2 - Chapter

The right to a fair trial

Author: Jaanus Tehver

The situation has remained the same.

Key issues

  • The judiciary system functioned consistently and efficiently even under the conditions which were imposed by a pandemic.
  • The main legislative developments were related to the adaptation of procedural rules for the pandemic situation, and the harmonisation of the workload of the courts.
  • In public hearings, issues which related to public access to court files and court decisions, as well as those which involved the use of communications information (regarding traffic and location data), all received the highest levels of attention.
  • The insufficient protection of the rights and interests of vulnerable persons in court proceedings is a major problem.

Political and institutional developments

On a positive note, ideas related to potential reforms of the prosecution and judiciary system which would have undermined the independence of that very prosecution and judiciary system, and which had been debated at the political level in 2019, have not been relevant since the beginning of 2020.

At the beginning of 2020, the process of appointing the new prosecutor general, which began in 2019 and initially caused controversy in the country’s government, was finally completed. Andres Parmas, a former judge and a lecturer in criminal law at the University of Tartu, was appointed to this position.[1]

The functioning of the judiciary system was significantly affected by the COVID-19 pandemic which became evident in the spring of 2020. In March 2020, The Estonian foreign minister, Urmas Reinsalu, unexpectedly notified the Council of Europe of the activation of Article 15 of the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’, but the Supreme Court responded quickly with a statement which emphasised the fact that for Article 15 of the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ to be applied, Estonia’s constitution still applied, and therefore so did the right to a fair trial.[2] On a positive note, since the beginning of the pandemic, the country has generally followed the principle that the judiciary system must not be disrupted,[3] and necessary measures to adapt to the pandemic situation were swiftly undertaken by the courts, the most important of which was the widespread use of video sessions in all areas of court proceedings and, where possible, the use of written procedures. As a result, the impact on trials remained relatively modest in relation to the state of emergency which was declared in the country between 12.02.2020 and 17.05.2020, as well as in relation to the subsequent health emergency.[4]

In 2020 and 2021, the Minister of Justice appointed new county courts chairmen to deal with civil and criminal proceedings of the first instance, with each of them being appointed for a period of office of seven years. The appointees included: Astrid Asi in Harju County Court; Toomas Talviste in Pärnu County Court; and Liina-Naaber Kivisoo in Viru County Court.

Legislative developments and public consultations

The period of 2020-2021 is characterised by several amendments to the Judicial Procedure Code, with those amendments being aimed at providing the necessary flexibility for litigation under the conditions which were being imposed by the pandemic, along with various court measures which aimed at reducing the burden on the busiest courts (especially Harju County Court), by directing cases to other courts. It is too early to assess the practical impact of these changes, but they are expected to increase access to justice to some extent and shorten procedural times in the most congested courts.

A legislative initiative which has had a greater level of impact on the general public concerns the public nature of judicial proceedings. Following public debates, a draft law is currently being approved under the auspices of the Ministry of Justice,[5] which more precisely regulates the access of persons who are not parties to the proceedings to case files, and increases the number of court decisions which are subject to publication on the internet (including the publication of non-enforced court decisions which will now be available on the internet). In order to protect personal information, it is envisaged that such personal information will be removed from any decisions which have not entered into force. The bill is expected to reach the Riigikogu in 2021.

Following the rulings by the Court of Justice and the Supreme Court, a public debate was initiated concerning amendments (see below, under ‘Case law’) which are required for the collection of communications data and which covers the conditions for the use of such information in court proceedings, but no political agreement has been reached to date, and it is unknown when such changes will become law or what extent they may cover. Under the current national legal acts, the general retention of everyone’s communications data (known generally as traffic data) by communications companies (referred to as data retention) is a practice which continues in Estonia, despite rulings by the European Court of Justice and the Supreme Court’s finding that the obligation to retain such data is contrary to EU law, and despite the fact that there is a level of confusion in regard to which cases should involve the retention of data and how law enforcement authorities should be able to obtain and use such data. From the point of view of ensuring the protection of privacy, the current legislative situation is unsatisfactory.

Case law

On 2 March 2021, the Court of Justice provided a preliminary ruling in Case C-746/18, in which it took two fundamental positions in regard to Estonian national law and practice: (i) law enforcement access to traffic and location data, without being limited to procedures which are aimed at combating serious crime or preventing a major threat to public security is contrary to EU law; and (ii) national law which confers on a public prosecutor, whose task it is to conduct pre-trial criminal proceedings and, where appropriate, to represent the public prosecution in subsequent proceedings, any authority to provide an official institution with access to traffic and location data for the purpose of a criminal investigation is contrary to EU law.[6]

On 18.06.2021, the Supreme Court reached a decision in a case which was related to the aforementioned reference to a preliminary ruling, in which it held that traffic and location data which was required of communications undertakings on the basis of an authorisation by the Prosecutor’s Office is generally inadmissible as evidence, and law enforcement authorities may not make any new inquiries in order to obtain such data pursuant to the procedure which so far remained in force.[7]

The cited court decisions are of far reaching significance for Estonia when it comes to the protection of the right to privacy. Unfortunately the state has not yet been able to develop and implement amendments to those legal acts for which such amendments would be necessary in order to end the ongoing violation of the right to privacy.

On 22 June 2021, the European Court of Human Rights ruled in the case of R B v Estonia, in which the ECHR found a violation of Articles 3 and 8 of the ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ due to the failure of the Estonian state to ensure effective measures in criminal proceedings to protect the interests of a child victim who has been the victim of a sexual crime.[8] This adjudication is important in terms of taking due account of the vulnerable position of child victims and to better protect the needs and interests of such victims in the future.

Statistics and surveys

According to the results of the World Justice Project’s ‘Rule of Law Index 2020’ survey, Estonia was awarded a score of 0.81 and tenth place in the country rankings (the result is identical to the results of the 2019 survey).[9]

The European Commission’s ‘Rule of Law Report’ of 2021 highlighted the good functioning of the judicial system in Estonia under the conditions being imposed by a pandemic, as well as the high level of digitisation.[10]

The 2021 EU Justice Scoreboard showed that the Estonian judicial system continues to be amongst the most efficient and quickest in Europe.[11]

In the 2020-2021period, three important analyses of the Supreme Court’s case law were published: ‘Placement in a closed child care institution’;[12] ‘The placement of a person with a mental disorder in a closed institution’;[13] and ‘Cases involving aliens in the practices of the Supreme Court’s Administrative Chamber in 2020: the more effective protection of rights’;[14] all of which drew attention to shortcomings in the practical implementation of measures which were being applied to children, persons with mental disorders, and aliens, respectively.

Promises and good practice

The effective continuation of the work of the Estonian judicial system under the conditions being imposed by a pandemic is certainly something which is worth acknowledging, and for which good preconditions had already been created due to the relatively good levels of digitalisation in the courts. This was also ensured by rapid adaptation, both in terms of amending legislation and by means of the operative implementation of practical solutions. People’s access to justice, the right to a trial within a reasonable time, and the right to effective judicial protection all remained guaranteed even when the country was to find itself enduring a special or emergency situation.

Trends and outlook

No significant changes are foreseen for the judiciary system. The stability of the judiciary system must be considered a positive circumstance. In the area of justice, the state’s focus has continued to be on the efficiency of the judiciary system and on the reduction of procedural times. Resources which have been allocated to the courts from the state budget are under pressure, but significant cuts have so far been avoided. Such an approach could have a negative impact on the quality of justice in the long run.

Recommendations

  • Enhance as a matter of urgency the protection of people’s privacy in the field of storing communications and location data, and in the organisation of access to that data, thereby bringing Estonian national law into line with the relevant EU law.
  • Enhance the protection of the rights and interests of vulnerable persons in court proceedings through both legislative and practical measures.
  • Ensure that the pursuit of greater efficiency in the judiciary system does not lead to any deterioration in the quality of justice.

[1] Justiitsministeerium. 2020. Valitsus nimetas riigi peaprokuröriks Andres Parmase, 09.01.2020.

[2] Riigikohus. 2020. Õiglane kohtupidamine on tagatud ka artikli 15 kohaldamisel, 30.03.2020.

[3] Eesti Kohtud. 2020. Kohtud jätkavad tööd, 15.03.2020.

[4] Justiitsministeerium. 2020. Kohtud kohanesid eriolukorraga kiiresti ja hästi, 15.05.2020.

[5] Justiitsministeerium. 2021. Halduskohtumenetluse seadustiku ja teiste seaduste muutmise seaduse eelnõu (kohtumenetluse avalikkus), 29.09.2021.

[6] Euroopa Liidu Kohtu 02.03.2021. a otsus kohtuasjas nr C‑746/18.

[7] Riigikohtu kriminaalkolleegiumi 18.06.2021. a otsus kohtuasjas nr 1-16-6179.

[8] Euroopa Inimõiguste Kohtu 22.09.2021. a otsus R.B. vs. Eesti, kohtuasjas nr 22597/16.

[9] World Justice Project. 2020. Rule of Law Index.

[10] European Commission. 2021. 2021 Rule of Law Report – Country Chapter on the rule of law situation in Estonia.

[11] European Commission. 2021. The 2021 EU Justice Scoreboard.

[12] Riigikohus. 2020. Kohtupraktika analüüs “Kinnisesse lasteasutusse paigutamine”.

[13] Riigikohus. 2021. Riigikohtu praktika ülevaade “Psüühikahäirega isiku kinnisesse asutusse paigutamine”.

[14] Riigikohus. 2021. Välismaalaste asjad Riigikohtu halduskolleegiumi praktikas 2020: õiguste tõhusam kaitse.


Author

  • Jaanus Tehver on vandeadvokaat ja alates 2018. aastast Eesti Advokatuuri esimees. Ta on tegutsenud Eestis advokaadina üle 20 aasta ning lisaks kutsetööle on ta Euroopa Advokatuuride Nõukogu (CCBE) kriminaalõiguse komitee, Fair Trials õigusekspertide paneeli (LEAP) ja Euroopa Kriminaaladvokatuuri Liidu (ECBA) liige. Eesti Advokatuuri esimehena on ta kohtute seaduse alusel tegutseva kohtute haldamise nõukoja liige.

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