Supreme Court: Covid passport law not contrary to Estonian Constitution

Coronavirus vaccination certification held on a smart phone.
Coronavirus vaccination certification held on a smart phone. Source: Ken Mürk/ERR

Norms put in place by a piece of legislation which enabled the government to introduce Covid passports during the pandemic were not in conflict with the Estonian Constitution, a Supreme Court ruling finds. However, the legislature, ie. the Riigikogu, should specify the norms set out by the legislation more clearly, against any future Covid outbreaks, the court added.

The Supreme Court's Constitutional Supervisory Board has noted that the requirement for a coronavirus passport, as found in many countries during the peak of the pandemic and necessary in proving vaccination against or recovery from the virus, for access to various public events and venues, as well as for travel, restricted several fundamental rights.

However, the Tartu-based court found (link in Estonian), restrictions of this kind may in principle be necessary to fulfill the obligation constitutionally imposed on the state to protect public health and people's lives from a dangerous, infectious disease, Supreme Court spokesman Arno Põder said Monday.

In May and August 2021, the government issued two executive orders (No. 212 and 305) based on the Communicable Diseases Prevention and Control Act, universally known in Estonia by its acronym in Estonian, NETS, to contain the spread of the coronavirus. 

The first of these orders established quarantine requirements for close contacts, among other things, while the second established restrictions on many activities taking place in public places - for example, attendance at hobby schools, catering establishments including restaurants and bars, sports clubs, water parks and public events and meetings, again among other provisions.

Both orders stipulated that people holding a Covid certificate, ie. a coronavirus passport showing they had either have completed a course of vaccination against Covid, or equated to a vaccinated person or had recovered from a bout with the virus in the preceding 180 days,

A total of 52 private individuals plus three companies filed complaints with the first-tier administrative court as a result, stating that the two orders unconstitutionally restricted their rights. Those individuals who filed the complaint were united by the fact that they did not have proof of coronavirus vaccination or recovery, while the three firms, whose businesses were in catering, publishing and offering driving lessons, held the opinion that the requirement for a Covid certificate from their clients and their obligation to check that certificate limited their freedom to do business.

The administrative court upheld these complaints with its decision from May 31 this year and requested the Supreme Court declare the NETS norms, which were the basis of the orders, unconstitutional. 

According to the first-tier court, the standards set out in NETS were not sufficiently precise and clear, and did not define the limits of the power of the executive in its activities. 

According to the administrative court, the serious restrictions on fundamental rights provided for in the regulations should have been established by law, not by government legislation. 

The Supreme Court panel also noted that the restrictions imposed by government orders undoubtedly violated many fundamental rights, such as freedom of movement and entrepreneurship, the right to education, the right to freely choose a profession and job, and the fundamental right to equality. 

The restrictions were so wide-ranging that they could, for instance, deprive applicants of their right to decide on their own living arrangements, it was argued. The fact that a person could find a replacement for some activities closed to them by not having Covid certification did not reduce the severity of the restrictions, it was found.

The value of limited activities depended not only on their content - studying, playing sports, eating, listening to music, etc. - but also on their location and manner of conduct, as well as their immediate nature, including the opportunity to communicate with other people engaged in the same activity.

The Supreme Court also disagreed with the government's own claim that its restrictions were not very intensive. 

Since the restrictions were extensive and a person could remove them only either by contracting an illness and then recovering from it, or by being vaccinated, the orders essentially imposed an indirect vaccination requirement, interfering with an individual's physical immunity, the court found.

The court also found that the vaccination also carried health risks, although the probability of serious illness or death as a result of the coronavirus vaccine is very small according to the data collected on the topic so far.

The law was not 'too vague'

On the other hand, when considering the introduction of restrictions, the court said it must be taken into account that the constitution imposes an obligation on the state to protect people, and directly names infectious diseases as one such potential hazard.

The Supreme Court emphasized that the protection of people's life and well-being through the control of infectious diseases is a compelling constitutional goal, which can indeed provide a basis for limiting other fundamental rights.

Therefore, the legislator must already proactively establish the parameters necessary to control infectious diseases. At the same time, especially novel diseases such as coronavirus are characterized by great uncertainty and flux. Inevitably, it is not viable to provide in the law all the measures restricting the fundamental rights that may be necessary to combat any one particular disease. However, too detailed and rigid a regulation can prevent the effective resolution of the crisis also, the court found.

The Supreme Court panel found that even though the coronavirus epidemic started in Estonia in 2020, it was still a new type of dangerous infectious disease in the sense of the NETS law at the time of the introduction of the disputed orders the following year, because new strains of the virus were propagating, whose risk levels and susceptibility to vaccines were not yet sufficiently known at that time. Last autumn there was still a clear and present risk that the hospital network might be seriously overloaded, also, the court noted.

In summary, the Supreme Court ruled that the NETS regulations did not limit the basic rights of the applicants more intensively than permitted, the law was not too vague and the government did not exceed the powers granted to it under Estonian law.

However, this does not mean that the legislator should not try to finesse NETS in the future, especially in the context of any new possible coronavirus outbreaks. Norms that may be acceptable in the early stages of an epidemic may no longer be precise enough as the long-lasting crisis continues, and knowledge about the disease rises in line with that, the court said.

The supervision of constitutionality and the settlement of complaints in the main court case took place separately from one another. 

This means that the decision of the administrative court of May 31 can be challenged at the second-tier circuit court within 30 days from Monday's decision by the Supreme Court. The panel did find that the NETS norms were in accordance with the constitution, adding that the proportionality of the government order can be assessed by the circuit court when resolving the main case, should the government file an appeal.

The requirement for presenting a Covid certificate in the situations outlined above was lifted in spring this year.


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Editor: Andrew Whyte

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