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CHANCELLOR OF JUSTICE
TABLE OF CONTENTS
a) Review of the constitutionality of legal acts
b) Ombudsman proceedings
c) Power to initiate disciplinary proceedings
d) Conciliation proceedings in discrimination disputes
e) Application of the principles of equality and equal treatment
The Chancellor of Justice is an independent public official, who supervises the guaranteeing of constitutional rights and freedoms of individuals by state agencies and reviews the conformity of legislative acts with the Constitution and the laws.
The institution of the Chancellor of Justice was established in 1992, when the Constitution was adopted by referendum. The Constitution and the Chancellor of Justice Act form the legal bases of the Chancellor of Justice’s activities. The Chancellor of Justice is appointed by the Riigikogu (the Parliament) at the proposal of the President of the Republic, for a term of seven years. Once a year, the Chancellor of Justice presents an overview of his activities to the parliament.
According to the Constitution, the Chancellor of Justice is above all a public official, independent in his/her activities, who reviews the legislation of the legislative and executive powers and of local governments for conformity with the Constitution and the laws. If the Chancellor of Justice finds that legislation passed by the legislative or executive powers or by a local government is in conflict with the Constitution or a higher level law, he/she shall propose to the body which passed the legislation to bring the legislation into conformity with the applicable law. If the body which passed the legislation does not follow the Chancellor of Justice’s proposal, the latter can file an application to the Constitutional Review Chamber of the Supreme Court to declare the legislation invalid.
According to the Chancellor of Justice Act of 1999, the Chancellor of Justice also carries out the functions of an ombudsman. In this context, the Chancellor of Justice checks whether a government agency observes the fundamental rights and freedoms of individuals and good administrative practice. The Riigikogu (the Parliament) extended the functions of the Chancellor of Justice with the amendment to the Act which came into effect on 1 January 2004, which brought local governments, legal persons governed by public law and persons governed by private law who perform public duties under the control of the Chancellor of Justice. Anyone who feels that he has been treated unlawfully or unfairly – contrary to good administrative practice – has the right of recourse to the Chancellor of Justice. Upon receiving the respective petition, the Chancellor of Justice conducts a thorough and independent investigation, in the course of which s/he can gather information and documents related to the matter. At the end of the investigation, the Chancellor of Justice draws up a position paper, in which s/he can make recommendations to the offending agency for the elimination of the violation. Although such recommendations are not legally binding, the memoranda of the Chancellor of Justice are almost always observed.
The Chancellor of Justice also has the right to initiate proceedings if he/she regards it necessary in order to secure the protection of the rights of individuals or to guarantee the constitutional order.
The Chancellor of Justice also has the power to initiate disciplinary proceedings against a judge.
From January 2004 the field of competence of the Chancellor of Justice was extended, giving her/him the power to resolve discrimination disputes between private parties. Accordingly, anyone has the right of recourse to the Chancellor of Justice for conciliation proceedings if he or she finds that a private person has discriminated against him or her on the basis of sex, race, nationality (ethnic origin), colour, language, origin, religion or religious beliefs, political or other opinion, property of social status, age, disability, sexual orientation or other attributes specified by law. Conciliation proceedings are voluntary and confidential. Either party can terminate it at any time. However, the agreement approved by the Chancellor of Justice is binding for the parties of the proceedings.
The Chancellor of Justice Act also carries out the following activities to ensure the application of the principles of equality and equal treatment:
i. analyses the effect of the implementation of legislation on the general public;
ii. informs the Riigikogu (the Parliament), the Government of the Republic, governmental agencies, local government agencies and bodies, other interested persons and the public about the application of the principles of equality and equal treatment;
iii. makes proposals for the amendment of legislation to the Riigikogu, the Government of the Republic, governmental agencies, local government agencies, local government bodies and employers;
iv. promotes, in the interests of adherence to the principles of equality and equal treatment, the development of national and international co-operation between individuals, legal persons and agencies;
v. promotes, in co-operation with others, the principles of equality and equal treatment.
The Chancellor of Justice has also greatly welcomed co-operation with civil society in raising awareness about the principles of non-discrimination and equal treatment. For example, in 2004 a round table meeting with the representatives of different NGOs was organised. Representatives of women’s organisations, people with disabilities, the gay and lesbian union and national minorities participated in the meeting. The purpose of the meeting was to present the functions of the Chancellor of Justice, particularly that of conciliation in discrimination disputes, and to exchange information about the issues related to the application of the principle of non-discrimination in practice.
The Office of the Chancellor of Justice comprises three departments, whose competences are divided according to the policy areas of the different ministries. In addition, a general department carries out the administrative functions of the office. The questions concerning equal treatment and discrimination complaints can fall within the competences of any of the departments depending on the subject matter, but are mainly handled by the first (employment relations and gender equality) and third department (general anti-discrimination issues). The third department also deals with complaints related to the legal status of resident, because it also deals with all matters which according to law are the responsibility of the Ministry of Internal Affairs and its subordinate agencies.