Kari Käsper

No major changes in regulation of elections took place in 2010, nor did any elections themselves take place. Even though the right to free elections has not been analysed in previous reports, it is still reasonable to analyse the weak points related to issues of elections, which have continuously proved to be a topic, including in 2010. These topics have to do with prohibition of outdoor political advertising prior to elections on the one hand and with restriction prisoners’ right to vote on the other.

In Estonia, Riigikogu, local governments’ councils and the European Parliament elections are free, uniform and secret. The election of the President, however, is not direct. Estonian citizens who are of voting age have the right to vote in general elections,[1] citizens of other Member States of European Union whose permanent residence is in Estonia have the right to vote in European Parliament elections,[2] aliens who resides in Estonia on the basis of a long-term residence permit or the right of permanent residence have the right to vote in local government council elections.[3] All elections are free, general, uniform, direct and secret and their results are ascertained according to the principle of proportionality.[4] Each voter has one vote.

The subject of the public debate has been the loose regulation of funding of elections, problems of which the former Chancellor of Justice Allar Jõks has repeatedly referred to. The act amending Political Parties Act and other relevant acts adopted in Riigikogu on November 25th, 2010 which entered into force on April 1st, 2011 substantially changed the regulation of funding of parties, erasing a special provision in the Penal Code regarding accepting anonymous, covert donations or donations from legal persons. It also provided a more specific regulation regarding the funding of auxiliary organisations and a new monitoring commission for party funding was created, which consists of representatives of parties belonging to the Parliament, the Chancellor of Justice, the Auditor General and elected members of the Estonian National Electoral Committee. The Commission is eligible to appoint penalty payment for violations and its decisions can be contested in court. Whether the monitoring of party funding will become more efficient thanks to the new system will be possible to ascertain after the act has entered into force and the commission has started work in 2011.

Prohibition of outdoor political advertising

Outdoor political advertising during active election campaigning was banned in Estonia in 2005. Chancellor of Justice considered banning the outdoor advertising unconstitutional as it excessively restricts the right to vote. Although Riigikogu discussed this topic on the request of Chancellor of Justice the alleged unconstitutional situation had not been eliminated by the end of 2009. Therefore the Chancellor of Justice turned to the Supreme Court on December 18th, 2009 with the appeal to declare void the provisions of the European Parliament Election Act, the Local Government Council Election Act and the Riigikogu Election Act that restricts outdoor advertising.

On the evaluation of Chancellor of Justice these provisions limit the right to run as a candidate, the right to vote and the right to nominate candidates and may have a limiting effect on basic rights of parties (freedom of activity contained in the freedom of the party), freedom of political speech (because the measure restricts the right to receive public information), property rights (buildings, public transport, taxis etc which may be used as a vehicle for outdoor advertising, the right of owners to freely assert ownership and determine the use of their property), freedom of enterprise (as the prohibition of outdoor advertising has an adverse effect on the business of outdoor media enterprises) and the freedom of contract. Although these rights may be restricted for legitimate purposes, the necessity of the prohibition is questionable in the Chancellor of Justice’s opinion, nor is the chosen prohibition effective in his opinion:

“Prohibition of outdoor political advertising is not an effective measure of freeing the public space from election advertising. This could result in the campaign moving to an earlier time and into other channels and become bothersome for the voters in some other time and place. The perception of outdoor advertising as negative, however, is highly subjective. It is also highly questionable whether a candidate wishing to promote himself and his views would knowingly and wilfully advertise against his interests.”[5]

Because the right to free elections is interfered with so intensely (as outdoor advertising formed a large part of total cost of election campaigns in 2003) and the effectiveness of the interference is so low, the Chancellor of Justice believes the prohibition is unconstitutional. The Minister of Justice finds the prohibition disproportionate and unconstitutional:

The prohibition in questions is not a suitable measure for raising the quality of political argument in the opinion of the Minister of Justice. The prohibition does not restrict what is being expressed in the election advertisement. The candidates are free to convey messages of poor content in other channels of communication without restriction. The improvement of the content of election campaigns after the prohibition of outdoor political advertising has not been proved. Nor is the prohibition suitable for decreasing the importance of money in the election results. The money that was used for outdoor advertising is being channelled to other methods of advertising. Decrease in costs of election campaigns after the prohibition of outdoor advertising has not been proved. The prohibition of outdoor political advertising is only suitable for freeing the public space from political advertising.[6]

Supreme Court en banc let its July 1st, 2010 decision on prohibition of outdoor political advertising stand.[7] The Supreme Court found that the principle of clarity of law has not been breached and matters possessing more than one interpretation should be solved in courts. The Court has stated on an earlier occasion that one of the objectives of prohibition of outdoor political advertising is “ensuring the equality of parties, independent candidates and election coalitions through decreasing the parties’ cost on election campaigns and the importance of money in gaining political power.”[8] In comparing various measures for gaining desired objectives (decreasing the importance of money in gaining political power by cutting down election costs, increase content of political argumentation, free the public space from excessive outdoor advertising, which may cause reluctance for political advertising and politics as a whole, ensure equal treatment of participants in elections and decrease influencing of voters with unsuitable methods used in outdoor advertising) the court came to the conclusion that the effect of the prohibition is not clear and that “the possible ineffectuality of the outdoor political advertising may not be the basis for declaring it unconstitutional. In en banc’s opinion, it is rather an argument for low intensity of the prohibition.”[9]

The court found that:

“The prohibition will not eliminate free distribution of information during active election campaigning. The prohibition will not limit the topics that opinion may be expressed about publicly during active election campaigning. Restrictions prohibiting public discussion on certain topics would be considered very intense. The prohibition of outdoor advertising does not obstruct from passing on political views and discussing social life in other ways (for example at election meetings, through direct communication with voters, in print media, television, radio, direct posting, advertising indoors, via so-called new technologies). The prohibition merely directs political discussions to different channels, where they stand a greater chance of having more content than the outdoor advertisements consisting of prevailing slogans and images. These channels also have less chance of influencing the voter in an unsuitable manner. The prohibition does not remove the option of gaining information for making a conscious decision from other channels.”[10]

The court, referring to § 1 of the Constitution stated that “the right to vote and the right to run as a candidate and the freedom of activity of the party, as well as freedom of political expression as a basic right, which make the democratic system possible have, in the opinion of the en banc, been restricted in the interest of using those same rights to ensure better functioning of the democratic decision process”.[11] Therefore the Supreme Court en banc found in a paradoxical manner that the restrictions of election rights had in this case been in the interests of the election rights. It is remarkable that not all justices of the Supreme Court concurred with the majority opinion Supreme Court en banc. Justice of the Supreme Court Jüri Põld found the abovementioned opinion unconvincing in his dissenting opinion.[12] He also found that the money meant for outdoor advertising is presumably used for other purposes and that would not actually reduce election costs; the period of campaigning also lasts longer (outdoor advertising is carried out before the beginning of active election campaigning). There would be much less severe methods for restricting outdoor political advertising: restrict their duration, size, location etc.

Jüri Põld stated in his dissenting opinion that:

En banc also sees increasing political argumentation as the objective of this measure. The objective of increasing political argumentation is a commendable one. However, as long as it is presumably possible to influence voters through propaganda lacking argumentation, the prohibition of outdoor political advertising will not help to increase political argumentation in the electoral process. The slogan-like advertising and wordy promises will just transfer to another channel to a great extent, for example advertising pages bought from print media, television, radio, letterboxes, inside supermarkets. It is possible to increase the importance of political argumentation if the participating forces of the electoral process find that presenting positions backed up by arguments is more effective than advertisements. This is why I consider a total ban on outdoor advertising during active election campaigning for the purpose of increasing political argumentation an unsuitable measure and a breach of basic freedoms that does not lead to desired outcome.[13]

The ECHR has stated in its earlier case law that the states’ discretionary power in restricting freedom of political expression is more limited than in other forms of freedom of expression. The court has also explained that the effectiveness of the advertising channel (the more effective it is the smaller the allowed restrictions) is essential in the analysis of restriction of outdoor political advertising. Yet the court has agreed that certain restrictions of freedom of expression may be in the interest of ensuring free elections and the will of the people.[14]

Therefore it isn’t clear whether the prohibition of outdoor political advertising in Estonia is contradicting the European Convention on Human Rights or not. Although it is a short term ban and its effect is largely unclear, it is a restriction of freedom of political expression. Any state intervention in freedom of speech and organisation of elections should be clearly reasoned and be based on specific analyses. An integrated legal solution, which covers not just one advertising channel but the whole campaign would be preferable, or the freedom of political expression should not be restricted in this context at all.

Restriction of the prisoners’ right to vote

The other important question regarding substantial breach of right to vote, which may be in violation of international human rights is the restriction of prisoners’ right to vote. This prohibition is stated in § 4(3) of the Riigikogu Election Act and § 4(3) point 2 of European Parliamentary Election Act, which state that a person shall not have the right to vote if he or she has been convicted of a criminal offence by a court and is serving a prison sentence. A corresponding prohibition is stated in § 5(4) of the Local Government Council Election Act, according to which “[a] person who has been convicted by a court and is serving a sentence in a custodial institution shall not participate in voting”. Those convicted of a criminal offence by a court serving a prison sentence are also prohibited to run as a candidate in elections.

It stems from the ECHR’s practice that the uniform and unfounded prohibition of all persons serving a prison sentence is not in accordance with Article 1 of Protocol no. 1 of the ECHR. The ECHR decided in the Hirst judgment that even though the states have a wide discretion in regulating organisation of elections, any restrictions to right to vote must have a legitimate purpose and be proportionate. The ECHR has previously decided that the prisoners are generally subject to all basic rights and freedoms stemming from the convention, excluding the right to freedom, and that the states may not prohibit their right to vote solely because of a negative public opinion. All the same the convention does not prohibit measures aimed at protection of rights and freedoms of others and therefore in the case of severe crimes against law, state or democracy or crimes of abuse of power may additionally be punishable by prohibition of the right to vote.[15]

The ECHR stated criteria which the restrictions of the prisoners’ right to vote had to comply with in the Hirst judgment:

  • the subject of the restriction may be a specifically defined group of convicted offenders serving a long term sentence;
  • there has to be a direct link between the basis of the offence they were imprisoned for and the removal of their right to vote as a sanction;
  • the removal of their right to vote should preferably be the result of a separate reasoned decision of the court, not an automatic application of the law.

The restriction of the right to vote in Estonia does not comply with the abovementioned criteria of the ECHR in the opinion of the author. The restriction of prisoners’ right to vote has been applied to all criminal offenders serving a prison sentence regardless of the length of their sentence or the relative severity of their offence. There probably is no direct link between the offence and the restriction of the right to vote in most of these cases. The restriction of the right to vote is automatic and the court lacks the discretion to allow the convicted persons to participate in elections during serving his or her prison sentence. It stems from the aforementioned that the provisions of the Riigikogu Elections Act, European Parliament Elections Act and the Local Government Council Elections Act prohibiting all persons convicted by a court serving a prison sentence to vote in elections contradict Article 3 of Protocol no. 3 of the ECHR. There may be additional contradiction with European Union law, including Articles 20 and 22 of the Treaty on the Functioning of the European Union, Articles 39 and 40 of the Charter of Fundamental Rights of the European Union and Council Directives 93/109/EC and 94/80/EC in the case of the European Parliament Elections Act and the Local Government Council Elections Act.

Recommendations

–          Analyse the actual effect of prohibition of outdoor political advertising and depending on the outcome consider removing or specifying the restriction to better ensure the purpose and proportionality of it.

–          Amend the Riigikogu Election Act, the European Parliament Election Act and the Local Government Council Election Act so that convicted offenders serving a prison sentence would not be prohibited to vote, excluding as an additional punishment in reasoned cases.


[1] Riigikogu Electon Act. RT I 2002, 57, 355 … RT I, 10.12.2010, 1. § 4.

[2] European Parliament Election Act. RT I 2003, 4, 22 … RT I, 10.12.2010, 1. § 4.

[3] Local Government Council Election Act. RT I 2002, 36, 220 … RT I, 10.12.2010, 1. § 5.

[4] Estonia is one of the few states in the world where pre-elections can be voted in electronically.

[5] Supreme Court en banc. Judgment no. 3-4-1-33-09 (1.07.2010). Point 12.

[6] Judgment no. 3-4-1-33-09. Point 18.

[7] Judgment no. 3-4-1-33-09.

[8] Judgment no. 3-4-1-33-09. Point 51.

[9] Judgment no. 3-4-1-33-09. Point 62.

[10] Judgment no. 3-4-1-33-09. Point 63.

[11] Judgment no. 3-4-1-33-09. Point 67.

[12] See Judgment no. 3-4-1-33-09. Justice of the Supreme Court Jüri Põld dissenting opinion to the judgment of Supreme Court en banc regarding constitutionality in case no. 3-4-1-33-09, which is joined by justices Jüri Ilvest, Jaak Luik and Märt Rask – It was also supperted in her dissenting opinion by justice Julia Laffranque.

[13] Dissenting opinion in case no. 3-4-1-33-09.

[14] See for example ECtHR 11 December 2008 judgment TV-Vest and Rogaland Pensjonistparti v. Norway. Application no. 21132/05.

[15] ECtHR 6 October 2005 judgment Hirst no. 2 v. United Kingdom. Application no. 74025/01; confirmed by ECHR 8 April 2010 judgment Frodl v. Austria. Application no. 20201/04.

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