Socialising effect of the ECHR: Estonia – a success story?

Katre Luhamaa (2018)

In this blogpost Child Rights affiliate Katre Luhamaa
examines the effect of Estonias membership in the Council of Europe and European Court of Human Rights.

International human rights are often seen as being instrumental in the socialisation of the states to democracy and liberty (see, e.g. Goodman and Jinks). There are also those who question the efficiency of international human rights and see it as a failed project (see, e.g. Posner); others point out the idealisation of international human rights (see, e.g. Moyn).

The conference in Moscow on 18-19 May 2018 celebrated 20 years of Russia in the Council of Europe and European Court of Human Rights (ECtHR) system and looked into the socialising effect on human rights on Russia but also on other Eastern-European countries. My presentation analysed the effect of the ECHR on Estonia.

Estonia regained its independence in 1991 and adopted its constitution in 1992 during the fall of the Soviet Union. One of the first steps of Estonia was to join the United Nations together with its human rights system and the Council of Europe (see further, e.g. Luhamaa). In 1996, Estonia ratified the ECHR and became a full member of the European Court of Human Rights.

Article 3 of the Estonian constitution accepts generally recognised principles and rules of international law as an inseparable part of the Estonian legal system. The Supreme Court of Estonia has stated that this includes the ECHR and the interpretative practice of the ECtHR. This means among other things that every court should interpret and implement the national law in conformity with the Constitution and international human rights instruments and evaluate in every case the constitutionality of the law.

In a case study of Estonia, I looked at the influence of the ECHR and the practice of the ECtHR. During the 22 years in the ECHR system, the number of applications from Estonia per 100.000 inhabitants to the ECtHR has been considerably higher than average for Council of Europe member states (see ECtHR 2017 yearbook). At the same time, a vast number of these applications have resulted in an inadmissibility decision, and between 1996-2017, the ECtHR has made a total of 53 judgments relating to Estonia, finding violations in 41 cases and no violation in 12 cases.

2014 2015 2016 2017
Number of applications 187 190 206 156
Number of applications per 100.000 1.42 1.46 1.57 1.19
Council of Europe average 0.68 0.49 0.65 0.76

Thus, the statistics show that the European Court of Human Rights has been seen as the last resort institution that would establish justice. Although the trust in the legal system in Estonia is moderate 5.2 (10 point scale) being above EU average 4.5 (Eurostat), there is still the feeling that in hard cases international supervision is a useful tool for bringing out the faults of the legal system.

There are several areas where the ECtHR practice in Estonia has been notable. The first group of cases relates to the Estonian transition to democracy and dealing with the past and the legacy of Soviet occupation. As an example, the ECtHR has analysed the legality of criminal proceedings against persons who participated in Soviet deportations in 1949. In admissibility decisions of Kolk and Kislyiy, and Penart (2006), the ECtHR found that these proceedings followed the requirements of the ECHR; more importantly, it acknowledged that the Soviet Union occupied Estonia. The court has also analysed the question of long term residence permits of former Soviet military personnel as well as the social protection awarded to them (Mikolenko (2009), and Tarkoev et al. (2010). Finally, in Sõro (2015) the court analysed the right to privacy of the people who worked for the KGB.

The areas that have been most affected by the practice of the ECtHR are criminal law, criminal procedure and prison regulation. These are the areas where the ECtHR has decided the majority of cases against Estonia. These cases have resulted in clearer requirements of criminal proceedings, substantive restructuring in the prison system together with the building of new prison complexes. This is also an area where Estonian courts have taken the initiative to pick up the relevant practice of the ECtHR and to implement it while interpreting the national constitution and law.

Criminal procedure is also the area where the court has dealt with the rights of the child. Even though the rights of the child have not been at the centre of the case law concerning Estonia, the ECtHR has substantively discussed balancing the rights of the accused with the rights of the child victim. The cases of Rosin and Vronchenko concerned sexual offences against children, and both of the convictions relied strongly on the evidence provided by the children. For the protection of the best interest of the child victims, the police videotaped the interviews of the witness statements, but the offenders did not have the possibility either to interview the children nor put questions to them. The ECtHR assessed whether the accused had had a fair trial (6 §§ 1 and 3 (d) of the ECHR). In both of the cases, the court found that Estonian criminal procedure did not meet the requirements of Article 6 even if the measures taken were for the protection of the rights of the child, as there were no alternative guarantees in place to assess the reliability of the witnesses. The court further stressed that there were no balancing measures to guarantee a fair trial. Neither of the cases has resulted in changes in the criminal proceedings. One of the cases – Rosin – was reopened by the Supreme Court of Estonia, who found that the violations found by the ECtHR did not result in a false judgment. Thus, the Supreme Court upheld the criminal conviction of Rosin.

The third group of cases from Estonia has introduced the topic of new media and internet to the ECtHR. In the groundbreaking case concerning an internet portal Delfi, the Grand Chamber found that criminal proceedings of defamation against the portal that accepted anonymous user made content was legal when it was not possible to identify the concrete user who is creating the content. It has resulted in the change of practice of news portals requiring registration of users. In the recent case of Kalda, the ECtHR found that restricting access of the prisoner to the webpage of the European Court of Human Rights was not in conformity with the rights of the prisoner.

National analysis of the use of the practice of the ECtHR shows that Estonian courts regularly refer to the ECHR and the practice of the court to support their arguments. However, more interestingly, my observations at the Constitutional Review Chamber of the Supreme Court show that the court would not include reference to the cases when it does not agree with the principles brought out by the ECtHR, even when it has resulted in heated discussions between the parties. This means that the one-sided picture of substantive voluntary acceptance of the European values, as present in the practice of the ECtHR, is more nuanced.

The same nuanced approach is also visible in the cases where the ECtHR has found a violation of the ECHR. As was shown in relation to the Rosin case, the Supreme Court opens the proceedings where a continuing violation is probable, but this does not necessarily mean that the person gets the relief it looks for. This is especially so when the violation established by the ECtHR has been a procedural one. In such a case, the Supreme Court will evaluate whether the procedural violation has resulted in a false judgment.

To generalise, Estonia is engaging in substantive debate on the implementation of the ECHR and the practice of the ECtHR. At the same time, every case that reaches the ECtHR has gone through the national court procedure and in the cases where a violation of the ECHR is established, it means that the national courts have not understood or applied the European standards as required by the convention.

The practice of the ECtHR is not as visible at the other levels of government. Rather, there has arisen a question of whose responsibility it is to implement the ECHR and the standards of the ECtHR. Quite often, the executive and legislative branches see it as a problem for the judiciary – it has ultimately been the branch that in the cases of violations can be seen as the institution responsible for the incorrect implementation of the convention. At the same time, as is discussed in the subsequent national proceedings in the Kalda case, establishing a secure internet connection in prison and evaluating relating risks should be the task of the executive, not the courts.

My evaluation is that Estonia takes a healthy approach towards the ECHR and the practice of the court. They distinguish between the different types of standards and apply the convention in national practice where deemed appropriate. A sign of this healthy relationship might also be the fact that all the Estonian judges at the ECtHR have been the former justices at the Supreme Court. Furthermore, Estonia actively takes part in the educational programs of the CoE (e.g. HELP programme providing free human rights related online training) and the training of Estonian judges includes the requirements of the ECHR and the practice of the ECtHR.