Tallinn Administrative Court judge
It has now been more than two years since the coronavirus reached Estonia. The Government of the Republic established a raft of restrictions to prevent the spread of the virus and ensure availability of vital public services. The restrictions curtailed enterprise, social activity and ultimately, some of the most pedestrian aspects of everyday life for everyone. As a result, questions connected to the permissibility of the restrictions also crossed the administrative court’s desk. As of this writing, the omicron strain was still raging, regarding which professor Toivo Maimets expressed hope in a recent interview that by the spring, when this yearbook was due to be published, it would be over, yet no one can forecast what will take its place.
Rapid and constant change in the situation on the ground and the unpredictable development also characterize the background of the design, implementation and judicial enforcement of legal measures for preventing the spread of the virus. In the following, I will briefly treat some questions of judicial review of the lawfulness of some of the restrictions, and how in my opinion they vary from many others. Judicial practice in this issue is currently comprised only a few rulings pertaining to application of provisional legal protection and a few court decisions that have not come into force. This allows us to conclude only that the positions of the courts in these matters are no more uniform than in society at large. Thus, we cannot really speak of established judicial practice, and that in turn means that the following will also contain more questions than answers.
A judge’s own beliefs (or lack thereof)
The first, general, and certainly not the most important question is related to whether the judge has an impartial worldview on these issues. Ideally, a judge should be deciding, proverbially blindfolded, on matters on which their own personal well-being does not depend: whether a contract was performed as required, which of two divorced spouses should retain ownership of a summer cottage, whether someone could build a second storey on their house, or whether taxes should be paid as assessed by the tax authority. A judge’s personal worldview undoubtedly affects assessments of such matters, yet in the case of the pandemic restrictions, it is even more complicated, because the restrictions also have an effect on the judge and their family members.
This is most clearly expressed in a matter where the dispute comes down to whether unequal treatment of groups in society is justified. From November 2021 on, a string of complaints was received from unvaccinated people challenging the imposition of restrictions on activities that the vaccinated population can continue to engage in. A judge (and the judge’s father and daughter and best friend) is likewise also either vaccinated or not vaccinated. In other words, judges have to evaluate whether the unequal treatment of two groups is justified while themselves being a member of one of the two groups.
Pressure on the judge was all the greater considering that although the general goal of the restrictions as such was generally not questioned, society split into diametrically opposed camps as to what type and how extensive actions could be taken by a public authority to restrict people’s rights for achieving the goals. Nearly all of the opinions could be supported based on statements from authoritative researchers published every day on mass media based on an ever more comprehensive set of scientific and statistical data, without needing to categorize anyone as a “flat-earther antivaxxer” or “pro-government sheeple”. Everyone’s opinion depends – ever more, as time goes on – on their own experiences and those of their loved ones related to the virus and illness. It would be naïve to think that the 41 people who adjudicate administrative matters in Estonian courts as judges did not have their own opinion or that they would arrive at that opinion in a fundamentally different manner from other people.
It is even more complicated to form an independent, impartial opinion if scientific data are used to back up the necessity of restrictions but different sorts of data can be found, or if pure logic allows different conclusions to be drawn from the same data used as a basis for establishing restrictions. The argument that the government had not upon establishing the restrictions sufficiently explained all of the circumstances or reasonably weighed all of them is not actually any harder to support than the opposite assertion. While of course this does not make it impossible to adjudicate a matter, it does set the stage for very different rulings in the courts of first instance and very heated and time-consuming disputes in subsequent instances that rely on consensus-based decision-making.
In this situation with a murky present and unpredictable future, it is not a bad thing if the decision of a judge tends in favour of a solution that seems more favourable personally, but what is bad is if the judge decides to go against their conviction and select a solution that seems “safer” or follow previous solutions that are not yet part of established judicial practice. Among other things, a judge is paid for having the courage to decide according to their convictions and justify it as well as they are able.
Possibilities for legal protection: a general or individual act?
Another question, which is a more important one from the standpoint of judicial protection of rights, is related to the form of these restrictions, which is, as we know, an order issued by the Government of the Republic. Formally, an order is an individual act and as such – unlike a general act (legislation, regulation) – can be contested directly in administrative court with an appeal. The legal definition of a general order is “an administrative act aimed at persons specified on the basis of general characteristics or changing the state of a thing under public law“.
A general order is not a very common means of regulation in the Estonian legal system, yet it is not anything novel, either. What is however unprecedented is such a broad scope of application for a general order. An example of a general order is home rules in prisons that govern the rights and responsibilities of the persons imprisoned in a given prison. So are a school’s rules on organization of studies or protection rules in nature reserves that govern what everyone can and cannot do in the reserve. Obviously, orders that govern pandemic rules differ substantially from the above examples. In essence, their (the restrictions or exemptions from restrictions) scope of application includes all persons in Estonia and the geographic scope of application encompasses above all the public space throughout Estonian territory. Naturally, the question of what the order’s individual act-like nature is comes up, or in what way does the government order’s behavioural guidelines “\in a public indoor space the person is obliged to wear a protective mask” differ from the provision in clause 55 (1) 3) of the Law Enforcement Act – “\it is prohibited to be in a public place while nude[…]“. The substantive difference lies above all in what parts of the body must be covered.
In several court matters currently pending, the question has been raised of whether protection for the fundamental rights of persons would be better ensured if similar restrictions were established by a general act. The competence of the Chancellor of Justice to conduct constitutional review of general acts has been referred to on a number of occasions. But probably there cannot be any reasonable debate that, while the Chancellor of Justice has a weighty role in ensuring fundamental rights, recurring to the Chancellor of Justice or the Chancellor of Justice’s oversight activities cannot be considered an effective legal remedy for the individual for the purposes of the Constitution or the Convention of Human Rights and Fundamental Freedoms. It appears that this tends not to be the case. Namely, if the same restrictions had been established by regulation, no one would be able to file an action in administrative court to contest the restrictions or seek a speedy response under provisional legal protection. In that case, the person would basically have two potential judicial paths to contest the restrictions.
The first of them would require the violation of the obligation or prohibition constituting the essence of the restriction and, in response to the decision of a public authority (such as misdemeanour punishment, precept, administrative enforcement measure) a petition seeking that the corresponding obligation or norm of the regulation containing the prohibition be declared unconstitutional. Inciting a person to violate valid law in order to protect their subjective rights probably does not constitute effective legal protection.
Another option would be to try to recur to the Supreme Court with an individual constitutional review action. Of course, this option does not derive from law but the Supreme Court has in its practice provided for this option in the event that the person lacks any other effective possibility of exercising the right guaranteed by Article 15 of the Constitution. The solution would have its advantages. A ruling would possibly arrive quicker than in the current case, since there would be only one relevant court instance. In addition, it must be stated that in the event of an individual constitutional review action, the dilemma treated below would not come to pass – whether the restriction would have to be invalidated solely in regard to the petitioner or all persons in the scope of application of the restriction. There would be less need to worry how to view circumstances that went into the making of the decision but which changed in the meantime or are no longer the same as the ones that were the basis at the time the restriction was established.
It should be noted, however, that filing an individual constitutional review action is merely a stopgap solution developed in judicial practice for filling a hole left by the legislative branch, and the legislative and executive branch should not design measures on this consideration. In other words, if legislators wanted to see similar restrictions established directly in law or to hand down a provision delegating authority for issuing a regulation, there would be an urgent need to regulate the option of filing an individual constitutional review action (or provide the option of contesting certain general acts in administrative court). In the first case, additional resources would probably have to be found for the Supreme Court to fulfil this function.
As a counterargument to establishing universal restrictions in the form of an individual act, it has been found that the coordination proceedings required for issuing general acts would ensure a more just and carefully considered decision. Yet it is hard to concur with this position when we consider that the government adopts both regulations and orders – at least by law – by simple majority but in practice nearly always based on consensus. The option of every cabinet member to vote against adopting a regulation is not better than their option to vote against adopting an order. Even officials who can have a right to speak at cabinet meetings (such as the Chancellor of Justice) can have their say and express an opinion in the same way concerning both general and individual draft acts. True, the Chancellor of Justice cannot conduct an abstract review of a norm, but on the other hand, the judicial review of an individual act always encompasses verifying whether the individual act (general order) is lawful and constitutional.
Should a general order be challenged in administrative court, the court even has the possibility of responding to a conspicuous and irreversible type of injustice caused by the imposition of restrictions by applying provisional legal protection. A good example of this is an action in which a theatre, Tartu Uus Teater, challenged the requirement arising from a government order that theatre performances must end at 21:00. The theatre wanted to perform a work called “The End of All Restrictions”, which was characterized by the fact that it was performed outdoors in a drive-in format, with the audience remaining inside their vehicles and tuning in to the audio on their car radios. The theatre wanted to use lighting effects that would not be conceivable during daylight hours, and thus the performance could not be scheduled to end before 21:00. Regardless of what we should generally think of the obligation to require theatre performances to end at a certain time in order to stem the tide of the virus, it was obvious that in imposing the restriction, the government had not taken into consideration the possibility that a theatre performance could also be held in a drive-in format. The administrative court concurred, and granted the petition for provisional legal protection. In May 2021 the performances went ahead in the above format.
In a ruling in administrative matter 3-21-2241, which dealt with the vaccination mandate established in the Estonian Defence Forces, the Supreme Court noted that “\regulation of an individual incident […] requires the incident to be delineated spatially, by person and object”. By this argument, the imposition of coronavirus pandemic restrictions as an individual act could probably be justified by the fact that they are subject to time limits. But unfortunately it must be said that while Government of the Republic order no. 212 of 28 May 2021 treats the establishment of quarantine adopted on the basis of section 27 of the Communicable Diseases Prevention and Control Act, which explicitly provides for its expiry, this is not the case in Government of the Republic regulation no. 305 of 23 August 2021, which establishes, on the basis of section 28 of the same act, restrictions on participating in activities. As we know, the cabinet regularly discusses and evaluates the necessity, tightening or relaxation of these restrictions, but when it imposes restrictions, it does not establish their term of validity in a legally binding manner. My opinion is this is not the way it should be. In particular, the addressees of the restrictions should know how long the restrictions will be in force. This would also ensure that newer information is taken into consideration when each newer (even if it has the same content as the previous one) decision is made. That makes it much more expedient to also establish these restrictions for a specific time limit and not prevent them from being amended sooner if need be. That would make it much easier to check whether their imposition was necessary, appropriate and moderate at the time the temporary restrictions were imposed.
Term for filing a complaint
Thirdly, I will touch on the term for filing a complaint. As many are aware, after an administrative act is made public, there is generally a 30-day term for filing an annulment action in administrative court. Judicial practice has clarified that the point in time when the term for contestation begins to run depends on when the act begins to have an effect on the addressee’s rights. If a provision of a general order has a direct effect on a person’s rights, an action must be filed to administrative court within 30 days of the communication of the order. If the provision covers an undefined number of incidents, a person can file an annulment action for 30 days after the influence becomes evident.
Still, it appears that greater flexibility would be called for in regard to the contestation term for the said coronavirus restrictions. This would ensure effective legal protection, leaving the individual the option of first tolerating the restriction and then contesting it only when their patience indeed has worn thin. This is so above all in a case where the restrictions are intrinsically temporary yet no expiration date is explicitly stated. Besides, there are a whole bunch of different restrictions and they are regularly tightened and loosened here and there.
Thus, it is conceivable that a restriction that, considered separately and at a specific point in time, did not seem excessive begins to seem so at some later date in combination with some additional restriction that was added in the interim or removed. If we were to require actions to be filed against a restrictive provision in strictly 30 days, that would mean that if the government established restrictions one after another, changing them, making them stricter or easing them so that it was not known at the time of their establishment how long they would remain in effect, a person would have to start contesting restrictions already at a time when they were still reconciled to it (in the hopes that it was temporary). That would hardly be a reasonable expectation.
Earlier judicial practice that governed the term for contesting general orders is associated with the rules of procedure in prisons, in which case it can indeed be presumed that at the moment that a given restriction was imposed on a person, they must have understood the need to contest it. That tends not to be the case with the pandemic restrictions, however.
Who should “benefit” from court cases?
Fourth, I address a question that ties in with the extent of the possible judicial protection provided to a person. In other words, what should an administrative court do with a restriction provision if it finds that it is disproportionate and violates the appellant’s rights? Should the given restriction be annulled completely, so that it loses legal force in respect to all of its addressees, or annul it only in regard to the complainant – or even limit the annulment to people who are in the same class as the appellant?
This problem would probably be lesser if there were a possibility of filing an individual constitutional review action. It could also be resolved by supplementing the Code of Administrative Court Procedure to some extent, with special norms that would cover precisely the review of actions filed precisely in regard to this type of “universal individual acts”. However, there is a decent-sized question mark hovering over it in the existing procedural law framework. True, in previous court practice connected to the requirements that some provisions of the prison rules of procedure be annulled, the action was granted with the relevant provision being annulled so that it loses legal force in regard to all addressees. The basis for this conception is subsection 177 (2) of the Code of Administrative Court Procedure, which states that “to the extent that the judgment annuls an administrative act or ascertains the nullity of such an act, that judgment is applicable to every person”. Nevertheless, it appears that this provision solely answers the question of what the effect of a court decision is if it annuls an administrative act, yet it does not answer the question of whether a general order must be annulled on the basis of an action filed by one person only with regard to that person or in regard to all addressees defined on the basis of general characteristics. In general, a person should be able to recur to a court solely for protection of their own subjective rights and thus, the person should not be able to demand more from the court than is necessary for protection of their own rights. In the case of the coronavirus restrictions, it should be sufficient if the court decision excludes the establishment of unlawful restrictions in respect to the appellant.
The same sort of question also comes up in the case of many conventional administrative acts with multiple addressees, such as in connection with liability decisions where an obligation is imposed jointly and severally on two people to pay a certain tax amount. Let’s say one of the two people contests the decision; the other does not. To protect the other person’s rights, they would undoubtedly have to be included in the court proceeding as a third party, but a third party cannot file a claim under administrative court procedure, and nor does protection of the appellant’s subjective rights require that the liability decision regarding the second addressee be annulled. Although the obligation imposed by the liability decision may be joint and several, the circumstances underlying the incurrence of the liability must be evaluated individually for each addressee. That means that in order to adjudicate the action, the court does not even need to evaluate whether the incurrence of the other person’s liability has been established correctly.
It seems to be a similar story with many of the coronavirus restrictions, where the court verifies whether the intervention into the specific appellant’s rights is proportionate, yet does not have to evaluate the proportionality of the restriction from the perspective of some other addressee. For example, in the example of the theatre performance discussed above, it is deeply questionable why a provision establishing a restriction related to time of day must be annulled completely by court decision even if it is disproportionate from the perspective of a given appellant and cancellation in respect to a specific appellant is sufficient for protecting that appellant’s interests. It is the same as a dispute where an unvaccinated appellant is seeking equal treatment in comparison with people who are vaccinated against COVID-19.
Of course, there are also other conceivable situations. For example, if a restriction that completely and unconditionally excludes activity (such as a provision forbidding indoor dining), a person whose aim is to be able to dine at the restaurant cannot derive any benefit if the prohibition is annulled in their own respect. Obviously, no one will open their restaurant’s doors to just one or two or even 20 people just because those few individuals have a court decision that says that they have the right to dine indoors. By the same token, it would probably be inconceivable to annul, in regard to just one student, a provision that sent all students home for remote learning. The reasonable approach would be to find a solution where a court decision that grants the action resolves to effectively guarantee the realization of the appellant’s rights but does not go farther than needed.
Time changes everything …
Finally, I will deal with the question in connection with the possibility (or impossibility) or considering, for the making of a court decision, changes in the epidemiological situation or related scientific knowledge that come to light after the restriction was imposed.
The second sentence of subsection 158 (2) of the Code of Administrative Court Procedure unequivocally states that the court assesses the lawfulness of an administrative act or measure by reference to the time that the act was issued or the measure taken. This provision expresses the principle that the administrative court performs ex post verification of the administrative act and does not make decisions itself in lieu of the administrative body. In regard to contestation of the pandemic restrictions in question, this principle is dubious when it comes to the efficacy of legal protection. Namely, the circumstances that constituted the basis for the restrictions are constantly changing and it is quite likely that a situation will arise where it is possible to say in retrospect that at the time the restrictions were established (for example, late October 2021), the imposition of the restriction was legitimate but deeply questionable for the same kind of restriction to legitimately continue to be in force at the time of the court decision (e.g., March 2022).
One possibility in this situation might be to make a proposal to the appellant to supplement the action with an alternative mandatory requirement and to demand that the person establishing the restriction issue a new decision on the restriction, given that the facts underlying the restriction have changed. The court can make such a proposal to the appellant or if necessary, interpret the claim contained in the action so that the consequence would not just be one appellant in an ever growing procedural confusion.
The other possibility, which would require a much more creative approach to procedural norms and some changes to procedural norms is not to annul it on the basis of an annulment action for a restriction arising from general order but rather to declare it invalid proactively from some point of time coming after the time of imposition of the restriction. This could be based on the fact that a restriction arising from a general order must be delimited temporally and it can be legitimately established solely for a time for which it is reasonable to presume that the circumstances prevalent at the time of the imposition of the restriction remain unchanged or until such time expected to be necessary to achieve the goal of the restrictions. In other words, it would be conceivable on the basis of an annulment action for a restriction provision that entered into force in October 2021 to invalidate it starting 31 January 2022, taking the position that at the time that the restriction was imposed, the Cabinet had no reason to presume that the restriction would be necessary for a longer period. I would reiterate, though, that the problem in this form would not arise if the body establishing the restriction were to immediately determine how long the restriction would be in force and issue a new decision extending the validity of the restriction, rather than just constrain itself to a tacit decision not to lift or amend the restriction at the originally planned time – a time that was perhaps even specified in the reasoning for the order or explanatory memorandum.
Yet another possibility within the remit of the legislative branch is to supplement the code of procedure with a norm that would allow evaluation of the lawfulness of such restrictive provisions that, while temporary, have a continuing nature and lack a definite term of validity, not as of the time at which the court decision was made, as provided for as an exception in subsection 158 (3) of the Code of Administrative Court Procedure, e.g., in the case of a decision to deny international protection.
Of course, everyone is fed up with the pandemic, but even if the positive forecasts pan out and the end of the pandemic is around the corner, it is naïve to hope that nothing of the sort will ever happen again. Thus, it would be a good idea to thoroughly revamp the procedure for establishing and contesting these types of restrictions and make the necessary changes in either the Code of Administrative Court Procedure or the Constitutional Review Court Procedure Act.
And finally, I recommend that everyone read or re-read Albert Camus’s The Plague, where the character Tarrou, who unlike his interlocutor is not a doctor, explains how a third character, Cottard, saw the world: “Have you noticed,’ he asked me, ‘that no one ever runs two diseases at once? Let’s suppose you have an incurable disease like cancer or a galloping consumption, well, you’ll never get plague or typhus; it’s a physical impossibility. In fact, one might go farther; have you ever heard of a man with cancer being killed in an auto smash?”
 These restrictions in question stem from the (repeatedly amended) Government of the Republic order no. 305 of 23 August 2021 on the measures and restrictions necessary for preventing the spread of COVID-19 and Government of the Republic order no 212 of 28 May 2021 establishing quarantine for persons diagnosed with or who tested positive for COVID-19 and persons in close contact with those persons.
 By the time this article was written, about 600 people had turned to the courts in the context of about 200 matters on administrative activities. Of course, not all these complaints are connected to the Government of the Republic’s orders mentioned in the previous note; they also include complaints related to being dismissed from public service due to refusal of the covid vaccine, forfeiture of support measures intended to alleviate the effect of the restrictions and additional restrictions on movement and activity established in prisons.
 ETV programme “Esimene stuudio“, 25.01.2022.
 See Tallinn Circuit Court rulings of 2 December 2021 in administrative matters 3-21-2473, 3-21-2432 and 3-21-2412 and the ruling of 3 December 2021 in matter 3-21-2550, where the circuit court found, different to administrative court, that (for different reasons and background) suspension of the validity of restrictions in regard to unvaccinated complainants was not justified under provisional legal remedy. See also the Supreme Court Administrative Law Chamber’s ruling of 28 January 2022 in matter 3-21-2241 and Tartu Circuit Court ruling of 28 January 2022 in matter 3-21-2547. In the former, the Supreme Court ruled that providing Estonian Defence Forces members provisional legal protection from dismissal from service was not justified, while in the second, the circuit court found that (due to the change in the epidemiological situation but also for distinct reasons related to the specific appellant) the validity of a directive on dismissing an unvaccinated police official from duty had to be suspended under provisional legal protection.
 On 25 October 2021, amendments to Government of the Republic order no. 305 of 23 August 2021 came into force – unvaccinated people lost the right to engage in various activities on the basis of a negative test result for SARS-CoV-2.
 The Government of the Republic has prepared and sent for approval a piece of draft legislation that seeks to amend provisions in the Communicable Diseases Prevention and Control Act so that instead of a general order, the Government of the Republic would henceforth establish similar restrictions by a regulation. See https://eelnoud.valitsus.ee/main/mount/docList/44b145c4-deab-4dea-bc3e-b2905968e753 (04.03.2022).
 Subsection 30 (1) of the Government of the Republic.
 Subsection 51 (2) of the Administrative Procedure Act.
 Clause 8 of Government of the Republic Order no. 305 of 23 August 2021.
 For more on this, see RKPJKo 3-4-1-60-14, and the decision of the European Court of 6 October 2020 in the matter of État luxembourgeois vs. B et al (C-245/19 ja C-246/19, EU:C:2020:795, p 66 and the judicial practice referred to therein).
 See RKPJKm 5-21-7, p 10 and judicial practice referred to therein.
 Understandably, the government has developed and about to send for coordination a draft amendment to the Communicable Diseases Prevention and Control Act, which seeks to increase the Chancellor of Justice’s options in regard to such general orders. For more on this, see “Valitsuse plaan NETS-i muutmiseks annab riigikogule ja õiguskantslerile suurema sõnaõiguse“. (Government plan to amend the Communicable Diseases Prevention and Control Act gives Parliament and Chancellor of Justice greater say) – https://www.err.ee/1608482516/valitsuse-plaan-nets-i-muutmiseks-annab-riigikogule-ja-oiguskantslerile-suurema-sonaoiguse (04.02.2022).
 TlnHKm 3-21-882.
 Clause 13 of this order specifies: “The order enters into force on 1 June 2021 and shall be in force until 31 March 2022.“ See also subsection 27 (3) of the Communicable Diseases Prevention and Control Act.
 Subsection 46 (1) of the Code of Administrative Court Procedure (HKMS).
 See RKHKm 3-3-1-95-07.
 Compare e.g. with section 65 and 66 of the Administrative Procedure Act, which allow proactive (and partially, retroactive) repeal due to a change in circumstances and other reasons. Nor is it rare in the case of adjudication of a declaratory action where e.g. an omission, suspension of proceeding etc. is declared unlawful not from the beginning but from some later time.
 Camus, A. The Plague Translated from the French by Stuart Gilbert https://antilogicalism.com/wp-content/uploads/2018/03/the-plague.pdf