The Tallinn Administrative Court's decision regarding the government's coronavirus restrictions is good and thorough but fails to solve problems with the Communicable Diseases Prevention and Control Act (NETS) that should be thoroughly rewritten, Chancellor of Justice Ülle Madise told ERR.
The Tallinn Administrative Court on Tuesday satisfied the complaints of 56 persons against last year's coronavirus restrictions and exceptions. The court also found some provisions of the current NETS to be unconstitutional.
Madise said she is glad to see such a thorough decision from the court (almost 100 pages – ed.) that goes to show individuals can successfully challenge restrictions in court.
"Unfortunately, the restrictions were laid down using a type of legal act that cannot be contested by the justice chancellor, even though their nature suggests it should. This is another problem it seems the court's judgment did not fully resolve. However, the court delving deep and finding the courage to make what I believe to be a well-reasoned decision is welcome," Madise said.
The justice chancellor added that it is up to the government to decide whether to appeal the ruling.
"But I very much hope efforts to shape public opinion will not be aimed at reintroducing restrictions in the next wave, which is sure to come. People who know epidemiology say that it would not be justified anymore, with the ability of the healthcare system also seen differently from recently, including in the social ministry's regulation. Therefore, for starters, it would be important for the public not to demand new restrictions from the government and for the government not to order any in the new wave," Madise said.
NETS must be changed
The current NETS the first reading of amendments to which was concluded in the Riigikogu in early April and to which a host of amendment proposals has been introduced, including from the justice chancellor, will move to the Supreme Court for constitutional review proceedings following the court's ruling.
Madise finds that even the planned changed are insufficient and the entire law should be rewritten.
"There are two major problems. Firstly, allowing extensive restrictions to be laid down in the case of whichever seasonal viral disease. We find it to be unconstitutional and unfounded. Secondly, the bill fails to specify which restrictions can be laid down if there are grounds. And yet, they can be laid down. That is why we asked the authors to consider writing a completely new, modern and really efficient law. This could be just the right time for it," the justice chancellor said.
Madise said that while the chancellor of justice cannot propose scrapping proceedings and writing a new document to the Riigikogu, if the bill becomes law in its current form, it will need to be contested in the Supreme Court.
"The fact is that if we give the government even broader powers for ordering even more extensive restrictions than recently, it would very likely have to be challenged in constitutional review," he said.
Madise said that one sensible change that has been introduced is replacing government general orders that currently serve as basis for restrictions with regulations over which the justice chancellor can exercise supervision.
"There are some restrictions that should be introduced directly by the Riigikogu. Alternatively, the provision delegating authority should be more particular to make it easier to check whether restrictions are based on clear, legal and logical grounds," she said.
Indicators unsuitable for ordering restrictions
Madise said that infringing on people's fundamental rights and freedoms needs to have a legitimate purpose.
"As put by the court, avoiding serious illness and death surely qualifies. Avoiding actually overloading hospitals and the healthcare system – these are all legitimate goals. From here, we need to consider whether different restrictions are absolutely necessary for achieving those things or whether they rather cater to public opinion or some ulterior motive," the justice chancellor said.
Madise added it is not right to tie the threshold for restrictions to various indicators of illness or hospitalization as the government has done.
Editor: Marcus Turovski