M. 2021. Kas tulevikus saab valimistel hääletada ka mobiiltelefonis? Vikerraadio.

[23] Riives. A. 2021. Kes on Hõbe Meikar või Sipelga Hilving? Tõlkerakendus muudab valimiste veebilehel kandidaatide nimesid, Postimees, 13.10.2021.

[24] Riigi valimisteenistus, e-kiri, 01.10.2021.

[25] Riives. A. 2021. Kes on Hõbe Meikar või Sipelga Hilving? Tõlkerakendus muudab valimiste veebilehel kandidaatide nimesid, Postimees, 13.10.2021

[26] Pau, A. 2021. Taas probleem: kandidaadid Silver Meikar ja Silver Kuusik moonduvad valimiste veebilehel Hõbe Meikariks ja Hõbe Kuusikuks, Delfi, 13.10.2021.

[27] Vabariigi Valimiskomisjon. 2021. Automaattõlge ei mõjutanud kandidaatide nimede kuvamist valijarakenduses, 15.10.2021.

[28] Delfi. 2021. EKRE nõuab e-hääletuse tühistamist: kandidaadid, kelle nime väänas tõlkeprogramm, on ebavõrdses seisus, 15.10.2021.

[29] Vabariigi Valimiskomisjon. 2021. Vabariigi Valimiskomisjon jättis rahuldamata kaks e-hääletamisega seotud kaebust, 15.10.2021.

[30] Riigikohtu põhiseaduslikkuse järelevalve kolleegiumi 28.10.2021. a otsus kohtuasjas nr 5-21-16.

[31] Riigikohus. 2021. Riigikohus jättis rahuldamata kaks e-hääletamist puudutanud kaebust, 28.10.2021.


Author

  • Egert Rünnel on omandatud bakalaureusekraad rahvusvaheliste suhete alal ning magistrikraad riigiteadustes. Egert on töötanud Eesti Inimõiguste Keskuses alates 2011. aastast ning läbi viinud erinevaid projekte ühiskonna inimõigustealase teadlikkuse tõstmiseks. Samuti on Egert aastatel 2011–2015 olnud Tallinna Tehnikaülikoolis uuringute spetsialist.

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