Key topics

  • Amendment to the Equal Treatment Act failed and all minorities still don’t have uniform protection.
  • The draft of the Names Act still largely fails to comply with the principles of human rights.
  • Eurobarometer’s public opinion survey on discrimination indicates that Estonian people have become significantly more tolerant in recent years.

Political developments

Parliamentary elections took place 3 March 2019, which were won by the Reform Party. The new government was formed by parties that had come second, third and fourth – the Centre Party, the Estonian Conservative People’s Party (EKRE) and Pro Patria. Jüri Ratas, who had been the head of the previous government continued as the Prime Minister. The coalition agreement aims to reduce social inequality and the chapter on internal security promises to ensure legal and effective protection of people’s fundamental rights and freedoms. At the same time, they are planning to hold a referendum during the 2021 municipal council elections on an amendment to the constitution that would define marriage as a union between a man and a woman.[1] This step has its own problem areas, for example, there is danger that negative attitude towards sexual minorities will increase[2] and the democratic states’ natural characteristic is the protection of minorities, which is why in states that respect human rights these are generally not regulated at referendums.[3]

Legislative development

The previous governments have repeatedly discussed the need to amend the Equal Treatment Act so that it would guarantee all minority groups uniform protection in all areas of life. In August 2017, the then Minister of Health and Labour Jevgeni Ossinovski, sent a draft law amending the Equal Treatment Act and an explanatory memorandum to be coordinated, so that application of the Act can be extended. The current Act provides protection against discrimination based on nationality (ethnicity), race or skin colour in almost areas of life, but on religion or belief, age, disability or sexual orientation only in employment. Therefore, the act sets up a hierarchy of minorities to be protected, which, among other things, is not in concordance with the equal treatment principle stated in the constitution. The purpose of the draft act was to ensure equal access to justice for all minorities and to extend the scope of application of the Equal Treatment Act.[4] This contradiction to the constitution has repeatedly been drawn attention to by the Estonian Human Rights Centre and the equal treatment network that the centre coordinates.[5]

Most ministries and NGOs supported the amendment to the Equal Treatment Act and the abolition of the graded nature of discrimination during the course of coordination in 2017–2018. The Ministry of Justice did not want the scope of the Act extended, nor was the draft supported by Estonian Women’s Associations Roundtable. The Estonian Council of Churches found that the planned amendments contain requirements, which are not in concordance with guaranteeing of constitutional freedom of religion. Possible situations concerning discrimination based on sexual orientation, but also based on religion or belief were pointed out especially. The Estonian Council of Churches also said that according to their belief, the religious society, the associated organisation as well as members of religious society must retain the right to decide on the use of their assets on the basis of principles and beliefs that they hold.[6] Currently the situation is essentially such, where a service provider (for example, renter of office space) can refuse to provide a service solely because of sexual orientation of a person, the draft act would have eliminated such a discriminatory situation.

On 28 May 2018 the draft act was submitted to the sitting of the Government, but on 21 February 2019 the Government Office stopped processing the draft due to the fact that the sittings of XIII composition of the Riigikogu had ended.[7] Therefore, the situation in equal treatment in Estonia is still such where all minorities are not guaranteed uniform protection by law.

In summer of 2019, the Ministry of the Interior sent a new and long-prepared-for draft of the Names Act for coordination. The purpose of the draft act, according to the persons who put it together, was to achieve a clearer, easier to understand and easier to apply Names Act, which considers the changes that have taken place in society in the past years. Among other things it explains that the increase of immigration and free movement of persons has brought many citizens from different cultures to Estonia, but the current act does not regulate situations, which would consider those person’s background or peculiarities of their country of origin.[8]

The draft act received its share of criticism from NGOs and national institutions. The Ministry of Social Affairs found that the draft act had not taken the interests of same-sex couples into consideration. The Ministry of Social Affairs, more specifically recommends the draft be amended throughout, in line with the possibilities provided for the Registered Partnership Act and take into account same-sex couples and the children growing up in their families. Liisa Pakosta, the Gender Equality and Equal Treatment Commissioner, touched upon the requirement in the draft that the first name must match the gender of the person. The Commissioner explained that in the Estonian name tradition the name does not have to refer to the gender. The Estonian Union for Child Welfare in its opinion draws attention to the fact that the term “Estonian name tradition” used in the draft creates uncertainty and has not been defined in the draft or in its explanatory memorandum. The Union also reminds the legislator that the right of the parents to choose the first and last name for their child belongs in the sphere of private life of the parents.[9]

The position of the Estonian Human Rights Centre is that the new Names Act largely does not conform to the principles of human rights, because in modern democratic societies, as a generally accepted principle, the identity of the person, including his or her nationality or religious affiliation, gender or sexual identity, and other parts of his or her identity are primarily up to the person himself or herself to define. The Centre explains in an opinion sent to the Population Minister Riina Solman that such human rights-based approach is also necessary in the area of regulating names, but the new pending act does not follow this principle.[10]

Institutions, statistics and surveys

There was no significant change in the work of the Gender Equality and Equal Treatment Commissioner in the observable period. As an independent and impartial official the commissioner advises and assists persons who suspect they have been discriminated against. The number of people that turned to the Commissioner in 2018 was 304. 137 of those instances had to do with discrimination on the basis of gender, 28 with disability, 30 with age, 25 had to do with nationality and ethnic belonging, in the rest of the cases a particular basis was involved in fewer than 10 cases, in 61 instances the issue was not in the Commissioner’s jurisdiction.[11]

The Chancellor of Justice received 20 petitions in her last accounting year (from 1 September 2018 until 31 August 2019), where people complained about discrimination. Seven of the petitions had to do with different treatment based on disability, three based on age, two based on sexual orientation, two based on language, nationality and citizenship and one based on origin. One petition, for example, had to do with police officers and age. The Police and Border Guard Act states that a person can work at the police service as a specialist until turning 55 years old and in a managerial position until turning 60 years old. The Chancellor of Justice found that despite the wording of the act of law no police officers should be relieved of their duty simply for exceeding the age, as the principle of equal treatment must be adhered to when applying the act of law. The decision must primarily be based on whether the person meets the physical and mental capacity requirements established for police officers by law.[12]

Labour dispute committees all over Estonia settle disputes that have arisen from employment relationships between employers and employees within the parameters of the submitted claim. Among other things, the cause of a labour dispute may be the unequal treatment or discrimination of an employee. On 1 January 2018 the new Labour Dispute Resolution Act entered into force and the limit of financial claim (which had been 10,000 euros) that had previously been in force disappeared. This amendment made it possible for the labour dispute committee to order 118,000 euros as compensation in a labour dispute that concerned discrimination. The decision of the labour dispute committee has not entered into force yet, the dispute continues in court.[13]

In 2018 labour dispute committees across Estonia settled a total of 19 appeals addressing issues either directly or indirectly related to discrimination or bullying at work. A year earlier there had been 26 appeals. In 2018, in the largest proportion of all cases, in 8 labour disputes the committee was asked to establish bullying at work. On three instances the issue was sexual harassment in work environment, in two cases the appeal concerned a person’s reduced capacity for work, in three instances the committee’s help was needed with discrimination based on family reasons, and in one instance regarding an employee’s sexual orientation. In two instances the appeal did not state what the unequal treatment was. In most cases the labour dispute committees did not identify discrimination.[14]

In autumn of 2019 the Eurobarometer public opinion study on discrimination was published. What stands out in the case of Estonia is that in comparison with the European average the people think that discrimination is not a widespread problem. 61% of Europeans believe that discrimination of Roma is common in their country, but in Estonia the corresponding figure is 23. There is also significant discrepancy with the European average in perceiving discrimination based on religion or belief. A European average of 47% of people think that such discrimination is widespread, but in Estonia just 17% think that, in other words, that discrimination based on religion is considered a rare phenomenon.

However, as a positive development, compared to results of the same study in 2015, Estonians have become significantly more tolerant in four years. For example, four years ago just 30% of respondents to the question “how comfortable would you feel if the highest elected position was occupied by a person from a different ethnic background?” said they felt “comfortable”, and now that was the response of 53% of respondents. A significant step towards acceptance has taken place with the answers to the same question regarding many more groups. For example, this year 82% of respondents said they felt comfortable with a woman occupying a high political office, while four years ago it was 57%, which lagged far behind the European average. An increase of that magnitude can perhaps be explained by the fact that in 2015 33% of respondents said they “didn’t care”, but this year only 8% said that.

According to Eurobarometer, differences in work environment are also increasingly accepted, with 40% responding with “comfortable” to the question “How comfortable would you feel if one of your colleagues were disabled?” four years ago, but already 75% saying that this year. Working with a black colleague was “comfortable” for 43% of respondents in 2015, but for 58% in 2019. Tolerance for gays and lesbians has also increased significantly with 34% feeling “comfortable” with colleagues belonging to that group in 2015, but 52% in 2019.[15]

Court practice

Festheart is Estonia’s first film festival focusing on the topic of sexual and gender minorities that takes place mainly in Rakvere since October 2017, where, in addition to thematic films, discussions on various topics concerning the LGBTI community also take place. Festheart film festival is funded from ticket sales, donations and project funding. Rakvere city government supports cultural events that take place there through a public project competition and Festheart submitted its project in 2018 as well as in 2019. According to the rules established by the city of Rakvere itself the city’s cultural committee assesses every submission and presents its decision to the municipal council for approval. The committee assessed the submission of the film festival to be worthy of support in both years and, according to the current procedure, presented it to the municipal council. The council, at the same time, reduced funding for Festheart, having approved all of the other decisions of the cultural committee regarding other applicants.

The organiser of the film festival, NGO Sevenbow considered these to have been unlawful and discriminatory decisions and took the decisions of the municipal council to court in both years. Jõhvi Courtcouse of Tartu administrative court passed positive decisions regarding Sevenbow and conceded that these had been unlawful decisions. The court explained that Rakvere city council, exercising its exclusive competence, had itself decided to establish a procedure which provides an important role for the cultural committee in assessing applications for support of cultural events and projects. Therefore, the council has no right to arbitrarily deviate from the decision submitted by the cultural committee. The court also made note of the fact that the Administrative Law Chamber had also emphasised that a democratically elected representative body may not make decisions arbitrarily and partially, but that choices must be based on rational arguments. The city of Rakvere did not appeal the decision of the administrative court and they came into force.[16]

Trends

The current situation in equal treatment area is predominantly characterised by stagnation. The Equal Treatment Act still does not provide equal opportunities in accessing legal protection for all minorities, placing persons experiencing discrimination outside of employment based on religion or beliefs, age, disability or sexual attraction in a particularly vulnerable position. Minister of Social Affairs Tanel Kiik has said that many of the provisions or principles in the field of equal treatment are outdated and the proposal to amend the Equal Treatment Act will probably be brought to the government’s table once again.[17]

At the same time, there is no real progress in the field of equal treatment in the current government and the earlier positions of coalition partners may prove an obstacle to the new attempts to amend the Equal Treatment Act. During the coordination of the Equal Treatment Act draft in 2017–2018 the then Minister of Justice and the current Minister of Foreign Affairs Urmas Reinsalu from Pro Patria did not support the complete elimination of gradual nature of discrimination from the act of law.[18] Guaranteeing equal treatment of minorities has not been the focus of the Estonian Conservative People’s Party so far either, their election programme contained a number of promises that are not in concordance with principles of human rights and the protection of minorities.[19] The entire situation is also compounded by the hostile rhetoric directed at some politicians and minorities of parties, therefore, the future prospects in the area regarding positive developments are not promising.

Recommendations

  • Pass amendments to the Equal Treatment Act eliminating differences between various bases for discrimination.
  • Nationally pay more attention to possible cases of discrimination in providing goods and services to the public as the Equal Treatment Act does not protect all minorities from discrimination in this area.
  • Take a human-rights-based approach in the new Names Act, in particular take into account that a person’s identity, including their nationality or religious affiliation, gender or sexual identity and other parts of a person’s identity are primarily for the person to define.

Case description

In March 2019 an incident occurred in a public space in central Tallinn, where Estonian head rabbi Shmuel Kot was on his way to the sabbath at the synagogue with his children. He was addressed by a male stranger speaking Estonian who, among other things, said to the rabbi: “What are you looking at, Jew, you’re going into an incinerator.” The municipal police explained that the incident took place in a situation where the municipal police was escorting a young man off the tram for riding without a ticket, to write him a fine. During the same incident the head rabbi passed the bus of the municipal police with his children and the verbal attack took place. The police initiated proceedings under the section of the Penal Code that handles incitement to hatred.[20] Harju County Court, however, convicted the man on the basis of section 262 of the Penal Code, which handles breach of public order and sentenced him to eight days of detention.[21]


[1] Eesti Keskerakonna, Eesti Konservatiivse Rahvaerakonna ning Isamaa Erakonna valitsusliidu aluspõhimõtted 2019-2023 [Founding principles of the governing coalition consisting of the Estonian Centre Party, The Estonian Conservative People’s Party and Pro Patria 2019–2023] https://www.valitsus.ee/sites/default/files/content-editors/pictures/eesmargid/eesti_keskerakonna_eesti_konservatiivse_rahvaerakonna_ning_isamaa_erakonna_valitsusliidu_aluspohimotted_2019-2023.pdf. 8 April 2019.

[2] See, for example, the conclusions of analyses of the 2019 Riigikogu election programmes by the Estonian Human Rights Centre https://humanrights.ee/2019/02/erakondade-valimisprogrammid-inimoiguste-vaates/. 11 February 2019.

[3] See, for example, the opinion of the Chancellor of Justice Ülle Madise. Ülle Madise: üldiselt leitakse, et inimõigustega seonduvat rahvahääletusele ei peaks panema [Ülle Madise: it is generally understood that human rights related matters should not be up for referendum] https://www.err.ee/521723/ulle-madise-uldiselt-leitakse-et-inimoigustega-seonduvat-rahvahaaletusele-ei-peaks-panema. 8 October 2014.

[4] Võrdse kohtlemise seaduse muutmise seadus [Act amending the Equal Treatment Act]. 2017. Draft acts’ information system, file no 17-0909.

[5] Arvamus võrdse kohtlemise seaduse muutmise seaduse eelnõu ja seletuskirja kohta [Opinion on the draft act amending the Equal Treatment Act and its memorandum] https://humanrights.ee/2017/08/arvamus-vordse-kohtlemise-seaduse-muutmise-seaduse-eelnou-ja-seletuskirja-kohta/. 29 August 2017.

[6] Võrdse kohtlemise seaduse muutmise seadus [Act amending the Equal Treatment Act]. 2017. Draft acts’ information system, file no 17-0909.

[7] Ibid.

[8] Nimeseadus [Names Act]. 2019. Draft acts’ information system, file no 19-0616.

[9] Koppel, K. Solmani plaan nimede andmisele piiranguid seada sai mitmelt liidult kriitikat [Solman’s plan to set limitations on giving names received criticism from several associations]. https://www.err.ee/963726/solmani-plaan-nimede-andmisele-piiranguid-seada-sai-mitmelt-liidult-kriitikat. 22 July 2019.

[10] Estonian Human Rights Centre. Nimeseaduse eelnõu: põhiseadusega vastuolus, ülereguleeriv, tarbetult kitsendav [Draft of the Names Act: in contradiction with the constitution, over-regulatory, needlessly narrow]. https://humanrights.ee/2019/07/nimeseaduse-eelnou-pohiseadusega-vastuolus-ulereguleeriv-tarbetult-kitsendav. 9 July 2019.

[11] Office of the Gender Equality and Equal Treatment Commissioner. 2018. report to the Constitutional Committee. https://www.volinik.ee/wp-content/uploads/2019/06/2018_aastaaruanne_voliniku-kantselei_.pdf. 10 June 2019.

[12] Õiguskantsleri aastaülevaade 2018/2019 [Chancellor of Justice’s annual report 2018/2019].https://www.oiguskantsler.ee/ylevaade2019/.

[13] Ibid.

[14] Labour disputes processed at labour dispute committees regarding unequal treatment. https://www.ti.ee/est/teavitustegevus-statistika/statistika/toovaidlused/

[15] Eurobarometer. Discrimination in the EU http://data.europa.eu/euodp/en/data/dataset/S2251_91_4_493_ENG. 28 October 2019.

[16] Both court cases and judgments are discussed in more detail on the website of the Estonian Human Rights Centre https://humanrights.ee/kaasused/lgbti-filmifestival-festheart/.

[17] Viik, K. Tanel Kiik: riigi roll on inimesi võrdselt kaitsta ja igakülgselt vaenukõnet taunida [Tanel Kiik: it is the state’s role to protect people equally and condemn hate speech in every way]. https://feministeerium.ee/tanel-kiik-riigi-roll-on-inimesi-vordselt-kaitsta-ja-igakulgselt-vaenukonet-taunida/. 28 June 2019.

[18] Võrdse kohtlemise seaduse muutmise [Act amending the Equal Treatment Act]. 2017. Draft acts’ information system, file no 19-0616

[19] See, for example, the conclusions of analyses of the 2019 Riigikogu election programmes by the Estonian Human Rights Centre https://humanrights.ee/2019/02/erakondade-valimisprogrammid-inimoiguste-vaates/. 11 February 2019.

[20] Viirand, L. Kohus karistas pearabi solvanud meest arestiga [The court punished the man offending the head rabi with arrest].  https://www.err.ee/921578/kohus-karistas-pearabi-solvanud-meest-arestiga. 19 March 2019.

[11] Tooming, M. Kohus karistas pakistanlast rünnanud meest kaheksa arestipäevaga [Court punished the man who attacked the Pakistani with eight days of arrest]. https://www.err.ee/945560/kohus-karistas-pakistanlast-runnanud-meest-kaheksa-arestipaevaga. 24 May 2019.

Key topics

  • The funding of non-governmental organisations has been made clearer and more objective after dissolution of the Council of the Gambling Tax, but the legal bribe money (“roof money”) remains.
  • Civic participation in expressed more visibly in numerous protests and less in well-thought-out and informed involvement.
  • Funding of NGOs in the field of human rights has come under attack.

Political and institutional developments

There has been little change to promises and activities in Jüri Ratas’ two governments that have been in force in the reporting period, or the promises have not materialised into activities of substantial effect. As in the last 15 years, the institutional development of the civil society has mainly been about sorting out inclusion and funding, as well as increasing capability of NGOs. The next development document for civil society should be prepared in autumn of 2019, which does not seem to contain any substantial innovation in its problem descriptions nor in its goals.[1]

Legislative developments

Most of the proposals discussed in the government at the end of 2017 to bring more private money into civil society were not met with support from the cabinet.[2] Only the amendment to the Income Tax Act has been implemented, allowing to be put on a list of companies that enjoy tax benefits within 30 days instead of the previous 4–11 months.[3] The promise was also made that as of 2020 there would be an opportunity to direct a private person’s tax return directly to donations at the e-Tax Board, and to further analyse the possible testing of social impact units (SIB). The proportion of private donations does continue to grow each year, but it can be explained by economic growth as well as tax incentives.[4]

The Gambling Tax Act, which was amended in October of 2018, is presumably of greater importance, eliminating the supervisory board consisting largely of politicians, which had been making the decisions. This allows ministries to find long-term strategic partners primarily in education and social fields. The Estonian Ministry of Education and Research found its partners in an oblique decision-making process, the Ministry of Social Affairs held two open competitions in 2019. The change has caused confusion in NGOs in the transitional period and has a negative effect on organisations who cannot make it into the circle of partners. The option of project grants has been retained in the social sphere, from now on via the State Shared Service Centre (Riigi Tugiteenuste Keskus).

A development programme for strengthening strategic partnership was launched at the request of the Government Office and the Ministry of the Interior in the summer of 2019, where the Network of Estonian Non-profit Organizations and the Centre for Applied Anthropology of Estonia must reach a more successful partnership through various activities in at least three ministries and compile a handbook for the future.

For the purpose of clearing up funding the Network of Estonian Non-profit Organizations submitted a collective address[5] about ending handing out the so-called roof money to the Parliament in December of 2018, which the next Finance Committee of the next composition of Riigikogu discussed half a year later, on the last day before the summer holiday, but the support of (coalition) parties to the proposal could not be detected.[6]

In September of 2018, all legal persons were struck by the requirement under the money laundering regulation to appoint actual beneficiaries in the commercial register, who, in case of NGOs and foundations are nearly always the members of the management body. Due to little benefit, but a lot of administrative burden, the obligation was particularly disliked by the NGOs and religious associations.[7]

However, as of 2018 religious associations were made exempt (in practice this wasn’t required earlier either) from posting the original signature sheet of the general meeting accompanying the declaration to the commercial register, as the Ministry of Justice discovered that this way the State unconstitutionally stores data on people’s religious beliefs. The ministry has not agreed to a similar alleviation to bureaucracy for all NGOs.[8] Some changes can be expected from the outcome of review of NGO law in 2020, as the revision work group supported nearly all of the proposals from NGOs to reduce and harmonise regulation.[9]

Court practice

The first known complaint lodged with the court in 2016 about compulsory termination of NGO Liivimaa Lihaveis, because the company’s main activity is economic activity, received a final solution. However, all of the court instances were progressed through solely on the issue of taking the matter into proceedings and the substantive debate was never reached, as the county court detected on the second round that the private limited company applicant had not submitted annual reports and no longer acted in the same field as the NGO, thereby making use of the opportunity not to review the application. The County Court also failed to find facts about abuse of legal form in order to initiate the compulsory dissolution itself.[10]

The courts reached a more substantive result in the second compulsory dissolution case in October of 2018, which was seemingly about a technical question of consequences of not filing an annual report.[11] A small women’s society Tallinna Vanalinna Soroptimistide Klubi was deleted from commercial register as the last annual report had been filed electronically in 2011 and some parts had been submitted by post. The debate reached the Supreme Court en banc, which reviews just three or four cases a year because the Civil Chamber had questions about constitutionality of the regulation.

It was first discussed whether the assistant judge had the right to make the dissolution decision; secondly, whether small clubs can be demanded they submit an annual report or they are deleted from the register; and thirdly, whether it is constitutional to not accept an annual report on paper and then not notify of it without setting a new deadline. Answers to two first questions were “yes”, to third one “no”, and this process was declared unconstitutional.

The dissenting opinions were more interesting than usual, where ten justices of the Supreme Court out of sixteen were discussing the role of administration of justice in matters of the register in five dissenting opinions, but finding that a uniform obligation for filing an annual report can breach the freedom of association. Particularly when it has to do with organisations, the activity or financial matters the public has no interest in. The justices’ opinions were shared by the revision panel of society law, and they offered solutions for establishing exemptions in order to prevent deletion from the register.[12]

The threat made by chain store Prisma with the help of the patent bureau[13] against the Society of Invisible Animals (Nähtamatud Loomad) for the welfare of chickens, which can be regarded as the sometimes occurring “silencing complaint” [14] never made it to court. Six months later, Prisma’s foreign parent company announced that the entire group was withdrawing from the sale of eggs from caged hens.[15]

Another application that had characteristics of a “silencing complaint”, the application of the foundation For the Protection of Family and Traditions (Perekonna ja Traditsiooni Kaitseks) to the Data Protection Inspectorate that the UNI-FORM app for notifying hate speech infringes on the rules of data protection because the haters’ data is being processed behind their backs was also unsuccessful. The misdemeanour procedure was terminated when the Inspectorate could not identify a breach of data processing requirements.[16]

Statistics and surveys

In 2019 two large-scale studies commissioned by the Ministry of the Interior were prepared on the subject of volunteering[17] and the effects of the civil society development plan.[18] No significant or new trends were identified in the last five years in either of the studies, the changes to figures were somewhat explained by a better methodology. There is a continuing trend where the freedom of association is increasingly less institutional, i.e. temporary, one-off or informal activities are preferred instead of joining NGOs or volunteering on a permanent basis.

As a positive trend nearly half of the population takes part in volunteering and there is general satisfaction with the government’s activities in developing the civil society. Capabilities of NGOs have not changed significantly, the landscape is still characterised by significant fragmentation between nearly 23,000 registered societies.[19]

Good practices

While above the government was criticised about the lack of support for including private money in societal matters, in 2018 private entrepreneurs in cooperation with Heateo Sihtasutus created two private equity support funds (discovering, among other things, that their contributions could be taxed due to harsh restrictions). Capacity of the education fund[20] ended up being one million euros, and half a million euros for the impact fund.[21]

Another European Economic Area grant opened for five years in summer of 2019, which, this time under the name of Active Citizens’ Fund, distributes 3.3 million euros to NGOs both for activities as well as for increasing their capacity.[22] The fund offers a temporary relief for the constantly dwindling budget of the National Foundation of Civil Society.

Noteworthy public discussions

Civic activity was still visible in the reporting period, and manifested largely as protests. Rather emotional discussions against the forestry policy, Rail Baltic, Reidi road as well as particularly forcefully planned pulp plant also continued. The latter was even considered a landmark in the history of Estonian civic activism,[23] but similar observations about the year of awakening of the civic society are made now and again: for example, in 2012 in relation to a sequence of events arising from the financing scandal of the Reform Party,[24] or in 2006, which was compared to the singing revolution because Toomas Hendrik Ilves was elected president.[25]

Freedom of assembly continues to be well-protected in Estonia and this right is actively made use of. Several new civil movements such as “Kõigi Eesti”, “Jah vabadusele, ei valedele” or “Stenbock mornings” were created after the 2019 elections, which organised one-off or even weekly protests against the populist government. Due to the international trend more attention was paid to the climate topic, where also here the young people were activated under “Fridays for Future”, organising weekly climate strikes in different cities.[26] For the first time, there were marches in support of women and science.

The Estonian Conservative People’s Party (EKRE), which was included in the coalition since the 2019 elections continues to cause anxiety among the human rights NGOs. The civil society began to take the party’s demands to end funding of human rights NGOs, which they have stated earlier as well, a little bit more seriously.[27] However, after the attempt at Rakvere city council[28] (see “Case description”) no further steps have been taken, even though threats have been issued in addition to the head of the party also by the President of the Riigikogu[29] and the deputy head of EKRE faction.[30] The discussion commenced with renewed energy in autumn of 2019, when an obviously coordinated campaign was started, the messages of which were also supported by Pro Patri ministers.[31]

Trends

Of course, each protest has brought about opposing reactions, mass meetings by opponents, so that there seems to be no end to the so-called war in the trenches. Instead, the battle ground keeps expanding and the public authority and the business sector must find new and inventive ways of having a public discussion in order to build anything anywhere or carry out larger reforms. In addition to the aforementioned pulp plant the communities have been activated by all kinds of new objects, especially locations of the syringe exchange centres or special care homes, the persistent rejection of which stemming apparently from ignorance and fears[32] by neighbours in many Estonian cities may create new problems in society.[33]

Passionate debates over the ideas of the current government to expand the possibilities of direct democracy are likely to be ahead of us: the government’s program of action promises to use more referendums in the future,[34] the worst future scenario of which would be a populist authoritarianism.[35]

Recommendations

  • Implement the project for more efficient legislative drafting developed in the open governance partnership (Avatud Valitsemise Partnerlus) activity plan in order to promote transparency in engagement, participation and policy-making.[36]
  • Analyse the state of democracy in local governments in terms of inclusion as well as funding and offer help where necessary.
  • Make information gathered by the government accessible as open data (including that of Centre of Registers and Information Systems) in order to make government more transparent and create added value for the data.
  • Encourage donation and philanthropy more forcefully with tax policy.

Case description

Two administrative court rulings came into force in summer of 2019, one declaring unlawful the 2018 decision of Rakvere city council to reject the NGO Sevenbow’s request for funds to the extent decided by the Cultural Affairs Committee; and the other annulling the 2019 decision, obliging the city to grant the request.[37] Both disputes were on similar grounds: the Cultural Affairs Committee rated the application of the LBGTI+ film festival highly, but the council reduced the amounts on its own volition, having no authority to do so according to the procedure it had established itself. The city of Rakvere did not appeal the decisions, but the member who had been the most vocal in the council against Festheart vowed to change the proceedings for cultural and sports events in a way which would allow the council to bypass the proposals of the Cultural Affairs Committee in the future.[38] This is probably the first known case where an administrative decision has been influenced by anti-LGBT hatred. The court did not address the violation of the non-discrimination clauses stated in the constitution.


[1] Ministry of the Interior. Kodanikuühiskonna programm 2021-30 [Civil society programme 2021–2030].

[2] Hea Kodanik. Ettepanekud annetustesõbralikuks maksupoliitikaks [Suggestions for a donation friendly tax policy].

[3] Estonian Tax and Customs Board. 2019. Muutub tulumaksusoodustusega ühingute nimekirja koostamise ja sealt kustutamise kord[The process of joining the list of associations with income tax incentive is changing], 18 June 2019.

[4] Kübar, U. 2018. Urmo Kübar: keskmine annetaja kulutab kuus heategevuseks tassi kohvi maksumuse [Urmo Kübar: the average person making donations spends the equivalent of a cup of coffee in a month], Edasi, 13 December 2018.

[5] Rammo, A. 2017. Lõpetada katuseraha jagamine Riigikogus [Stop handing out “roof” money in Riigikogu], 23 October 2017.

[6] Hea Kodanik. 2019. Riigikogu arutas katuseraha rahvaalgatust, jätkab sügisel [Riigikogu discussed the people’s initiative of “roof” money, to be continued in autumn], 10 June 2019.

[7] ERR. 2019. Usuühendused ei saa vabastust tegelike kasusaajate avaldamisest [Religious associations will not be exempt from publishing actual beneficiaries], 20 March 2019.

[8] Hea Kodanik. 2018. Usuühingud pääsesid üldkoosoleku allkirjalehest [Religious associations exempt from signature sheet of general meetings], 12 January 2018.

[9] Ministry of Justice. 2019. Ühinguõiguse revisjon [Review of society law].

[10] Civil Chamber 13 September 2017 Regulation no 2-16-17452.

[11] Supreme Court en banc 2 October 2018 judgment no 2-17-10423.

[12] Ministry of Justice. 2019. Ühinguõiguse revisjon [Review of society law].

[13] Joost, M. 2019. Prisma ähvardab loomakaitseorganisatsiooni Nähtamatud Loomad kohtusse kaevata [Prisma threatens to sue animal protection organisation Nähtamatud Loomad], Postimees Tarbija, 30 January 2019.

[14] Vikipeedia. 2019. Vaigistuskaebus [Strategic lawsuit against public participation].

[15] Prismamarket. 2019. S-Grupp loobub järk-järgult puurikanade munade müümisest [S-Grupp gradually phases out selling eggs of caged hens], 26 July 2019.

[16] Data Protection Inspectorate. 2018. 2.2.-6/17/2378, 18 April 2018.

[17] Käger, M and others. 2019. Vabatahtlikus tegevuses osalemise uuring 2018 [Survey on participation in volunteering 2018], Institute of Baltic Studies.

[18] Rikmann, E and others. 2019. Kodanikuühiskonna arengukava mõjude vahehindamine [Interim appraisal of effects of the civic society development plan], Tallinn University, Institute of Baltic Studies, Turu-uuringute AS 2019.

[19] Äriregister ning mittetulundusühingute ja sihtasutuste register tegevusalati seisuga 01.09.2019 [The Commercial register and the Register of NGOs and Foundations as of 1 January 2019 according to areas of activity].

[20] Heateo Haridusfond [education fund].

[21] Heateo Mõjufond [impact fund].

[22] Active Citizens Fund in Estonia.

[23] Kruup, K. 2019. Kodanikuühiskond tselluloosisõjas [Civil society in the pulp war], Müürileht, 11 February 2019.

[24] Rammo, A. Freedom of assembly and association, Human rights in Estonia 2012, Estonian Human Rights Centre.

[25] Delfi. 2006. Laulev revolutsioon Ilvese toetuseks [Singing revolution for supporting Ilves], 12 September 2006.

[26] Parksepp, A. 2019. Kliimastreik jõuab Eestisse. Reedel lähevad noored kooli asemel tänavale [Climate strike reaches Estonia. Young people take to the streets instead of going to school on Friday], Delfi, 12 March 2019.

[27] Olup, N-M. 2019. Mart Helme: feministeerium ja teised valitsusvälised organisatsioonid tegelegu oma rahaasjadega ise [Mart Helme: feministeerium and other non-governmental organisations should look after their own finances], Postimees, 28 March 2019.

[28] Ojaperv, A. 2019. Volikogu täitis kohtu otsuse ja toetab Festhearti rahaliselt [The council complied with the court’s decision and supports Festheart financially], Virumaa Teataja, 30 August 2019.

[29] Postimees. 2019. Riigikogu esimees Henn Põlluaas ründas Postimeest ja inimõiguslast [President of the Riigikogu Henn Põlluaas attacked Postimees and a human rights activist], editorial, 07 April 2019.

[30] Adamson, S. 2019. Helle-Moonika Helme: LGBT ühingu rahastamine ei ole kindlasti prioriteet [Helle-Moonika Helme: funding of LGBT Association is definitely not a priority], Delfi, 06 September 2019.

[31] Nagel, L. 2019. Rahvastikuminister Riina Solman mõistab Varro Vooglaiu pahameelt LGBT ühingu toetuse osas: riigipoolne rahastus on paigast ära [The Minister for Population understands Varro Vooglaid’s discontent about support for the LGBT Association: the state funding is uneven], Delfi, 11 October 2019.

[32] Väli, K. 2018. Kuidas möödus Sitsi süstlapunkti 365 päeva? Kas sealtkandi elanike hirm oli asjatu? [How were the 365 days at Sitsi needle exchange? Was the fear of people of the neighbourhood in vain?], Õhtuleht, 27 September 2018.

[33] Sepper, M-L. 2019. Kui puudevaenulikkusest saab kuritegu [When hatred against disability becomes a crime], Sirp, 14 June 2019.

[34] Vabariigi Valitsuse tegevusprogramm 2019-23 [Action program of the government 2019–2023].

[35] Saarts, T. 2019. Esindusdemokraatia 21. sajandil – hääbumine või teisenemine? [Representative democracy in the 21st century – fading away or transformation?], Vikerkaar.

[36] Government Office. 2019. Õigusloome tõhustamine [Making legislative drafting more effective], 27 March 2019.

[37] Grossthal, K. 2019. Jõustusid Festheart filmifestivali kohtuotsused [Court judgments regarding Festheart film festival came into force], Estonian Human Rights Centre, 24 July 2019.

[38] Ojaperv, A. 2019. Volikogu täitis kohtu otsuse ja toetab Festhearti rahaliselt [The council complied with the court’s decision and will support Festheart financially], Virumaa Teataja, 30 August 2019.

Key topics

  • The media landscape continues to be diverse and freedom of expression is generally protected.
  • Self-regulation of the press is working.
  • Political pressure on media and journalists who are critical of the government is worrying, in case of the newspaper Postimees there are examples of interference by the owner.

Political and institutional developments

Freedom of expression is stated in Article 10 of the European Convention on Human Rights (ECHR) and in paragraphs 44–46 of the Constitution of the Republic of Estonia. Freedom of expression is important in itself as well as a prerequisite for exercising other freedoms. This entails the freedom to express one’s thoughts and impart information in various ways and the right to obtain information. Media-related acts, access to information and data protection also have to do with freedom of expression. Freedom of expression can be restricted in certain circumstances and for protection of other rights (for example, privacy and data protection that is related to it), for security considerations, for curtailing hate speech, or for other reasons, such as broadcasting licensing and other communication technology regulation.

The state of freedom of expression in Estonia has been quite good since regaining of independence. The situation continues to be quite good, although this year – after the new government took office, where the participating political parties have expressed doubt about universality of freedom of press or human rights, for example – there have been several challenges and political pressure on the media. This far the media has largely been able to stand up to the pressure and there have been no direct restrictions to freedom of expression.

For the first time in a long while the international media organization Reporters without Borders (RSF) published a warning in July of 2019 about the situation of the Estonian media. The RSF drew attention in the press release[1]published on 2 July 2019 on the fact that the owner of one of the leading media groups, who is also a member of Pro Patria, has interfered in the editorial side of the newspaper Postimees. He had personally selected the leading employees and in other ways remarkably supported a conservative world view in the newspaper’s content and symbols used in the paper. For example, there now stands a text under the title of the Paper “We stand for preservation of Estonian nationality, language and culture through the ages”. Postimees has also created a section in the paper called “Our Estonia”, about which it is unclear to what extent this represents independent journalism and to what extent it is opinion pieces and ordered content. The Estonian Press Council has said about one of the articles published under this headline that the article confuses the author’s assumptions and the news without the author distinguishing what his opinions and assumptions are and what are the official views of the other institutions (in this case the Ministry of Social Affairs).[2]Lack of bias in this section of the paper has also been condemned in the wider public debate. Roughly at the same time that these occurrences took place several editors left Postimees, which the newspaper explained as natural developments, but which is being interpreted by several observes as dissatisfaction with the political direction of the paper.

At the same time, the media landscape remains to be rather diverse for such a small country, for example, thanks to the fact that internet media and foreign press is being consumed to a rather large extent.[3] The media sector is generally open, which also means that it can be abused, which does happen occasionally through propaganda departed via the Russian media.

Legislative developments

No remarkable changes have taken place here, however, the statements of the government mean that a certain worsening of the situation can be admitted, as earlier intentions regarding certain amendments have been retracted. This applies to criminalisation of hate speech. In February of 2019 the Ministry of Justice removed references of intent to review the need to criminalise hate speech, thereby publicly rejecting the European Commission’s proposal that all Member States should consider criminalising online hate speech.[4] The new government has not dealt with the topic and they are rather negative about criminalisation in the discussion.

The new Personal Data Protection Act[5] was passed in the period under review, which came into force 15 January 2019 and which deals with the matters that constitute national legislation according to the EU data protection regulation (2016/679) passed in May of 2018. This includes, for example, processing of personal data for journalistic purposes, which is allowed without the data subject’s consent, if there is public interest and it is in accordance with principles of journalistic ethics.[6] Publication of personal data must not excessively damage the rights of the data subject.[7] In 2018 amendments were made to the Public Information Act, for example, in provisions concerning managing websites and mobile apps, mainly that institutions must publish information in mobile apps as well.[8]

Court practice

The Supreme Court decisions made in the period under review have to do with the relationship between availability of data and protection of personal data. Civil Chamber of the Supreme Court explained in its 13 March 2019 judgment[9] the relationship between data protection and access to data in relation to banks and keepers of disturbances to payment registries.[10] The court emphasised that publishing of even correct data on the website of the disturbances to payment register may be unlawful if the provisions of data protection have not been followed, for example, for excessively damaging the data subject’s justified interests by publishing unimportant or irrelevant data. It must be considered in each specific case, which data to deliver and whether the need to deliver outweighs the breach of data subject’s rights and interests. It is important to ascertain who is the controller in case of processing personal data – there may be more than one.

The court mentioned in its Administrative Law Chamber 17 October 2018 judgment[11] that the Public Information Act obliges the local government, upon receiving a request for information (but not as an active disclosure obligation) to provide data on remuneration of local government employees in a personalised form. Two contradictory fundamental rights must be weighed: the right to receive information from the local government about their activities (§ 44(2) of the Constitution) and the right of local government employees to private life (§ 26 of the Constitution). In case of differing opportunities for interpretation the one must be preferred, which guarantees the greatest protection of constitutional values. Purposes of various provisions must be kept in mind, for example, the importance of disclosure in order to avoid corruption. The court remarks that “in an open society, the public, including the press, also play an important role in preventing the misuse of public funds, which cannot be fully replaced by the control of the public authority itself. So, the disclosure of information plays an important part in deterring and preventing potential infringements. While the control of the public authority is usually limited to the assessment of legality, the public also draws attention to ethical questionability.”[12]

The third case that I mention is the Administrative Law Chamber 22 May 2018 judgment[13] about fundamental rights stated in § 44 subsection 3 of the Constitution that every person has the right to have access to information held about them by public authorities and local authorities. The court explains that the right also expands to the relationship with the body carrying out the public obligation and regardless of how the person found out about the data processing, or if he is not even aware of it but wishes to know, for some reason, whether and which of his personal data is being processed by an administrative body. The rights can be restricted based on the Personal Data Protection Act, special acts or the directly applicable legislation of the European Union.

On 17 October 2017 the European Court of Justice issued a preliminary ruling on the Supreme Court’s application on the question of whether complaints can be filed with a court about allegedly defamatory online content in any country where the content is available.[14] The ECJ responded that that they can not, as regards the damage caused by the claim, it is possible to refer it to the court of the Member State where the centre of his or her interests lies or in some situations, where the damage has occurred elsewhere, in the state where the damage occurred.[15]

Statistics and surveys

In addition to acts of law and the court system Estonia also has a system based on self-regulation. Complaints can be filed with Avaliku Sõnu Nõukogu or the Estonian Press Council, as well as the Estonian Public Broadcasting journalistic ethics adviser. In addition to the print media, certain broadcasting channels and the internet media (Delfi) also participate in the system. The number of complaints lodged with the Press Council remains rather similar year on year. In 2018 there were 84 complaints and 81 decisions made (in 2017 the figures were 87 and 64 respectively. In 2018 there were 59 acquittals and 22 condemning decision, in 2017 there had been 34 acquittals and 30 condemning decisions.[16] Avaliku Sõna Nõukogu deals with questions of media ethics. In 2018 Avaliku Sõna Nõukogu had received 19 complaints – 4 dismissals and 1 condemning decision.[17] The number of complaints was lower than in previous years (except in 2014). People are generally aware of the existence of self-regulation; it is not hard to submit complaints and the organs deal with the submitted cases in the prescribed manner.

Good practices

Estonian legislation and the self-regulation is in accordance with the rules in force in Europe. A good practice that is characteristic to Estonia is the high-quality e-governance that works well. For example, e-governance provides good access to information. Estonia is active in internet self-regulation, participating in Freedom Online Coalition,[18] the purpose of which is to create rules that protect internet freedom, while being aware that there may be dangers involved.

Noteworthy public discussions

The period starting from April of 2019, when the new government took office, has brought about several challenges to freedom of expression as well as to media freedom. For example, there have been various attacks on the Estonian Public Broadcasting (ERR), the existence of which is an important part of an independent media landscape in European states based on the rule of law, and that has also been the case in Estonia. In June of 2019 the Minister of the Interior came up with the idea to partially privatise ERR in order to save money.[19] In June of 2019 the deputy leader of the Conservative People’s Party and the representative of the party (the later Minister of Economic Affairs) expressed that “biased” journalists at ERR should be punished and taken off air.[20]

In the period under review a lot of attention has been on the leaving of well-known journalists from various media publications, allegedly because of political pressure. In April of 2019 Vilja Kiisler left Postimees after the editor-in-chief expressed disagreement with her article on EKRE. In the same month Ahto Lobjakas who had been a long-time anchor-man at ERR’s Raadio 2 announced that he was given a choice between self-censorship and leaving, as his criticism of the government coalition had been too severe.

In the current period there have also been emotional and sharp debates on socially controversial topics (such as the Registered Partnership Act and refugees), especially in internet commentaries, which draw attention to possible negative consequences of freedom of expression. Even though several media publications have created systems for taking down unsuitable comments and attempt to improve the culture of communication, it is still often insufficient.

Freedom of expression also means the freedom to express negative information and to some extent the kind of information that divides society if it does not cross the line and turn into incitement of hatred and violence. We have mentioned this in earlier reports, that freedom of expression works if it is possible to publish and discuss all kinds of views. Unfortunately, the lacking culture of communication, which in Estonia can be seen on social media, means that people may avoid the public role. Unfortunately, there is no foreseeable progress in this field.

Trends

The statements of government parties that go against human rights and ignoring of various human rights have created a worrying situation, which is to some extent analogous to what can be seen in such countries as Hungary and Poland, where gradual erosion of the state based on rule of law has taken place. This has been particularly successful in Hungary, where there is no independent media and where, unlike in Estonia, the foreign media is consumed to a small extent.[21]This far there has been a rather lively debate in Estonia. The civil society has mobilised and organised several protests for human rights, which the media has adequately covered.

Recommendations

  • We repeat the earlier recommendation to review acts associated with hate speech and to adopt the necessary amendments.
  • Members of the government should publicly support freedom of expression and free media as vital components of the state based on rule of law, regardless of whether media publications support their political views or not.

Case description

The most interesting cases in freedom of expression in this period have been associated with the alleged political pressure of journalists and attempts to make them use self-censorship in criticism against government. More well-known examples of this are the aforementioned Vilja Kiisler and Ahto Lobjakas instances. Self-censorship is always difficult to evaluate objectively, as those applying political pressure do not usually admit it, but bring up other reasons why journalists leave or are removed. At the same time, it is hard to know why and to what extent the journalist feels the pressure and how justified their fears are. But this does not mean the danger of self-censorship should not be drawn attention to as it a very important factor in making the media landscape less open.

Both Vilja Kiisler and Ahto Lobjakas cases have several characteristics typical to self-censorship. Kiisler said she decided to leave Postimees as he and the editor-in-chief had fundamentally differing understanding of journalistic freedom and freedom of opinion and that it became apparent especially in connection to her opinion pieces that were critical of EKRE. The editor-in-chief admitted that there had been differences of opinion, but these had been questions of style and that there had been no pressure.[22]

Ahto Lobjakas has himself emphasised that he was not fired, but given a choice between self-censorship and leaving. He claimed that after forming of the new government he received signals that his criticism of the new coalition was too harsh and that he was trying to unduly influence politics. Lobjakas says that his choice of words was criticised and he was recommended to be less direct. He was also advised to take some time off in the interests of his mental health.[23]

In both cases, as customary in self-censorship, the leaving of journalists can be explained with other circumstances than politically motivated pressure, but at the same time it cannot be proved that there was no such pressure. The positive thing is that both journalists continue their work in other media publications, which indicates that this far the media landscape in Estonia is still relatively free.


[1] RSF. 2019. Editors abandon Estonia’s leading daily because of owner meddling, 02 July 2019.

[2] Estonian Press Council. 2019. Kaebus nr 901. Pressinõukogu otsus 29.05.2019 [Complaint no 901. Press Council’s decision of 29 May 2019].

[3] This is possible due to good language skills. Estonia is one of the states in the world with most foreign language skills. Eurostat. 2019. Foreign language skills statistics.

[4] Pau, A. 2019. Eesti vilistab Brüsseli nõudele kriminaliseerida vihakõne [Estonia whistles at Brussels’ requirement to criminalize hate speech], Postimees, 8 February 2019.

[5] Riigikogu. 2019. Isikuandmete kaitse seadus [Personal Data Protection Act]. State Gazette I, 04.01.2019, 11.

[6] Initially it was advised to use “overwhelming public interest”, but just before it was passed in Riigikogu the government revoked the draft.

[7] Ibid. Paragraph 4. Processing of data for the purpose of academic, artful and literary expression as well as scientific and historic research is allowed on similar conditions by law.

[8] Riigikogu. 2018. Avaliku teabe seaduse muutmise seadus [Act amending the Public Information Act], State Gazette I, 14.11.2018, 1.

[9] Civil Chamber of the Supreme Court 13 March 2019 judgment no 2-17-1026.

[10] Based on the previous Personal Data Protection Act, considering when the disclosure of data in question took place.

[11] Administrative Law Chamber of the Supreme Court 17 October 2018 judgment no 3-15-3228/37.

[12] Ibid. section 18.

[13] Administrative Law Chamber of the Supreme Court 22 May 2018 judgment no 3-15-2079

[14] Official Journal of the European Union. 20 December 2012. Regulation No 1215/2012 of the European Parliament and of the Council.

[15] European Court of Justice. 2017. Case C-194/16 Bolagsupplysningen and Ilsjan.

[16] Estonian Press Council. 2019. Statistics 2008–2018.

[17] Avaliku Sõna Nõukogu. 2019. Statistics 2011–2018.

[18] Freedom Online Coalition.

[19] Raal, K. 2019. Mart Helme: ERRi võiks koomale tõmmata ning selle raha kasutada päästjate ja politseinike palkade tõusuks [Mart Helme: ERR could be made smaller and its money used for pay rise for rescuers and police officers], Delfi, 10 June 2019.

[20] Nael, M., Ellermaa, E. 2019. Martin Helme soovib ERR-i nõukogult “karistamist” [Martin Helme wishes to “punish” ERR supervisory board], ERR, 28.03.2019;  Lomp, L-E., Olup, N-M. 2019. Martin Helme soovib «kallutatud» ajakirjanike eetrist maha võtmist [Martin Helme wishes to take “biased” journalists off air], Postimees, 29 March 2019.

[21] The Economist. 2019. How Victor Orban hollowed out Hungary´s democracy, 29 August 2019.

[22] Krjukov, A. 2019. Vilja Kiisler lahkub Postimehest erimeelsuste tõttu peatoimetajaga [Vilja Kiisler leaves Postimees because of differences with editor-in-chief], ERR, 22 April 2019.

[23] Püss, F. 2019. Ahto Lobjakas: mind ei vallandatud, anti valida enesetsensuuri ja lahkumise vahel [Ahto Lobjakas: I was not fired, I was given a choice between self-censorship and leaving], Delfi, 27 April 2019.

Key topics

  • Focus has shifted from privacy to data protection, as well as towards practicalities regarding coming into force of the General Data Protection Regulation.
  • Statistics of the Data Protection Inspectorate indicate that demystification has brought about people’s greater awareness of their rights and how to protect them.
  • In sharp conflict with the current international law, the European Court of Justices’ practice as well as the European Court of Human Rights’ practice the indiscriminate storage of communication data of Estonia’s people continues to take place.
  • Estonians are rather uninterested in privacy compared to other Europeans.

Political and institutional developments

Estonia’s cyber security strategy 2019–2022 published in spring of 2019 states that new e-services and databases will be built with a view of the principle of security and privacy by design. The strategy differs from its two predecessors by the fact that privacy and cyber security are viewed as one whole, and solutions are being looked for, which would help harmonize the by now rather unstable e-services network and secure against attacks and leaks.[1]

The strategy was prepared as an intersecting cooperation under the leadership of the Ministry of Economic Affairs and Communications. Compilers of the strategy admit, among other things, that the implementation of most public sector IT solutions takes into account the security aspect, but responsibility is decentralised and central support is not sufficiently systemic. In order to implement the architectural principle of security in a more efficient and systematic way, creation of a system of guidelines to ensure the quality of development processes, together with a feedback and control mechanism is planned. The strategy also states: “Despite separate regulations, it is no longer reasonable or feasible to treat data protection and information security as separate disciplines. Therefore, in planning further activities, we will build on the principle that implementation of information security and data protection requirements must, despite separate regulation, be treated as a whole, which ensures reliability of the development and operation process by seeking their consistent and holistic implementation. This requires enabling and supporting judicial and administrative arrangements.”[2]

In general, the goal is to create a uniform system of security requirements in developing the public e-services, which includes minimum requirements for information security and data protection. Such integrated approach is the only solution in the context of cooperating databases and information systems, but achieving that may prove a very complex and resource demanding undertaking – especially considering the complex landscape of public e-services and the plurality of various service providers. This obviously requires a closer substantial cooperation between the Data Protection Inspectorate and Information System Authority.

Similarly to the cyber security strategy the information society development plan, which was published a little later, emphasises that, in the context of increasing data volumes and widespread cross-usage of data, people will be able to cope with a certain loss of privacy by having control over the use of their data. Among other things, creation of both technological and organisational conditions is planned so that people can always know and direct who, when and for what uses the data that that the state possesses.[3]

A lot has been said about the expected significant increase in Data Protection Inspectorate’s workload, yet it can be concluded from the inspectorate’s 2018 yearbook, that neither after coming into force of the General Data Protection Regulation or directly before it, its funding and the number of employees have not significantly increased. However, the published statistics clearly indicate an increase in the workload. This, in particular, concerns the work of the reviewing officer, advising of companies and authorities; responding to requests for clarification, memorandums, written request letters and requests for information. Above all, this practice gives the impression that as a result of the practical change to the data protection law people have actually become more aware and active. This is probably because the General Data Protection Regulation creates a strong basis for protecting one’s data, the issue is mostly with the practical enforcement, and here the protectorate can provide the best advice.

Legislative developments

On May 25th, 2018 the General Data Protection Regulation[4] and the so-called law-enforcement authorities’ directive came into force.[5] However, the first national implementing provision came into force in January of 2019. The regulation and the amendments it introduced on one hand mean a stronger protection of individuals’ rights, but on the other hand, a much more extensive and resource-intensive administrative network.

The format of the yearly report is not the best for retelling the regulation, especially since there are expert summaries and commentaries both in Estonian[6] and in English[7] available, but some of the most important changes or clarifications of the regulation from the perspective of the individual should be pointed out. The regulation does not create brand new rights for the individual, but it does expand and clarify them – they already existed in a less clear and less effective form before.

According to the regulation the data subject has the right to:

– Information. Right to information has been clarified and made much easier to understand and implement in the regulation. Data controllers (companies and organisations) must explain in an understandable manner which personal data is being collected and for what purpose. If a data controller creates profiles for data subjects, the latter has the right to know what is in the compiled profile.

– Safe data processing. According to the regulation, data must be collected and processed according to security requirements, which means the data controller must employ organisational and technical measures appropriate in modern technological context, in order to guarantee confidentiality and prevent leaks. As of May 25th, the data processor also has the obligation to notify the Data Protection Inspectorate of all breaches to do with personal data.

– Right to acquaint themselves with data gathered about them. The person whose data is being processed has the right to control their validity, as well and change and amend the data. Also, if the data is no longer relevant or necessary, he or she has the right to demand their deletion.

– The principle of minimal data processing has been clearly regulated, which means that the person is not obligated to provide any more data about themselves than strictly necessary for providing a particular service.

– Additionally, the data subjects have the right to make objections and demand explanations for automated decision-making processes and, where necessary, a human intervention in them.

An answer was also provided to the question which jurisdiction prevails in cases where the data of data subjects who are in the European Union is processed outside EU’s territory. The regulation applies for all cases, where data of data subjects located in the EU is processed, regardless of the location of processing.

The Personal Data Protection Act regulates, among other things, differences in processing personal data in the context of science, historic studies and journalism. Processing for journalistic purposes was permitted in the original draft in the case of “overwhelming” public interest. Critics interpreted it as a disproportionate restriction on freedom of expression, and the version that came into force simply allows for a matter of public interest.

Even though not a single binding legislation has been drawn up after the regulation was implemented, there is growing hope that Estonia does intend to bring the national law into concordance with the binding European court practice and the international obligations. On October 31st, 2018 the Ministry of Justice published “The Draft Law on Electronic Communications Act and related amendments to other laws”.[8] In 2016, in its judgement Tele 2 Sverige, the European Court stated unequivocally and exhaustively that ICT service providers should not be required to collect data about unspecified amounts of people for security purposes and that data collection must always be based on an objectively explicable suspicion. And this despite the existing remedies and monitoring mechanisms.[9]

In light of this the text of the draft law comes across as relatively cautious, setting as its goal “to establish more precise and clear criteria to situations, where storage of communication data is permitted, as well as their later use in various proceedings, thereby guaranteeing persons’ right to private life and a better protection of personal data.”[10] In Ministry of Justice’s appraisal, the use of communication data in various proceedings in acquiring evidentiary information is vital, however, at the same time the importance of protection of personal data and rights of data subjects is also emphasised. Yet the practice of the European court has taken a clear view that service providers may store communication data only to the extent that it is necessary for provision of the service. The investigative bodies and security authorities will always have the option, which was also available to them before the Retention of Data Directive – of requesting the retention of data of a certain service provider by court order (the so-called quick freeze). What is positive is that even though a clear intent of abolishing the obligation to retain communication data is not announced, the draft act does contain enough clarifications and amendments to monitoring, legal remedies, restriction on access and access permits as well as the nature of retained data. In its opinion the Estonian Human Rights Centre drew attention to the fact that if the direct access regime is maintained the communication enterprises must be able to assess the lawfulness of the requests and be able to challenge them.[11] It was also recommended to gather accurate statistics about access requests and clarify the powers of supervisory authorities and the law enforcement measures, including in the context of international security cooperation.

Even though there is almost no publicly available statistical data about how communication data has been used this far and how it has influenced criminal, misdemeanour or civil proceedings, development can be seen here too. The Chancellor of Justice assessed in 2018 whether the data listed in sections 111 prim (2) and (3) of the current Electronic Communications Act had been requested from Telia, Elisa and Tele2 and whether they had been used lawfully. There it is very important to bear in mind that the assessment did not look at enquiries made in the course of criminal proceedings and the information procurement of the security authorities, and a more thorough analyses was made of use of communication data in civil proceedings. It became apparent that mostly the enquiries had been made according to the purpose and were justified, the surprisingly small number of enquiries also stands out:  in misdemeanour proceedings 47 enquiries were made in 2017–2018, with 86 enquiries made in civil court proceedings in a total of 26 cases. The Chancellor of Justice pointed out as the greatest problem area the substantive nullification of the current order (according to which the use of communication data is monitored by Consumer Protection and Technical Regulatory Authority) and recommended it be replaced by a general obligation of state authorities that use communication data to keep track of communication data enquiries. In addition, it was recommended that use of communication data in misdemeanour proceedings be limited to only those cases where the misdemeanour is committed using a means of communication or in regards to it.[12]

Surveillance was also affected by the draft amendments to the Defence Forces Organisation Act, which, for protection of restricted military area of the Defence Forces in cases of urgency, for the purpose of determining and deterring serious danger, provides the Defence Forces the option to covertly verify personal data from the state, local government or other public or private legal person’s database, use shadow data and conspiracy techniques and to monitor a person covertly. In March, President Kersti Kaljulaid did not announce the amendment, on the grounds that granting the Defence Forces such a right is disproportionate and significantly prejudices the fundamental rights of civilians in the restricted military area to family and private life, to integrity of the home and to secrecy of the message. The President drew attention to the fact that the act does not define “covert surveillance” sufficiently clearly, thus leaving the surveillance authorities too large a scope for interpretation and the opportunity to disproportionately infringe the rights of civilians.[13]

Court practice

In February, the Supreme Court referred for a preliminary ruling from European Court of Justice, which is expected to shed even more light on the legality of the current rules for storage and use of communications data.[14] Even though surveillance activities that have taken place according to the Electronic Communications Act have been unsuccessfully challenged in other cases that have concerned more serious necessary elements of a criminal offence, the Supreme court decided to refer for a preliminary ruling in a case concerning smaller criminal offences against property. Thefts committed by the accused cannot probably be classified as serious offences. The current Electronic Communications Act does, however, allow requesting issuing of meta data from the ICT service provider with a permission from an assistant prosecutor working on the case. Contradictions with the practice of the European Court of Justice are apparent. The Supreme Court wanted to know, whether in the view of the European Court of Justice retaining and sharing of meta data with state authorities poses that serious a breach of fundamental rights that it must be reserved to investigation of serious crimes only, regardless of what period of time the observable data concerns.[15] Secondly, there is a question about whether the amount of accessible data (in volume and as to the extent of time) has a connection to the seriousness of the crimes under investigation – so that gathering smaller amounts of data poses a smaller breach and is justifiable also in investigating less serious crimes, larger data in content and time period, however, may only be gathered to combat serious crime.[16] Thirdly, the Supreme Court would like to know whether the prosecutor leading the pre-trial procedure can be considered an independent administrative authority, whose previous permission and surveillance prevails over access to data according to the judgement in Tele2 Sverige.[17] Whatever the answers to these questions, they have to be reflected in the future regulation of retention, access to and use of communications data, which hopefully will be proportionate, humane and reasonable. In reply to the query of the Estonian Human Rights Centre the Ministry of Justice stated that the development of amendments to the Electronic Communications Act is partly delayed because of the expected change to case law of the European Court of Justice.[18]

Statics and surveys

Of the surveys conducted in the observable period the Eurobarometer ad hoc survey on the General Data Protection Regulation deserves a mention.[19] Estonian respondents were digi-friendly and -skilled, as expected, but just 53% of the respondents had heard anything about the regulation. As a comparison, this figure in Sweden was 90% and in Poland 86%. At the same time, the Estonian respondents were probably the most active in standing up for their rights. 39% had taken advantage of the right to look at data collected about them, 36% had demanded rectifying false information about them, 25% had made use of the right to have data deleted, 13% of Estonian respondents had made use of the right to be involved in automated decision processes. Estonians were above average in awareness about data protection monitoring and knew where to turn to in case of suspicion of infringement. If already the 2016–2017 chapter referred to Estonians’ great trust, the current survey confirms this – just 39% of respondents admitted that they are disturbed by the fact that they can’t control processing of their data in internet environment. In comparison – for example, in Ireland the percentage was 75 and in Latvia 50. The results of the survey indicate that the informed groups are very active indeed, but at the same time, in contrast, groups have appeared that don’t know how to (don’t want to?) protect their rights. These figures also speak of the fact that the chasm between the digitally and privacy aware and those unaware of this topic is much wider than in most European countries.[20]

Trends

In general, it can be said that two processes are taking place at the same time. The first refers to popularisation of data protection as a topic – and this is backed up by the Data Protection Inspectorate’s statistics. The other, ironically, refers to normalisation of the surveillance society – this is evident by the remarkably slowly progressing amendments to the order of retaining communications data and the population’s relatively indifferent attitude to possible large-scale surveillance. As is often the case in other areas – solitary cases stand out, but large-scale and systemic discords are not paid attention to. But if we didn’t look at the relatively liberal regulation of surveillance activities hermetically separated from other processes taking place in society, there is every reason to take this seriously in the current political situation.

Recommendations

  • Stop the obligation to retain communications data until coming into force of the planned amendments to the Electronic Communications Act.
  • Carry out an extensive objective statistical survey on how and to what extent the communications data has this far helped fight crime and threats to security.
  • Increase resources allocated to the Data Protection Inspectorate so that it would be possible to hire technical experts who have the necessary expertise to verify compliance with the integrated data protection principle, and monitor, for example, the cross-use of public e-services and systematic analysis of open data.
  • Do not create state authorities who have the authority to carry out surveillance activities on widely defined conditions.

Case description

The case description comes from an area, which has not garnered attention in this chapter, but which will become increasingly important in the future and where Estonia has the chance, thanks to University of Tartu Institute of Genomics, to become a positive pioneer as well as a great failure in data protection.

The Data Protection Inspectorate registered a complaint of a private person concerning issuing of personal data. The appellant had issued a request to the University of Tartu Institute of Genomics to receive data about himself, where he asked for the description of his own DNA. The Institute of Genomics did not have the technical ability and procedural rules to comply with the request. According to the Human Genes Research Act § 11(2) the gene donor has among other things the right to personally access the data kept about him in the Genome Centre. The Genome Centre explained that since it had not issued the gene donors their DNA description data in a form that could be read/interpreted without expert knowledge, the so-called preliminary data, the Genome Centre had no finalised procedural rules about which technical solutions would be used to submit such data to the gene donors. It was also unclear at the time the application was submitted what exactly to interpret as a DNA description: whether it is the raw data, quality-reviewed description data or genetic risk reports drawn up on the basis of the description. As a result of the precedent, the Genome Centre has come to the conclusion to allow accessing the latter two, while the first one won’t be issued to the data subject for fear of misinterpretation. The raw data can be accessed only in the course of an expert consultation by appointment. The Data Protection Inspectorate found that regardless of the Human Genes Research Act a person has the right according to the Personal Data Protection Act and the General Data Protection Regulation to access his gene data in his preferred form and in the level of interpretation, which is why the Inspectorate issued the Genomics Centre a precept to publish the data.[21] This is an interesting precedent as it concerns such questions as informed consent in a technologically complicated context that requires expert knowledge, the person’s opportunity to independently interpret his own data and the possible risks that can accompany it.


[1] Ministry of Economic Affairs and Communications. 2019. Küberturvalisuse strateegia 2019-2022 [Cyber security strategy for 2019–2022], page 22.

[2] Ibid, 23.

[3] Ministry of Economic Affairs and Communications. 2019. Infoühiskonna arengukava 2020 [Information society development plan 2020].

[4] Regulation (EU) 2016/679 of the European Parliament and of the Council. 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), Official Journal 04 May 2016, L 119/1.

[5] Directive (EU) 2016/680 of the European Parliament and of the Council – on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, Official Journal 27 April 2016, L 119/89.

[6] Euroopa andmekaitse reform [European data protection reform].

[7] A guide to GDPR data privacy requirements.

[8] Ministry of Justice. 2018. Elektroonilise side seaduse ja sellega seonduvalt teiste seaduste muutmise eelnõu väljatöötamiskavatsus (sideandmete säilitamine ja kasutamine) [The preliminary draft amending the Electronic Communications Act and other acts], 05 November 2018.

[9] European Court of Justice. Judgment in joined cases C‑203/15 and C‑698/15, Tele 2 Sverige and Watson and Others. 21 December 2016.

[10] n 8, page 4.

[11] Estonian Human Rights Centre. 2018.  Arvamus elektroonilise side seaduse ja teiste seaduste muutmise seaduse

Väljatöötamiskavatsusele [Opinion on the preliminary draft for amending the Electronic Communications Act and other acts], 30 November 2018.

[12] Chancellor of Justice. Processing of data in Electronic Communications Act 111 prim section 2 and 3

[13] President of Estonia. 2019. Otsus nr 435 “Kaitseväe korralduse seaduse muutmise seaduse” väljakuulutamata jätmine [Decision no 435 not to announce the act amending the Defence Forces Organisation Act], 07 March 2019.

[14] European Court of Justice. Case C-746/18: Request for a preliminary ruling from Riigikohus (Estonia) lodged on 29 Nomber 2018 – H.K. v Prokuratuur.

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Ministry of Justice. Response to inquiry of the Estonian Human Rights Centre. 16 September 2019.

[19] Eurobarometer. 2019. Special report 487a. The General Data Protection Regulation.

[20] Ibid.

[21] Data Protection Inspectorate. 2018. Ettekirjutus-hoiatus isikuandmete kaitse asjas nr 2.1.-6/18/9 [Precept-warning in the data protection case no2.1.-6/18/9].

Key topics

  • Independence of the judiciary and the efficiency of the courts’ work remains high
  • Political attacks of the far right on independence of the judicial power continue.
  • In the future the non-issue of visa can be challenged in court.

Political and institutional developments

The coalition agreement.[1] of the Estonian Centre Party, the Estonian Conservative People’s Party of Estonia (EKRE) and Pro Patria that formed the government in the spring of 2019 confirmed the rule of law and the professional and independent administration of justice, even though EKRE had previously called for judges to be made electable and temporary and called for other changes to the justice system..[2] What is positive is the plan to expand free legal advice, access to legal aid and the plan to improve the quality. What is worrying is the naming of special prosecutors and the creation of a special parliamentary committee for the supervision of the prosecutor’s office, which could be used to politicise judicial proceedings.

At the end of September 2018, the term of office of the director general of the Data Protection Inspectorate ended. A new candidate who had been successful in a competition organised by the State Secretary for the appointment of a new director general, the former deputy secretary general at the Ministry of Justice, unexpectedly withdrew his candidacy two weeks before taking office. He said he did it because he could not obtain a state secret permit as a result of the inspection of the Estonian Internal Security Service, presumably because he had not formally notified the Ministry of Justice of the work carried out as an expert at the Council of Europe..[3] The director general was found and appointed after a new competition..[4] She started work at the end of August of 2019. The confusion resulted in a situation where the Data Protection Inspectorate did not have a director at the early stages of implementing the General Data Protection Regulation.

The Data Protection Inspectorate did not get to increase its staff nor the budgetary means during the 2018–2019 budget periods, even though it did experience an increase of new responsibilities and competences as a result of the entry into force of the European Union’s General Data Protection Regulation. This raises the question of whether the Inspectorate corresponds to the requirements imposed on a supervisory authority set by the Regulation. Issues of the Inspectorate’s independence have already been addressed in earlier annual reports, as the institution is in the administration area of the Ministry of Justice and these issues have not been solved to this day.

The period has been characterised by the intensified attacks of the far-right coalition party EKRE against the heads of law enforcement agencies, which question their competence and loyalty. Indirectly, this can be seen as an attempt to influence these institutions’ independence from the political sphere and as an attempt to crumble the foundations of the state based on rule of law.

An incident took place in August of 2019 where the Minister of Finance, acting as a Minister of Interior, and the deputy chair of EKRE, Martin Helme, attempted to unlawfully fire the director general of the Police and Border Guard Board, by pressuring him to resign voluntarily and threatening to fire him if he does not resign..[5] The police director general was able to continue in office after the Prime Minister Jüri Ratas intervened..[6]

In October of 2019 the term of office of the Prosecutor General ended, but no consensus was reached by the government for appointing her for a new term or for appointing a new Prosecutor General. Even though the continuation of the person who had been in office was favoured by both the conservative Pro Patria as well as the centrist Centre Party, the far-right EKRE opposed it, which is why the Minister of Justice did not propose to appoint her as the Prosecutor General by the deadline..[7]

Legislative developments

A significant positive development has to do with challenging visas. Minister of the Interior Mart Helme submitted a draft for coordination in June of 2019, according to which the decision to refuse, revoke or annul a visa can in the future be challenged in an administrative court..[8] Right now those visa-related actions can be challenged in two stages: first by appealing to the authority that made the decision and then either to the Ministry of the Interior or the Ministry of Foreign affairs. Such a situation where decisions relating to visas are not subject to judicial review is, according to the European Court of Justice, not compatible with law of the European Union, including the Charter of Fundamental Rights of the European Union,.[9] and the European Commission has already initiated infringement proceedings against Estonia in 2013. The current situation is probably also in conflict with the Constitution as well as the European Convention on Human Rights, which is why it would be good if the conflict was resolves as quickly as possible.

Statistics and surveys

Discrimination in the legal system based on ethnic, racial or national background was assessed in the JUSTICIA network preliminary survey published in November 2018..[10] It turned out that Estonian national statistics does not distinguish between discrimination based on nationality or citizenship, which is why possible discrimination remains hidden. There are also problems with transposition of the EU procedural law directives, particularly concerning availability and quality of translations, the minorities may also be affected by poor availability of information. Expert interviews confirmed that minorities may negatively be affected by, for example, scarcity of Arabian language interpreters. Aliens are also more easily detained during the pre-trial proceedings as they do not have a family or a social network in Estonia, nor a permanent residence. Alternatives to imprisonment – such as electronic surveillance or financial security – are hardly used in their cases at all. The disproportionately high proportion of the Russian minority among the accused and convicted persons, as well as in prisons, is alarming, but can be explained by the socioeconomic status.

The prisons yearbook 2018.[11] dealt with the independence of courts thoroughly, in particular based on international standards such as the Venice Commission and the case-law of European Court of Human Rights. The yearbook contains a statistical overview of the activities of courts.

Based on results of the World Justice Project Rule of Law Index, in 2019 Estonia ranked 10th out of 126 states and 9thout of 24 states in its region (EU, EFTA and North America)..[12] Generally, in civil law Estonia’s indicator is better than the region’s average, at times even significantly better (for example, in terms of low corruption, discrimination or government’s influence). In criminal law the results are generally good as well, however, timely and effective criminal proceedings rank lower than the regional average.

The World Justice Project also published Global Insights on Access to Justice for the first time in 2019, which is based on survey results conducted in 2017..[13] Estonia’s situation is characterised by the fact that legal problems are primarily experienced in housing, consumer protection, money and debts, as well as in public services. 61% knew where to get help in case of a legal problem and 27% did receive help, although the majority of people received help from a friend or a family member (53%), 37% turned to a lawyer or an advocate for help. 44% received a complete solution to their problem and it took 7 months on average. At the same time, 46% experienced certain suffering in relation to their legal problem, such as a physical or a stress-related illness (33%), or lost their job and had to move (27%). A comparison of states shows that there are no major differences between similar states.

According to the Eurobarometer survey on perceived independence of the justice system Estonian entrepreneurs are unable to assess the independence of the judiciary..[14] 48% responded “don’t know”, 39% deemed independence as “good” and 13% as “bad”. The entrepreneurs’ apathy is hard to explain, especially since the portion of “don’t know” responses increased by 12% on a previous similar survey.

The Chancellor of Justice received complaints about judges on more than twenty occasions, reveals her annual review 2018–2019..[15] The Chancellor did not initiate any disciplinary proceedings about judges, however, because upon studying the materials she did not become suspicious of the judges’ impartiality nor did she detect other infringements, which did not relate to the substance of the case.

Court practice

There was only one court ruling regarding Article 6 of the European Convention on Human Rights at the European Court of Human Rights. In the case Liblik and others v. Estonia the appellants accused in the so-called land exchange trial found that the length of their criminal proceedings was unreasonably long..[16] The ECtHR found that the proceedings were indeed remarkably long, ranging from six years and eight months to eight years and nine months, depending of the appellant. However, the Court did not find that Estonia had violated the subsection 1 of Article 6 of the Convention, as it had been a complicated case involving hidden crimes and high-level conspiracy. The authorities had acted with due diligence and there were no delays or suspensions during the proceedings. The decision will hopefully give Estonian law enforcement authorities the certainty that complex and covert corruption cases can also be investigated in accordance with human rights, even if the proceedings take a long time.

Public discussions

The attacks of the far-right party EKRE against the judicial power continue to take place, which may start to pose a danger to state based on rule of law. For example, in January of 2018 the deputy head of the party Martin Helme told the press that the Estonian justice system “should be demolished and started again from scratch.”.[17] Manner of speech attacking the judicial power has also been continued in the government. In a video interview given to Postimees in July of 2019 the Minister of Finance Martin Helme explained that Estonia should not be a member of the European Convention on Human Rights, because “in fact, there should be no judicial authority above the Estonian court system.”.[18] In the same interview he also criticised the Supreme Court, referring to judgements, which the court had made in relation to rights of same sex couples. In addition to courts, other state institutions, such as the prosecutor’s office and the police have also fallen under pressure from EKRE.

Trends

Major change in the area of justice in the next few years is probably not expected, unless the radical reform agenda of the far-right party EKRE is about to be implemented. The issue under focus continues to be judiciary’s efficient and effective functioning.

 

Recommendations

  • End the attacks against independence of the judiciary by members of the government.
  • Pay increasingly more attention to the effect of prejudices and negative views in the judiciary and study possible institutional discrimination in administration of justice as well as in access to justice.
  • Pass the bill prescribing the option of recourse to court in the event of challenging a visa.

[1] Government of Republic of Estonia. 2019. Eesti Keskerakonna, Eesti Konservatiivse Rahvaerakonna ning Isamaa Erakonna valitsusliidu aluspõhimõtted 2019-2023 [Founding principles of government coalition between the Estonian Centre Party, The Estonian Conservative People’s Party and Pro Patria].

[2] The Estonian Conservative People’s Party. 2018. EKRE volikogu avaldus: Eesti vajab vabaduse, õigluse ja demokraatliku õigusriigi toimimiseks justiitsreformi [statement from EKRE’s council: Estonia needs a justice reform for the functioning of freedom, justice and democratic rule of law], 3 June 2018.

[3] Eylandt, O. 2018. Saatuslikud 10 000 eurot. Aavik kahtlustab, et jäi andmekaitse juhi kohast ilma näpuvea tõttu [Fateful 10,000 euros. Aavik suspects he lost the position of head of Inspectorate for a typo], Eesti Päevaleht, 2 October 2018.

[4] Ministry of Justice. 2019. Valitsus nimetas andmekaitse inspektsiooni peadirektoriks Pille Lehise [Government named Pille Lehise as director general of the Data Protection Inspectorate], 16 May 2019.

[5] Jaagant, U. 2019. Helme üritas võimupiire ületades politseijuhti vallandada [Helme tried to fire the head of police by overstepping his authority], Postimees, 16 August 2019.

[6]Krjukov, A. 20199. Helme ja Vaher kinnitasid koostöö jätkumist [Helme and Vaher confirmed continuation of cooperation], ERR, 22 August 2019.

[7] Kuus, I. and Merilin, P. 2019. Aeg ei esita Perlingu kandidatuuri uueks ametiajaks [Aeg will not propose Perling’s candidacy for a new term], ERR, 23 October 2019.

[8] Ministry of the Interior. 2019. Välismaalaste seaduse ja riigilõivuseaduse muutmise seaduse eelnõu (viisa vaidlustus) [Draft law on the amendment to the Aliens Act and the State Fees Act (visa challenge)], 12 June 2019.

[9] European Court of Justice. C‑403/16 El Hassani, 13 December 2017.

[10] JUSTICIA European Rights Network. 2018. Disparities in Criminal Justice Systems for Individuals of Different Ethnic, Racial, and National Background in the European Union: A comparative report of the scoping study.

[11] Parmas, A., Parrest, N., Uritam, S. 2019. Kohtute aastaraamat 2018 [Courts’ yearbook 2018].

[12] World Justice Project. 2019. WJP Rule of Law Index: Estonia.

[13] World Justice Project. 2019. Global Insights on Access to Justice: Estonia.

[14] European Commission. 2019. Flash Eurobarometer 475: Perceived independence of the national justice systems in the EU among companies.

[15] Chancellor of Justice. 2019 Õiguskantsleri aastaülevaade 2018/2019 [Chancellor of Justice’s annual review 2018/2019].

[16] European Court of Human Rights. Liblik and others v. Estonia.

[17] Pihl, K. 2019. Martin Helme: mul puudub kohtusüsteemi vastu igasugune respekt [Martin Helme: I have no respect for the judiciary], ERR, 17 January 2018.

[18] Mõttus-Leppik, E. 2019. Martin Helme saates «Otse Postimehest»: Jürgen Ligi võiks seppuku teha [Martin Helme in live show: Jürgen Ligi should commit seppuku], Postimees, 2 July 2019.

 

Key topics

  • The Chancellor of Justice and the Supreme Court detected excessively long punishment cell penalties for detainees and recommended they not be enforced consecutively.
  • The Chancellor of Justice detected prohibited implementation of means of restraint at institutions providing psychiatric care.
  • The smoking ban in all prisons is in effect in Estonia as of 1 October 2017.

Political and institutional developments

The practice concerning Article 3 of the ECHR is primarily linked to the rights of prisoners. In this area we highlight the strategic development document “The draft fundamentals of criminal policy until 2030”.[1] The draft sets as one of the objectives the decent treatment of detainees: “in order to transform prison and criminal care into a central institution for re-socialisation, where detainees are treated with human dignity and adulthood.” The previous developments in criminal policy were defined until 2018,[2] which did not mention the decent treatment of detainees. Planned improvements in criminal policy can be noted as a positive development from the point of view of Article 3.

At the end of the reporting period the Chancellor of Justice made a control visit to the Viru Prison,[3] where she established that the prison implemented all the punishment cell penalties consecutively and also enforced punishment cell on minors. In the estimation of the Chancellor of Justice the length of a punishment cell penalty should not exceed 14 days for adults and 3 days for minors. It would be even better if punishment cell penalties were not considered for minors. A reasonable length of time must be allotted between enforcement of punishment cell penalties if the length of punishment exceeds 14 days. Such position was earlier also taken by the Supreme Court who in their judgment no 3-15-3133 found that the detainee must accrue a reasonable number of days in open prison before enduring various penalties of punishment cell.[4]

The Chancellor of Justice also referred to shortcomings in psychiatric care institutions. The Chancellor of Justice pointed out that restraining patients must be formalised in such a way that the documents also state the reason for the implementation of the restrictive measure and for its continuation at all times. The continuation of restraint should be justified separately by the physician, it is not enough to repeat the description of the behaviour prior to patient containment.[5] At the same time, following an inspection visit at Pärnu-Jaagupi care home, the Chancellor of Justice found that the mechanical containment of customers for the purpose of limiting the scope of movement and movements is not permitted by the general care service. The scarcity of personnel and the fact that they are too busy cannot justify an unlawful restriction on the freedom of movement of persons. If a person’s health condition permits, he or she must be able to use a toilet or a commodity chair. It’s up to the employees to help the customer. The use of diapers when the patient is able to use a commode chair with the help of an enabler is detrimental to human dignity.[6]

Legislative developments

On 1 October 2017 smoking was banned in all prisons in Estonia. The smoking ban aims to protect the health of inmates and prison service officers, help smokers get rid of addiction, save state resources and ensure prison security.[7] Establishing the ban lead to annoyance of several detainees – in one case that has reached the State Court, the detainee has also referred to torturous treatment.[8] According to the Prison Service Estonia’s implementation of the ban is based on the fact that, according to both the Constitution, the ECHR and the viewpoints of the ECtHR the state is obliged to guarantee the protection of prisoners and prison officers from passive smoking.[9] However, as regards to the implementation of the absolute ban on smoking, the question arises as to whether it is not possible to achieve health protection objectives by means which would infringe the right of detainees to smoke to a lesser extent.

Court practice

During the reporting period the ECtHR made a total of three decisions concerning the application of Article 3 of the ECHR, of which the infringement of Article 3 was detected on one occasion.

In the judgment of Jatsõšõn v. Estonia[10] the ECtHR assessed the conditions guaranteed to the prisoner for transport in the prison delivery bus to be degrading to human dignity. The detainee was in the delivery bus for a total of 20 minutes, because the detainee gave up his planned trip to the funeral upon reaching the prison gate. The detainee was provided with 0.51 m2 of free space in the delivery van and a plastic seat attached to a metal base, but no seat belt and handles were available. The ECtHR explained that the infringement of Article 3 could not be assessed by taking into account only the area guaranteed for the detainee, but also other conditions upon transportation. The ECtHR, similarly to Estonian courts, found that the space allotted for the detainee was comparable to what is required for transportation of persons who are not detainees. The fact that there was no seat belt does not in itself constitute an infringement of Article 3 of the ECHR and it is not required under Estonian national law that all vehicles are equipped with seatbelts. Also, the detainee spent only a short period of time in the delivery van. The ECtHR did not identify an infringement of Article 3 as the treatment of the detainee did not meet the level of seriousness required by Article 3.

In the judgement of Nikitin and others v. Estonia[11] a total of 7 plaintiffs claimed that they had been kept in Tallinn Prison in inhuman and degrading conditions. The judgment once again referred to the minimum size of the allotted floor space and persons were afforded reasonable compensation for infringement of Article 3. The ECtHR once again emphasized that abuse must reach a minimum degree of seriousness in order to fall within the scope of Article 3 of the ECHR. The minimum threshold depends on the circumstances of the case, e.g. duration of treatment, physical and mental effects, in some cases the person’s gender, age and health status. The minimum threshold is usually met by a real physical injury or severe physical or mental suffering. In the absence of the above-mentioned circumstances, a person’s degrading treatment may also fall within the scope of Article 3 where absence or decrease of respect for human dignity of a person is demonstrated, or where such treatment creates fear, anguish or inferiority that may break the moral and physical endurance of a person. The ECtHR identified that detainees were held in Tallinn Prison for a long time in a room of less than 3 m2 of floor space. Such detention has caused the detainee difficulties, exceeded the unavoidable suffering caused by detention and its severity exceeds the minimum threshold for falling within the scope of Article 3. The ECtHR detected infringement of Article 3. The conclusion of the ECtHR was not affected by the fact that the detainee was allowed one hour a day to move outside along with his cell mates.

In the appraisal of the ECtHR the compensation awarded by Estonian courts for infringement of Article 3 was small (in the range of 100–1100 euros). Whereas, the compensation awarded for inhuman treatment or conditions degrading human dignity in Estonian case law is usually between 100 and 1000 euros. The appellant Nikitin spent a total of 2 years in inhuman conditions, but according to the Estonian court the appropriate compensation was 250 euros. ECtHR increased this compensation significantly and awarded 8000 euros for the breach of Article 3. Similarly, the ECtHR also awarded other plaintiffs significantly larger compensation (ranging from 4575 to 9975 euros). In the light of the judgment, an increase in the number applications concerning inhuman treatment and breach of human dignity can be expected in the future for increase of compensation awarded.

In the judgment A.T. v. Estonia[12] a detainee complained about measures applied to him in the course of carrying out medical studies. In the plaintiff’s assessment the wearing of prison clothes and hand and foot cuffs during the hospital visit was inhuman and degrading, showing him to the public as a detainee. According to the plaintiff the measures applied to him had been disproportionate as he had never attempted to escape. The ECtHR found that the use of handcuffs does not usually lead to infringement of Article 3 if handcuffs have been used in connection with legitimate detention and does not result in use of force or larger than necessary display to the public. The ECtHR took into account the fact that the plaintiff did not respect the prison regime, was aggressive and capable of attacking others and damaging himself. The fact that the plaintiff had not tried to escape did not hold importance, as the danger from him to others and himself was important. The ECtHR did not detect any kind of health-related circumstances which would have excluded the application of containment measures. Therefore, the ECtHR did not identify and infringement of Article 3.

The direction of the Supreme Court’s practice has shifted from an earlier popular topic – detainees’ “floor space disputes” to issues concerning enforcement of punishment cell punishment, smoking in prison, and detainees’ right to medical assistance. This can largely be associated with closing of the former Tallinn Prison in 2018, where the insufficient floor space problems were caused by the prison’s over-crowdedness.

In judgement no 3-15-2943[13] the Supreme Court assessed whether the placement in punishment cell for 518 days and 236 days imposed on a detainee as a disciplinary punishment is lawful if the punishment was to be enforced consecutively and in an uninterrupted manner. According to the detainee, these were inhuman conditions of imprisonment. The Supreme Court found that also in the case of mentally and physically healthy persons it is necessary to assume the disproportionate nature of his stay in the holding cell if the duration of his uninterrupted stay in the holding cell has significantly exceeded the maximum duration of 45 days stated in the Imprisonment Act. Therefore, it follows from case law that punishment cell holding exceeding 45 days is not in concordance with requirements of Article 3 of the ECHR, as it damages a person’s human dignity.

Establishment of the smoking ban in prisons of Estonia resulted in an increase of number of court appeals in relation to the right of detainees to smoke on prison territory. According to the administrative case no 3-18-253, the detainee considered the smoking ban to be unconstitutional, discriminatory and torturous.[14] In the administrative case no 3-17-2610 the detainee referred to the torturous effect of lack of nicotine.[15] In neither judgment did the Supreme Court get to substantive debate regarding the smoking ban, as it focused on the formal prerequisites for lodging a complaint. In its analysis of the smoking ban the Supreme Court found in judgment no 3-18-65[16] that courts should not reject appeals against court rulings, but should proceed with the substance of the matter in order to protect the rights of the appellant. Even though, in the Supreme Court’s opinion the return of the appeal was not justified, Tartu District Court did not substantially process the appeal, finding that the time limit for the appeal had been exceeded.

In the civil case no 2-15-18182 the Supreme Court analysed the detainee’s right to medical assistance, in other words, treatment of detainees in accordance with Article 3 of the ECHR. According to the Supreme Court, in assessing what must be a reasonable time for a patient to have an operation, it is important not to rely on the time during which the operation has not been granted, but on data enabling comparison between the availability of the operation in question both in prison and in freedom according to the queue. The Supreme court found that Article 3 does not guarantee detainees better conditions than persons in freedom. The Supreme Court referred to the relevant ECtHR practice, according to which Article 3 cannot be interpreted to guarantee detainees the right to similar medical treatment as in best civilian hospitals.[17]

Statistics and surveys

In autumn of 2018 a study commissioned by the Ministry of Justice on detainees’ assessment of prisons’ internal climate was carried out.[18] The study reveals that detainees estimate humanity and individuality on a scale of 1–5 at 2,75 points. It is remarkable that 40% of respondents to the survey think they are not being treated humanely and 53% feel they are sometimes treated in a humiliating manner in prison.

Paragraph 324 of the Penal Code states that degrading the dignity of a prisoner, person in detention or custody or taken into custody to recover from intoxication, or discriminating against such person or unlawful restricting of his or her rights by an official of a custodial institution taking advantage of his or her official position, if it does not contain the necessary elements of office provided for in § 2901 of this Code, is punishable by a pecuniary punishment or up to one year of imprisonment. According to the Ministry of Justice’s annual report “Crime in Estonia”, ten crimes corresponding to § 324 of the Penal Code were registered in Estonia in 2018.[19] That figure is the highest of the last 13 years.

At least a partial solution to the above-mentioned problems can be seen in increasing the number of prison officials in prisons in Estonia.

Recommendations 

  • Take into account the successive duration of detainees’ stay in the punishment cell in order to allow, where appropriate, a reasonable number of days in normal prison conditions, lay down the relevant principle in law governing organisation of prison life, following of which would reduce infringement of Article 3 of the ECHR.
  • In psychiatric care institutions, ensure that diapers are not used on patients who are able to go to toilet or use the commode chair.
  • In psychiatric care institutions, ensure that containment measures are not applied to general care patients, and that the implementation of measures to control special care patients do not unlawfully restrict their freedom of movement.

Case description

The detainee spent 1.5 years in an overcrowded cell, where he had less than 3 m2 of personal space. He was locked in the cell day and night with the only chance to exit the cell by spending 1 hour outdoors every day on a 15 m2 territory. The ECtHR detected a breach of Article 3 and explained that the period of detention in such conditions was too long in itself, which is why other circumstances – such as the detainee’s sufficient opportunity to move outside of the cell – did not even require consideration.


[1] Ministry of Justice. Kriminaalpoliitika põhialused aastani 2030 [The fundamentals of criminal policy until 2030].

[2] Kriminaalpoliitika arengusuunad aastani 2018.

[3] Chancellor of Justice. Viru Vangla kontrollkäigu kokkuvõte [Conclusions of control visit to Viru Prison], 07.08.2019.

[4] 10 October 2017 judgement no 3-15-3133 of Administrative Law Chamber of the Supreme court, p 18.

[5] Chancellor of Justice. Aastaülevaade 2018 [Chancellor of Justice’s annual review 2018].

[6] Chancellor of Justice. Pärnu-Jaagupi Hooldekodu kontrollkäik [Inspection visit of Pärnu-Jaagupi care home], 13 August 2019.

[7] Vanglateenistuse aastaraamat 2018 [Prison Service’s yearbook], page 36.[1]

[8] 28 June 2019 judgement no 3-18-253 of Administrative Law Chamber of the Supreme Court, p 2.

[9] See footnote 8, page 37.

[10] 30 January 2019 European Court of Human Rights judgment Jatsõšõn v. Estonia, no 27603/15, p 36-45.

[11] 26 June 2019 European Court of Human Rights judgment Nikitin and others v. Estonia, no 23226/16 and 6 others.

[12] 13 November 2018 European Court of Human Rights judgment A.T. v. Estonia, no 23183/15. In the same case the plaintiff asked for a declaration of infringement of his rights under articles 6 and 8 of the ECHR when he visited his new-born daughter in a children’s hospital. To that extent the court accepted the complaint.

[13] 4 June 2018 judgement no 3-15-2943 of Administrative Law Chamber of the Supreme court, p 19.

[14] 28 June 2019 judgement no 3-18-253 of Administrative Law Chamber of the Supreme Court, p 2.

[15] 7 June 2019 judgement no 3-17-2610 of Administrative Law Chamber of the Supreme Court, p 9.

[16] 23 October 2018 regulation of Tartu Circuit Court in administrative matter no 3-18-65.

[17] 22 March 2019 judgment no 2-15-18182 of Civil Chamber of the Supreme Court, p 13.

[18] Ministry of Justice. 2018. Vanglate sisekliima uuring: Kinnipeetavate küsitlusuuring Tallinna, Tartu ja Viru vanglates [study on prisons’ internal climate in Tallinn, Tartu and Viru prisons], page 44.

[19] Ministry of Justice. 2018. Kuritegevus Eestis 2018 [Crime in Estonia 2018], page 72.

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Results of the age discrimination research based on the 2018 nationwide survey in Estonia.