DigiRights Newsletter No. 7: Update from Tartu

Dear all,

Following a wonderfully engaging two days here in Leuven at the end of January for the DigiRights Conference, February has been spent diving back into the finalisation of many of our project outcomes. (Some of which will hopefully be available for reading both here on the website and in other academic outlets soon.)

With the spring slowly arriving on our doorsteps, we are also looking ahead to the final months of the Project.

Before we get there, however, we have an update from our Estonia partner in Tartu.

All best wishes, Ashlee, on behalf of the DigiRights Project Team

Amendments to the Estonian Code of Criminal Procedure: Evolution of Remote Hearing Provisions

Estonia introduced remote participation in court hearings in 2004. The Estonian Code of Criminal Procedure initially permitted defendants to participate remotely in main hearings, provided they consented and their physical presence in court would pose significant challenges. However, this remote participation option was limited to three scenarios: defendants in main hearings, interviews and examinations during preliminary investigations, and witness protection cases.

The limitations of this narrow approach became increasingly apparent, leading to several amendments that expanded remote participation options for various pre-trial hearings. Then the COVID-19 pandemic in 2020 prompted a significant, further expansion of remote hearing provisions, including the removal of the requirement for defendant consent in main hearings.

However, the piecemeal development of these provisions left certain hearings excluded from remote participation options without clear justification.

In January, the Ministry of Justice submitted a bill to Parliament to amend the Code of Criminal Procedure. The proposed amendments would permit remote participation in all court hearings, subject to two conditions: it must not conflict with public interest, and it must have sufficient safeguards for the defendant's right to defence. For main hearings specifically, defendants may be required to participate remotely only if there is a risk that the case cannot be resolved within a reasonable timeframe (otherwise under the Code, cases exceeding reasonable timeframes are terminated). The proposed amendments would explicitly extend remote participation rights to all parties in legal proceedings, including judges, prosecutors, and defence counsel.

The proposed amendments have both limitations and expansive elements. They do not allow remote participation in main hearings when physical attendance is difficult due to circumstances such as pandemics or public safety threats. Conversely, they broadly permit remote participation for all other parties in any situation, provided it does not conflict with public interest and maintains defence rights.

A significant inconsistency exists between the bill's text and its explanatory memorandum. While the bill requires that remote participation should not harm public interests, the explanatory memorandum sets a higher standard: remote participation must actively benefit public interests. Furthermore, the memorandum suggests that avoiding delays alone may not constitute sufficient justification for remote participation.

Another contentious aspect of the amendments concerns the pre-trial remote questioning of witnesses, experts, suspects, and defendants. Under the current legislation, remote interrogation is permitted only when in-person questioning would be complex or create unreasonable burden. The proposed changes would remove this restriction, giving law enforcement officers complete discretion over the use of remote questioning. Notably, these changes do not include safeguards regarding public interest or the defendant's right to defence.

Jaan Ginter, University of Tartu Faculty of Law

January 2025