Last month, Tartu Administrative Court dismissed a complaint lodged against Tartu police over their decision to ban a pro-Palestinian protest planned for November. Protest organizer Agnes Joyet is now heading to Tartu Circuit Court to challenge the first-tier court ruling, which the appellant's counsel says is a violation of fundamental rights.
According to Joyet's attorney Kalev Aavik, no effective right of appeal exists in Estonia against violations of the freedom of assembly, and the freedom of assembly as a fundamental right lacks legal protection.
"A public meeting taking place depends on the discretion of the police – if the police do not allow a [public] meeting, it isn't possible to effectively contest this in court," Aavik explained.
"If an administrative act is issued restricting an individual's rights, then as a rule it's possible to seek the annulment of the administrative act in court," he continued. "Alternatively, but very rarely, you can seek to have the issuing of an administrative act prohibited prior to issuance already, if the intent to issue it is known with certainty."
According to the attorney, however, in the case of a public meeting ban, as a general rule neither an annulment nor the prohibition of a ban is possible.
"A public meeting is registered for a specific date, and if it's banned, then as a rule, it's a day or two prior to the planned meeting," he pointed out. "This means that there's no time to challenge the ban in court or seek a preliminary injunction. If it nonetheless still can be, then the court, in ruling on an application for a preliminary injunction, is in a situation where the substantive outcome of the case also depends on the application or non-application of a preliminary injunction: the meeting either takes place or it doesn't."
Therefore, Aavik finds that the only remaining legal remedy is the ex post facto ruling of the ban to be unlawful. This, in turn, is very complicated the Estonian legal system, however, as it is generally held that if an administrative effect has ceased to have effect, then no legitimate interest exists in having it declared unlawful.
"The reason for the development of case-law with such a restrictive interpretation of the right to appeal – due largely to the mass receipt of complaints from prisoners – is the aim to reduce the burden on courts by means of avoiding declarations of nullity," he explained. "Unfortunately, the apparently unintended consequence of the aforementioned practice is the fact that some administrative acts that grossly infringe on fundamental rights are virtually impossible to challenge in court. The prohibition of a public meeting is one such administrative act."
The appellant's attorney said that a search of the Official Announcements register (Ametlikud Teadaanded), an electronic journal that publishes all notices, invitations and announcements prescribed by legislation, doesn't turn up a single publicly available judicial disposition involving bans on public meetings pursuant to the Law Enforcement Act, i.e. since 2014.
"This is apparently mainly due to the fact that due to the limitations of the right to file a complaint, such complaints aren't filed in the first place, but are dismissed when filed," he underscored.
Aavik confirmed that the appellant is prepared to take the case all the way to the Supreme Court if necessary.
First-tier court: Police later authorized a protest
Tartu Administrative Court in December dismissed a complaint lodged against Tartu police over the latter's decision [taken on November 17] to ban a pro-Palestinian protest planned for November 18.
The first-tier court also considered it pertinent that following their ban of the protest planned for November 18, the Police and Border Guard Board (PPA) permitted the organizer to hold a public meeting on December 2 instead.
On November 9, police received a notice of registration for a public meeting according to which a peaceful public assembly involving information referring to international law was planned to be held at Tartu's Town Hall Square on November 18.
After considering its decision, Tartu Police Department concluded that it would not authorize the public meeting, citing the possibility that other citizens could turn up at the meeting bearing posters that may include justifications for aggression.
Editor: Aili Vahtla