Court: Mask-wearing requirement cannot be installed 'just in case'

Signage instructing members of the public to don a face-mask.
Signage instructing members of the public to don a face-mask. Source: Ken Mürk/ERR

Court uphold several aspects of EKRE complaint over Covid restrictions.

The first-tier Tallinn Administrative Court has satisfied in part a complaint from the Conservative People's Party of Estonia (EKRE) issued over a government order which put in place the obligation to wear a face-covering and the obligation to provide proof of Covid vaccination.

EKRE had cited unequal treatment also.

The court found the government's order from August 23, 2021 (link in Estonian) to be illegal in respect of the component which required vaccination against Covid as a prerequisite for participation in certain activities, plus the obligation to submit a certificate to prove either up-to-date Covid vaccination, or recovery from the virus.

The court also satisfied a complaint pertaining to the obligation to wear a protective mask or to cover the nose and mouth when remaining in public indoor spaces.

EKRE filed a complaint with the administrative court on the grounds of the government's order of August 2021 being unlawful, and requested the court to annul it respect of that aspect in which it obliged the applicants to wear a protective mask or cover their nose and mouth while in public indoor spaces; in the section that obliged the possession of a Covid certificate containing health data to be produced on demand to service providers in Estonia when using services or participating in activities, and in the section that required individuals to get tested for the coronavirus, at their own expense.

In essence, EKRE challenged the obligation to wear a face-mask, the obligation to be vaccinated, including the obligation to submit Covid certification, and the unequal treatment of unvaccinated persons.

Additionally, the complainants sought to bar the government from issuing any new order with similar requirements, without first declaring a national state of emergency. The court rejected this component, declaring this prohibition application inadmissible.

The decision has not entered into force at the time of writing; an appeal can be submitted to the second-tier Tallinn Circuit Court, no later than April 14, 2023.

Court: Adequate rationale for vaccine compulsion lacking

The court reiterated its earlier stance that restrictions of this form and intensity should not have been imposed. The court found that the proportionality of the restrictions has not been assessed in real terms, adding that important circumstances had been neglected or based on inappropriate considerations.

The court stated that the government had acted arbitrarily in imposing restrictions, adding there were no adequate reasons for compulsory vaccination.

The reasons for imposing the restrictions were not sufficient, the court found, and the considerations on which they were based were not clearly verifiable, according to the court. This meant the stated goal of vaccinating more people was not legitimate, the court said.

The court found that in a rule of law, a person must be able to freely decide on the basis of comprehensive information, based on his own state of health and beliefs, which health risk he is ready to take in a situation where the risk to life and health is accompanied by both contracting the virus and vaccination, and the risk of contracting the disease persists even after vaccination.

The court added that considering the short-term nature of vaccine protection, as well as unknown health risks, all social groups must in any case be free to decide on vaccination for themselves, without any political or legal pressure.

Face-mask obligation cannot be imposed 'just in case'

In addition, the court established what it called the illegality of the government's order, in which it was made mandatory to wear a protective mask or to cover the nose and mouth using an accepted face covering, when entering and remaining in public indoor spaces.

The court found that the obligation to wear a protective mask cannot be established in each and every case, as it were, particularly if the science-based information behind it were weak, and given that the corresponding obligation was in conflict with the recommendations at the time from the scientific council, the government's Covid advisory body – and there was no reasonable justification and scientific basis for such a contradiction.

The court also stated that the government at the time in Estonia had been aware of the experience of sovereign states which had implemented a strict mask obligation, while large-scale outbreaks of infection and a growth in rates had occurred in spite of the obligation and its being followed and enforced in that country.

According to the court, this weak evidence base, in combination with the practice of countries that both implemented and did not implement the mask obligation, could not give the complainant sufficient conviction that any effectiveness could be expected from the mask obligation whatsoever.

In May 2022, the same administrative court had also upheld the complaints of 56 people who had argued against the Covid restrictions imposed by the government, along with the requirements to be exempt from those requirements.

The court thereby established the illegality of the government's order, which required testing or vaccination in order to participate in the activities specified in the order.

These activities as listed were: Sports, recreational activities, recreational education (sometimes referred to as hobby education-ed.), further education and training, remaining in saunas, spas and swimming pools intended for public use, attending large public meetings and events, theater performances, concerts and cinema screenings, and remaining in the sales or service area of ​​a catering outlet.


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Editor: Andrew Whyte

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