Right to a fair trial

Epp Lumiste

The fundamental right stated in article 6 of Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerns both access to court as well as hearing within a reasonable time. Access to court is to be understood as costliness for starting court proceedings – if the state fee is too high the person may not turn to protect his or her rights.[1] These topics received most attention in 2011.

Political and institutional developments

2011 was a memorable year for various discussions concerning the size of state fees. The Supreme Court as well as the Chancellor of Justice spoke out on this topic. In 2011 the Chancellor of Justice presented seven opinions to the Supreme Court, finding in six of them that the size of state fees and/or the limitation to aid for court proceedings are in contradiction of the Constitution.[2]

On September 27^th, 2011 Indrek Teder, the Chancellor of Justice assumed the position that the high level of state fees was a hindrance to access to justice in Estonia.[3] The thought that most of the state fees cited in the Appendix 1 of the State Fee Act are in contradiction of the Constitution was prevalent.[4] In the Chancellor of Justice’s opinion the state fee should pose a limit to access to justice in order to limit malevolent court cases, but it should not pose a hindrance to access to court. The Chancellor of Justice found that it is impermissible for a state based on the rule of law to stop carrying out checks on lawfulness of the activity of the state or from seeking protection for one’s breached rights solely because of the excessive size of the state fees.[5]

The Minister of Justice has expressed contradictory views on this topic. He pointed out in his report presented before Court en banc that the state fees in Estonia are based on the cost principle.[6] And yet he conceded that the state fees in Estonia are among one of the highest in the European Union. But based on the viewpoints expressed in section 17 of the Supreme Court judgment no. 3-2-1-62-10 the Minister of Justice finds that the state fee rates do not contradict the Constitution.[7] In addition, the Minister of Justice promised to initiate an amendment in the near future to reduce the state fees.[8] The draft act made it into the Parliament on 15 March 2012.[9]

Legislative developments

A long term problem in Estonia has proved to be the unreasonably lengthy court proceedings. Several amendments to acts of law were adopted in 2011 to combat this problem.

The new Code of Administrative Court Procedure (HKMS)[10] was passed on 27 January 2011 and came into force on 1 January 2012. The Minister of Justice has referred to several measures in the HKMS which should significantly shorten the length of proceedings. An example of this is shortening of time-limits of procurement proceedings by three times – to 45 days.[11]

Yet other provisions of HKMS allow the administrative matters to drag. § 173 of the HKMS states that the decision may be made public later than 30 days after the last session or in written proceedings after the passing of the date for presenting claims and documents only for a good reason. The HKMS that was in force until the end of 2011 stated that the decision had to be made public within 20 days after the session.[12] The new HKMS extends the period for making the decision public by 10 days, but sets the limitation that the longer period must be justified by a good reason.

As a new measure, there is the option for requesting a speedier proceeding should the administrative proceedings stall. § 100 of the HKMS states that if the administrative case has been in proceedings for more than 9 months the court may be filed an application. The important aspect about this provision is that the delay in court’s work must have come about without a good reason and if the court finds the application to be justified the court has 30 days to apply the applicable measure from receiving the application.

The act amending the Code of Criminal Procedure and the Code of Civil Procedure came into force on 1 September 2011, which prescribed the speeding up court proceedings in criminal and civil matters if the criminal case had been in proceedings for more than 9 months.[13] The prerequisite is that the court hasn’t made the necessary procedural act within 9 months.

The Language Act came into force on 1 July 2011.[14] According to the Language Act the language of public administration in state agencies and local government authorities is Estonian.[15] All the aforementioned acts state that the language of the court is Estonian. Such provision may somewhat limit the access to court of persons speaking other languages. Language Act § 9(1) has stated that in local governments where at least half of the permanent residents belong to a national minority everyone has the right to approach state agencies operating in the territory of the corresponding local government and the corresponding local government authorities and receive from the agencies and the officials and employees thereof the responses in the language of the national minority beside responses in Estonian.

Court practice

The Supreme Court made a founding decision on state fees made in court proceedings on 12 April 2011. The Supreme Court found that state fees’ possible purpose of making extra revenue for the state and financing other expenses of the state, if the fee is greater than is needed to cover the costs of parties of the proceeding, cannot be legitimate.[16] The reasonability of the state fee must be assessed in the light of each single case.[17] The Supreme Court found that in this particular case the state fee was not in accordance with the Constitution.

Two days later the Constitutional Review Chamber of the Supreme Court discussed the question of state fees again. The Supreme Court judgment no. 3-4-1-1-11 in its paragraph 11 also referred to the opinion of the Constitutional Review Chamber of the Supreme Court, that the state fee payable in two court instances may be disproportional. The Supreme Court decided that State Fees Act § 56 subsections 1 and 19 and the last sentence of Appendix 1 in conjunction are in contradiction of the Constitution and is not to be applied in civil cases in value of over 10,000,000 kroons where the state fee is to be 3% of the value of the civil action, but no more than 1,500,000 kroons.

By the end of 2011 several provisions of the State Fees Act had been declared void, as the Supreme Court found that they were in contradiction of the Constitution.[18]

The European Court of Human Rights (ECtHR) made a decision about Estonia in two cases regarding Article 6. Raudsepp v. Estonia[19] deals with the length of proceedings in Estonia, which was an active topic in 2011. Even though this case had been in proceedings on the national level for six years the ECtHR found that there had been no breach of Article 6. The proceedings were more complicated than usually and had to do with essential political and legal questions (to do with property reform and its subjects who had allegedly left Estonia in 1941 based on contracts with the German state), which is why the decision took longer than usual to reach. The ECtHR also found that the appellant contributed to delays in proceedings to a certain extent. The ECtHR emphasised that the concept of reasonable time must be interpreted according to circumstances of the specific case.[20] The ECtHR also discovered a breach of Article 13 (right to effective legal remedy). Even though the Government of Republic of Estonia referred to the fact that the acts speeding up court proceedings are currently being prepared the ECtHR found that the applicant did not have access to a legal remedy that would have guaranteed court proceedings within a reasonable time.[21]

The ECtHR found in the case Andrejev v. Estonia that Article 6(1) had been breached as the applicant did not have access to the Supreme Court. The applicant had been afforded a defence lawyer as a state aid. The case no. 48132/07 dealt with state aid defence lawyer’s unsatisfactory performance of duties, since the counsel had not filed the appeal in cassation in time. The ECtHR assumed the position that it had been a breach of Article 6 and the person did not have access to court.[22] The ECtHR afforded the plaintiff 1000 euros as non-patrimonial damage.

Statistics and surveys

European Commission for the Efficiency of Justice published a survey on the lengths of proceedings in courts of appeal and the Supreme Courts in member states of the Council of Europe in 2011.[23] The survey was based on data from 2008 and 2010 but was published in 2011. It is possible to conclude based on the data from the survey that the lengths of proceedings in Estonia are medium in comparison to other member states of Council of Europe.

The Supreme Court prepared a survey on reasonable length of proceedings in civil cases.[24] The survey points out various ECtHR cases about this matter. The primary cause for delays in proceedings, according to the survey, have to do with delivering of court documents.[25] The state is advised to make a decision as to which measures best suit for meeting deadlines for proceedings and made well aware of the fact that an ineffective system will result in responsibility for the state. The survey also advises to set the goal of meeting the reasonable time acknowledged by the ECtHR, which is two years.[26]

On 9 May 2011 the Supreme Court’s legal knowledge department’s analysis on state fees was published.[27] It appears that the number of court cases concerning state fees increased in the beginning of 2011 and by the time the survey was published several provisions of the State Fees Act and the Code of Civil Procedure had been declared void.[28] The survey also stated state fees in some of the other states: for example, in Finland the state fee in a civil case is usually 72–156 euros, Sweden has a fixed rate of about 40–48 euros, Ireland 9–200 euros.[29] The survey emphasises the need to review state fees in Estonia to make them comply with the medium level in Europe.^[30]

State fees in Estonia in 2008 and 2011

Value of the action in kroons up to (including)	State fee in 2008 In kroons (euros)	State fee in 2011
5000	250 (16 euros)	63.91 euros
6000	350 (22.37 euros)	76.69 euros
7000	450 (28.76 euros)	89.47 euros
8000	550 (35.15 euros)	102.25 euros
11,000,000	167,750 (10,721.18 euros)	3% of the value of civil action
11,250,000	170,250 (10,880.96 euros)	3% of the value of civil action
11,500,000	172,750 (11,040.74 euros)	3% of the value of civil action
More than 11,500,000	1,5% but not more than 750,000 kroons (47,934 euros)	3% of the value of civil action, but not more than 95,867.47 euros.

Source: Appendix 1 of State Fees Act, the euros have been calculated to exchange rate 15.6466.

A brief analysis of the table of state fees reveals that the price of smaller cases has increased several times. If the state fee for a 5000 kroon (319.55 euro) case was 5% (250/5000´100) in 2008, the state fee in 2011 is 20% (63.91/319.55´100) of the cost of the case. Such rates of state fees may prove to be a hindrance to turning to court in cases of smaller value.

Essential public discussions

The best and worst act of law was chosen in 2011. The Estonian Lawyers Association nominated the act amending state fees as the worst law, reasoning its decision by the fact that the amendments took several persons’ the right to defend their rights in a court of law and thereby realisation of a fundamental right, a right to court protection was hindered.[31]

Trends

The topic of state fees has gained a remarkable amount of attention in the recent years. The July press release of the Ministry of Justice mentioned that a new draft act had been prepared, which intended to reduce state fees.[32] On 15 March 2012 the draft act was finally sent to the Parliament.
2012 will be dedicated to processing this draft act.

The public has afforded much less attention to proceedings’ deadlines and the rights of non-citizens to acquaint themselves with legal acts and also to their opportunities for accessing justice.

Recommendations

• The state has to pay attention to excessively lengthy court proceedings.
• The legislator has to make a decision about state fees. The situation with provisions that have been declared to be in breach of the Constitution by the Supreme Court that limit persons’ access to courts is not in accordance with the European Convention on Human Rights.