Supreme Court: NETS should be clearer, political responsibility greater

A social distancing sign in Tallinn.
A social distancing sign in Tallinn. Source: Ken Mürk/ERR

In its opinion, the Supreme Court made a number of critical proposals to the Communicable Diseases Prevention and Control Act (known in Estonian by the acronym 'NETS'), and stressed that this should be significantly clarified and increase the political responsibility of decision-makers.

The Supreme Court, which is based in Tartu, noted that it supports the desire of the drafters to increase the role of the parliament in the coronavirus crisis and the transparency of the measures implemented. However, additional attention should be payed to the country's objectives in the crisis and to the proportionality of the measures.

The Supreme Court said it is questionable whether the draft actually takes sufficient steps in the direction declared in the explanatory memorandum.

"In order to make decisions more predictable, restrictions should be laid down in more precise legislation. As the epidemic progresses, they should be made stricter, not more lenient, as the intensity of the damage increases over time and society's resilience decreases. constitutional for many years," the Supreme Court found.

The Supreme Court noted that in order to increase transparency, the political accountability of decision-makers should be ensured and the decision-making power of the parliament, the government or the minister of the field, rather than the officials of the apolitical Health Board or school principals should be preferred. "Currently, the bill reflects a desire to increase non-political responsibility and simplify the establishment of restrictions," the Supreme Court said in its judgement.

In the opinion of the Supreme Court, it should be debated at the Riigikogu as to whether the ultimate goal of the draft is to prevent any contamination or only to ensure the functioning of basic functions of the state and society, including the health and education system, internal and external protection, strategic services, etc.

"This will significantly affect other options in the bill. If, for example, the infection of schoolchildren does not increase the number of people in need of hospital treatment, the closure of schools is not justified to ensure the functioning of the health care system, although it could be an appropriate measure to prevent infections," the Supreme Court said.

The Supreme Court stated the prevention of every last case of infection may no longer be proportionate in the current situation.

In the opinion of the top court, it should be considered whether, in today's knowledge, the imposition of certain measures is proportionate.

"The situation has already changed compared to the situation in which most of the court cases referred in the draft's in the explanatory memorandum (end of 2021) were made, even more than when the disputed measures were introduced. During the first waves, any control and prevention of the spread of the disease could be a sufficient argument in itself, but today it may no longer be," the opinion piece stated.

The Supreme Court finds that the proportionality test must also be followed in the current crisis. "If there are milder means to achieve the objective, the lesser means must be chosen and the measure must not, in the end, do more harm to society than good."

"Both the development of the draft and the implementation of the law should avoid abstract consideration, eg that life and health are more important than the right to education or freedom to conduct a business. However, this is not allowed by the principle of proportionality," the Supreme Court added.

The Supreme Court also noted that in addition to all general norms concerning dangerous infectious diseases, it would be worth considering the establishment of precisely-tailored special rules for COVID-19.

"Measures that are appropriate as a precautionary principle for other communicable diseases identified as dangerous may not be appropriate for corona, given that it is unlikely that this disease will ever be excluded from society. There is no need to regulate coronary and new unknown diseases about which there is currently no knowledge," the Supreme Court stated.

The Supreme Court considers that the establishment of such a uniform and comprehensive abstract regime for unknown and already familiar diseases may give too much power to the executive. "Instead, it would be worthwhile for the legislator to consider" tailor-made "measures suitable for repelling the corona in today's and near-term context, which can, of course, be changed as the situation develops, such as linking extensive distance learning to an emergency," the Supreme Court noted.


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Editor: Roberta Vaino

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