1015 20181018 Photo: Arno Mikkor

On 18–19 October 2018 the seminar „Due Process“ was held in Tallinn. The seminar was organised by the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACA-Europe) and the Supreme Court of Estonia. More than fifty participants were present at the seminar, representing the Councils of State and the Supreme Administrative Courts from 25 ACA members, as well as the Court of Justice of the European Union. The discussions of the seminar were based on answers to the corresponding questionnaire from 30 Members of ACA-Europe.

 
1046 20181018 Photo: Arno Mikkor

The seminar was opened by Chief Justice of the Supreme Court of Estonia Dr. iur. Priit Pikamäe and Judge at the Federal Administrative Court of Germany Dr. Carsten Günther, the latter of whom was also the chairman of the first two sessions of the seminar. During the first session, Prof. Herwig C. H. Hofmann from the University of Luxembourg gave a presentation on cross-border administrative proceedings and composite procedures within the EU. He explored the different kinds of administrative procedures occurring regularly in the EU involving administrative authorities from several Member States and/or EU institutions and pointed out issues that need resolving concerning the judicial review of decisions made in such procedures. During the following discussion, possible solutions that were mentioned included, from the one side, more dialogue by the Member State courts with the Court of Justice of the European Union and possibly a set of harmonised rules to deal with these procedures, and from the other side, more direct horizontal cooperation between Member State courts. During the second session, Prof. Anneli Albi from the University of Kent spoke of judicial protection, due process and trends towards efficiency in the light of Europe’s post-totalitarian constitutional tradition. She highlighted the trend of procedures with cross-border impact moving from control based on national constitutional principles toward automatic mutual recognition. She also pointed out that when considering the use of simplified procedure, its advantages should be carefully weighed with the risks, including the possible infringement of the fundamental right to due process. In the following debate, the position was expressed that simplified procedure does not necessarily mean a lower quality of judicial review, but rather a more efficient and concentrated, optimised procedure. The practical necessity of some simplification of procedural rules due to the growing workloads of some courts was also discussed, in order to guarantee the efficient protection of other fundamental rights.

 
1096 20181018 Photo: Arno Mikkor

On the second day, the third and fourth session were chaired by Chairman of the Administrative Law Chamber of the Supreme Court of Estonia, Dr. iur. Ivo Pilving. The third session concentrated on the right to a public hearing and the possibility of holding court hearings outside the courtroom or via videoconference. Justice Irma Telivuo from the Supreme Administrative Court of Finland described the habitualness of holding hearings outside the courtroom in Finland, due to the country’s size, and Judge Katarína Benczová of the Supreme Court of Slovakia expressed the importance of ensuring the dignity and publicity of hearings outside the courtroom. President of the Supreme Administrative Court of Portugal Vitor Manuel Gonçalves Gomes explained that in Portugal, the size and shape of the country necessitate the use of videoconference, and described some of the issues related to this practice. During the debate, some of the participants expressed that in their practice, hearings give judges the option of discussing the case with the parties and asking for clarification. There is also an ongoing discussion in several countries concerning the practicality, but also possible risks of holding court hearings in asylum cases in centres of reception or detention. In relation to videoconference, the public transmission of Supreme Court hearings online, its usefulness for the public image of courts, but also the possible change in the behaviour of the parties and witnesses was talked about. Since the audio-recording of hearings is used in some countries, but forbidden in others, the risks and advantages of this practice were also discussed.

 
1191 20181018 Photo: Arno Mikkor

The fourth session was focused on simplified procedure. It begun with the presentations of President of the Chamber of the Council of State of Belgium Pascale Vandernacht, Councillor of State of France, delegated for international relations, Yves Gounin and President of the Supreme Administrative Court of Portugal Vitor Manuel Gonçalves Gomes on the use of simplified procedure in their countries and the issues that have arisen in practice. These presentations were followed by the interventions of President of the Administrative Jurisdiction Division of the Council of State of the Netherlands Bart Jan van Ettekoven on the Dutch procedural option of short-circuiting, i.e. making a judgment on the merits during summary procedure, Judge Jure Likar of Slovenia on model procedure and Justice of the Supreme Court of the United Kingdom Sir Robert Carnwath on e-decision procedure. All speakers stressed that simplified procedure usually means shorter proceedings and is thus often in the interest of the parties. Giving the parties a chance to be heard was highlighted by both the speakers and participants in the following debate as an important guarantee to ensure due process in simplified proceedings

 
1255 20181018 Photo: Arno Mikkor

The closing remarks were made by Justice of the Supreme Court of Estonia Nele Parrest who expressed the hope that the discussions of this seminar would aid participants in their future work by allowing them to learn from others’ experiences. She stressed that one must be careful with the use of the term “simplified procedure” since this might have negative connotations, but that in reality, the courts’ purpose is always to protect parties’ fundamental rights, with no exception to that in simplified procedure. Resolving matters quickly may be very important in this respect. She wished everyone a lot of creativity to find the balance between efficiency and the protection of procedural rights.