Lawyer Jaanika Reilik-Bakhoff describes recent Supreme Court decisions regarding complaints by former Estonian Defense Forces (EDF) members as crucial in terms of overruling lower courts' dismissal of claims.
"Even though the media is concentrating on preliminary legal protection and the fact it was not granted when it comes to the recent Supreme Court decisions, that was not the aim of the dispute – what was sought instead was Supreme Court practice and guidelines on what to keep in mind in future challenges, which is what the top court provided," Jaanika Reilik-Bakhoff, attorney at Pallo&Partnerid, said.
According to Reilik-Bakhoff, the more important matter was whether directives that obligate employees or public servants to get vaccinated can be challenged in court before the people in question are let go or released from service. The Supreme Court's position is that as internal acts, such orders can be preemptively challenged in court.
"The court also noted in the same case that while a requirement laid down as an EDF order cannot be regarded as a direct obligation to get vaccinated, because failure to produce a certificate of immunization caused service relationships to be terminated based on both the Employment Contracts Act and the Public Service Act, the effect of the requirement equaled that of a vaccination obligation," the lawyer explained.
"Another claim concerned whether an injunctive complaint can be filed before being released from service. It is important to note that the circuit court had previously found that an injunctive complaint cannot be filed against termination of a service relationship in any situation. The Supreme Court clearly stated the opposite in its Thursday decision, adding that in the case of public servants to whom no reinstatement obligation applies, it can even be relevant whether failure to reinstate can be considered constitutional. The complainant has in this case turned to the administrative court with a corresponding application to verify the legality of the norm," Reilik-Bakhoff explained.
The Supreme Court found that courts have erroneously deprived the complainant of effective judicial control prescribed by section 15 of the Constitution.
Reilik-Bakhoff said that challenging the court's decision not to grant preliminary legal protection served the purpose of determining Supreme Court practice and guidelines.
"When we contested the decision, we were all but convinced the Supreme Court could not satisfy the action – the person had already been released from service, meaning that their termination could not be prohibited in the process of preliminary legal protection. We filed the claim to determine Supreme Court practice and guidelines on what to keep in mind in future challenges. The Supreme Court has been thorough in its analysis of these matters, meaning that future actions will take place inside a clearer framework," the lawyer said.
She described as noteworthy the top court's position according to which the circuit court made a mistake when it found the complainant did not need preliminary legal protection.
"The need for preliminary legal protection was obvious before the person's release from service, with the Supreme Court stating as much. This means that in future situations where people have not been released from service, and where the Supreme Court has found that these matters can be solved preemptively, preliminary legal protection needs to be granted. Persons already released from service do not necessary qualify for preliminary legal protection and will have to wait for the resolution of their case," Reilik-Bakhoff added.
Editor: Marcus Turovski