Justice chancellor lukewarm to minister's constitutional monitoring idea

Supreme Court Judge Ivo Pilving and Chancellor of Justice Ülle Madise, at the 2020 Opinion Festival in Paide.
Supreme Court Judge Ivo Pilving and Chancellor of Justice Ülle Madise, at the 2020 Opinion Festival in Paide. Source: Priit Mürk/ERR

Chancellor of Justice Ülle Madise and Supreme Court Judge Ivo Pilving have both expressed reservations about a proposal from Minister of Justice Lea Danilson-Järg (Isamaa), of setting up a working party to investigate if constitutional supervision process could be improved.

Madise and Pilving – the latter heads up the Supreme Court's administrative chamber – both say that the first safeguard of constitutional rights must remain the first-tier county and administrative courts, while there should not be an opportunity to petition the Supreme Court directly, as suggested by Danilson-Järg.

Danilson-Järg's proposal would, for instance, allow for opposition parties to approach the Tartu-based Supreme Court in the case of legislation they felt was unconstitutional. Currently, this can only be carried out by the head of state.

"The situation would be even better if unconstitutional laws and regulations were not adopted, meaning people's rights would not be violated. This, however, requires independent officials with a strong education and work ethic," the Chancellor of Justice added, in response to a request for comment from ERR.

Pilving said: "I don't see fundamental gaps in legal protection which can be treated via new means of appeal or even via new courts, in Estonia today."

"The minister's desire to improve the conduct of the court is, of course, to be welcomed, in principle. At the same time, given the scarce resources the state has, it is necessary to think very wisely where costly improvements are worth making," he went on.

Madise also pointed out what she said was a need to make changes in criminal proceedings, to speed up their processing.

She said: "In the course of the work of the chancellor of justice, I can see a need to review the criminal procedure: The so-called adversarial process leads to a situation, at least in some criminal cases, where it takes several dozen days of sessions to process a legally simple crime."

"However, in complex cases, it can be the case that since a judge is not allowed to read the case-file in advance, he or she will not know how to ask relevant questions to the accuser and the defense, and the defendant gets a very bad impression. In both cases, the time taken up is too much, and sometimes it takes years before a person who, may have reformed themselves, is sent to prison for that crime," Madise continued.

Madise also said that judges in Estonia are overloaded and, while court work is efficient compared with some other EU countries, a better use of personnel could be made, in relation to constitutional affairs.

Pilving agreed that the duration of major criminal proceedings, along with a proliferation of civil cases, is a serious matter, particularly for Harju County Court, located in Tallinn, adding law education, the appointment of judges, court staff, expert witnesses and the situation with legal experts in general to the list of issues.

"In administrative courts, solutions must be quickly found in possible special situations, for example to prevent mass immigration," Pilving added, citing the situation with the Covid pandemic also.

He said: " I am afraid that the solution cannot be one whereby, for example, hundreds of Covid complaints all arrive directly with the Supreme Court, or dozens of immigrants and hundreds of prisoners do so, with their own complaints. In all of these cases, after all, important human rights are at stake. County and administrative courts are still in the front line for protecting rights, and any working party to be created should look for solutions here, as well for possible problems."

Madise agreed about personnel issues, adding salaries into the mix and also calling for striking a balance between the effective use of public funds, and of protecting human rights adequately.

"There is also a lack of good lawyers and money in the state legal aid: we see that it is very difficult for people to defend themselves in civil and criminal cases," Madise went on, adding that in the former, heard at the administrative court, there was still a need for good legal advice and sufficient personnel.

At the start of this month, Lea Danlison-Järg sent an invitation to the Supreme Court, the President's Office, the Chancellor of Justice, the Riigikogu Constitutional Affairs Committee, the University of Tartu's law faculty, the Estonian Bar Association (Eesti Advokatuur) and the State Law Foundation (Riigiõiguse Sihtkapital), to take part in a proposed constitutional working party and to prepare potential amendments to the law governing constitutional oversight.

Estonia has four first-tier county courts, and two, also first-tier, administrative courts (some courts sit at more than one courthouse). Add to that the two second-tier circuit courts in Tallinn and Tartu, plus the Supreme Court, in Tartu.


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Editor: Andrew Whyte

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