Judge: Even existence of closed-doors cases should not be publicly reported

If a court case is declared closed from the outset, its very existence should not be reported in the media or elsewhere, a county court judge says.

Kai Härmand, civil law judge at the first-tier Harju County Court told ETV current affairs show "Ringvaade" Wednesday that this also depends on the extent to which a case is declared as closed doors and off-limits to the media and public.

Härmand made her remarks in the context of the recent allegations made in the media against Reform MP Marko Mihkelson which have been linked to a custody battle over his wife's children with her ex-partner.

She said: "It hinges to a large extent on when the case was declared closed and whether it was declared closed in full or only partially."

"The court can also state that some part of a case, for example the cross-examination of a witness or a document - for example a person's health data -, it to be kept confidential," Härmand continued.

"If the entire case has been declared closed from the outset, then in fact the very existence of the case or the dispute should not even be mentioned. If some kind of information has already been made public before the case is declared closed, it does not have to then be concealed somewhere. However, in general, if we enter a courthouse and the hearing of a case declared closed is in progress, only the case number and the fact that it is a closed hearing will be visible. Who the parties are and what the case concerns is not disclosed."

Moreover, the unauthorized disclosure of materials in closed hearings can result in a penalty, the judge said.

"This again depends on whether the case is current and ongoing, or is closed (in the sense of finished – ed.). If ongoing, the judge really can fine the individual [who disclosed court materials] in this particular procedure. If the case is terminated, then the Penal Code contains provisions for penalties. Publishing confidential material, let this be materials from the entire closed case or one component of confidential information, for instance confidential business information, is punishable with a fine or a year's prison time," she went on, adding that the Police and Border Guard Board (PPA) and the Prosecutor's Office can commence proceedings in this case.

"The court's options to investigate such a matter are [however] relatively limited. We can, of course, conduct an investigation within our organization if there are doubts that someone from inside has leaked the data, which would primarily entail a disciplinary investigation. But as for an investigation as to whether any plaintiff or defendant or other person involved in the procedure has done so, this is a task for the PPA and the Prosecutor's Office if such a criminal case is initiated."

The fact that, for example, in the case of Mihkelson's saga, legal counsel from one side has talked about this topic in the media, is, according to Härmand, a matter for the bar association to discuss.

"After all, lawyers have their own code of ethics and they also have their own court of honor. Above all, it is the task of the of the bar association's honorable court to take a look at itself and consider whether there is any basis on which to raise an investigation or to start a court of honor procedure."

"At the end of the day a lawyer is bound to retain his or her client confidentiality and even if that client wants to disclose that information, in a closed case, I would say that that lawyer shouldn't even say whether or not he or she represented that party. This is at that person's own risk. However, really, I do not belong to the lawyers' ethics commission or the court of honor, so it is rather a question for them," judge Härmand added.

"I think that the bar association should definitely come to the realization that this problem exists, and talk among themselves and think clearly about what this lawyer's ethics requires of themselves in such situations," he added.

According to Härmand, child custody disputes are always complex, while estranged parents can often use a variety of techniques to escalate that dispute.

"I don't have the statistics to hand, but it is very common, where the school, kindergarten, community and also various state institutions end up being involved in the escalation of the dispute. Complaints are made on one side to the PPA, but also to other state institutions, starting with the Chancellor of Justice or the President, in order to drum up as much noise and disparaging attitudes towards the other party as is humanly possible."

Earlier this year, two journalists at investigative weekly Eesti Ekspress, plus the publication's parent company, were fined €1,000 each over the disclosure of information from a closed-hearing case into alleged money laundering activities at Swedbank. While the fine has been overturned by the second-tier circuit court, the Prosecutor's Office has appealed this at the Supreme Court.


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Editor: Andrew Whyte

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