The Supreme Court Delegation Visited the Supreme Court of Estonia to Deepen Institutional Cooperation

Estonia provides invaluable support to Ukraine in its fight against the Russian invaders. The Estonian government was one of the first to support our country in granting the status of a candidate for EU membership, and recently the Estonian parliament adopted a statement condemning the annexation of the territories of Ukraine and declaring Russia a terrorist regime. The Supreme Courts of Ukraine and Estonia began bilateral cooperation long before the full-scale Russian invasion of Ukraine, and now, in the light of new circumstances, this cooperation has only intensified. The experience of Estonian colleagues in automating the court process and introducing the latest technologies into the court’s work is particularly valuable for the Supreme Court.

This was stated by the Secretary of the Grand Chamber of the Supreme Court Larysa Rohach during a working visit to the Supreme Court of Estonia, which took place on October 19–20, 2022. The Ukrainian delegation included the judge of the Administrative Cassation Court within the Supreme Court Yan Bernaziuk, the judge of the Commercial Cassation Court within the Supreme Court Olena Kibenko, the judge of the Criminal Cassation Court within the Supreme Court Viktor Ostapuk, the judge of the Civil Cassation Court within the Supreme Court Yevhen Petrov, the head of the Department for Providing Automated Case Management of the Supreme Court Viktor Mahrelo and the chief specialist of the Division of International and Legal Cooperation Artem Nikolaienko.

This working visit was held for the purpose of sharing experience and getting acquainted with the functioning of the judicial system of Estonia, and it began with the seminar "Court in the Context of War", which, in addition to the Ukrainian delegation, was attended by the Chief Justice of the Supreme Court of Estonia Villu Kõve, the judge of the Administrative Law Chamber of the Supreme Court of Estonia Heiki Loot, the Deputy Secretary General of the Ministry of Justice of Estonia Viljar Peep, the Chairman of the Harju County Court Astrid Asi and the Chairman of the Viru County Court Liina-Naaber Kivisoo.

Estonian colleagues spoke about the powers of the Supreme Court of Estonia (its official name is the Riigikohus, it is the highest level in the judicial system), its composition and functions, the impact of various types of crises (COVID-19, energy crisis and war) on judicial practice. They also analyzed current legislative initiatives (in particular, the draft law on the consideration of all cases during martial law in written proceedings and the remote work of judges and staff members), which are under consideration by their parliament and relate to justice in time of war, e-justice, remote work, and shared their plans to ensure the continuity of the courts.

The judges of the Supreme Court informed their foreign colleagues about the activities of the judicial system of Ukraine in the context of war. Larysa Rohach spoke about the current situation in Ukraine and the national judicial system after the start of a full-scale war.

Among other things, the speaker analyzed the amendments to the Law of Ukraine On the Judiciary and the Status of Judges regarding the sustainable functioning of the judiciary during the absence of the authorized composition of the High Council of Justice, as well as additional ways of informing about court cases and holding meetings of judges in a state of martial law or a state of emergency. These changes were introduced into the legislation after February 24, 2022 and became the legislator’s response to the challenges of the judiciary due to the Russian invasion of Ukraine.

Larysa Rohach also spoke about the initiative of the Supreme Court on legislative changes to ensure the safety of all participants in the trial. In particular, the Supreme Court developed proposals to amend the Code of Administrative Proceedings of Ukraine, the Civil Procedure Code of Ukraine and the Commercial Procedure Code of Ukraine on the implementation of legal proceedings in a state of martial law or a state of emergency, namely, the consideration of cases online and the participation of secretaries and judges connected from safe places. The adoption of such an initiative is important to ensure the sustainability of justice and ensuring the safety of the trial participants, representatives of the court staff and judges.

In addition, the speaker gave some statistical data. Thus, for the period from February 24 to October 11, 2022, the Supreme Court considered 37,756 cases and materials. Due to active hostilities, 11% (89) of the court premises were damaged or completely destroyed. The premises of courts in Kharkiv (18), Donetsk (12), Kherson (10) and Mykolaiv (13) regions received the most damage.

Olena Kibenko analyzed the features of management in the Supreme Court through the prism of the transition from the post-Soviet structure of the staff to the modern one. The judge noted that since 2017 the strategy of the Supreme Court had been developed by several working groups, including working groups on the strategy of ensuring the unity of case law, standards of a judgment structure, communication strategy, anti-corruption program. In 2022, these groups were merged into one - the strategic development of the Supreme Court.

Olena Kibenko focused on the ongoing process of optimizing the civil service apparatus in Ukraine. Given these trends and in connection with the reduction of state budget expenditures, the Supreme Court is working on a new structure. Among the main principles of the new structure of the Supreme Court, the judge identified the following: a focus on the main function - the administration of justice, a service approach, the consolidation of structural units with the expansion of their functionality and ensuring interoperability, centralization of functions, economy and rational use of resources, optimization of the number of employees of each unit, transition to a full-fledged paperless office, etc.

Yevhen Petrov shared urgent issues of civil proceedings during the war. In particular, he told his Estonian colleagues about the problems the courts of the Donetsk region had faced since 2014. The speaker focused on the impact of the armed conflict on fundamental human and civil rights and noted that in this difficult time, the courts had to look for ways to solve many legal challenges related to the protection of human rights. These are various issues relating to compensation for harm by the aggressor state, establishing the fact of birth and death, establishing the fact of accepting inheritance, etc.

According to him, after the full-scale invasion of Russia, the number of cases related to the armed aggression of Russia is growing in the courts of Ukraine, so the courts will be developing their practice.

Proper investigation of war crimes and crimes of aggression, bringing the perpetrators to justice and fair punishment of everyone involved in Russia's unleashing and waging of this cynical war is one of the priorities of Ukraine and the countries of the civilized world. This was stated by Viktor Ostapuk, who, during his speech, talked about the mechanisms of cooperation between the competent authorities of Ukraine and the International Criminal Court to investigate the crime of Russian aggression against Ukraine.

In this context, timely and proper documenting of crimes of aggression and war crimes is important. Relevant and admissible evidence will form the basis of judicial decisions and fair punishment of the perpetrators, as well as the key to reparation for the damage caused to Ukraine and its citizens by armed aggression. Viktor Ostapuk also noted that Ukrainian judges of criminal courts were currently actively deepening their professional training, developing approaches for qualifying certain acts, taking into account international conventions, the practice of the ICC and national legislation.

Ukraine has been under martial law for 8 months. The Basic Law of our country establishes that the constitutional rights and freedoms of a person and a citizen cannot be limited, at the same time, under martial law, separate restrictions on rights and freedoms can be established, with an indication of the duration of these restrictions. Yan Bernaziuk spoke in more detail about the implementation of this constitutional principle, as well as what fundamental rights and freedoms could not be limited even under martial law.

In addition, he noted that a number of international treaties ratified by Ukraine provided for the withdrawal of the state from obligations during an emergency (war or other public danger). In particular, such provisions can be found in Art. 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 4 of the International Covenant on Civil and Political Rights.

The judge proposed a new approach, which is especially relevant in the period of war or other public emergency threatening the life of the nation, in the form of a three-part test for resolving public legal disputes, which provides that the court, making decision within the judicial discretion (discretion of the court), checks it for compliance (non-contradiction) with the principles of: 1) national security; 2) public interest; 3) the effectiveness of the protection of the violated right of a person.

Yan Bernaziuk's presentation in English can be found here.

On October 20, 2022, the members of the Ukrainian delegation got acquainted with the work of the Supreme Court of Estonia and discussed ways of further cooperation with their colleagues.

The working visit was provided with the financial support of the EU Project Pravo-Justice.

Photo: Supreme Court of Estonia.