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Annual Report of the Chancello

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Dear reader, In accordance with section 4 of the Chancellor of Justice Act, the Chancellor has to submit an annual report of his activities to the Riigikogu. The present overview of the conformity of legislation of general application with the Constitution and the laws covers the period from 1 June until 31 December 2004, and the outline of activities concerning the protection of fundamental rights and freedoms of persons, the period from 1 January until 31 December 2004. The overview contains summaries of the main cases that were settled as well as generalisations of the legal problems and difficulties, together with proposals on how to improve the protection of fundamental rights and freedoms and how to raise the quality of law making. The readers will also be able to familiarise themselves with the organisation of work in the Office of the Chancellor of Justice. According to the Constitution, the Chancellor of Justice is an independent constitutional institution. Such a status enables him to assess problems objectively and to protect people effectively from arbitrary measures of the state authority. One tool for fulfilling this task is the opportunity that the Chancellor of Justice has to submit to the Riigikogu his conclusions and considerations regarding shortcomings in legislation, in order to contribute to strengthening the principles of democracy and the rule of law. I am grateful to the members of the Riigikogu and its committees, in particular the Constitutional Committee, the Legal Affairs Committee and the Social Affairs Committee, for having been open to mutual, trustful and effective cooperation, which will hopefully continue just as fruitfully in the future. Glancing back at the previous year and assessing the situation of fundamental constitutional principles and rights in Estonia, I am happy to note that the general legal awareness of people has improved. However, mere knowledge of one’s rights and freedoms is not sufficient if there are no corresponding effective mechanisms that can be used to stand up for them. Therefore, several new laws can be said to serve a laudable purpose; for example: the State Legal Aid Act, the Victim Assistance Act, the Gender Equality Act, the Consumer Protection Act, which were passed in connection with Estonia’s accession to the European Union on 1 May 2004. Hopefully, Estonia’s membership of the EU will help to ensure even better protection of people’s fundamental rights and freedoms, in particular in connection with the positive duties of the state and the state’s duties to perform. The present reporting year is an important landmark in the development of the institution of the Chancellor of Justice due to the expansion of the Chancellor’s competencies as a result of the amendment of the Chancellor of Justice Act, which is also reflected in the increased number of petitions to the Chancellor. Since 1 January OFFICE OF THE CHANCELLOR OF JUSTICE 2004, the Act allows everyone to turn to the Chancellor of Justice with a request to verify the legality of the KOHTU STREET 8 activities of agencies or persons exercising public functions, and their compliance with the principles of good 15193 TALLINN practice, whereas previously the Act had only provided for such a possibility in connection with the activities Phone: +372 693 8400 of state agencies in ensuring fundamental rights and freedoms. Fax: +372 693 8401 Although the Chancellor of Justice receives applications concerning a wide range of legal issues, special Homepage: http://www.oiguskantsler.ee attention during the present reporting period was given to the issues of personal data protection, the right of people without health insurance to healthcare, and access to education of people with disabilities. Translator: Margus Puusepp As concerns individual cases, the supervised agencies usually comply with the proposals and recommendations made by the Chancellor of Justice. However, in the case of more wide-ranging problems, finding a solution falls beyond my competence and therefore I have tried to formulate them clearly, so that Parliament and the Design: Hele Hanson-Penu executive bodies could prepare and implement suitable and effective measures to solve them. Printed: Triip Ltd I hope the overview will help the Riigikogu to make assessments of principle with regard to issues of constitutionality and the protection of fundamental rights and freedoms. Yours sincerely, Allar Jõks Tallinn, 1 September 2005 ISSN 1736-3039 CONTENTS III HEALTH PROTECTION AND MEDICAL CARE 54 1. General outline 54 2. The legality of the activities of Ida-Viru county governor and Vaivara rural municipality council in ensuring access to general health care 55 INTRODUCTION 8 IV SOCIAL WELFARE 61 PART 1. OVERIVIEW OF THE CONFORMITY OF THE LEGISLATION PASSED BY THE STATE LEGISLATIVE AND EXECUTIVE AUTHORITIES AND LOCAL GOVERNMENTS V PENSIONS 62 WITH THE CONSTITUTION AND LAWS 13 VI WORK AND PUBLIC SERVICE 63 I THE SUPRME COURT CONSTITUTIONAL REVIEW PROCEEDINGS 15 1. Introduction 15 VII PUBLIC ORDER 65 2. Lack of the right of discretion in issuing and extending residence permits 15 1. General outline 65 2. The legality of taking minors to a health care institution for the establishment II SUPERVISORY ACTIVITIES OF THE CHANCELLOR OF JUSTICE 18 of the state of intoxication 66 1. Introduction 18 3. Legal use of the Central Law Enforcement Police during large public events 67 2. Right of pupils with special needs to basic education 19 2.1. Access of pupils with special needs to basic education 19 VIII THE ESTONIAN LANGUAGE AND CITIZENSHIP 70 2.2. Lack of teaching aids and materials for teaching pupils with special educational needs as an obstacle to access to basic education 22 IX NAME 72 2.3. Conclusion 23 1. General outline 72 3. Access to general health care 23 2. Conformity of the Names Act with the Constitution 72 3.1. Minimum access to health care 24 3.2. Territorial and equal access to general professional health care 25 X PENAL LAW AND CRIMINAL PROCEDURE 75 3.3. Conclusion 26 4. Processing of personal data for statistical and research purposes 26 XI DETENTION AND ARREST 76 4.1. The problem and the fundamental rights relating to it 27 1. General outline 76 4.2. The main principles of personal data protection 28 2. The right of detainees to read national daily newspapers in the jail 76 4.3. Compatibility of the Personal Data Protection Act with the Constitution 29 3. Presenting the order of disciplinary punishment to detainees 77 4.4. The collection of statistical data for the functioning of the state – 4. Verification visit to jails in Ida-Viru Police Prefecture 79 the example of the drug addiction treatment register 30 4.5. Conclusion 31 XII IMPRISONMENT 87 5. The right to an effective remedy for one’s protection 31 1. General outline 87 5.1. Possibility of restrictions 32 2. The right of prisoners to receive replies in Estonian to their enquiries 89 5.2. The right of appeal in the criminal and misdemeanour procedure 32 3. Taking a urine sample from a prisoner in the case of suspicion 5.2.1. Contesting of court rulings 33 of consumption of a narcotic substance 90 5.2.2. Appeal to the circuit court 35 XIII ACCESS TO INFORMATION AND RESPONDING TO MEMORANDUMS AND 5.2.3. Restrictions on representation 36 REQUESTS FOR EXPLANATIONS 93 5.3. Conclusion 38 1. General outline 93 2. The conformity of the Response to Memorandums and Requests PART 2. OVERVIEW OF THE ACTIVITIES OF THE CHANCELLOR OF JUSTICE IN for Explanations Act with the Constitution 94 THE PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS 39 XIV RIGHT TO GOOD ADMINISTRATION 96 I INTRODUCTION 41 XV BRINGING DISCIPLINARY PROCEEDINGS AGAINST JUDGES 97 II CHILDREN 44 1. General outline 97 1. General outline 44 2. Disciplinary proceedings against a judge: substitution of one and 2. Legality of the activities of Pelgulinna Upper Secondary School the same pecuniary punishment twice 98 and the Tallinn Board of Education 45 3. Ensuring of the privacy and security of children at the Voka Children’s Home 47 XVI ACTIVITIES OF CHANCELLOR OF JUSTICE IN THE APPLICATION OF THE 4. Verification visit to Tallinn Boarding School No. 1 49 PRINCIPLES OF EQUALITY AND EQUAL TREATMENT 104 XVII STATISTICS OF THE PROCEEDINGS 106 3. Conferences and seminars 140 1. The activities of the Chancellor of Justice in resolving applications of persons 106 3.1. “THE POLICE.THE LAW.THE STATE” 140 2. Verification of the conformity of legislation with the Constitution and the laws 108 3.2. Participation of the Chancellor of Justice in conferences and seminars 141 3. Verification of the legality of activities of state agencies 108 4. Cooperation of the Chancellor of Justice with the Chancellors of Justice 4. Verification of the legality of the activities of local government agencies or bodies 111 and ombudsmen and with other high public servants of foreign countries 141 5. Verification of the legality of the activities of legal persons in public law or natural persons and legal persons in private law who exercise public functions 111 CONTACT INFORMATION 143 6. Initiating of disciplinary proceedings with regard to judges 111 7. Own-initiative proceedings of the Chancellor of Justice 111 RECEPTION TIMES 145 8. Explaining of legislation 112 9. Reception of persons 112 10. Conclusion 112 PART 3. ACTIVITIES OF THE OFFICE OF THE CHANCELLOR OF JUSTICE 115 I ORGANISATION 117 1. Symbols 117 2. Structure and staff 117 3. The budget 118 3.1. Profit and loss statement 120 3.2. Operating expenses 120 II DEVELOPMENT ACTIVITIES 123 1. Development plan for 2003-2007 123 2. Fundamental values and the code of ethics 123 3. Personnel development 124 3.1.
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