Chancellor of Justice Ülle Madise finds provisions of the Communicable Diseases and Prevention Act (NETS) to be unconstitutional as they give executive power overly broad, unspecified and unchecked levers for prejudicing fundamental rights.
Madise wrote in a constitutional review report to Chief Justice of the Supreme Court Villu Kõve that she finds several provisions of NETS to be unconstitutional.
"I find provisions of the Communicable Diseases and Prevention Act (NETS) to be unconstitutional in giving executive power overly broad, unspecified and unchecked powers to limit fundamental rights. A provision delegating authority that leaves the executive power free in its choice of restrictions, their aim and intensity is unacceptable," the justice chancellor wrote.
She added that it is up to the Riigikogu to decide which restrictions can be ordered on the level of legislation. In case of situations provided for in the law, it is the executive power's task to choose proportional measures from among applicable restrictions and only apply them where needed and for as long as needed.
Madise finds unconstitutional a type of order where universal obligations are placed on an unspecified number of persons for an unspecified length of time.
"Mandatory conduct for regulating an unspecified number of incidents needs to be laid down in the form of regulation. The latter are published in the State Gazette and their factual grounds must be subject to continual review. Orders are for solving individual cases," she emphasized.
The justice chancellor gave as an example that whether to shut down a company as a result of an outbreak if it would have a considerable effect on society or the economy would have to be decided by the government, not the Health Board. However, in situations where the decision goes beyond a single incident, the government can only enforce a legal act if the Riigikogu has provided it with corresponding authorization. No such provision delegating authority exists (regarding Covid restrictions – ed.).
"Therefore, the government has overstepped in laying down the restrictions in question through an order. The government has also overstepped its constitutional mandate, as only the Riigikogu has the capacity to decide matters of vital importance insofar as they concern fundamental rights."
Madise finds that the administrative court was correct in seeking constitutional review proceedings of NETS provisions.
The justice chancellor pointed out that some government orders based on NETS provisions have introduced very intensive fundamental rights restrictions. For example, the quarantine obligation of close contacts of infected persons was in serious breach of many fundamental rights: freedom of movement and all others that depend on it.
"We cannot rule out some of those restrictions amounting to deprivation of liberty."
By tying other fundamental rights to the obligation to get vaccinated, even the fundamental right to life was prejudiced in Madise's opinion.
"That said, the intensity of the restriction on the right to life and health was lessened by the fact vaccination is meant to protect the person's own life and health. Both having COVID-19 (if the person is unvaccinated) and immunization against the disease come with risks. It is almost impossible to say with any certainty which is potentially more dangerous for different people," she found.
The obligation to be vaccinated as a precondition for participating in certain activities could only be considered proportional if it helps maintain hospitals' ER capacity, provided it takes effect only once the latter is close to being exhausted.
Concept of communicable diseases too broad in NETS
The justice chancellor found that the coronavirus certificate as a precondition for participating in public activities had a considerable effect on people's daily lives and entrepreneurial freedom.
She also pointed to the shortness of the definition for a novel and dangerous communicable disease and the range of ways it can be interpreted in NETS, which Madise finds unreasonably broad.
For example, the definition can also be applied to an infectious disease that spreads rapidly and for which no cure is available but that has little effect on public health and does not jeopardize the functioning of the healthcare system.
The law also does not provide an obligation to continually monitor whether the disease still corresponds to the definition. Madise finds that the intensity of fundamental rights restrictions warrants such monitoring from the government or the Health Board. The government should also be obligated to lift restrictions if the disease no longer matches these criteria.
Furthermore, the justice chancellor concludes that NETS provisions do not define the content and extent of powers given to the government to a sufficient degree, making it possible to lay down virtually whichever kind of restrictions and do so even if there is merely a risk of an outbreak.
Editor: Marcus Turovski