2 - chapter

Right to a fair trial

Author: Private: Kari Käsper

Key topics

  • Independence of the judiciary and the efficiency of the courts’ work remains high
  • Political attacks of the far right on independence of the judicial power continue.
  • In the future the non-issue of visa can be challenged in court.

Political and institutional developments

The coalition agreement.[1] of the Estonian Centre Party, the Estonian Conservative People’s Party of Estonia (EKRE) and Pro Patria that formed the government in the spring of 2019 confirmed the rule of law and the professional and independent administration of justice, even though EKRE had previously called for judges to be made electable and temporary and called for other changes to the justice system..[2] What is positive is the plan to expand free legal advice, access to legal aid and the plan to improve the quality. What is worrying is the naming of special prosecutors and the creation of a special parliamentary committee for the supervision of the prosecutor’s office, which could be used to politicise judicial proceedings.

At the end of September 2018, the term of office of the director general of the Data Protection Inspectorate ended. A new candidate who had been successful in a competition organised by the State Secretary for the appointment of a new director general, the former deputy secretary general at the Ministry of Justice, unexpectedly withdrew his candidacy two weeks before taking office. He said he did it because he could not obtain a state secret permit as a result of the inspection of the Estonian Internal Security Service, presumably because he had not formally notified the Ministry of Justice of the work carried out as an expert at the Council of Europe..[3] The director general was found and appointed after a new competition..[4] She started work at the end of August of 2019. The confusion resulted in a situation where the Data Protection Inspectorate did not have a director at the early stages of implementing the General Data Protection Regulation.

The Data Protection Inspectorate did not get to increase its staff nor the budgetary means during the 2018–2019 budget periods, even though it did experience an increase of new responsibilities and competences as a result of the entry into force of the European Union’s General Data Protection Regulation. This raises the question of whether the Inspectorate corresponds to the requirements imposed on a supervisory authority set by the Regulation. Issues of the Inspectorate’s independence have already been addressed in earlier annual reports, as the institution is in the administration area of the Ministry of Justice and these issues have not been solved to this day.

The period has been characterised by the intensified attacks of the far-right coalition party EKRE against the heads of law enforcement agencies, which question their competence and loyalty. Indirectly, this can be seen as an attempt to influence these institutions’ independence from the political sphere and as an attempt to crumble the foundations of the state based on rule of law.

An incident took place in August of 2019 where the Minister of Finance, acting as a Minister of Interior, and the deputy chair of EKRE, Martin Helme, attempted to unlawfully fire the director general of the Police and Border Guard Board, by pressuring him to resign voluntarily and threatening to fire him if he does not resign..[5] The police director general was able to continue in office after the Prime Minister Jüri Ratas intervened..[6]

In October of 2019 the term of office of the Prosecutor General ended, but no consensus was reached by the government for appointing her for a new term or for appointing a new Prosecutor General. Even though the continuation of the person who had been in office was favoured by both the conservative Pro Patria as well as the centrist Centre Party, the far-right EKRE opposed it, which is why the Minister of Justice did not propose to appoint her as the Prosecutor General by the deadline..[7]

Legislative developments

A significant positive development has to do with challenging visas. Minister of the Interior Mart Helme submitted a draft for coordination in June of 2019, according to which the decision to refuse, revoke or annul a visa can in the future be challenged in an administrative court..[8] Right now those visa-related actions can be challenged in two stages: first by appealing to the authority that made the decision and then either to the Ministry of the Interior or the Ministry of Foreign affairs. Such a situation where decisions relating to visas are not subject to judicial review is, according to the European Court of Justice, not compatible with law of the European Union, including the Charter of Fundamental Rights of the European Union,.[9] and the European Commission has already initiated infringement proceedings against Estonia in 2013. The current situation is probably also in conflict with the Constitution as well as the European Convention on Human Rights, which is why it would be good if the conflict was resolves as quickly as possible.

Statistics and surveys

Discrimination in the legal system based on ethnic, racial or national background was assessed in the JUSTICIA network preliminary survey published in November 2018..[10] It turned out that Estonian national statistics does not distinguish between discrimination based on nationality or citizenship, which is why possible discrimination remains hidden. There are also problems with transposition of the EU procedural law directives, particularly concerning availability and quality of translations, the minorities may also be affected by poor availability of information. Expert interviews confirmed that minorities may negatively be affected by, for example, scarcity of Arabian language interpreters. Aliens are also more easily detained during the pre-trial proceedings as they do not have a family or a social network in Estonia, nor a permanent residence. Alternatives to imprisonment – such as electronic surveillance or financial security – are hardly used in their cases at all. The disproportionately high proportion of the Russian minority among the accused and convicted persons, as well as in prisons, is alarming, but can be explained by the socioeconomic status.

The prisons yearbook 2018.[11] dealt with the independence of courts thoroughly, in particular based on international standards such as the Venice Commission and the case-law of European Court of Human Rights. The yearbook contains a statistical overview of the activities of courts.

Based on results of the World Justice Project Rule of Law Index, in 2019 Estonia ranked 10th out of 126 states and 9thout of 24 states in its region (EU, EFTA and North America)..[12] Generally, in civil law Estonia’s indicator is better than the region’s average, at times even significantly better (for example, in terms of low corruption, discrimination or government’s influence). In criminal law the results are generally good as well, however, timely and effective criminal proceedings rank lower than the regional average.

The World Justice Project also published Global Insights on Access to Justice for the first time in 2019, which is based on survey results conducted in 2017..[13] Estonia’s situation is characterised by the fact that legal problems are primarily experienced in housing, consumer protection, money and debts, as well as in public services. 61% knew where to get help in case of a legal problem and 27% did receive help, although the majority of people received help from a friend or a family member (53%), 37% turned to a lawyer or an advocate for help. 44% received a complete solution to their problem and it took 7 months on average. At the same time, 46% experienced certain suffering in relation to their legal problem, such as a physical or a stress-related illness (33%), or lost their job and had to move (27%). A comparison of states shows that there are no major differences between similar states.

According to the Eurobarometer survey on perceived independence of the justice system Estonian entrepreneurs are unable to assess the independence of the judiciary..[14] 48% responded “don’t know”, 39% deemed independence as “good” and 13% as “bad”. The entrepreneurs’ apathy is hard to explain, especially since the portion of “don’t know” responses increased by 12% on a previous similar survey.

The Chancellor of Justice received complaints about judges on more than twenty occasions, reveals her annual review 2018–2019..[15] The Chancellor did not initiate any disciplinary proceedings about judges, however, because upon studying the materials she did not become suspicious of the judges’ impartiality nor did she detect other infringements, which did not relate to the substance of the case.

Court practice

There was only one court ruling regarding Article 6 of the European Convention on Human Rights at the European Court of Human Rights. In the case Liblik and others v. Estonia the appellants accused in the so-called land exchange trial found that the length of their criminal proceedings was unreasonably long..[16] The ECtHR found that the proceedings were indeed remarkably long, ranging from six years and eight months to eight years and nine months, depending of the appellant. However, the Court did not find that Estonia had violated the subsection 1 of Article 6 of the Convention, as it had been a complicated case involving hidden crimes and high-level conspiracy. The authorities had acted with due diligence and there were no delays or suspensions during the proceedings. The decision will hopefully give Estonian law enforcement authorities the certainty that complex and covert corruption cases can also be investigated in accordance with human rights, even if the proceedings take a long time.

Public discussions

The attacks of the far-right party EKRE against the judicial power continue to take place, which may start to pose a danger to state based on rule of law. For example, in January of 2018 the deputy head of the party Martin Helme told the press that the Estonian justice system “should be demolished and started again from scratch.”.[17] Manner of speech attacking the judicial power has also been continued in the government. In a video interview given to Postimees in July of 2019 the Minister of Finance Martin Helme explained that Estonia should not be a member of the European Convention on Human Rights, because “in fact, there should be no judicial authority above the Estonian court system.”.[18] In the same interview he also criticised the Supreme Court, referring to judgements, which the court had made in relation to rights of same sex couples. In addition to courts, other state institutions, such as the prosecutor’s office and the police have also fallen under pressure from EKRE.

Trends

Major change in the area of justice in the next few years is probably not expected, unless the radical reform agenda of the far-right party EKRE is about to be implemented. The issue under focus continues to be judiciary’s efficient and effective functioning.

 

Recommendations

  • End the attacks against independence of the judiciary by members of the government.
  • Pay increasingly more attention to the effect of prejudices and negative views in the judiciary and study possible institutional discrimination in administration of justice as well as in access to justice.
  • Pass the bill prescribing the option of recourse to court in the event of challenging a visa.

[1] Government of Republic of Estonia. 2019. Eesti Keskerakonna, Eesti Konservatiivse Rahvaerakonna ning Isamaa Erakonna valitsusliidu aluspõhimõtted 2019-2023 [Founding principles of government coalition between the Estonian Centre Party, The Estonian Conservative People’s Party and Pro Patria].

[2] The Estonian Conservative People’s Party. 2018. EKRE volikogu avaldus: Eesti vajab vabaduse, õigluse ja demokraatliku õigusriigi toimimiseks justiitsreformi [statement from EKRE’s council: Estonia needs a justice reform for the functioning of freedom, justice and democratic rule of law], 3 June 2018.

[3] Eylandt, O. 2018. Saatuslikud 10 000 eurot. Aavik kahtlustab, et jäi andmekaitse juhi kohast ilma näpuvea tõttu [Fateful 10,000 euros. Aavik suspects he lost the position of head of Inspectorate for a typo], Eesti Päevaleht, 2 October 2018.

[4] Ministry of Justice. 2019. Valitsus nimetas andmekaitse inspektsiooni peadirektoriks Pille Lehise [Government named Pille Lehise as director general of the Data Protection Inspectorate], 16 May 2019.

[5] Jaagant, U. 2019. Helme üritas võimupiire ületades politseijuhti vallandada [Helme tried to fire the head of police by overstepping his authority], Postimees, 16 August 2019.

[6]Krjukov, A. 20199. Helme ja Vaher kinnitasid koostöö jätkumist [Helme and Vaher confirmed continuation of cooperation], ERR, 22 August 2019.

[7] Kuus, I. and Merilin, P. 2019. Aeg ei esita Perlingu kandidatuuri uueks ametiajaks [Aeg will not propose Perling’s candidacy for a new term], ERR, 23 October 2019.

[8] Ministry of the Interior. 2019. Välismaalaste seaduse ja riigilõivuseaduse muutmise seaduse eelnõu (viisa vaidlustus) [Draft law on the amendment to the Aliens Act and the State Fees Act (visa challenge)], 12 June 2019.

[9] European Court of Justice. C‑403/16 El Hassani, 13 December 2017.

[10] JUSTICIA European Rights Network. 2018. Disparities in Criminal Justice Systems for Individuals of Different Ethnic, Racial, and National Background in the European Union: A comparative report of the scoping study.

[11] Parmas, A., Parrest, N., Uritam, S. 2019. Kohtute aastaraamat 2018 [Courts’ yearbook 2018].

[12] World Justice Project. 2019. WJP Rule of Law Index: Estonia.

[13] World Justice Project. 2019. Global Insights on Access to Justice: Estonia.

[14] European Commission. 2019. Flash Eurobarometer 475: Perceived independence of the national justice systems in the EU among companies.

[15] Chancellor of Justice. 2019 Õiguskantsleri aastaülevaade 2018/2019 [Chancellor of Justice’s annual review 2018/2019].

[16] European Court of Human Rights. Liblik and others v. Estonia.

[17] Pihl, K. 2019. Martin Helme: mul puudub kohtusüsteemi vastu igasugune respekt [Martin Helme: I have no respect for the judiciary], ERR, 17 January 2018.

[18] Mõttus-Leppik, E. 2019. Martin Helme saates «Otse Postimehest»: Jürgen Ligi võiks seppuku teha [Martin Helme in live show: Jürgen Ligi should commit seppuku], Postimees, 2 July 2019.

 


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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