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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

Dear reader

Paul Varul
pp. 1-1 [PDF] [Cover PDF]

The first issue of Juridica International was published in 1996, meaning that we can now celebrate the journal’s 20-year anniversary. Peep Pruks, dean of the Faculty of Law at that time and the editor and head of publisher Iuridicum Foundation throughout the years, started the foreword of the first Juridica International with the following words: ‘The purpose of Juridica International is to give an overview of [the] Estonian legal system and report on the developments in legal reform’ *1. The journal has fulfilled this purpose for the full 20 years of its existence thus far, while the objectives have become somewhat wider and more ambitious. In addition to the developments in justice in Estonia, Juridica International has addressed global legal problems, mainly those arising within the European Union.

In the mid-’90s, the main issue facing Estonian jurisprudence surrounded the creation of a new legal system in the wake of the 1991 re-establishment of Estonian national independence. After Estonia become a European Union membership candidate in 1995 and then a member state in 2004, harmonisation of Estonian legislation with that of the European Union, alongside the law of the European Union itself, gained increasing focus. The harmonisation of Estonia’s law with the law of the European Union largely coincided with the intense work to create Estonia’s new legal system. Therefore, in numerous cases, there was no need for harmonising an existing act with the law of the European Union – the EU law was taken into account in the preparation of the new acts. With the new legal system mostly completed as the 2000s rolled in, our objective was no longer so much to provide an introduction to Estonian law as to participate in international discussion of important legal issues. We are very glad that the authors contributing to Juridica International include many internationally recognised lawyers, which is why the main focus of the journal has shifted from expounding on Estonian law to addressing issues of greater international relevance. The primary emphasis has been on developments in the law of the European Union, including the possibilities for harmonisation across the various fields of law in the countries of Europe *2. However, Estonian law has not been neglected. Estonia’s new legal system is special in that, in its creation, mainly for establishment of the new private law, international models, among them the Principles of European Contract Law and the Principles of Commercial Contracts, have been used as relevant sources. Therefore, the Estonian example can be utilised for monitoring the actual efficiency of the so-called sample provisions and principles – the effects in practice. The Estonian experience may, accordingly, prove interesting also for legislators in other countries. In a way, Juridica International has become a chronicle that reflects the 20 years over which a new legal system for a country has been built, in tandem with its combination with the legal system of the European Union. It enables one to observe that in today’s Europe, increasing numbers of legal issues are similar between countries, and it shows how the law has become global in nature. I am extremely pleased that the international readership of Juridica International has increased steadily throughout the years. Since January 2002, our readers have had the opportunity to access the online version of the journal, with more than 120,000 page views in 2014 alone and 70,000 online users. The following countries represent the ‘top five’ for page views generated: the USA, Great Britain, Germany, the Netherlands, and India.

I thank all the authors who have published articles in Juridica International over these 20 years. I also thank the readers for expressing such great interest in the journal. I very much hope that the enthusiasm for both contributing to and reading Juridica International will never fade!

Notes:

*1 See Juridica International 1996, p. 1.
*2 Let us note here that the first article in the first issue of Juridica International was the paper by Prof. Heiki Pisuke titled ‘Estonia and the European Union: European Integration in Estonia’ (Juridica International 1996, pp. 2–5).

pp. 1-1 [PDF] [Cover PDF]





  • European Human Rights Law and Estonia: One- or Two-way Street?
    Julia Laffranque pp. 4-16 [PDF]

    The article discusses the impact of the European Convention on Human Rights (‘the Convention’)  and the  case law of the European Court of Human Rights on Estonian law. It gives historical background on the ratification of the Convention and its protocols by Estonia and describes the status of the Convention in the Estonian legal order. It then shows in more detail the impact of the case law of the Strasbourg Court on Estonia’s legislature, executive power, and judiciary and examines the case law pertaining in particular to the historical past, deprivation of liberty, prison conditions, fair trial and length of proceedings, retroactivity, and lack of foreseeability of criminal law, along with the case law on pluralism and civil rights, especially freedom of expression. In addition, the article focuses on the important issue of reopening of a case on national level once the European Court of Human Rights has found a violation and looks at the implementation of judgements of that court by Estonia in general. Additional remarks are made on the Supreme Court of Estonia’s application of the Convention and the case law of the European Court of Human Rights. Finally, the impact of the case law of the Strasbourg Court in relation to Estonia on the general development of precedents with that court is discussed.

    In conclusion, in relation to the case law of the European Court of Human Rights, it is important to understand that the Court finding a violation of the Convention in respect of Estonia is not so much a condemnation, ‘against’ the country, as a learning opportunity, in a sense, for Estonia’s democracy, rule of law, and human rights protection system. Furthermore, there could well be other difficulties in Estonia that the Court has for various reasons had no opportunity to address. This can be seen in areas wherein the Court has found a violation by another state but wherein a similar problem still exists in Estonia – e.g., in relation to prisoners’ voting rights. It is important to consider a more global picture of the human rights situation. It is unfortunate that in Estonia, especially in the media and for the wider public, little attention is paid still to the case law of the Court with respect to other states. 

    In general, European law has been well accepted in Estonia, especially the Convention and the case law of the Court. Working from the Estonian examples, one can confirm that the legislature; the executive power, even more so; and, above all, the judiciary of Estonia have recognised well that the Convention is an inseparable part of Estonia’s legal and democratic culture. Estonian courts need to feel that they also are human rights courts, especially in dealing with the facts and Estonian law, domains wherein the Court cannot and should not act as a fourth or first instance. At the same time, the Court should be able to speak not only to the Estonian courts as counterparts but also to the Estonian people. They as well need to understand European human rights law. All in all, Estonia is quite lucky: it does not have particularly worrying human rights problems; not many violations of the Convention are found in respect of Estonia by the Court.

    Estonian cases have been dealing with more or less the same issues every ordinary democratic country faces, even to a certain extent with problems of a modern, well-advanced society, such as freedom of expression and privacy rights on the Internet. Also the Court has been lucky to have Estonia as an exemplar: a country wherein the Convention system and the Court’s case law have been to a large extent respected and well complied with. But this mutual ‘happiness’, this quite nice two-way street, should not be taken for granted. The Court’s case law is a moving target. It is hoped that all future developments related to the Court will contribute to improvement of the protection of human rights, democracy, and the rule of law all over Europe. Neither Estonia nor any other European country can apply the generally recognised principles by choice ‘in its own way’.  Estonia’s trump in Europe and beyond could be to serve as a model in the protection of human rights. In consideration of its experience, geopolitical location, and size, alongside its investments in education and the historically rooted importance of nurturing intellectual and cultural values, Estonia could be in a very good position to achieve this ambitious goal. 


    Keywords: European Convention on Human Rights and the Estonian legal order; European Court of Human Rights; democracy and the rule of law; reopening and implementation of judgements

  • Case Law of the European Court of Human Rights and the Supreme Court of Estonia in Disclosing Personal Data in Court Judgments
    Tuuli Hansen pp. 17-25 [PDF]

    The article has been written to compare the case law of the Administrative Law Chamber of the Supreme Court of Estonia (ALCSC) and the European Court of Human Rights (ECtHR) on publishing judgements on the merits of individual petitions in 2013 and 2014 in Internet-based judgement databases. The objective is to find regularities in the protection of the applicants’ personal data in the publishing of decisions.

    The article examines the provisions regulating the disclosure of personal data in the judgements of the ECtHR and the ALCSC and analyses how parties to proceedings are informed of the possibilities for protecting their right to privacy. The analysis of case law focuses on determining the fields in which anonymity is ensured for applicants by request of a party to a proceeding or at the Court’s initiative.


    Keywords: Privacy; data protection; disclosure of personal data; requests for anonymity; online court records; the Rules of Court

  • Application of the Public Policy Exception in the Context of International Contracts – The Rome I Regulation Approach
    Ragne Piir pp. 26-32 [PDF]

    The article examines the role and employment of the public-policy exception in private international law from the perspective of the law applicable to contractual obligations. To begin with, prerequisites for recourse to the public-policy clause are investigated, to illustrate why this exceptional clause is likely to come into play rather infrequently, as indeed should be the case. The article then analyses the relativity of ordre public, exploring three dimensions to be considered in the courts’ use of the public-policy exception in a particular case. In summary, the author concludes that, notwithstanding its highly restrictive application criteria and, therefore, infrequent application, dispensing with the public-policy exception would be unthinkable even within the domain of international contracts. The regulation of public policy in the Rome I Regulation constitutes an abstract and flexible instrument, thereby allowing appropriate response to the issues of a changing society.


    Keywords: Law applicable to contracts; Rome I; mandatory rules; public policy; ordre public; protection of fundamental values

  • The Estonian Perspective on the Transposition of the Directive on Collective Management of Copyright and Related Rights
    Kärt Nemvalts, Aleksei Kelli pp. 33-42 [PDF]

    The article considers some key aspects of transposition of the Directive on Collective Management of Copyright and Related Rights into Estonian legislation. Estonia’s collective management system has been in place for more than 20 years without any substantial need for review. It is therefore disputable whether the requirements created by the directive improve the Estonian copyright system or not, but the complicated task of transposition is underway nonetheless. Some fundamental amendments are to be made, the most important one being the introduction of state supervision exercised over collective management organisations. In addition, the article addresses further challenging practical and theoretical issues such as cross-border rights management, the compatibility of activities of collective management organisations with competition regulations (with respect to abuse of dominant position), and matters of cultural diversity that are important to Estonia as a small country.


    Keywords: Copyright; collective management organisations; cultural diversity; competition; state supervision

  • The Health-care Provider’s Civil Liability in Cases of Wrongful Life: An Estonian Perspective
    Dina Sõritsa pp. 43-51 [PDF]

    Nowadays, Estonian society encourages responsible parenting and the need for family planning is generally considered self-evident. Parents expect to eliminate the risks to the health of the child to be born, with the health-care provider’s assistance. The unexpected birth of a disabled child causes pain and suffering to the parents and the child, along with economic hardship due to additional costs arising from the disability. However, it should be clear that not every birth of a disabled child can or should be followed by the health-care provider’s obligation to compensate for the damage. While case law addressing issues of wrongful life is absent in Estonia, the article is aimed at providing possible solutions under Estonian law to some of the legally complex problems of the associated cases through analysis of Estonian, German, and US legal literature and case law. The article is focused mainly on the prerequisites for contractual liability under the Estonian Law of Obligations Act. Among other factors, the existence of legally cognisable harm, the non-existence paradox, and the protective effect of the contract for provision of health-care services are analysed.


    Keywords: Wrongful life; disabled child; non-existence paradox; health-care provider’s delictual liability; health-care provider’s contractual liability; damage; limits on the compensation for damage

  • The Shortcomings of the Commercial-pledge Regulation and Need for Reform
    Annemari Õunpuu pp. 52-59 [PDF]

    The article explores the functioning of the Estonian commercial pledge regulation in light of recent court practice and international trends. It is argued that the true meaning and place of the commercial pledge in the Estonian security rights system needs revisiting. General business security, such as the Estonian commercial pledge, is a means to pledge movables in bulk. This raises issues of the priority of a general security right to a movable and a specific security right in the same asset. Therefore, the article also deals with the various connections between the general business pledge and a notice-filing system for security rights.  


    Keywords: Commercial pledge; universal business charge; notice-filing; security rights in movables; registration of security rights

  • Shareholder's Individual Information Right: Prerequisites and Boundaries
    Andres Vutt, Margit Vutt pp. 60-69 [PDF]

    Every shareholder as an economic owner of a limited liability company must have the possibility of executing his rights in the company effectively. Therefore, the law confers on shareholders the right to obtain information. The shareholder’s right to information is considered to be the most important of his membership rights. Estonian courts have been able to form a set of basic principles of shareholders’ information rights. For example, Estonian case law shows a clear trend toward wider disclosure. This means that the acceptable grounds for denial of a shareholder's information claim are actually quite limited. According to Estonian case law, a shareholder is entitled to receive basic information about management costs. A former shareholder, on the other hand, may receive information about only the time during which he was a shareholder. Such an approach provides the company with proper protection against situations wherein a former shareholder makes a claim for information about the activities of the company after having lost his membership and therefore while having no legal interest in receiving detailed information any longer.


    Keywords: Shareholders' rights; right to information; minority shareholders, Estonian company law; access to information; shareholder’s right to inspect

  • Special Treatment of the Floating Charge in Insolvency Proceedings
    Anto Kasak pp. 70-77 [PDF]

    In cases of insolvency, the security-holder is preferred to other creditors with respect to the outcome of sale of the object of the security. The article considers whether the preferential treatment of secured claims is justified. The situation is more complex in the case of the floating charge, because the object of the floating charge differs from that of other charges. The author maintains that the floating charge is an easy, convenient, and flexible way to secure a claim while both protecting the creditor’s interests and allowing the debtor to sell his property where necessary. On the other side, the floating charge covers almost all movable property of the debtor, which is sold in full to cover the claim. In such cases, unsecured creditors end up with nothing. Such a situation may amount to unequal treatment of unsecured creditors. For this reason, the author concludes that, relative to regular secured creditors, less preferential treatment of floating-charge holders may be justified. The author suggests creating a system for distributing a fair amount of money to the unsecured creditors on the account of the floating-charge holder’s fund.


    Keywords: Insolvency; security; floating charge; priority of security; priority of floating charge

  • Available Options for Funding the Insolvency Proceedings of Corporate Debtors
    Kersti Kerstna-Vaks pp. 78-86 [PDF]

    As a rule, corporate insolvency proceedings are financed from the debtor’s estate. To avoid the abatement of bankruptcy proceedings, other, extraordinary arrangements extending beyond this must be found when the estate is insufficient to cover the costs of the proceedings. 

    Such extraordinary arrangements are deposits by creditors, assistance from public funds, and post-commencement financing (loans), all of these aimed at financing the trustees’ activities in proceedings. It is necessary to have rules regulating the duties of the individuals responsible for the timely filing of corporate bankruptcy petitions in payment of the costs of the corresponding insolvency proceedings.

    The author finds that in jurisdictions linking insolvency proceedings to a broader range of aims than only the best possible satisfaction of the creditors’ claims (including ascertaining the causes of insolvency), public funding for conducting the proceedings should be available. There is a possibility of combining several sources of funding to achieve the best possible result and fulfilment of multiple aims of insolvency proceedings.


    Keywords: Bankruptcy; insolvency; cost of bankruptcy proceedings; abatement of bankruptcy; public funding; official receiver; bankruptcy creditor; deposit payment (security deposit); post commencement financing

  • The Concept of Preventive Actions Securing the Enforcement of Tax Liability to be Determined in the Future: Prosperity under the Principle of Prevention in Tax Law
    Kaido Künnapas pp. 87-97 [PDF]

    The article analyses preventive measures employed by tax authorities to secure payment of taxes. The development in this field reflects general trends in public law, which now is aimed at prevention of threat (in this case, the loss of tax revenue in consequence of taxpayer acts) instead of fighting the consequences of it. The author compares summary assessment models regulated in the United States Internal Revenue Code to the model provided in the Estonian Taxation Act. Since this is the only tax-related fundamental right regulated expressis verbis by the European Convention on Human Rights (Protocol 1, Article 1), some cases heard by the European Court of Human Rights are discussed in addition. The author proposes certain standards that could be followed in the design of such preventive measures, following the minimum standards outlined by said court and some best-practice ideas arising from the comparison between Estonian and US regulations.


    Keywords: Prevention of tax fraud; tax assessment; human rights; preventive administration; prevention of threat; securing payment of taxes

  • Legal Remedies Available to Competitors of Recipients of Unlawful State Aid under Estonian Law
    Mari Kelve-Liivsoo, Artur Knjazev, Tea Kookmaa pp. 98-109 [PDF]

    Article 108 (3) of the TFEU (imposing the ‘standstill obligation’) stipulates that Member States are obliged to notify the European Commission of pending state aid and wait for its approval. Breach of the standstill obligation requires effective remedies in order to protect the rights of individuals, which is a task for the national courts. National procedural autonomy is restricted only by the principles of effectiveness and equivalence. The article focuses on the legal remedies available in Estonian law to competitors to the aid recipient in the event of violation of the standstill obligation. Remedies include suspension of the payment of unlawful aid, recovery thereof and interest thereon, damages, and interim measures. The possible measures are derived from the State Liability Act and the Code of Administrative Court Procedure, under which potential aid is granted through an administrative act or measure, and the Law of Obligations Act, under which aid is granted through civil transactions. Aid recovery could prove to be especially difficult in those cases wherein aid has been granted on the basis of a legislative act, because Estonian law does not provide a sufficiently clear legal basis for ordering recovery of the aid in these cases.


    Keywords: State aid; standstill obligation; recovery; interim measures; damage claims; procedural autonomy of Member States; Estonian law

  • Protection of the Right to Life in Prison
    Margot Olesk pp. 110-123 [PDF]

    The right to life is essentially bound up with the darkest – and perhaps most disturbing – sides of prison: use of force, violent deaths and suicides, and the need for swift medical aid in the event of injury after violence or malady in prison. With regard to the right to life, the state applies two categories of obligations. Firstly, the state has negative obligations that can be drawn directly from the wording of Article 2 of the European Convention on Human Rights. Under the negative obligations, the state must refrain from doing things that would endanger a prisoner’s life; for example, it must not employ non-proportional force. Secondly, the state has several positive obligations, not enumerated in Article 2. Under the positive obligations, it is not enough for the state to be passive and not violate the right to life; the state also has to take actions, such as establishing suicide prevention mechanisms in prisons. In addition, the positive obligations are more complex, because they include additional subcategories of duties, among them material and procedural obligations. Since the jurisprudence of the European Court of Human Rights is vast and the principles scattered across numerous judgements, the aim behind the article is to build a clear conceptualisation covering the various aspects of this fundamental right.


    Keywords: European Court of Human Rights

  • The Right to Choose Counsel in the Pre-trial Stage of Criminal Proceedings and Consequences of its Violation, by Example of Estonian Supreme Court Decision 3-1-2-2-14
    Anneli Soo pp. 124-132 [PDF]

     The right to counsel is one of the most important rights that accused persons have in criminal procedure, as it helps to guarantee that all other rights of accused persons are respected throughout the procedure. According to the European Convention on Human Rights, the accused has a right to either choose counsel or be provided with legal-aid counsel. Exercising the right to choose one’s counsel is the better option of the two, since it gives the accused an opportunity to choose counsel whom he trusts. Therefore, it is absolutely necessary that the authorities not restrict an accused person’s choice in this connection unless there is compelling reason to do so. When the authorities have failed to honour this obligation, violation of Article 6 of the convention has occurred, as the European Court of Human Rights declared on 30 May 2013 in the case Martin v. Estonia. The Court stated that not only was Estonia to pay damages but it also had to take into account that retrial, reopening of the case, or a review of it may be an appropriate way of redressing the violation. Although Martin’s counsel filed a petition for review with the Estonian Supreme Court afterward, the Supreme Court refused to reopen the case, proceeding from what the author of the article considers to be purely formal arguments. In the article, the author offers her opinion about how the Supreme Court should have acted in order to cure the violation of the right to choose counsel in Martin’s case.


    Keywords: Right to counsel; right to choose one’s counsel; violation of Article 6 of the European Convention on Human Rights; remedies for violation of the right to choose one’s counsel

  • The Analysis of Complex Forensic Psychiatry and Psychology Expert Assessments in Estonia
    Kristjan Kask, Sandra Salumäe pp. 133-141 [PDF]

    Every year, several hundred forensic psychiatry and psychology expert assessments are conducted, on persons about whom an examination ruling has been issued by the body conducting proceedings. However, it remains unclear how frequent the cases are wherein the assessment identifies the presence of a mental or behavioural disorder. Therefore, 55 forensic psychiatric and psychological complex examination assessments, from 2011 and 2012, were examined. It was found that in nine cases there were conditions suggesting mental incapability according to the Penal Code’s Article 34, sections 1 to 5. The wording of questions in examination rulings demonstrates that direct guidelines would be needed for specifying how the questions should be formulated.


    Keywords: Expert assessments; forensic psychiatry; forensic psychology; capability of guilt; highly provoked state