Law change curtailing reporting of ongoing court cases sees widespread use ({{contentCtrl.commentsTotal}})

Media in Harju County Court.
Media in Harju County Court. Source: Priit Mürk/ERR

Media reports say that courts have been zealously using an amendment to the Code of Criminal Procedure, which entered into force last year restricting press coverage of courtrooms.

Whereas before the law change courts were able to declare sessions closed, under the new law courts can also limit disclosure of areas such as witness testimonies in the courtroom as well, ERR's online news in Estonian reports. The ministry of justice says the move prevents witness statements influencing each other when they are reported in the media, among other improvements it says the law change has brought.

Two recent cases where this happened included a corruption trial of board members of state owned Port of Tallinn, and the organized crime trial of Hubert Hirv.

In the Port of Tallinn case, Judge Kristina Väliste of Harju County Court ruled in June that those present in the courtroom may not report the content of the testimony of witnesses until the end of the trial.

In the Hirv case, Judge Elina Elkind, at the request of state prosecutor Kati Reitsak, imposed a ban on disclosing the content of witness statements until the end of the investigation. 

The Ministry of Justice says the change will increase clarity and freedom, but though it has not provided an overview of how many such cases occur.

Kristel Siitam-Nyir, Undersecretary for Criminal Policy at the Ministry of Justice, said there is no aggregate data on how many courts impose such restrictions. 

However, the experience of journalists shows that the opportunity is actively used, meaning that more than two cases have occurred in less than a year, ERR reports.

Journalist Sulev Vedler from investigative weekly Eesti Ekspress told ERR that at a hearing in late summer at Tallinn District Court concerning Danske Bank employees' and seized property, where a lawyer had had no objections to journalists being present, prosecutor Marek Soomaa ordered the restriction of disclosure reporting.

Judges Ivi Keskküla, Pavel Goncharov and Urmas Reinola granted this request in the hearing which, based on Vedler's remarks, related to a pending criminal case.

"The criminal case of Danske Bank employees is still pending; I was the only journalist I was there, was what I was told," Vedler said, adding that such a reason could actually limit the coverage of most cases.

Vedler says he no longer writes on the case as violating the ban would result in punishment.

Andrus Karnau, Editor-in-Chief of regional daily Lääne Elu, recalled that in the case of corruption in Haapsalu City Maintenance, where Alo Lõps, the company's director and Riho Lepp, were tried, Judge Piia Jaaksoo ordered against disclosing the content of witness statements until all witnesses had been heard. 

He added that the case was a major issue at local level and important in terms of political corruption as it involved local government leaders.

Karnau also said he found it outrageous that the court refused to provide the Lääne Elu editorial board, which had covered the case, a ruling to justify the restriction.

"In my opinion, this is a violation of the principle of openness," he said.

Ministry of Justice: The change the law increased freedom

Undersecretary for Criminal Policy of the Ministry of Justice Kristel Siitam-Nyir said that the situation had become much freer and clearer than before, making it similar to the procedure used in civil and administrative court proceedings.

Previously, the court had the opportunity to declare the hearing closed, which prohibited disclosure of all information.

Previously, the court had the opportunity to declare the hearing closed, which prohibited disclosure of all information.

Similarly, in the case of a hearing held on camera, there is no longer a prohibition on disclosure of procedural data; it is only for the court to explain to persons present the exact extent to which reporting on the content of a hearing can be limited," he said.

In future, according to Nyir, judges must decide on a case-by-case basis which information would be detrimental to further proceedings, or to violate family, privacy or sensitive business data, were it to be made public. Since court proceedings sometimes involve very sensitive information, the court must assess and strike a balance between the public requirement of the hearing and the requirement to protect the privacy of the parties, Nyir claimed.

"Restricting the disclosure of information will allow the court, among other things, to ensure that the next witness does not know the testimony of the previous witness, whether in the courtroom or via the media," he said.

Nyir added that the amendment was intended to protect various interests in criminal proceedings, in particular in the protection of state and business sensitive data, or family and private life, and also in the interests of a minor or other victim. 

In addition, the publicity of a hearing may be restricted if disclosure of the information could, for example, endanger witnesses.

"Therefore, this restriction is not due to the interest of the press in any process, rather the other way round," Siitam-Nyir asserted, adding that a court order restricting disclosure could be challenged, for example, in an appeal to a higher court.

Reinsalu recommends that the rule be lifted if necessary

At the time the legal amend was passed, then-justice minister Urmas Reinsalu (Isamaa) told ERR that these provisions were included at the end of the Transposition Directive on Business Secrets, a draft law on the prevention of unfair competition and the protection of business confidential information, as a general reason to include the protection of business secrets in various types of proceedings.

"It was assured to me at that time that these rules would not create any new grounds for confidentiality, and that this interim procedure would create another form of proceedings beside a closed court hearing, which seems to be lighter in nature in terms of confidentiality. In order to avoid public oversight of justice, I cannot categorically agree with that direction," he said.

Reinsalu asserted that he, as the individual who submitted the bill, had no such purpose, nor did the government of the time and probably none of the members of the Riigikogu who voted in favor of the bill.

"In the current situation, I would advise the Minister of Justice to evaluate and, if necessary, repeal and revise the recent practice of using this norm. It is not human for law, law is for human beings, or society, to paraphrase the scriptures," he added.

Restrictions on access have also been criticized by lawyers and legal professionals.

Experts comment

Lawyer Paul Keres, commenting on the closing of Mati Alaver's file to ETV current affairs show Aktuaalne kaamera in early December, said public litigation is part of a democratic rule of law and access restrictions should be the exception, adding these exceptions tend to be very numerous.

Jüri Saar , professor of criminology at the University of Tartu, has said that restrictions on disclosure in court are sometimes justified, but they must not become the rule and public openness should always be preferred in Estonian society.

Former judge at the European Court of Human Rights, lawyer Uno Lõhmus, said in a recent opinion piece (link in Estonian) that this amendment to the code of criminal procedure cannot be considered a success and that the legislature has gone too far with its desire for secrecy.

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Editor: Andrew Whyte

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