Right to fair trial

Access to Justice

In principle, access to justice is guaranteed in Estonia. However, there are problems in specific aspects, such as the administration of state legal aid. Questions have been raised also in regard to the independence of the court.

The Constitution of the Republic of Estonia firmly guarantees the right to access justice and the subsequent rights:

• The right of effective access to a dispute resolution body,
• The right to fair proceedings,
• The right to timely resolution of disputes,
• The right to adequate redress,
• The right to effective remedy.

These rights are for the most part provided for by law or otherwise upheld by interpretations of the Supreme Court of Estonia. This is not to say that there are no problems or that each of these elements is always efficiently provided for in practice. There is undoubtedly still a need for the Estonian court system and relevant law to be further refined in order to ensure the consistent and effective protection of all the aforementioned rights in relation to access to administration of justice.

Upon close review of cases and subsequent issues that have arisen in this area some of the apparent problem areas include: the length of court proceedings, the influence held by the Ministry of Justice over the courts or otherwise a lack of impartiality, questionable quality of legal aid available to those who do not have sufficient financial needs to obtain such assistance for themselves. Each of these issues shall be considered in detail in following sections of this report.

The right of effective access to a dispute resolution body

As previously mentioned the right of effective access to a dispute resolution body is enshrined in the Constitution and consequently may be relied upon by individuals in national courts. There are extensive limitations as to which claims, by whom and under which circumstances they may be filed. Such restrictions are similar to those which are widely practised in national legal systems worldwide and recognised by institutions such as the European Court of Justice and the European Court of Human Rights (ECtHR).

The locus standi requirements in Estonian law are very strict and have, in practice, been interpreted by courts in a similar manner.^[1]Namely, the parties other than the individual whose rights or freedoms have been violated are left with a narrow window for turning to court. Claims may be raised by other parties solely in specified cases prescribed by law (for example: a parent can file a claim on behalf of his child, the administrator of the property of a missing person can file a claim concerning the property on behalf of that missing person, an apartment co-operative can file claims on behalf of their members).^[2]

The issue of a restrictive approach taken towards locus standi is a question of political choices and depends on the structure of legal system, but it is still a matter that needs to be analysed. It is capable of serving as a barrier to access to justice and in certain cases an unjust one. One manner in which this situation could be improved would be to develop a test of conditions by which the need for allowing locus standi would be determined rather than prescribing a closed list of possibilities by law and disallowing any other possibilities. This would make the barrier less definitive and allow flexibility in regard to new situations and cases.

Another aspect that ought to be mentioned is that of the special burden of proof in discrimination cases.^[3] A unique burden of proof that is applicable solely to discrimination claims, it stipulates that if a complaint is made then it is upon the respondent party to prove that the accusation is not founded. Since the enforcement of the Equal Treatment Act, no such claims have been raised and therefore its practicality is yet to be tested.

Right to participate in legal proceedings

This aspect of access to administration of justice is guaranteed by the Constitution and is not highly restrictive or overly limited. The right to direct inspection of evidence and the standards by which this is ensured in Estonia was brought before the ECtHR in the case of Taal v Estonia. This case arose due to the fact that “neither the applicant nor his representative were enabled to question any of the witnesses at any stage of the proceedings and that none of the witnesses were ever examined by the courts.”^[4] Here the violation lay in the fact that not enough effort had been asserted by the court to ensure that the witnesses were summoned to court. In light of this judgment the courts have had to reconsider the lengths that they go to in order to ensure the receipt of summons and other court documents, as they are in fact bound not only by the court decision but also by the Estonian Constitution to achieve “maximum possible level of certainty.”^[5]

State legal aid

Provision of support from the state to parties who have insufficient financial means in a legal dispute is intertwined with the principle of equality of arms as the lack of funds may affect a party’s ability to obtain legal representation and cover legal costs entailed by proceedings. Paragraph 12 of the Constitution provides for the equality of all individuals or parties before the law, this is further supported by §7 of the Code of Civil Procedure which stipulates that “the parties and other persons are equal before the law and the court.”

There are two separate and in principle unrelated financial issues in relation to court proceedings. The first are the court fees which are dependant upon the actual worth of the case or the amount being sought through the claim. Essentially the claimant will not reach court at all until the relevant costs have been covered. This is a considerable burden which may act as a barrier to access to administration of justice, especially since in certain cases the claimant may eventually be required to cover the respondent’s legal costs as well. For this reason there is a possibility for the court to alleviate from payment of these costs in part or in whole, though the cases in which they may do so are very limited.

The second financial issue is that of payment for legal representation and this issue is potentially far more controversial. There are two factors to be taken into account: first, when the state should provide legal representation and, second, how effective the representation is in fact if provided.

Access to free legal representation is far from an absolute right under Estonian law, the provision of it is subject to extensive conditions regarding both the individual requiring it and the case at hand. Initially, it must be established that the person may not represent himself. This is determined by looking at the complexity of the case and whether the person is obliged to have legal representation by law due to the nature of the case these are just some of the conditions and restrictions.^[6]

Individuals may apply for legal services at the expense of the state under the State Legal Aid Act (SLAA).[7] It is however only given in very limited situations, and the process of application for it and consequential revision of applications has proven to be very time consuming. In accordance with this act only sworn advocates can provide such services.

This requirement can be problematic from two points of view. First, as the amount of sworn advocates is quite limited in certain parts of Estonia, meaning that if the client is not happy with the advocate himself or the services that he provides the only option may be to search for such assistance in another region. This outcome is logistically unpractical and may also lead to further financial burdens upon the individual making the possibility to switch advocates under the SLAA rather ineffective in certain cases.

Secondly, the provision of state legal aid is voluntary for advocates, this combined with the fact that the fees charged for provision of services under the SLAA are set by the Ministry of Justice and are considerably lower than those that would be usually be charged, makes taking these cases extremely unattractive for the majority of successful advocates. This has created a situation where state legal aid is most likely to be provided by incompetent sworn advocates who are not able to find other clients.

The Chancellor of Justice has also come across a problematic instance where the appointment of state legal aid was effected too late.^[8]

The Right to Timely Resolution of Disputes

Due to the organization of the court system and a large influx of cases there are still sometimes unacceptable delays in court proceedings, as noted by the Chancellor of Justice.^[9] The efficiency must improve, but this requires significant resources and as such is a long term goal to be achieved through the reform of the system.

Independence of the Judicial Body

There are three aspects to the independence of the judicial body: the independence of the courts, the independence of the judges and impartiality to the case at hand itself. Each of these aspects is equally important and interdependent in assuring maximum level of impartiality. The independence of the courts is ensured by §146 of the Constitution. However, there have been concerns raised as to the influence of the Ministry of Justice over the courts of first and second instance in administrative and budgetary matters, which could be used to achieve favourable decisions.

As to judges the primary issue is one that is the root of many problems in the Estonian legal system and that is the tightness of the legal community. For a long time there was only one university in Estonia that provided a higher education in law, which is the reason why the law community is concentrated. Therefore the issue of impartiality must be supervised profusely. A case related to this matter is Dorozhko and Pozharskiy v Estonia.^[10] In this case a violation of article 6(1) of the ECHR was found due to the fact that the judge’s husband had been the head of an investigating team involved in pre-trial work. It was held that it is very possible that the judge knew of her husband’s involvement in the case and, although she may not have let this cloud her judgment, the appearance of such a possibility makes these circumstances unacceptable.^[11] This case demonstrates the need for increased control and supervision to ensure that independence is guaranteed.

The issue of impartiality of judges has been raised also due to several scandals over the bribing of judges. On the one hand, it is commendable that such cases have been discovered and the offenders have been apprehended, but on the other hand, such scandals cause the public to question the trustworthiness of justice in Estonia. Since there are a number of these incidents, further analysis is needed on the motives for accepting the bribe and the possibilities available for prevention both through legal education as well as the appointment of judges.

Conclusions and Recommendations

Generally, access to justice is ensured in Estonia; though there is still room for improvement in guaranteeing this right. One way to improve the situation of right to appeal is to work out conditions, that judges would be able to rely on depending on specific circumstances, instead of a closed list prescribed by law.

In order to ensure better access to justice in areas, where there are fewer sworn advocates, application of certain measures should be considered (for example, increasing the compensatory allowances for state legal aid outside larger municipal centres). Further, with regard to promotion of diversity in Estonian legal community, a more proportional distribution of state-commissioned education between different academic institutions that teach law could be considered, as well as founding measures to support education in foreign states.