ANNUAL REPORT 2006 of the Chancellor of Justice Overview of the conformity of the legislation passed by the state legislative and executive powers and local governments with the Constitution and the laws Overview of the activities of the Chancellor of Justice in the protection of fundamental rights and freedoms Tallinn 2007 Dear reader, In accordance with section 4 of the Chancellor of Justice Act, every year I submit an annual report of the activities of constitutional and judicial review of legislation of general application and the application of fundamental rights and freedoms. This report covers the main cases pertaining to the constitutional review of legislation as well as the ombudsman’s function for the protection of fundamental rights and freedoms in 2006. It is evident that while the society is evolving into more complex and mature one, the legal issues arising become more complex as well. Informed, transparent civil society together with the freedom and diversity of expression of ideas, opinions, and convictions forms the cornerstone of functional and healthy democracy. In 2006, certain tendencies appeared in the society, implying strives to shift towards increased closeness. The attempts to politicize the National Broadcasting Council and the calls to set restrictions on the freedom of expression tested the strength of our democracy and free press, and demonstrated the malleability and frailty of public sentiment and deliverance in Estonia. An effective and efficient audit of the fund raising and financing of political parties is one of the premises of the integrity and transparency of the democratic decision making process. A society, where the persistence of private interests over the public interests appears to be more the rule than the exception, is in dire need of openness and transparency. An elector approaching the ballot box should be aware of the harsh truth and not settle for the beautiful lies, although the former might be considerably inconvenient compared to the latter. Unfortunately, the Riigikogu has not turned the promises into action and thus the financial matters of political parties remain hazy. The markers of the past year are the conditions disgracing human dignity in the detention houses, negligence in the social welfare institutions, and insufficient constitutional awareness. The specialized schools are still to abandon their soviet era disciplinary methods and the children with special needs are imprudently sent off to OFFICE OF THE CHANCELLOR OF JUSTICE the institutions that have no tools and conditions for their cure and rehabilitation. A state with any self respect KOHTU 8 STREET should guarantee the environment required for continued existence worthy of human dignity even for the weakest 15193 TALLINN Phone: +372 693 8404 members of the society. Fax: +372 693 8401 Homepage: http://www.oiguskantsler.ee The state of Estonia has been formed in order to protect both internal and external peace. The scandals associated with the management of the Defence Forces and organization of the military intelligence and the events of April Translation: Talepaju OÜ 2007 raise a question whether the legislative base of Estonian national defence and law enforcement is sufficient Kadi Pilt to ensure the peace in internal and external spheres? During the past 15 years the five compositions of the Riigikogu, ten Governments of the Republic and ten Design: Heigo Kütt Ministers of Defence have failed to govern the organisation of the Defence Forces by legislation. The lack of Printed: Ecoprint OÜ the Defence Forces Administration Act is not just a cosmetic constitutional deficiency. The legislative base that disregards the requirements of constitution and does not comply with the contemporary needs of the Defence Forces can cause irreparable damage to the national security. The Law Enforcement Act has been presented to the Riigikogu and we can only hope that from numerous prolific debates a proper modern base for law enforcement will emerge at last. Whereas we should not forget that the public law functions associated directly with the state monopoly of power, which execution can cause intensive breach of some of the most significant fundamental rights and freedoms of an individual, generally cannot be ISSN 1736-3039 transferred from state to the private sector. In several past years the number of petitions submitted to the Chancellor of Justice has increased the limit of two thousand (2,000), however, in 2006 I received 1858 petitions. The slight decrease in the number of petitions can be accounted to the increased awareness of the people regarding the competence of the Chancellor of Justice. The largest amount of petitions were submitted in relation to the criminal execution proceedings and imprisonment power, social welfare and social law, ownership reform, medical and health law issues, and also regarding the pre-trial criminal procedure. This report will provide an independent review of the legal order in Estonia as of 2006 for the Riigikogu and the legal community, aiming to assist the Riigikogu in the task of making the Estonian legal order more human-centred and bringing it closer to the European traditions. Yours faithfully, Allar Jõks Tallinn, 1st September 2007 VI VII CONTENTS 1.2. Time of judicial control on deprivation of liberty 40 1.3. The right to be tried in his or her presence and the right of appeal 40 1.4. Prohibition of degrading treatment 42 INTRODUCTION 1 1.5. Right to free self-realisation 43 1.6. Guarantee of the right to ownership 44 PART 1. THE CHANCELLOR OF JUSTICE AND THE RIIGIKOGU 5 1.7. Guarantee of the right to education 45 1.8. Right to inviolability of private life 46 I INTRODUCTION 6 1.9. Summary 48 2. The constitutional boundaries of the transfer of public functions II PROPOSALS TO THE RIIGIKOGU 7 to private sector 49 1. Proposal to the Riigikogu on bringing the Political Parties Act into conformity 2.1. Introduction 49 with the Constitution of the Republic of Estonia 7 2.2. The arguments supporting the transfer of public functions to private sector 50 1.1. The facts and the course of proceedings 7 2.3. Constitutional background 51 1.1.1. Concealment of the donor 9 2.4. Criteria for evaluating the permissibility of the transfer of public functions 52 1.1.1.1. Issue of debt instrument 9 2.4.1. Core functions of a state 52 1.1.1.2. R-Hooldus 9 2.4.2. A public servant 54 1.1.1.3. Donations from private persons 9 2.4.3. The intensity of interference with the fundamental rights 56 1.1.2. Concealment of the donation 9 2.5. The need for special provision delegating authority 58 1.1.2.1. K-kohuke 9 2.6. Summary 59 1.1.2.2. Res Publica Foundation 11 1.1.3. Annual report and the disclosure thereof 11 PART 2. THE CHANCELLOR OF JUSTICE AND THE EXECUTIVE POWER 61 1.2. Most significant relevant provisions 12 1.3. Legal rationale 13 I INTRODUCTION 62 1.3.1. Principle of democracy (subsection 1(1) and section 10 of the Constitution) 1. Constitutional review, protection of the fundamental rights and freedoms of and fundamental right of a political party (second sentence persons and compliance with the principles of good governance 62 of the subsection 48 (1) of the Constitution) 13 2. The ex-ante verification of the legislation of general application at the sessions of 1.3.2. Regulation of the Political Parties Act 15 the Government of the Republic 64 1.3.2.1. Annual report and audit control 16 3. From 2007 the Chancellor of Justice as a national preventive mechanism 65 1.3.2.2. Register on the donations received 18 1.3.2.3. Election campaign expenditure report 18 II AREA OF GOVERNMENT OF THE MINISTRY OF 1.3.2.4. Liability for the non-compliance with requirements of the Political Parties Act 19 EDUCATION AND RESEARCH 66 1.3.2.5. Other supervisory bodies 20 1. General outline 66 1.3.3. Assessment on the regulation of the Political Parties Act 20 2. Voluntariness of the religious studies in the schools 68 1.4. The position of the Chancellor of Justice 21 3. The verification visit to the Imastu Residential School 71 1.5. Course of the proceedings 21 4. Inspection visit to the Kaagvere Special School 76 III REPORTS TO THE RIIGIKOGU 24 III AREA OF GOVERNMENT OF THE MINISTRY OF JUSTICE 84 1. The constitutionality of the subsection 21 (1) 1. General outline 84 of the Collective Labour Dispute Resolution Act 24 1.1. Legislation 84 1.1. General overview on the right to strike and restrictions thereupon 24 1.2. Substantive penal law and penal procedure 86 1.2. The restrictions on right to strike provided by the subsection 21 (1) 1.3. Law of imprisonment 88 of the Collective Labour Dispute Resolution Act 25 1.4. Court administration and judicial procedure 91 1.3. The permissibility of the restrictions on strike provided by the subsection 21 (1) 2. Law of lawyer-client meetings 92 of the Collective Labour Dispute Resolution Act 25 3. Items allowed in a disciplinary cell 99 1.4. The position of the Chancellor of Justice 28 4. Use of handcuffs in escorting life-sentenced prisoners 103 1.5. Course of the proceedings 28 5. Conditions in the health care department of Tallinn Prison 106 6. Overcrowding in prisons 108 IV OPINIONS TO THE RIIGIKOGU 29 7. Overcrowding in Ämari Prison 110 1. The right to vote of imprisoned persons 29 8. Use of Russian and translation of official prison documents into Russian 112 9. Placing a sentenced prisoner in a segregation cell 118 V AREAS OF CONCERN OF THE LEGAL ORDER 39 10.