Nele Parrest
Justice of the Supreme Court
One well-known Estonian journalist told in a radio broadcast that the current situation was clearly unconstitutional, that he had to address court to find out what had happened at the court hearing or what was included in the (unenforced) court decision. This was followed by accusations on the closure of the judiciary and mentality of the quiet era of the courts. This seems to be also confirmed by the non-publication of unenforced decisions on the internet, X-ing of court decisions, as well as the increasing practice of declaring the hearings to be held in the absence of the public, ban on covering the matters of the court hearing in the press, not enabling access to files, etc.
The first sentence of § 24 (3) of the Constitution of the Republic of Estonia declares that the court sessions are public. The fourth paragraph adds that the judgment shall be pronounced publicly. But what do these provisions really mean?
If we think back to the time when these provisions were adopted – in 1992 – then the publicity of hearings and judgments meant that everyone could go to the courthouse to listen, watch and read what was happening. The publicity of court proceedings at the time did not mean that, without leaving home or getting up from one’s desk, one could find out through a blog on the website of the media what one or another witness had just said at the same court hearing. The public announcement of the judgment arising from the Constitution did not require that a name or date could be entered into the search engine of the Riigi Teataja or the Supreme Court, and the content of the court decision could be available to the reader with only one click.
The publicity of the court proceedings envisaged by the Constitution assumed that the interested party would also make reasonable efforts to satisfy his or her own interest. The publicity did not mean that everyone had the opportunity to access the facts of the case at any time and place.
In view of the above, I certainly do not want to say that the Constitution should be interpreted only in the light of what was possible and intended at the time of its adoption in the 1990s. On the contrary, the Constitution is certainly a “living document” with meaning and content staying up to date. In the light of societal changes, interpretations of the Constitution should also be reviewed and adjusted. At the same time a deep bow to the ones having created the Constitution, who have given Estonia such a wonderful piece of legislation, the content of which seems even 30 years later still timely and correct.
I would just like to draw attention with this historical retrospective to the fact that finding the answer to the question of how public the court proceeding should be is neither easy or black and white.
On one hand, there is the public and the press as the fourth power who justifiably want to know what is going on in the court and how the court administers justice – by interpreting and applying the provisions. The public interest and control over the activities of the court should inevitably be taken into account by every judge in his or her work. The more open the court proceedings, the more reliable the court is expected to seem to the average person. If a person trusts the decision maker, he or she will accept the decision even if he or she does not understand all the legal twists and turns of the solution. There is no doubt that the Estonian judicial system can assess and value such trust. In several European countries the independence of the judiciary has been undermined. Such events are forcing Estonian judges to think more and more about what to do so that this does not take place in Estonia as well. People’s support and trust in the judiciary system most certainly play an important role in this.
On the other hand, the right to address court has constitutional weight. The fear of publicity and disclosure, or simply the desire to avoid unnecessary attention, should not become an obstacle or frighten one’s right to sue. The fact that the word once expressed will remain available on the internet for years, if not decades, can have negative, including unexpected consequences in both professional and personal life. An official published document with the state “stamp“ should not be a reason for not making a transaction (as the judgment indicates that the company had a dispute with the tax authority) or for not hiring the person (as according to the judgment the employee sued the employer and “who would like to hire such a person”).
The Yearbook of Estonian Courts 2020 seeks to contribute to this complex debate on how to find a good and right balance between public access to justice and data protection. The main emphasis is thereby on personal data. Thus, the yearbook provides a number of in-depth approaches to the following issues: which rules govern the protection of personal data in the administration of justice, which changes to the legislation are planned to pursue to better reconcile the public with data protection requirements, what happens to the data after the end of the legal proceedings, what is the journalist’s assessment of the current state of publicity in the court proceedings. The article of the representative of the Bar Association also includes very interesting and thought-provoking historical reviews. I would like to draw special attention to the cumbersome proposal for the Estonianization of euro law provided for in this article. Talking about aliasing, instead of complicated pseudonymisation, clearly and unambiguously reveals the content of the legal term. The writings of the representatives of the data protection supervisory authorities within the legal system in Bulgaria, Netherlands, Ireland and United Kingdom also provide a very interesting comparative look. The yearbook also includes regular overviews and statistics of the Supreme Court’s practice.
Enjoy reading!