Strasbourg, 10 February 2005
CCJE (2005) 12
Consultative Council of European Judges (CCJE)
Questionnaire on theme “Justice and society”: Reply submitted by the delegation of Estonia
A. EDUCATIONAL ROLE OF THE COURTS IN DEMOCRACY
Informing justice users and/or the general public
In Estonia the Internet is very widely spread and frequently used by quite a large amount of the population. Therefore most of the relevant information is available on the Internet - on the web-pages of different courts as well as the web-page of Ministry of Justice.
There are web-pages that inform justice users as well general public about Estonian judicial system (web-page of Supreme Court of Estonia, homepage of Ministry of Justice)1, The Ministry of Justice and Supreme Court have published also printed materials that describe and explain Estonian judicial system. At the web-page of Ministry of Justice there are links to the web-pages of all courts.2 The information on the web-pages concerns also the proceedings, state fees, how to write a petition to a court, the order of court sessions etc.3
There is a Legal Information Service integrated into the structure of the Supreme Court, the service distributes the information necessary for the administration of justice and enters data in the register of Supreme Court decisions. Legal Information Service does not give legal advice to general public, but it gives information about Supreme Court and rules of procedure. Legal Information Service responds to the citizen's letters.
In Estonia the Response to Memoranda and Requests for Explanations Act (Mägrukirjadele ja selgitustaotlustele vastamise seadus) regulates responding to citizen's letters. General public/journalists/justice users and others have opportunity to ask any question about judicial system, nature of proceedings available, etc. The law prescribes that if an institution receives a question, which does not belong to the competence thereof, the institution must transmit the question to another institution qualified to respond.
The purpose of Public Information Act is to ensure that the public and every person has the opportunity to access information intended for public use, based on the principles of a democratic and social rule of law and an open society, and to create opportunities for the public to monitor the performance of public duties.
Important role in informing justice users and general public about the aspects of functioning of the judicial system is also carried out by Estonian Law Centre Foundation (ELC). ELC is a non-profit organisation which receives financial and material support from the Estonian government, through the Ministry of Justice, from Supreme Court and from abroad. Besides extensive legal training programmes for Estonian legal community ELC provides also printed materials, newsletters and access for general public to printed and computerised legal resources. In addition ELC invites Estonian public to participate in law making process through Internet forums.
Estonian Institute for Human Rights (EIHR) is a non-profit organisation, which provides legal aid in the field of human rights and gives information about judicial system.
Several books, articles and academic researches have been published, informing justice users and general public about judicial system as well as giving detailed information about different judicial topics. For example „Handbook of Administrative Procedure"8 (2004) „Introduction to the Law"9 (2003), "The possibility and necessity of judicial dissent (dissenting opinion) in the Supreme Court of the Republic of Estonia and in the European Court of Justice"10 (2003); "Social care as constitutional right"11 (2002); „Suit to Administrative Court“12 (1999); "Petition to court"13 (2000), "Supreme Court Judgement as Source of Estonian Criminal Procedural Law"14 (2000); "The System of legal protection in Republic of Estonia"15 (1996); "Court Judgement in criminal case: development and critique"16 (1999) etc.
Alternative means of settling disputes offered to parties
There is a Chancellor of Justice in Estonia (carries out the functions of ombudsman). Every citizen has the right to submit requests to the Chancellor of Justice to control whether the activities undertaken by state institutions have been legally executed or whether legal acts are compatible with the Constitution and other higher legal acts. This also means that every citizen has the right to address the Chancellor of Justice to guarantee his/her constitutional rights and freedoms. The instructions for writing an application to Chancellor of Justice and about the procedure of handling these can be found on the website.17.
There are a Labour dispute committee (Töövaidluskomisjon), Consumer Protection Committee (Tarbijakaitsekomisjon), Copyright Committee (Autoriõigustekaitse komisjon) and also a Lease Committee (for settling disputes concerning rent) (Üürivaidluskomisjon). Some of them provide info about their procedure and competency in web-pages.
The law students of the Tartu University organize a service, which gives to general public legal advice (free of charge), informs about court system and, in some cases, provides representation in court.
Landmark decisions delivered by the courts
Supreme Court has a web-page, where landmark decisions are presented in real time. Decisions of the Supreme Court are organised, systematised (alphabetical table of matter) and presented in the web-page. All the information is free of charge.
Digesta is a web- based service, which reflects the newest developments in law-making and in judicial practice. Digesta is a service containing news about court decisions, summaries of decisions of Supreme Court, etc. Digesta is provided by ELC (service is not free of charge).
Since 2001, most of the judgements of the courts of first and second instance are also made available in a database called KOLA (http://kola.just.ee). KOLA is administered by the Ministry of Justice and is also provided with search engines (See also C.4).
The Estonian Lawyers’ Union (ELU) 18 was founded in 1989. ELU organises hearing to lawyers, but also conferences and public audiences. ELU has several branches, among them European Law Association, the president of which is a judge. One goal of the union is to introduce and explain to people European law.
Courts of the first instance and courts of appeal are administered in co-operation between the Council for Administration of Courts and the Ministry of Justice. Administration of courts shall ensure the possibility for independent administration of justice; the working conditions necessary for administration of justice; adequate training of court officers; the availability of administration of justice.23
A.2 and A.5
Cooperation with different groups
There is intense cooperation between academics and judges. Many judges have academic degree and are giving lectures in different universities and many professors are working, besides university, in court. There are specific magazines that cover judicial topics (for example Juridica, Legal Language, Tax Payer).
The judges have intense cooperation with policy makers as well. For example, they have helped to write commentaries to the Constitution of Estonia. There are parliament's publications, where articles written by judges are published. Sometimes judges participate in the work of certain parliamentary workgroups. Judges participate in law-making as well, giving their opinion about draft of certain act.
Public interest groups and citizens can obtain information at conferences, seminars and the information is available as well on the internet and through the press.
The Office of the Chancellor of Justice arranges seminars and different conferences (in 2003 there was Council of the Baltic Sea States ombudsmen seminar; in 2004 there was a research seminar entitled "Police, justice, state"). Different ministries arrange seminars and conferences as well (for example Ministry of Justice's seminar about offering legal aid in Estonia).
There are some regular specific outreach programmes. The Supreme Court of Estonia gives to law the students an opportunity to perform practice in the Supreme Court.
In 2003 Supreme Court organised a conference on the relationship between the media and the courts, where journalists, judges, professors of Tartu University, court press secretaries, etc. addressed the audience.
On 14 January 2005 The Supreme Court celebrated its 85th anniversary. A research competition "The Judgements of the Supreme Court of Estonia: Implications and Critique" was organised on the occasion. The competition was meant for law students and professors. There was a conference, where the authors of the best papers made presentations about judgements of the Supreme Court.
The press secretaries of courts organize excursions to courts. There are visits of young lawyers, students and foreign guests to courts. (see also A.4.)
Educational role of judicial decisions
Since Estonian legal system is quite young, the court judgements have educational role - court judgements sometimes regulate fields, that legislation does not regulate. The Supreme Court judgements have educational role, they are cited in press, referred to by students. In Estonia there is no case law. In some cases the court judgements are used as soundness of law. Sometimes the decisions of the Estonian Supreme Court are used as subsidiary source of law in interpreting and founding the general principles of law. This follows expressis verbis from the Estonian Code of Criminal Procedure, which states in article 2 subsection 4 that the decisions of the Supreme Court in issues which are not regulated by other sources of criminal procedural law but which arise in the application of law are also sources of criminal procedure law.
Publication of court judgements to the general public
(About publication of court judgements see also below C. 4)
After a court judgement enters into force it is available in the office of the court, it is also made public on the homepage of the court (there is a database of judgements of city, county, administrative and circuit courts. Judgements of the Supreme Court are accessible on the Court's homepage at http://www.nc.ee/lahendid). All reasoned judgments of the Supreme Court are published in Part III of the Riigi Teataja (Official Gazette). Up to 1999 all reasoned judgments of the Supreme Court were published in a yearly collection entitled "Judgements of Supreme Court". Since 2000 the collection contains a selection of reasoned judgments together with commentaries (generalisation of judicial practice).
Educational programmes and methods
In the high school there is an obligatory subject named "Civics". During this course all pupils have introduction to judicial system and introduction to constitutional law. The Law Institute of Tartu University organises lectures about judicial system for high school students.
As already mentioned above (A.2), many judges and court staff have academic degree and are lecturing in universities.
An obligatory subject to the students of Social Faculty of Tartu University is "Introduction to Law", which is taught by the lecturers of the Law Faculty of Tartu University. General introduction into law is being taught in many universities, in law faculties as well outside (Pedagogical University, Estonian Public Service Academy, Estonian Maritime Academy, International University Concordia Audentes, Technical University of Tallinn, etc.).
Law faculties’ curricula include description of the judicial system and visits to courts and practice in the Supreme Court (not obligatory).
Every year the law students hold a Moot Court Competition. These competitions involve imitation of the whole court procedure.
Excursions to courts
Besides the abovementioned, there are informal activities concerning judicial system, such as excursions to courts, organised by the press secretaries of courts.
Visits of young lawyers, students and foreign guests to courts take place, during which the courts introduce their buildings and give an introduction to the history the courts and the judicial system. (See A. 5)
The main education methods are attending hearings, but role playing as well.
J. Lahe. "Judge-made law and the role of the Supreme Court in developing the prerequisites of liability in tort law", 2005.
J. Erne. "Problems of application of principles related to relationship between European Community law and domestic law - principle of supremacy of community law as treated by the European Court of Justice and national constitutional courts”, 2005.
Õ. Suur. "The content and limits of the inquisitorial principle in administrative court proceedings as defined in the judgments of the Supreme Court", 2005.
L. Feldmanis, T. Ploom. "Has a judgment, which has entered into force, really entered into force? The role of the Supreme Court in implementing the penal law reform", 2005.
M. Ernits. "Fundamental rights as value judgments in the Supreme Court practice", 2005.
J. Laffranque. The possibility and necessity of judicial dissent (dissenting opinion) in the Supreme Court of the Republic of Estonia and in the European Court of Justice. doctor's thesis, 2003, etc.
(See also A.1)
B. THE RELATIONS OF THE COURTS WITH THOSE INVOLVED IN COURT PROCEEDINGS
B1, B2, B3
Training of judges, lawyers and court staff; training in deontology
A candidate for judicial office shall take a judge’s examination.
According to the Courts Act § 6624:
(1) A judge’s examination shall consist of an oral and a written part.
(2) The oral part of a judge’s examination means the assessment of the theoretical knowledge of a candidate for judicial office.
(3) The written part of a judge’s examination means case analysis.
The Code of Ethics of the Estonian Judiciary has been adopted to help to maintain high moral standards of the bench.25
The Estonian Law Centre arranges legal training seminars and refresher courses to the Estonian legal community. The personnel management department of the Supreme Court disseminates information about trainings, refresher courses, etc. to judges and to court staff. Some judges have taken psychology courses. But there are no regular programmes on how to treat litigants equally, without regard to race or gender etc. Court infra-structures In some courts interior decoration has consciously been made less strict (Tartu Courthouse) and calming colours of interior have been chosen (green walls in Supreme Court).
But for example in the court hearings of Administrative Camber of Supreme Court the court procedure is not so strictly fixed by regulations – In the beginning of the court hearing there are stressed out that court hearing has similarities with meeting/forum, person may sit when addressing the court.
Access to justice programmes
On 1 March 2005 the Legal Advice Act will enter into force. According to the Act a person can apply for free legal aid also in cases of pre-trial proceedings, to pay for the services of bailiff, to pay for the composing of a legal document or other legal consultation or representation. Before the enforcement of this Act it was possible to apply for the free legal aid only in exceptional cases and only within the proceedings in court.
· Estonian Institute for Human Rights (EIHR) provides legal aid in the field of human rights.
· Local governments employ specialists who deal with the rights of children and handicapped people.
· Since 25 November 2002 the Women's Shelter has been working for battered women. In addition to a place to say the Women's Shelter gives also information about the juridical side of the case (conducting a process, divorce, children, etc). (The Women’s Shelter (WS) is a non-profit organisation and WS sponsors are governmental as well non-governmental organisations.
· In Tartu there is non-profit organisation Kodukotus, which gives judicial information for senior citizens.
· Memento Association tries to offer judicial help for the rehabilitation of political, civic and economic rights to those that were repressed under the soviet occupying power.
C. THE RELATIONS OF THE COURTS WITH THE PUBLIC
C1, C2, C3
The relations of the court with the public
Background of Estonian court system:
There are three court levels in Estonia:
1. City and County courts (16) and Administrative courts (4)
2. Circuit courts (3, Courts of appeal)
3. Supreme Court (1, Court of cassation and as well the court of constitutional review)
There are no P.R. offices in courts, but in some courts there are press secretaries, who first of all deal with the internal and external communication of the court. In Tallinn Circuit Court there is a press secretary. One press secretary is dealing with the information of Tartu City, Administrative and Circuit Courts. In The Supreme Court of Estonia there is a press secretary.
- Every court has an internet web-page, displaying the times of court hearings (court hearings diary), rules of the office of the court, and other public information for people, who are involved in proceedings as well for general public. For example Supreme Court press realises are addressed specially to general public and journalists.
(In 2005 Supreme Court carried out research competition named „Judgements of Supreme Court of Estonia in Estonian law system: Implications and Critique“. The law students and academics critically analysed the judgements of the Supreme Court. (See also A. 5))
- First of all, courts’ press secretaries are liaison officers for general people, who want to have an excursion in the court building and hear about courts history and about judicial system. In The Supreme Court those excursions are mainly arranged for schoolchildren, students and foreign guests.
1. Access to Court Proceedings and Court Files
Right to information is a substantially controversial one. The Constitution of the Republic of Estonia protects simultaneously the right to the inviolability of private and family life (art 26), as well as the right to freely obtain information disseminated for public use (art 44). The protection of personal data and the disclosure of information are values limiting each other and one has to weigh the importance of these rights against each other.
Public access to the court information is regulated by the procedural laws as well as by Personal Data Protection Act and Public Information Act in Estonia.
The court hearings in civil and administrative matters are public. A court may declare that a session or a part of it be held in camera in order to maintain a state or business secret, protect the private or family life of a person, maintain the confidentiality of messages or in the interests of a minor or the administration of justice.
The participants of the proceedings have a right to examine the court files and make copies of it. Other persons with legitimate interest have a right to examine the court records after the court's decision has entered into force. Access is denied when the matter was heard in a session held in camera. In the Supreme Court of Estonia the interested persons who are not participants of the proceedings are allowed to access the court files on the basis of a written permission of the Chief Justice of the court or the Chairman of a chamber, who are entitled either grant access or deny it.
In criminal cases, since 1 July 2004 the accused person has a right to examine his or her court file only through the medium of his or her defence counsel. The accused person does not have a right to examine the materials of his or her criminal case before the end of pre-trial proceedings, except during the negotiations for simplified proceedings. After the completion of the pre-trial proceedings, a copy of the criminal file shall be given to the defendant.
The accused person has a right to examine the report of procedural acts in pre-trial proceedings and minutes of court sessions and to submit petitions or make comments for their amendment.
The victim or the civil defendant can examine the criminal file after the completion of the pre-trial proceedings at the request thereof.
Information concerning pre-trial proceedings shall be disclosed to public only with the permission of and to the extent specified by the Prosecutor. The disclosure may not damage the interests of the Republic of Estonia, prejudice a criminal proceeding or induce crime, violate a business secret, jeopardise the inviolability of private and family life, discredit a person or damage the interests of a minor.
Every person has the opportunity to observe and record court sessions, unless the court has declared the court session or a part of it to be held in camera, which can be done in order to protect a state or business secret, private and family life of a person, in the interests of a minor, justice, a party to the court proceeding or a witness.
The persons present at the court session may take written notes and make audio-recordings if this does not interfere with the court session. Other means for recording a court session may be used only with the permission of the court. If a court session is held in camera, the court may decide that written notes only may be taken.
2. Pronouncement of Court Judgements
All Estonian court judgements and court rulings are made public either by pronouncement in the court room or through court office, except in cases where the interests of a minor, a spouse or- in criminal matters - also of a victim require otherwise.
In civil and administrative matters the court proclaims at the end of the court session, when and where the judgement will be pronounced or made public. The participants of the proceedings may receive copies of a judgement or court ruling from the court office. In administrative matters a copy of a court judgement or ruling has to be immediately sent also to the administrative agency or official who issued the administrative act or took the measure against which an action was filed. If a participant in a proceeding who has failed to appear in court and the matter was adjudicated without his or her attendance, the conclusion of the court judgment shall be published in the newspaper in which court notices are published.
In criminal procedure at least a conclusion of a judgement is always pronounced in the courtroom. In case of pronouncing only the conclusion, the court shall explain orally the main reasons for the judgment. After the pronouncement of a judgment or the conclusion the court shall give notification of the date on which the court judgment will be available in court for examination by the parties to the court proceedings, and the term for appeal. Court shall explain the procedure for appeal and the possibility to waive the right of appeal. If all parties to the court proceedings waive the right of appeal or if during 7 days none of the parties gives notification of the intention to exercise the right of appeal, only the introduction and conclusion of the court judgement shall be set out. If the parties to the court proceedings do not waive the right of appeal, the full court judgment shall be prepared within 15 days as of the date on which the court is notified of an intention to exercise the right of appeal.
In criminal matters a court judgment may be examined in court after the judgment has been pronounced. At the request of a party to the court proceedings, a copy of the court judgment shall be submitted to him or her. A court shall send a copy of the decision to a party to the court proceeding who did not participate in the pronouncement of the decision. If the accused is under arrest, a copy of the court judgment shall be sent to him or her immediately after the court judgment has been pronounced.
At present the decisions of the appellate courts which have not entered into force (which takes place upon expiry of a term for cassation or if the Supreme Court makes a judgment upholding the judgment of a circuit court) are not published on the Internet. Therefore, since 2004 the participants of the proceedings and the courts of first instance have had problems with getting immediate information about the status of the decisions which may interest them. Soon the decisions of the appellate courts should be published for the internal use of the officials of the courts.
3. Publication of Court Judgements
All court judgments and court rulings terminating the proceedings shall be published on the Internet when they have entered into force. Since 2004, a court decision shall not disclose the personal identification code, date of birth or residence of a person participating in proceedings.
A court shall replace in its decision, on its own initiative or at the request of the data subject, the name of the person with initials or characters if the decision contains private or sensitive personal data or if publication of the decision with personal data may significantly breach the inviolability of private life of the person.
Personal data is private, if it reveals details of family life or the provision of social assistance or social services, describes mental or physical suffering or if it is collected during the process of taxation, except data concerning tax arrears.
Personal data is sensitive, if it reveals political opinions, religious or philosophical beliefs, ethnic or racial origin, state of health or disability, genetic information, sexual life, membership in trade unions or if it is collected in criminal proceedings before a judgment is made in a matter concerning an offence, or if this is necessary in order to protect public morality or the family and private life of persons, or where the interests of a minor, a victim, a witness or justice so require.
In case of the replacement of a name with initials, if the decision still allows the identification of a person, the court shall publish, on its own initiative or at the request of the data subject, only the conclusion of the decision, or in civil and administrative matters - does not publish the court decision at all, or in criminal matters - does not publish the court decision in its entirety.
If the decision contains information regarding another restriction on access prescribed by law, a court shall publish, on its own initiative or at the request of the interested person, only the conclusion of a court decision
A request specified above shall be submitted to a court before a decision is made. The court shall adjudicate the request by a ruling. A person who submitted the request may file an appeal against the ruling by which the request was dismissed.
As you can see, the legal grounds for declaring a personal data private or sensitive and thereby restricting the publishing of the decisions containing such data, are quite wide. The courts have not had much practice since 2004 for substantiating these concepts. The situation is even more confusing since procedural laws only prescribe these restrictions for the publishing of the decisions on the Internet. Other articles of the procedural laws still stipulate that the decisions should contain full personal data. Laws do not specify, what kind of decisions should be made available for example for the journalists, and therefore the courts still give them access to the decisions with complete personal data, referring to the articles constraining the publishing of private or sensitive personal data.
The most easily accessible are the judgements of the Supreme Court. Those judgements are published in a separate issue of the State Gazette (Riigi Teataja) and in a separate annual issue called "Judgements and Rulings of the Supreme Court" (Riigikohtu lahendid). The Riigi Teataja is the official publication of the Republic of Estonia and it is published both on paper and electronically on the Internet (http://www.riigiteataja.ee). All the judgements of the Supreme Court are also available on the home page of the Supreme Court (http://www.nc.ee), which is provided with search engines and different catalogues of keywords together with the summaries of the judgements. Some agencies are also engaged in the publication of the judgements of the Supreme Court. In 2002 the Estonian Law Centre Foundation initiated a project called Digesta that comprises not only the summaries of the judgements but offers also the context and analysis of the judgements (https://digesta.lc.ee). In addition, the state-owned company Andmevara runs a database where the judgements of the Supreme Court can be found by reference to the paragraphs of legal acts (http://lex.andmevara.ee/estlex/index.jsp). Both the services of Digesta and Andmevara are fee-of charge.
Since 2001, most of the judgements of the courts of first and second instance are also made available in a database called KOLA (http://kola.just.ee). KOLA is administered by the Ministry of Justice and is also provided with search engines.
Implementation of Conventions and Recommendations
1. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS No 108/81) (hereinafter: Convention)
The Convention has been signed by the Government of Estonian Republic and ratified by the Estonian Parliament in 2000. It entered into force for Estonia in 2002.
Pursuant to article 3(2)(a) of the Convention, the Estonian Republic has declared that the convention shall not be applied to the processing of personal data by natural persons for personal use.
According to article 13(2)(a) of the Convention, the Estonian Republic has designated the Data Protection Inspectorate (Andmekaitse Inspektsioon) as the authorised processor for the Convention.
The principles of the convention were integrated into our Personal Data Protection Act already in 1996. But the main basis for our Personal Data Protection Act was the directive 95/46/EC of the European Parliament and of the Council of Europe of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.
2. Recommendation Rec(2002)2 of the Committee Of Ministers to Member States on Access to Public Documents
Although this recommendation has not been taken into account in the elaboration of the Personal Data Protection Act of Estonia, it is not in contradiction with it. Our Personal Data Protection Act is even more precise and concrete in some points than directive 95/46/EC on which it is based on.
Recommendation has been worked out in the Steering Committee for Human Rights (CDDH). The Estonian expert in CDDH has been Mai Hion, the head of the Human Rights division of the Legal Department of the Ministry of Foreign Affairs.
3. Recommendation Rec(2003)13 on the Provision of Information through the Media in relation to Criminal Proceedings
The principles of this recommendation overlap with some articles of the procedural laws, but also with the code of ethics for the journalists and the strategies for public administration. Although precise analysis about the conformity between the recommendation and Estonian laws has not been made, it is clearly not in contradiction with Estonian laws and practice.
Estonian official, Mr Peeter Sookruus, Head of Media and Copyright Department, Ministry of Culture, has taken part in the elaboration of this recommendation in the working-group called Steering Group on the Mass Media (CDMM).
Access to court sessions
The Code of Criminal Procedure regulates public access to court sessions. (§§ 11 and 12).
Spokespersons in courts
Some courts have spokespersons, but they are not judges. Press secretaries are spokespersons of courts. But judges may give interviews to journalists and they may write articles (for example critical articles about functioning of the court system, etc). According to the Code of Ethics of the Estonian Judges there are some rules for judges: "Judge does not exhibit himself/herself or his/her family in lifestyle magazines."26
Television cameras in courtrooms and editing the press material
The court (the chairman of the court hearing) can decide if cameras are allowed in courtroom or not, but courts have no right to break in on editing of filmed material.
According to law there are restrictions on recording of court sessions:
Code of Criminal Procedure § 13:
(1) As of the opening of a court session until the pronouncement of the court decision, the persons present in the courtroom may:
1) take written notes;
2) make audio-recordings if this does not interfere with the court session.
(2) Other means for recording a court session may be used only with the permission of the court.
(3) If a court session is held in camera, the court may decide that written notes only may be taken.
Implications of violations of a person's reputation
Basis for all these issues is to be found in the Constitution of Estonia27. Article 17 of the Constitution provides that no one’s honour or good name shall be defamed. Article 26 establishes the inviolability of private and family life. At the same time, the constitution protects freedom of expression and provides that there is no censorship (article 45). The same article however provides that freedom of expression may be restricted by law to protect the honour and good name of others.
Currently, these issues are solved through civil cases where the moral damage can be claimed and compensated for. Article 1046 of Law of Obligations Act32 deals with unlawfulness of damaging personal rights, whereby defamation of a person, inter alia by passing undue judgement, by the unjustified use of the name or image of the person, or by breaching the inviolability of the private life or another personality right of the person is unlawful unless otherwise provided by law. Upon the establishment of unlawfulness, the type of violation, the reason and motive for the violation and the gravity of the violation relative to the aim pursued thereby shall be taken into consideration. The violation of a personality right is not unlawful if the violation is justified considering other legal rights protected by law and the rights of third parties or public interests. In such a case, unlawfulness shall be established based on the comparative assessment of different legal rights and interests protected by law.
Professional diligence and integrity requested from journalists
There is the Code of Ethics for the Estonian press35 that declares:
The Constitution of the Republic of Estonia36:
§ 22. No one shall be presumed guilty of a criminal offence until a conviction by a court against him or her enters into force.
§ 26. Everyone has the right to the inviolability of private and family life.
If the information provided by journalist is false
The Code of Ethics for the Estonian press declares:
5.2. The objection should correct any factual errors and misquotations. The space/time taken up by the objection may not exceed the space/time for the offending statement. The objection shall be published immediately and prominently, without any editorial comment.
5.3. A correction shall be issued in the event of any inaccuracies.
Law of Obligations Act37 § 134:
2) journalist may not express his/her opinion;
3) journalist may not use judgemental expressions, but must stick to the facts.
Judges and prosecution officers do not hold press conferences. But there have been some cases, when public interest was especially intense toward the work of police work, and then there were some press conferences held by the police.
Compensation for the victims of the violations of persons' reputation
Compensation for moral and material damage is regulated in article 25 of the Constitution, whereby everyone has the right to compensation for moral and material damage caused by the unlawful action of any person. This provision is directly justiciable. There is no more concrete regulation of affording moral damages.
The Supreme Court has given the following guidelines for assessing non-pecuniary damage: amount of non-pecuniary damage afforded shows the court’s valuation, whereby the court has taken into account general principles of law, level of general well-being of the society and court practice.
In case 3-2-1-105-01, the Court specified this requirement and stated that when affording moral damages for protection of personal rights, there are two aspects of value-judgement: personal and societal. From the personal perspective, moral damage should be evaluated in light of unjustified suffering caused. From the societal aspect, moral damage should show moral judgement and bring relief to the victim. Thus, moral damage should be monetary. The amount afforded should take into consideration the method, extent and nature of the insult, degree of misconduct, actions and attitude of the accused as well as the court practice in similar cases. Recently, the Supreme Court has made the system even more flexible (case no 3-2-1-11-04) by stating that it is not necessary to always afford monetary compensation. There might be cases where court proceedings and judgment amount to just satisfaction and thus are enough to reverse the negative harm done.
Case no 3-2-1-152-03 has been exceptional in the amount of moral damages afforded. Ms Prõrõtjeva initiated a case against a local newspaper, claiming for 200 000 kroons of moral damages. She had been a victim of a rape and the newspaper had published a story about the court decision concerning her, where her first name and initial of the family name were used. She claimed that as she was living in a small town, she had been recognised by the public and that had caused her lot of moral suffering. All the three court instances found that her claim was justified and afforded her 200 000 kroons for moral damage.
In the case-law discussed under question C.8, the amount requested for moral damage has, on the average, been between 10.000 to 20.000 kroons, in one case, non-pecuniary damage amounted to 143 000 kroons (3-moths salary of the applicant). There is, however, a tendency for the increase of the damages claimed and afforded.
Rectification of inaccurate information
As discussed above, there is no criminal liability for giving inaccurate information. Thus, the issue is only regulated in the Constitution and Law of Obligations Act.
In addition to the regulation of the Constitution referred to in C.8, disclosure of incorrect information is regulated by article 1047 of the Law of Obligations Act. According to this provision, violation of personality rights or interference with the economic or professional activities of a person by way of disclosure of incorrect information or by the incomplete or misleading disclosure of factual information concerning the person or the activities of the person is unlawful unless the person who discloses such information proves that, upon the disclosure thereof, the person was not aware and was not required to be aware that such information was incorrect or incomplete. The disclosure of defamatory facts concerning a person or facts which may adversely affect the economic situation of a person is deemed to be unlawful unless the person who discloses such facts proves that the facts are true. However, the disclosure of information or facts is not deemed to be unlawful if the person who discloses the information or facts or the person to whom such facts are disclosed has legitimate interest in the disclosure and if the person who discloses the information has checked the information or facts with a thoroughness which corresponds to the gravity of the potential violation. In the case of the disclosure of incorrect information, the victim may demand that the person who disclosed such information refute the information or publish a correction at the person's expense regardless of whether the disclosure of the information was unlawful or not.
It is a common practice to ask for rectification of inaccurate information besides claims of moral damage. Rectification is also a legal measure that can be recommended by Avaliku sõna nõukogu and Pressinõukogu during the hearing of a dispute.
Protective measures, preventive censorship, supervision of the media
According to article 142 of the Code of Criminal Procedure38, it is possible to seize property for securing criminal procedure. The same is possible in the civil procedure. According to article 156 of the Code of Civil Procedure39, there are different measures available for securing the action, one of which is a prohibition on the defendant from entering into certain transactions or performing certain acts.
Court's attack by the press
These are unsolved problems.
D. ACCESSIBILITY, SIMPLIFICATION AND CLARITY OF THE LANGUAGE USED BY THE COUTS IN PROCEEDINGS AND DECISIONS
Clarity , language and simplification of the judgements
The courts make judgements on behalf of the Republic of Estonia and judgements are printed on a blank that has Estonian coat of arms on header. A court judgement shall be lawful and reasoned. A judgement shall be prepared in writing and shall consist of an introduction, descriptive part, statement of reasons and conclusion.
The statement of reasons of a judgement shall set out the facts established by the court, the conclusions reached on the basis thereof, the evidence on which the conclusions of the court are based and the Acts which were applied by the court. In a judgement, a court shall substantiate its reasons for not agreeing with the allegations of the plaintiff or the defendant. A court shall analyse all gathered evidence in a judgement. If a court disregards any evidence, it shall justify this in the judgement.
The conclusion of a judgement shall set out the position of the court concerning the satisfaction of a claim or dismissal of an action wholly or partially, and the procedure and term for appeal against the judgement. If a party requests that the court divide the legal costs, the court shall indicate how the legal costs are divided in the decision.
On the basis of a petition of a participant in a proceeding or a person who is to execute a judgement, the court that made the judgement may interpret the judgement by a ruling without altering the content of the judgement. A judgement may be interpreted until it has been executed and until the expiry of the term during which execution of the judgement can be required.
There is no statistics made about the length of court judgements in Estonia, but it can be said that in average the length of a judgement is between 3-15 pages, depending on complicacy and content of a case. Compared to other European countries the length of a judgement in Estonia lies between the length of a judgement made in Germany and the length of a judgement made in France.
There are no special requirements to the use of language in writing a decision, but judges are recommended to write in plain language and to avoid usage of Latin and wordings that are difficult to understand, if not necessary. In the Supreme Court of Estonia a proof-reader reviews decisions before they are signed by judges in order to better conform to the referred recommendations.
Theoretical studies in the language of judgements
Generally, legal language is dealt with quite intensively in Estonia. In 1995 the Estonian Legal Language Centre (ELLC) opened for business as a state agency administered by the State Chancellery. As of January 2003 ELLC is within the area of government of the Ministry of Justice. The mandate and mission of the ELLC is to meet the legislative translation needs of the Estonian Government. Every year ELLC, the Ministry of Justice and editorial board of "Legal Language" organize a conference called the Legal Language Day, where different aspects of legal language are discussed.
The Ministry of Justice publishes in co-operation with Juura Publishing House several publications about legal language each year, such as "Language handbook for officials" (2nd edition published in 2003), which concentrates on the necessities of the officials' work and takes into account frequently appearing mistakes and flaws, or a periodical "Legal Language" that has 5 issues per year. "Legal Language" covers all important aspects of the legal language: general problems, terminology, translating, language policy etc. It analyses the associations between the language of the legislation and the language of legal science, as well as language problems of specific legal acts. It also explains the meaning of legal terms, gives advice on legal language and reflects the problems that have risen when translating legal texts.
However there are only a few writings published in Estonia that deal in depth with the use of language in writing a court judgement. In 1998 a Estonian philologist Elli Riikoja wrote "Language aid for a court employee", where she discussed main orthographic and stylistic issues that may arise in the course of writing a judgement. In 2004 Estonian Law Centre Foundation published "Instructions on writing a judgement" written by Andreas Kangur. The aim of latter material is to give judges instructions how to make and write reasoned judgement and among other topics it pays also attention to wordings of judgement.
Appendix 1 (for C4 and C5)
References to Estonian Legislation Relating to the Public Access in the Field of Judicial Activity
1. The Constitution of the Republic of Estonia
Everyone has the right to the inviolability of private and family life. State agencies, local governments, and their officials shall not interfere with the private or family life of any person, except in the cases and pursuant to procedure provided by law to protect health, morals, public order, or the rights and freedoms of others, to combat a criminal offence, or to apprehend a criminal offender.
Everyone has the right to freely obtain information disseminated for public use.
All state agencies, local governments, and their officials have a duty to provide information about their activities, pursuant to procedure provided by law, to an Estonian citizen at his or her request, except information the disclosure of which is prohibited by law, and information intended exclusively for internal use.
An Estonian citizen has the right to access information about himself or herself held in state agencies and local governments and in state and local government archives, pursuant to procedure provided by law. This right may be restricted pursuant to law to protect the rights and freedoms of others or the confidentiality of a child’s filiation, and in the interests of combating a criminal offence, apprehending a criminal offender, or ascertaining the truth in a criminal procedure.
Citizens of foreign states and stateless persons who are in Estonia have the rights specified in paragraphs two and three of this section equally with Estonian citizens, unless otherwise provided by law.
7. Riigi Teataja Act
Passed 20 January 1999, (consolidated text RT I 2001, 24, 133), entered into force 1 March 1999.
§ 11. Riigi Teataja
(1) The Riigi Teataja is the official publication of the Republic of Estonia. The Riigi Teataja shall be published on paper as printed matter and electronically on the Internet
§ 2. Legislation and other documents published in Riigi Teataja
The following shall be published in the Riigi Teataja:
12) reasoned decisions of the chambers, committees and panels of the Supreme Court;
171) judgments of administrative courts which have entered into force and legislation passed by way of supervisory control which amend or repeal legislation or documents published in the Riigi Teataja;
§ 11. Formalities for publication of legislation
(5) A decision of the Supreme Court is published in the form provided for in Acts concerning court procedure. For the purposes of presentation for publication, the names of persons specified in a decision, except the names of judges, may be changed or initials may be used instead of names.
§ 14. Index of Riigi Teataja
(2) In order to use the electronic Riigi Teataja by using a computer search system, access to legislation and other documents shall be ensured on the basis of the issuer of the legislation, type of the legislation, title of the legislation, publication citation of the legislation, references, time of establishment and entry into force of the legislation, and other data relating to the legislation or documents, and by the full text search.
2. Code of Civil Procedure
Passed 22 April 1998, (RT42 I 1998, 43/45, 666), entered into force 1 September 1998.
§ 8. Court hearing of matter is public
(1) The hearings of matters in all courts are public.
(2) The composition of the panel of the court which hears a matter shall be made public.
(3) A court may declare that a session or a part thereof be held in camera:
1) to maintain a state or business secret;
2) to protect morals or the private or family life of a person;
3) to maintain the confidentiality of messages sent or received by a participant in the proceeding by post, telegraph, telephone or other commonly used means;
4) to maintain the confidentiality of adoption;
5) in the interests of a minor;
6) in the interests of the administration of justice;
7) to hear a person who is up to 15 years of age, or who has a mental disorder or mental disability.
(4) At a court session held in camera the participants in the proceeding and, if necessary, also the witnesses, experts, interpreters and translators shall be present at the hearing of the matter. Court officials, trainees, and persons with a particular reason therefore may also be present at a court session held in camera with the permission of the presiding judge.
(5) A person of up to 15 years of age who is neither a participant in the proceeding nor a witness may be present at a court session with the permission of the court.
(6) The provisions of civil procedure shall be observed in court sessions held in camera. Judgments in court sessions held in camera shall be made public unless the interests of a minor or a spouse require otherwise.
(7) A court shall not disclose a state secret which has become known to the court in the course of a civil proceeding.
(8) A person with a legitimate interest has the right to examine the court records concerning a civil matter which has been adjudicated by a court if the court's decision has entered into force. The court records concerning a civil matter shall not be examined if the matter was heard in a session held in camera or if a basis specified in subsection (3) of this section for declaring that a session be held in camera existed. A judge shall verify the existence of such basis for declaration that a session be held in camera before giving permission to examine a file.
§ 67. Rights of participants in proceedings
The participants in a proceeding have the right to examine the file, make copies of the file, participate in court sessions, /.../ participate in the inspection and examination of evidence, /.../ receive certified copies of court decisions prepared as separate documents /.../ on the basis of and pursuant to the procedure provided by law. /.../
§ 211. Making of ruling
(1) A court ruling is a decision by which the merits of the matter are not decided. /.../
(3) The courts may make oral and written rulings in preliminary hearings and court sessions. Oral rulings shall be communicated promptly and recorded in the minutes. If a court ruling is subject to appeal pursuant to law, the ruling shall be made in writing.
(4) Written rulings made in a preliminary hearing or a court session shall be communicated promptly by the court. If the making and preparation of a ruling requires more time, the court may postpone making the ruling public for ten days. In such case, the court shall notify the participants in the proceeding of the time the ruling will be communicated in a court session or will be made public through the court office.
§ 226. Making judgment public
(1) A court judgment shall be made public by pronouncement or through the court office.
(2) A court shall pronounce a court judgment in the court room, and shall explain the procedure and term for appeal against the judgment.
(3) If the making and preparation of a judgment requires more time, the court may postpone making the judgment public for up to fifteen days.
(4) If a court does not pronounce a court judgment in the court room during the same session, it shall notify the participants in the proceeding of the time the court judgment will be pronounced in a session or made public through the court office.
§ 2411. Publication of judgment which has entered into force in Internet
(1) A court judgment and a court ruling which have entered into force and which terminate proceedings shall be published in the Internet on the website of the court.
(2) A court decision shall not disclose the personal identification code, date of birth or residence of a person participating in proceedings.
(3) A court shall replace in a court decision, on its own initiative or at the request of the data subject, the name of the person with initials or characters if the decision contains private or sensitive personal data or if publication of the decision with personal data may significantly breach the inviolability of private life of the person.
(4) If a court decision specified in subsection (3) of this section allows identification of a person also without personal data, the court shall publish, on its own initiative or at the request of the data subject, only the conclusion of the decision or does not publish the court decision.
(5) A court shall publish, on its own initiative or at the request of the interested person, only the conclusion of a court decision if the decision contains information regarding which another restriction on access is prescribed by law. /.../
§ 246. Sending copies of court judgments and court rulings
(1) A party or participant in a proceeding may receive a copy of a court judgment or court ruling if the party or other participant in a proceeding so desires after the decision is made public. If a decision which is prepared as a separate document is made without summoning the parties to the court, the court shall send a copy of the decision to the parties within five days after making the judgment.
(2) If a court judgment contains information which, pursuant to section 8 subsection (1) of this Code, may constitute the grounds for declaration of a court session to be held in camera, a participant in the proceeding may also request an extract of the court judgment. An extract shall contain the introduction and conclusion of the court judgment.
(3) If a person who was summoned to court by a notice in the newspaper failed to appear in court and the matter was adjudicated without his or her attendance, the conclusion of the court judgment shall be published in the official publication Ametlikud Teadaanded.
(4) If personal data which shall be entered in a register is altered by a court judgment, the court shall send a copy of the court judgment to the registrar.
3. Code of Administrative Court Procedure
Passed 25 February 1999 (RT I 1999, 31, 425), entered into force 1 January 2000.
§ 19. Court hearing of matter
(4) Matters are heard orally in public court sessions. Matters may be heard in a court session held in camera in the cases provided by civil procedure.
§ 20. Minutes
(2) /.../ Recorded minutes shall be promptly communicated (tehakse teatavaks) in a session and submitted to the person whose statement, testimony or opinion is recorded for signature. Amendments shall be made to the minutes on the basis of objections by such person if the court consents to the objections.
§ 19. Court hearing of matter
(4) Matters are heard orally in public court sessions. Matters may be heard in a court session held in camera in the cases provided by civil procedure.
§ 28. Pronouncement of court judgment and sending copies of court judgment or court ruling
(1) A judgment of an administrative court shall be pronounced in the court room or made public in the court office within fifteen days after the end of court session. At the end of the court session, the court shall communicate when and where the judgment shall be pronounced or made public.
(2) If the participants in the proceedings so desire, they may receive copies of a court judgment or court ruling from the court office after the judgment or ruling is pronounced or made public.
(3) A copy of a court judgment or court ruling shall be immediately sent to the agency or official or other person performing administrative functions in public law who issued the administrative act or took the measure against which an action or protest was filed, and to the person who filed the protest.
(4) If a court judgment contains information which may constitute the grounds for declaration of a court session to be held in camera, a participant in a proceeding may also request an extract of the court judgment. An extract shall contain the introduction and conclusion of the court judgment.
(5) If a participant in a proceeding who was summoned to court by a notice in the newspaper failed to appear in court and the matter was adjudicated without his or her attendance, the conclusion of the court judgment shall be published in the newspaper in which court notices are published.
§ 66. Making of decision in Supreme Court
(2) At the end of a session, the court shall announce when and how the decision will be made public. A decision shall be made public not later than within thirty days after the end of a court session. A copy of a decision shall be served on the participants in the proceedings in the office of the Administrative Chamber, or at their request, shall be sent to them by post within five days after the decision is made. The date of a decision is the date on which it is signed.
§ 73. Decision of Supreme Court
(2) Decisions of the Supreme Court enter into force as of the date they are made public, and they are not subject to appeal.
(3) Decisions of the Supreme Court in administrative matters, except conclusions, shall be published in the Riigi Teataja.
4. Code of Criminal Procedure
Passed 12 February 2003, (consolidated text RT I 2004, 65, 456), entered into force 1 July 2004.
§ 11. Public access to court sessions
(1) Every person has the opportunity to observe and record court sessions pursuant to the procedure provided for in § 13 of this Code.
(2) The principle of public access applies to the pronouncement of court decisions without restrictions unless the interests of a minor, spouse or victim require pronouncement of a court decision in a court session held in camera.
(3) The principle of public access applies as of the opening of a court session until pronouncement of the court decision, taking into account the restrictions provided for in §§ 12 and 13 of this Code.
(4) A court may remove a minor from a public court session if this is necessary for the protection of the interests of the minor.
§ 12. Restrictions on public access to court sessions
(1) A court may declare that a session or a part thereof be held in camera:
1) in order to protect a state or business secret;
2) in order to protect morals or the private and family life of a person;
3) in the interests of a minor;
4) in the interests of justice, including in cases where public access to the court session may endanger the security of the court, a party to the court proceeding or a witness.
(2) A court shall adjudicate restrictions on public access to a court session on the grounds provided for in subsection (1) of this section by a ruling made on its own initiative or at the request of a party to the court proceeding.
(3) With the permission of the court, an official of an investigative body, a court official, witness, expert, interpreter, translator or a person close to the accused within the meaning of subsection 71 (1) of this Code may observe a court session held in camera.
(4) If a court session is held in camera, the court shall warn the parties to the court proceeding and other persons present in the courtroom that disclosure of the information relating to the proceeding is prohibited.
§ 13. Restrictions on recording of court sessions
(1) As of the opening of a court session until the pronouncement of the court decision, the persons present in the courtroom may:
1) take written notes;
2) make audio-recordings if this does not interfere with the court session.
(2) Other means for recording a court session may be used only with the permission of the court.
(3) If a court session is held in camera, the court may decide that written notes only may be taken.
§ 15. Direct and oral court hearing
(1) A decision of a county or city court may be based only on evidence which has been orally presented and directly examined in the court hearing and recorded in the minutes.
(2) A decision of a circuit court may be based on:
1) evidence which has been orally presented and directly examined in a court hearing by the circuit court and recorded in the minutes;
2) evidence which has been directly examined in a county or city court and presented in appeal proceedings.
(3) A court decision shall not be based solely on the testimony of a witness declared anonymous pursuant to § 67 of this Code.
§ 34. Rights and obligations of suspects
(1) A suspect has the right to:
1) know the content of the suspicion and give or refuse to give testimony with regard to the content of the suspicion;
9) examine the report of procedural acts and give statements on the conditions, course, results and report of the procedural acts, whereas record shall be made of such statements;
§ 35. Accused
(2) The accused has the rights and obligations of a suspect. The accused has the right to examine the criminal file through his or her counsel and participate in the court hearing.
§ 67. Ensuring safety of witnesses
(1) Taking into account the gravity of a criminal offence or the exceptional circumstances relating thereto, a preliminary investigation judge may, at the request of the Prosecutor’s Office, declare a witness anonymous by a ruling in order to ensure the safety of the witness.
(2) In order to make a ruling on anonymity, the preliminary investigation judge shall question the witness in order to ascertain his or her reliability and the need to ensure his or her safety, and shall hear the opinion of the prosecutor. If necessary, the preliminary investigation judge shall examine the criminal file.
(3) A fictitious name shall be assigned to an anonymous witness on the basis of the ruling on anonymity and the name shall be used in procedural acts pursuant to subsection 146 (8) of this Code.
(4) Information concerning the name, personal identification code or, in the absence thereof, date of birth, citizenship, education, residence and place of employment or the educational institution of a witness declared anonymous shall be enclosed in an envelope bearing the number of the criminal matter and the signature of the person conducting the proceedings. The envelope shall be sealed and kept separately from the criminal file. The information contained in the envelope shall be examined only by the person conducting the proceedings who shall seal and sign the envelope again after examining the information.
(5) In a court proceeding, a witness bearing a fictitious name shall be heard by telephone pursuant to the procedure provided for in clause 69 (2) 2) of this Code using voice distortion equipment, if necessary. Questions may be submitted to the witness also in writing.
§ 121. Submission of information collected by surveillance activities for examination
(1) A body which has conducted surveillance activities or the investigative body which requested the conduct of the surveillance activities shall immediately give notification of such activities to the person with regard to whom the activities were conducted and the persons whose private or family life was violated by the activities. With the permission of the prosecutor, conduct of the surveillance activities need not be given notification of until the corresponding bases cease to exist if this may:
1) damage the rights and freedoms of another person which are guaranteed by law;
2) endanger the right of a person who has been recruited for surveillance activities to maintain the confidentiality of co-operation;
3) endanger the life, health, honour, dignity and property of an employee of a surveillance agency, a person who been recruited for surveillance activities or another person who has been engaged in surveillance activities and of persons connected with them;
4) prejudice a criminal proceeding or induce crime.
(2) At the request of a person specified in subsection (1) of this section, he or she is permitted to examine the materials of the surveillance activities conducted with regard to him or her, and the photographs, films, audio and video recordings and other data recordings obtained as a result of the surveillance. With the permission of the prosecutor, the following information may need not be submitted until the corresponding bases cease to exist:
1) information concerning the private life of other persons;
2) information the submission of which may damages the rights and freedoms of another person which are guaranteed by law;
3) information which contains state secrets or secrets of another person that are protected by law;
4) information the submission of which may endanger the right of a person who has been recruited for surveillance activities to maintain the confidentiality of co-operation;
5) information the submission of which may endanger the life, health, honour, dignity and property of an employee of a surveillance agency, a person who been recruited for surveillance activities or another person who has been engaged in surveillance activities and of persons connected with them;
6) information the submission of which may prejudice a criminal proceeding or induce crime;
7) information which cannot be separated or disclosed without information specified in clauses 1)-6) of this subsection becoming evident.
§ 156. Audio and video recording of court sessions
(1) A court may make an audio or video recording of a court session. A notation to this effect shall be made in the minutes of the court session.
(2) If a court session or court activity is audio or video recorded, the court may use the recording in order to supplement and specify the minutes of the court session.
(3) Changes to an audio or video recording are prohibited.
§ 214. Conditions for disclosure of information concerning pre-trial proceedings
(1) Information concerning pre-trial proceedings shall be disclosed only with the permission of and to the extent specified by the Prosecutor's Office and under the conditions provided for in subsection (2) of this section.
(2) Information concerning a pre-trial proceeding shall not be disclosed if disclosure thereof may:
1) damage the interests of the Republic of Estonia;
2) prejudice the detection of a criminal offence;
3) prejudice a criminal proceeding or induce crime;
4) violate a business secret or the activities of a legal person;
5) jeopardise the inviolability of private and family life, or discredit a person;
6) damage the interests of a minor.
(3) In the event of violation of the prohibition on disclosure of information concerning pre-trial proceedings, a preliminary investigation judge may impose a fine of up to sixty minimum daily rates on the participants in the procedural act by a court ruling at the request of the Prosecutor's Office. The suspect and the accused shall not be fined.
§ 224. Submission of criminal file to criminal defence counsel and submission of criminal file to victim and civil defendant for examination
(1) A copy of the criminal file shall be given to the defendant against signature.
(2) A Prosecutor's Office shall submit a criminal file to a victim or civil defendant for examination at the request thereof.
(3) A recording made in a criminal proceeding or physical evidence shall be submitted to the counsel, victim or civil defendant for examination at the request thereof.
(4) If examination of a criminal file, recording or physical evidence is obviously delayed, the Prosecutor's Office shall set a term for the examination.
(5) A victim and civil defendant have the right to make excerpts from the materials of the criminal file and request that copies be made of the materials of the criminal file by the Prosecutor's Office for a charge.
(6) A notation shall be made in a criminal file concerning examination of the criminal file, a recording made in the criminal matter or physical evidence by the counsel, victim or civil defendant.
(7) At the request of a defendant, a medium containing a state secret which is used as evidence in a criminal matter and which is not added to the criminal file shall be submitted to him or her for examination. A notation shall be made in a criminal file concerning examination of a medium containing a state secret.
§ 315. Pronouncement of court judgment and explanation of right of appeal
(1) A judge or, in the case specified in subsection 18 (1) or (3) of this Code, the presiding judge shall pronounce a court judgment at the time announced pursuant to § 304 of this Code.
(2) If the accused is not proficient in the language of the criminal proceeding, the court judgment shall be interpreted or translated for him or her after the pronouncement of the judgment.
(3) The judge shall ask whether the person acquitted or convicted understands the court judgment and explain the content of the judgment to him or her if necessary.
(4) A court may decide to pronounce only the conclusion of the judgment, in which case the court shall explain the main reasons for the court judgment orally upon the pronouncement of the judgment.
(5) After the pronouncement of a court judgment or the conclusion thereof the judge or presiding judge shall:
1) upon the pronouncement of the conclusion of the court judgment, give notification of the date on which the court judgment will be available in court for examination by the parties to the court proceedings and shall make a corresponding notation in the minutes of the court session;
2) give notification of the term for appeal against the court judgment and explain the procedure for appeal provided for in § 318 of this Code and the possibility to waive the right of appeal;
3) explain that the county or city court must be notified of the intention to exercise the right of appeal in writing within seven days as of the pronouncement of the court judgment or of the conclusion thereof.
(6) Waiver of the right of appeal shall be recorded in the minutes of the court session. A counsel may waive the right of appeal only with the written consent of the person defended.
(7) If all parties to the court proceedings waive the right of appeal or if during the term provided for in clause (5) 2) of this section none of the parties to the court proceedings gives notification of the intention to exercise the right of appeal, only the information provided for in § 311, 313 or 314 of this Code shall be set out in the court judgment.
(8) If the parties to the court proceedings do not waive the right of appeal, the full court judgment shall be prepared within fifteen days as of the date on which the county or city court is notified of an intention to exercise the right of appeal.
§ 317. Service of copies of court judgment
(1) A court judgment may be examined in court after the judgment has been pronounced or communicated. At the request of a party to the court proceedings, a copy of the court judgment shall be submitted to him or her. A court shall send a copy of the decision to a party to the court proceeding who did not participate in the pronouncement of the decision.
(2) If the accused is under arrest, a copy of the court judgment shall be sent to or served on him or her immediately after the court judgment has been pronounced or communicated through the court.
§ 320. Prohibition on disclosure of criminal file, and access to criminal file
(1) During a term for appeal, the criminal file shall be kept in the county or city court and shall not be disclosed.
(2) The accused has the right to examine the criminal file through his or her counsel.
§ 343. Pronouncement of judgment of circuit court and service of copies of judgment
(1) After the summations, the circuit court shall announce the time or day when the court decision will be available for the parties to the proceedings at circuit court.
(2) If a circuit court pronounces a court judgment or the conclusion of the judgment immediately after deliberations, provisions of §§ 315 and 316 of this Code apply.
(3) Copies of a judgment of a circuit court shall be served in accordance with § 317 of this Code.
§ 351. /.../ examination of criminal file in Supreme Court
(4) Parties to a cassation proceeding have the right to examine the criminal file in the Supreme Court and make copies of the file at their own expense.
§ 352. Manner /.../ for hearing criminal matter by way of cassation procedure
(1) Generally, the Supreme Court shall hear a criminal matter by way of a written proceeding.
(2) A criminal matter shall be heard by way of an oral proceeding if oral procedure has been requested by a party to the cassation proceeding or deemed necessary by the Supreme Court.
§ 4081. Publication of court judgment and court ruling which have entered into force
(1) A court judgment and a court ruling which have entered into force and which terminate proceedings shall be published in the Internet on the website of the court.
(2) A published court decision shall not disclose the personal identification code, date of birth or residence of a person.
(3) A court shall replace in a court decision, on its own initiative or at the request of the data subject, the name of the person with initials or characters if the court decision contains private or sensitive personal data or if publication of the court decision with personal data may significantly breach the inviolability of private life of the person.
(4) If a court decision specified in subsection (3) of this section allows identification of a person also without personal data, the court shall publish, on its own initiative or at the request of the data subject, only the conclusion or final part of the decision or does not publish the court decision in its entirety.
(5) A court shall publish, on its own initiative or at the request of the interested person, only the conclusion or final part of a court decision if the court decision contains information regarding which another restriction on access prescribed by law applies.
(6) A request specified in subsections (3), (4) and (5) of this section shall be submitted to a court before a decision is made. The court shall adjudicate the request by a ruling. A person who submitted the request may file an appeal against a court ruling by which the request was dismissed.
5. Personal Data Protection Act
Passed 12 February 2003, (RT1 I 2003, 26, 158), entered into force 1 October 2003.
§ 4. Personal data
(1) Personal data are information relating to an identified natural person or a natural person identifiable by reference to the person's physical, mental, physiological, economic, cultural or social characteristics, relations and associations.
(2) The following are private personal data:
1) data revealing details of family life;
2) data revealing an application for the provision of social assistance or social services;
3) data revealing mental or physical suffering endured by a person;
4) data collected on a person during the process of taxation, except data concerning tax arrears.
(3) The following are sensitive personal data:
1) data revealing political opinions or religious or philosophical beliefs, except data relating to being a member of a legal person in private law registered pursuant to the procedure provided by law;
2) data revealing ethnic or racial origin;
3) data relating to the state of health or disability;
4) data relating to genetic information;
5) data relating to sexual life;
6) data concerning membership in trade unions;
7) information collected in criminal proceedings or in other proceedings to ascertain an offence before a public court session or before a judgment is made in a matter concerning an offence, or if this is necessary in order to protect public morality or the family and private life of persons, or where the interests of a minor, a victim, a witness or justice so require.
6. Public Information Act
Passed 15 November 2000, (RT1 I 2000, 92, 597), entered into force 1 January 2001.
§ 2. Scope of application of Act
(1) This Act provides for:
1) the conditions of, procedure for and methods of access to public information and the bases for refusal to grant access;
(2) This Act does not apply:
1) to information which is classified as a state secret;
4) to restrictions on access to information and to special conditions for, the procedure for and methods of access if these are otherwise provided for in specific Acts or international agreements.
§ 28. Obligation of holder of information to disclose information
(1) A holder of information is required to disclose the following existing information relating to the duties thereof:
29) court judgments which have entered into force;
Appendix 2. (Other references)
Association of Estonian Judges. Available 28.01.2005.
Association of Estonian Jurists. Available on 28.01.2005. http://www.juristideliit.ee/?c=200&a=760
Academic Assocation of Lawers. Available 07.02.2005. http://www.oigus-selts.ee/
Chancellor of Justice. Available on 28.01.2005. http://www.oiguskantsler.ee/index.php?lang=eng
Code of Ethics of the Estonian Judges. Available 29.01.2005. http://www.just.ee/index.php3?cath=8486
Code of Ethics for the Estonian press. Available 28.01.2005.http://www.asn.org.ee/english/code_of_ethics.html
Estonian Press Council.
Ministry of Justice. Available on 28.01.2005.
Press Council of Estonian Newspaper Association
Riigi Teataja (State Gazette). Available 05.02.2005.
Digesta. Available 05.02.2005.
KOLA. Available 05.02.2005.
Andmevara. Available 05.02.2005.
Legal Acts on the Internet
The Constitution of the Republic of Estonia. Available 28.01.2005. http://www.legaltext.ee/et/andmebaas/ava.asp?m=022
Administrative Court Procedure. Available 28.01.2005. http://www.legaltext.ee/et/andmebaas/ava.asp?tyyp=SITE_ALL&ptyyp=I&m=000&query=seadustik
Code of Civil Procedure. Available 28.01.2005. http://www.legaltext.ee/et/andmebaas/ava.asp?tyyp=SITE_ALL&ptyyp=I&m=000&query=seadustik
Code of Criminal Procedure. Available 28.01.2005. http://www.legaltext.ee/et/andmebaas/ava.asp?tyyp=SITE_ALL&ptyyp=I&m=000&query=seadustik
Courts Act. Available 28.01.2005.
Books, articles, academic researches
B. Aaviskoo, T. Annus. Sosial care as constitutional right. - Juridica, 2002, p. 64.
Judgement of European Court of Human Rights
CASE OF TAMMER v. ESTONIA
(Application no. 41205/98)
6 February 2001
In the case of Tammer v. Estonia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mrs E. Palm, President,
Mrs W. Thomassen,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
Mr C. Bîrsan,
Mr J. Casadevall, judges,
Mr U. Lõhmus, ad hoc judge,
and Mr M. O'Boyle, Section Registrar,
Having deliberated in private on 16 January 2001,
delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 41205/98) against the Republic of Estonia lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Mr Enno Tammer (“the applicant”), on 19 February 1998.
2. The applicant was represented by Mr I. Gräzin, Dean of the Law Faculty at University Nord in Tallinn, Estonia. The Estonian Government (“the Government”) were represented by their Agents, Mr E. Harremoes, Special Adviser of the Permanent Representation of Estonia to the Council of Europe, and Ms M. Hion, First Secretary of the Human Rights Division of the Legal Department of the Ministry of Foreign Affairs.
3. The applicant alleged a violation of Article 10 of the Convention in connection with his conviction for remarks he made in a newspaper interview.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1. Mr R. Maruste, the judge elected in respect of Estonia, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr U. Lõhmus to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).
6. By a decision of 19 October 1999 the Chamber declared the application admissible [Note by the Registry. The Court's decision is obtainable from the Registry.].
7. The Government, but not the applicant, filed written observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine).
I. THE CIRCUMSTANCES OF THE CASE
8. At the material time the applicant was a journalist and editor of the Estonian daily newspaper Postimees.
9. The applicant's complaint under Article 10 of the Convention relates to his conviction by the Estonian courts of insulting Ms Vilja Laanaru in an interview he had conducted with another journalist, Mr Ülo Russak, which was published in Postimees on 3 April 1996. The interview was entitled “Ülo Russak denies theft” and was prompted by an allegation made by Ms Laanaru that Mr Russak, who had helped her to write her memoirs, had published them without her consent. The interview had the following background.
10. Ms Laanaru is married to the Estonian politician Edgar Savisaar. In 1990, when Mr Savisaar was still married to his first wife, he became Prime Minister of Estonia. Ms Laanaru, who had already been working for him, became his assistant. She continued to work with him during the following years and in 1995, when Mr Savisaar held the post of Minister of the Interior, she was one of his counsellors.
11. Ms Laanaru had been politically active in the Centre Party (Keskerakond) led by Mr Savisaar and was an editor of the party's paper.
12. In or around 1989 Ms Laanaru gave birth to a child by Mr Savisaar. As she was unwilling to place her child in a kindergarten, the child was entrusted to her parents.
13. On 10 October 1995 Mr Savisaar was forced to resign as Minister of the Interior following the discovery of secret tape recordings of his conversations with other Estonian politicians. On the same day Ms Laanaru issued a statement in which she claimed full responsibility for the secret recordings.
14. Ms Laanaru then left her post in the Ministry of the Interior and began writing her memoirs with the help of a journalist, Mr Russak.
15. In her memoirs, as recounted to Mr Russak, Ms Laanaru recalled her experiences in politics and the government. In considering the issue of the secret tape recordings she conceded that the statement she had made on 10 October 1995 was not true. According to Mr Russak, she also reflected on her relationship with Mr Savisaar, a married man, asking herself whether she had broken up his family. She admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price in sacrificing her child to her career.
16. In the course of the writing, a disagreement arose between her and Mr Russak as to the publication and authorship of the memoirs.
17. On an unspecified date Ms Laanaru brought a civil action before the Tallinn City Court (Tallinna Linnakohus) for the protection of her rights as the author of the manuscript.
18. On 29 March 1996 the City Court issued an order prohibiting Mr Russak from publishing the manuscript pending the resolution of the issue of its authorship.
19. Following the court order, Mr Russak decided to publish the material collected in a different form, namely in the form of the information Ms Laanaru had given him during their collaboration.
20. Mr Russak's account of Ms Laanaru's story began appearing in the daily newspaper Eesti Päevaleht on 1 April 1996.
21. Later the same year, Ms Laanaru published her own memoirs. In her book she stated that some of the information published in the newspaper report of Mr Russak's story was incorrect, without specifying in which respect.
22. In the newspaper interview of 3 April 1996, mentioned in paragraph 9 above, the applicant questioned Mr Russak on the issue of the publication of the memoirs and asked him, inter alia, the following question:
“By the way, don't you feel that you have made a hero out of the wrong person? A person breaking up another's marriage [abielulõhkuja], an unfit and careless mother deserting her child [rongaema]. It does not seem to be the best example for young girls.” [Note by the Registry: The translation of the Estonian words “abielulõhkuja” and “rongaema” is descriptive since no one-word equivalent exists in English.}
23. Following the above publication, Ms Laanaru instituted private prosecution proceedings against the applicant for allegedly having insulted her by referring to her as “abielulõhkuja” and “rongaema”.
24. In the proceedings before the City Court, the applicant argued that the expressions used had been intended as a question rather than a statement of his opinion and that a question mark after them had been left out by mistake in the course of the editing. He denied the intent to offend Ms Laanaru and considered the expressions used as neutral. He further claimed that Ms Laanaru's actions had justified his asking the question.
25. By a judgment of 3 April 1997, the City Court convicted the applicant under Article 130 of the Criminal Code of the offence of insulting Ms Laanaru and fined him 220 kroons, the equivalent of ten times the “daily income” rate (see paragraph 31 below). In finding against the applicant, the City Court took note of the expert opinion given by the Estonian Language Institute (Eesti Keele Instituut) and of the applicant's unwillingness to settle the case by issuing an apology. It also noted that under the relevant provision of the Criminal Code liability did not depend on whether or not the victim actually possessed the negative qualities ascribed to her by the applicant. According to the expert opinion, the words at issue constituted value judgments which expressed a strongly negative and disapproving attitude towards the phenomena to which they referred. The word “rongaema” indicated that a mother had not cared for her child, and the word “abielulõhkuja” indicated a person who had harmed or broken up someone else's marriage. Both phenomena had always been condemned in Estonian society and this was also reflected in the language. However, the words were not improper in their linguistic sense.
26. The applicant lodged an appeal with the Tallinn Court of Appeal (Tallinna Ringkonnakohus) in which he argued, inter alia, that the first-instance court had failed to take into account the context of the whole article in which the two words appeared. He also disputed the qualification of his action as a crime on the grounds that he had lacked criminal intent and that the form used was not improper. He further stressed his right as a journalist freely to disseminate ideas, opinions and other information guaranteed by the Estonian Constitution and argued that the judgment of the first-instance court constituted a violation of his freedom of speech.
27. By a judgment of 13 May 1997, the Court of Appeal dismissed the applicant's appeal and upheld the City Court's judgment. The Court of Appeal noted that in private prosecution cases its examination was limited to the claims put forward by the offended party. The text of the whole interview, however, had been added to the case file. While noting that the impugned expressions were not indecent, the Court of Appeal considered them to be grossly degrading to human dignity and their use by the applicant in the circumstances of the case abusive. Had he expressed his negative opinion about Ms Laanaru by stating that she did not raise her child and that she had destroyed Mr Savisaar's marriage, it would not have constituted an insult. The Court of Appeal pointed out that the Constitution and the Criminal Code expressly provided for the possibility of restricting freedom of speech if it infringed the reputation and rights of others. Despite the special interest of the press in public figures, the latter also had the right to have their honour and dignity protected.
28. The applicant lodged an appeal on points of law with the Supreme Court (Riigikohus) arguing, inter alia, that the two expressions did not have any synonyms in the Estonian language and he had therefore had no possibility of using other words. The use of a longer sentence omitting the words had been precluded by objective circumstances peculiar to journalism.
29. By a judgment of 26 August 1997, the Supreme Court's Criminal Division rejected the applicant's appeal and upheld the Court of Appeal's judgment. Its judgment included the following reasons:
“I. The principle of freedom of speech, including the principle of freedom of the press provided for in Article 45 § 1 of the Constitution of the Republic of Estonia ('the Constitution') and Article 10 § 1 of the European Convention on Human Rights ('the ECHR'), is an indispensable guarantee for the functioning of a democratic society and therefore one of the most essential social values.
According to Article 11 of the Constitution the restriction of any rights or freedoms may take place only pursuant to the Constitution; such restrictions must moreover be necessary in a democratic society and must not distort the nature of the restricted rights and freedoms. Freedom of speech, including freedom of the press, as a fundamental right may be restricted pursuant to Article 45 of the Constitution for the protection of public order, morals, the rights and freedoms of other persons, health, honour and good name. Under Article 10 § 2 of the ECHR, freedom of speech may be restricted by law also for the protection of morals and the reputation or rights of others.
II. In Estonia a person has in principle the right to protect his or her honour as one aspect of human dignity by bringing either civil or criminal proceedings.
According to section 23(1) of the Law on General Principles of the Civil Code, a person has the right to apply for a court order to put a stop to the besmirching of his or her honour, the right to demand rebuttal of the impugned material provided that the person defaming him or her fails to prove the truthfulness of the material and also the right to demand compensation for pecuniary or non-pecuniary damage caused by the attack on his or her honour.
Thus a person can seek protection through a civil procedure only if the person feels that his or her honour has been sullied with a statement of fact, as only a fact can be proved to be true. However, if a person feels that his or her honour has been besmirched by a value judgment, it is impossible to prove that allegation in a legal sense. In its Lingens v. Austria (1986) and Thorgeir Thorgeirson v. Iceland (1992) judgments, the European Court of Human Rights has also taken the view that a clear distinction must be made between facts and value judgments. Since the truth of a value judgment cannot be proved, the European Court of Human Rights has found that if a person offended by a journalist through a value judgment goes to a national court in order to prove the value judgment, this constitutes a violation of the freedom of speech provided for in Article 10 of the ECHR. Therefore, a person in Estonia has in fact no possibility of protecting his or her honour through civil-law remedies if he or she has been defamed by means of a value judgment. It follows that in [such] cases ... a person can only resort to criminal-law remedies for protecting his or her honour – by initiating a private prosecution under Article 130 of the Criminal Code. In the present case, the victim has availed herself of this sole opportunity.
III. The Criminal Division of the Supreme Court considers the judgments delivered by the Tallinn City Court and the Tallinn Court of Appeal on 3 April 1997 and 13 May 1997 respectively to be lawful and not subject to annulment.
In response to the arguments put forward in the appeal, the Criminal Division of the Supreme Court considers it necessary to note the following.
The appellant's statement that the words 'rongaema' and 'abielulõhkuja' could not be offensive to V. Laanaru since the sentence in the article which contained these words did not include the name of V. Laanaru, meaning that the words have not been used against anyone personally, is groundless and fabricated. Both the City Court and the Court of Appeal have correctly concluded that the expressions 'rongaema' and 'abielulõhkuja' have been used by [the applicant] to characterise the victim V. Laanaru (Savisaar). The Criminal Division of the Supreme Court wishes to add that in the formulation of his next argument – that it is legitimate to use the impugned expressions towards public figures – the appellant has considered V. Laanaru to be a public figure, thereby in fact invalidating his first argument.
Although Article 12 of the Constitution stipulates the equality of everyone before the law, the Criminal Division of the Supreme Court does not consider it necessary to question the special interest of the press towards public figures – a principle recognised in the practice of the European Court of Human Rights. However, the Criminal Division of the Supreme Court wishes to stress that in Estonia there is no legal definition of a public figure and in the practice of the European Court of Human Rights no one has been considered a public figure for the reason that he or she is a spouse, cohabitant, child or other person close to a public figure. It must be emphasised nevertheless that it cannot be concluded from the practice of the European Court of Human Rights that the special interest of the press towards public figures means that public figures cannot be offended. On the contrary, according to the criminal laws of several countries, such as Germany, the act of offending a public figure qualifies as a crime. The public has the right to expect the press to describe the life of public figures more thoroughly than the life of ordinary people, but the public has no right to expect the honour of public figures to be degraded, especially in the press and in an improper manner.
The Criminal Division does not agree with the standpoint put forward in the appeal that, since the words 'rongaema' and 'abielulõhkuja' are not vulgar or indecent, their use in referring to a person cannot be considered as degrading that person's honour and dignity in an improper manner, which is an obligatory element of the definition of the offence under Article 130 of the Criminal Code. Improper form as a legal category within the meaning of Article 130 of the Criminal Code does not only include the use of vulgar or indecent words, but also the use of negative and defamatory figurative expressions. Besides, improper form may also be non-verbal, for example a caricature. Both the City Court and the Court of Appeal have correctly taken the view, on the basis of an expert opinion, that by using the words 'rongaema' and 'abielulõhkuja' in reference to V. Laanaru in the newspaper article [the applicant] has treated the victim in public in a defamatory and thus improper manner.
The statement of [the applicant's] defence lawyer ... that the Court of Appeal had no right to prescribe which style a journalist was to use when writing a newspaper article is without foundation. Such a statement can be accepted in so far as the journalistic style does not offend or degrade human dignity. Concerning the protection of the honour and dignity of a person, the court was correct in pointing out that the idea expressed in an improper form could also be expressed in a proper form in Estonian.
The argument of the appellant that the offensive expressions 'rongaema' and 'abielulõhkuja' were used due to the absence in the Estonian language of synonymous terms and that the use of a longer sentence avoiding these words was precluded by objective circumstances peculiar to journalism, is also ill-founded. There are probably no synonyms for several vulgar and indecent expressions in Estonian. This, however, does not justify their use. Any objective circumstances inherent in the functioning of the press – such as consideration of newspaper space and information density, according to the appellant – being values whose scope is limited to a particular sphere, cannot be compared to such values as human dignity.
Under Article 65 § 4 of the Code of Criminal Procedure in Appeal and Cassation Proceedings, the Supreme Court lacks competence to establish factual circumstances. Accordingly, the Supreme Court cannot reconsider the decision which the City Court and the Court of Appeal took on the basis of an expert opinion that the use of these offensive expressions constituted a value judgment by the journalist and not a question. However, the Criminal Division of the Supreme Court finds it necessary to point out that the prevailing opinion in legal writing is that insult is in principle possible also in the form of a question. It is also important to stress that if the newspaper Postimees has violated the rights of the author [the applicant] and distorted his intent by an incompetent technical editing [by leaving out the question mark at the end of the two expressions] (letter of the chief editor of Postimees of 16 May 1996 in the file), it would have been possible for [the applicant] or the newspaper to remedy the damage in an out-of-court settlement by simply publishing an apology as the victim had expressed readiness to reach such a settlement. However, neither [the applicant] nor the newspaper Postimees was willing to acknowledge in public that they had made a mistake and this constituted further evidence of direct intent to insult.”
II. RELEVANT DOMESTIC LAW
30. The relevant provisions of the Estonian Constitution read as follows:
“Everyone has the right to freely disseminate ideas, opinions, beliefs and other information by word, print, picture or other means. This right may be restricted by law to protect public order, morals, and the rights and freedoms, health, honour and good name of others.”
“Rights and freedoms may be restricted only in accordance with the Constitution. Such restrictions must be necessary in a democratic society and shall not distort the nature of the rights and freedoms restricted.”
31. The relevant provisions of the Criminal Code read as follows:
Article 130 – Insult
“The degradation of another person's honour and dignity in an improper form shall be punished with a fine or detention.”
Article 28 – Fine
“1. A fine is a penalty which the court can impose up to a limit of nine hundred times a person's daily income. The 'daily income' rate is calculated on the basis of the average daily wage of the defendant following deduction of taxes and taking into account his or her family and financial status.”
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
32. The applicant submitted that the decisions of the Estonian courts in which he was found guilty of insult constituted an unjustified interference with his right to freedom of expression under Article 10 of the Convention, which provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
A. Existence of an interference
33. The Court notes that it is undisputed that the applicant's conviction amounted to an interference with his right to freedom of expression.
B. Justification for the interference
34. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10 and is “necessary in a democratic society” for achieving such an aim or aims.
1. “Prescribed by law”
35. The applicant submitted that Article 130 of the Criminal Code, upon which his conviction was based, was not formulated with sufficient precision and clarity.
36. The Government argued that the Article defined the offence of insult in precise terms so as to allow the applicant to regulate his professional activities accordingly. The interpretation and application of Article 130 by the national courts did not go beyond what could reasonably be foreseen in the circumstances by the applicant.
37. The Court reiterates that one of the requirements flowing from the expression “prescribed by law” is the foreseeability of the measure concerned. A norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. Those consequences need not be foreseeable with absolute certainty: experience shows this to be unattainable. Whilst certainty in the law is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. Accordingly, many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice (see, for example, Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III).
38. The Court notes that Article 130 of the Criminal Code is worded in rather general terms, but finds that the statutory provision cannot be regarded as so vague and imprecise as to lack the quality of “law”. It reiterates that it is primarily the task of national authorities to apply and interpret domestic law (see, for example, Otto-Preminger-Institut v. Austria, judgment of 20 September 1994, Series A no. 295-A, p. 17, § 45). In the circumstances of the present case the Court is satisfied that the interference was “prescribed by law”.
2. Legitimate aim
39. It was common ground that the interference in issue pursued the aim of “the protection of the reputation or rights of others”.
40. Having regard to the circumstances of the case and to the judgments of the domestic courts, the Court considers that the conviction of the applicant pursued the legitimate aim of the protection of the reputation or rights of Ms Laanaru. The interference complained of therefore had a legitimate aim under paragraph 2 of Article 10.
3. “Necessary in a democratic society”
41. The applicant argued that his conviction was not proportionate to the legitimate aim pursued and that it was not necessary in a democratic society.
42. He disputed the qualification of the impugned expressions as insulting and contended that the courts had followed uncritically the flawed expert opinion of the Estonian Language Institute. The expert opinion and the courts had failed to make a distinction between the two impugned terms. The term “abielulõhkuja” was a statement verifiable by the facts whereas the term “rongaema” was a value judgment. The factual circumstances of the case proved the validity of the former term: Ms Laanaru's relationship was with a married man and it had actually destroyed his family. Ms Laanaru herself had admitted this in her memoirs. The applicant contended that the relationship had also been within the public domain. He acknowledged that in Estonian tradition the term “rongaema” had a significant negative emotional connotation. However, in the pragmatic use of today's language the traditional connotation of the term might have disappeared. The experts, adopting a conservative interpretation of the word, had ignored the radical changes which had taken place in Estonian society concerning the issue of single motherhood over the last century. Moreover, his interview had not been published for a narrow group of linguistic experts but for the public at large. Even the traditional interpretation of the term put it outside vulgar or insulting language. Although the expression was less factual than “abielulõhkuja”, it was based on Ms Laanaru's own reflections on her relationship with her child. As both impugned expressions were thus not disproportionate to the underlying facts, they should not have been regarded as offensive.
43. The applicant contended that by asking the question with the two impugned expressions he had not intended to offend Ms Laanaru. His intent had been to provoke and receive a reaction from Mr Russak to his question and not to state an opinion of his own. Furthermore, the question had not been about Ms Laanaru as an individual, but about the attitude of the press towards a particular type of personality in Estonian society.
44. In addition, the applicant submitted that the dispute had been of a civil nature and should not have been tried in a criminal court. He argued that the Supreme Court, in its judgment of 26 August 1997, had held incorrectly that the protection of someone's honour against attacks through value judgments was possible only through criminal measures. He pointed out that on 1 December 1997 the Supreme Court had reversed this position, holding that civil law provided remedies to protect a person's honour. The availability of civil remedies made it a grave injustice to sentence him as a criminal.
45. The applicant contended that Ms Laanaru was a public figure in her own right, a fact which made her open to heightened criticism and close scrutiny by the press. She had played an independent role in the political life of Estonia by holding the high and influential position of counsellor to the Minister of the Interior as well as by being an active social figure and an editor of a popular magazine. By putting herself in the centre of the secret tape-recording scandal, Ms Laanaru had attempted to obtain additional publicity for herself.
46. The applicant argued that the fact that Ms Laanaru had herself made the question of her interference into Mr Savisaar's first marriage as well as her relationship with her child a public issue had lessened the scope of her privacy.
47. The motive behind his question had been legitimate and had concerned a matter of public interest. The discovery of the secret recordings of Mr Savisaar's conversations with other politicians as well as several earlier controversial measures involving Mr Savisaar at a time when Ms Laanaru was his official counsellor had raised legitimate questions about the ethics and values of those in positions of power in Estonia. In this context, the modest and concerned question about the personality of Ms Laanaru had seemed perfectly justified. The impugned expressions had been used to serve the interests of the public in receiving information and not for the sole purpose of gratifying human curiosity without any real information value.
48. The applicant considered that he had not exceeded the limits of acceptable criticism and that his journalistic freedom outweighed Ms Laanaru's right to respect for her private and family life. The decisions of the Estonian courts amounted to a kind of censure which was likely to discourage journalists from making criticism of that kind again in the future.
49. The Government maintained that the interference was necessary in a democratic society, in other words it corresponded to a “pressing social need”, it was proportionate to the legitimate aim pursued and the reasons given to justify it were relevant and sufficient. They contended that, in the present case, the domestic authorities had not exceeded the margin of appreciation available to them in assessing the need for such interference.
50. They argued that the wider limits of journalistic freedom applicable to civil servants and politicians acting in their public capacity did not apply to the same extent in the case of Ms Laanaru. She was active in politics only as the wife, collaborator and supporter of Mr Savisaar, not independently of him. The disobliging references to an ordinary citizen's private life and history, even if her name was linked to that of a prominent politician, could not constitute a matter of serious public concern. The relationship between a woman, who had withdrawn from the civil service, and a man, who at that time had withdrawn from politics, was a very private matter which could not be considered a question affecting the public. The impugned words did not bear on any matter of serious public interest and concern. There was no social purpose in making insulting comments on a private person's family life.
51. The Government refuted the applicant's argument concerning the need to inform the public about Ms Laanaru's private life. The applicant had chosen the words to provoke and to create sensational headlines and had not acted in good faith. In any event, such an argument could under no circumstances exonerate him from following the basic ethics of journalism and the defamation laws.
52. The Government stressed that the applicant had not been convicted for describing a factual situation or for expressing a critical opinion about Ms Laanaru's personality or about her private or family life. His conviction was based on his choice of words in relation to her which were considered to be insulting. Had the applicant just described Ms Laanaru as having been the cause of a divorce, as having broken up someone's marriage or as not taking care of her child, this would not have constituted an insult, as pointed out by the Court of Appeal (see paragraph 27 above).
53. The Government noted that the expressions “rongaema” and “abielulõhkuja” had a very special meaning in the Estonian language, and that they had no equivalent in English. When interpreting the words and their meaning, their specific nature within the Estonian language and culture should also be taken into account.
54. The Government argued that the applicant had used the impugned words not, as he claimed, to describe aspects of Ms Laanaru's private life which were largely known to the public, but to denigrate her in public opinion. They recalled that Ms Laanaru had entrusted her child to her mother as she did not wish to put the child into a kindergarten. It was quite common in Estonia today for grandparents to take care of their grandchildren.
55. The Government disputed the applicant's allegation that Ms Laanaru had herself placed her private life within the public domain. The interview published in April 1996 was not an interview with Ms Laanaru about her private and family life, but an interview with another journalist about the publication of Ms Laanaru's memoirs and her private life. They recalled that on 29 March 1996 Ms Laanaru had obtained a court order prohibiting the publication of her memoirs. At that time, she no longer had any intention of making them public.
56. As regards the proportionality of the interference to the legitimate aim pursued, the Government pointed out that the case was one of private prosecution, in other words the proceedings were initiated by the aggrieved Ms Laanaru and not by the prosecution authorities. The Tallinn City Court had made an attempt to settle the case during the proceedings, but the applicant had refused to accept the proposal of apologising to Ms Laanaru. At no time had the public prosecutor intervened or associated himself with the proceedings, although he had had the right to participate in them and the court had invited him to do so. The executive had taken no action whatsoever before the national courts and had remained entirely neutral throughout the proceedings.
57. Furthermore, the Government submitted that the applicant had been sanctioned only with a modest fine of 220 kroons – an amount ten times the minimum daily salary.
58. Finally, the Government maintained that the decisions of the national courts had been based on the striking of a balance between a right protected under Article 8 of the Convention and a right protected under its Article 10. The Supreme Court, in rejecting the applicant's complaint, had applied the same test as the European Court of Human Rights does and there was ample reference in its judgment to the latter's case-law. The Supreme Court, in its thoroughly reasoned judgment, had duly and carefully balanced the applicant's interest in freely expressing his opinion against the need to protect the reputation and rights of Ms Laanaru.
59. According to the Court's well-established case-law, freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual's self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. This freedom is subject to the exceptions set out in Article 10 § 2, which must, however, be construed strictly. The need for any restrictions must be established convincingly (see, for example, Lingens v. Austria, judgment of 8 July 1986, Series A no. 103, p. 26, § 41, and Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 43, ECHR 1999-VIII).
60. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see Lingens, cited above, p. 25, § 39, and Janowski v. Poland [GC], no. 25716/94, § 30, ECHR 1999-I).
61. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62; Lingens, cited above, pp. 25-26, § 40; Barfod v. Denmark, judgment of 22 February 1989, Series A no. 149, p. 12, § 28; Janowski, cited above; and News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I). In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31).
62. The Court further recalls the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild, cited above, pp. 23-24, § 31; De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports of Judgments and Decisions 1997-I, pp. 233-34, § 37; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 58, ECHR 1999-III). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1995, Series A no. 313, p. 19, § 38, and Bladet Tromsø and Stensaas, cited above). The limits of permissible criticism are narrower in relation to a private citizen than in relation to politicians or governments (see, for example, Castells v. Spain, judgment of 23 April 1992, Series A no. 236, pp. 23-24, § 46, and Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, pp. 1567-68, § 54).
63. In sum, the Court's task in exercising its supervision is not to take the place of national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I).
64. Turning to the facts of the present case, the Court notes that the applicant was convicted on the basis of the remarks he had made in his capacity as a journalist in a newspaper interview with another journalist. The interview concerned the issue of publication of Ms Laanaru's personal memoirs following a dispute between her and the interviewed journalist who had helped writing them.
65. It observes that the domestic courts found the use of the words “rongaema” and “abielulõhkuja” offensive to Ms Laanaru and the imposed restriction justified for the protection of her reputation and rights (see paragraphs 25, 27 and 29 above). In the context of the freedom of the press, the requirements of such protection have to be weighed in relation to the interest of the applicant as a journalist in imparting information and ideas on matters of public concern.
66. In this connection, the Court notes that the impugned remarks related to the aspects of Ms Laanaru's private life which she described in her memoirs written in her private capacity. While it is true that she herself had intended to make these details public, the justification for the use of the actual words by the applicant in the circumstances of the present case must be seen against the background which prompted their utterance as well as their value to the general public.
67. In this connection, the Court observes that the remarks were preceded by the reflections of Ms Laanaru on her role as a mother and in breaking up Mr Savisaar's family. It notes, however, that the domestic courts found that the words “rongaema” and “abielulõhkuja” amounted to value judgments couched in offensive language, recourse to which was not necessary in order to express a “negative” opinion (see paragraph 27 above). It considers that the applicant could have formulated his criticism of Ms Laanaru's actions without resorting to such insulting expressions (see, for example, Constantinescu v. Romania, no. 28871/95, § 74, ECHR 2000-VIII).
68. The Court notes the differences in the parties' position concerning the public-figure status of Ms Laanaru. It observes that Ms Laanaru resigned from her governmental position in October 1995 in the wake of the affair of the secret tape recordings by Mr Savisaar, for which she claimed responsibility (see paragraph 13 above). Despite her continued involvement in the political party, the Court does not find it established that the use of the impugned terms in relation to Ms Laanaru's private life was justified by considerations of public concern or that they bore on a matter of general importance. In particular, it has not been substantiated that her private life was among the issues that affected the public in April 1996. The applicant's remarks could therefore scarcely be regarded as serving the public interest.
69. In considering the way the domestic authorities dealt with the case, the Court observes that the Estonian courts fully recognised that the present case involved a conflict between the right to impart ideas and the reputation and rights of others. It cannot find that they failed properly to balance the various interests involved in the case. Taking into account the margin of appreciation left to the Contracting States in such circumstances, the Court considers that the domestic authorities were, in the circumstances of the case, entitled to interfere with the exercise of the applicant's right. It recalls that, in assessing the proportionality of the interference, the nature and severity of the penalties imposed are also factors to be taken into account (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV). In this respect, it notes the limited amount of the fine imposed on the applicant as a sanction provided for in Article 28 of the Criminal Code (see paragraph 31 above).
70. Having regard to the foregoing, the Court considers that the applicant's conviction and sentence were not disproportionate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify such interference. The interference with the applicant's right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention.
71. There has consequently been no breach of Article 10 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been no violation of Article 10 of the Convention.
Done in English, and notified in writing on 6 February 2001, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Michael O'Boyle Elisabeth Palm
7 1. County or city court shall hear a matter no later than within two months after an action or protest in compliance with the requirements is accepted by the court, (unless a different term is provided by law). (If a matter is especially complicated, the Chairman of an administrative court may extend the term for up to three months.)
2. The parties and third persons may appeal against a judgment of an administrative court within thirty days after the court judgment is made public.
A district court shall hear a matter within two months after an appeal is accepted by the circuit court if the appeal is in conformity with requirements. (If a matter is especially complicated, the Chairman of the circuit court may extend the term for up to three months.)
3. The parties and third persons may appeal against a judgment of a district court within thirty days after the court judgment is made public, (or within thirty days after receipt of the judgment if the matter is adjudicated in written proceedings).
4. The Supreme Court shall decide on acceptance of an appeal by a ruling within two months after receipt of the appeal. The Supreme Court shall hear an appeal in cassation in a court session within two months after the acceptance of the matter is granted. (If a matter is especially complicated, the Chief Justice of the Supreme Court may extend the term.)
22 Courts Act. Accessed 28.01.2005.
http://www.legaltext.ee/et/andmebaas/ava.asp?m=022, § 38.
23 Courts Act. Accessed 28.01.2005.
42 RT = Riigi Teataja = State Gazette