Marianne Meiorg and Eve Pilt

There were no developments that could be considered definitive of the year 2010. However, several smaller changes and events concerning the right to a fair trial did take place, which deserve to be discussed here.

It is important to mention the 9th annual plenum of judges, where the Supreme Court judge Eerik Kergandberg summarised the criticism directed at Estonia by the ECHR. He pointed out, as an interesting fact, that as of February 3rd, the ECHR had detected a breach of the principle of fair trial or Article 6(1) of the ECHR in 8 cases out of 21 that involved Estonia. This could be considered the weakness of Estonian court system. Year after year the Chancellor of Justice also refers to the unreasonable length of the court proceedings. 2010 saw another case against Estonia in the ECHR concerning a complaint under the same article, this time to do with unreasonable length of court proceedings.[1]

The Conciliation Act

The Conciliation Act that entered into force on January 1st, 2010 could be considered one of the most important changes that took place in Estonian legal system in 2010.[2] The purpose of adopting the Conciliation Act was to offer an alternative to court proceedings and to encourage solving various civil disputes outside of court and in a less formal way. The conciliation proceedings have several advantages over court proceedings, including its relative simplicity and the potentially smaller financial cost. The explanatory memorandum also mentions conciliation proceedings’ speed in comparison to court proceedings.

In relation to the adoption of the Conciliation Act, the Code of Civil Procedure was also amended. The amendments gave the court the right to oblige the parties to participate in the conciliation proceedings stated in the Conciliation Act, if it is necessary, in court’s opinion, for solving the case, considering the circumstances and its proceedings (§ 4(4) of the Code of Civil Procedure). The agreement concluded as a result of conciliation proceedings will be authorised by a court that holds jurisdiction of the conciliation proceedings (§1211 of the Code of Civil Procedure). The court will not declare the agreement possible to implement if it exceeds the limitations stated in the Conciliation Act, is in contradiction with good manners or acts of law or an important public interest or if it isn’t possible to implement the agreement (§ 6271 of the Code of Civil Procedure).

According to the sworn advocate Andres Past and lawyer Anna Fedurko the adoption of the Conciliation Act has laid “a foundation for alternative dispute resolution”. It “enables parties to reach a mutually satisfying result that resembles a compromise with substantially less time and financial cost than in a court proceeding”. Whereas, it also entails a court aspect – the option of declaring the agreement possible to implement. Therefore it can be said that, in principle, the adoption of the Conciliation Act has improved access to justice and to efficient process in general, considering time and cost. It is, however, still early to evaluate the influence and effectiveness of this act as it has been in force for just one year. Yet this process has potential and the developments connected with it are worth following.

E-toimik (electronic dossier)

The creation of information system e-toimik (for processing electronic dossiers) in civil procedure could be considered the second important change of 2010. This option came about with the Act amending the Code of Civil Procedure, the Courts Act and other acts that came into force on January 1st, 2010.[3] A year earlier the e-toimik had been adopted in criminal proceedings. The paragraphs and additions added to the Code of Civil Procedure also extend the possibilities of delivering procedural documents electronically. The Ministry of Justice has attributed the following phrases to e-toimik: legal certainty, saving time, saving taxpayers’ money, equal access to information of parties to a proceeding, safety, simplification of offices’ work, less time spent on proceedings. According to the explanatory memorandum, the second main purpose of this act was the simplification of the expedited procedure to better fit the nature of the electronic procedure. This amendment is sure to simplify and potentially speed up the court proceedings.

Summary proceedings

In 2010 the Constitutional Review Chamber of the Supreme Court declared invalid the paragraphs stating summary proceedings. The Supreme Court found in its judgment that the paragraphs 251–256 and paragraph 318 subsection 3 point 3 do not provide an efficient right to protection.[4] Essentially the notice of appeal had to do with the right to appeal stemming from § 24(5) of the Constitution and Article 6(3) points b and c of the ECHR.  The Supreme Court came to the conclusion that § 318(3) point 3 of the Code of Criminal Procedure rules out the option of appeal in the course of summary proceedings and that this constitutes breach of right to appeal stated in § 24(5) of the Constitution. The Supreme Court decided that summary proceedings also breach everyone’s right to petition for any relevant law, other legislation or procedure to be declared unconstitutional while his or her case is before the court stemming from § 15(1) of the Constitution. Therefore, the Constitutional Review Chamber found that the regulation of criminal procedure was in contradiction of the Constitution in so far as it does not provide efficient right to protection, nor does it allow for declaring a law relevant to his or her case unconstitutional.

Access to justice

A great deal of controversy arose in 2010 when the UN Committee on Elimination of Racial Discrimination presented Estonia with recommendations for implementation of the Convention on the Elimination of All Forms of Racial Discrimination. Extensive discussion was caused by media’s free interpretation of the committee’s recommendation on use unofficial languages,[5] but the committee’s remark on the near absence of complaints of acts of racial discrimination is more important in the context of this chapter. The Committee recommended Estonia research the causes of the low interest of the people. The Committee also recommended Estonia verified whether it is not the result of victims’ lack of awareness of their rights, lack of confidence in the police and judicial authorities or limited access to available mechanisms.[6]

Another important topic of 2010 was the high cost of state fees. Excessively high state fees may restrict access to justice and thereby obstruct people from using their rights. Several articles were published on this topic. Chancellor of Justice has also covered this topic. Chancellor of Justice decided to initiate analysis of constitutionality of state fees based on the petitions.[7] The Centre Party initiated the draft amending the State Fees Act on December 8th, 2010, stating in its explanatory memorandum that the draft was necessary to reduce the state fees that had more than doubled for civil proceedings since January 1st, 2009.

According to the estimation of the initiators of the draft the current state fees are not proportionate to the purpose of economy of proceedings, and a Supreme Court judgment 3-4-1-25-09 supporting this position is referred to. This case, in turn, refers to the ECHR judgment Mehmet and Suna Yigit v. Turkey, which stated that an excessive state fee constitutes as breach of the ECHR. However, this draft will not proceed in Riigikogu due to expiry of the term of office.[8]

Persons with mental disorders

Faults in application of right to a fair trial were also pointed out by the UN Human Rights Committee in their 4 August 2010 concluding observations to Estonia in implementing the UN Covenant on Civil and Political Rights. Foremost, the committee found fault with guaranteeing the rights of mentally disabled persons and their legal guardians in criminal proceedings.

The Human Rights Committee fund that mentally disabled persons and/or their legal guardians are often insufficiently informed of criminal proceedings and charges against them; the right to a fair hearing and effective legal assistance is also oftentimes breached (see chapter 3, “Right to personal liberty”). The committee also found that the independence of experts appointed to assess a patient’s need for continued coercive treatment is compromised if they work in the same hospital as the one in which the patient is held.

The aforementioned recommendation of the Human Rights Committee does not concern just the review of justification of coercive treatment in criminal procedures, but is also applicable by analogy to conducting expert analysis before placing a person in a closed institution in civil procedures. Human Rights Committee recommendations are in accordance with Tallinn Circuit Court 12 October 2010 judgment, where the court stated that opinion of psychiatrists providing the coercive psychological treatment do not constitute expert opinion in the meaning of § 537(1) of Code of Civil Procedure.[9] This judgment influenced the practice of Harju County Court where continuation of coercive psychiatric treatment was prescribed in the course of legal protection based on § 533 of Code of Civil Procedure, and the court did not use to require expert analysis and settled for the opinion of the psychiatrists providing the service.[10]

Summary

The problem of duration of the court proceedings, which the ECtHR has criticised for years, is still without a solution. Another persisting problem is the ineffectuality of the provision on incitement of hatred in the Penal Code, which Estonia has been criticised for for years. Yet another unsolved issue is the problem of state fees which may prove a significant obstacle to access to justice. In this instance, they are just too high.

The entry into force of the Conciliation Act can be pointed out as a positive development. One just needs to wait to see how it will be used in practice. The adoption of the e-toimik system in civil procedures is another positive development in facilitating access to justice. The Supreme Court judgment declaring summary judgments unconstitutional in criminal proceedings is also another step forward in ensuring efficient right to protection.

Recommendations

–          Thoroughly analyse Estonian court system and what so often causes the long duration of court proceedings and take measures to avoid it in the future.

–          Amend the provision prohibiting inciting hatred in the Penal Code, remove the condition that requires proof of danger to a person’s life or health.

–          Thoroughly analyse the rates of state fees in access to justice in court proceedings.

 


[1] ECtHR. 4. February 2010 judgment Malkov v. Estonia. Application no. 31407/07. (The case has been described in detain in chapter 3).

[2] Conciliation Act. RT I 2009, 59, 385.

[3] Tsiviilkohtumenetluse seadustiku, kohtute seaduse ja teiste seaduste muutmise seadus [Act amending the Code of Civil Procedure, the Courts Act and other acts]. RT I 2009, 67, 460.

[4] The Constitutional Review Chamber of the Supreme Court. Judgment 3-4-1-5-10 (18.06.2010).

[5] For example: Rekand, Tiina (2010). ÜRO: Eesti peaks olema kakskeelne [UN: Estonia should be bilingual]. Postimees, 20.10.2010. Available at: http://www.postimees.ee/?id=329020; Jaagant, Urmas (2010). ÜRO soovitab Eestile kakskeelsust [UN suggests bilingualism for Estonia]. Eesti Päevaleht, 20.10.2010. Available at: http://www.epl.ee/artikkel/585683; – (2010). ÜRO soovitab Eestile kakskeelsust [UN suggests bilingualism for Estonia]. Delfi, 20.10.2010. Available at: http://www.delfi.ee/news/paevauudised/eesti/uro-soovitus–eesti-peaks-olema-kakskeelne.d?id=34063735; Ministry of Foreign Affairs (2010). ÜRO rassilise diskrimineerimise kõrvaldamise komitee soovituste tõlgendamisest [On interpreting UN Committee on Elimination of Racial Discrimination recommendations]. 20.10.2010. Available at: http://www.vm.ee/?q=node/10119.

[6] UN Committee on the Elimination of Racial Discrimination (2010). Draft Concluding observations: Estonia, § 18.

[7] Ülevaade õiguskantsleri 2010–2011. aasta prioriteetide täitmisest 2010. aastal [Overview of execution of priorities of the Chancellor of justice 2010–2011].

[8] Riigikogu Rules of Procedure Act, § 96. RT I 2003, 24, 148 … RT I, 21.03.2011, 1.

[9] § 537(1) of Code of Civil Procedure (RT I 2005, 26, 197 … RT I, 30.12.2010, 2) states that the court may place a person in a closed institution only based on an expert opinion consisting of prerequisites of the placement, including dangerousness of the person, prepared by an expert who has personally examined or questioned the person. Only a psychiatrist, or in case of a communicable disease, a doctor competent in the field, may be used as an expert.

[10] See Harju County court judgment in civil matter no. 2-10-29892 (16.12.2010).

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