Elected judges would politicize courts

Photo: Joakim Klementi

If the justice reform is handled by small groups of people without broader public debate, nothing good can come of it, believes chairman of the Estonian Bar Association Hannes Vallikivi.

The council of the Conservative People’s Party (EKRE) presented eight proposals for reforming the justice system earlier this month. Let us presume they will succeed in entering the reform into force. What would be the results in your opinion?

Rather nothing good will come of stubborn reforms and constitutional amendments. Estonia has had four constitutions, and a lot of experts and politicians have been involved in drafting them. A reform carried out by close groups and without broader civilized and mutually respectful debate cannot end well. Good intentions may also go awry.

On the other hand, it is good parties and organizations are proposing ideas. A public debate in these matters shouldn’t be taboo. The question is that of expectations for that debate and conduct. Everything is fine as long as one’s own truth is not considered the only possible one, others are heeded and arguments presented in a rational manner.

Did any of the proposals seem sensible and practicable to you?

There is something to broader state responsibility and improvements to debt collection and bankruptcy proceedings.

I do not think bailiffs and trustees in bankruptcy are doing a poor job; however, we could use a better system for dealing with chronic debtors and bankruptcy masters. As far as I know, we will soon get the institution of a bankruptcy ombudsman and with it the chance of recovery in more complicated cases of embezzlement. This will surely have a positive effect on business climate and culture.

I do not share the conservatives’ general dissatisfaction with the court system. Estonian courts made around 33,000 rulings last year. Not all of them were 100 percent just and there were those that could be criticized both academically and politically. However, criticism of isolated rulings should not result in a fundamental reform. To say because of a few politically unpleasant rulings that the entire system is rotten to the core is not fair to judges.

The proposal of elected judges means the politicization of these positions. There are very few examples of that in the world. For example, lower instance judges are elected in the United States.

Would it be conceivable to apply a similar system in Estonia?

Definitely not. The scope is too different. We do not have the resources. Let us look at the idea of creating a separate constitutional court. I’m not in favor of creating a new institution the need for which has not been shown. We already have a functional constitutional review system working through general courts.

Mistakes made by courts can and must be corrected only by courts. That is why we have a multi-instance court system. The second and third instances exist for when something goes wrong in the first instance or when there are differences of opinion in interpreting the law.

An MP recently claimed nearly half of all rulings are changed. That is not really the case. Fewer than 7 percent of all first instance rulings are appealed in civil matters. Around 43 percent of those were annulled or changed in the past two years. That makes just 3 percent of all rulings. We cannot say something is very wrong.

The justice system is expected to create legal peace in a society. It is created if a person can try their case and present their arguments in several court instances and be heard. Proceedings where we tell the person “you can try, but don’t get your hopes up” cannot create that peace. This is what the planned possibility of taking individual complaints to the Supreme Court could end up becoming.

Therefore, a multi-stage court system is necessary if only for social wellbeing?

Definitely. However, the possibility to appeal needs to be realistic. Jurists’ opinions differ. For example, concerning the ruling of recognizing a same-sex marriage entered into in Sweden in Estonia. The first instance court found it should not be recognized, while the second instance disagreed and the third agreed with the circuit court.

The case was weighed by at least seven judges. They are highly educated specialists who have not only spent five years in law school but have also taken the judge’s exam or practiced abroad for longer periods of time. Only thorough deliberation by several specialists can yield a just resolution.

What about the speed of courts? EKRE council proposed sensible deadlines for courts, and it was not the first time the topic has surfaced in the media. At the same time, a recent study suggests Estonian courts are considered to be quite expedient in Europe. Whence the criticism, and what is it people expect of courts?

Statistically speaking, things are excellent in Estonia. Resolutions include typical cases where there are no lengthy proceedings or deliberation. Things that take years to process make up fewer than 10 percent. However, they are the reason for this impression of things dragging on.

It would not be right if actions concerning protection of small shareholders would sit in court for years. Lengthy proceedings are also inadmissible in family disputes. Lawyers believe that the justice system is there for achieving legal resolutions as quickly as possible.

However, judicial proceedings need to follow rules and rulings cannot be hurried. We are already among the fastest in Europe. We can automate a few more functions; however, we cannot make our courts noticeably faster. Anything further would have to come at the expense of quality.

The Riigikogu is weighing introducing preliminary investigation deadlines; however, that is a double-bladed sword. Deadlines are not a bad idea and offenses should be investigated quickly, but it should not be allowed to impact complicated proceedings. It is unacceptable when a person is followed for years before being charged.

Detectives and the prosecution should not wait and see whether a person will committee the same crime again for more evidence. Things should be sent to court as soon as possible.

In light of the judicial reform proposal – what should be changed about the Estonian court system?

I do not like the word “reform” in the first place. It is a euphemism one can use to refer to everything and anything. Whenever officials or politicians start talking about reforming something, it means they are not looking at a goal but a process that might not have a specific aim at all.

Judges are quite pressed for work today, but it seems they are managing. Digitalization of proceedings could help some things. As a lawyer, I find judges should not have to write up so many injunctions and intermediate proceedings documents as we could administer justice with fewer formal procedures.

Salaries are a problem. The pay of judges is competitive; however, their aides, who are expected to record sittings and register cases, are underpaid. They are paid around €800 on average. You cannot expect high quality for that. Some of the work done by technical staff could be mechanized and perhaps salaries hiked that way.

Are political forces trying to participate in some debates too forcefully? Or perhaps the opposite is true? What is the situation with meddling in Estonia?

It is necessary to visit each other’s sandboxes, but it needs to follow certain rules. Politicians must respect the role of courts and the latter must know their historical limits.

Courts do not commence things and must follow the law to the letter. The law is not created by the courts but by the Riigikogu, the government and also the European Union.

Justice is always made up of shades of gray. Courts must also respect constitutional principles; for example, respect for fundamental freedoms. Also, valid behavioral norms and customs. In Estonia, they are undoubtedly based on Western European Christian culture – love for the fellow man – and a Nordic attitude emphasizing hardworking and honest character.

How common is ungrounded meddling and blowing things out of proportion in Estonia today?

Not very. All our political forces are doing what they have been elected to do. Things are very good in Estonia, broadly speaking.