Top court finds EDF members’ complaints must be processed

Supreme Court Constitutional Review Chamber chairman Ivo Pilving. Photo: Remo Tõnismäe

A Supreme Court order from Thursday suggests Estonian courts have been too quick to dismiss vaccination requirement complaints. The top court finds that challenges of the Estonian Defense Forces (EDF) vaccination obligation need to be processed.

A number of EDF members looking at termination over refusal to be vaccinated against the coronavirus turned to court to seek the revocation of EDF commander Lt. Gen. Martin Herem’s order and preliminary legal protection in early November. The courts dismissed these complaints and the people were fired from the armed forces.

However, after receiving the complaints, the Supreme Court Constitutional Review Chamber found that the courts have erred.

“These are serious matters: life, health and above all bodily integrity. A state based on the rule of law cannot have its courts close their doors until people are fired,” chamber chairman Ivo Pilving explained. The Supreme Court found that while the EDF's vaccination requirement includes no major constitutional conflicts, courts need to process the details of complaints. Pilving emphasized that it is important for such vaccination requirements to be pre-emptively challengeable.

That said, the Supreme Court finds the armed forces’ vaccination requirement to be justified and sees no reason for Herem to lift his order. “No vaccine is perfect or able to prevent infection in 100 percent of cases. However, the Supreme Court has enough evidence to hold that Covid vaccines help prevent infection to a certain degree,” Pilving emphasized. He also said that suggestions according to which vaccination is degrading or constitutes human testing have no merit.

Pilving also touched on the state’s other corresponding regulations and especially the aspect of universality. “The government’s general orders – used to lay down coronavirus certificate requirements – need to expire somewhere. A general order’s legal effect needs to be limited. It cannot be as universal as a law. There is a line somewhere regarding the use of the instrument, which is where criticism from the complainants is warranted to some extent,” the Constitutional Review Chamber chair said.

Jaanika Reilik-Bakhoff from law firm Pallo ja Partnerid that is representing the former EDF members said that the decision to turn to the Supreme Court sought a precedent. “We got what we wanted. Our goal was to learn the Supreme Court’s position,” the lawyer said. “The train has left the station for terminated EDF members, while it serves as an important milestone for employees and officials who could be looking at the same fate. “They can turn to court and apply for preliminary legal protection,” she reiterated the top court’s message. Reilik-Bakhoff also described as significant the fact that the Supreme Court finds such complaints need to be processed.