Helsinki and Stockholm, 18 November 1991
Report on Human Rights in the Republic of Estonia
Sir,
We have the honour to send you herewith our Report on Human Rights in the Republic of Estonia, which we have prepared at the request of the Parliamentary Assembly of the Council of Europe.
Yours faithfully,
Raimo Pekkanen
Judge of the European
Court of Human Rights
Hans Danelius
Member of the European
Commission of Human Rights
Mr. Heiner Klebes,
Clerk of the
Parliamentary Assembly,
Council of Europe,
B.P. 431 R6,
67006 STRASBOURG CEDEX
18 November 1991
REPORT ON HUMAN RIGHTS IN THE REPUBLIC OF ESTONIA
I. Introductory remarks
1. We, the undersigned, Raimo Pekkanen, Judge of the European Court of Human Rights, and Hans Danelius, Member of the European Commission of Human Rights, have been asked by the Parliamentary Assembly of the Council of Europe to make a study of Estonian legislation insofar as it relates to human rights issues and to state our opinion as to whether certain laws might create problems in relation to international human rights standards as reflected, in particular, in the European Convention on Human Rights.
2. On the basis of certain laws and other legal texts which had been made available to us in translations into English, we submitted in August 1991 a Preliminary Report on this subject. At the same time, we stressed the fact that we had based our findings exclusively on the written material which had been put at our disposal. We further stated that direct contacts with Estonian officials would make it possible for us to obtain more information and to make a more thorough analysis of the situation.
3. Having obtained the approval of the Parliamentary Assembly, we visited Tallinn from 31 October to 3 November 1991. During our stay in Tallinn, we had extensive conversations on a large variety of topics with Mr. Jüri Raidla, Minister of Justice of the Republic of Estonia, and with several senior officials of the Ministry of Justice. We also met Mr. Heiki Lindpere, Director of the Legal Department of the Ministry of Foreign Affairs, who informed us about Estonia’s recent accession to a number of international human rights conventions, and Mr. Mart Rannut, Director General of the State Department of Language, with whom we discussed the contents and the application of the Language Law. During our visit, we also met Mr. Valeri Kois, Member of the Supreme Council of the Republic of Estonia and of the Constitutional Assembly, and other prominent representatives of the Russian minority in Estonia and discussed with them various questions regarding the situation of minorities in Estonia.
4. During our visit, we also received translations into English of a number of Estonian laws which had not been made available to us before. As regards certain other laws which would be of interest to us, we were informed that no translations existed, and we had to content ourselves with the oral information – inevitably incomplete – which was given to us. A considerable part of our conversations was also devoted to the plans for new legislation in various areas and to draft laws which are now under consideration in Estonia.
II. General development of Estonian legislation
5. On 16 November 1988, The Supreme Soviet of the Estonian Soviet Socialist Republic (the Estonian SSR) adopted a Declaration on the Sovereignty of the Estonian SSR. According to this Declaration, the Estonian laws were to have supremacy on the territory of the Estonian SSR. This Declaration initiated a process of legislation in Estonia, the laws adopted being independent of any Soviet legislation.
6. On the same day – 16 November 1988 – certain amendments to the Constitution of the Estonian SSR were adopted. The new provisions introduced into the Constitution indicated, inter alia, that
(a) the provisions of the International Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights were an inseparable part of the legal system of the Estonian SSR,
(b) the judicial defence of constitutional rights for citizens and legal entities were guaranteed in the Estonian SSR, and
(c) the economic system of the Estonian SSR was to include personal, private and mixed ownership.
7. On 18 January 1989, the Language Law of the Estonian SSR was adopted. Some aspects of this Law are of considerable importance for our study of the human rights situation in Estonia, and our comments in this regard appear below in Part VI of this Report.
8. On 15 December 1989, a Law on the Ethnic Rights of the Citizens of the Estonian SSR was adopted. According to Article 1 of this Law, the Estonian SSR guaranteed to all its citizens, regardless of ethnic origin, equal political, economic and social rights and freedoms. Article 2 imposed on all residents of Estonia, regardless of ethnic origin and nationality, the obligation to abide by the laws and to respect the culture, customs and traditions of Estonians and other ethnic groups.
9. On 30 March 1990, the Supreme Soviet of the Estonian SSR declared, in a Resolution on the State Status of Estonia, the State power of the USSR in Estonia to be unlawful and proclaimed the restoration of the Republic of Estonia. However, there would be a period of transition which would lead up to the formation of constitutional organs of State power for the Republic of Estonia.
10. On 8 May 1990, a Law on Estonia’s Symbols was adopted. In this Law, the Supreme Soviet of the Estonian SSR proclaimed as invalid the name “Estonian Soviet Socialist Republic” and adopted as the official name of the country “The Republic of Estonia”. The Supreme Council also re-enacted certain Articles of the 1938 Constitution of Estonia. One of these Articles was Article 4, which in general terms guarantees the application of “universally recognised precepts of international law”.
11. On 16 May 1990, the Law on the Principles of the Provisional Rule of Government in Estonia was adopted by the Supreme Council of the Republic of Estonia, which had replaced the Supreme Soviet of the Estonian SSR. In this Law it was proclaimed that, during the period of transition, the highest legislative power in Estonia would be vested in the Supreme Council of the Republic of Estonia and executive power in the Government of the Republic of Estonia. Justice would be administered by Estonian courts which would be separate from and independent of the judicial authority of the USSR. The Republic of Estonia would guarantee social, economic and cultural rights as well as political freedoms based on universally recognised international norms to all its residents. There was also a special provision on freedom of religion.
12. On the same day – 16 May 1990 – the Supreme Council adopted a Resolution on a “plan of action” for the time up to the restoration of the independence of the Republic of Estonia and on the provisional rule of Government. In this Resolution it was stated that guarantees for the protection of human rights for all residents of Estonia, regardless of nationality
or citizenship, would be drafted and enacted during the period of transition. Moreover, the Supreme Council would begin to form the political, economic and social structure of the independent Republic of Estonia. This would be “an open society and a just State where all human rights and social security are guaranteed regardless of nationality or citizenship”. The political structure would be based on “the principles of parliamentary democracy and separation of power”. Work would begin on the drafting of the Election Law for the Parliament of the Republic of Estonia and also on the drafting of a new Constitution.
13. On 13 June 1990, the Property Law of the Republic of Estonia was enacted. This is a voluminous Law consisting of 49 Articles. According to its Preamble, the Property Law shall regulate matters of property until the adoption of a Civil Code of the Republic of Estonia, and the legal standards contained in the Property Law shall form the basis for the new Civil Code. The Law guarantees different forms of property, including private property. Some comments on the Property Law are made below in Part VII of this Report.
14. An Immigration Law was enacted on 26 June 1990. This Law is aimed at limiting immigration by setting certain immigration quotas. The Law is further dealt with below in Part VIII of this Report.
15. On 13 June 1991, a Law on the Principles of Property Reform was enacted. This Law deals with the question of return of property to former owners and of compensation to former owners for property of which they have been illegally deprived. It also contains certain rules about privatisation of property.
16. On 20 August 1991, the Supreme Council, in a Resolution, proclaimed the national independence of the Republic of Estonia and decided to form a Constitutional Assembly for the purpose of drafting a Constitution, which would be submitted to a referendum, and to hold parliamentary elections in 1992 on the basis of the new Constitution.
17. After the proclamation of independence, a very intensive legislative activity has been initiated. The Constitutional Assembly has been set up and is deliberating on the new Constitution on the basis of drafts presented to it. Another important and much debated issue concerns the legal rules which shall regulate Estonian citizenship. This question has some elements affecting principles of human rights and is therefore commented on below in Part IV of this Report.
18. According to paragraph 4 of the Law on the Principles of the Provisional Rule of Government in Estonia, referred to in paragraph 11 above, all legal acts in force in Estonia shall remain in force until rescinded or amended, provided they are not in conflict with subsequent legislation. This means that even after Estonia’s independence a number of old laws enacted during the period of Soviet domination remained valid and that there was and is an urgent need to replace many of them by new legislation suited to Estonia’s new status as a democratic country desiring to respect human rights.
19. Some new laws have already been adopted after independence, for instance – on 23 October 1991 – a Law on the Judicial Organisation and a Law on the Status of Judges. A Code of Judicial Procedure is being prepared. A new Penal Code will also be drafted. Several of the offences which appear in the present Penal Code will then be abolished, for instance certain offences of a political character and the offence of “speculation” which is incompatible with the market economy system. The Civil Code will also have to be thoroughly revised.
III. Constitutional protection of human rights
20. The Constitution of the Estonian SSR is no longer in force in Estonia (cf. Supreme Council Resolution of 7 August 1990: “Attesting that the Constitution of the Estonian SSR has ceased to regulate State and public relations in Estonia”). On 8 May 1990, certain provisions of the 1938 Estonian Constitution were re-enacted, among which Article 4 which provides as follows:
“In Estonia, only those laws which have been put into force by her own institutions shall have effect.
The universally recognised precepts of international law are valid as inseparable parts of the Estonian legal order.
No one can plead ignorance of the law as an excuse.”
Although this Article could be understood to give constitutional protection to at least some basic principles of human rights, it is obviously much too general in scope to provide effective guarantees in this regard.
21. However, a new Constitution is under preparation by the Constitutional Assembly. There is one basic draft, the so-called Adams draft. An alternative draft, the so-called Raidla draft, is also being examined by the Constitutional Assembly. The most important differences between the two drafts concern the division of competence between the different State organs.
22. As it is not yet known what will be the final text to be adopted, it does not seem necessary at the present time to engage in a detailed analysis of the two drafts. It should be recalled, however, that both drafts contain a Chapter II which deals with the fundamental rights of the individual. In this Chapter, and to some extent in other parts of the two drafts, protection is given to most of the rights dealt with in the European Convention on Human Rights.
23. However, the provisions are not drafted in the same way as in the European Convention. In regard to some rights it is indicated in general terms that restrictions may be made by law. This means that the scope of the protection which will actually be provided cannot be determined on the basis of the Constitution alone. The following examples may be mentioned. As regards the prohibition against deprivation of liberty, there is in both drafts a general exception for cases where such deprivation is authorised by law (Article 11 Adams draft, Article 14 Raidla draft). Consequently, this exception is in principle wider than the limitative list of permissible cases of detention which appears in Article 5 para. 1 of the European Convention. As regards the prohibition in both drafts against forcibly entering or searching a person’s home (Article 14 Adams draft, Article 22 Raidla draft) and the provisions in the Adams draft on the right to peaceful assembly (Article 19) and the right to freedom of movement (Article 29), there is no equivalent to the requirement of the European Convention that any measure restricting the individual right concerned should be necessary in a democratic society for one or more of the specific purposes enumerated in the Convention.
In other cases, for instance as regards, in both drafts, freedom to practise one’s religion (Article 15 Adams draft, Article 26 Raidla draft), freedom of expression (Article 16 Adams draft, Article 28 Raidla draft) and secrecy of messages and correspondence (Article 17 Adams draft, Article 31 Raidla draft) as well as, in the Adams draft, freedom of association (Article 18) and, in the Raidla draft, freedom of movement (Article 23) and freedom of peaceful assembly (Article 32), it is indicated that any restrictions must serve certain specified purposes, but the restrictive Convention criterion “necessary in a democratic society” does not appear in the text of the proposed provisions. However, in all those cases the compliance or non-compliance with the principles of the European Convention will of course depend on what kinds of restrictions will actually be permitted by the ordinary laws.
24. As regards deprivation of liberty, both drafts contain a provision according to which a person who is suspected of having committed an offence must not be held in custody, without a court order, for more than 48 hours (Article 11 Adams draft, Article 14 Raidla draft). However, another important Convention right, namely the right of any detained person to have the legality of his detention reviewed speedily by a court (Article 5 para. 4 of the European Convention on Human Rights), is not reflected in the two drafts.
25. As regards the important prohibition in Article 3 of the European Convention on Human Rights against torture and inhuman or degrading treatment or punishment, an equivalent has been included in the Raidla draft (Article 21), whereas the Adams draft only provides that no penalty shall be permitted to be cruel or demeaning (Article 13).
26. As regards capital punishment – which is still practised in Estonia at the present time – the Raidla draft proposes its abolition (Article 13), whereas the Adams draft contains no corresponding rule.
27. An important provision in both drafts is that which in unequivocal terms prohibits State censorship of any publication (Article 16 Adams draft, Article 28 Raidla draft).
28. As regards discrimination in the enjoyment of human rights, special attention should be given to the situation of those persons who are resident in Estonia but who might not be granted Estonian citizenship either because they do not satisfy the conditions laid down in the law (see below in Part IV of this Report) or because they prefer not to apply for naturalisation. In this regard, the Adams draft takes a clear position insofar as it provides in Article 5: “Citizens of other States and stateless persons who are permanently resident in Estonia shall enjoy all the same human rights and civil rights as Estonian citizens.”
In regard to the discrimination problem, the Raidla draft contains in Article 10 a provision guaranteeing everyone’s equality before the law, regardless of nationality, race, sex, language, religion, political or other persuasion and social background. According to Article 3 of the draft, the law shall protect the citizen from arbitrary action by the State, but here nothing is said about non-citizens. Finally, Article 50 makes a distinction between two groups of fundamental rights, i.e., on the one hand, those which shall apply equally to Estonian citizens and to citizens of foreign States and stateless persons and, on the other hand, those which shall apply to citizens and non-citizens alike only where the law does not provide otherwise. The latter group of rights includes, for instance, freedom of movement, freedom of expression, freedom of assembly, freedom of association and the right to property. If there should be special rules for non-citizens in regard to such rights, problems of discrimination are likely to arise, since Article 14 of the European Convention on Human Rights prohibits any discrimination in the enjoyment of the rights guaranteed by that Convention. Some further comments on this issue are made in paragraphs 69–71 below.
29. Each of the two drafts also contains a Chapter 13 which concerns the courts. The independence of the courts is emphasised in both drafts (Article 105 Adams draft, Article 139 Raidla draft), and they also prohibit the creation of emergency courts (Article 107 Adams draft, Article 141 Raidla draft) and provide for life-time appointment of judges, subject to a retiring age varying from 65 to 70 (Article 112 Adams draft, Article 140 Raidla draft). It is also made clear that the courts shall not apply laws which are in contradiction to the Constitution (Article 115 Adams draft, Article 144 Raidla draft).
In Article 110 of the Adams draft it is provided that “supervision of the activity of the courts shall be carried out by the higher level courts and the Ministry of Justice”. If the intention is that the Ministry’s supervision shall cover not only the administration of the courts but also the performance of their judicial functions, this would clearly not be in conformity with the independence which the courts should enjoy.
30. Once the Constitutional Assembly has completed its work and adopted the text of the Constitution, it will be submitted, in a referendum, to the people for its final approval.
IV. The citizenship issue
31. The population of Estonia consists of 61 % Estonians and 39 % non-Estonians, among the latter 30 % Russians. The question of which residents shall be accepted as Estonian citizens has proved to be a difficult and widely debated issue.
32. During our visit to Tallinn, we were told that different ways of dealing with the citizenship issue were considered. One possibility was to re-enact the 1938 Estonian Citizenship Law, which would mean that those who had been citizens before the Soviet annexation in 1940 and their descendants would be automatically recognised as citizens, whereas other residents would have the possibility to acquire citizenship by way of naturalisation. Another solution – advocated by many members of the minority groups in the country – would be to give all present permanent residents of Estonia a free choice as to whether or not they wished to acquire Estonian citizenship.
33. According to information which we have received after our visit, it appears that, on 6 November 1991, the Supreme Council of the Republic of Estonia decided to re-introduce the 1938 Citizenship Law. According to this Law, those who are not automatically citizens may be naturalised if certain conditions are satisfied. One condition is that the person concerned has resided in Estonia for at least two years, when making his application, and the process of naturalisation will then take another year. A further condition is that the person to be naturalised knows the Estonian language. The Government has now been requested to draft certain rules of application, for instance in regard to the language requirement.
34. We were informed that one problem in regard to the 1938 Citizenship Law resides in the fact that it only admits the transmission of Estonian citizenship along the paternal line, whereas an Estonian mother does not transfer her Estonian citizenship to her children. An open question, which is of particular importance and sensitivity, is how the provisions on acquisition of citizenship by naturalisation will in practice be applied in regard to members of the Russian minority and other minority groups. If, for instance, the language requirement receives a strict application, this could exclude large numbers of persons belonging to the minorities from citizenship.
35. As regards the human rights aspect of this problem, it should first be noted that neither the European Convention on Human Rights nor any other international human rights convention recognises the right to a certain citizenship as a human right. Consequently, it must in principle be left to each State to determine the conditions for acquiring its citizenship.
36. However, if substantial parts of the population of a country are denied the right to become citizens, and thereby are also denied for instance the right to vote in parliamentary elections, this could affect the character of the democratic system in that country. As regards the European Convention on Human Rights, the question could be raised whether in such a situation the elections to the legislature would sufficiently ensure the free expression of the opinion of the people, as required by Article 3 of the First Protocol to the Convention.
37. Human rights problems could arise if citizenship was refused to residents on the ground of their membership of a certain minority group and not on the basis of an examination of each individual case. Insofar as facts are known about a person’s activities in the past which create legitimate doubts about his loyalty to the State of residence, this could well be a reason for not granting an application for naturalisation. On the other hand, the situation might become problematic, if the criteria applied are so strict that a substantial part of the population is in fact denied citizenship. These problems are aggravated if the absence of citizenship has effects on the possibilities of the persons concerned to be employed in the public administration or to engage in various economic activities or if it entails other substantial disadvantages for them in their daily life. In this respect, members of the Russian minority, with whom we spoke in Tallinn, drew our attention, by way of example, to Article 31 of the Adams draft Constitution, which provides in its first paragraph that “official positions in State and local Government institutions and State enterprises may be held by Estonian citizens” and in its second paragraph that “citizens of foreign States and stateless persons may be appointed to these positions only in accordance with the law”. They pointed out that in Estonia citizens and non-citizens will probably have different rights as regards the taking over of privatised companies and that only citizens may become landowners.
38. The link which exists between citizenship and political rights, in particular the right to vote and the right to be a candidate in general elections, must also be observed in this context. Consequently, there is a connection between the solution of the citizenship issue in Estonia and the manner in which the new-born Estonian democracy will function and develop in the future.
39. An additional element which affects the position of the minorities in Estonia is the fact that there are plans for the establishment of a certain self-government of minorities at the local level. This will be important, particularly in the north-eastern part of Estonia where in several towns (Narva, Sillamäe, Kothla-Järve) there is a strong Russian majority in the population.
V. The reform of the judiciary
40. The independence of the courts is emphasised in paragraph 5 of the Law on the Basic Principles of Provisional Rule in Estonia (see paragraph 11 above). The same basic principle again appears in the two draft Constitutions, which also contain further provisions aimed at ensuring that the judiciary is independent, namely the prohibition against extraordinary courts and the life-time appointment of judges. We have referred above in paragraph 29 to one provision in the Adams draft Constitution which could give rise to some concern as regards the independence of the courts from the Ministry of Justice.
41. It is clear that much more detailed consideration must be given to the manner of ensuring the independence and impartiality of the judiciary and the fairness of court proceedings.
42. During our conversations in Tallinn, we were informed that, on 23 October 1991, the Supreme Council of the Republic of Estonia had adopted two new laws, i.e. a Law on the Judicial Organisation (which would enter into force on 1 July 1992) and a Law on the Status of Judges (which would enter into force on 1 January 1992). As translations of these laws were not available, we have not been able to study the details of this new legislation. We were informed, however, that the present system of two levels of jurisdiction (People’s Courts and a Supreme Court), which was modelled on the Soviet system, will be abolished and replaced by a three level system. At first instance, there will be 24 country and town courts, at second instance four courts of appeal and at the highest level one Supreme Court. The courts will be competent to deal with civil, criminal and administrative cases. There will be a full examination of the cases at first instance and on appeal, whereas the Supreme Court will only examine points of law. As regards administrative decisions, there will be a general right of appeal to the courts. Moreover, the courts, in particular the Supreme Court, will be competent to examine whether a law is in harmony with the Constitution. There will be an office of Chancellor of Justice, and the holder of that office will be able to appeal directly to the Supreme Court, if he considers that a law violates the Constitution and should therefore not be applied.
43. A special method for the appointment of judges will be applied in order to ensure that these appointments are made on objective grounds. Under this new system, a committee of judges will play an important part in the selection of the persons who are qualified for judicial office.
44. In Estonia, attention has also been given to the manner of appointment of public prosecutors. This has been considered particularly important, since, under the Soviet system which has been applied in Estonia, the public prosecutor – the “prokurator” – has had a central function. Provisions on the appointment of public prosecutors were contained already in paragraph 7 of the Law on the Basic Principles of the Provisional Rule of Government in Estonia, from which it appears that the Public Prosecutor of the Republic of Estonia shall be appointed by the Supreme Council of the Republic of Estonia, whereas the lower prosecutors shall be nominated by the Public Prosecutor of the Republic and appointed by the Supreme Council.
45. We were further informed that a new Code of Judicial Procedure as well as a new Penitentiary Law are envisaged for adoption in the spring of 1992.
46. As regards the reform of the judiciary, we can only welcome the considerable and impressive efforts that are being made to change the present system fundamentally within a short period of time so as to make it meet high standards of democratic States. As we have not been able to read the texts of the new laws, we could not establish whether any particular problems remain in relation to Article 6 of the European Convention on Human Rights. We did emphasise, however, in our discussions with Estonian officials, that the European Court and Commission of Human Rights have developed a very substantial case-law in regard to Article 6, and we recommended that, in drafting the new Code of Judicial Procedure, this case-law, and in particular the judgments of the European Court of Human Rights, should be taken into account.
47. We understand that in some respects the new Code of Judicial Procedure will involve very fundamental changes of the present system. For instance, the role played by the public prosecutor in criminal proceedings under the old system is hardly compatible with the adversarial system which should henceforth be the basis of the criminal trial. We were also told that at present the public prosecutor, without any court approval of the detention, can keep a suspect in custody for an initial period of two months and prolong this period up to a maximum of nine months. The Estonian officials are aware that this will have to be changed (cf. the provisions in the draft Constitutions referred to in paragraph 24 above, according to which a detained suspect must be brought before a court within 48 hours).
In Article 143 of the Raidla draft Constitution, the role of the public prosecutor is described as follows:
“Prosecutors shall work with the courts and shall represent the charge laid by the State, and shall supervise the preliminary investigation and the execution of court decisions.”
48. We also received some general information about the role of the police in the criminal investigation but were told that the Law on the Police of 20 September 1990 was not available in a translation into English.
VI. The Language Law
49. The Language Law has the basic aim of promoting the use of the Estonian language and of strengthening its position as the national language of Estonia. At the same time, however, the Law does not disregard the fact that large numbers of residents of Estonia primarily speak Russian or other languages and that many of them have inadequate knowledge, or no knowledge at all, of Estonian. The Language Law contains various provisions which take the interests of such linguistic minorities into account.
50. Promotion of the majority language as the national language must in itself be considered legitimate. Many examples of such policies can be found from other countries, and in the particular case of Estonia the historical background makes the policy easily understandable. However, any such policy must be coupled with efforts to ensure that members of linguistic minorities are not at a substantial disadvantage in their dealings with the authorities. In particular, their right to access to the courts must not be made illusory by language requirements and they must also be able to make an effective use of their right to submit requests, petitions and appeals to the administrative authorities. Insofar as they cannot use their own language before the courts and authorities, the assistance of interpreters or translators may be required.
51. While the question of what language shall be used before and by the courts and the administrative authorities may well be regulated by law, the legislator ought to be more cautious in imposing language requirements in private relationships, including private business. It may be assumed that the private persons or institutions concerned are best suited to decide themselves in what language they should conduct their mutual communications and the legislator should not, as a rule, interfere with their freedom in this regard.
52. Several provisions of the Language Law (Articles 2, 3, 12, 13, 14, 15, 16, 17) concern the activities of “firms, institutions and organisations”. Insofar as these provisions apply to private legal persons, it may seem at least questionable whether it is justified to regulate their use of language in legislative form.
53. A similar remark could be made in regard to Article 4 of the Language Law which lays down certain linguistic requirements “for persons whose job requires communication with individuals”. The categories referred to in this Article include executives, medical personnel, journalists and employees in the services trade and communications.
It would seem reasonable to make a distinction here between those in public service and those who are privately employed or who exercise their profession independently.
As regards public officials, certain linguistic qualifications may certainly be imposed. In some cases, there may also be specific reasons to do so in regard to professional people who provide services to the general public. In other cases, it would seem that it could normally be left to the individuals to decide what language they should use in their work. There may well be cases where the intention is to provide services only to a limited group of people and where it will not be necessary to know any language other than that spoken within that group.
54. As regards journalists, the situation is particularly sensitive, because it touches upon the freedom of expression. The freedom of the press should in principle include freedom to choose the language in which a newspaper or journal is to be published, and journalists should not be hampered by any specific language requirements. In reality, a journalist’s choice of language will depend on the group of readers to whom he wishes to address himself.
55. As regards “education, science and culture”, the Language Law goes far in giving priority to the Estonian language. Article 21 of the Law states that guarantees shall be provided for “the teaching of the Estonian language in all educational establishments and study groups working in other languages” and that “all students at higher educational establishments who have no command of Estonian shall be taught the Estonian language”. This provision would seem not to allow the organisation of special kinds of higher education in a language other than Estonian without at the same time providing teaching of Estonian to the students.
56. Moreover, while Article 22 of the Language Law foresees the creation of Russian study groups or schools, this will only be done where it is “in accordance with the needs and possibilities of the Republic”. This was explained to us as meaning that permission would only be given where there is a need to obtain Russian-speaking specialists in a certain field. It could well be argued that such a strict language requirement goes too far in restricting the freedom of education.
57. The provision of Article 24 of the Language Law, according to which priority shall be given to Estonian language publishing, may also create some problems in relation to the principles of freedom of expression which, according to international standards, are to be applied in a non-discriminatory manner. However, much depends on the way Article 24 is interpreted and applied. If it merely means that literature in Estonian is encouraged and supported financially, there would seem to be no difficulty, but if those who express themselves in other languages are encountering difficulties in having their works printed and published, their right to freedom of expression may be at issue.
58. Article 33 of the Language Law requires that “the texts of signs, posters, notices and advertisements displayed in public shall be in the Estonian language” but adds that “translations shall be added in consideration of the needs of the local population”. These provisions do not seem to create any problems as far as announcements by the public authorities are concerned. However, where private groups or individuals wish to convey messages by displaying them in public, the language requirement in Article 33 might be difficult to reconcile with the principles of freedom of expression. Indeed, the freedom of expression as protected under international conventions, including the European Convention on Human Rights, would not seem to admit any such restriction except where it could be justified by strong public interests.
VII. The Property Law
59. By ordinary European standards, the Estonian Property Law is a most unusual piece of legislation. It can only be understood against the background of the experiences of a country where property rights were mainly vested in the State and where private property was severely restricted and inadequately protected.
60. In Article 2 of the Law, it is proclaimed that “an owner can be a citizen (individual person), legal entity, local government or the State”, that “property in the Republic of Estonia shall exist as private property, the property of a legal entity, a local government authority or the State”, and that “other forms of property may be stipulated by the law of the Republic of Estonia”.
61. Article 1 of the First Protocol to the European Convention on Human Rights does not protect the right to acquire property but the right to use property and not to be deprived of property except where certain conditions are satisfied. Consequently, Article 10 of the Property Law, which deals with the inadmissibility of expropriation of property, is of particular interest in the present context. This Article provides that expropriation must be effected in accordance with the law and “in the manner determined by the law”, “in the interests of the State or the public with obligatory compensation, or as punishment for a criminal act or as a sanction for the violation of an administrative law”.
62. First, from the wording of Article 10 it is not clear whether the compensation to be paid must be full compensation corresponding to the value of the property, but the Estonian officials with whom we discussed this matter explained that the intention had been to guarantee full compensation.
63. It is also remarkable that according to Article 10 expropriation can be used as a punishment. We were told that, under the Soviet laws which have been applicable so far, expropriation was indeed used in some cases as a criminal sanction. This might well create problems in relation to Article 1 of the First Protocol. However, the Estonian officials assured us that this part of the Article should be seen as a remnant from the past, that it would be changed, and that, in the future, deprivation of property as a criminal sanction would only occur in the form of confiscation of profits from criminal activities or of objects which had been used as instruments in the commission of criminal offences.
64. Under most legal systems, it would seem to follow from the very definition of the concept of “legal person” that such an entity can be the holder of rights, including property rights. It is therefore somewhat surprising to find in Article 18 of the Property Law the following enumeration of those legal entities which can be owners: “cooperatives, public organisations and movements, religious organisations and associations of religious organisations, leased enterprises and foundations”. The enumeration does not include, for instance, commercial companies and various types of associations. However, there is a further provision which makes it clear that Estonian law may also “foresee other legal entities which can be owners”. It was explained to us that such provisions had been, or would be, included in various laws dealing with specific kinds of legal persons.
VIII. The Immigration Law
65. The Immigration Law (see paragraph 14 above) limits immigration into Estonia by way of a quota system. According to Article 2 of the Law, an annual immigration quota, which shall not exceed 0,1 % of the number of permanent residents of Estonia, shall be determined by the Supreme Council of the Republic of Estonia upon a proposal by the Government. According to Article 3, immigration can, in special circumstances be further restricted or even halted. The quota system also applies to immigration for the purpose of family reunification or marriage. Article 5 provides, however, that, in filling the quota, preference shall be given to under-age children wishing to join their parents as well as to aged and needy parents in cases where they do not have children or other persons to take care of them outside Estonia. Article 10 contains provisions about residence permits for persons living outside Estonia who marry permanent residents of Estonia.
66. As regards refugees, there is a reference in Article 8 of the Immigration Law to “applicants for political asylum”, whose right to settle in Estonia shall be regulated by international treaties.
67. According to the European Convention on Human Rights, there is no general right to enter a foreign country or to settle in such a country. However, the case-law of the European Court and Commission of Human Rights shows that in some cases the right to respect for family life may require a State to admit close members of the family – in particular a spouse or minor children – of a person already residing in the country. For this reason, a quota system which also applies to this kind of immigration could be considered to create undue obstacles. We have not been able to establish whether or not this is in practice a problem in the case of Estonia. We were told by Estonian officials that the principles of family reunification are respected, whereas representatives of the Russian minority stated that the quota system made the procedure for family reunification in some cases slow, cumbersome and bureaucratic.
68. Another case where the European Convention on Human Rights imposes certain obligations on States in the context of immigration concerns the situation where the expulsion of a person would expose him to a serious risk of torture or inhuman or degrading treatment contrary to Article 3 of the Convention. The text of the Immigration Law does not make it clear whether an immigrant who faces such a risk is protected against expulsion from Estonia.
IX. Other human rights issues
(a) Discrimination
69. The Law on the Ethnic Rights of the Citizens of the Estonian SSR, which was adopted on 15 December 1989 (see paragraph 8 above), guaranteed equal rights to members of different ethnic groups. However, the Law made a distinction between, on the one hand, “citizens”, who should enjoy “equal political, economic and social rights and freedoms” (Article 1), and, on the other hand, “residents”, who were “obligated to abide by the … laws of the Republic, to respect the culture, customs and traditions of Estonians and other ethnic groups” (Article 2). This distinction between “citizens” and “residents” was surprising, because there was apparently no law in force which clarified who was an Estonian citizen and who was not. Moreover, the Law did not refer to “civil rights” or any equivalent term, and it was therefore not clear whether there would be equality of treatment, as required by the European Convention, in the enjoyment of rights such as access to a fair court procedure, freedom of expression and freedom of association.
70. However, in the Law on the Basic Principles of the Provisional Rule of Government in Estonia, which was enacted on 16 May 1990 (see paragraph 11 above), the same matter was dealt with again but in a slightly different manner. Paragraph 8 of that Law provides that the Republic of Estonia shall guarantee to all its residents those social, economic and cultural rights, as well as political freedoms, which are derived from universally recognised international norms. In this paragraph the rights are granted not only to citizens but to all residents. However, again no reference is made to “civil rights” or to any similar notion, and it is therefore unclear whether the provision is intended to apply to all those rights which are dealt with in the European Convention on Human Rights.
71. It should be emphasised that the rights guaranteed by the European Convention on Human Rights and its additional protocols must be granted to all persons under the jurisdiction of a Convention State, without any distinction based on nationality or ethnic origin. This appears from Article 14 of the Convention. The fact, referred to in paragraph 28 above, that one of the two draft Constitutions would make it possible, in regard to some of these rights, to give non-citizens a lesser protection cannot but give rise to concern.
(b) Freedom of religion
72. Paragraph 9 of the Law on the Basic Principles of the Provisional Rule of Government in Estonia guarantees freedom of religion to all residents of Estonia. This freedom is stated to include the freedom to be religious, to receive and to give religious instruction, to belong to a church or religious organisation and to observe its customs. The wording of this provision differs from the text which is normally found in international human rights instruments, including the European Convention on Human Rights, but it must nevertheless be assumed that the content is basically the same.
73. The two draft Constitutions contain provisions aimed at guaranteeing freedom of religion (Article 15 Adams draft, Article 26 Raidla draft). In these provisions it is also indicated that there shall be no State church or State religion.
(c) Freedom of expression and association
74. During our visit to Tallinn, we asked Estonian officials about any restrictions which might exist in regard to the right to print and publish books, newspapers or magazines of any kind or in regard to the right to form associations. We were informed that a licence was required for printing various publications and that associations had to be registered. We were also told that one criterion for refusing a printing licence would be that the publication was harmful to the interests of the State. Registration of an association could be refused on similar grounds.
75. We do not know whether, in the new conditions prevailing in Estonia, the obligation to obtain a printing licence or to register an association could in reality be a restriction on the freedom of expression or the freedom of association. However, it is likely that it has been so in the past, and we would like to emphasise that a criterion based on the interests of the State is in this context a very dangerous criterion which in some circumstances might lend itself to abuse.
76. In order to examine this matter further, we made an attempt to get hold of the text of the Law on Associations of 18 May 1989 and the Law on Trade Unions of 17 November 1989, but it was indicated to us that these laws had not been translated into English.
X. International treaties
77. After the declaration of independence of the Republic of Estonia on 20 August 1991, the Supreme Council decided, on 26 September 1991, to accede to a considerable number of international treaties. Among them were the following conventions which are relevant to the protection of human rights:
Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948)
International Convention on the Elimination of All Forms of Racial Discrimination (7 March 1966)
International Covenant on Economic, Social and Cultural Rights (16 December 1966)
International Covenant on Civil and Political Rights (16 December 1966)
Optional Protocol to the Covenant on Civil and Political Rights (16 December 1966)
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (26 November 1968)
International Convention on the Suppression and Punishment of the Crime of Apartheid (30 November 1973)
Convention on the Elimination of All Forms of Discrimination Against Women (18 December 1979)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984)
International Convention Against Apartheid in Sports (10 December 1985)
Convention on the Rights of the Child (20 November 1989)
78. The Republic of Estonia has also recognised the compulsory jurisdiction of the International Court of Justice in conformity with Article 36 paragraph 2 of the Statute of the Court.
79. It should be added that, already on 12 May 1990, the three Baltic Republics – Estonia, Latvia and Lithuania – decided to create a Council of Baltic States which subsequently adopted a number of resolutions and appeals. These texts mainly concern political issues and therefore fall outside the scope of our examination. One exception would seem to be the Resolution on Ethnic Equality of 1 December 1990, in which members of the Supreme Councils of the three Republics affirm their commitment to guarantee the rights of all their residents, regardless of nationality, native language and political or religious beliefs, in accordance with international agreements guaranteeing human rights and in conformity with their own laws and other legislative enactments. This commitment to respect the rights of all residents in accordance with international human rights standards would seem to correspond, as far as Estonia is concerned, to the principle expressed in paragraph 8 of the Law on the Basic Principles of the Provisional Rule of Government in Estonia.
XI. Concluding remarks
80. Estonian law is in a stage of quick transformation. New laws are adopted and old laws emanating from the period of Soviet domination are repealed, radically changed or replaced. There is a strong wish to adapt the legal system to the standards of democratic European States and to adopt rules which are consistent with the rule of law.
81. The requirements of the European Convention on Human Rights are of special importance in this context. There can be no doubt that Estonia is anxious to comply with these requirements. It is our impression, however, that many Estonian officials who are involved in legislative work are insufficiently acquainted with the Convention and, in particular, with the way it has been interpreted and applied by the European Court and Commission of Human Rights. We therefore found it appropriate to recommend, on several occasions during our discussions in Tallinn, that this case-law be studied and taken into account, when new laws are being prepared in areas where compliance with the principles of the Convention is essential. We also undertook to see to it that new judgments of the European Court of Human Rights are being sent to the Estonian Ministry of Justice in the future.
82. There will no doubt be very important changes of Estonian law in the near future. As a result, some of the laws described in this Report will no longer be in force and some of the remarks which we have made will lose their relevance. This, however, is unavoidable in a situation where the newly independent Republic of Estonia is giving high priority to transforming the country as soon as possible to a well-functioning democratic State where human rights and the rule of law are held in respect and treasured as fundamental values. We sincerely hope that Estonia will be successful in this endeavour.
Helsinki and Stockholm, 18 November 1991