Lack of precedents causes conflicting EDF vaccine refusal dismissal rulings

Estonian Defense Forces (Kaitsevägi).
Estonian Defense Forces (Kaitsevägi). Source: Siim Lõvi /ERR

Last fall, Tallinn Administrative Court ruled that two dismissals of personnel from the Estonian Defense Forces (EDF), for refusing Covid-19 vaccines, was unlawful. However, the same court recently issued the opposite ruling in a similar case. A court spokesperson pointed out, that even in cases closely resembling one another, nuances play a crucial role in the decisions made.

On February 8, Tallinn Administrative Court dismissed the appeal of former Estonian Defense Forces (EDF) staff officer Evert Paas. Paas was seeking the annulment of an order dismissing him from the EDF due to refusing a vaccination against Covid-19, along with his reinstatement and remuneration for the period of enforced absence.

Judge Elle Kask, however, agreed with the stance of the EDF, stating that, since it is a government body tasked with military responsibilities, it is clear, that Paas becoming infected with Covid-19 could have disrupted or affected the functioning of essential defense-related activities.

However, what makes the recent judgment additionally interesting is, that in August last year, a different judge at Tallinn Administrative Court, Andreas Paukštys, ruled that the dismissal of officers who had refused to be vaccinated against Covid-19 was unlawful.

At that time, Paukštys said, that in a situation where it is already known that people have died or experienced serious side effects (personal injury), compulsory vaccination is not justified, and that measures to prevent the spread of the virus focused exclusively on vaccination cannot be necessary or reasonable.

In both the September case and the current one, the former EDF members of the EDF were represented by lawyer Henno Nurmsalu. In Nurmsalu's view, it is incomprehensible why "the same judges belonging to the same court can make different rulings regarding the same complaint."

"Analogous appeals have been upheld, so it is incomprehensible to us why the courts were not able to harmonize their practice," Nurmsalu said. "Therefore, we will use our legal right to appeal this decision at the circuit court within thirty days," he added.

According to Nurmsalu, the argumentation of the appellants in both cases was basically the same. "There were some nuances, but the arguments we relied on were essentially the same. We have had the same basic arguments in all the appeals," Nurmsalu said.

Nurmsalu said, that he is currently involved as a representative in between ten and twenty cases in which former members of the EDF are requesting their dismissal orders due to refusing Covid-19 vaccinations, to be declared null and void. "For now, no decisions have been taken in most of the cases. There were a couple of decisions on August 31, 2022, and now there has been the Paas decision, but nothing in the meantime," Nurmsalu said.

Nurmsalu expressed the hope, that judges would not use Paas' case as a precedent to guide future decisions. "I hope not. If you now compare the judgment to uphold our appeal in August and the current judgment, the quality of the reasoning (in the two cases) is different," he said.

"The August judgments were thorough and substantively reasoned, whereas the current one is relatively superficial. In light of this, I see no reason why the Evert Paas decision should be any more of a guide for the future than this very thoroughly substantiated earlier decision," Nurmsalu explained.

No case law for Covid-19 cases

"As the Estonian judicial system is a three-tier system, this provides the opportunity to check at the subsequent tiers whether the solution has been found in the most appropriate way. This is the way that case law evolves over time. In the absence of this, there will be situations in which one case ends in a successful appeal and a relatively similar one does not. As the Tallinn District Court has not yet ruled on these cases, we currently only have first instance judgments," said Annika Vilu, spokesperson for Tallinn Administrative Court.

"It is also important to note, that every appeal is resolved according to the merits of that specific appeal. Perhaps in one case there may be grounds for upholding the complaint, while in another similar case there are no grounds for upholding it," said Vilu.

More than 20 people involved in complaint proceedings

As of this week, at least 14 appeals have been lodged with the Tallinn Administrative Court against dismissal orders from the Estonian Defense Forces' in relation to Covid-19. At least an additional eight appeals have also been forwarded to the Tartu Administrative Court for resolution.

Among those 14 appeals, two involve complaints from more than one individual.

This means, at least 23 people have so far appealed to the Tallinn Administrative Court regarding their dismissals from the EDF in connection with Covid-19 vaccination refusal.

All the appeals were received by the court in the final months of 2021.

The majority of these appeals have been resolved at first instance and the proceedings are currently continuing in the circuit court. There are currently eight appeals pending before the Tallinn Circuit Court, while another three appeals were resolved before the Administrative Court - one of them before the Supreme Court (3-21-2440) and two are running out of time (the decision in the Evert Paas case and the decision of February 17, in case 3-21-2519). Three further appeals before the Administrative Court are still pending, one of which has been suspended for negotiations regarding  a compromise.

In the eight appeals to the Circuit Court, seven of the decisions made by the Administrative Court have been upheld or partly upheld, while one was dismissed.

The first ruling from the Circuit Court in this case is expected on March 16 at 3 p.m.

Source: Tallinn Administrative Court


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Editor: Michael Cole

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