Strasbourg, 23 March 2004

CCJE (2004) 5
English only

Consultative Council of European Judges (CCJE)

Questionnaire on management of cases, judges’ role in the proceedings, and use of alternative dispute settlement methods: reply submitted by the delegation of Estonia

A. ACCESS TO JUSTICE

1. Explanations about how to take recourse to the courts are available on the web sites of the Supreme Court of Estonia and the Ministry of Justice. Court judgments are published on the Internet. There is a plan to make standard forms of statements of certain claims available in courts.

2. Proceeding from the inquisitorial principle the judges in administrative matters have the obligation to assist a complainant with preparing actions and complaints. In criminal matters the appeal is free of state fee and as of 1 July 2004 the requirement of security on cassation will be abolished, too. In civil matters, in the case of proceedings on petition, a court must collect evidence on its own initiative.

3. The law regulates the right to a lawyer at the expense of the state.

(a) In administrative court proceedings and civil court proceedings the insolvency of a person is the prerequisite. In criminal proceedings the law establishes that a defence counsel shall be appointed to the accused if the participation of criminal defence counsel in the proceedings is mandatory (e.g. in criminal matters of minors) or a suspect, accused or accused at trial requests the participation of a counsel and he does not have one. In such cases the participation of a counsel is guaranteed by the Estonian Bar Association at the expense of the state. The authorities have no right to refuse to appoint a counsel to a person at the expense of the state. In principle, the Code of Criminal Procedure which will enter into force on 1 July 2004 will provide for analogous regulation. It is also worth mentioning that the new Code will extend the circle of instances when the participation of a counsel shall be mandatory. Subsections (2) - (4) of § 45 of Code of Criminal Procedure establish the following:

(2) The participation of a counsel throughout a criminal proceeding is mandatory if:
1) at the time of commission of the criminal offence, the person being defended was a minor;
2) due to his or her mental or physical disability, the person is unable to defend himself or herself or if defence is complicated due to such disability;
3) the person is suspected or accused of a criminal offence for which life imprisonment may be imposed;
4) the interests of the person are in conflict with the interests of another person who has a counsel;
5) the person has been under arrest for at least six months.
(3) The participation of a counsel in a pre-trial proceeding is mandatory as of presentation of the criminal file for examination pursuant to the procedure provided for in subsection 224 (1) of this Code.
(4) The participation of a counsel in a court proceeding is mandatory.

(b) Aid is granted by the courts. In criminal matters the criminal defence counsel is appointed by the preliminary investigator, the prosecutor or the court.

(c) Funds are allocated from the state budget.

4. (a) In administrative matters the complainant who has lost the case is not always required to pay the advocate's fees of the winning party if the latter is an institution/entity.

(b) §§ 526-531 of the Law of Obligations Act provide for a possibility of concluding legal expenses insurance contracts.

(c) In administrative matters and civil matters the legal expenses recoverable from the losing party must not exceed 5% of the value of the dispute.

B. REDUCTION OF EXCESSIVE WORKLOADS IN THE COURTS

1. The institution of an assistant judge has been introduced. Assistant judges make entries into the land register and commercial register, maintained by courts.

2. There are no such bodies.

3. The Ministry of Justice is responsible for such analysis

4. The Ministry of Justice exercises supervisory control over the judges of the courts of first and second instances.

C. QUALITY OF JUSTICE AND ITS ASSESSMENT; QUANTITATIVE STATISTICAL DATA; MONITORING PROCEDURES

1. No separate system for assessing the quality of judicial activity has been worked out. The percentage of judgments of first instance courts set aside by higher courts can be regarded as an indicator of the quality of the first and second instance courts. As the appeal against judgments depends on very many factors, the referred indicator is not relied on when deciding on the quality of the courts' work. At the same time the results of the analysis of reasons for judgments being quashed are used as a basis for developing judges' training programmes.

2. As the courts of first and second instance are within the area of government of the Ministry of Justice, the quantitative statistical data collection concerning these courts is the duty of the Ministry. The Supreme Court collects and maintains the statistical data concerning its own activities.

(i) There is a centralised one-level computerised data base - the database of the statistics and judgments and rulings of the first and second instance courts.

(ii) The chief processor of the database is the Ministry of Justice, the authorised processors of the database are the Ministry of Justice and the courts of the Republic of Estonia. The procedure for the maintenance of the database and the data to be registered in the database are approved by a Regulation of the Minister of Justice.

(iii) Statistical data on its own is not used in professional evaluation of individual judges;

(iv) Statistical data may serve as a ground for a more thorough supervision of the performance of chairmen of courts, judges and court officers.

3. The data concerning the length of proceedings and number of cases not disposed of is analysed with the aim of developing measures for improving the organisational work of courts and for ascertaining the optimum number of judges and court officials needed for efficient administration of justice.

4. The first and second instance courts submit statistical reports to the Minister of Justice. The form and date of submission of the reports is approved by the Minister of Justice. The statistics concerning the cases heard by the Supreme Court is collected by the Supreme Court itself. The Supreme Court maintains a register of judgments with the aim of collecting, systematising and making available to the public the judgments of circuit courts and the Supreme Court.

D. ALTERNATIVE DISPUTE RESOLUTION

a) in general

1. In administrative matters there are the following options:

    - settlement proceedings in an administrative court
    - challenge proceedings in an administrative authority
    - recourse to the Legal Chancellor.
    In civil matters it is possible to address the Arbitration Court of Estonian Chamber of Commerce and Industry. The costs shall be born by the parties.

2. There are no such legal provisions.

3. The services of advocates are allowed, but only at the own expense of the person. If a settlement is reached in a court the legal aid at the expense of the state is possible (see A.3).

4. Confidentiality is protected by law in all cases. Subsequent to challenge proceedings a person can have a recourse to a court within 30 days. No judicial proceedings are provided for after the recourse to the Legal Chancellor. It is possible to appeal to a court against the decision of the referred Arbitration Court, if the latter has materially violated a procedural norm.

5. No.

b) in-court ADR

1. In administrative matters a judge must actively look for possibilities to settle. Persons can not be compelled to appear before a mediator or a conciliator against their will. An administrative judge may act as a mediator in concluding a settlement between parties in an administrative court. The legal expenses are divided by agreement of the parties. If the parties do not agree on the division of expenses the parties shall cover their expenses themselves. The state may be required to cover the expenses of an insolvent person (see A.3).

In civil matters - pursuant to the new draft Civil Court Procedure Code, which is undergoing the legislative proceeding in the parliament - a judge shall actively pursue settlement of parties. Under § 165(3) of the valid Code of Civil Procedure, in the pre-trial proceeding of a matter which does not involve the public interest, a court may appoint an impartial person as the conciliator of the parties and require the parties to appear before such person for conciliation during the term specified by the court. As far as it is known the provision has never been applied in practice. The expenses are covered by the parties themselves. pursuant to the draft the parties will recover 50% of the paid state fee if the settlement is reached.

2. Judges have no such right

3. A court conciliation or mediation agreement has the same force of law as court judgments. A settlement shall be approved by a court ruling. A court ruling is an execution document, which may be submitted to bailiff for enforcement.

c) out-of-court ADR

1. If the rights of a person have been violated in a challenge proceedings or in the proceedings before the Legal Chancellor, the person may have a recourse to an administrative court. A decision of an Arbitration Court of the Estonian Chamber of Commerce and Industry may be appealed against in a court if the Arbitration Court has materially violated a procedural norm.

d) ADR in administrative law disputes

1. The participation of public entity is provided for in the settlement proceedings, challenge proceedings and in the proceedings before the Legal Chancellor. The representative is competent to conclude all kinds of settlements.

e) criminal law and ADR

1. In the valid criminal procedural law the criminal proceedings regarding private charges resemble the conciliation procedure the most. Criminal proceedings regarding private charges are allowed in regard of the following offences:

- physical abuse;
- violation of obligation to maintain confidentiality of secrets which have become known in course of professional activities;
- violation of obligation to provide maintenance to child;
- violation of obligation to provide maintenance to parent.

In regard to the referred offences it is only the victim or his or her legal representative who has the right to request the commencement of criminal proceedings. An application shall be submitted to a court and may be withdrawn until the end of summations. The criminal proceedings shall be terminated upon the conciliation of the victim with the accused. In criminal proceedings regarding private charges, before the commencement of criminal proceedings, the court shall seek possibilities to conciliate the victim and the accused at trial. If conciliation is achieved, a judge shall prepare the minutes which shall be signed by the victim and the person against whom the private charges were brought.

Nevertheless, in the case of the referred four offences and irrespective of the conciliation of the victim with the accused, ordinary criminal proceedings are possible, that is if it is in the public interest or if the victim is unable to protect his or her rights or lawful interests due to his or her helpless situation or a dependent relationship with the accused.

The Code of Criminal Procedure that will enter into force on 1 July 2004 will no longer provide for criminal proceedings regarding private charges.

Until 1 July 2004 the valid criminal procedural law stipulates that criminal proceedings concerning a criminal offence in the second degree committed as a result of negligence shall not be commenced, and criminal proceedings concerning such criminal offence may be terminated if the victim does not wish to participate in the proceedings due to conciliation. Termination of criminal proceedings on the basis of conciliation is not permitted if the prosecutor or a participant in the criminal proceedings contests such termination.

E. CASE MANAGEMENT

a) in general

1. Relevant information is collected and proceeded by the Ministry of Justice.

2. On certain conditions (especially for the solution of procedural matters) the court may, on its own initiative, order that the proceedings shall be written. The court may specify terms for submitting documents. The court can prohibit the abuse of rights.

In civil matters the second instance court and the Supreme Court can opt for written proceedings if the parties have not requested for an oral hearing.

3. Administrative matters in the first instance court are, as a rule, adjudicated by a single judge, whereas on appellation and cassation level cases are heard by panels of at least three judges.

In civil matters, it is a singe judge who adjudicates matters in the first instance (it is possible to involve two lay judges), and in the panels of at least three judges on the appellation and cassation level. Pursuant to the new draft Code of Civil Procedure a single judge shall be competent to render certain procedural judgments and hear simple matters.

Proceeding of criminal offences in the second degree and simplified proceedings are adjudicated in the first instance by a single judge. Criminal matters related to organised crime are heard, in the first instance, by the panel of three judges. other criminal matters are heard by a panel composed of a judge and two lay judges. On appellation and cassation level the criminal matters are heard by a panel of a least three judges. beginning with 1 July 2004 the adjudication of criminal matters in the first instance courts shall be regulated as follows (Code of Criminal Procedure):

§ 18. Panels of county and city courts
(1) In county and city courts, criminal matters concerning criminal offences in the first degree shall be heard by a court panel consisting of the presiding judge and two lay judges. Lay judges have all the rights of a judge in a court hearing.
(2) Matters concerning criminal offences in the second degree and criminal matters in which simplified proceedings are applied shall be heard by a judge sitting alone.
(3) Criminal matters relating to criminal organisations shall be heard by a panel of three judges.
(4) If the court hearing of a criminal matter is time-consuming, a reserve judge or reserve lay judge may, by a court ruling, be involved in a court session who is required to be present in the courtroom during the court hearing. If a judge or lay judge cannot continue as a member of a court panel, he or she shall be replaced by a reserve judge or reserve lay judge.
(5) Pre-trial proceedings shall be conducted by a judge sitting alone. /.../

b) in civil disputes

1. The majority of the principles of Recommendation No. R (84) 5 concerning principles of civil procedure designed to improve the functioning of justice have been taken into account, with the exception of principle 8. All recommendations shall be implemented as of the entering into force of the new Code of Civil Procedure.

2. There exist no such procedure at present.

3. (i) there are no simplified methods of commencing litigation;

(ii) Securing of an action takes place without hearing the other party. In administrative matters provisional legal protection may be ordered without hearing the participants in the proceeding.

(iii) No such rules, with the exception that in second and third instance courts the proceedings shall be oral only if a participant to the proceeding so requests.

(iv) There are no prohibitions or restrictions of certain exceptions and defences.

(v) The valid law does not regulate e.g. the agreement of parties in regard of excluding certain evidence. It depends on judicial practice.

(vi) No rules; may be adjourned for a "reasonable" time.

(vii) A court may order, on its own initiative, that an expert assessment be carried out in cases relating to public interest.

(viii) In civil matters both the valid law and the new draft require an active role for the court. In administrative matters the active role is mandatory.

(ix) No.

4.
4.1

(i) No. In administrative matters only when ordering provisional legal protection;
(ii) Not in the valid law; possible under the new draft.
(iii) Not in the valid law; possible under the new draft.
(iv) No.
(v) No.
(vi) Not in the valid law; possible under the new draft.
(vii) No.
(viii) No.
(ix) No.

4.2 No.

4.3 Yes, in the case of securing of an action and ordering provisional legal protection.

5. In civil matters many possibilities are available to courts, including ordering the defendant to perform an act or not to perform an act, etc. In administrative matters a court can, among other thing, request that an agency perform a concrete act, the court may also revoke administrative legislation, prohibit activities and ascertain facts having legal importance.

6. Non-observance of time-limits established by law does not result in any sanctions for a court. Courts with huge work-load are unable to meet all time-limits. For the hearing of administrative matters the law prescribes a two-month term, but in the majority of cases it is not applicable in practice. The court can order provisional legal protection if later on the protection of rights would prove impossible.

7. The Code of Civil Procedure establishes measures for securing action as follows:

§ 156. Measures for securing action
(1) The measures for securing an action are:
1)the establishment of a judicial mortgage on an immovable belonging to the defendant;
2) the making of a notation in a property register concerning a prohibition on disposal of property;
3) seizure of a movable belonging to the defendant which is in the possession of the defendant or another person;
4) a prohibition on a defendant from departing from his or her residence,
5) a prohibition on a defendant from entering into certain transactions or performing certain acts;
6) a prohibition on other persons from transferring property to the defence or performing other obligations with regard to the defendant;
7) in the case of the filing of an action for release of property from seizure, suspension of the compulsory sale of the property;
8) suspension of collection in an execution proceeding if the execution document is contested by the filing of an action.
(2) A court may apply several measures concurrently to secure an action.

§ 158. Hearing of petition for securing of action
(1) A court shall adjudicate a petition for the securing of an action not later than on the working day following the date of submission of the petition for the securing of an action.
(2) The defendant and other participants in the proceedings shall not be notified of the hearing of a petition for the securing of an action. A court shall prohibit the defendant from departing from his or her residence by summoning the defendant and obtaining his or her signature.

The Code of Administrative Court Procedure establishes the following:

§ 121. Provisional legal protection
(1) The filing of an action or protest shall not prevent the execution or issue of an administrative act or taking of a measure against which the action or protest is filed unless otherwise provided by law.
(2) An administrative court may issue a ruling on the provisional protection of the rights of a person filing an action in all stages of proceedings at the reasoned request of the person filing the action or on its own initiative, if otherwise execution of a court judgment is impracticable or impossible.
(3) By a ruling on provisional legal protection, an administrative court may:
1) suspend the validity or execution of a contested administrative act;
2) prohibit the issue of a contested administrative act or taking of a contested measure;
3) require an administrative authority to issue an administrative act being applied for or take a measure being applied for or terminate a continuing measure;
4) apply other measures for securing an action specified in clauses 156 (1) 1)-3) of the Code of Civil Procedure.
(4) An administrative court may apply several measures in a ruling on provisional legal protection.
(5) A right, obligation and prohibition arising from a ruling on provisional legal protection, and an administrative act issued on the basis of the ruling on provisional legal protection is valid until a court judgment or a ruling on return of an action or on termination of the proceedings enters into force, unless the court designates a shorter term.

§ 122. Application and proceedings for provisional legal protection
(1) In order to issue a ruling on provisional legal protection, an application may be filed together with an action or after the filing of an action, or a challenge in mandatory pre-trial proceedings.
(2) An application for provisional legal protection shall be reviewed in written proceedings or at a court session. Submission of evidence and the opinions of other participants in the proceedings may be required only if this is possible without delay. Upon issue of a ruling on provisional legal protection, the public interest and the rights and freedoms of third persons shall be taken into account. The ruling may be conditional. The ruling on provisional legal protection enters into force as of the moment of communication.
(3) A court may annul or amend a ruling on provisional legal protection in all stages of proceedings at the request of a participant in the proceedings or on its own initiative.
(4) An administrative court shall send a ruling on provisional legal protection promptly to the corresponding agency or official or other person performing administrative functions in public law for execution.
(5) A participant in proceedings may file an appeal against a ruling on provisional legal protection or a ruling by which an application for provisional legal protection is denied. A ruling of a circuit court concerning the appeal against such ruling is not subject to appeal. If a ruling on provisional legal protection is issued by a circuit court, an appeal against the ruling may be filed with the Supreme Court.
(6) An administrative court may fine a person for failure to execute a ruling on provisional legal protection pursuant to § 98 of this Code. A person filing an action has the right to request that the person at fault compensate for damage arising from failure to execute the ruling on provisional legal protection.
(7) If an action is dismissed, that which was acquired on the basis of a ruling on provisional legal protection and an administrative act issued on the basis thereof shall be returned as required. The private law provisions concerning unjust enrichment apply correspondingly to the obligation to return. An administrative court may, on its own initiative or at the request of an interested person, require, by a judgment or a separate ruling, return of that which was acquired on the basis of a ruling on provisional legal protection or an administrative act issued on the basis thereof. Claims for compensation for damage do not arise from the execution of the ruling on provisional legal protection if execution was lawful.

8. Yes. The Code of Civil Court Procedure stipulates the following:

§ 98. Safeguarding evidence

(1) if a participant in the proceeding has reason to believe that the submission of evidence relevant to the matter will become subsequently impossible or impracticable, the participant may request that the court safeguard the evidence. A court may also safeguard evidence before the filing of an action on the basis of a reasoned petition of a person.

(2) Safeguarding evidence is the hearing of witness, an on-spot visit of inspection or the performance of other procedural acts.

9. Code of Civil Court procedure establishes the following:

§ 244. Immediate execution

(1) A judgment shall be executed immediately:
1) if the payment of support is ordered;
2) if the payment of wages is ordered, but not for more than two months;
3) if the reinstatement of an employee in employment is ordered;
4) if the defendant admits the claim;
5) if the return of leased property upon the expiry of the term of contract is ordered;
6) if the recovery of property from unlawful possession is ordered;
61) in a matter concerning return of a child if the judgment is made on the basis of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction;
(22.10.2002 entered into force 18.11.2002 - RT I 2002, 92, 529)
7) in other cases prescribed by law.
(2) If the immediate execution of a judgment is provided by law, a court shall not decide that a judgment shall not be immediately executed.
(3) On the basis of a request of a participant in a proceeding, a court may order immediate execution of a judgment:
1) in an action for compensation for damage caused by a bodily injury, other health disorder or by the death of a provider;
2) in other matters if a delay in enforcement of the judgment may cause significant damage to the claimant, or if such delay may make execution impossible.
(4) Immediate execution of a judgment cannot be ordered:
1) in the case of a divorce or the annulment of a marriage;
2) in the case of the establishment of the filiation of a child;
3) in the case of adoption.
(5) If immediate execution was not decided by a judgment, an application of a participant in the proceeding for the immediate execution of the judgment shall be heard in a court session and adjudicated by a ruling. The participants in the proceeding shall be notified of the time and place of the court session; however, their absence shall not prevent the adjudication of immediate enforcement.
(6) An appeal may be filed against a court ruling. A ruling of a circuit court concerning an appeal against such ruling is not subject to appeal. The filing of an appeal shall not suspend the immediate execution of a judgment.

In administrative matters:
- matters of public service;
- other administrative matters where a delay may result in damage.

10. There is unrestricted appeal against the judgments of first instance courts to courts of appeal. Pertinent provisions of the Constitution would render it very difficult to impose restrictions by amending the valid law.

11.

(i) As a result of the reform of 2001 the bailiffs are freelancers performing public law functions. The effectiveness of enforcement has significantly increased.

(ii) Various registries of assets are comparatively easily accessible.

(iii) Necessary amendments in this regard will be established by the new draft Code of Civil Procedure.

c) in criminal matters

1. As for the first part (discretionary prosecution) of Recommendations No. R (87) 18 see E-c)-3-(i). As for part II (summary procedures, out-of-court settlements and simplified procedures) see E-c)-3-(ii), E-c)-3-(iii) and E-c)--2. As for part III (simplification of ordinary judicial procedures) of the Recommendation the following can be pointed out: as of 1 July 2004 long-distance hearing will become possible in criminal proceedings.

§ 69. Long-distance hearing
(1) A body conducting the proceedings may organise long-distance hearing of a witness if the direct hearing of the witness is complicated or involves excessive costs or if it is necessary to protect the witness or the victim.
(2) For the purposes of this Code, “long-distance hearing” means hearing:
1) by means of a technical solution as a result of which the participants in the proceeding, see and hear the witness giving testimony outside the investigative body, Prosecutor’s Office or court directly via live coverage and may question the witness through the person conducting the proceedings;
2) by telephone, as a result of which the participants in the proceeding directly hear the witness giving testimony outside the investigative body or court and may question the witness through the person conducting the proceedings.
(3) Long-distance hearing by telephone is permitted only with the consent of the person to be heard and the suspect or accused. /.../

As for simplified judgments see E-c)-(viii). As for simplified proceedings in minor offences see E-c)-2. About panels hearing criminal matters see E-a)-3.

The issues covered by recommendation R (95) 12 in Estonia are tackled by the Ministry of Justice in co-operation with the Council for Administration of Courts. The latter is chaired by the Chief Justice of the Supreme Court and is comprised of five judges elected by the Court en banc, two members of parliament, one representative of the Bar Association, one representative of the Prosecutor's Office and one from the Legal Chancellor's office. The most important technological innovation, which is aimed at increasing the efficiency of criminal procedure, and which is planned to be put to use within the coming years is the electronic criminal file. Judicial training is organised by the training committee and Estonian Law Centre Foundation, established specifically for that purpose. The training is regular. Consultants or law clerks are employed in the courts of all three instances to help to ease the work-load of judges. (See also answers to parts B and C of the questionnaire).

2. The valid criminal procedural law provides for simplified proceeding and expedited procedure. The Code of Criminal Procedure, which will enter into force on 1 July 2004, will provide for alternative proceedings, settlement proceedings and summary proceedings. The essence of the referred proceedings is explained in the following provisions.

Alternative Proceedings

§ 233. Grounds for application of alternative proceedings

(1) At the request of the accused and with the consent of the Prosecutor's Office, the court may adjudicate a criminal matter by way of alternative proceedings on the basis of the materials of the criminal file without summoning the witnesses or experts.

(2) Alternative proceedings shall not be applied:

1) in the case of a criminal offence for which life imprisonment is prescribed as punishment by the Penal Code;
2) in the case of a criminal matter where several persons are accused and at least one of the accused does not consent to the application of alternative proceedings. /…/

§. 237. Examination by court in alternative proceedings

(1) A judge shall announce the commencement of examination by the court and make a proposal to the prosecutor to present the statement of charges.
(2) After presentment of a statement of charges, the judge shall explain the content of the statement of charges to the accused and ask whether the accused understands the charges, whether he or she confesses to the charges and whether he or she consents to the adjudication of the criminal matter by way of alternative proceedings.
(3) The judge shall make a proposal to the counsel to submit his or her opinion as to whether the charges are justified. Thereafter, the victim and the civil defendant or their representatives shall be given the floor. /…/

§. 238. Court decisions in alternative proceedings
(1) The court shall make one of the following decisions in chambers:

1) a ruling on the return of the criminal file to the Prosecutor's Office and continuation of the proceedings pursuant to the general procedure if there are no grounds for the application of alternative proceedings;
2) a ruling on the return of the criminal file to the Prosecutor's Office and continuation of the proceedings pursuant to the general procedure if the materials of the criminal file are not sufficient for the adjudication of the criminal matter by way of alternative proceedings;

3) a judgment of conviction or acquittal with regard to the accused.

(2) If a judgment of conviction is made by way of alternative proceedings, the court shall reduce the principal punishment to be imposed on the accused by one-third after considering all the facts relating to the criminal offence. If a punishment is imposed pursuant to § 64 of the Penal Code, the aggregate punishment to be imposed on the accused shall be reduced by one-third.

Settlement Proceedings

§ 239. Grounds for application of settlement proceedings

(1) A court may adjudicate a criminal matter by way of settlement proceedings at the request of the accused or the Prosecutor's Office.

(2) Settlement proceedings shall not be applied:
1) in the case of criminal offences in the first degree;

2) if the accused, his or her counsel or the Prosecutor's Office does not consent to the application of settlement proceedings;
3) in the case of a criminal matter where several persons are accused and at least one of the accused does not consent to the application of settlement proceedings;
4) if the victim or the civil defendant does not consent to the application of settlement proceedings.
(3) The accused and the prosecutor may submit a request for the application of settlement proceedings to the court until the completion of examination by the court in the county or city court. /…/

§. 244. Negotiations in settlement proceedings

/…/

(2) If a Prosecutor's Office and the suspect or accused and his or her counsel reach a settlement concerning the legal assessment of the criminal offence and the nature and extent of the damage caused by the criminal offence, negotiations shall be commenced concerning the type and the category or term of the punishment which the prosecutor requests in court for the commission of the criminal offence.
(3) If a Prosecutor's Office and the suspect or accused and his or her counsel fail to reach a settlement concerning the legal assessment of the criminal offence and the nature and extent of the damage caused by the criminal offence or the type or the category or term of the punishment, the criminal proceeding shall be continued pursuant to the general procedure.

§. 247. Court hearing in settlement proceedings

(1) A judge shall announce the commencement of the hearing of a settlement and make a proposal to the prosecutor to present the settlement.
(2) After the presentment of a settlement, the judge shall ask whether the accused understands the settlement and consents thereto. The judge shall make a proposal to the accused to explain the circumstances relating to the conclusion of the settlement and shall ascertain whether conclusion of the settlement was the actual intention of the accused.
(3) The judge shall ask the opinions of the counsel and the prosecutor concerning the settlement and whether they will adhere to the settlement.

(4) The judge may question the participants in the proceedings.

(5) After completion of the hearing of a settlement, the court shall announce the time of pronouncement of the court decision and withdraw to the chambers.

§. 248. Court decisions in settlement proceedings
(1) The court shall make one of the following decisions in chambers:

1) a ruling on the return of the criminal file to the Prosecutor's Office granting the possibility to conclude a new settlement if the court does not consent to the legal assessment of the criminal offence, the amount of the civil action or the type or the category or term of the punishment;
2) a ruling on refusal to apply settlement proceedings and on the return of the criminal file to the Prosecutor's Office and continuation of the proceeding pursuant to the general procedure if the court has doubts regarding the circumstances specified in § 306 of this Code;1

3) a ruling on termination of the criminal proceeding if the grounds listed in clauses 199 (1) 1)–5) of this Code2 become evident; 4) a court judgment on the conviction of the accused and on imposition of the punishment agreed upon in the settlement on the accused. (2) After a court has made a ruling specified in clause (1) 1) or 2) of this section, the court shall return the criminal file to the Prosecutor's Office for continuation of the criminal proceeding pursuant to the general procedure.

§. 249. Main part of judgment of conviction in settlement proceedings
The main part of a court judgment shall set out:
1) the charges on which the court convicts the accused;
2) the content of the settlement.

Summary proceedings

§. 251. Grounds for application of summary proceedings

(1) If the facts relating to a subject of proof are explicit in the case of a criminal offence in the second degree and the prosecutor considers application of a pecuniary punishment possible, the court may adjudicate the criminal matter by way of summary proceedings at the request of the Prosecutor's Office.

(2) Summary proceedings shall not be applied if the suspect is a minor.

§. 253. Court decisions in summary proceedings

Upon receipt of a criminal matter by the court, the judge shall verify the jurisdiction over the criminal matter and make one of the following decisions:

1) a court judgment in summary proceedings pursuant to § 254 of this Code;

2) a ruling on termination of the criminal proceeding if the grounds provided for in clauses 199 (1) 1)–5) of this Code become evident;
3) a ruling on refusal to apply summary proceedings and on the return of the criminal file to the Prosecutor's Office and continuation of the proceeding pursuant to the general procedure

§. 254. Court judgment in summary proceedings

(1) If a judge consents to the conclusions presented in a statement of charges concerning the proof of the charges and the category or term of the punishment, he or she shall prepare a court judgment.
(2) The introduction of a court judgment made by way of summary proceedings shall set out:

1) that the court judgment is made on behalf of the Republic of Estonia;
2) the date and place of making the court judgment;
3) the name of the court which made the judgment and the name of the judge;

4) the name, residence or seat and address, date of birth, citizenship, education, native language and the place of work or educational institution of the accused;

5) the criminal record of the accused.

(3) The main part of a court judgment made by way of summary proceedings shall set out:

1) the facts relating to the criminal offence;
2) the legal assessment of the criminal offence;
3) the nature and extent of the damage caused by the criminal offence;
4) the reasons for the punishment to be imposed on the accused.

(4) The conclusion of a court judgment made by way of summary proceedings shall set out:

1) the category or term of the punishment;
2) a decision concerning the expenses relating to the criminal procedure;
3) the procedure and term for appeal against the summary judgment.

(5) A copy of a court judgment made by way of summary proceedings shall be delivered to the accused and the Prosecutor’s Office in accordance with the provisions of subsections 164 (3) and (6) of this Code within three days as of the making of the judgment.
(6) Within ten days as of the receipt of a court judgment made by way of summary proceedings, the accused has the right to request that the court hear the criminal matter pursuant to the general procedure.3

(7) If the accused does not request that the court hear the criminal matter pursuant to the general procedure, the court judgment made by way of summary proceedings shall enter into force. In such case, the court judgment made by way of summary proceedings is not subject to appeal.

(i) The Code of Criminal Procedure, which will enter into force on 1 July 2004 shall provide for a possibility to terminate criminal proceedings for reasons of expediency. Pertinent regulation is the following (analogous provisions are already in force as of 1 January 2004):

§. 202 Termination of criminal proceedings upon lack of public interest in proceedings and in case of negligible guilt
(1) If the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and he or she has remedied or has commenced to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or assumed the obligation to pay such expenses, and there is no public interest in the continuation of the criminal proceedings, the Prosecutor’s Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused.
(2) In the event of termination of criminal proceedings, the court may impose the following obligation on the suspect or accused at the request of the Prosecutor’s Office and with the consent of the suspect or the accused:
1) to pay the expenses relating to the criminal proceedings or compensate for the damage caused by the criminal offence within the term specified by the Prosecutor’s Office;
2) to pay a fixed amount into the public revenues or to be used for specific purposes in the interest of the public, or

3) to perform 80 to 240 hours of community service.

(3) A request of a Prosecutor’s Office shall be adjudicated by a ruling of a judge sitting alone. If necessary, the prosecutor and the suspect or accused and, at his or her request, also the counsel shall be summoned to the judge for the adjudication of the request of the Prosecutor's Office.
(4) If the judge does not consent to the request submitted by the Prosecutor’s Office, he or she shall return the criminal matter on the basis of a ruling and the proceedings shall be continued pursuant to the general procedure.
(5) If a person with regard to whom criminal proceedings have been terminated pursuant to subsection (2) of this section fails to perform the obligation imposed on him or her, the Prosecutor's Office shall resume the criminal proceedings by an order.

§. 203. Termination of criminal proceedings due to lack of proportionality of punishment
(1) If the object of criminal proceedings is a criminal offence in the second degree, the Prosecutor's Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused and the victim if:
1) the punishment to be imposed for the criminal offence would be negligible compared to the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence;
2) imposition of a punishment for the criminal offence cannot be expected during a reasonable period of time and the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence is sufficient to achieve the objectives of the punishment and satisfy the public interest in the proceeding.
(2) A request of a Prosecutor’s Office shall be adjudicated by a ruling of a judge sitting alone. If necessary, the prosecutor and the suspect or accused and, at his or her request, also the counsel shall be summoned to the judge for the adjudication of the request of the Prosecutor's Office.
(3) If a judge does not consent to a request submitted by a Prosecutor’s Office, he or she shall return the criminal matter on the basis of a ruling and the proceedings shall be continued pursuant to the general procedure.
(4) If criminal proceedings are terminated taking into consideration a punishment imposed on the suspect for another criminal offence and the punishment is subsequently annulled, the Prosecutor's Office may resume the criminal proceedings by an order.
(5) If criminal proceedings are terminated taking into consideration a punishment which will presumably be imposed on the suspect or accused for another criminal offence, the Prosecutor's Office may resume the criminal proceedings if the punishment imposed does not meet the criteria specified in clauses (1) 1) and 2) of this section.

§. 204. Termination of criminal proceedings concerning criminal offences committed by foreign citizens or in foreign states

(1) A Prosecutor's Office may terminate criminal proceedings by an order if:
1) the criminal offence was committed outside the territorial applicability of this Code;

2) the criminal offence was committed by a foreign citizen on board a foreign ship or aircraft located in the territory of the Republic of Estonia;
3) an accomplice to the criminal offence committed the criminal offence in the territory of the Republic of Estonia but the consequences of the criminal offence occurred outside the territorial applicability of this Code;
4) a decision concerning extradition of the alleged criminal offender to a foreign state has been made;
5) the person has been convicted and has served the sentence in a foreign state and the punishment applicable in Estonia is not significantly more severe than the punishment served, or if the person has been acquitted in a foreign state.
(2) A Prosecutor's Office may, by an order, terminate criminal proceedings concerning a criminal offence which was committed in a foreign state but the consequences of which occurred in the territory of the Republic of Estonia if the proceedings may result in serious consequences for the Republic of Estonia or are in conflict with other public interests.

§. 205. Termination of criminal proceedings concerning criminal offences against the state
(1) At the request of the Public Prosecutor's Office, the full panel of the Criminal Chamber of the Supreme Court may terminate criminal proceedings concerning a criminal offence against the state by a ruling if the person has before the detection of the criminal offence acted in a manner which displays his or her regret for the criminal offence and has taken steps to protect the security and constitutional order of the Republic of Estonia. /…/

§. 274. Termination of criminal proceedings in court session
/…/
(5) A court may terminate criminal proceedings on the grounds provided for in § 202 or 203 of this Code at the request of the prosecutor or the accused.
(6) A court may terminate criminal proceedings on the grounds provided for in § 204 of this Code at the request of the prosecutor.

(ii) Indeed, the sphere of criminal liability is partly limited. For example, a violation of tax law is punishable as a criminal offence only under the following conditions:

- it constitutes an intentional violation of law, and
- as a result of the tax law violation the state did not receive at least 500 000 kroons (31 955 EUR) of tax or if a punishment for a misdemeanour has been imposed on the person for similar offence.

It has to be pointed out also that the majority of the so called mass offences (e.g. road traffic violations) are punishable in Estonia as misdemeanours. In the case of misdemeanours it is generally a person/body conducting extra-judicial proceedings who has the right of rendering the initial decision concerning penalty (e.g. the police). The maximum penalty for committing a misdemeanour is a fine of 18 000 kroons (1150 EUR), or a detention of up to 30 days. The decision of penalty of a body conducting extra-judicial proceedings may be appealed against in a court. In the case of a misdemeanour the body conducting extra-judicial proceedings is allowed, with the consent of the offender, to issue only an oral warning or, if necessary, impose a fine of 25 - 200 kroons (1,60 - 12,80 EUR).

(iii) A bill is being drafted at present, pursuant to which the Prosecutor's Office will be entitled to terminate criminal proceedings, without the consent of a court, if there is a lack of public interest in the proceeding or due to the lack of proportionality of punishment. In such cases, too, the consent of the alleged offender is required. If criminal proceedings are terminated on grounds of expediency, the Prosecutor's Office is entitled to impose on a person a duty to agree/consent:

1) to cover the expenses of criminal proceeding or compensate for the damage caused by criminal offence by the term set by the Prosecutor's office;
2) to pay a fixed sum into state revenue or for use for designated purposes in the public interest, or
3) perform 80 - 240 hours of community service.

(See also E-c)-3-(i). The referred amendment will probably enter into force on 1 July 2004.

(iv) See answer E-c)-2: Summary Proceedings.

(v) See answer E-c)-2: Settlement Proceedings.

(vi) Court judgments can be declared invalid due to violation of procedural law only if the violation is material. Beginning from 1 July 2004 the material violations of criminal procedure law shall be regulated as follows:

§. 339. Material violation of criminal procedural law

(1) Violation of criminal procedural law is material if:
1) the decision is made in a criminal matter by an unlawful court panel;

2) a criminal matter is heard in the absence of the accused, except in the cases provided for in subsections 267 (1) and 334 (1) of this Code;

3) a court proceeding is conducted without the participation of a counsel;
4) a court proceeding is conducted without the participation of the prosecutor;
5) the confidentiality of deliberations is violated in the making of a court judgment;
6) a court judgment is not signed by all members of the court panel;
7) a court judgment does not contain the reasons for the judgment;

8) the conclusions presented in the conclusion of a court judgment do not correspond to the facts established with regard to the subject of proof;
9) a criminal matter is heard without the participation of a translator or interpreter in a language in which the accused is not proficient;
10) an expert opinion is not submitted although submission thereof is mandatory pursuant to subsection 105 (2) of this Code;
11) minutes are not taken of a court session, with the exception of the matters heard by way of summary proceedings.
(2) A court may declare any other violation of criminal procedural law to be material if such violation results or may result in an unlawful or unfounded court judgment.

(vii) Beginning with 1 July 2004 the summoning in criminal proceedings shall be regulated as follows:

§. 164. General procedure for serving summonses
(1) A summons shall be served on a person in sufficient time for the appearance.

(2) A summons may be served against signature on a notice, as a registered letter sent by post with advice of delivery or using electronic means.
(3) A summons shall be served on an adult or minor of at least 14 years of age against signature on a notice. The summons of a person who is less than 14 years of age or suffers from a mental disorder shall be served on his or her parent or any other legal representative or guardian against signature on a notice. If a summons cannot be served on the person summoned, the summons shall be served against signature on a notice on an adult family member living together with the summoned or shall be sent to the place of employment or educational institution of the summoned for forwarding to him or her.
(4) A summons sent by post is deemed to be received by the person on the date indicated in the notice of delivery of the post office.
(5) Upon service of a summons by electronic means, the summons shall be sent at the electronic mail address indicated in a procedural document or published on the Internet. The summons shall be accompanied by a digital signature and shall be protected from third persons. Upon sending the summons, the obligation to certify receipt of the summons immediately by an electronic mail addressed to the sender shall be indicated. A summons sent by electronic means is deemed to be received by the person on the date of the certification. If receipt of the summons is not certified within three days as of the date of sending the summons, the summons shall be sent in the form of a registered letter with advice of delivery or shall be served on the person summoned against signature.

(6) Summonses may be served on any day and at any time.

(7) The notices read by an official of an investigative body, prosecutor or court to the persons present are deemed to be equal to summonses served against signature if a corresponding notation is made in the report.
(8) Notices concerning the serving of a summons against signature, notices of delivery issued by post offices, the printouts of electronic mails concerning the issue of the summons and the printouts of electronic mails confirming the receipt of the summons shall be included in the criminal file.

§. 165. Communication of urgent summonses by telephone, facsimile or other means of communication
(1) In the case of an urgent summons, an investigative body, Prosecutor's Office or court may summon a person by telephone, facsimile or other means of communication. In such case, the number of the telephone, facsimile or other means of communication to which the summons was sent shall be indicated on a notice.
(2) The text of a summons communicated in a manner provided for in subsection (1) of this section shall be included in the criminal file and the summons is deemed to be served.

(viii) As of 1 July 2004 the courts of first instance shall have the right, when pronouncing a court judgment, to pronounce only the decision part of the judgments, explaining orally -- at the hearing - the most important aspects of the reasoning. A court is required to render a reasoned judgment only if a party to the case wishes to submit an appeal against the judgment. (About simplified forms of written judgments see also answer E-c)-2.).

3. The activities of investigative bodies and the Prosecutor's Office shall be subjected to courts of general jurisdiction as of 1 July 2004 (until then it is the administrative courts who exercise judicial control over the guarantees of fundamental rights of persons in pre-trial proceedings).

§. 228. Appeal against activities of investigative body or Prosecutor’s Office

(1) Before a statement of charges is prepared, a participant in a proceeding or a person not participating in the proceeding has the right to file an appeal with the Prosecutor's Office against a procedural act or order of the investigative body if he or she finds that violation of the procedural requirements in the performance of the procedural act or preparation of the order has resulted in the violation of his or her rights.
(2) Before preparation of a statement of charges, a person specified in subsection (1) of this section has the right to file an appeal with the Public Prosecutor’s Office against an order or procedural act of the Prosecutor's Office.
(3) An appeal specified in subsection (1) or (2) of this section shall be filed directly with the body who is to adjudicate the appeal or through the person whose order or procedural act is contested.

(4) An appeal shall set out:
1) the name of the Prosecutor's Office with which the appeal is filed;

2) the given name and surname, status in the proceedings, residence or seat and address of the appellant;
3) the order or procedural act contested, the date of the order or procedural act, and the name of the person with regard to whom the order or procedural act is contested;

4) which part of the order or procedural act is contested;
5) the content of and reasons for the requests submitted in the appeal;
6) a list of the documents annexed to the appeal.

(5) An appeal filed against the activities of an investigative body or Prosecutor's Office shall not suspend the execution of the contested order or performance of the procedural act.

§. 229. Adjudication of appeals by Prosecutor's Office or Public Prosecutor's Office

(1) An appeal filed with a Prosecutor's Office or the Public Prosecutor's Office shall be adjudicated within thirty days as of the receipt of the appeal.
(2) In the adjudication of an appeal filed against an order or procedural act of an investigative body or a Prosecutor's Office, a Prosecutor's Office or the Public Prosecutor's Office may, by an order:

1) dismiss the appeal;

2) satisfy the appeal in whole or in part, and recognise violation of the rights of the person if the violation can no longer be eliminated;
3) annul the contested order or suspend the contested procedural act in whole or in part, thereby eliminating the violation of the rights.
(3) An appellant shall be notified of the right to file an appeal with the county or city court pursuant to § 230 of this Code.
(4) An order prepared in the adjudication of an appeal shall be immediately sent to the body conducting extra-judicial proceedings which prepared the contested order or performed the contested procedural act and a copy of the order shall be sent to the appellant.

§. 230. Appeal to county or city court

(1) If the activities of an investigative body or Prosecutor's Office in violation of the rights of a person are contested and the person does not agree with the order prepared by the Public Prosecutor's Office who reviewed the appeal, the person has the right to file an appeal with the preliminary investigation judge of the county or city court in whose territorial jurisdiction the contested order was prepared or the contested procedural act was performed.
(2) An appeal shall be filed within ten days as of the date when the person became or should have become aware of the contested ruling.
(3) Appeals shall be filed in writing in accordance with the requirements of clauses 228 (4) 2)–5) of this Code.

§. 231. Adjudication of appeals by county and city courts

(1) A preliminary investigation judge shall review an appeal within thirty days as of the receipt of the appeal.
(2) An appeal shall be reviewed by way of a written proceeding within the limits of the appeal and with regard to the person in respect of whom the appeal was filed.

(3) In the adjudication of an appeal, a court may:
1) dismiss the appeal;

2) satisfy the appeal in whole or in part, and recognise violation of the rights of the person if the violation can no longer be eliminated;
3) annul the contested order or suspend the contested procedural act in whole or in part, thereby eliminating the violation of the rights.
(4) A court which receives an appeal may suspend the execution of the contested order or procedural act.

(5) A ruling of a preliminary investigation judge is final and not subject to appeal.

Preliminary investigation judges shall decide on arrest and refusal of arrest. A person is entitled to file an appeal against the court ruling by which arrest was imposed with the second instance court. The preliminary investigation judge has a duty to verify whether the reasons for the arrest still exist. If a person has been under arrest for six months, the preliminary investigation judge shall verify the reasons for the arrest at least once a month regardless of whether verification of the reasons has been requested.

In relation to the requirement that in the court hearing the court must have sufficient possibilities to check the reasons of the charge it should be noted that after the court has finished examining the evidence submitted by parties to the proceeding the court may, upon the request of a party, or on its own initiative, order the collection of additional evidence.

A court is free to impose a punishment it considers necessary. A court has the right not to approve a settlement between the Prosecutor's office and the accused (in the settlement proceeding) if the court does not agree, among other things, with the category and the rate or term of the punishment.

1 Clauses 1) - 8) § 306 (1) of Code of Criminal Procedure stipulate the following: When making a court judgment, the court shall adjudicate the following issues: 1) whether the act of which the accused is accused occurred; 2) whether the act was committed by the accused; 3) whether the act is a criminal offence and on which section, subsection and clause of the Penal Code the legal assessment of the act is based; 4) whether the accused is guilty of the commission of the criminal offence; 5) whether mitigating or aggravating circumstances exist; 6) the punishment to be imposed on the accused; 7) whether the accused is to be released from punishment or whether a substitutive punishment is to be imposed; 8) whether the accused who is a minor is to be punished for the criminal offence committed or whether non-punitive sanctions are to be applied against him or her.
2 Clauses 1) - 5) of § 199 of Code of Criminal Procedure establish the following: Criminal proceedings shall not be commenced if: 1) there are no grounds for criminal proceedings; 2) the limitation period for the criminal offence has expired; 3) an amnesty precludes imposition of a punishment; 4) the suspect or the accused is dead; 5) the same person has been convicted on the same charges, or criminal proceedings have been terminated with regard to him or her.
3 If a convicted offender contests a court judgment made by way of summary proceedings and requests that the court hear the criminal matter pursuant to the general procedure, the judge shall prepare a ruling on the return of the criminal file to the Prosecutor's office and the ruling shall serve as a basis for preparation of a new statement of charges and for continuation of the proceeding pursuant to the general procedure.

 Haut de page

 

  Documents liés
 
   Documents connexes