Lauri Vahtre: Kuusik, Kaunissaar and section 22

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Lauri Vahtre. Source: IRL

It worries me that ignoring section 22 of the Estonian Constitution has been ignored for decades. It only came up once the judge had acquitted Marti Kuusik also in this case, Lauri Vahtre writes.

I do not know whether Marti Kuusik is violent at home. Merli Kaunissaar claims he is, while Kuusik claims he is not. Kuusik is either telling the truth or lying, while Kaunissaar is either telling the truth or is mistaken.

I do not know the truth of it. However, what I know for sure is that Marti Kuusik was not found guilty in court. And this is where section 22 of the Estonian Constitution applies in that: "No one can be treated as guilty of a crime before their conviction has entered into force."

While treating (finding, understanding or considering) is not the most common word, I still believe there are no two ways about it. A person cannot be said to be guilty or treated as such before a corresponding court decision has entered into force. However, that is just what has been done.

President Kersti Kaljulaid led the way, which was perhaps the most unfortunate aspect of this whole matter. She did not admit her mistake in her recent apology where what she said amounted to, "I did everything right, but since I promised to apologize, I apologize." The president did not do everything right and it should have been said.

The demagogy of the four editors-in-chief of Ekspress Meedia according to which such severe suspicions need to be covered and that it is a part of freedom of speech, especially if influential persons are concerned – it was all just demagogy. No one has criticized them for covering the charges. They were right to do so. The criticism concerned the press' attitude – the way a person is "treated" – clearly finding him guilty.

Perhaps it is necessary to emphasize once more that I'm not talking about whether Marti Kuusik is guilty or not. How should I know. We cannot rule out his guilt becoming a matter of fact in the future. And I'm sure Ekspress Meedia and perhaps Kadriorg will then rush to say: we told you so!

But it would be the most pathetic way to be caught and an admission of sin. Because even if Kuusik is found guilty, it would not make right treating him as guilty before. That will remain wrong and unconstitutional even should it turn out Marti Kuusik is the devil incarnate.

I am talking about an important legal principle, the presumption of innocence that cannot be trampled underfoot even in the fight against domestic violence.

The authors of the Constitution included section 22 with reason. Among other aspects, the principle described in the section is among those that separate countries based on the rule of law from those where the law is in the hands of a person or party. Which is no small matter.

Dictatorships convict people long before they go to court. The latter is just a fig leaf to mask their violence and stamp into effect decisions made higher up. Sending people to prison and to be killed, revoking rights and issuing fines.

Serving as its partner is the press that kills the accused socially, destroying their reputation and turning them into a pariah. My generation still remembers how these things used to go during the Soviet era and how dissidents were treated. No one cared whether a court ruling had taken effect or whether they had been charged in the first place.

That is what rule of law has sought to oppose with its "section 22s." They are not hard to criticize for their own faults. A person everyone understands to be guilty can get away if their guilt cannot be proven.

Yes, it is quite possible. We could even go as far as to say that this kind of administration of justice is formal and unjust. Justice is often unfair. However, all manner of alternatives where people are sent to jail and ostracized based on someone's inner conviction or gut feeling would be much worse.

It worries me that ignoring section 22 of the Estonian Constitution has been ignored for decades. It only came up once the judge had acquitted Marti Kuusik also in this case. But as I emphasized before, whether Kuusik is found guilty or innocent in the end doesn't even matter; the Constitution was violated either way and Estonia lacked a force to stop it.

Finally, I would talk about Merli Kaunissaar who is now attacked by those convinced Kuusik is innocent. Unfortunately, they are erring against the very same principle: Kaunissaar cannot be treated as guilty of slander before she has been convicted and that conviction has entered into force. I haven't even heard of a complaint having been filed. So, it would be wise to apply the brakes.

There has gotten to be too much indirect vigilante justice. And it leaves me uneasy.

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Editor: Marcus Turovski

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