Report on the Exchange and Summary

European Judicial Training Network Exchange Programme for Judicial Authorities

REPORT ON THE EXCHANGE AND SUMMARY

Instructions: 1. The report must be sent to the EJTN ([email protected]) within one month after the exchange. 2. Please use the template below to write your report (recommended length: 4 pages). 3. Please write in English or French. Should this not be possible, the report can be written in another language but the summary must be in English or French. 4. Please read the guidelines for drafting the report (in Annex). Feel free to add any other relevant information in your report. 5. The summary shall contain a synthesis of the most important information of the report. 6. Please note that NO NAMES, neither yours nor the ones of the persons you met during your exchange, should appear in the report in order to ensure anonymity1. Initials can be used when necessary.

Identification of the participant

Name:

First name:

Nationality: German

Country of exchange: Estonia

Publication For dissemination purposes and as information for future participants in the Programme please take note that, unless you indicate otherwise, EJTN may publish your report in its website. In this case the report will remain anonymous and your name and surname will not appear. To this aim, please do not mention any names in the reports. Initials can be used instead.

Please tick this box if you do not wish for your report to be published

For completion by EJTN staff only Publication reference:

1 To that purpose, the first page of this report will be taken out before any possible publication

Réseau Européen de Formation Judiciaire/European Judicial Training Network (aisbl) Rue du Luxembourg 16B, B-1000 Bruxelles; Tel: +32 2 280 22 42; Fax: + 32 2 280 22 36; E-mail: [email protected]

With the support of the European Union

For completion by EJTN staff only Publication reference:

Identification of the participant

Nationality: German

Functions: Administrative Judge

Length of service: 16 years

Identification of the exchange

Hosting jurisdiction/institution: Riigikohus / Supreme Court of Estonia

City: Tallinn / Tartu

Country: Estonia

Dates of the exchange: October 1st - October 12th 2012

Type of exchange:

one to one exchange group exchange

general exchange specialized exchange (please specify : )

REPORT

I. Programme of the exchange

The exchange took place in Estonia from the October 1st to October 12th, 2012. The participants came from France, Italy, Romania, Spain and Germany. The group consisted of two civil judges, three criminal judges and myself, an administrative judge. In the first week we visited several institutions in Tallinn and Tartu and attended the Estonian Lawyers´ Conference “Constitution 20. From the Pragmatism of Legal Practise to Constitutionalism” in Tartu. For the second week the group split up and the participants were separated into several courts. a) The group exchange from October 1st to October 5th, 2012 in Tallinn and Tartu

On Monday, the 1st of October, we visited the Harju County Court in Tallinn, which is one of four county courts in Estonia. We gained an insight into the structure of the Estonian three-level court system and learned that the first instance is comprised of four county courts (the Harju, the Pärnu, the Tartu and the Viru County Court) and two administrative courts (the Tallin and the Tartu Administrative Court). The second instance is comprised of two circuit courts (the Tallin and the Tartu Circuit Court). The third instance is the Supreme Court in Tartu.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

The Harju County Court has three different courthouses in Tallinn. First we went to the Tartu maantee courthouse which deals with civil law cases. One of the judges gave us a brief overview of the Estonian court system, the court administration and the usual working processes. We were made familiar with the way an average civil case is handled in the first instance. In difficult cases a preliminary hearing can be held to schedule the case. In such a hearing first evidence can be taken if necessary. Then one or more often two hearings (of approximately one hour) will take place before the jugdement will be rendered. In such proceedings the judge is obliged to explain the law, in particular, the substantial law to the parties. She (or he) can also make use of a written procedure. Apart from the regular procedure there is an order for payment procedure, which is used quite often. The average length of civil proceedings in the first instance is approximately 160 days. Furthermore we had the opportunity to attend a hearing: A hire- purchaser defaulted on the payment due to a difficult family situation. The hearing ended with a settlement, which was taken to the minutes. A judge (Kohtunik) is supported in his work by a legal advisor (Konsultandid). Both of them benefit from a highly developed modern IT-System and a database.

Afterwards we visited the Liivalia courthouse of the Harju County Court in Tallinn, which is competent for criminal cases and misdemeanors. Here we were given a presentation on the court’s organisation and on some of the pending cases. In addition, we attended a hearing in a criminal tax case. We were also made familiar with the all-digital facilities in the working process and especially in the hearing.

The first day was completed by a visit of the Riigikogu, the Estonian Parlament. The 12th chamber of the Riigikogu has 101 members (21 women and 80 men). I was surprised to learn that in Estonia modern technology is also used for the elections of the Riigikogu. Using their identity card Estonians can vote electronically over the internet. Moreover we gained an insight into the history and the different tasks of the Riigikogu. It is competent for example to adopt a bill, to elect the President of the Republic pursuant to § 79 of the Constitution, to ratify and denounce international treaties in accordance with § 121 of the Constitution, to pass the state budget, to appoint the Chief Justice of the Supreme Court (on a proposal of the President of the Republic) and to appoint the justices of the Supreme Court (on a proposal of the Chief Justice of the Supreme Court). We met a member of the Riigikogu who was a former judge at the European Court of Human Rights and designed the Estonian judicial system. We learned, that the Ministry of Justice is responsible for the appointment of judges and for the budget of first and second instance courts. Nonetheless judges are independent and the Minister of Justice has to refrain from any influence on the courts. The Supreme Court is completely independent and has its own budget.

On Tuesday, the 2nd of October 2012, we visited the Ministry of Justice, where we could deepen our knowledge of the Estonian court system and court administration. I found the statistics quite interesting. We heard about the incoming cases in 2011 (29.575 regular civil cases, 39.362 orders for payment procedures, 20.908 criminal cases, 3.206 administrative cases and 6.852 cases in the courts of appeal). It was also worth knowing that today there are 242 judges in Estonia (153 judges in the four county courts of the first instance, 27 judges in the two administrative courts of the first instance, 43 judges in the two courts of appeal and 19 judges in the Supreme Court).

Afterwards we went to the Tallinn Circuit Court (court of appeal) where the chairman explained the tasks of the court. We learned that in the Tallin Circuit Court exists a "Riigikohut Entsendis", i.e. a permanent office of the Supreme Court.

At the end of the second day the Prosecutor General welcomed us in his office and made us familiar with the Estonian criminal justice system. There are 199 prosecutors in Estonia. Since 2004 it is stated in the law, that the prosecutor´s office leads the pre-trial proceeding ensuring the legality and effectiveness of it and represents public prosecution in court (Section 30 of the Code of Criminal Procedure). If necessary, the same prosecutor runs a case from the lowest court to the Supreme Court. A prosecutor can send a criminal matter to the court in simplified proceedings. There is a short procedure, a compromise procedure (plea bargaining), an imperative procedure and a fast procedure (48 hours). Most of the

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities criminal cases will be dealt with in the short procedure. Only 11% of the cases go to the adversarial procedure (for serious crimes).

On our third day, Wednesday the 3rd of October 2012, we visited the office of the Chancellor of Justice. According to his mandate the Chancellor of Justice is the guardian of constitution. He can start constitutional proceedings, for instance send a request to the Supreme Court. We learned that the Estonian legal system does not provide for an individual constitutional complaints procedure in constitutional matters. The Chancellor of Justice is also an ombudsman and an arbitrator of discrimination disputes.

Then we travelled to Tartu and visited our hosting institution, the Riigikogu (Supreme Court of Estonia). The Chief Justice of the Supreme Court gave us an overview of the structure, the tasks and the organisation of the Supreme Court.

On our fourth day, Thursday the 4th of October, we attended the Estonian Lawyers´Conference "Constitution 20. From the Pragmatism of Legal Practise to Constitutionalism" in Tartu. The Chief Justice of the Supreme Court gave a paper on the history and the development of the Estonian Constititution including the amendments ("Constitution 20"). The Estonian Judge at the European Court of Human Rights also held a speech dealing with the question of whether and how poverty, lack of democracy and problems with access to justice can be tackled. Furthermore an Italian Professor for public law examined populism as the "touchstone of democracy". In the afternoon our group joined the work group "Criminal Law". The conference ended with a reception in the evening which gave us an excellent opportunity to continue our discussions in a nice and relaxed atmosphere in the AHHAA Science Centre of Tartu.

On Friday, the 5th of October, we had the opportunity to visit the judicial training department of the Supreme Court of Estonia, where we were made familiar with the history of this court. We heard that the judges in Estonia receive regular judicial training.

Afterwards we spent two hours in the Tartu Prison. We met its warden, who showed us the different buildings and some of the prison cells. The prison is employing four lawyers. Two of them explained in detail what kind of inmate disputes commonly occur.

b) The individual exchange from October 8th to October 12th in Tallin

In this week I had the opportunity to visit the Tallinn Circuit Court and the Tallinn Administrative Court. In both courts I attended hearings and had the chance to deepen my knowledge of the Estonian legal system. I met very friendly and open minded Estonian colleagues who let me see behind the curtain of their legal system and their way of dealing with cases. They explained the procedural and substantial laws relevant to the cases in the hearings. I also had the opportunity to understand the structure of the working process, the allocation of cases and the annual statistics of the two courts. We discussed the role of the European Convention for the Protection of Human Rights and Fundamental Freedoms in the national law and the lack of implementation of European Law in certain areas of law, like for environmental law and tax law. Furthermore I got familiar with the extraordinary effiency of the Estonian IT-system.

II. The hosting institution

The hosting institution was the Riigikogu, which is the Supreme Court of Estonia. The Riigikogu is the highest court of Estonia and reviews court judgements by the way of cassation proceedings. The Riigikogu is also the court of constitutional review. It has four chambers (the Civil Chamber, the Criminal Chamber, the Administrative Chamber and the Constitutional Review Chamber). The Chief Justice is ex officio the Chairman of the Constitutional Chamber. In addition to him there are eight justices of the Supreme Court in the Constitutional Chamber. The highest body of the Supreme Court is the Supreme

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

Court en banc, which is comprised of all 19 justices. Quite recently the Supreme Court en banc dismissed the request of the Chancellor of Justice to declare an article of the treaty establishing the European Stability Mechanism (ESM) to be in conflict with the constitution of Estonia (Judgement No. 3-4-1-6-12 from July 12th 2012, www.rigikohus.ee/?id=1347). The Supreme Court ruled that the founding treaty of the ESM is in line with the constitution. The vote was ten to nine. It is also worth mentioning that, in general, the Supreme Court shall render the judgement within 30 days after the last court hearing.

The Supreme Court also has a department that organises the judicial training for judges in Estonia. We heard that the judges were trained regularly and frequently. Further the Supreme Court has an information technology department that maintains and develops electronic databases, hardware and software.

III. The law of the host country and the comparative law aspect in the exchange

Being an administrative judge I focused on the administrative procedure. The Estonian Administrative Procedure Code from 1993 is called "Halduskohtumenetluse Seadustik" (HKMS) and was recently reformed. It was a fundamental reform which came into effect this year. The Halduskohtumenetluse Seadustik and the German Code of Administrative Court Procedure (Verwaltungsgerichtsordnung - VwGO -) have a lot in common. There are similar kinds of actions, like a action for annulment of an administrative act, an action for the issue of a rejected or omitted administrative act (writ of mandamus) and an action for a declaratory judgement. The general time limits to take a case to court are similar for annulment actions and for a writ of mandamus. For these cases the time limit is 30 days in Estonia (§ 46 HKMS) and one month in Germany (§ 74 VwGO).

In both member states the majority of cases are heard by a judge sitting alone (single judge) in the court of first instance. However, Germany and Estonia have different legal provisions on the composition of the bench at the outset. The Estonian Administrative Procedure Code provides that the case is to be heard by a judge sitting alone (single judge) who can transfer the case, if necessary, to the full bench consisting of three judges. This is in contrast to Germany where the case has to be assigned to the single judge by a decision of the chamber (§ 6 VwGO) otherwise the jurisdiction will be exercised by the full bench composed of three professional and two lay judges (§ 5 VwGO). § 6 VwGO specifies the conditions under which the case shall be assigned to the single judge. It stipulates that, as a rule, the chamber shall assign the legal dispute to one of its members as an individual judge for a ruling if the case does not show any particular factual or legal difficulties and the case has no fundamental significance.

The administrative courts in Estonia have a wider jurisdiction than the German administrative courts. The jurisdiction of the Estonian courts is regulated in § 4 HKMS. The Estonian administrative courts are competent for all disputes arising under public law including tax law, social law and inmate disputes whereas in Germany the administrative courts do not hear tax law and social law cases since there are specialised tax law and social law courts. The inmate disputes are allocated to the criminal courts in Germany. According to Estonian law there are general time limits for handling the case.

Although the legal protection and the administrative procedure is quite similar in the legal system in Estonia and in Germany there is a remarkable difference. Estonia does not provide for an individual complaints procedure before a constitutional court. An individual can “only” file a lawsuit to a general court or an administrative court and raise constitutional arguments in favour of his action. The final decision will be rendered by Supreme Court of Estonia which is the court of third instance. It performs simultaneously the functions of the highest court of general jurisdiction, of the supreme administrative court as well as of the constitutional court. This is different to Germany which has a separate Federal Constitutional Court and Constitutional Courts in each State. Any person who claims that one of her basic rights has been violated by public authority may lodge a constitutional complaint with the Federal Constitutional Court. If legal action against the violation is admissible, the constitutional complaint may not be lodged until all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a constitutional complaint lodged before all remedies have been exhausted if it is

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities of general relevance or if recourse to other courts first would entail a serious and unavoidable disadvantage for the complainant (§ 90 of the Federal Constitutional Court Act - “Bundesverfassungsgerichtsgesetz”).

V. The European aspects of the exchange

I realised that the number of immigration and asylum law cases is significantly lower in Estonia. Nevertheless there are many other disputes in which European law problems arise, for instance in the area of environmental. To my mind the Estonian colleagues are interpretating the European legislation in the same way as the administrative judges in Germany. In the discussions I got the impression that in Estonia the European regulations and directives and their implementation into the national legal system is a very dynamic process which is constantly under development. Like in my country the Estonian colleagues are making the European Convention for the Protection of Human Rights and Fundamental Freedoms standard practise, e. g. when handling inmate disputes.

VI. The benefits of the exchange

First of all, it was very well organised exchange. The EJTN and all the Estonian institutes and colleagues did a great job. Thank you very much! Meeting the participants of the other countries with their different legal background was also a valuable experience. All in all the exchange gave my a deeper knowledge of the legal system of another European member state, of the daily life of judges and of their working methods. The exchange also enabled me to see the German legal system from a different point of view and to develop new ideas. To become acquainted with a different legal system has been a very valuable professional and personal experience.

I would like to stress, that it was perfect to have the group exchange during the first week and the individual exchange in the second week. In the first week I got a worthwhile overview on the whole legal system in Estonia and I had the opportunity to understand the key principles. In the second week I had the chance to deepen my knowledge and to discuss plenty of interesting matters with the judges in the area of administrative law which I am specialised in. I have the impression that the whole Estonian legal system is very efficiently organised. The Estonian three-level court system is one of the simplest in Europe. The procedural law and the substantial law seem to be very manageable and functional. The current statistic affirms my impression that the Estonian courts do work efficiently and fast. One reason may be the general time limits for the handling of the cases in the Estonian law. Another important reason certainly is the high motivation, engagement and qualification of the Estonian judges. Furthermore the powerful IT- System seems to be a basic element for the effectiveness of the Estonian legal system. In Estonia there is a computer system for the administration of the files which opens an electronic access to all the informations of the case. All documents are available digitally (Court Information System - CIS -, Public file in internet - AET - and Public E-file). The parties can send their complaints and documents electronically and follow their cases online. In hearings all parties have an online access (Wi-Fi) and a projector is availible to show the content of the digital documents. Every document can be signed digitally by using the identity card. If connected with the internet, a jugde can work with the files, do electronic researches and sign his jugdement digitally from everywhere. To me the IT-system seems to be quite easy to handle. It is also constantly under development. There will be a new version of CIS next year. Some tools will be improved. We do not have a comparable IT-support in Berlin and I got the impression that we would benefit a lot from a system like CIS and Public E-file.

VII. Suggestions

The exchange was a very valuable professional and personal experience. The EJTN should continue the exchange programme and especially the short term exchanges.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

As mentioned before, for several reasons it was perfect to have the group exchange during the first week and the individual exchange in the second week. Maybe this combination is worth to be described in the “Practical Guide to the Exchange Programme for Judicial Authorities” and in the “Registration Form” of the EJTN.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

SUMMARY

I participated in a group exchange with five other judges from France, Italy, Romania, Spain and Germany (two civil judges, three criminal judges and myself, an administrative judge) which took place in Estonia from the October 1st to October 12th, 2012. In the first week the group visited several institutions in Tallinn and Tartu and furthermore attended the Estonian Lawyers´ Conference in Tartu. Then the group split up for individual exchanges in the second week.

Being an administrative judge I focused on the administrative procedure. The Estonian Code of Administrative Court Procedure from 1993 is called "Halduskohtumenetluse Seadustik" (HKMS). The HKMS and the German Code of Administrative Court Procedure (VwGO) have a lot in common. There are similar kinds of actions and similar general time limits to take a case to court for annulment actions and to file a writ of mandamus. In both member states the majority of cases a judgement in the first instance are heard by a judge sitting alone. The administrative courts in Estonia have a wider jurisdiction than the German administrative courts. Like im my country the Estonian colleagues are making the European Convention for the Protection of Human Rights and Fundamental Freedoms standard practise, e. g. when handling the inmate disputes.

The Estonian courts do work efficiently and fast. One reason may that the Estonian procedural law prescribes time limits for handling the pending case. Certainly another important reason is the high motivation, engagement and qualification of the Estonian judges. Furthermore the powerful IT-System seems to be a basic element for the effectiveness of the Estonian legal system.

All in all, the exchange gave my a deeper knowledge of the legal system of an another European member state, of the daily life of judges and of their working methods. The exchange also enabled me to see the German legal system from a different point of view and to develop new ideas. To become acquainted with a different legal system has been a very valuable professional and personal experience.

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities

ANNEX GUIDELINES FOR DRAFTING THE REPORT

I- Programme of the exchange Institutions you have visited, hearings, seminars/conferences you have attended, judges/prosecutors and other judicial staff you have met… The aim here is not to detail each of the activities but to give an overview of the contents of the exchange. If you have received a programme from the hosting institution, please provide a copy.

II- The hosting institution Brief description of the hosting institution, its role within the court organisation of the host country, how it is functioning…

III- The law of the host country With regard to the activities you took part in during the exchange, please develop one aspect of the host country’s national law that you were particularly interested in.

IV- The comparative law aspect in your exchange What main similarities and differences could you observe between your own country and your host country in terms of organisation and judicial practice, substantial law..? Please develop.

V- The European aspect of your exchange Did you have the opportunity to observe the implementation or references to Community instruments, the European Convention of Human Rights, judicial cooperation instruments? Please develop.

VI- The benefits of the exchange What were the benefits of your exchange? How can these benefits be useful in your judicial practice? Do you think your colleagues could benefit of the knowledge you acquired during your exchange? How?

VII- Suggestions In your opinion, what aspects of the Exchange Programme could be improved? How?

European Judicial Training Network With the support of the European Union Exchange Programme for Judicial Authorities