The principle of free elections is established in the first sentence of § 156(1) of the Constitution, pursuant to which a local government council is elected in free elections. The secrecy of voting as a sub-principle of freedom of elections is a prerequisite of free elections. Pursuant to the principle of free elections both the participation in elections as well as the choice to be made are voluntary. In addition to the obligation that the state refrain from interfering with the freedom of choice of persons, the principle gives also rise to the obligation of the state to guarantee the protection of voters against the persons who try to influence the voter's choices. Pursuant to this principle the state must create necessary conditions for conducting free voting and protect voters from such influences that prevent the voter to give or not to give his or her vote in the manner he or she wishes. 28. The most effective way to guarantee the freedom of the voters from any external influences is to allow for voting only in polling divisions and in voting booths, where a voter enters alone. It is clear that in the case of electronic voting in an uncontrolled medium, that is via Internet outside a polling division, it is more difficult for the state to guarantee that voting is free of external influence and secret. 29. In accordance with § 162 of Penal Code (violation of freedom of election or voting), preventing a person to freely exercise his or her right to elect or be elected at an election or to vote at a referendum, if such prevention involves violence, deceit or threat or takes advantage of a service, economic or other dependent relationship of the person with the offender is punishable by a pecuniary punishment or up to one year of imprisonment. 30. The voter's possibility to change the vote given by electronic means, during the advance polls, constitutes an essential supplementary guarantee to the observance of the principle of free elections and secret voting upon voting by electronic means. A voter who has been illegally influenced or watched in the course of electronic voting can restore his or her freedom of election and the secrecy of voting by voting again either electronically or by a ballot paper, after having been freed from the influences. In addition to the possibility of subsequently rectifying the vote given under influence, the possibility of voting again serves an important preventive function. When the law guarantees a voter, voting electronically, to change the vote given by electronic means, the motivation to influence him or her illegally decreases. There are no other equally effective measures, besides the possibility to change the vote given by electronic means, to guarantee the freedom of election and secrecy of voting upon electronic voting in an uncontrolled medium. The penal law sanctions do have their preventive meaning but subsequent punishment - differently from the possibility of changing one's electronic vote - does not help to eliminate a violation of the freedom of election and secrecy of voting. 31. The Chamber is of the opinion that there is no reason to presume that the possibility to vote again either electronically or by a ballot paper will be used on a wide scale for changing given votes for any other reason than for eliminating of possible violations of freedom of election and secrecy of voting. 32. The Chamber is of the opinion that the infringement of the right to equality and of uniformity, which the possibility of electronic voters to change their votes for unlimited number of times can be regarded as amounting to, is not sufficiently intensive to overweigh the aim of increasing the participation in elections and introducing new technological solutions. The Chamber is of the opinion that the possibility to change one's electronic vote is necessary for guaranteeing the freedom of elections and secrecy of voting upon electronic voting. The Chamber is of the opinion that upon passing the contested regulation the legislator, having weighed different principles and the values underlying these, has appropriately balanced all electoral principles arising from the Constitution. Märt Rask, Tõnu Anton, Eerik Kergandberg, Lea Kivi, Ants Kull Source URL: https://www.riigikohus.ee/en/constitutional-judgment-3-4-1-13-05#comment-0 Links