On October 13, 2023, I chaired a panel on fair trial issues in administrative court proceedings at the Judicial Procedure Conference led by the Supreme Court. Our panel delved into the pillars of fair trial and procedural transparency. Participating in the panel were Supreme Court justices Nele Siitam and Julia Laffranque, a judge from the Tallinn Circuit Court and professor of administrative procedure at the University of Tartu, Villem Lapimaa, and Triin Kaurov, partner at the law firm TGS.

It was entirely appropriate to introduce the topic by quoting § 24 of the Constitution: "Everyone has the right to be present at the hearing of their case. Court hearings are public. The court may, in cases and pursuant to procedure provided by law, declare its sitting or part thereof closed to the public in order to protect state or business secrets, decency, the private and family life of persons or where the interests of minors, the victim, or justice so require. The judgment of the court is pronounced publicly, except where otherwise provided by law in cases where the interests of minors, a party to a marriage, or the victim require otherwise."

The access to court proceedings and the proceedings themselves have significantly evolved by 2023 compared to 1992, when Estonia began building its independent judicial system. Whereas in 1992, one had to go to the courthouse to review a court decision, nowadays anyone can easily find online details of a court case involving their (annoying) neighbor or an unpleasant competitor and read juicy details associated with it. Or read juicy investigative journalism stories in newspapers like Ekspress every Wednesday, where the entire story is made clear to the average person in Valga and Tallinn based on court documents, shaping the entire society's attitude towards Person X.

Where have we reached regarding the transparency of court proceedings? Should it be made even more public, or, conversely, should the disclosure of court decisions be restricted due to the technically very simple accessibility? Against this background, the Ministry of Justice plans to change the principles of transparency in court proceedings and publish even court decisions that have not yet entered into force, in situations where the final truth has not yet been clarified. There is no societal consensus on this issue, and the debate continues.

Another important consideration in ensuring the fundamental rights of the parties to proceedings is the state's legitimate and constitutional right to protect state secrets. In today's security situation, this has gained even greater practical importance, but state secrets should not be handled lightly. And who protects the entrepreneur from the state if they or their lawyer cannot access the information? Once again, we are left to rely only on the fair judgment and conscience of the judge.

At the conference, we learned that the Estonian judicial system is already one of the most efficient in Europe, and the workload of Estonian judges is such that every other person would have already burnt out. Thus, the judge is also a superhuman, among other things. In this light, the question of holding hearings, which is extremely low in administrative courts, becomes particularly important. Should there be more hearings in the name of a fair resolution? A fascinating piece will soon be available from our discussion.

Conference recordings can be viewed here:

Author of photos:  Andres Tennus
Public procurement conference 2023

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