HUMAN RIGHTS IN ESTONIA TOGETHER WE ARE STRONGER! Sihtasutus Eesti Inimõiguste Keskus [email protected] anneta.humanrights.eewww.inimoigused.ee HUMAN RIGHTS 2014 IN ESTONIA 2015 Annual Report of the Estonian Human Rights Centre Foundation Estonian Human Rights Centre [email protected] www.humanrights.ee 2015 2014 Annual Report of the Estonian Human Rights Centre HUMAN RIGHTS IN ESTONIA 2014-2015 Annual Report of the Estonian Human Rights Centre HUMAN RIGHTS IN ESTONIA 2014-2015 HUMAN RIGHTS IN ESTONIA 2014-2015 Annual Report of the Estonian Human Rights Centre Edited by: Egert Rünne, Kari Käsper Translated by: Grete Anton Published by: Estonian Human Rights Centre. Copyright: Authors, Estonian Human Rights Centre, 2015 Designed by: Mihkel Ronk, koosolek.ee Authors of photos (creative commons license, flickr.com): erix!, mknobil, sandman, daily sunny, M.Markus, Magic Madzik, dandeluca, Elsie esq., russelljsmith, takomabibelot, Yortw, dicktay2000, PinkMoose ISSN 2228-1045 ISSN 2228-1053 Compiling and publishing of the report supported by The Integration and Migration Foundation Our People (MISA), Estonian Ministry of Culture and Embassy of the Kingdom of the Netherlands in Estonia. Views expressed in the report may not represent those of the The Integration and Migration Foundation Our People (MISA), Estonian Ministry of Culture and Embassy of the Kingdom of the Netherlands in Estonia. 2 HUMAN RIGHTS IN ESTONIA Prohibition of torture, inhuman or degrading 2014-2015 treatment and punishment 7 Contents Foreword ...................................................................................................................4 Ahto Lobjakas Prohibition of torture, inhuman or degrading treatment and punishment ....7 Epp Lumiste Prohibition of slavery and forced labour ............................................................17 Merle Albrant Right to a fair trial .................................................................................................27 Kari Käsper Right to respect for family and private life .........................................................35 Ann Väljataga Freedom of expression ..........................................................................................47 Dr. Katrin Nyman-Metcalf Freedom of assembly and association.................................................................57 Alari Rammo Prohibition of discrimination ..............................................................................67 Kelly Grossthal Right to education .................................................................................................79 Aivi Remmelg Right to free elections ...........................................................................................93 Egert Rünne National minorities and integration policy in Estonia ...................................103 Kristjan Kaldur The situation of LGBT persons in Estonia .......................................................115 Helen Talalaev Rights of refugees and asylum seekers ..............................................................125 Anni Säär Rights of the Child ..............................................................................................135 Helika Saar Situation of persons with disabilities ................................................................149 Tiiu Hermat 3 DearForeword reader! HUMAN RIGHTS IN ESTONIA treatment and punishment 7 2014-2015 Dear reader! uman rights in Estonia face pressure from two sides. On one hand it is set to have a correlation with the founding principles defined H by the community, the need to secure a living space for Estonian nationality, language and culture. These values cannot be clearly defined: there is a noticeable tendency, which cropped up in the course of the refugee crisis, an attempt to define what is Estonian through skin colour and other hereditary attributes, and not through language or something else an indi- vidual can learn – and is thus attainable for everyone. On the other hand the theme of living space is manifested on the level of existence of the state. “Only a certain disposition can make sure the state of Estonia will last through ages,” says this approach, placing all other considerations under the seal of right of communal existence. The first communal impulse has a parasitical existence on a level, which is democratic in essence. In Estonia, as has been referred, the egalitarian nature of democracy has been bent to serve the interests of a more narrowly defined (ethnic) group. It is unavoidably and apparently clear that groups and indi- viduals who do not share the same imperative, will find themselves, through the mediation of a seemingly democratic decision-making mechanism, in an unequal situation. In reality they have fewer rights, and additionally, their rights in the future will be qualified by the constitutionally in-coded require- ment to make sure the dominant ethnic community never loses the majority status on the territory of their state. Another pressure factor is similarly parasitical on the international law, fill- ing the right of self-determination narrowly with ethnic content. The prob- lem works both ways: besides instrumentalisation of democracy and nation- ality, or making them a tool for a narrow interest, practicing these both in a diminished way unavoidably distorts, if not disfigures, their content for the Estonian public. The threshold of values is lowered. 4 HUMAN RIGHTS IN ESTONIA DearForeword reader! 2014-2015 treatment and punishment 7 Human rights, in essence, belong to the sphere of the state based on rule of law. Along with democracy and international law the state based on rule of law is one of three foundations for the modern value-based world order. Historically, it is primary, as international law is hard to imagine in a world without democracy, and democracy, in turn, is hard to imagine without the foundation of equal rights of people. In practice, this forms a certain her- metically sealed circle: all three principles require the other two in one way or another. Human rights are the platform for ideal values, which can be deduced from practical functioning of the Western world order – its legal practice, conventions, constitutions, etc. Human rights are the historic fruit of this developing practice. The similarity of human rights to Kantian universal rights (applicable for all conceivable people at all times) is not coincidental – but nor is it causal. Immanuel Kant and his successors have derived their sys- tems from Western practices, and then universalised them. It is important to understand that this origin of universality is built into the definition of a state based on rule of law also when it in practice does not exceed the boundaries of one society. Every person on the territory of a state based on rule of law has fundamental rights guaranteed by law even when the political, economic and social rights of the state’s subject vary. These same fundamental rights also exist for repre- sentatives of state powers acting outside of their territory. In practice, this of course means tension between national interests and things like it, but already for a long time the Western states do not allow their representatives of state powers to kill the natives, etc. The challenge for Estonia is to acknowledge and detangle for ourselves the conflict contained in our constitution, which increasingly seems to blur the official policy on human rights. If the preamble of the constitution places the duty on the state, with its democracy and legal institutions, to serve a nation or a privileged community, then the founding values of the constitu- tion, as they have been understood by the Supreme Court, clearly dictate the need to respect democracy, state based on rule of law and international law as clear principles. The solution, in any time perspective, can only be to secure 5 DearForeword reader! HUMAN RIGHTS IN ESTONIA treatment and punishment 7 2014-2015 complete autonomy of human rights / state based on rule of law within theory and practice of the state’s activity, and keep it independent from communal imperatives, no matter how democratic or serving the norms of international law they are presented as. Most of the weak points that this annual report points to, but not all, are understandable in the context of this tension and struggle. The rights of national minorities, right to fair trial, sufficient access to legal counselling, depoliticization of top officials, exclusion of any kind of discrimination, pre- ventative empathy of officials in regards to minority problems (whether based on gender, sexuality or culture), political (state based on rule of law and dem- ocratic) control over security institutions, codifying the limits of tolerance for criminalization of xenophobia – all this to (today so topical) humane treat- ment of refugees and asylum seekers and guaranteeing them adequate legal help is a part of this set of problems. A state based on rule of law, if it actually works, can only be a mirage on the untouched horizon of power guaranteed by rights of individuals. For the state of Estonia – which, on top of it all, has been the member of the United Nations Human Rights Council for three years – human rights at peace time cannot under any excuse be a topic which has to be analysed or can be analysed from the point of view of security policy, preservation of Estonian language or culture, the nation state’s future, or anything similar. Ahto Lobjakas 6 HUMAN RIGHTS IN ESTONIA Prohibition of