The Port of Tallinn criminal case, which dragged on for over five years, raised questions last year about whether the role of lay judges in criminal proceedings should be reconsidered. Specifically, the court had to start the trial from scratch last year because one of the lay judges recused themselves for health reasons.

In more complex cases, a substitute lay judge would typically take the place of a recused lay judge. However, this was not possible in the Port of Tallinn case, as the substitute lay judge had been removed from the proceedings a year earlier due to suspicions of bias.

This incident sparked a broader discussion within the legal community about whether the role of lay judges in similar cases should be reformed or even abolished altogether. The debate is part of a larger conversation about how to make legal proceedings faster and more efficient. Even now, a year and a half later, similar criticisms persist.

Prosecutor General Andres Parmas and Harju County Court Chief Justice Astrid Asi both expressed the view that the current system has not proven effective. They highlighted several issues related to lay judges.

Parmas pointed out that since lay judges do not undergo any serious background checks, the system cannot ensure their reliability.

"These kinds of issues [the removal of the substitute lay judge in the Port of Tallinn case – ed.] could have emerged in other types of cases as well, where there is suspicion of personal involvement or similar concerns, which calls into question the trustworthiness of the lay judge," Parmas said.

Astrid Asi also noted that lay judges have more lenient rights and responsibilities compared to professional judges, such as being allowed to belong to a political party. She added that if a lay judge decides midway through a trial that they no longer wish to participate, there is no real mechanism to prevent this.

"One example that comes to mind is a case where a lay judge started working for the defendant during the trial. If the entire proceeding collapses because of this, it is a significant risk," Asi remarked.

Parmas: Questionable what lay judges really contribute

Parmas also questioned the notion that lay judges represent a cross-section of society. He noted that those who are able to participate as lay judges are primarily individuals who have the free time to attend numerous court sessions, which often results in lay judges being older individuals.

Parmas further questioned the actual substantive contribution of lay judges to the administration of justice. Although the court panel includes two lay judges who, in theory, could outvote the professional judge, this rarely happens.

"The participation of these lay judges has effectively become a formality, where their role is limited to being like two extras sitting at the table who do not carry out any real civic oversight," Parmas said.

No good alternatives to current system

Parmas stated that the Prosecutor's Office has proposed to the Ministry of Justice that it critically review the system of lay judges.

"At a time when there is talk of the need to make budget cuts, we should not focus on reducing capabilities or laying off people but should first look for ways to make the system or process itself faster and less costly," Parmas said.

However, Parmas acknowledged that he does not have a clear alternative to the current system. While there has been discussion about introducing a jury system, implementing such a system would not be straightforward.

"This would mean that court sessions could not go on indefinitely because a person serving as a juror would be removed from their regular life and work," Parmas noted.

Astrid Asi mentioned that procedural law once allowed particularly complex cases to be handled by a panel of three professional judges, and this approach could be reconsidered for long and complicated trials today. This would ensure that the judges involved are specialized and have kept themselves informed in the relevant field.

Asi also suggested that lay judges could be selected based on their expertise, such as prior work experience in the field. For example, in a cybercrime case, individuals with relevant knowledge could be involved.

Another option, according to Asi, could be to have only one professional judge or a panel of three professional judges, similar to the system in circuit courts, in major corruption or financial cases.

"I don't see that involving lay judges in their current form adds significant value to these types of cases, so their presence is not necessarily required," Asi said.

Ministry: No plans to reform lay judges system

Andreas Kangur, head of the criminal law and procedure department at the Ministry of Justice, stated that there are currently no plans for a comprehensive reform of the role of lay judges.

Kangur explained that the law already includes mechanisms to prevent the need to restart entire proceedings in lengthy and complex cases like the Port of Tallinn trial. This is achieved by appointing a sufficient number of substitute lay judges to the process.

Kangur acknowledged that in the Port of Tallinn case, more lay judges needed to be replaced than the court initially involved in the proceedings. However, he noted that the courts have learned from this experience and will assess the need for substitute lay judges more appropriately in the future.

"The Port of Tallinn case was quite unusual. Let's say that everything that could go wrong did go wrong. We don't have many cases like this. But this also means that if we start changing laws based on an isolated incident, such changes may not be reasonable in the long term," Kangur remarked.

At the same time, Kangur mentioned that the Ministry of Justice has not conducted any analysis that would provide answers on whether and how to proceed with the issue of lay judges.

According to Kangur, the ministry is aware that similar cases where a lay judge's involvement leads to the cancellation of a court session or requires the case to be restarted are very rare.

He also questioned the wisdom of reducing the role of lay judges, especially in more complex cases such as those involving financial or corruption crimes.

"The role of lay judges is to bring additional life experience to first-instance criminal cases and to keep the administration of justice understandable and perceptible to non-lawyers. Why, then, should we say in corruption cases –
where an individual faces a prison sentence of more than five years – that we won't involve lay judges? Is it because they are inconvenient? But why are they inconvenient? Or is there some other reason why we say that the use of lay judges is not justified in these cases? Yet, in some other first-instance criminal cases, their use would still be entirely justified. I don't see where this line should be drawn, except perhaps for reasons of convenience," Kangur noted.

But Kangur acknowledged that the regulations concerning lay judges in Estonia are somewhat lacking and may require some adjustments.

"While judges have a significant number of professional safeguards, including restrictions on what they can do outside of their judicial duties and how they must conduct themselves, the law currently does not impose similar requirements on lay judges. This could be one area that warrants attention," Kangur stated.

He emphasized that the issue of lay judges is just one aspect of the broader challenges facing criminal proceedings. To optimize the duration of criminal trials and to prevent lengthy cases from becoming subject to delay tactics that could lead to their expiration, the Ministry of Justice has developed a draft proposal for the optimization of court proceedings, which was open for feedback over the summer.

Lay judges ordinary people "off the street"

A lay judge is an individual who participates in the administration of justice and has equal rights to the judge in the deliberation of a case. They do not need to have a legal education, as their role is to view the court proceedings primarily from a human, rather than a strictly legal, perspective.

Lay judges are involved only at the county court level and only in cases involving serious, first-degree criminal offenses. These offenses are those where the most severe penalties include fixed-term imprisonment of more than five years, life imprisonment, or, in the case of legal entities, forced dissolution of their activities.

Such cases are adjudicated by a panel consisting of one professional judge and two lay judges. The judges are equal, meaning that the lay judges can theoretically outvote the professional judge if they hold a differing opinion.

In June, the Harju County Court acquitted the defendants in the Port of Tallinn case, finding that the crimes had expired due to the statute of limitations. Both the Prosecutor's Office and the defense attorneys of the acquitted individuals have appealed the court's decision.

The Port of Tallinn case, which landed in court in 2019, went back to square one last April when a new bench had to be appointed as the court satisfied lay judge Peeter Kaasik's application to resign for health reasons. After that, additional sessions were scheduled to last into January 2025.

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