Detainment of councilor, MEM Cafe owner in police cell was unlawful

Police and protesters at the demonstration on Freedom Square on April 11.
Police and protesters at the demonstration on Freedom Square on April 11. Source: Priit Mürk/ERR

The police's actions in placing and detaining a member of Tallinn city council and owner of MEM Cafe, which did not comply with COVID-19 restrictions, in the cell of a police vehicle in the Old Town of Tallinn this spring were illegal, Tallinn administrative court has ruled.

The administrative court partially satisfied Elvis Brauer's appeal against the Police and Border Guard Board regarding his claims for pecuniary and non-pecuniary compensation for the unlawful acts committed against him.

Brauer is a member of EKRE, a member of the Tallinn city council and runs the MEM Cafe in Tallinn's Kalamaja district. The operation of the cafe was recently suspended by the Health Board because it did not comply with coronavirus restrictions.

The court found that the police's actions on April 11 to establish Brauer's identity and carry out a security check were justified, but it was illegal to place him in the cell of a police vehicle.

The court noted that this activity qualifies as deprivation of liberty, and according to the law, a natural person may demand financial compensation for non-pecuniary damage if deprived of liberty.

Elvis Brauer in MEM Cafe. Source: Siim Lõvi /ERR

The court upheld Brauer's appeal and ordered the Police and Border Guard Board to pay him €50.50. Brauer's allegation of pecuniary damage was rejected. The court also ordered the police authority to pay Brauer's procedure expenses which totaled €465.

On April 11, police officers were talking to a woman in Tallinn's Old Town when Brauer approached them, asking the police questions about their activities. The situation occurred close to a protest against coronavirus restrictions on Freedom Square.

Words were then exchanged between the police and Brauer, during which law enforcement officers demanded an identity document from him, which he refused to provide.

Police detained Brauer and took him to the police bus, where he was subjected to a security check, during which a wallet containing an identity document was found in his pocket, and he was then placed in the cell of the police bus, from which he was not released until 45 minutes later.

Brauer brought an action before the administrative court requesting that the police authority's conduct be declared unlawful and that he be compensated for €400 in material damage and compensation for non-patrimonial damage caused in the course of this conduct at the discretion of the court.

The protest on April 11. Source: Priit Mürk/ERR

The court noted that according to the Law Enforcement Act, the police may, upon the knowledge of a person, establish an identity on the basis of a valid identity document if this is necessary to prevent, identify or hinder threat or eliminate disorderly conduct. The police also have the right to stop a person and demand that they present an identity document.

In this case, Brauer interfered with and disrupted the performance of duties by the police officers, the court found. The court explained that a police officer has a wide margin of discretion in assessing objective circumstances and identifying a threat, which means that the assessment of the existence of a threat must not be manifestly arbitrary.

"In the present case, this was not the case," the court said. "Additionally, the broader context had to be kept in mind in this case, namely, the events related to Brauer took place in the immediate vicinity of the location of a demonstration, that is Freedom Square in Tallinn," the court explained.

The court added that the unjustified obstruction of the police officer's duties can in itself be considered as an offense, even if, as in the present case, the information that had reached the appellant could have given him the impression that the police were behaving unlawfully against the aforementioned woman and in that situation the police officer may have taken the view that there was a risk of disorderly conduct.

Police officers outside MEM cafe in Tallinn, which breached coronavirus restrictions. Source: Siim Lõvi /ERR

"Not knowing why Brauer was behaving in this way and what he wanted to achieve with it, the police did not have to rule out the possibility that he would start to break public order. In those circumstances, requiring him to produce a document in order to establish his identity was not only justified but in fact the only conceivable step," the court said.

The court also noted that the evidence before the court showed the police officer had warned Brauer against direct coercion, saying that if he did not present his document, the police would use force and Brauer must have understood that. As Brauer did not comply with the lawful order given to him by the police officer, the court found that the use of force was permissible.

The court added that it was not unlawful to carry out a security check and to inspect his clothes, including his pocket and belongings.

"However, the court did not consider it necessary for him to be placed in a cell in order for the police to be able to verify the authenticity of the document, compare the photo on the document or, if necessary, check the person from their databases," the court said.


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Editor: Helen Wright

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