3 - Chapter

Right to a fair trial

Author: Private: Kari Käsper

Political and institutional developments

There haven’t been any great political or institutional developments in the field of administration of justice in the observable period. The courts operate independently, as does the Chancellor of Justice or other state authorities protecting persons’ rights. The small funding of the Gender Equality and Equal treatment Commissioner relative to her tasks, and independence of the Data Protection Inspectorate continue to be problematic. There will presumably be developments with regards to the inspectorate due to its reorganisation because of the European Union data protection reform coming into effect in May of 2018, which will provide the Inspectorate with a new legal basis and also require institutional changes.

There has been reorganisation in free legal counselling. The reform of the so-called free legal counselling for the least privileged, where the Ministry of Justice reorganised providing free service of legal counselling,[1] has caused major confusion. The budget for legal counselling was increased to 750,000 euros a year and the number of possible persons who can receive counselling was increased to half a million people (or to anyone earning up to 1.5 times the average wage), but on limited conditions.[2] At the same time, the quality of work and capability of Eesti Õigusbüroo OÜ which started providing the service as of April of 2017 according to the public procurement, has been criticised.[3]

Separate procurements were organised for legal counselling for disabled persons, which is provided by the Estonian Chamber of Disabled People. The Estonian Association of Pensioners’ Societies offers free legal counselling to the elderly, and the NGO Tallinn Women’s Crisis Centre to the victims of domestic violence. The Ministry of Justice also wanted to provide legal counselling to the repressed, but the competition to find the provider failed.[4] There is no separate legal counselling for the rest of the vulnerable groups, except counselling provided by the Gender Equality and Equal Treatment Commissioner in limited spheres and volumes in case of discrimination. The funding for women’s shelters was reorganised as of beginning of 2017, which is why the legal counselling of victims is not included in the service in the earlier extent.

In the sphere of migration the state organises counselling for asylum seekers at Harku Detention Centre and Vao Accommodation Centre for Asylum Seekers. In March of 2017 the Police and Border Guard Board’s migration advisors also started work, offering assistance in questions regarding migration.[5] The Estonian Human Rights Centre provided legal counselling and legal aid in a limited amount in cooperation with the UN High Commissioner for Refugees.[6]

Despite the increased resources the accessibility as well as quality of service of free legal counselling are problematic. There are no clear and widely accepted standards of quality to legal counselling: one option worth considering is to require that persons providing state funded legal counselling belong to the Bar Association, or possess the professional qualification provided by Estonian Lawyers Association.[7]

Statistics and surveys

Estonia is still among the top progressive states in the European Commission’s 2017 EU Justice Scoreboard,[8] compared to other EU Member States. The only problem is that fees in civil matters are relatively high. We are also one of the smallest spenders on court proceedings of the EU Member States, which can be taken as positive or a negative, depending on the view. The scoreboard also shows that as of 2015 there were many women among the judges in Estonia: 70% in courts of first instance, 55% in courts of appeal, just the highest court has considerably fewer women than men.

There has been regression in perceived independence of courts in comparison of data from 2016 to 2017 referred to on scoreboard based on data from Eurobarometer: in general, as well as among entrepreneurs, there are now more people who don’t know whether the judicial power is independent or dependent. Since there have been no changes regarding independence of the courts on legal level, this may be a sign of danger and its causes need closer inspection.

Estonian judges themselves, according to the European Network of Councils for the Judiciary report,[9] did not sense being influenced directly in their work. However, nearly third of the questioned judges worried about the excessive effects of the media on administration of justice, and a considerable portion of judges also sensed that the government and the Riigikogu do not respect their independence (27% and 20% respectively).

The Yearbook of Estonian Courts[10] is not in itself a survey, yet it contains several important interpretations of questions related to administration of justice, for example, the constitutional review. The yearbook also contains statistics on courts.

The European Union Agency for Fundamental Rights published two more specific surveys in the period, which also had to do with administration of justice in Estonia: one had to do with application of EU law regarding movement of persons sentenced or awaiting trial[11] and the other with the right to interpretation and information in criminal proceedings.[12] The latter survey reveals quite a few worrying aspects. The interpreters used in criminal proceedings are not trained in issues of criminal proceedings, neither is there a recognized database of interpreters establishing who to use. There is no quality control or mechanisms guaranteeing interpreters’ independence. Neither are possible various special needs taken into consideration when providing interpretation, including in case of people and children with physical or mental disabilities.

Court practice

There was a total of four cases related to Article 6 of the European Convention on Human Rights at the European Court of Human Rights in the period starting from the end of 2016 until the end of November of 2017 – in two of which the Court detected a not very serious breach of the Convention.

In the case Kashlev v. Estonia[13] the appellant Janek Kashlev complained that his rights had been breached as the criminal proceedings against him, wherein he had been acquitted in the court of first instance and found guilty in the court of appeal, the circuit court passed the judgment of conviction solely on the materials of the file without hearing the witnesses. He also complained that he did not have the opportunity to appeal the judgment of conviction. The European Court of Human Rights found no breach of the convention: in the court’s opinion there were sufficient guarantees for the protection of appellant’s rights, and even though the Supreme Court refused to accept the claim it had assessed the judgment of the circuit court before deciding that.

In the decision Lähteenmäki v. Estonia[14] the appellant found that Estonia had breached the convention, because the civil courts discussing his claim for compensation against an insurance company had found him to be at fault, even though the preceding criminal proceedings had been terminated for lack of public interest in proceedings. The European Court of Human Rights did not find a breach of principle of presumption of innocence.

The decision Pönkä v. Estonia[15] had to do with a discussion regarding cancelling a court session in civil proceedings over a small sum of money (below 2000 euros). The court found that Estonia had breached the convention, because the county court had not given a reason why it had opted for written proceedings and refused to hold a session despite the applicant’s intent to hear the witnesses. The state of Estonia was ordered to pay 1000 euros compensation for non-pecuniary damages and 2300 euros to cover the costs at the European Court of Human Rights.

In the decision Leuska v. Estonia[16] four persons who had been injured in a car crash found that they had no access to court regarding the requirement of procedure expenses and they also had not been guaranteed the right to take part in the hearing. The appellants had concluded a compromise contract outside of court with the person who had caused the accident, where they had waived the right to file civil action claims. At the same time the compromise did not include the procedure expenses made in criminal proceedings, which is why they wished to claim it separately, but had no opportunity to do so in the Estonian court system. This was enough for the European Court of Human Rights to detect a breach of the Convention. However, what concerned their right to take part in hearing, the Court did not find a breach as in the compromise contract they had waived further rights of proceedings. In conclusion the state had to pay each appellant 1500 euros in non-pecuniary damages.

Noteworthy public discussions and trends

The leader of the extreme right-wing Conservative People’s Party of Estonia Riigikogu faction and the member of the board Mart Helme unprecedentedly attacked the independence of the judicial power and specific judges in his speech in front of the Riigikogu on March 20th, 2017, because he was not pleased with a judicial decision of Tallinn Circuit Court. Helme said at the beginning of his speech:

“Honourable deputy speaker! Honourable minister! Good colleagues! I want a threat to sound from this rostrum. I want the heads of judges’ Virgo Saarmets, Maret Altnurm and Kaire Pikamäe to roll. I do not want us to have judges who instead of explaining the law create law – who by attacking the principle of separation of powers undermine Estonia’s public order, who attack values so clearly contradictory to public opinion. I do not want judges like that. I do not want judges who break the law and then dream up some acts of law not in force to justify their offence.”[17]

Helme’s statements were condemned as unsuitable for a democratic state based on the rule of law among others by the President of Republic of Estonia Kersti Kaljulaid, President of the Riigikogu Priit Pikamäe, the former President of the Riigikogu Märt Rask and the Minister of Justice Urmas Reinsalu.[18]

Estonian Association of Judges said in its statement that: “it considers personal attacks against judges by a Member of the Parliament unacceptable. It damages the principle of separation and balance of powers and the authority of judicial power…the demands sounded from the rostrum of the Parliament to prosecute judges for fulfilling their duties in administering justice according to their conscience and in concordance with the Constitution of the Republic of Estonia and acts of law are dangerous.”[19]

Administration of justice was in greater focus in the period also regarding the criminal proceedings initiated against the writer Kaur Kender. Even though Kender was acquitted in county court as well as in circuit court (and the prosecutor did not appeal to the Supreme Court), the proceedings did bring up lots of questions associated with declaring closed sittings in the proceedings and the procedural tools used by the prosecutor (such as mental health expert analysis and the need for it).[20]

Bringing the court and prosecutor’s office together into the same new building that is being built in Tallinn also created controversy. In the appraisal of the advocate Leon Glikman the situation where judges and prosecutors interact closely in the same building outside of court may breach the rights of the suspects. Glikman pointed out the fact that: “we convict ca 99 per cent of the accused and the convictions of the prosecutors are prevalent in judicial decisions.” [21] Jaan Ginter, the professor of criminology at University of Tartu also agreed that such development might crumble the impression of an independent judiciary.[22]

Recommendations

  • Establish quality requirements for state funded legal counselling and analyse the created system’s coverage and effect;
  • Abstain from attacking independence of judges by media as well as politicians, and emphasize the importance of an independent judicial power
  • Pay more attention to the quality of interpretation and interpreters in court proceedings.

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[1] Legal counselling should not be confused with legal aid, which is still being provided via the Bar Association.

[2] See more at http://www.juristaitab.ee and https://www.just.ee/et/uudised/riik-hakkab-tasuta-oigusabi-noustamise-teenust-pakkuma-poolele-miljonile-eesti-elanikule

[3] Se Eylandt, Otti. „Riigi õigusnõustamise konkursi võitnud firmal on endiselt lubatust poole vähem juriste.“ [The company that worn the state legal counselling public procurement still has half as many lawyers as promised] Eesti Päevaleht. 7 July 2017. Available at: http://epl.delfi.ee/news/eesti/riigi-oigusnoustamise-konkursi-voitnud-firmal-on-endiselt-lubatust-poole-vahem-juriste?id=78802760 and Vallikivi, Hannes „Advokatuuri esimees: ministeerium, pinguta pressikonverentside korraldamise kõrval õigusnõustamise kvaliteedi nimel“ [The Chairman of the Bar Association: ministry, try harder for guaranteeing quality of legal counselling besides organising press conferences]. Eesti Päevaleht. 7 July 2017. Available at: http://epl.delfi.ee/news/arvamus/advokatuuri-esimees-ministeerium-pinguta-pressikonverentside-korraldamise-korval-oigusnoustamise-kvaliteedi-nimel?id=78807526

[4] Minister’s directive „Erivajadustega isikute (eakad, represseeritud, perevägivalla ohvrid) õigusnõustamise kättesaadavuse parandamise tagamiseks toetuse eraldamine.“ [Allocating aid for improving availability of legal counselling for persons with special needs (elderly persons, repressed persons, victims of domestic violence)]. 20 April 2017. Available at: https://www.just.ee/sites/www.just.ee/files/news-related-files/eakate_represseeritute_ja_perevagivalla_ohvrite_oigusnoustamise_konkursi_tulemuste_kaskkiri_28.04.2017.pdf

[5] See more at: https://www.politsei.ee/et/teenused/migratsiooninoustajad/

[6] See more at: https://humanrights.ee/teemad/pagulased/varjupaigataotlejate-noustamine/

[7] See more at: http://www.juristideliit.ee/info-ja-uritused/kutsestandard/

[8] Available at: http://ec.europa.eu/transparency/regdoc/rep/1/2017/ET/COM-2017-167-F1-ET-MAIN-PART-1.PDF

[9] See more at: https://www.encj.eu/images/stories/pdf/GA/Paris/encj_report_ia_2017_adopted_ga.pdf

[10] Available at: https://www.riigikohus.ee/sites/default/files/elfinder/õigusalased%20materjalid/Riigikohtu%20trükised/Kohtute_raamat_2016.pdf

[11] See more at: http://fra.europa.eu/en/country-data/2016/country-studies-project-rehabilitation-and-mutual-recognition-practice-concerning

[12] See more at: http://fra.europa.eu/en/country-data/2016/country-studies-project-right-interpretation-and-translation-and-right-information

[13] See summary in Estonian: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/12011

[14] See summary in Estonian: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/12284

[15] See Judgment of ECtHR: https://webcache.googleusercontent.com/search?q=cache:c_CiBbte-TcJ:https://hudoc.echr.coe.int/app/conversion/pdf%3Flibrary%3DECHR%26id%3D003-5539988-6976353%26filename%3DJudgments%2520of%252008.11.16.pdf+&cd=1&hl=en&ct=clnk&gl=ee

[16] See summary in Estonian: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/14397

[17] Shorthand notes of the Riigikogu. 20 March 2017. Available at: http://stenogrammid.riigikogu.ee/et/201703201500

[18] Hindre, Madis. „Pikamäe ja Kaljulaid peavad Helme ähvardust kohtunike suunas lubamatuks“ [Pikamäe and Kaljulaid consider Helme’s threat against judges unacceptable]. ERR Uudised, 23 March 2017. Available at: http://www.err.ee/585727/pikamae-ja-kaljulaid-peavad-helme-ahvardust-kohtunike-suunas-lubamatuks

[19] Press release of the Estonian Association of Judges. Available at: http://www.ekou.ee/teg-teated.html

[20] See more at: http://www.err.ee/572963/kender-peab-labima-vaimse-tervise-ekspertiisi

[21] ERR Uudised. „Õiguseksperdid: kohtunike ja prokuröride sama katuse alla viimine pole hea“[Legal experts: bringing judges and prosecutors under the same roof is not good]. 13 November 2017. Available at: http://www.err.ee/642311/oiguseksperdid-kohtunike-ja-prokuroride-sama-katuse-alla-viimine-pole-hea

[22] Ibid.


Author

  • Kari Käsper on Eesti Inimõiguste Keskuse juhataja ta õpetab Tallinna Tehnikaülikoolis Euroopa Liidu õigust ning õpib TTÜ avaliku halduse doktorantuuris. Samuti on ta Kodanikuühiskonna Sihtkapitali nõukogu liige. Ta juhtis TTÜs 2010–2015 ka võrdse kohtlemise edendamise projekte, mille osaks oli kampaania “eri- nevus rikastab”. Kari on olnud aastatel 2001–2008 seotud noor- teühendusega Tegusad Eesti Noored, olles üks selle rajajaid ning hiljem seda juhtinud. Samuti osales ta 1999–2008 Euroopa Noorteparlamendi tegevuses.

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