MINELRES: Estonia gives Legal Chancellor powers of anti-discrimination body

[MINELRES moderator]

Original sender: Vladimir Vasjura <centre@lichr.ee>


The Legal Chancellor is a specific state body, provided by Constitution,
primary responsible for ensuring that legal acts adopted by the
Parliament and by local councils (i.e., by legislators) are in
conformity with the Constitution and the state laws. In 1999, the Legal
Chancellor was empowered to fulfill certain functions of an Ombudsman,
including the competence to receive and examine residents' complaints.
In his capacity as Ombudsman, the Legal Chancellor accepts individual
complaints regarding a range of legal issues. The European Commission in
its 2000 Regular Report from the Commission on Estonia's Progress
towards Accession has noted the need to reinforce the capacities of the
Chancellor, "in particular as regards the protection of minorities," and
to raise public awareness of its existence and functions". At last, on
February 11, 2003, Estonian Parliament adopted amendments to the Legal
Chancellor Act supplementing his role essentially. Changes shall come
into force on January 1, 2004.

One of the reasons for those amendments is a very feverish attempt to
bring national legislation in line with the legal base of the European
Union and in particular with EU Council directive "Implementing the
principle of equal treatment between persons irrespective of racial or
ethnic origin" (known as the Race equality directive) that provides
creation of special legal procedures to combat discrimination. Due to
state unwillingness to establish new-additional institution it is
supposed to assign the appropriate functions to the Legal Chancellor.
Henceforth the competence of the Legal Chancellor is to expand
significantly due to introduction of three independent procedures. First
of them is "settlement procedure" which broadens the list of subjects
which fall under his jurisdiction. Earlier the Chancellor could review
complaints on actions of official bodies only. Now he will be able to
cover the issues of discrimination by legal persons in private law and
by natural persons! (for example, the discrimination by the employer on
the ground of sex, ethnic origin etc.). For the examination of these
questions an appropriate procedure is introduced.

It is supposed that the Chancellor will be sending a particular
complaint received to the person whose actions are under the question so
that the latter would propose a solution to the problem. In case the
applicant consents the offered decision the problem will be considered
to be solved and procedure terminated. There will also be an opportunity
to achieve the agreement at session.

However, the parties are not obliged to participate in settlement
procedures and to achieve the agreement, i.e. the result of procedure
depends entirely on the parties' good will which can dismiss the
efficiency of the offered anti-discrimination mean. Unfortunately, the
specified procedure cannot be regarded as a high-level legal protection
mechanism as the Legal Chancellor does not have power to influence, but
to invite to cooperation.

Also it is possible to say that the volume of control increased. Besides
the observance of constitutional rights and freedoms, the observance of
traditions of good administration (hea halduse tava) had entered within
the frames of procedure named "the supervision of legitimacy and
traditions of good administration". However, the meaning of the term is
not defined. These are the possible references to the moral norms.

The third procedure "activity of the chancellor on application of a
principle of equality and the equal treatment" stipulates the
chancellor's right to observe the constitutional principle of legal
equality and the equal treatment. The amended Act regulates the
chancellor's legal proceedings on this issue, not defining the contents
of the appropriate concepts themselves. It is obvious that the specified
procedures are to be applied on the bases of the material law, for
example, some equal treatment act.

Finally, the amended Legal Chancellor Act reveals the list of subjects
under jurisdiction. Instead of the term "official bodies", the Article
19 names the bodies whose actions are supervised by Legal Chancellor.
They are to be the official and municipal bodies or establishments,
legal persons in public law, legal person in private law, natural
persons or legal persons in private law carrying out public functions.

Article 19 of the amended Act specifies the grounds for complaints which
are: illegality of actions of officials and their following to
traditions of good administration, discrimination by the legal or
natural person, implementation of a principle of equality and the equal
treatment.

The introduction of general principles establishing the basis of legal
regulation to the body of Legal Chancellor Act is symptomatic. The
"principle of procedure" is expressed in remedial independence of the
chancellor, as official. The chancellor is to establish independently
the circumstances of the case, subject of procedure, collects necessary
evidents.

The principle of "freedom of form and fallowing the purposes of
procedure" supplementing the previous principle widens the freedom of
Legal Chancellor in his right to choose the remedies to a greater extend
and includes the right to embark any action needed to perform his
functions. In the former concept an exact list of actions the chancellor
could undertake to elicit the necessary information was provided.

It's quite obvious that in relations with the state natural person or
businessman is a weaker party. Unfortunately, such an effective
law-enforcement is to counterbalance the parties as the presumption of
the fact of discrimination offered by the directive is not reflected in
the amendments. The amendments do not assume the means to prevent the
possible negative impact on plaintiff also in connection with his
interrelations with the chancellor.

The activity of the Legal Chancellor is deduced on a new level, both in
the meaning of his competence and remedial perfection. He is allocated
with additional powers (for example, the right to promulgate the
complaints and results of procedure). However, innovations in this field
are quite traditional ambivalent decisions expressing the compromise
between the necessity to bring Estonian legislation in line with EU law,
the desire to increase an overall performance of the Chancellor and the
unwillingness to give him unusual features of administrative or law
enforcement body.

Legal chancellor as a state body is not included in system of bodies of
executive, legislative or judicial power and its primary goal is the
supervision under national legislation. Pursuant to his specific status,
Legal chancellor is granted the specific authorities (the right to make
offers, to obtain on demand the information and etc) that distinguishes
him from the administrative body having quite certain powers.

It is obvious, that the right to make decisions should be conferred upon
the body executing the functions on protection of human rights.
Therefore, attempt to give to Legal chancellor a character of such
establishment is doomed to be ineffective.


Vladimir Vasjura 
the Legal Information Centre for Human Rights 
Tallinn, Estonia
http://www.lichr.ee/