Daimar Liiv
Judge
Tallinn Administrative Court
Budapest, 30. XI 2015

• Estonia restored our independence in the beginning of erevolution
• Massive support from rich coutries with computers and lack of long-established (paper based) bureaucracy helped to introduce computers as substantive part of the new government offices
• In the middle of 1990s very modern Database Act was passed which followed Public Information Act and DigitaI
Signature Act
• Banking sector started introduce IT solutions from creation and by the end of 1990 almost everyone used internet based banking system for everyday transactions

• Estonia´s vision developed and government decided already in the end of
1990s to undergo a digital revolution and to become an e-government (estate), that provides digital services in all areas as a part of creation of the information society.
• The X-Road was launched in 2001. The data exchange layer X-Road is a technical and organisational environment, which enables secure Internetbased data exchange between the state’s information systems
• From the beginning of current century several new and very well accapted solutions were created- E-voting, e-taxes, e-patient, DigiDoc etc, based on a compulsory ID-card authentication.
• The State Portal, eesti.ee, is a website that acts as a one-stop-shop for the hundreds of e-services offered by various government institutions.
Look : https://e-estonia.com/component/state-e-services-portal/ http://ega.ee/domains/e-services/
• Laws are published only in the Internet
• The population is used to digital public services

• Estonian courts are expected to follow other institutions in providing digital services to citizens
• By the end of 1990 all courts we equiped with computers and computers connected to the internet and basically networked
• In the end of 1990s idea of the unified Court information system (CIS) started to develop initially as integrated database of court decisions and later as a fully integrated information system.

From 2010 and further development of 100% digital case file with all linking systems continued:
– IT systems of courts, police, prosecutors´ office, company registries etc are connected via e-file system
– Data between different systems is exchanged automatically
– Documents are delivered via CIS or by e-mail to the parties
– Lawyers, public officials, companies and other professional actors are obliged to submit and receive documents only digitally
– Ordinary citizens may submit and receive documents on paper and by regular mail, but most opt voluntarily for digital
– Court documents are signed digitally (using ID-card) and uploaded to CIS
– Court judgments are published in the National Gazette after entry into force
– As of 2016 no paper file, only digital file?

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• Evidence
– Basically was acceptable already in Soviet time
– Videotyping of investigation procedures like investigative experiments etc. was rather widely used
– Audiofiles with secret tapeing were used by the KGB in courts
– No specific legislation – just another form of documentary evidence
– Currently widely used as evidentary base in minor crimes - speeding etc. Also security camera recordings in many criminal cases but also in administrative cases in prisons.

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– Started with the testimony in the courts of covered agents and witnesses in organised crime
– Developed with the international cooperation – witness testimony
– Widely used in the case of different detention facilities
– Discussion about using it in court system regionally not to force participants to come to court which is not the closest

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– Rather new development (2010 and further)
– No real enacted secondary technical requirements
– No unified practice yet
– Legislation is not taking fully into account evidentiary substance of the audiorecording

• In criminal cases audio recording is compulsory – written minutes done after the session
• In administrative cases court sessions are audio
recorded according to the decision of the judge with
Liberty Court Player http://www.libertyrecording.com/LCR_main.htm
• Videoconference (remote audition) is used in many court cases involving prisoners and other detainees
• Also for hearing witnesses abroad
• In criminal cases remote audition is used only in procedural matters (conditional release on parole etc)

• Rather new institute in legislation and in practice
• After introduction was restricted because of lack of equipment in courtrooms
• Currently all courtrooms have audiorecording equipement
• Basically allows to do simultaneous audiorecording from 4 (5 in case of videoconference) microphones
• Quality of recording is more or less tolerable
• Problems with prisoners access to the recordings

• Positive side
– Judge and participants started to prepare more seriously – everything you say is accessible to the possible disciplinary organs!!!
– More concentrated discussion
– Judge can concentrate on case and not on the minutes
– Makes easier and shorter to prepare minutes
– More accurate fixation of witnesses testimony
– Almost no request for the amendments in minutes
• Negative side
– Practically no option for quick re-look of the situation for a judge
– Decisionmaking is a little more time-consuming in the case of using some parts of testimony from audiorecording
– A little complicated to fix research of visual evidence and documents
– What if system does not work properly?

• The role of secretary changes – what should secretary really do?
• Is it possible that legal councellers qualification is better for linking the audiorecording with court decision?
• Do we need at all written minutes?
• How to link visual evidence with audiorecording and minutes easily?
• Voice recognition software is needed to make next step!
Comfort!!!
• Do we need special high quality videorecording at least of witness testimony?
• What should be back-up for recording failures?

• Positive side
– Economy for the government
– No physical danger for the participants
• Negative side
– No direct touch with (one) party
– Limited visual observations and control
– Limited access to documental and video evidence
– Limited disciplinary possibilities and no possibility of personal discussion and explanations
– Possible technical breakdowns during hearing

• Legal grounds for conducting such hearing and importance of the persons accept. Grounds for cancelling such hearing and substitution with the real court hearing
• Visual coverage standards and quality of broadcast. Also training of the operator of equipment (secretary)
• Identification of party
• Signing of the oath
• Cooperation of the party with his/her lawyer
• Interpretation
• Questioning witnesses
• Examination of the evidence, especially video or photo evidence
• Examination of the recordings (whether video or audio) afterwards.

• Technical solutions should be elaborated and tested with participation of real I level judges and lawyers. Activists (opinion leaders!) should be engaged!
• Standards should be set up and followed according to the suggestion of the judges and lawyers!
• Respective legislation should be preceeding not following start of the use of new possibilities. If necessary, it should be amanded quickly!!!
• Role of the secretary (oprator of the equipment) should be defined and proper skills developed – training.
• Initial technical support should be provided in realtime
• Initial experience should be collected, discussed, evaluated and delivered actively to the users. Training.
• Parties should have also access to the appropriate technical assistance

§ 77. Publicity of court proceedings and measures to ensure orderly conduct of proceedings
(1) The publicity of administrative court proceedings, the order for proceedings in an administrative matter to be conducted as in camera proceedings, the broadcasting and recording of
court sessions is subject to sections 37–42 of the
Code of Civil Procedure.

§ 127. Scheduling a court session and summonsing to that session
(6) Sections 341–346 of the Code of Civil Procedure apply to the scheduling of court sessions, to the summonsing of participants of the proceedings to court sessions and to the holding of court sessions.
(7) The time and date of a court session is published on the court’s
webpage without delay after the corresponding scheduling order, stating the docket number of administrative matter, the names of participants of the proceedings and a general description of the administrative matter. In the case of an in camera session, only the time and date of the session, the docket number of the administrative matter and a note regarding the in camera status of the session are published. The time and date of a court session are removed from the court’s webpage after 30 days have elapsed since the session.

• § 129. Procedure in court session
• (1) In the court session the matter is heard in accordance with the following procedure:
• 1) the applicant states whether he or she maintains the action;
• 2) if the court permits it, participants of the proceedings present evidentiary items which were not presented in preliminary proceedings;
• 3) the other participants of the proceedings state whether they admit or oppose the action;
• 4) the participants of the proceedings provide their explanations, giving reasons for their positions and presenting objections concerning those of the adverse party;
• 5) the court investigates the evidence taken in the matter and examines the witnesses;
• 6) the court, together with participants of the proceedings, discusses points of fact, law and procedure which have significance in relation to determining the matter;
• 7) the participants of the proceedings are given the floor for summations.
• (2) As a rule, the court session is held in the courthouse in whose service area the place lies in accordance with which jurisdiction is determined. Having regard to the interests of participants of the proceedings, the court may hold the court session elsewhere.
• (3) The court session is also subject to sections 347–351 and 400–402 of the Code of Civil Procedure.

§ 350. Court session held in form of procedural conference
(1) The court may organise a session in the form of a procedural conference such that a participant in the proceeding or his or her representative or adviser has the opportunity to stay at another place at the time of the court session and perform the procedural acts in real time at such place.
(2) A witness or expert who stays in another place may also be heard, and a participant in the proceeding who stays in another place may pose questions to them, in the manner specified in subsection (1) of this section.
(3) In a court session organised in the form of a procedural conference, the right of every participant in the proceeding to file petitions and applications and to formulate positions on the petitions and applications of other participants in the proceeding shall be guaranteed in a technically secure manner and the conditions of the court session in respect of the real time transmission of image and sound from the participant in the proceeding not present in court premises to the court and vice versa
must be technically secure. With the consent of the parties and the witness and, in a proceeding on petition, with the consent of the witness alone, the witness may be heard by telephone in a procedural conference.
(4) The minister responsible for the area may establish specific technical requirements for conducting a court session in the form of a procedural conference.

§ 51. Preparation of minutes
(1) Minutes are prepared in typewritten form or are recorded on a digital data medium in a court session in a format which allows the reproduction of the minutes in writing. Initially, the minutes may also be prepared otherwise in a session, including by taking notes or dictating, but the minutes shall be brought into the format specified in the first sentence of this subsection by the time of signing the minutes.
§ 52. Recording of procedural act
(1) A court session or other procedural act may be initially recorded, in full or in part, on audio, video
or other data media. In such case, the minutes shall be prepared immediately after the court session or performance of other procedural act.
(2) The minutes contain only an indication concerning the recorded statements of witnesses, experts
and participants in the proceeding and recorded inspection results unless, in the course of the proceeding, taking of minutes of the essential contents of the recordings is demanded by a party or the court deems it necessary.
(3) The recording is included in the file.

§ 53. Submission of objections to minutes and correction of minutes
(5) If the content of the minutes is recorded, the person whose statements were recorded may immediately examine the recording and submit any objections
thereto. If the court consents to the objection, the statement, testimony or answer is recorded in a new
wording. If the court does not consent to the objection, the content of the objection is recorded.

§ 56. File in civil matter
(1) The court keeps a file on each civil matter which includes, in chronological order, all procedural documents and other documents relevant to the matter of all the levels of the proceeding, including minutes and court decisions. In the cases prescribed by law, other objects relevant to the proceeding are included in the file.
(2) A file is kept in the form of a collection of written documents.
(3) An electronic document sent to or prepared by the court is stored in the file in the form of a
printout together with information concerning the person who prepared the document and made the printout as well as the time of preparation of the document and sending of the document to the court and of making the printout. An electronic document may also be included in the file in the form of a
recording in the information system of the court or on a digital data medium if preservation of such copy of the document in the information system of the court is guaranteed.
§ 57. Digital file
(1) A file may be maintained, in whole or in part, in digital form.
(2) In such case, the documents submitted on paper are recorded on a digital or other similar data medium and such data media substitute for the documents submitted on paper. A document recorded on such data medium shall include the date on which the document on paper was recorded on the data medium and the data on the person who made the recording and shall be digitally signed by him or her.
(3) If necessary, the documents submitted on paper are preserved until the end of the proceeding in the case specified in subsection (2) of this section.

§ 59. Examination of file
(1) The participants in a proceeding have the right to examine the file and obtain transcripts of procedural documents contained therein.
(5) Electronic procedural documents and documents
recorded on digital or other data media may be examined on the basis provided in subsections (1)–(4) of this section only in
a manner which guarantees intactness of the data media. An electronic transcript, printout or extract may also be obtained from a procedural document.

§ 60 1 . E-file proceedings information system
(1) E-file proceedings information system (hereinafter e-file system) is a database belonging to the state information system which is maintained for processing proceedings information and personal data in civil proceedings and the purpose of which is:
1) to provide an overview of civil matters in which proceedings are conducted by the courts;
2) to reflect information concerning the acts made in the course of civil proceedings;
3) to enable the organisation of work of the courts;
4) to ensure the collection of court statistics necessary for making legal policy decisions;
5) to enable the electronic sending of information and documents.
(2) The following are entered in the database:
1) information concerning civil matters in which proceedings are conducted or have been terminated;
2) information concerning the acts made in the course of civil proceedings;
3) digital documents in the cases provided for in this Code;
4) information concerning the body conducting the proceedings, participants in the proceedings and parties involved in the proceedings;
5) court decisions.
(3) The e-file system shall be established and the statutes thereof shall be approved by the Government of the Republic. The
Government of the Republic may establish the time and conditions of and the procedure for transition to the e-file system by a ruling.
(4) The chief processor of the e-file system is the Ministry of Justice. The authorised processor of the e-file system is a person appointed by the minister responsible for the area.
(5) The minister responsible for the area may issue regulations in order to organise the operation of the e-file system.

§ 69. Telehearing
(1) A body conducting the proceedings may organise telehearing of a witness if the direct hearing of the witness is complicated or involves excessive costs or if it is necessary to protect the witness or the victim.
(2) For the purposes of this Code, telehearing means hearing:
1) by means of a technical solution as a result of which the participants in the proceeding immediately see and hear the witness giving testimony outside the investigative body, prosecutor's office or court
directly and may hear the witness through the person conducting the proceedings;
2) by telephone, as a result of which the participants in the proceeding immediately hear the witness giving testimony outside the investigative body or court and may question the witness through the person conducting the proceedings.
(3) Telehearing by telephone is permitted only with the consent of the person to be heard and the suspect or accused. The consent of the suspect or accused is unnecessary for the telehearing of
anonymous witnesses by telephone.
(4) The minutes of a telehearing shall contain a notation that the witness has been warned against refusal to give testimony without a legal basis and giving knowingly false testimony.
(5) The provisions of § 468 apply to the hearing of witnesses staying in a foreign state.
(6) The minister responsible for the area may establish more specific requirements for organising telehearing.
[RT I 2004, 46, 329 - entry into force 01.07.2004]

§ 236. Participants in court session
(1) A prosecutor, accused, his or her counsel, victim and civil defendant shall be summoned to a court session.
(2) The failure of a victim or civil defendant to appear in a court session shall hinder neither the court hearing of the criminal matter nor the hearing of the civil action.
(3) A court may organise the participation of the participants in a court session in the court hearing in alternative proceedings by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this Code.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
(4) A prosecutor is not required to participate upon the pronouncement of a court judgment.
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]

§ 246. Participants in court session
(1) A prosecutor, accused and his or her counsel shall be summoned to a court session.
(2) A court may organise the participation of the participants in a court session in the court hearing in settlement proceedings by means of a technical solution which complies with the requirements specified in clause 69 (2) 1) of this
Code.
(3) A prosecutor is not required to participate upon the pronouncement of a court judgment.

§ 259. Participants in preliminary hearing
(2) The participation of a prosecutor and a criminal defence counsel in a preliminary hearing is mandatory.
(3) If necessary, other participants in the proceeding may be summoned to a preliminary hearing. If the preliminary hearing is held in order to decide on acceptance of a civil action or to prepare for the hearing of a civil action, the victim and the civil defendant or the representatives thereof are summoned to the preliminary hearing.
(5) A judge may organise the participation of the persons specified in this subsection in a preliminary hearing by means of a technical
solution which complies with the requirements specified in clause 69
(2) 1) of this Code.

§ 269. Participation of accused in court hearing
(2) As an exception, a criminal matter may be heard in the absence of the accused if:
4) it is complicated to take him or her to the court, and he or she has consented to participation in the
court hearing in audio-visual form pursuant to clause 69 (2) 1) of this Code.

§ 468. Telehearing of persons staying in foreign states
(1) Telehearing of a person staying in a foreign state may be requested on the bases provided for in subsection 69 (1) of this Code. The request shall set out the reasons for telehearing the person, the name of the person to be heard and his or her status in the proceeding, and the official title and name of the person conducting the hearing.
(2) If audio-visual telehearing is requested, the request shall contain an assurance that the suspect or accused to be heard consents to the telehearing of him or her.
(3) If telehearing by telephone is requested, the request shall contain the assurance that the witness or expert to be heard consents to the hearing by telephone.
(4) Telehearing of a suspect or accused by telephone is not permitted.
(5) Telehearings shall be conducted directly by, and under the direction of, a representative of the competent judicial authority of the requesting state pursuant to the procedural law of such state. Summonses to telehearings shall be served pursuant to the procedural law of the executing state. The person to be heard may refuse to give statements also on the basis of the procedural law of the executing state.
(6) The competent judicial authority of an executing state which holds a telehearing shall:
1) determine and give notification of the time of the telehearing;
2) ensure that the person to be heard be summoned to and appear at the hearing;
3) be responsible for the identification of the person to be heard;
4) be responsible for compliance with laws of the state of the authority;
5) ensure participation of an interpreter, if necessary.
(7) A telehearing shall be recorded by the competent judicial authority of the requesting state but may additionally be recorded by the competent judicial authority of the executing state.
(8) The minutes of a telehearing shall be taken by the competent judicial authority of the executing state. The minutes of a telehearing held by telephone shall be taken by the competent judicial authority of the requesting state.
(9) The minutes of a telehearing shall set out:
1) the time and place of the telehearing;
2) the form in which the telehearing was held and the names of the technical devices used;
3) a reference to the request for assistance which is the basis for the telehearing;
4) the names of the representatives of the competent judicial authorities of the requesting state and executing state participating in the telehearing;
5) the status in the proceeding of the person heard and his or her name, personal identification code or, in the absence thereof, date of birth, residence or seat, address and telecommunications numbers or e-mail address;
6) a notation concerning explanation of the rights of the person heard to him or her;
7) assurance from the person heard that he or she has been warned about the liability for refusal to give statements and for giving knowingly false statements, or that he or she has taken an oath concerning the statements if the procedural law prescribes such obligation.