Kari Käsper

Organisational framework of protection of human rights could be characterized as fragmented. Even though the state has set protection of human rights its priority (especially in its foreign policy) it has not been followed by significant changes in framework guaranteeing and protecting human rights in domestic policy. There are no specific and general development plans to improve protection of human rights – rather separate initiatives of singular ministries than coordinated efforts to identify problem areas and provide common protection. Development of human rights is somewhat hampered by politization of the area (especially in issues concerning Russian minorities) and handling integration separately from the general context of human rights.

Ministries

All state authorities have contact with protection of human rights to a lesser or greater extent. The ministries that play bigger parts are the Ministry of Justice, the Ministry of Foreign Affairs, the Ministry of Social Affairs, the Ministry of Culture, the Ministry of Interior Affairs, and the Ministry of Education and Research.

The jurisdiction of the Ministry of Justice in legislative drafting comprises of fundamental rights and freedoms, guaranteeing and protecting them, as well as constitutional review.[1] The Ministry of Justice also deals with coordination of legislative drafting, which means that this particular ministry monitors compliance of draft acts with the current legislation (including human rights). More specifically, the issues of fundamental rights structurally belong with the tasks of division of public law. Therefore, it could be claimed that the Ministry of Justice has the central role among state authorities in guaranteeing protection of human rights. More emphasis on protection of human rights in 2012, during Kristen Michal’s term as the minister, has been placed on the area of judicial proceedings, thereby reasoning various initiatives and amendments for speeding up the proceedings.[2] In 2012 the Ministry of Justice also initiated public discussions and consulted on regulation of cohabitation of same-sex couples[3] as well as draft act prohibiting incitement of hatred[4]. Jurisdiction of Ministry of Justice also includes prisons and courts.

The Ministry of Foreign Affairs has contact with human rights predominantly when implementing foreign politics and international communication; the Ministry of Foreign Affairs also represents Estonia in the European Court of Human Rights, in European Court of Justice and elsewhere.[5] Since the protection of human rights is internationally regulated by several international agreements, which pose a duty to report, the Ministry of Foreign Affairs coordinates submitting of Estonia’s statements and reports as well as defends them. This is specifically the sphere of the legal department in the Ministry of Foreign Affairs, which, according to the statute, solves the human rights issues related to foreign relations. In the words of the Minister of Foreign Affairs Urmas Paet protection and promotion of human rights is one of Estonia’s priorities,[6] therefore Estonia ran as a candidate (and was elected) to the UN Human Rights Council for 2013-2015. One can then presume that it is in the interests of the Ministry of Foreign Affairs that the situation within Estonia also improves.

The Ministry of Social Affairs, according to the statute, deals with promotion of equal treatment and equality of women and men, and coordination of activities in the field, as well as promoting rights of the child and quality of life of families. The aim of ministry’s activity is to guarantee “a society, which preserves caring between generations, and which is also tolerant and understanding” and “honouring principles of gender equality and equal treatment in the whole society”.[7] Here there is a certain overlap with the role of the Ministry of Culture, as the principle of equal treatment also includes equal treatment on the basis of ethnical or national origin, which is the jurisdiction of Ministry of Culture. The development plan for 2013-2016[8] of the Ministry of Social Affairs indicates, however, that the ministry sees its role predominantly in the part concerning age, disability or affiliation with LGBT persons. The main emphasis of the work of Ministry of Social Affairs is on gender equality, which is organised by a separate department, which coordinates equal treatment more widely as one of its themes. However, there is no department for coordination of equal treatment, which poses the threat of this topic being overshadowed by gender equality. A department for children and families has been established, which should help guarantee better protection of rights of the child.

The role of the Ministry of Culture has mainly to do with national minorities. According to the statute the ministry supports cultural aspirations of national minorities (the statute uses the wrong term ‘vähemusrahvus’) by coordinating organisation of their cultural life and activities.[9] Hence, the activity of Ministry of Culture is aimed predominantly at promoting integration and various measures of researching and promoting coping of persons of various ethnic backgrounds in Estonia. Integration and Migration Foundation Our People offering financial support for integration activities also belongs under administration of Ministry of Culture

The Ministry of Interior Affairs and its divisions have contact with human rights predominantly in relation to its role guaranteeing internal security and public order.[10] In both cases this can bring about justified or unjustified limitations to human rights. The activity of Ministry of Interior Affairs also has to do with issues of migration and refugee policies.

The Ministry of Education and Research has contact with human rights in education, including developing national curriculums and quality requirements, supporting youths’ integration and organising language policies. The Language Inspectorate also belongs in the jurisdiction of this ministry.

Independent state authorities

The Chancellor of Justice combines the function of the ombudsman with that of constitutional review (including protection of fundamental rights). Chancellor of Justice is also the preventative authority stated in Article 3 of the Optional Protocol for Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He also implements the tasks of protecting and promoting rights of the child (so-called ombudsman for children) stemming from Article 4 of the Convention on the Rights of the Child. Everyone has the right to turn to Chancellor of Justice if he or she suspects a state authority, the local government or some other institution based on public law does not follow the principles of fundamental rights and freedoms or if the applicant believes an act of law or a legislative act is unconstitutional.

Amendments that came into force 8 June 2012[11] gave the Chancellor of Justice a supplementary option to refuse to hear a claim. According to the amendment the constitutional review of a legislative act can be refused if there is no public interest for processing it. In the case of applications for reviewing accordance with fundamental rights the Chancellor of Justice may now refuse to hear obviously unfounded claims as well as claims which have been submitted more than a year after becoming aware of infringement of the person’s rights, if the person is able to challenge it or has some other recourse to it and also if the person did not take advantage of the opportunity to challenge it, or if the challenge proceedings or some other proceedings are currently ongoing. The Chancellor of Justice also has the option of forwarding the claim to a relevant supervisory organ, if it is expedient. In summary, this means that the once very broad right to turn to Chancellor of Justice and receive a reply on the merits, has become significantly more narrow, which may worsen the opportunity for protection of fundamental rights.

There has also been a lot of talk of possibly shaping the Chancellor of Justice into a National Human Rights Institution in accordance with the Paris Principles.[12] There is no such institution in Estonia, although this has been pointed out a lot internationally.[13] The constitutional role of Chancellor of Justice does not allow for shaping of this institution to completely accord with the Paris Principles, especially what concerns facilitating and promoting human rights, neither determining the composition of the institution by pluralistic principles.

The Gender Equality and Equal Treatment Commissioner is an institution, which was established in 2009 to deal with cases of discrimination (on the basis of the institution of Gender Equality Commissioner, which had been established a few years earlier). Even though the commissioner has jurisdiction to raise awareness, her financial and human resources have been extremely limited. Her function to reply to applications of individuals has become marginal, and even though her resources temporarily increased thanks to support of Kingdom of Norway, it does not translate into significant changes in other areas of equal treatment, nor the increased support of the state. See more on the commissioner in the chapter on prohibition of discrimination.

The task of the Data Protection Inspectorate is to guarantee implementation of rules on personal data and process applications on information that the state authorities have to publish or make available in some other manner. In that situation the institution may have a certain conflict of interests. In addition, there is also a situation that has already been referred to in the chapter on protection of personal data, where the inspectorate establishes recommended guidelines to fill the gaps left by the legislator and then reviews their execution and determines punishments. This might not be in accordance with the principle of balance of powers.[14]

Independence of the Data Protection Inspectorate might not be in accordance with Directive 95/46/EC and the relevant judgments of European Court of Justice, which demand the opportunity to operate freely, without being dependent on guidelines, and without pressure. Liina Kanger and Eve Rohtmets have pointed out the main breaches of independence of the Data Protection Inspectorate:[15]

  • The budget of the Data Protection Inspectorate is approved, amended and reviewed by the Minister of Justice. Such economic dependency does not meet the requirement of complete independence.
  • The Data Protection Inspectorate, as the organisation, is in the administrative sphere of the Ministry of Justice, therefore the requirement of being a separate organisation is not met (in comparison, the aforementioned Gender Equality and Equal Treatment Commissioner has been established as a completely independent institution and does not belong to administrative sphere of the Ministry of Social Affairs).
  • The Data Protection Inspectorate is under supervisory control of the Minister of Justice according to the Government of the Republic Act. The minister has the jurisdiction to declare invalid legal instruments of the director general of the inspectorate, which are unconstitutional or not in accordance with other acts of law, regulations and orders of the government and regulations and orders of the minister, or for inexpediency, if the legal instrument or act is clearly not in accordance with national politics based on an act of law or realised by the government or the ministry, or causes irrational use of assets or budgetary means, or harms national interests in some other way.
  • The order of settling legal disputes between state and governmental authorities entails contradictions, as § 101 of the Government of the Republic Act prescribes the minister having the decisive say in resolving disputes. This means a dispute between the Ministry of Justice and the Data Protection Inspectorate is to be settled by the Minister of Justice. Subordination and independence cannot go together in this context.

The organisational system of protection of human rights on state level certainly entails courts, but these instances will not be discussed at length in this chapter, mainly because judicial power is regulated by a different area from access to justice.

In conclusion, it can be claimed that the system of protection of human rights on state level is inconsistent and insufficient. None of the state authorities has wide mandate to guarantee efficient protection of human rights, jurisdictions of a few ministries partially overlap and cooperation between them is rare. The problem areas are: absence of a national institution for protection of human rights based on the Paris Principles, small resources allocated to the Gender Equality and Equal Treatment Commissioner, and insufficient independence of the Data Protection Inspectorate from authority of the state.

Recommendations

  • Establish a national human rights institution that corresponds to the Paris Principles completely, has a wide mandate, centres of promotion of protection of human rights, and the composition of which would guarantee pluralistic representation of the society.
  • Improve cooperation between ministries and state authorities on guaranteeing human rights, for example, by introducing a regular round table.
  • Increase the funding of the Gender Equality and Equal Treatment Commissioner from state budget.
  • Guarantee correspondence of the Data Protection Inspectorate to the requirement of independence stated in the Data Protection Directive.


[1] Available at: https://www.riigiteataja.ee/akt/12898206&leiaKehtiv.

[2] See for example: http://www.just.ee/56213 , http://www.just.ee/55218 and http://valitsus.ee/et/uudised/pressiteated/justiitsministeerium/43342/justiitsministeeriumi-jargmise-aasta-prioriteedid-on-riigi-oigusabi-ja-kohtumenetluse-kiirendamine.

[3] The Ministry of Justice awaits for opinions on the concept of the cohabitation act. Available at: http://www.just.ee/57148.

[4] Vaenu õhutamise vastane eelnõu. Available at: http://www.just.ee/57738.

[5] Available at: https://www.riigiteataja.ee/akt/101112011003?leiaKehtiv.

[6] Available at: http://www.vm.ee/?q=node/13754.

[7] Available at: https://www.riigiteataja.ee/akt/13283260.

[8] Sotsiaalministeeriumi arengukava 2013-2016. Page 52.

[9] Available at: https://www.riigiteataja.ee/akt/12766742?leiaKehtiv.

[10] Available at: https://www.riigiteataja.ee/akt/115012013004?leiaKehtiv.

[11] Available at: https://www.riigiteataja.ee/akt/129052012002.

[12] See this also. Available at: http://www.ohchr.org/en/countries/nhri/pages/nhrimain.aspx.

[13] For example, in the course of 2011 UN Universal Periodic Review. Available at: http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/17/17&Lang=E.

[14] Available at: http://www.riigikogu.ee/rito/index.php?id=14436.

[15] Ibid.

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