Dr. jur. Villu Kõve
Chief Justice of the Supreme Court
Presentation at Plenary of Judges, February 14, 2020, Tallinn.
Distinguished colleagues and guests,
Honorable Minister of Justice,
I will begin this year’s presentation with a traditional overview of the changes in the judiciary. I will then talk briefly about my activities and priorities during the last year. I will touch of the topics of uneven workload among judges and how to redistribute it, the resource-intensive nature of criminal matters, publicity of court proceedings and our relationship with the media. I will finish with my thoughts on today’s main topic, the digitizing of court procedure.
The Estonian judicial system has 242 judge seats. This number has remained unchanged though not all seats are currently filled: there are currently 234 judges in office. The aging of the judiciary has characterized the system for years and remains the main reason for leaving. Over the next five years, 75 judges will have the right to retire. In 2019, ten judges officially retired, seven of whom left from courts of first instance and three from the Supreme Court. Four judges had their mandates suspended due to transferring to an international court or other institution. One county court judge left at her own request.
Last year, six competitions were announced to fill the vacant judge seats in the courts of first instance and appeal. It is very positive that the number of candidates for the judgeship competitions remains high and that a wide range of legal professionals are represented. On average, more than five people apply for one seat in courts of first instance and circuit courts.
Applications were received from 21 sworn advocates, 11 prosecutors, 21 advocate generals or court advisors and two representatives of other legal professions. As a result, at the end of last year, the Estonian President appointed six judges to the Harju County Court (Mairi Heinsalu, Kadi Kark, Katrin Mikenberg, Marina Ninaste, Martin Tuulik and Grete Vahtra), two judges to the Pärnu County Court (Agle Elmik and Rajar Miller) and two new judges to the Tartu Administrative Court (Reelika Kitsing and Maria Lõbus).
The competitions also led to four county court judges being transferred to circuit courts per decision of the Supreme Court en blanc: Vallo Kariler, Vahur-Peeter Liin and Peeter Pällin took office as judges in the Tallinn Circuit Court and Erkki Hirsnik as a judge in the Tartu Circuit Court. I would like to take this opportunity to wish all of our new colleagues who are present as full-fledged members of this Plenary of Judges for the first time the strength, peace of mind and clear conscience needed in the administration of justice!
In addition to the aforementioned, there were also changes in the leadership of the courts. As of April 2, 2019, the Chairman of the Tartu Circuit Court’s Administrative Chamber, Tiina Pappel, was appointed that same court’s new chairman. The beginning of this current year also brought a change of leadership in the Tallinn Administrative Court. As of January 1, 2020, former member Kaupo Kruusvee was appointed Chairman of the Tallinn Administrative Court. My gratitude goes to the former chairmen of those bodies, Kersti Kerstna-Vaksi and Kristjan Siigur, for their laudable, determined work in managing the courts!
The year 2019 also brought changes to the Supreme Court. Just before last year’s plenary session, the previous Chief Justice of the Supreme Court, Priit Pikamäe, was appointed an Advocate General of the European Court of Justice and the Chief Justice position was refilled. Following that, in February 2019, a competition was announced for three Supreme Court justice seats: one to fill the seat I left vacant in the Civil Chamber and two to fill the seats left by Malle Seppik and Jaak Luik, who retired on September 1st and December 1st respectively. The Riigikogu appointed Kai Kullerkupp, Kaupo Paal and Kalev Saare as new Justices of the Supreme Court and they started work in the Civil Chamber.
On September, Eerik Kergandberg also retired and his seat was filled on January 4, 2020 by Julia Laffranque, whose nine-year term at the European Court of Human Rights ended. A decision of the Supreme Court en banc assigned her to the Administrative Chamber, which brought a change to the number of justices in the Administrative and Criminal Chambers for a time. At the beginning of this year, former Supreme Court Criminal Chamber member Peeter Roosma became the new Estonian judge at the European Court of Human Rights so his seat needed to be filled as well. On February 3, 2020, Juhan Sarv assumed the office of Justice of the Criminal Chamber.
But the generational change in the Supreme Court continues. Henn Jõks, member of the Civil Chamber, has submitted his application for retirement for September 1, 2020. A competition was announced for the vacancy, which ended on February 14. In order to slow down the rapid changes to the court’s composition and ensure the continuity and proper functioning of the judiciary, the Supreme Court en banc with consent from the Council for Administration of Courts decided to extend the maximum service age of Chairman Peeter Jerofejev by two years.
A Look Back at the Past Year
Honored colleagues and guests!
The year has started ceremoniously. January 14, 2020 marked one hundred years since the first public sitting of the Supreme Court. Many events will celebrate the Supreme Court centennial. Renovations on the Supreme Court building will be completed soon and we hope to return there in March. But there is another important date for jurisprudence in addition to the centennial that must be mentioned: June 15th marks the 100th anniversary of the adoption of the first Constitution of the Republic of Estonia. I am grateful that we have the opportunity to celebrate these significant events together. The Supreme Court has always stood up for the protection of constitutional order, been the guarantor of democracy and safeguarded our rule of law even in the face of our currently complex and changing world. Congratulations to us all and good luck to everyone who supports Estonia and our rule of law!
I have held the role of Chief Justice of the Supreme Court for just over a year and, looking back, I must admit that the critical issues I spoke of at the last Plenary of Judges are still relevant today. I would like to be further in the resolution of some of those issues but it has taken time to get acclimated and make plans. I dare hope that the ideas I’ve gathered concerning the judiciary as a whole, our procedural codes and the role and tasks of the Supreme Court will not remain mere plans.
In order to have a direct overview of the organizational and procedural problems that our judges and court official face in their daily work, I visited all Estonian courthouses in 2019 except for the Kärdla Courthouse. This was very educational and useful and allowed me to meet the court staff and see their working conditions, workload and problems first hand. However, this is not basis enough for concrete conclusions and has to be considered in the context of statistics, current legislation and prognoses. I can point out some general tendencies on the basis of litigation as there were so-called tonal aspects that came to the forefront in almost all of courthouses. In the field of criminal law, a large amount of work involves drunk driving or driving without a valid license and narcotics offenses. Judges also see many matters of domestic violence where families often have both physical abuse matters as well as family civil matters open at the same time. In civil matters, the court primarily sees maintenance claims, child custody and access disputes and debt claims.
Administrative courts work mostly on construction and planning disputes as well as tax disputes and prisoner complaints. In addition to these commonalities, I also noticed some differences, primarily when it comes to workload, which was very uneven across regions. Courts try to balance their workload by redistributing matters throughout their areas of jurisdiction and some civil judges also deal with criminal matters. It is inevitably questionable whether courthouses are viable with only two judges who have to travel to regional centers one or more times a week. It is also questionable whether it is possible to sustainably organize the work of such courthouses given that the ability to involve court officials (advocates-general, secretaries, interpreters) varies from region to region.
In general, the courthouses were in good shape and had good working conditions. The more spacious and beautiful rooms appeared to be in the older, stately buildings in Viljandi, Rakvere and Pärnu. There was a surplus of space in those courthouses, which was also especially noticeable in Põlva and Paide. The most economical version of a courthouse, or rather courtrooms, were in Jõgeva where it seems the court is housed in one corner of the police building. Specific problems, such as issues of occupational safety, arose in the Jõhvi Courthouse, which was renovated almost ten years ago. There were also notable challenges in the Tartu and Tallinn courthouses. The biggest problem for the judges of the Harju County Court is still work overload.
The questions of how many courthouses we should have and where considering the shortage in workforce and low number of matters in sparsely populated areas as well as what kind of staff is needed and how work is distributed in courthouses are still present. Given that courts have to manage with limited budgets, this issue should hereafter be addressed by the Court en banc. I won’t address it more today and will instead focus on three large topics that warranted active response in 2019: reducing the overload of the Harju County Court, the publicity of court proceedings and the application of information technology to court proceedings.
Workload for Judges, Resource Intensity of Criminal Proceedings
Due to the need to optimize and harmonize the workload of courts, in 2019, we established informal cooperation regarding the field of legislation with the Ministry of Justice, the focus of which has been seeking legislative solutions to reduce the workload of Harju County Court and to harmonize the workload of courts in general. This considering that, according to the Ministry of Justice, it is unlikely that the executive power will place additional funding into the court systems, at least not in the coming years. In the framework of this cooperation, which the Ministry of Justice has named the Judicial Development Panel, I have met with Viljar Peep, Villem Lapimaa, Heili Sepp and support staff to exchange views on acute issues. On the basis of these meetings, legislation has been drafted for the Courts Act and the Code of Civil Procedure regarding the redistribution of the workload of county courts, official travel for judges and the continuation of service for retiring judges.
The next steps in consideration are removing some types of matters from the Harju County Court docket or eliminating their jurisprudence over certain matters and redistributing them among all of the judges from respective fields. Some examples are complaints about a bailiff’s actions or minor debt disputes that could presumably be settled through written procedure. This would allow for a more even and equal distribution of matters as well as a more diverse and perhaps interesting case load as well as the preservation of jobs in smaller courthouses. The transfer of institutionalization matters from county courts to administrative courts has also been considered. However, when it comes to more specific questions such as competition or intellectual property, specialization has been considered.
In terms of the organization of courts, some serious amendments have been up for discussion: merging courts into two or even one county court and one administrative court, allowing for flexibility in distributing matters and appointing judges to areas where resources are currently scarce. This would also mean considering expanding the competence of extrajudicial institutions and the pool of authoritative bodies. This may include things like removing the responsibility for supervision of guardians from the courts, developing mandatory pre-trial proceedings (especially in family matters), considering restrictions on the right to appeal and opening larger or more specific matters directly in district courts.
Other legislative means can optimize court matters. For example, we could eliminate the judgment, which is impossible to enforce, as unavoidable prerequisites for maintenance allowance. In addition, provisions should be made for a bailiff’s legal costs to be reimbursed when the bailiff’s actions or decisions are appealed, hopefully stopping clearly unfounded appeals from obstructing proceedings. At the same time as the discussions described above, the Ministry of Justice is conducting reviews of criminal procedure, company law, and insolvency law, which will hopefully also help to reduce or redistribute the workload of the courts.
However, speaking of the work overload for judges in the Harju County Court and the efforts to reduce it, we cannot avoid criminal proceedings and the resources they necessitate. From my visits to the courthouses, I came to realize that the problems of civil proceedings are not comparable to those in criminal proceedings, where there is an over-exploitation of oral hearings, the most expensive and resource-intensive of the procedural forms, and clear misuse of time and other resources. Detailed regulation of the nuances in the Procedural Code have led to civil judges conducting pre-trial proceedings in smaller courthouses as otherwise the criminal court judge(s) of the same institutions would not be able to deal with those matters. The current code also requires oral hearings in situations that could be more simply resolved, such as early release or alternative sentencing.
The general procedures of criminal matters are undoubtedly the most resource-intensive. The timing and cost of this type of procedure has often become unfathomable. Even opening up discussion of such matters in court can sometimes take more than a year. If the accused chooses a general proceeding as his or her type of proceeding, it could mean years of suffering in courts as well as negative media attention and loosing of all his or her money. For the state, an acquittal or the termination of proceedings means compensation for the time spent in custody and often high legal costs. A separate, acute problem arose in the Harju County Court where signals were sent to the Supreme Court in the fall of 2019 that two judges did not complete substantial general proceedings due to retirement.
A closer look at the matter revealed a chronic lack of resources for handling large criminal matters and other bottlenecks. Impelled by the concerns of the Criminal Chamber of the Supreme Court, I turned to the Minister of Justice to identify and solve the problems of processing large criminal matters in the Harju County Court. Unfortunately, faulty communication of this plea caused unnecessary offense among the judges of the Harju County Court. Civil judges in particular felt that their abilities and workload were being called into question. The response in the form of a joint address from the Harju County Court judges clearly shows how tense the atmosphere of this court has become in terms of workload and organization. I sincerely hope that the commission formed by the Minister of Justice will identify the reasons why major criminal matters are so drawn-out and presents appropriate proposals for making the organization and procedure of the court more efficient so that we can prevent or avoid such unfortunate incidents in the future.
There are other measures in addition to the currently proposed amendments to the Courts Act that could help alleviate the problems of the Harju County Court. At the level of initial ideas, there has been talk of transferring pre-trial permits to other courts or reducing or concentrating them so as to allow as large a number of judges specializing in criminal law to adjudicate them as possible. We must analyse whether and how the role of oral hearings in criminal proceedings could be reduced, not duplicating the evidence in pre-trial investigations (especially if the facts are not disputed), further amendment of the principle of continuity, increasing the judge’s leadership role in criminal adjudication, particularly in preparation similarly to civil and administrative proceedings and the possibility of adjudicating matters even if the parties do not appear in court.
We might also consider simplifying the separation of civil actions from criminal matters and resolving them in follow-up procedures after a conviction has been entered into force and facilitating the redistribution of criminal matters (jurisdiction) throughout Estonia. Thus, there are many ideas for optimizing the workload of courts and now we need to develop them farther and find the best ways to implement them.
Publicity of Court Proceedings and Press Relations
Last year, criminal matters not only brought to light the Harju County Court workload issue but also questions of public access to proceedings and procedural documents. At first, there was great resentment in the media about the restrictions to coverage of pending matters, in particular the closure of hearings and, even more so, the obligation to maintain the secrecy of facts that come to light at a hearing. It seems that a notable coincidence of significant factors created a situation where courts are being accused more than ever of being closed off and restricting freedom of the press, especially in corruption matters.
On one hand, there have been several criminal matters receiving a great deal of attention recently and, on the other, a provision has entered into force allowing for the so-called duty of confidentiality. The restriction follows the example of the Code of Civil Procedure and aims to eliminate inconsistencies in the obligation of secrecy in various procedures. Although the provision was intended as a milder alternative to a completely closed hearing, in practice it has provoked a mixed reaction. The lengthy restriction term and insufficient justification have proven problematic as the law says nothing on those points.
A judge must assess whether the imposition of the duty of confidentiality is justified and necessary. The decision must undoubtedly take public interest into account. It may be justified to conceal the testimony of witnesses until all witnesses have been heard. But it is doubtful whether the restriction of press coverage until the end of a judicial investigation can be considered justified, especially in instances where lengthy proceedings may take years. If a judge has decided to impose the duty of confidentiality, he or she must also state the reasons for the ruling and comment on them if necessary. In this way, we can break through the criticism over inaccessibility and contribute to a general increase in legal awareness. Clarification and openness may also help alleviate resentment among journalists: in their view, the press – and therefore the public – are suffering in the current situation.
To solve this problem, I convened a roundtable that included chairmen of our courts, judges, the Prosecutor General, Deputy Secretary Generals of the Ministry of Justice, a representative of the Office of the Chancellor of Justice and journalists. Although the journalists found that the situation was better before the provision on the duty of confidentiality was introduced, the judges nevertheless considered it necessary to avoid an increase in the number of matters declared completely closed. Considering various aspects, the roundtable made proposals to specify the restriction to the Ministry of Justice. It was thus agreed that the provision could include the following requirements on implementation: the restriction must be imposed for a limited period of time and public interest must be taken into account. It was also be considered necessary to specify the penalty imposed for breach of the duty of confidentiality and the right of appeal for persons under duty of confidentiality, including journalists. I hope that these proposals will soon be adopted as part of procedure.
In addition to the duty of confidentiality, questions about access to files, and final and non-final judgments have arisen. The procedure governing these questions is diffuse and sometimes elusive. The law should clearly regulate the publication and availability of pending judgments while considering the option of publication on a computer network (in place of the current announcement and court registry notification system). In doing so, it is essential to consider the extent to which data on hearings and judgments is made public and how it can be removed. The bottlenecks in access to files are particularly acute after the conclusion of closed proceedings. Whereas the Codes of Civil and Administrative Court clearly state that files discussed in closed proceedings cannot be accessed, the Code of Criminal Procedure has no such provision. Therefore it is unclear who has the right to access files and who can grant that right and on what basis. Consideration must also be given to making procedural codes more harmonized and comprehensible and provision of the right to appeal.
These problems highlight the need for a clear and thorough justification of all court decisions. I feel that, just like the participants in proceedings, society at large expects us to explain our decisions directly and humanely. And the court should not consider this kind of explanatory work to be extraneous because the public can only have confidence in the judicial system as a whole if it understands how the judiciary works. Open communication makes it possible to prevent the spread of speculation and misinformation that undermine the authority of the court and its administration of justice. We have started updating the communication strategy of the courts, which aims to clarify the procedure for communicating with the media and to establish a group of judges who serve as spokesmen and are consistently ready to speak up in general matters, to comment on their own judgments or to explain the work of a colleague. And we are not starting from scratch here. I’d like to take this opportunity to acknowledge the judges for whom explanatory work is implied because they see communicating with the public as part of the judiciary’s work!
Digitization of Court Procedure
Finally, the day-to-day work of the courts cannot avoid the main theme of the Plenary of Judges – digital solutions in court proceedings. The key question for the judiciary today is whether and to what extent the automation of operations and the implementation of artificial intelligence can make the work of courts easier, faster and more efficient. The implementation of digital solutions is inevitable and there is no doubt that digital solutions will increasingly affect the functioning of courts, including the administration of justice.
Courts use various computer programs to draw up and serve documents daily. Information technology solutions have also provided legal practitioners with systematic databases for the management of legislation and case law. I doubt anyone longs for the times when applications and court documents were written by hand or on a typewriter or when all correspondence between the court and parties to a proceeding took place in writing and by post. I also doubt that anyone misses browsing through the paper versions of legislation with additional pages pasted in by hand.
The use of information systems brings convenience to the participants in proceedings as well as judges. The parties to a proceeding receive most of their information through their e-mail address and therefore don’t have to go to court to browse the physical files. Judges and court officials now have the opportunity to contribute to justice remotely because procedural documents are accessible outside of their physical workplace. Automated solutions to operations that take an unreasonable amount of time out of the daily work of judges and court officials are welcomed. As the amount of data submitted for large matters grows and human capabilities are limited, it will inevitably soon be necessary to use the help of artificial intelligence to navigate large amounts of data.
Unfortunately, in addition to the indisputably positive and forward-looking aspects, there are also downsides and unanswered questions. There is no doubt that the information technology solutions used in the judiciary must make procedure more efficient, not hinder it. However, this places a huge responsibility on its creators: work processes must be designed logically, efficiently and comfortably so that there is no need solve the same issue on paper. Regrettably, such intelligent solutions don’t yet exist. Litigation based on information systems is possible, but primarily in smaller matters. In more substantial matters, it seems that the conditions are not yet sufficient and judges are not yet prepared to digitally manage massive amounts of documents – this is easier using paper files. Once the information systems become fast and user-friendly, the readiness to give up paper files will also rise. User-friendliness can also be increased in small steps.
An example is the Supreme Court’s inconvenient and time-consuming system for digitally signing judgments where signing acceptances or refusals for complaints may take almost an hour out of a justice’s work week. Instead of signing the decisions one by one, we could find a way to sign several decisions at once. Alternatively, a decision could be signed only by the presiding justice or waived altogether by relying on a so-called stamp of confirmation that an official can affix on the justice’s order.
In switching to digital case files, the biggest challenge for the court is how to work with a hundred matters at a time so that all documents remain manageable, the system works quickly and results in a formal and well-reasoned solution within a reasonable amount of time. Current practice also shows that a large and comprehensive digital procedural system, i.e. a court information system, has become its own enemy, especially in the face of progress. Meaning that its further development even in the form of small changes can be extremely difficult and costly as some previous functions may stop working as updates are added.
Thus, changes to such a massive procedural system have rather slowed down the working process. This, in turn, forces people to adapt their work according to the often inconvenient solutions offered by the system instead of modifying or amending the system to suit the user’s needs. It is not yet clear who is developing the project on the complete recording and stenography of hearings and to whose benefit. It adds nothing to the writing of a decision as compared to the classical protocol, often the opposite. And, to be a little intriguing, dependence on an information system raises several fundamental issues. What happens to the administration of justice in the event of a nationwide power outage, a cyber attack, a state of war, or system crash? If actions are not secured and arrests are not made because of a lack of the technical capacity to hear matters, it becomes a question of the functioning of the country and also its security.
I am nevertheless convinced that the system will be improved and perfected in the long run and we won’t be able to escape fully electronic proceedings. The main challenge for the judiciary when it comes to digitization is to preserve humanity – justice must be human and leave room for human error. It cannot be ruled out that artificial intelligence can solve some issues from beginning to end, at least in standard matters precluding discretionary rights, where the human dimension only comes into play in disputes or appeals.
This is essentially already the case with speeding camera fines or partially in expedited procedure on matters of payment order. In principle, the use of artificial intelligence could complete all of the preparatory work for a judge, short of the final judgment. A separate question is whether or not the judiciary wants this. There are nuances in court proceedings where the human factor can be assumed to solve a matter differently than artificial intelligence would. Oral hearings make it possible to better explain and understand the positions held by parties in a proceeding as well as to influence the parties, for example, to waive or amend their application or to accept presented claims as their own. It is also necessary to have direct contact with sources like witnesses where the facial expression, posture, etc. could give relevant information. Direct contact between parties also often allows for a compromise to be reached. Thus, at least for now, it seems like the introduction of a robot judge is a scenario for the distant future.
We must also consider how artificial intelligence can support judges and court officials and make their jobs easier. It is conceivable to use artificial intelligence to process the views of the parties to a proceeding and the information arising from the evidence they submit. For example, artificial intelligence can systematically highlight everything relevant to adjudicate a matter and generate the template for the judgment based on the data submitted, making it the judge’s job to just provide the legal assessment. Artificial intelligence can also be used to make generalizations.
In other words, given the current legislation and case law, artificial intelligence could say how a matter would generally have been resolved thus far. It would then be up to a judge to make inferences based on the evidence and decide whether this particular matter should be resolved in the same way or if there are compelling arguments for changing existing practice, making an exception, developing legislation or exercising discretion. The latter idea comes back to the human dimension, which must never be removed from the judiciary even if all else becomes automated. The system must retain its margin of human error, which can also be constructive.
I early await the thoughts the presents today will express about the opportunity to implement artificial intelligence and the developments in the digital case history. Thank you for your attention and have a great plenary session!