Access to the administration of justice

Constitution §15 establishes that everyone has the right to have recourse to the courts in case of violations of their rights and freedoms. The feasibility of this provision depends on the people’s resources and knowledge.

On 1 March 2005, the National Legal Aid Act came into force in Estonia, the goal of which is to guarantee the timely and sufficient availability of competent and reliable legal assistance to everyone.[1] The practice of the Human Rights Institute has shown that achieving this goal has been problematic. Essentially, in many cases, an instalment system for legal aid has been created, which does not satisfy various parties, especially those needing assistance. According to the testimony of those who have approached the Human Rights Institute, those needing assistance have encountered problems related to the quality of legal aid, which is why there is dissatisfaction with the access to the administration of justice by the police and courts.

In 2007, the Ministry of Justice published the Study of the Estonian Population’s Legal Awareness, the goal of which was to determine the awareness of the Estonian population of their fundamental rights. This study showed that one of the greatest problems in realising the right provided by §15 of the Constitution is the low legal awareness in the field of human rights. As a result, people have difficulties protecting their rights.[2] According to the study, for instance in employment relationships, the majority of respondents (63%) tried to resolve disputes themselves rather than seeking help from a competent person or institution. “Therefore, people usually do not act in the name of asserting their rights; they try to resolve their problems on their own or are reconciled to problems as inevitability.”[3] People perceive the need to turn to the courts for assistance depending on their awareness of their rights:

“The more aware the respondents are the more often they had perceived the need to turn to the court for assistance, but they had not or were not able to realise this need. Apparently, less aware citizens often did not see that their rights were being violated, while it was also possible that due their limited participation in community life situations did not develop in which their rights were significantly violated.”[4]

At the same time, 78% of the respondents found that “everyone is guaranteed equal opportunities to turn to the courts for assistance”, while only 20% of the respondents found that “the administration of justice is not equally available to everyone.”[5]

Those who have participated in court proceedings “have mostly made use of two possibilities—defended themselves (42%) or used the help of a lawyer (44%).” The National Legal Aid Service, which is provided based on the National Legal Aid Act, has only been used by 9% of the respondents.[6] At the same time, 24% of the respondents said that if they needed to participate in court proceedings in the future, they would use the National Legal Aid Service.[7]

From the study, it became clear that “a large elite group that have a monopoly on the administration of justice (if we leave out those people that possess a law education) cannot be identified in society, although there is a group of those who lag behind and are totally lacking legal knowledge.”[8]

 

Fair administration of justice

In 2007, three decisions were made in the European Court of Human Rights in area of the fair administration of justice:

  • Pello vs. Estonia:[9] violations of articles 6(1) and (3)d of the European Convention on Human Rights and Fundamental Freedoms were ascertained. In the given case, the issue of the impossibility of getting answers from witnesses who have testified against the accused. The European Court of Human Rights explained that articles 6(1) and (3)d require that the accused must have the corresponding and appropriate opportunity to get answers from persons testifying against them. The court found that the proceeding of evidence is under the jurisdiction of the courts of the member states, but each court has the obligation to weigh the significance of the evidence. The accused must not always be present when the testimony is given, but must have the right to question these witnesses under the same conditions as any others. The court found that Estonian courts did not demonstrate sufficient will to involve the two witnesses, but substantiated its opinion based on the materials received by mail from the latter. Therefore, an important principle of the fair and impartial administration of justice was violated.
  • Saarekallas OÜ vs. Estonia:[10] the violation of article 6(1) of the ECHR was ascertained. The appellant asserted that the proceeding was not carried out within a reasonable period of time. The court supported the appellant: the proceeding took place during slightly more than seven years and two months at three judicial levels, and this was sufficient to ascertain a violation of the ECHR. As an additional argument, the court pointed to a violation of article 13, since the Estonian courts did not demonstrate any intention of giving reasons as to why the time for the proceeding dragged out.
  • Shchilitsov vs. Estonia:[11] violation of article 6(1) of the ECHR was ascertained. This was also a proceeding regarding the violation of the principle of reasonable duration (five years and three months in the given case). Although the explanation of the Estonian government was that the court had a great workload during this period and the proceeding only dragged on in the court of first instance, the European Court of Human Rights found that the rights of the ECHR had been violated.

Discussion was caused by the website created by the Police Board for the identification of people in the case of the April riots. The Chancellor of Justice sent the Police Board a recommendation for the observation of legality and good practices,[12] in which he noted that the police had a legal right to publish the photos of the persons related to the riots (i.e. it corresponded to the principles of purposefulness and minimalism). At the same time, the Chancellor of Justice condemned the naming of all the people in the photos on the website as participants in acts of vandalism.

In 2007, the Chancellor of Justice also made a recommendation about the observance of legality to the Northern Circuit Prosecutor’s Office,[13] in which reference is made to the fact that officials did not draw up written regulation, although when compiling a correct written answer with a regulation, the guarantee of the right of appeal is of determinative importance. The Chancellor of Justice recognised that “in oral conversations, a person may not correctly and completely understand the details, including the legal nuances. This especially in cases when a person that lacks a thorough knowledge of the legal field is involved…”[14]

The court judgements made in 2007 do not contain general problems regarding the fair administration of justice. The invasions of fundamental rights or the protection of personal rights have been raised but not as procedural problems. An exception, one could note the decision of the Tallinn Circuit Court[15] in which the judicial panel found that the term of punishment applied for by the prosecutor and ordered by the court of first instance was not reasoned.

The judicial panel also referred to the Supreme Court decision of 2005.[16]

“Pursuant to §22(2) of the Constitution, no one can be forced to testify against themselves or their intimates. According to the idea of the given provision, no one is obligated to help to prove crimes that they (or their intimates) have committed. Although the European Convention on Human Rights and Fundamental Freedoms (ECHR) does not directly establish this fundamental right, in its practice, the European Court of Human Rights consistently expressed the position that the right to silence and the privilege of not incrimination oneself is a central component of the fair administration of justice pursuant to the requirements of article 6 (1) of the Convention, being closely related to the principle of the presumption of innocence established by article 6 (2) (for example, see cl. 45 of the decision dated 8 February 1996 in the case of John Murray vs. the United Kingdom; cl. 68-69 of the decision dated 17 December 1996 in the case of Saunders vs. the United Kingdom; and cl. 64 of the decision dated 3 May 2001 in the case of J.B. vs. Switzerland). The Court of Human Rights has also found that ECHR article 6 (1) has been violated if a person is forced to hand over documents in a situation where it is not precluded that he/she could be accused of committing a crime based on these same documents (e.g. J.B. vs. Switzerland, cl. 66). …

The Criminal Chamber stated that the right to rely on the privilege of not incriminating oneself is not dependent upon the person’s formal procedural state or on whether a criminal proceeding has been started in regard to the circumstances for which proof is being demanded from the person. What is important is the factual nature of the evidentiary information being demanded from the person—does it refer to a crime committed by the person or not.”

The importance of the principle of the fair administration of justice as a topic is also apparent in the training and development activities of the Estonian Association of Lawyers and the Estonian Association of Judges.  

 


[1] National Legal Aid Act, RTI, 56, 403.

[2] Ministry of Justice, Study of the Estonian Population’s Legal Awareness, pg. 13.

[3] Ibid, pg. 45.

[4] Ibid, pg. 48.

[5] Ibid, pg. 48.

[6] Ibid, pg. 50.

[7] Ibid, pg. 51.

[8] Ibid, pg. 73.

[9] Complaint no. 11423/03 (10.12.2007).

[10] Complaint no. 11548/04 (08.02.2008).

[11] Complaints no. 35062/03 and 35062/03 (18.04.2007).

[12] Chancellor of Justice, 07.2007 no. 7-4/070858/00705276.

[13] Chancellor of Justice, 01.01.2007 no. 7-4/061544/0700591.

[14] Ibid.

[15] Tallinn Circuit Court, decision no. 1-06-7211 (8.02.2007).

[16] Supreme Court case no. 3-1-1-39-05 (1.06.2005), cl. 13-14.

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