Ülle Madise: Local governments will not be given personal data of people

Toomas Sildam's interview with Chancellor of Justice Ülle Madise
Toomas Sildam's interview with Chancellor of Justice Ülle Madise Source: Anna Aurelia Minev/ERR

A month after Estonia declared an emergency situation, Chancellor of Justice Ülle Madise is both confident and worried. One cannot be swayed by irrational and emotional statements in a crisis because decisions need to be made, Madise is certain. Including in situations where one does not know which is the right decision.

Is this the Estonia that we wanted?

(Pauses) I have nothing based on which to want a better one. (Pauses) But all nations experience unfortunate events and unexpected problems.

I cannot say whether it would have been possible to be better prepared for this situation. What matters from my point of view is that our institutions are strong, our people largely sensible and that we have not (yet) seen decisions that would erode the rule of law. Also, that such decisions are not easy to make.

What can we see around us? Only restrictions and closures?

Restrictions are justified if they are reasoned and logically necessary, as opposed to restrictions that are based on emotional reactions.

While we are right to be worried, we must also be fair to the decision-makers. Because they have to make decisions without knowing whether they are correct in this situation.

No one in the world knows the best possible reaction to the virus spreading or what it even means and how long it will last.

Decisions need to be made extremely quickly, based on very little information and in the conditions of strong emotional pressure. I'm sure everyone has noticed how some people demand everything to be banned and people locked in…

Full quarantine?

Precisely. To make sure no one would go outside, while pets are expected to wait by the door I suppose, without considering that food needs to be sold and delivered; that someone must work at pharmacies, hospitals, police; that Defense League and Defense Forces members are out there. There are many jobs that need people even now.

On the other side of the fence are people saying that it's all a conspiracy and the virus doesn't even exist.

This is the minefield leaders have to navigate while making split-second decisions the effects of which are extensive and potentially grave for a lot of people.

Have some restrictions seemed excessive?

That is the task of this office, to consider whether individual restrictions are logically justified, whether they have a clear goal and whether we have reason to believe, based on human behavior and recent experience, that they will have the desired effect.

It would be unethical to discuss all the restrictions that have been considered [by the government] but…

It would be very interesting to learn about them.

I'm sure it would, but it is enough to say that I'm glad these steps have not been taken after consulting with the justice chancellor's office and other institutions.

Whereas I can assure you than no ill intent has been involved and that people are simply looking for effective solutions in what is a very difficult situation. This in the conditions of emotional pressure from the public, suggesting that something must be done because several people have died.

That new restrictions should be introduced, more establishments shut down and a full-blown quarantine implemented?

(Pauses) Basically.

The possibility of quarantine has been on the table.

As it should be. We are also looking at what other countries are doing. This is where our low population density really pays off. While it's rather unfortunate at other times, since we are forced to close schools, post offices, shops, family medicine centers [because there are not enough people] and because road maintenance is difficult and people live far away from one another, it is definitely an advantage today.

It allows us to say that restrictions on movement are not quarantine. While trips that can be avoided should be, people who are not infected still have the right to run necessary errands without coming into contact with others. And to go for a walk, run or ride a bicycle.

Several old fishing villages on the northern coast want to ban entry to strangers, to keep people frustrated with working or studying from home from going for a walk there. Do they even have such a right?

While such attempts are humanly understandable, it is not as simple as installing a roadblock and telling people to keep out, legally speaking. A road meant for public use is meant for public use. And people whose movement has not been restricted, who are not showing any symptoms and who maintain a distance of at least 2 meters from others also cannot be kept from walking RMK hiking trails.

But what these fishing villages are trying to do is humanly understandable. Strangers walking into a small village shop without protective masks could spark fears of infection in the locals.

The virus is sowing uncertainty and fear the best cure for which in the eyes of a lot of people are new restrictions.

And people have the right to think that. The task of leaders is to make a rational decision even if criticism is sure to follow. And the task of the justice chancellor is to maintain a clear, logical, independent line, which is admittedly difficult because the search for a sensible balance is not to the liking of emotionally disposed people on either side of the fence. But everyone has their cross to bear and I'm not complaining.

Have people started writing to you more in this crisis?

We always receive a lot of letters but our workload has grown. On the one hand, it is good to know our institution is needed, while it has also meant that no one in this building has had a day off since something like February. Debates, shaping official positions and responding to people starts early in the morning and continues late into the night, also on weekends.

Are people rather complaining over too many restrictions or wishing there were more and saying that more of Estonia should be locked away?

At first, people turned to us to accuse the Health Board and politicians of not laying down sufficiently strict measures.

Since these restrictions were implemented and became part of our everyday life, and especially in the past week, this trend has been reversed. By now, most complaints are aimed against crisis restrictions.

Which restrictions are people most disgruntled with?

For example, people initially protested the order of making hot school lunches available to students at school because it was feared it would contribute to the spread of the virus. Today, we have come to the other end of this and people are complaining about hot school lunches having been replaced with dry food packages distributed by local governments to those in need in a situation where many children counted on hot school lunches.

We can move on to healthcare where our medics are busy performing heroic deeds. We have received complaints from doctors, saying that they often lack clear instructions. For example, regarding when to deem patients not infectious or healthy and when to terminate their sick leave certificates. Guidelines are slowly appearing, while there are plenty of gray areas and doctors need clear and universal rules for split-second decisions under immense pressure.

Or an example where the Health Board sent out a letter saying that private medicine should all but cease, including the actions of private laboratories that also included Synlab and health centers that were issuing certificates, such as Qvalitas. Representatives of private clinics who turned to us couldn't make heads or tails of the board's letter…

They did not understand why they were being ordered to close shop?

No, they did not. They weren't clear on whether the order concerned them. We were told that everything is fine and that exceptions would be made as necessary.

While I don't want to throw around accusations, that is precisely what is inadmissible in terms of the rule of law – saying that everything is banned just in case and then proceeding to carve out exceptions.

We found no legal basis for the [Health Board's] letter. We are not saying the measure is unnecessary, just that things need to be properly written and logically explained in terms of which private medical care providers these restrictions concern. To make things clear.

Toomas Sildam's interview with Chancellor of Justice Ülle Madise Source: Anna Aurelia Minev/ERR

What about the police?

We have also received complaints regarding the actions of the Police and Border Guard Board (PPA). For example, as concerns restrictions on movement. When we asked them why they kept a person working in Tallinn from going to the island of Hiiumaa to deliver construction materials to their registered place of residence, we were given a straight answer. It turned out that the person had the right to go to Hiiumaa but would have been forced to stay there for the duration of restrictions on movement. Makes sense.

And reversely, a farmer's broken refrigerator could only be repaired with the help of a technician and spare parts from Tallinn. They were allowed to cross. The police behaved very sensibly there.

Talk of the police using mobile positioning to keep track of those ordered to isolate or look for infected people has disappeared in the government?

It hasn't gone anywhere. The desire is still there and we are receiving complaints protesting it.

Such positioning is not done today?

It is not.

Everyone knows that Statistics Estonia is only allowed to process anonymous data, meaning that telecoms are not sharing raw data with agencies.

But the pressure for more accurate and personal data has not disappeared. Doubts that such surveillance is being carried out have also not subsided. We are receiving mobile positioning complaints every day.

Your position is still that such activity is illegal?

It is illegal both according to an EU directive and Estonians laws.

The desire to learn who has been infected is…

… human?

Understandable. For example, local governments wanting to know who has been infected. Could a municipality government get access to such data?

They have no such right. I know local governments have sought access to data, while they have not been given that access and I hope they won't be in the future.

But yes, pressure to know whether there are infected people in the settlement and who they live with is considerable in some places.

Such data would be useful for protecting the entire population, or am I mistaken?

There you go. (Smiles)

While it is humanly understandable, both theory and practical experience suggests that a person who is flagged as ill will try to avoid being tested and hide their condition. That is precisely what we don't want to happen.

They are our people also if they have been infected or are living with someone who has the virus. We need to help them get better, stay home. Looking at the number of tests and confirmed cases, it is too soon to celebrate, but things have definitely improved instead of growing worse. This suggests our people are responsible and sensible and do not wish their fellow citizens harm.

But should someone be stigmatized because of the fact they have been infected, people would likely start hiding their infection.

I very much hope such information will never be given out in personified form.

What do you tell those who ask whether it is right to lock down the entire country, rob tens of thousands of their work and income because of a few hundred or few thousand people?

A crisis is an interesting time as it brings to the surface the darker side of human nature. It is a good time because it also produces heroes and reveals leadership potential.

If a person takes the liberty of saying that some people should be allowed to suffer and die… Well, speech is free here, but after giving the matter some thought, one might realize that they or someone they love might also find themselves at the mercy of such a cruel position.

A lot of interesting philosophical and ethical questions have arisen in connection with the disease caused by the coronavirus.

For example, it seemed for a time that dying of the coronavirus was somehow more important or more tragic than a death caused by cancer or a heart attack. Death is always sad.

Do you feel politicians are reluctant to relax restrictions in fear of being blamed for a new potential wave of infection?

No one has said as much in my presence, but it is only natural in a democratic society. Unfortunately, I have also been asked on social media whether I take responsibility for those who leave this world or take ill by protecting the Constitution, people's rights and freedoms, whether they observe their obligations; trying to protect those in closed institutions, whether we're talking about care homes, military service or prison.

I know that the decision-makers – politicians – are often the target of such accusations. Personally, I say that I cannot be swayed by such irrational and emotional statements.

Toomas Sildam's interview with Chancellor of Justice Ülle Madise Source: Anna Aurelia Minev/ERR

The state is in crisis and what does the justice chancellor do? You send a letter to the justice minister, saying that prisoners should be allowed to go out for fresh air every day and that you are against restrictions that only allow them to call loved ones once a week.

The justice chancellor must do her work, and we have received plenty of complaints from prisoners. Indeed, if inmates can go for a walk and some fresh air without it increasing the risk of infection, it needs to be facilitated. Just as prisoners need to be allowed to call their loved ones in a situation where visitation has been canceled, which was a very sensible decision in terms of combating the spread of the virus.

Also, people are not sent to prison for nothing and usually end up getting out. And it is in everyone's interests they return to a law-abiding life and have a family instead of a criminal circle, that they can go to work instead of committing new crimes. Degrading or torturing a person does nothing to render them more law-abiding.

What is your opinion of the government's coronavirus crisis cluster bill?

We are keeping a close eye on it.

Have you already underlined everything that bothers you about the bill?

Yes. We sent a corresponding letter to the Riigikogu Legal Affairs Committee and one regarding the supplementary budget to the Riigikogu Finance Committee yesterday (Wednesday).

There are some things we believe could and should be done differently. We tried to phrase our proposals in a way that would make amending the bill, should the Riigikogu agree with us, as simple as possible. I understand – time is of the essence, a lot of changes are necessary for Estonia to be able to exit the crisis as quickly and successfully as possible.

What are some of your biggest concerns?

For instance, the possibility of ordering coercive treatment or placing people in closed special care homes with less judicial control than before and without hearing from the person directly.

While I believe that no one [of the authors of the bill] had anything sinister in mind, we pointed out that restricting freedom of movement always requires thorough judicial control and for the person to be interviewed and examined in person. Because we have seen cases were old people were labeled mentally incapable, locked away in closed institutions and their property seized, even though it later turned out they should not have been locked up in the first place.

The second point of fierce contention is a clause to complement the Emergency Situation Act that would allow access to state databases and personal information of people…

… that would mean everyone's medical records and all personal information collected by the state would be accessible to a lot of public officials in an emergency situation?

Draft legislation does not go that far. It says personal data needs to be absolutely necessary for solving the current emergency situation. But critics are right in saying that we need to remain vigilant and avoid misuse.

My office is also trying to make sense of why this amendment is necessary because if it is just a matter of data moving between the Health Board and the police, the board is already obligated to give the police necessary information so they could check whether people are observing restrictions on movement. To make sure people ordered to isolate themselves at home are complying. The police are also within their rights to check markets, shops, hiking trails and ask for people to produce identification to make sure they are not violating isolation orders.

Toomas Sildam's interview with Chancellor of Justice Ülle Madise Source: Anna Aurelia Minev/ERR

In March, you answered the question of when should the government relax and end the emergency situation by saying that it should be done "as soon as the emergency situation can be managed without emergency situation measures." Are moving closer to that possibility?

I would like to hope I will have an answer a week from now.

What will change over the next week?

It is when scientific models should have the answer in terms of the effectiveness of existing restrictions and the spread of the virus in Estonia.

Indeed, restrictions need to be abolished as soon as they are no longer necessary.

But Estonia is not alone in this world. Borders can be reopened and normal life resumed when other countries are also prepared to do that.

Sweden decided to go down a different path and remains a relatively open country with only modest restrictions where the authorities believe people will take their recommendations seriously and trust they are correct.

It serves as just another sign to suggest that no one can seriously claim to know what's right in this situation. I would like to hope we can look back on the situation calmly, justly and without looking for culprits a year from now, which is when we might be able to say who got what right. There will be international comparisons.

Looking for someone to blame is in our blood. Who said or thought what on February 26 or March 11 and how on Earth could they have misjudged the extent of the disaster?

I have always thought it best not to look for culprits, provided we're not talking about criminal matters, and that maintaining a good mood and thinking about how to proceed is a better use of time. Both regarding family matters and at work – if a mistake has been made, it needs to be acknowledged and then left behind, getting hung up on accusations serves no purpose.

But again, concerning this particular crisis, no one knows what's right or where it will end up. I suggest placing all of that energy in efforts to rebuild the economy once it's possible to gradually relax restrictions.

I have another hope in connection with a lot of business trips and meetings being canceled – that perhaps it will make it easier for us to tell the difference between what's important and what isn't in the future, that perhaps a lot of unnecessary things can be omitted in both the public and private sectors.

We must work together to help those who had no way of shielding themselves from the crisis and took a bad hit. We have received a number of complaints asking what is force majeure and whether contractual obligations can be overlooked in the current situation, whether we're talking about a parent's obligations to their kindergarten, a customer's obligation to their gym, a creditor's debt to the bank or a renter's obligations to their tenant.

And the answer?

That damages need to be dispersed and suffered together in a crisis. Let us call it settling for certain damages as far as possible. Dragging contracts through courts to make sure every single penny is paid would be just as harebrained as saying that no one needs to pay for anything anymore. That people's garbage should be collected for free and the garbage truck should not have to pay for fuel. It is unthinkable.

If people are unable to reach a sensible agreement, they need to turn to court where recent Supreme Court practice suggests the sides need to prove what they did to minimize damages.

Could entrepreneurs sue the state for their businesses being ordered to close and possibly going bankrupt?

Damages caused by legal measures taken during an emergency situation usually do not qualify for compensation. There were a number of entrepreneurs who wanted all markets, malls, beauty and hair salons closed a few weeks ago. Rumor has it the aim of such calls was to be compensated for the government closing down businesses. I believe there will be compensation, but these are voluntary aid measures being discussed today.

Very few if any will escape this crisis unscathed. Everyone will have to give it their all to minimize these damages and to be magnanimous so as not to split hairs where it can be avoided.

Toomas Sildam's interview with Chancellor of Justice Ülle Madise Autor/allikas: Anna Aurelia Minev/ERR

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Editor: Marcus Turovski

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