Kari Käsper

Political developments

There haven’t been any great changes in justice in the past two years. Essential developments mainly had to do with accessibility of state legal aid.

The government’s action programme[1] initiated in spring of 2015 states as a specific step developing independence of the judicial power – by increasing self organisational right of courts. The government also wants to speed up court proceedings by removing unfounded obstacles for speedy processing of court cases. At the same time, there is desire to extend options before going to court, as well as options outside of court. These are welcome steps, and have been worked on before. The government also plans to analyse options for giving guardianship organisations and NGO’s the right to protect the rights of their target groups in court. An analysis of this is due to be published at the Ministry of Justice by the end of 2015. At the moment, only environmental organisations have limited rights to protect the rights of their target groups in courts, but also NGO’s who protect human rights (including primarily cases of discrimination), where the victims alone are often not prepared or capable of going to court, definitely need a similar right.

Availability of legal aid is another problem area next to making court proceedings more efficient. The system in place does not sufficiently consider obstacles of various societal groups in accessing legal aid. For example, there have been great problems with legal aid to asylum seekers (the funding of refugee legal aid clinic that operated under Estonian Human Rights Centre was cut, whereby the asylum seekers’ opportunities for receiving speedy and good quality legal aid decreased) as well as Russian speaking persons’ access to justice. Changing the order of providing legal aid and legal advice so that good quality legal aid is available to everyone is an important prerequisite in providing access to fair trial. It is vital to extend the legal pre-trial counselling, for which the resources are very scant at the moment (130,000 euros in 2015), but for which there is a great demand.

Institutional developments

In 2015 the tenures of the Chancellor of Justice Indrek Teder as well as Gender Equality and Equal Treatment Commissioner Mari-Liis Sepper ended. Riigikogu, upon proposal of the President of the Republic, named a reknowned jurist, professor of public law at Tartu University and legal adviser to the president Ülle Madise as the new Chancellor of Justice.

Minister of Social Protection organised a public competition for electing the equal treatment commissioner, organisation and results of which were criticised by NGO’s of the area (note: the author himself participated in the competition).[2] Politician Liisa Pakosta (whose meeting the qualification requirements was severely criticised) who belongs in the same political party as the minister who made the choice, became the new equal treatment commissioner. Election of the commissioner showed that the process has to be de-politicized and more clearly regulated in order to guarantee that a competent and independent person is chosen for the position in the future. In case of the equal treatment commissioner the extremely limited resources continue to be a problem, which hinders with achieving necessary goals.

Statistics and surveys

According to European Commission’s 2015 EU Justice Scoreboard, which provides an overview of efficiency of judicial proceedings,[3] Estonia is among the top or middle in regards to the duration of judicial proceedings, except in cases of insolvency where Estonia stands out in negative light. Compared to the EU average, in judicial proceedings Estonia is among the first in using electronic channels; at the same time the courts spend relatively little money per person on average, making up only 0.2% of the GDP. The number of lawyers per inhabitants is also one of the smallest in the EU. The scoreboard also indicates that people in Estonia perceive justice systems as predominantly independent.

European Union Agency for Fundamental Rights carried out a survey on freedom to conduct business, which also looks at access to justice in Estonia.[4] The report reveals that inflexible state fees, insufficient information (especially in unofficial languages) and long insolvency proceedings are the main problems for operators.

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 2014 and up to the end of October of 2015 – in two of them the Court found a breach of the Convention.

The case Jüssi Osawe v. Estonia[5] had to do with establishment of paternity of a child in parallel with declaring an entry in the birth register void. Even though the court in Strasbourg found that Estonian procedural law, which demands these two procedures be consecutive and not parallel, may be formalistic, it nevertheless did not hinder the applicant from protecting her rights in court. The applicant herself did not appeal against the first procedure. That is why the court found that Estonia had not breached the Convention and the applicant should have made use of the national legal system.

In the case Rummi v. Estonia[6] the state confiscated in the course of criminal proceedings 100 kg of silver, about 1 kg of gold and 5 diamonds that had allegedly been brought into the country as contraband. The person who had been suspected of smuggling had committed a suicide in the detention facility and therefore the criminal proceedings were discontinued. The appeal against court ruling submitted by the wife of the suspect for retrieving the goods was not satisfied. The suspect’s wife appealed to the European Court of Human Rights, which found that since the confiscation decision contained great shortcomings, and the Circuit Court’s decision was unfounded, Estonia had breached the applicant’s right to a fair trial. The Court also found that there had been a breach of Article 1 of Protocol No. 1 of the Convention (right to property), because the applicant’s husband had not been found guilty, which is why it wasn’t clear that property had been acquired by criminal means. The Court also considered the length of proceedings (2001–2009) in national courts excessive. The Court awarded the applicant as the heir to third of the property 64,456.96 euros plus interest of the worth of confiscated goods, 8500 euros in non-pecuniary damage and 4000 euros for the proceedings before the Court, from the state of Estonia.

Case of Veits v. Estonia[7] also had to do with confiscation of property. An apartment, which the applicant’s grandmother had bought with money gained through crime and had gifted the applicant who had been under age at the time, had been confiscated. Even though the applicant had not been involved in criminal proceedings as a third person (as a result of which her property was confiscated) the Court in Strasbourg found that her interests had been represented via her mother and grandmother who had been subject to criminal proceedings. Therefore, state of Estonia had not breached Article 6 of the Convention.

In Tolmachev v. Estonia[8] the applicant had filed a complaint against a 80 euro fine in misdemeanour proceedings for breach of public order. He did not appear at the hearing but sent his counsel and his father. The County Court refused to examine the complaint because the defendant failed to appear at the court. The Circuit Court agreed with the County Court. The European Court of Human Rights did not agree with that as it found that the applicant’s wish to be represented by a counsel does not mean that he has given up his right to protection and to a fair trial. The court could have adjourned the hearing of its own initiative or at least tried to solve the case without the applicant’s presence. Therefore, the Court of Human Rights found that Estonia had been in breach of Article 6 of the Convention.

Recommendations

  • Give advocacy NGO’s in the sphere of human rights the right to protect the rights of target groups in court.
  • Increase availability of free legal counselling, including for minority groups and asylum seekers.
  • Create clear rules for appointing the equal treatment commissioner, which would guarantee that the position is an independent one.
  • Consider making paying for the state fee in civil proceedings more flexible.

[1] Valitsuse tegevusprogramm [government’s action programme]. Available at: https://valitsus.ee/et/valitsuse-tegevusprogramm.

[2] Read more about the competition in Sulev Vedler’s article “Võrdõigusvoliniku valimine. Skandaali tagamaa. 28 väikest neegrit” [Election of equal treatment Commissioner. Background for the sandal. 28 little black boys.]. 23.09.2015. Available at: http://ekspress.delfi.ee/news/paevauudised/vordoigusvoliniku-valimine-skandaali-tagamaa-28-vaikest-neegrit?id=72507531.

[3] 2015. aasta ELi õigusemõistmise tulemustabel [EU Justice Scoreboard]. Brussels. 9.3.2015. Available at: http://ec.europa.eu/justice/effective-justice/files/justice_scoreboard_2015_et.pdf.

[4] Read a summary in Maksumaksja. Available at: http://www.maksumaksjad.ee/modules/smartsection/category.php?categoryid=159.

[5] Read analysis: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/9844.

[6] Read analysis: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/10449.

[7] Read analysis: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/10448.

[8] Read the analysis at: https://www.riigiteataja.ee/kohtuteave/kohtulahendi_analyys/11107.

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