Chief Justice of the Supreme Court
Adviser to the Chief Justice of the Supreme Court
This year’s overview of the development of the legal and judicial system differs significantly from the previous ones. The readers of the yearbook of the courts usually receive a presentation intended for the plenary of judges, but the regular plenary scheduled for February has not yet taken place, as it had to be postponed for the first time within twenty years. Rapid adaptation to the new unforeseen conditions is a keyword that actually illustrates the past year as a whole. No one could have predicted that in 2020 the world faces the pandemic, the impact of which would not leave anyone untouched. For just over a year now, we have been exposed to a limited and even, in a sense, closed society, where people are obliged to keep distance from each other and communicate with the close ones and colleagues through different communication software. For a long time, the questions of how to adapt to the corona pandemic and the restrictions imposed to prevent it, and when the situation will stabilize, have been the focus of everyday life. In a narrower sense, the judiciary is no exception to these issues, which is why 2020 will be remembered above all by the efforts of judges and court officials in organizing and ensuring justice. However, despite the difficult times, there are many other issues in addition to the corona pandemic that are worth noting. The main topic of the yearbook of the courts – publicity of court proceedings -, pension reform, qualification of future lawyers and the quality of legal education discussed in the Supreme Court en banc can be recalled in more detail here.
Administration of justice in emergency and exceptional situations
Although the Estonian judicial system stands out with a faster and more digital procedure both on the European and global scale, the courts were also not ready for the emergency situation established by the Government of the Republic on 12 March 2020 to prevent the pandemic spread of coronavirus causing COVID-19 disease. In particular, the fact that the legal organization of the emergency situation established in Estonia does not provide for any differences in court proceedings caused problems. At the same time the need for such regulation occurred during the first days of the emergency situation as oral proceedings were planned, but people were not allowed to gather and there was an obligation to keep distance. More fundamental and complex issues in ensuring the proper administration of justice in the conditions of spread of coronavirus arise mostly from laws that require the physical presence of the participants to the proceedings, their hearing as well as handling of paper files and postal items. The procedure of civil matters has involved concerns about proceedings against people who are involuntarily detained or in need of guardianship among whom there are many elderly people and with whom the court is required to meet periodically pursuant to law. The bottlenecks of increasingly massive bankruptcy hearings also emerged in the situation where the law sets a deadline for the hearing to take place, but many debtors do not have the opportunity or ability to attend the hearing by electronic means. As regards criminal proceedings, procedures related to detainees (from the point of view of ensuring the rights of the defence and convoying) and general criminal proceedings, where a large number of participants to the proceedings are present at the same time, proved to be problematic. Thus, the judicial system has repeatedly faced a number of difficult choices. At the beginning of the pandemic the options were, for example, the closure of courthouses, suspension of justice until the end of the emergency situation or the resolution of priority matters of violations of fundamental rights. However, the prevailing approach was that the competence of the administration of justice is given only to the courts by the Constitution and the smooth operation of the courts even in emergency situations is essential for the functioning of the rule of law. In fact, this principle has been followed throughout the year: the courts should ensure the proper functioning of the judiciary, even during the corona pandemic, the courthouses will remain open for proceedings and the matters will be settled in accordance with all safety measures.
Due to the need of the judiciary for guidelines as well as to ensure the simultaneity and uniformity of organizational changes and to inform the parties to the proceedings, the Council for Administration of Courts adopted the recommendations for the administration of justice in emergency situations at the session of 16 March 2020. These concerned the organization of the work of the judiciary, conduct of court proceedings and communication of the courts with the public and parties to the proceedings. The main purpose of the guidelines was to minimize the risk of coronavirus infection among judges, court clerks and parties to the proceeding and other people involved in the administration of justice through the measures such as preference for written or electronic proceedings. The courthouses remained open for hearings as well as for the administration of the office, but with shortened workday and limited access: no people with symptoms or in close contact with an infected person as well as people not involved in the administration of justice were allowed in the house. Remote working was recommended for all positions that enable it. With regard to hearings, it was considered that at least during an emergency only indispensable court hearings are held to perform unforeseen or urgent official duties provided by law by technical means of communication. To this end, the Council drew up a list of unforeseen or urgent official duties in criminal, civil and administrative matters, which was attached to the guidelines. If it was not possible to hold a hearing by technical means of communication, the court decided to hold a hearing in each specific matter according to the circumstances. If the matter was not urgent and the judge did not order the case to be settled by written procedure and it was not possible to conduct the proceedings by technical means of communication, the court could adjourn the hearing and proceeding as soon as possible after the end of the emergency situation. Thus, the proceedings with direct physical contact were recommended to be conducted in court only when absolutely necessary and in the largest possible courtroom where people can keep a sufficient distance.
The emergency situation established by the Government of the Republic ended officially on 17 May 2020, but this did not end the so-called exceptional situation caused by the spread of coronavirus. Although the summer of 2020 seemed hopeful in terms of putting an end to the pandemic, the work organization of the courts continued in autumn and winter largely on the basis of the spring recommendations of the Council for Administration of Courts. Unfortunately, it was not possible then and it is not also now, considering that the end of the pandemic could not be predicted, to postpone the immediate procedural acts and hearings necessary to resolve the matter. Courts have a duty to resolve the matters within reasonable period while ensuring that people have free access to justice and that their rights are protected. The chairmen and directors of the courts have been in active contact with the Health Board, whose officials have also visited to check the compliance of the courtrooms with the health protection requirements. Necessary hearings are held in large ventilated halls, the parties to the proceedings should be dispersed, wear a mask and judges are advised to take adequate breaks and, if possible, not to hold full-day hearings. In short, the details of the organization and holding of the hearing will be decided by the judge hearing the matter or by the panel of the court who are better acquainted with the facts of the proceedings and will adopt its decisions independently and in accordance with the law.  In this exceptional case, the main emphasis in ensuring the proper functioning of the courts is on cooperation and effective communication, both in communication with the parties to the proceedings, cooperation partners and the public: it is important that the information on court proceedings reaches the parties quickly and no misinformation will be spread.
Although a reduction in court performance could be expected in difficult circumstances, procedural statistics for 2020 suggest that substantially the same level of litigation continued as in the previous year (even with larger volume in civil matters) and that the court performance was nearly 100% by type of procedure. At the same time it should be noted that the longer such a vague situation persists, the more problems become apparent: judges and court officials are tired of remote working, the parties to the proceedings are interested in direct court proceedings. In addition, there are a number of bottlenecks in video conferencing that should be addressed at both legislative and technical levels. Fast and tangible relief can only be seen here in vaccination and making information systems in everyday use more user-friendly. However, further efforts should certainly be made to improve the efficiency of general criminal proceedings, automation of court proceedings and harmonization of the workload of courts.
Publicity of court proceedings
The 2020 report by the Chief Justice of the Supreme Court to the Riigikogu presented the idea of initiating a discussion on the public transmission of hearings on the internet. By not knowing how long the corona pandemic and its aftermath can last, the possibility of realizing this idea seems closer than ever. Namely, the rapid increase in the number of virtual hearings has raised a number of issues from the point of view of the public nature of court proceedings at a time when courthouses are open, but above all to the parties of the proceedings. Court offices have also been opened, but the rights and possibilities of a non-procedural person to inspect the digital file have not been regulated. To keep pace and adapt to the exceptional situation, the video broadcasts of hearings have been made, separate rooms have been found for journalists and other non-procedural persons in courthouses to ensure that public hearings as well as necessary health protection requirements can be followed, and in some cases, journalists have been given access to virtual space. While video recording of hearings has so far been rather exceptional and used only in cases of high public interest, the judiciary is suddenly under pressure to cover a much larger number of hearings. Understandably, this is inevitable in the light of working from home and large-scale digital solutions. At the same time, the caution of the judiciary should be understood as the principles that the court has followed for decades cannot be changed overnight. Similar to the process of switching to a digital court file, judges are of the opinion that before a fundamental change, a functional and user-friendly technical solution should be ensured, which takes into account the specifics of court proceedings, interests of parties and requirements of personal data protection. Thereby, there are and will remain sessions to which access should be restricted and which cannot be fully accessed or be brought to the attention of the public. In such cases judges have an extremely important role to play and they are expected to provide clear and justified solutions. Judges are also expected to explain openly and humanly why access is restricted and how the court understands the law, i.e. interprets and applies the rules. On a broader level, perhaps the most remarkable topic on this matter is the interpretation of the publicity of court proceedings provided for in § 24 of the Constitution (publicity of hearings, public announcement of court decisions). The publicity of proceedings is important, in particular, for the protection of the parties to the proceeding, but legal practitioners do not have a common understanding of the best application of this principle in the modern information society.
Against this background there is a growing need for an inclusive debate on the public nature of court proceedings. Such a debate actually started already in the first half of 2020. Several critical bottlenecks in ensuring the publicity of court proceedings became apparent before the restrictions established to prevent the spread of coronavirus came into force in Estonia. The coincidence of significant circumstances led to a situation in which the courts were increasingly accused of being locked up and restricting the freedom of the press. First, the restriction on the coverage of cases, namely the closure of criminal hearings and the imposition of an obligation to maintain the secrecy of the facts which came to light at the hearing, was criticized by the public. The indistinct and incomplete procedure for inspecting the file and the enforced or unenforced court decision gave then rise to confusion. Several journalists addressed court for legal clarity. Thus, the Criminal Chamber of the Supreme Court explained the general principles of restricting the coverage of hearings, noting that when imposing restrictions, the court should substantiate which right or interest is protected, to what extent and for how long the obligation of secrecy is established and why it is necessary to limit the publicity of the hearing in this way in a particular proceeding. However, the most striking example of the inadequacy of the procedure for inspecting the file originates from the criminal matter declared closed, when the county court refused to introduce the court file to journalists after the end of the criminal proceedings and the Code of Criminal Procedure did not prescribe the procedure for inspecting the file by the non-procedural persons. Without going into the details of the right of appeal, it should be noted that according to the recent case law the court should assess the merits of a request for access to the file after the end of the criminal proceedings, regardless of whether the hearing was or was not closed. The Criminal Chamber of the Supreme Court also explained which laws may give rise to the legal basis for inspection of a court file and in which court the refusal to introduce a court file can be challenged. Among other things, it was pointed out that in the interests of legal clarity, the procedure for inspecting criminal and court files could be clearer and regulated in the Code of Criminal Procedure. 
Against the background of disputes, chairmen of the courts, judges, Prosecutor General, deputy secretary generals of the Ministry of Justice, representative of the Office of the Chancellor of Justice and journalists gathered on 5 February 2020 for a roundtable, on the basis of the views of which the Ministry of Justice began to prepare the intention to develop the publicity of court proceedings (VTK). The referred VTK seeks to provide solutions to a number of the above problems, including the public announcement of judgments, disclosure of court orders, access to the file and restrictions on access. The solutions proposed in VTK have now been presented on three occasions also to the members of the Council for Administration of Courts, who have noted that the most controversial issues, such as the disclosure of unenforced judgments and the complete removal of personal data, should be thoroughly analyzed. It is clear that finding a balance between the interests of the parties to the proceedings, protection of personal data and public interest and freedom of the press is not easy. However, there is a great need for a clearer procedure, which is why the court system is looking forward to the draft of publicity of court proceedings being prepared by the Ministry of Justice.
Hereby it is appropriate to move from the public view of court proceedings to one of the most significant matters of the Supreme Court last year which caused a wide discussion and was largely covered. On 20 March 2020 the President of the Republic failed to promulgate the Funded Pensions Act (KoPS) and the related act on amendment of other acts (Act Amending KoPS) and appealed to the Supreme Court to declare it unconstitutional. The Act Amending KoPS gives people who are not yet of retirement age the right to demand the redemption of all units of mandatory pension fund and the payment of the corresponding money, as well as the payment of money on the pension investment account. The policyholder will also have the right to cancel the pension contract entered into before the 1st of January 2021 and receive money in the surrender value of the pension contract. The President’s request was first discussed in the Constitutional Review Chamber, but given the great societal weight and long-term impacts of the mandatory funded pension reform, it was submitted to the Supreme Court en banc for discussion by a ruling of 9 June 2020.
There were often unfounded allegations in the public that it is not possible for the Supreme Court to review the constitutionality of the Act Amending the Funded Pensions Act (KoPS) as these are political choices that are not subject to review. Thus, the Supreme Court again had to clarify that all acts are subject to constitutional review pursuant to the Constitution and the President has the right to address the Supreme Court before promulgating the act. The matter of the Act Amending KoPS was reviewed at an oral hearing held on 4 August 2020 with the participation of the parties to the proceeding, and by a resolution of 20 October 2020 the request of the President of the Republic was rejected. The Supreme Court did not declare the Act Amending KoPS unconstitutional, but nevertheless pointed out that the Riigikogu and the Government of the Republic have an obligation to monitor the implementation of the Act and, if necessary, take corrective measures to prevent or eliminate violations of fundamental rights.
To sum up, the Supreme Court established that the contested act entails violations of the fundamental right to property and equality and freedom of enterprise, but the purpose of the act outweighs these. On the basis of the information known in the abstract norm control, the Supreme Court could not conclude with adequate certainty that the worst-case scenario would materialize upon the entry into force of the Act Amending KoPS. Consequently, the Supreme Court en banc considered it necessary to note that the realization of the most negative forecasts in the implementation of the act in some specific matters may, however, lead to an unconstitutional situation. In addition to answering the questions raised by the President, the Supreme Court en banc also noted that the linking of the adoption of the act to the issue of trust and thus the possible silencing of discussion in the Riigikogu is also subject to judicial review of constitutionality.
It could be said that reaching a joint decision was by no means easy, as indicated by the dissenting opinion of the seven judges attached to the decision, but also the competing opinions. Hereby, the justices of the Supreme Court should be recognized for handling such a voluminous matter efficiently and constructively.
About legal education
Finally, we should stop on the topic that is close to the hearts of many legal practitioners and to which the impetus was given at the end of 2020 – this is the course of legal education in Estonia. Namely, the quality of legal education currently being acquired is a matter of concern at several levels. On one hand, on the basis of the lawyers running in the competition for judges, it seems that it is becoming increasingly difficult to assess whether candidates meet the requirements laid down by law. § 47 (1) 1) of the Courts Act declares a lawyer, who has acquired a master’s degree or a qualification equivalent thereto (also that of the foreign country), to be suitable for the office of judge. However, there are often two problems related to the above that do not allow for a sufficient assessment of a person’s actual qualifications. First of all, it is not a prerequisite for a national master of law to complete the bachelor’s degree in law, which means that many basic subjects may not be acquired. Secondly, foreign LLM programs vary greatly in difficulty and content. It is questionable whether a one-year course in European or international law at the foreign university can be equated with a master’s degree obtained at the Faculty of Law of the University of Tartu. There could be a general understanding that at least judges, legal assistance providers and public prosecutors should pass certain basic subjects of Estonian law and obtain meaningful and high-quality education that is appropriate for the aforementioned dignified professions. In a situation where such a diverse and different level of legal education may be behind a master’s degree, the legal system is struggling to find qualified judges, lawyers and prosecutors.
However, when talking about the course of legal education, one cannot overlook the other side of the coin – the university. Although universities and legal scholars have had time to introduce jurisprudence in independent Estonia, it cannot be seen that the quality of legal practitioners has significantly improved over the years. Among lawyers, University of Tartu is currently bearing the quality label of legal education, but unfortunately it is also starting to fade over time. There may be several reasons for the devaluation of legal education: the multiplicity of law curricula and teaching in several universities; a focus on modern legal education, which is predominantly in English; the transition from full-time to part-time study, which takes place mainly on weekends and emphasizes the student’s independent study. It increasingly seems that the Faculty of Law has disappeared to the structure of a large university and is losing its voice. The teaching of law in accordance with the requirements inherent in sciences does not seem to be sustainable, as law, despite the impacts of international and European Union law, is still national in nature. There is also a shortage of qualified lecturers, which can be attributed primarily to the requirements set by the university, distribution of lecturers between several universities and their salary levels.
The question who, how and at what level teaches lawyers is not just an internal problem of universities. It is in the interests of all of us that justice is provided by high-level lawyers. The discussions on legal education are continuing and in the spring the concept of the changes that legal education would need in terms of restoring quality and sustainability will be completed. The discussion will culminate at the conference in Tartu on 11 June 2021, which will be available for viewing for all interested parties.
Dear judges and readers of the yearbook of courts! As is appropriate in a well-functioning country, the proper administration of justice continues also during difficult times. Legal disputes are faced in all spheres of life and, typical of the information age, the related public interest is also increasing. All the best in your efforts and good health in these difficult times!
For example, it was decided to close all courts in the Netherlands, while in Italy, Portugal and Slovenia the range of matters to be settled was limited to the matters of urgent fundamental rights involving minors, guardianship or intimate partner violence. The European Court of Human Rights has stated that it will remain closed to the public, by cancelling all hearings scheduled for March and April and dealing with priority cases, including the review of extraordinary complaints of interim relief. The European Court of Justice did not hold oral hearings until 25 May 2020 and priority was given to the matters of particular urgency. In addition, the deadlines set in the ongoing proceedings were extended by one month.
Recommendations of the Council for Administration of Courts for the administration of justice in emergency situations. Adopted at the session of the Council for Administration of Courts on 16 March 2020.Online: https://www.riigikohus.ee/sites/default/files/elfinder/KHN%20soovitused%20kohtutele%20eriolukorra%20ajaks.pdf (23 March 2021).
The above positions were confirmed at the written session of the Council for Administration of Courts on 2–5 February 2021, when the “Views of the Council for Administration of Courts regarding ensuring the administration of justice amid the ongoing pandemic“ were adopted. Online: https://www.riigikohus.ee/sites/default/files/protokollid/KHNi%20seisukoht.pdf (23 March 2021).
See more detailed data in the table “Aggregate data of court proceedings of courts of first and second instance 2020” compiled by the Ministry of Justice. Online: https://www.kohus.ee/sites/www.kohus.ee/files/elfinder/I%20ja%20II%20astme%20kohtute%202020.a%20menetlusstatistika.pdf (23 March 2021).
Intention to develop a draft act amending the Code of Administrative Court Procedure, Code of Criminal Procedure, Code of Civil Procedure and other acts (publicity of court proceedings). VTK and the feedback provided are available online :https://eelnoud.valitsus.ee/main/mount/docList/d0e1e8e8-ace1-431b-b3dd-4a879a587e75#ebpivB4I (23 March 2021).
At the sessions of the Council for Administration of Courts of 9 – 10 September 2020, 10 December 2020 and 19 March 2021. The minutes of the meetings of the Council for Administration of Courts are available online: https://www.kohus.ee/et/kohtute-haldamise-noukoda/istungite-protokollid (23 March 2021).