The Proceedings of the Chancellor of Justice (Part Two)

The Proceedings of the Chancellor of Justice
In enforcing the functions of the ombudsman and reviewing constitutionality, in addition to solving citizens’ applications, the Chancellor of Justice has the right to launch proceedings on his or her own initiative when he finds it necessary to protect an individual’s rights or to maintain constitutional order.

​The Chancellor of Justice informs the applicant of the process regarding the application, specifying the procedures he or she has already undertaken to deal with the application, or is planning to undertake.

​The procedures of the Chancellor of Justice are characterized by freedom of form and purposefulness. The Chancellor of Justice chooses the form and other details of the procedure based on purposefulness, austerity and speed, avoiding extra expenses and complications to individuals. The principle of freedom of form applies when a law isn't directly enacted, if and how a decision is made to carry on with a procedure.

In proceeding on an application, the Chancellor of Justice acts in an investigative manner. In other words, he or she figures out the important facts of the case. The Chancellor of Justice orders an effective and unbiased investigation, during which he has the right to collect information and documents related to the case, the main methods of proceeding being asking for data and receiving explanations or statements. When necessary, the Chancellor of Justice can use other methods, such as asking the opinion of an expert.​

​When the Chancellor of Justice finds that a legislative act conflicts with the constitution or a particular law, he or she can suggest that the chief sponsor of the act make it lawful, giving twenty days to do so. If the sponsor doesn’t accept the suggestion, the Chancellor of Justice can turn to the Constitutional Review Chamber of the Supreme Court and apply for invalidation of the act. The decision of the Supreme Court is final.

​In more than ten years of activity, the Chancellor of Justice has made over 400 suggestions to bring legislative acts into accordance with the constitution. In most cases the suggestions have been accepted. So far, the Chancellor of Justice has turned to the Supreme Court 21 times; 16 times this has been successful. For instance, in 2004 the Chancellor of Justice presented three applications to the Supreme Court. Two of them were concerned with organizing parking when it came to transit transportation. The government of Narva was charging illegal parking fees for drivers crossing the state border. The Chancellor of Justice asked the Supreme Court to end this procedure and the government of Narva finally removed the unconstitutional provisions of specific decrees and ended the unlawful activities. The Chancellor of Justice also submitted an application to examine the constitutionality of banning election unions. Through the verdict of the Supreme Court, the unconstitutional provisions that banned election unions were declared invalid.

​The process of the Chancellor of Justice as the ombudsman ends with an expression of opinion, where a judgment is presented as to whether a reviewing establishment has acted lawfully and in accordance with the right to good administration. The Chancellor of Justice may criticize, offer suggestions and express his or her opinion in other ways, as well as suggest canceling a violation and changing an administrative practice, the interpretation of norms or the norms themselves. Changing a norm occurs when it turns out during a procedure that the injustice of a case is not a problem of applying the law, but of the law itself. The viewpoint of the Chancellor of Justice is presented to the applicant and the establishment in written form. Although the suggestions are not legally binding, the proposals given in an amicus curiae brief by the Chancellor of Justice are almost always taken into account. The standpoint is definitive and one cannot challenge it in court. When a recommendation is not followed, the Chancellor of Justice can make a presentation to the organ that reviews the establishment, to the government of the Republic or to the Riigikogu, as well as informing the public.

​In the case of a dispute over discrimination between private individuals, the Chancellor of Justice can carry out a mediation procedure, with a different form and different actions than stated above.

​When the Chancellor of Justice carries out a mediation procedure between private individuals, he forwards a copy of the application to the person who is accused of discrimination, and sets a deadline for a written answer. If the complainant agrees with the defendant’s proposed solution to the case, and the rights of both sides are justly balanced, the Chancellor of Justice ends the procedure. If the dispute continues, a meeting is held with the participation of both sides or their representatives. If the complainant and the defendant agree with the suggestion by the Chancellor of Justice, he or she secures an agreement that the sides are obliged to follow. Canceling the mediation process (with the agreement of both sides) and not arriving at an agreement gives the complainant the right to protect his or her rights in court or in a pre-court proceeding.

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