Egert Rünne

Political and institutional developments

During the period under focus both the 2014 European Parliamentary election and the 2015 parliamentary election took place in Estonia.

For the first time the European Parliamentary election took place based on open lists, which is stated in the European Parliament Election Act (amended 10 February 2010).[1] In 2004 and 2009 voters at European Parliamentary elections had to make a decision based on closed lists — votes could be cast for the political parties as a whole, or for independent candidates; this time votes could be given to specific candidates.

According to democratic institutions and the report of expert group of bureau of human rights the 2015 parliamentary election in Estonia had been organised in an effective manner.[2]

The existence of persons who do not have the right to vote and cannot participate in elections continues to be a problem. Persons of undetermined citizenship have a right to vote at local elections, but not at parliamentary elections, neither can they be set up as candidates at parliamentary elections (in 2015 there were 89,700 persons of undetermined citizenship in Estonia).[3] Even though persons of undetermined citizenship can participate in party activities and make donations to parties and candidates, they do not have the right to become a member of a political party.[4]

Despite OSCE’s proposals, the appraisal of the Chancellor of Justice and several recommedations made in human rights reports, Estonia is one of the few states in Europe where all prisoners automatically, by law, lose their right to vote. There were 2291 prisoners in Estonia in 2014.[5]

In the beginning of 2014 the then Minister of Foreign Affairs Urmas Paet sent the Chairman of the Constitutional Committee Rait Maruste a letter stating the need to urgently change the prisoners’ right to vote in acts of law, as an absolute ban on voting contradicts the European Convention for the Protection of Human Rights and Fundamental Freedoms.[6] The topic was discussed at the session of the Constitutional Committee in 2014; in the personal appraisal of the then Chairman of the Constitutional Committee Rait Maruste changes should be made in acts of law regulating elections in order to fulfill an international obligation that Estonia took by joining the Convention in 1996. Although in the appraisal of the Ministry of External Affairs as well as Ministry of Justice the absolute ban to vote for prisoners ought to be made less severe, the Constitutional Committee lacks the political will to do it.[7]

In 2015 the adviser at the legal and analysis department of Chancellery of the Riigikogu Katre Turbo also pointed out in her article that solving this problem has been put off for a long time, even though it ought to be clear that it can’t be put off forever.[8]

Legislative developments

On 1 July 2014 a draft Act to amend the Constitution initiated by 41 members of Riigikogu, which requested the voting age at local government council elections be reduced to 16, was submitted to legislative proceeding of Riigikogu.[9] This amendment required that the constitution also be amended, therefore it had to be confirmed by two consecutive compositions of The Riigikogu. The Act on Amendments to the Constitution of the Republic of Estonia for Reducing the Voting Age for Local Government Council Elections was passed on 1 June 2015 as follows:

  • 1. § 156 subsection 2 of Constitution of the Republic of Estonia is amended and worded as follows:

“At local authority council elections, the right to vote is held, under conditions established by law, by persons who reside permanently in the territory of the local authority and have attained at least sixteen years of age.”[10]

According to law, persons who are at least 16 years of age can vote at the 2017 local government elections.

Court practice

Most of the appeals to the electoral committee and from there as an appeal to the Supreme Court predominantly concern the principle, which automatically bans all prisoners from voting. Disproportionality of this law has been referred to by various ministries, international organizations as well as local experts.

Most public discussion concerned the Tallinn Circuit Court administrative case no. 3-15-403, where in the opinion of the appellant the ban stated in Riigikogu Election Act for a person who has been convicted of a criminal offence by a court and is imprisoned shall not participate in voting is disproportionate. The court found that according to the judgment, Riigikogu, for a long time, has not brought the election act into concordance with the practice of the European Court of Human Rights, which does not allow the state to uniformly and without exception limit the right of all prisoners to participate in parliamentary elections. Because Riigikogu has not made the decision based on which criteria the prisoners’ right to vote is limited and in which procedure, the Riigikogu Election Act is unconstitutional.[11] Therefore, because of the judgment, two prisoners, as an exception, were given the right to vote, but at the same time the court failed to apply the unconstitutional limitation in the case, which initiated the constitutional review proceedings in the Supreme Court, whose sole jurisdiction it is to declare the limitation void. The Supreme Court found in its judgment that they would not declare the limitation void based on this particular case.

The Chancellor of Justice found in his appraisal that he sent the Supreme Court that curtailing the active right to vote of persons convicted of a crime and serving a prison sentence (§ 4 (3) and § 22 (3) of the Riigikogu Election Act) is in clear contradiction with the requirements of Article 3 of the first protocol to European Convention on Human Rights as well as § 123 (2) of the Constitution. Since in Estonian law the general right to vote applies at Riigikogu elections and restricting this right is only possible according to the principle of proportionality, the disputed paragraphs also contradict paragraphs 11, 57 and 58.[12]

The Minister of Justice found in his appraisal that proportionality of the disputed limitation on active right to vote is questionable.[13] A the same time the minister of External Affairs considered the § 4 (3) and § 22 (3) of the Riigikogu Election Act unconstitutional because of their disproportionality.[14]

Statistics and surveys

Ministry of Justice ordered that Tallinn University Institute of Political Science and Governance carry out a survey “Analysis of reducing the active voting age: a preliminary assessment”, which concluded that similarly to the experience of other states the 16 year olds in Estonia are mature enough to vote at local elections. The analysis detected that by reducing the voting age from 18 to 16 the electorate would increase by 24,000 votes, which makes up 2–2,3% of the entire electorate. The main problem could be the weakness of the desired effect of policy change, or the lack of effect altogether. The likelyhood of this occurring is greater if young people do not take an active position in articulating their interests and needs and conform in their voting or do not take part at all.[15]

The survey commissioned by the Gender Equality and Equal Treatment Commissioner discovered that the portion of women candidates on lists of candidates for political parties has not changed noticeably during the last 10—15 years, however, the number of women in top tens and top twenties of national lists of political parties has increased somewhat. The survey pointed out that most women candidates were in the Social Democratic Party (36.8%) and the least in the Union of Pro Patria and Res Publica (24.0%). The largest number of women on district list of candidates is in the Estonian Centre Party (41.7%) and the smallest in the Social Democratic Party (8.3%). In the first three district candidates the percentage of women is largest in the Social Democratic Party (36.1%) and the smallest in the Estonian Reform Party (22.2%). Among top tens of national lists there are most women in the Social Democratic Party (60%), which is followed by the Estonian Centre Party (50%). In the Estonian Reform Party and the Union of Pro Patria and Res Publica national top ten women make up 20%. There is not a single woman in the national top ten of the Conservative People’s Party of Estonia.[16]

Good practices

One of Estonia’s success stories, internet voting, has been made more secure and transparent, mainly thanks to creation of the Electronic Voting Committee with the National Electoral Committee, the function of which is to carry out internet voting and confirm the results of e-voting. A verification process has also been created in order to confirm that the voter’s e-vote was delivered expediently and recorded on the server that contains votes. At the same time, accountability of voting via internet continues to be a problem. For example, the OSCE is of the opinion that in order to increase accountability of internet voting system the agencies should continue with their efforts to add end-to-end verification to the system, so that voters would have confirmation that their votes are counted in the same way as they had been recorded.

Noteworthy public discussions

Giving 16 year olds the right to vote brought about extensive discussion, which mostly supported making amendments to the Constitution; the Centre Party was most critical of the draft act, being of the opinion that the amendment was a partial solution and in addition to having the right to vote, 16 year olds should also have the right to be elected.[17]

During the 2014 European Parliamentary election and the 2015 parliamentary election   discussion in media was initiated mainly by the Centre Party on safety of e-elections.

Recommendations

  • Amend the relevant acts of law so that only prisoners bearing an additional punishment of not being allowed to vote are banned from voting.
  • Consider whether banning political outdoor advertising during the campaigning period is reasonable and purposeful.

[1] Euroopa Prlamendi valimise seaduse muutmise seadus [The Act amending the European Parliament Election Act. Available at: https://www.riigiteataja.ee/akt/13282688.

[2] Parliamentary elections. 1. March 2015. ODIHR-i valimiste eksperdirühma aruanne [ODIHR election expert team report]. Warsaw 26 May 2015. Available at: http://www.osce.org/et/odihr/elections/estonia/165836?download=true.

[3] Lõimumine: eesmärgid [Integration: goals]. Available at: https://valitsus.ee/et/eesmargid-tegevused/loimumine/loimumine-eesmargid.

[4] Parliamentary elections. 1. March 2015. ODIHR-i valimiste eksperdirühma aruanne [ODIHR election expert team report]. Warsaw 26 May 2015. Available at: http://www.osce.org/et/odihr/elections/estonia/165836?download=true.

[5] Estonian Prison Service Yearbook. Available at: http://issuu.com/vanglateenistus/docs/vanglaameti_aastaraamat_veeb.

[6] “Urmas Paet: vangide valimisõiguse osas tuleb viivitamatult seadust muuta.” [Urmas Paet: acts of law regarding prisoners’ right to vote must be amended immediately] Delfi. 15.01.2015. Available at: http://www.delfi.ee/news/paevauudised/eesti/urmas-paet-vangide-valimisoiguse-osas-tuleb-viivitamatult-seadust-muuta?id=67609316.

[7] “Võimusaadikud panid vangide valimiskeelu leevendamisele pidurit.” [The powers put a stop to alleviating the prisoners’ ban on voting] Postimees. 15.01.2015. Available at: http://www.postimees.ee/2661958/voimusaadikud-panid-vangide-valimiskeelu-leevendamisele-pidurit.

[8] Tubro, Katre. Vangide valimisõigusest [On prisoners’ right to vote]. Riigikogu Toimetised. Available at: http://www.riigikogu.ee/rito/index.php?id=14443.

[9] Eesti Vabariigi põhiseaduse muutmise seadus kohaliku omavalitsuse volikogu valimistel valimisea langetamiseks 703 SE [The Act on Amendments to the Constitution of the Republic of Estonia for Reducing the Voting Age for Local Government Council Elections]. Available at: http://www.riigikogu.ee/tegevus/eelnoud/eelnou/b0f58e59-bf36-40e3-bbd7-3aff08428bdf/.

[10] Eesti Vabariigi põhiseaduse muutmise seadus kohaliku omavalitsuse volikogu valimistel valimisea langetamiseks [The Act on Amendments to the Constitution of the Republic of Estonia for Reducing the Voting Age for Local Government Council Elections]. Available at: https://www.riigiteataja.ee/akt/115052015001.

[11] Tallinna Ringkonnakohtu otsus haldusasjas nr 3-15-403 [Tallinn Circuit Court judgment in administrative case no. 3-15-403]. Available at: https://www.riigiteataja.ee/kohtuteave/maa_ringkonna_kohtulahendid/menetlus.html?kohtuasjaNumber=3-15-403/11.

[12] Arvamus põhiseaduslikkuse järelevalve kohtumenetluses Riigikogu valimise seaduse § 4 lõige 3 ja § 22 lõige 3 [Opinion in constitutional review proceedings on Riigikogu Election Act § 4 (3) and § 22 (3)]. Available at: http://oiguskantsler.ee/sites/default/files/field_document2/6iguskantsleri_arvamus_riigikogu_valimise_seaduse_ss_4_loige_3_ja_ss_22_loige_3_3-4-1-2-15.pdf.

[13] Riigikohtu üldkogu kohtuotsus asjas nr 3-4-1-2-15 [Supreme Court en banc judgment in case no. 3-4-1-2-15]. Available at: http://www.riigikohus.ee/?id=11&tekst=222578548.

[14] Riigikohtu üldkogu kohtuotsus asjas nr 3-4-1-2-15 [Supreme Court en banc judgment in case no. 3-4-1-2-15]. Available at: http://www.riigikohus.ee/?id=11&tekst=222578548.

[15] Aktiivse valimisea langetamise mõjude analüüs: eelhindamine [Analysis of the effects of active voting age]. Available at: https://www.tlu.ee/UserFiles/VOTE%2016_loplik.pdf.

[16] Available at: http://www.vordoigusvolinik.ee/wp-content/uploads/2015/02/Riigikogu_valimisnimekirjad_2015.pdf.

[17] “Kesknoored valimisea langetamisest: see on noorte petmine” [Centre Party youths on decreasing voting age: youths are being cheated]. Delfi. 6.05.2015. Available at: http://www.delfi.ee/news/paevauudised/eesti/kesknoored-valimisea-langetamisest-see-on-noorte-petmine?id=71403581.

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