Kari Käsper

Access to justice entails the opportunity to defend one’s rights and resolve disputes via court proceedings as well as extrajudicial proceedings.

Political and institutional developments

Shortening the length of court proceedings and improvement of quality continue to be under scrutiny concerning political developments.

Märt Rask’s nine year term of office as Chief Justice of the Supreme Court came to an end in 2013. Priit Pikamäe was designated the new Chief Justice of the Supreme Court by Riigikogu as per proposal of the President; he is the first to take office who has worked as a judge in all three court instances.[1] The new Chief Justice of the Supreme Court does not deem it necessary to make cardinal changes to the court system.[2]

There were no remarkable changes made to extrajudicial independent institutions. Their funding from the state budget remained largely the same in 2013 as in previous years; the budget of Chancellor of Justice increased by 3.4% in comparison to 2012, to 2.069 million euros; the budget of  the Gender Equality and Equal Treatment Commissioner increased by 4.3%, to 62,351 euros; the increase in budget was the largest for Estonian Data Protection Inspectorate: ca 6%, to 631,329 euros.[3] The Gender Equality and Equal Treatment Commissioner received supplementary funding outside the state budget from the Norwegian funds towards implementing a predefined project (With gender integration and legal remedies towards gender equality) from 25 March 2013 to 31 December 2015 in the total sum of 700,00 euros.[4] But it has to be pointed out that this sum is for specific purposes and only for the topic of gender equality, which is why the funding of the commissioner cannot be considered to be adequate for execution of obligations placed on her by law.

Neither were there any developments in the mandate or independence of independent institutions. The question of independence of the Data Protection Inspectorate is still unresolved (because the institution is under the administration of the Ministry of Justice). The Gender Equality and Equal Treatment Commissioner is firmly tied to the Ministry of Social Affairs due to the process of budget application, the physical location of her office and the procedure of appointment to office. The only institution independent of authority of the state is the Chancellor of Justice, whose independence is guaranteed by the constitution.

Legislative developments

In 2013 the Ministry of Justice came up with a draft act, which had speeding up of imposing of cost of judicial proceedings as its aim.[5] According to the current practice the costs related to proceedings are calculated and decided after the court judgment has come into force and disputes on how to distribute the costs may drag on for years. According to the proposal of the Ministry of Justice the procedural costs are, as a rule, decided within the same proceedings by the same judge. The changes have also been supported by the Council for Administration of Courts.[6]  Legislative proceedings of the draft act will continue in 2014.

Statistics and surveys

According to the court statistics of 2013 the average court proceedings in civil cases in courts of first instance took 168 days as of 31st of December (197 days in 2012 and 206 days in 2011), 62 days in misdemeanour procedure (58 days in 2012 and 88 days in 2011). The average length of proceedings in circuit courts at the end of 2013 was 166 days in civil matters, 42 days in criminal matters and 335 days in administrative matters. In comparison to other EU states[7] Estonia has average or above average statistics, most time is spent of solving insolvency issues.

In 2013 the Supreme Court reviewed 66 cases relating to constitutionality, which had primarily been initiated by courts (33 cases) or by other persons (23 cases).[8] In 32 cases, or in nearly half the cases the legislative act was declared unconstitutional and invalid (in 7 cases), or just unconstitutional (in 25 cases). One of the allowed appeals had to do with the activity of the electoral committee. 18 appeals were denied or not found to be in breach of the Constitution, and 14 appeals, complaints or protests were dismissed without a review.

21% of appeals and complaints made in administrative cases, 23% in civil cases and 16% in criminal and misdemeanour cases were accepted in the Supreme Court proceedings in 2013.[9]

According to the EU Justice Scoreboard,[10] which was first published in 2013, Estonia still has room for improvement in assessing the activity of the courts: even though there are results and quality indicators and a scoring system in place, the courts in Estonia lack officials monitoring the quality standards, the quality policy and the quality systems. Estonia is among one of the first in the EU for electronic communication between the court and the parties to proceedings. At the same time, the budget of courts in euros per resident as well as the number of advocates is among one of the most modest in the EU. The court system is generally perceived to be independent (ranking 21st in the world).

Court practice

One of the most important judgments in 2013 was undoubtedly the Supreme Court Judgment in case no 3-4-1-20-13,[11] which declared those provisions of the State Fees Act to be in breach of the Constitution, which rendered the state fees smaller if the action was filed via the e-toimik system. In the opinion of the Supreme Court in this situation the various sizes of state fees breach the fundamental rights of recourse to court and to appeal of those persons who file actions via other channels than the e-toimik more intensely. The Supreme Court at first adopted the position that “different treatment of parties to proceedings who are in a similar situation in paying state fees must overwhelmingly contribute to increased efficiency of proceedings”.[12] This does not necessarily preclude varying state fees depending on measures used if they bring about significant improvement of economy of proceedings.

In this case, however, the Supreme Court did not believe that using e-toimik would significantly increase efficiency of proceedings as the files in courts are also kept in printed format (which is why the courts print out the documents they receive electronically in large quantities). The Supreme Court also criticised the organization of work in courts and doubted whether in this case increased efficiency actually means transferring the cost of resources from the court to parties to proceedings, who, in fact, may not be as competent when entering the data as the court officials.[13] The court also decided that if the person does not have the chance or ability to use a computer or the internet or to give digital signature, financial pressure would still not persuade him to submit his documents via e-toimik.[14]

The court also accused the e-toimik of being in a stage of implementation and not very user-friendly:

“If the public e-toimik were convenient and user-friendly the panel would see now reason why an Estonian resident with an average experience of using the internet would need monetary special treatment to persuade him to file an appeal via the public e-toimik. Therefore, varying state fees dependant on the method of turning to court are not necessary in the interests of procedural economy.

… As long as the public e-toimik is not as convenient or user-friendly as possible or the parties to procedures have not grown accustomed to it the monetary pressure to use it is not a moderate measure. In this case the most important fundamental rights of a state of law are at stake. Speedy promotion of an information system that is still being implemented cannot justify a breach of fundamental rights of such importance.”[15]

The European Court of Human Rights delivered three judgments relating to Estonia and Article 6 or administration of justice in 2013. The ECtHR found in all of the cases that Estonia had been in breach of the Convention on Human Rights.

In the case Martin v. Estonia the ECtHR unanimously decided that Estonia was in breach of Article 6 of the convention, because the officials pressured the applicant to give up the lawyer that he (his parents) had chosen. According to the applicant, who was a minor accused of a serious crime, the police investigators did not allow the advocate chosen by his parents to visit him during preliminary investigation, and pressured him into writing a declaration waiving the advocate chosen by his parents by telling him that the advocate was not available. The applicant also claimed that he was pressured into agreeing to be represented by an advocate chosen by the investigators by state legal aid instead, and who, in the appraisal of the applicant, was working in the interest of the officials rather than the applicant. Because of the aforementioned he allowed himself to be persuaded and pleaded guilty to the crime. The court found that, because of the age and psychological instability of the accused and for not following the procedure of changing the formal representative, the applicant had not been guaranteed the right to be represented by a defendant of his own choosing. The court demanded the state of Estonia pay the applicant 4500 euros as non-patrimonial damage as well as reimburse the procedure expenses.

In judgments Vronchenko v. Estonia[16] and Rosin v. Estonia[17] the ECtHR found that Estonia had been in breach of Article 6 of the convention as it had not allowed persons who had allegedly committed sexual crimes and used physical violence against minors to question the victims. In both cases the court, in convicting the persons, mainly relied on statements of the victims, which had been given in the course of interviews given to police investigators on video. The child protection officials and psychologists considered giving statements in courts too traumatic for the victims. As the defendants of the accused had no opportunity to question the victims at any stage even indirectly and the conviction was mainly based on statements of the victim, the ECtHR did not consider that the right of the applicant to a fair trial had been guaranteed. Three judges maintained a dissenting opinion, stating that the applicant’s representatives had been given plenty of chances to exercise their right of protection during the proceedings. The court awarded each applicant 5200 euros in non-patrimonial damages from the state of Estonia.

Noteworthy public discussions

On 6 June 2013 the Social Democratic Party introduced in the legislative proceeding of the Riigikogu a draft act, according to which the fifty most important legislative acts of Estonia should immediately be translated and made available in Russian in order to help the Russian language speaking residents better understand the acts of law.[18] The proposal caused several discussions in media as well as legal circles. The proposal was supported by the chairman of the Bar Association as well as several non-governmental organizations and think tanks, including the PRAXIS Center for Policy Studies,[19] the Institute of Baltic Studies and the Estonian Human Rights Centre. The government and the Constitutional Committee did not support the draft, neither did it find support of the plenary assembly meeting of the Riigikogu, and was rejected.

[2] Ibid.

[3] 2013 State Budget Act.

[5] Available at: http://www.just.ee/58772.

[6] Available at: http://www.just.ee/59014.

[7] ELi õiguskaitse tulemustabel [The EU Justice Scoreboard]. Available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0160:FIN:ET:PDF.

[10] Ibid.

[12] Ibid. Point 56.

[13] Ibid. Point 65.

[14] Ibid. Poin 63.

[15] Ibid. Points 70 and 71.