Anne Veerpalu

It is important, in connection with the right of recourse to the courts that the persons who wish to do so also have a right to the assistance of an advocate or a lawyer to help them do that. This year we will be focusing on the right of the person to legal assistance at the expense of the state a little bit more. In addition to the topic of legal assistance at the expense of the state we will be looking at other amendments in connection to this fundamental freedom, that have occurred in 2012.

Political and institutional developments

In 2011 the number of advocates providing legal assistance at the expense of the state rose from 150 to 178. By 2012 the number was down by one. The proportion of lawyers who are members of the Bar Association didn’t increase much, if anything, it declined as the number of lawyers is constantly increasing. This year the new Minister of Justice, Mr Pevkur invited the members of the bar association to “increase their input into state legal assistance and do their part in guaranteeing fundamental rights of persons in judicial proceedings.”[1]

The demand for state legal assistance has increased over the years and the funds provided by the state have also increased, which, in 2012, despite the tight budget were more than 850,000 euros larger than in 2011 and constituted nearly 3.8 million euros in total.[2]

On 1 March 2013, the day of general assembly of the Bar Association, the association opened a new website (www.riigioigusabi.ee) providing information about who, how and what for a person can apply for state legal assistance.

The Ministry of Justice, in addition to supporting the Bar Association, also supports providing preliminary legal advice, which is aimed at the least privilege and persons with special needs. The Ministry of Justice’s partner for the last couple of years in providing free preliminary legal advice has been the foundation Õigusteenuste büroo and the Eesti Juristide Liit (Estonian jurist association), which provide legal advice via legal clinics operated by law students. The Ministry of Justice also supported providing legal advice at the www.perekool.ee forum, which is run by the NGO Estonian Midwives Association, and providing legal advice by the NGO Estonian Association of the Deaf and the NGO Estonian Association of Occupational Disease Patients.

In 2011 the Ministry of Justice in cooperation with the Estonian jurist association launched the legal advice portal www.juristaitab.ee, where legal experts provide quick and free advice.

Legislative developments

The new Code of Administrative Court Procedure came into force 1 January 2012, which aimed to increase the speed of court procedures so that the final outcome of the appeal would not have to be waited for ten years. The new code simplified several useless requirements of form and content in filing complaints and simplified the order for amending the action, but most of all it is now easier for the prisoners to do court activities. Simplified proceedings are the new kind of proceedings meant for such complaints. Simplified proceedings do not require a court session and allows to hear the sides’ positions either electronically or over the phone. The amendments to the Code of Administrative Court Procedure also introduced expedited procedures in disputes in procurement matters. Additionally, the amendments facilitate making arrangements in conciliation proceedings more than before.

According to Kristen Michal, then Minister of Justice, the whole system of posing state fees was reviewed in the course of amending the state fees, and options for making court proceedings even speedier were analysed. The draft act, which was sent to the government as the result of the analysis had to do with both aspects of fair trial. “The purpose of lowering state fees is to make access to justice easier, we are also considerably increasing the legal assistance available and the quantity of free legal assistance available to the least privileged and to persons with special needs,” Michal stated in January of 2012.[3]

On the other hand, in order to speed up the process of amendment of state fees (the draft act was adopted 6 June 2012 and came into force 1 July 2012) several amendments increasing the speed of court proceedings were later excluded from the draft. Nevertheless, a significant amount of solutions to problems regarding delivery of judgment were included (including enabling electronic delivery) as well as authority enabling to limit stalling. The most innovative amendment, which has been in force since the beginning of the year, is certainly the opportunity to notify the person of availability of a document via the phone number or the email address found in the internet, or even by posting onto a user’s page of a social network.

Larger part of amendments to state fees (especially lower state fees) are to motivate people to use the e-toimik (the state fee is generally half of what it is by sending an e-mail) and file claims/actions electronically (the state fee for filing a claim/action on paper is higher). Subsection 21 of paragraph 133 of the State Fees Act is also positive: “if the State Fees Act states a state fee for filing a petition or an appeal electronically into the information system via the website www.e-toimik.ee (from now on via www.e-toimik.ee) at a lower rate than the full state fee rate and the party to a proceeding cannot file a petition or an appeal electronically via the aforementioned website for a good reason, the court enables to carry out the procedural act at a lower rate of state fee based on a reasoned request.” This provision allows a lower state fee for seniors and persons with disabilities who are not able to use the e-toimik or find it too complicated.

The Estonian Human Rights Centre also finds the proposition initiated by the Keskerakond faction and Yana Toom in September of 2012 to amend the State Legal Aid Act to enable submitting applications also in English and Russian useful. The situation where the application for state legal aid must be submitted in Estonian, or in singular cases stated in subsection 5 of § 12 of the State Legal Aid Act in English, may constitute a breach of fundamental right of equality stated in § 12 of the Constitution.[4]

At the moment, this draft act experiences a strong opposition also on the government level. Paragraph 6 of the Constitution is referred to, which states that Estonian is the official language of Estonia. The Supreme Court has also stated that according to subsection 5 of § 12 of the State Legal Aid Act the application for state legal aid must be submitted in Estonian or English: “an application that has been submitted in another language shall be returned to the applicant.”[5]

The Estonian Human Rights Centre considers amendments initiated with the draft act positive predominantly due to its experience with asylum seekers. They, along with Russian-speaking residents, clearly find it impossible to fill out the state legal aid application in Estonian without help. The Estonian Human Rights Centre has been drawing attention of the Ministry of Justice to this deficiency for some time.

Court practice

Constitutional Review Chamber of the Supreme Court found the provisions of State Fees Act, which had been the basis in legal disputes to be unconstitutional on nine occasions in their decision in 2012. This court practice has occurred on three more occasions this year.

Already since 2010 the law students of the Estonian Human Rights Centre’s legal aid clinics offering legal aid to asylum seekers have witnessed the sad practice of misapplication of the State Legal Aid Act. The legal aid clinic for asylum seekers, which is funded by the European Refugee Fund and the Ministry of Internal Affairs, have helped asylum seekers make several dozen applications for state legal aid along with economic statements and procedural aid notices during their time of operating. Even the law students practicing at the clinic found filling in the seven page Estonian application a challenge. But receiving regulations from judges denying the applications was an even greater surprise. On at least two occasions the applicants for state legal aid were minors who had been placed in the expulsion centre without an accompanying person. Several times the reasons for denying the applications were not the bases for refusal stated in acts of law, such as, that the members of the bar do not speak Dari (the applicant added int the application that he wishes to speak to a lawyer in Dari), that the administrative court has principle of investigation and the applicant, therefore, does not need legal aid, and that the applicant (in that instance a 17-year-old Afghan boy who did not speak Estonian nor understand the legal system) would be alright on his own. It is worth noting that unfortunately such applicants lack the options to reply to court decisions obligating them to eliminate the shortcomings or to translate the content of these decisions.

6 March 2012 the European Court of Human Rights made its decision in the case of Leas v. Estonia,[6] where it found that Estonia was in breach of article 6 of the European Convention on Human Rights and Fundamental Freedoms (right to a fair trial) as it didn’t allow the applicant access to evidence contained in the surveillance file of his criminal proceedings and neither did other measures guarantee the balance of defence’s rights. This particular appeal had to do with the right to acquaint oneself with the permits granted for surveillance and the surveillance file. The applicant could only view those choice surveillance documents presented to the court by the prosecutor’s office.

The main reasoning behind the decision detecting the breach was that the court could not guarantee carrying out of its regulation by investigative bodies. The county court had initially granted the applicant and his defence counsel the permission to view the surveillance file, but the investigative bodies did not honour this permit. The European Court of Human Rights didn’t believe the procedure for determining the classification/disclosure of evidence gathered with surveillance was in accordance with the principle of a fair trial or guaranteed the parties to proceedings equal opportunities.[7]

Time and again the matter of length of court proceedings is the reason for turning to the European Court of Human Rights. The court made two decisions of inadmissibility regarding Estonia 4 January 2012. The court was of the opinion regarding Urmas Velleste’s application against Estonia (application no 67623/10) as well as Juri Andrejev’s application against Estonia (application no 64016/10) that the applicants had not exhausted the effective domestic remedies. The court believes that these legal remedies would have been effective in remedying the unreasonable length of court proceedings. The court emphasised that a case could be brought to the European Court of Human Rights only when at least in principle the same complaint (Velleste found the proceedings were of excessive length, the presumption of innocence had been breached, that prohibition of incarceration for debt had been breached, etc) has been raised in a state court according to formal requirements and time limits. The court pointed out that regarding the Velleste case that the applicant addressed the length of proceedings at the county court as well as at the court of appeal, but did not lodge an appeal to challenge the lower courts’ findings with the Supreme Court

The European Court of Human Rights more specifically referred to two important cases. Firstly, the decision no 3-4-1-12-08 of the Constitutional Review Chamber of the Supreme Court, which expressed that an application concerning length of a criminal case should be lodged with the court processing the case. In case of breach of the applicants rights (if the excessive length of court proceedings is detected) the Supreme Court has the right to:

a)     terminate the proceedings,

b)    acquit the defendant, or

c)     take the length of proceedings into account in the sentence.

Secondly, the European Court of Human Rights refers to the government’s court practice in the case of Malkov v. Estonia. Already in the decision made on 4 February 2010 (no. 31407/07) the European Court of Human Rights agreed with the government that the applicant loses his victim status after his sentence has been reduced.

Velleste, and the similar Andrejev decision are a clear guidance to future applicants against Estonia, as the persons lodging applications with the European Court of Human Rights have to have raised the complaints in domestic proceedings in the appropriate manner and argued them all the way to the Supreme Court.

Statistics and surveys

According to the State Legal Aid Act the state aid is organised by the Estonian Bar Association, but is funded by the state budget. As of the beginning of 2010 the defence and representative duties to lawyers are mediated via the State Legal Aid information system (RIS) at the bar association, which has received praise also from prosecutors.[8]

According to the Bar Association the most applications for state aid via RIS have been filed by the prosecutor’s office (6163), followed by investigative bodies (5749), and then courts (5119). Interestingly, the busiest time for filing applications has been in May for the second year already (1623), and the lowest in December (1119).[9]

According to the Bar Association 17,031 persons received the so-called free legal aid from state in 2012.[10] Criminal procedures made up 77%, civil procedures 21% and all other procedures (including administrative court procedures) just 3%. The former chairman of the Bar Association, Toomas Vaher stated: “the need for state legal aid remains high, even though the previous year saw the decrease of applications in all civil procedures. The reason for this are the decreasing effects of the economic crisis, however, in the future we will note an increase in civil cases.”[11] In comparison to 2011 last year there were nearly a tenth fewer applications for state legal aid, whereas the drop in criminal cases was nearly 7% and in civil cases nearly 17%, while requests for representation in administrative court procedures increased up to 15%.

Type of state legal aid

2012

2011

2010

Change in 2012 compared to 2011 in

%

Change in 2011 compared to 2010 in

%

Defence in criminal proceedings

12,949

13,937

13,703

-7.1

1.7

Representing a person in criminal proceedings in pre-trial procedures and in court

88

136

89

-35.3

52.8

Defending a person in a misdemeanour matter in extrajudicial proceedings and in court

125

119

98

5.0

21.4

Representing a person in civil proceedings in pre-trial procedures and in court

3612

4373

3573

-17.4

22.4

Representing a person in administrative court proceedings

38

33

34

15.2

-2.9

Representing a person in administrative court proceedings

5

8

7

-37.5

14.3

Representing a person in execution proceedings

7

14

37

-50.0

-62.2

Representing a person in review procedures

1

2

5

-50.0

-60.0

Drawing up of a legal document

24

26

66

-7.7

-60.6

Other counselling or representing

182

176

177

3.4

-0.6

Total

17,031

18,824

17,789

-9.5

5.8

Table 1. State legal aid applications according to type and their changes in percentage in 2010, 2011 and 2012. Source: Estonian Bar Association, annual report on facilities provided for state legal aid 28 March 2013.

The former chairman of the Bar Association Toomas Vaher stated that the bar association’s aim is to make provision of state legal aid more content rich and to increase its quality.[12] He confirmed the wish to increase the number of providers of the state legal aid. He said that unfortunately the feedback received from members of the bar association stated that the current legal aid system, especially the fee for providing state legal aid, does not motivate new lawyers to provide it.

Noteworthy public discussions

In 2012 the Bar Association also made a proposition to amend the order for provision of the state legal aid, so that in civil and administrative cases the court would appoint state legal aid in the initial stages only for the lawyer to analyse the potential of the case. Hopefully this amendment would allow to spend the tax payers’ money most expediently.[13] According to the public data this proposal has not yet been made into a draft act.

Recommendations

  • We advise to take a wider look in regard to the State Legal Aid Act, not just the Russian speaking residents in Estonia, but to admit that the persons speaking various languages staying at the expulsion centre find it nearly impossible to gain access to state legal aid at the moment, precisely because of the language barrier in applying for legal aid. Allowing applications in Russian and English does not solve the problem either, but it definitely widens the circle of persons who can help, who the person to be expelled and those applying for asylum come into contact with.
  • We also advise to train the judges to consider the problems of asylum seekers and persons to be expelled (especially the language problem) and also the fact that they have no recourse to reply to court orders or to translate their contents, of course, including understanding the State Legal Aid Act while processing applications for state legal aid.
  • We also advise to  motivate lawyers to offer state legal aid via organising training on professional ethics and responsibility.

[1] Justiitsministeeriumi pressiteade [Press release of Ministry of Justice] 01.03.2013. Available at: http://valitsus.ee/et/uudised/pressiteated/justiitsministeerium/74243/pevkur:-rohkem-advokaate-v%C3%B5iks-osutada-riigi-%C3%B5igusabi.

[2] Justiitsministeeriumi pressiteade [Press release of Ministry of Justice] 01.03.2013. Available at: http://valitsus.ee/et/uudised/pressiteated/justiitsministeerium/74243/pevkur:-rohkem-advokaate-v%C3%B5iks-osutada-riigi-%C3%B5igusabi.

[3] Justiitsministeeriumi pressiteade [Press release of Ministry of Justice] January 2012.

[4] Constitutional Review Chamber of the Supreme Court. 01.10.2007 no. 3-4-1-14-07, p 13.

[5] Criminal Chamber of the Supreme Court. 24.04.2008 no. 3-1-1-24-08, p 6.

[6] Application no. 59577/08.

[7] Välisministeeriumi kokkuvõte EIK otsusest [Summary of the ECHR judgment made by the Ministry of Foreign Affairs]. Available at: http://www.vm.ee/?q=taxonomy/term/229.

[8] Available at: http://www.cityoigusabi.ee/et/news/74/Riigi-oigusabi-infosusteem-on-oiguskultuurile-hea.

[9] Advokatuuri pressiteade [Press release of the Bar Association] 10.01.2013.

[10] Advokatuuri pressiteade 10.01.2013.

[11] Advokatuuri pressiteade 10.01.2013.

[12] Advokatuuri poolt koostatud Riigi õigusabi osutamiseks eraldatud vahendite kasutamise aastaaruanne [The Bar Association’s annual report on use of means allocated for providing state legal aid]. 28.03.2013.

[13] Justiitsministeeriumi pressiteade [Ministry of Justice’s press release] 01.07.2012. Available at: http://omena.ee/riigi-oigusabi-susteem-muutub-tohusamaks/.

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