Chancellor: Wholesale closure of restaurants not justified
Chancellor of Justice Ülle Madise says coronavirus restrictions as applied to restaurants and other eateries, while they do not violate principles of equal treatment, have not been sufficiently justified on a legal basis.
This includes coronavirus studies from countries with perhaps a more vibrant, hectic or ingrained restaurant or cafe culture than Estonia's being used as justification for closing down businesses across the board, at a time of year when temperatures can still dip below zero nighttime.
The chancellor was making her remarks in the context of Tallinn restauranteurs whose businesses lie in the city center, but outside the Old Town (Vanalinn). As a tourist hot-spot in normal times, businesses in the latter district were eligible for greater support measures than those a short distance outside it.
At the same time, Madise says that closing restaurants has not solved the problem the move was intended to, namely removing uncertainty over where coronavirus sufferers contracted the infection – in so doing identifying a potential oxymoron, where known locations (i.e. restaurants) were being included in a list of unknown sites of origin for the coronavirus.
"The justification for the restrictions is that many people do not know where they are infected with the coronavirus," Madise wrote, ERR's online news in Estonian reports.
"However, restaurants have been closed for weeks, but a significant proportion of people still do not know the source of their infection, meaning closed restaurants cannot be the site of infection," she went on.
"This means that, without further explanation, the category 'unknown source of infection' cannot be assigned to any specific activity, including those of restaurants."
Restrictions also do not take into account the fact that different activities carry with them different risks of infection, meaning counter-measures should be tailored to these, she added. At the moment, there is a one-speed system of restrictions, Madise argued.
"For example, it would be feasible to divide activities into low-, medium- and high-risk activities, and set restrictions accordingly. Currently, instead of assessing the need for measures and alternatives, the strictest of viable measures has been chosen – the closure of catering establishments. This should in fact be a last resort," Madise went on.
Moreover, increasing strictness of measures carries with it a proportionately increased need for justification. However, this has not happened in relation to restaurants, Madise said.
In the emergency situation of March-May 2020, Madise noted, restaurants were not closed nationwide and wholesale, while there is no proven data that their functioning creates inevitable close contact, and thus viral spread (several reported outbreaks were linked to Tartu bars last summer, however – ed.).
Madise also stressed that restaurant operators who feel that restrictions are counter to the law and have damaged them can recourse to the first-tier administrative court (of which there are two, in Tallinn and Tartu – ed.) both to attempt to obtain compensation and even to attempt the annulment of the order itself.
Of the prognosis for success, it was noted in Madise's communique that the only restrictions which are legal are those which are essential due to a) the high risk of infection and b) the lack of alternative which could reduce the risk – such as social distancing inside restaurants, limited occupancy etc.
This is backed up by the lack of studies on the question, particularly those on a level playing field, she said.
"While general comparative data from other countries have been provided to justify implementing restrictions, there has been no analysis of the extent to which countries, and their specific restrictions in force, are comparable, considering their geographical, socio-economic and cultural backgrounds," she added.
These cultural backgrounds could include the differing restaurant cultures in different countries, where both frequency of visits and social norms once at a restaurant, bistro, taverna etc., can vary.
Insufficient justification has been provided for why eating alone, or in pairs, several meters from other diners, is still considered an infection risk, Madise noted.
As to the question of restaurant operator whose businesses lie just outside the confines of the Old Town – one such entrepreneur has appealed to the courts – it has been found that Old Town-located businesses are in general tourist-oriented and dependent, which is why the melting away of tourist numbers which began over a year ago has led to state and city government support.
While businesses outside, but near, the Old Town, might argue that they are in the same boat, a line has had to be drawn. Another argument presented is that Old Town eateries are, due to the narrow streets, cobblestones and traffic and parking restrictions, less accessible to food courier services like Bolt and Wolt, than those in the city center (Kesklinn).
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Editor: Andrew Whyte