I/1996
Issue
The purpose of this article is to provide an overview of the legal instruments regulating Estonia’s co-operation in legal assistance with other states from the perspective of the national law and the international agreements, the legal instruments in force and those planned to be adopted in the near future. The author also briefly discusses some of the problems solved in the course of their adoption.
The concept of legal assistance may be interpreted in several ways. However, a detailed treatment of legal assistance would require a separate analysis which falls outside the scope of this article. For illustration, just two examples on the interpretation of the concept of legal assistance are given. David McClean differentiates between the terms “international judicial assistance” and “international legal assistance”. He states:
Perhaps the latter term suggests too wide a subject-matter; it would seem, for example, to include extradition as well as the provision of technical assistance in, for example, legislative drafting... In the context of civil proceedings, international judicial assistance is primarily concerned with the service of documents, ... and the taking of evidence; post-trial assistance, in the form of the enforcement of judgments and orders, and is traditionally treated as a (major) topic in its own right. *1
I. Szazy provides the following definition of legal assistance in the context of civil matters:
International legal assistance may be defined as the co-operation of a foreign authority for the institution of proceeding, judicial or extra-judicial, or for the enforcement of judicial decisions (judgments) as well as of arrangements, the enforcement of the latter being but a specific form of legal assistance. However, in the construction generally accepted in international legal practice, the notion of legal assistance in civil matters is restricted to a narrower sphere, excluding therefrom the enforcement of judicial decisions (judgments) or arrangements, unless there is a special convention in force between the states concerned. *2
For practical reasons, this article follows a broader definition of legal assistance in civil matters which includes the service of documents, taking of evidence and enforcement of decisions and, to a certain extent, issues concerning jurisdiction and the applicable law. In criminal matters, legal assistance as treated in this article involves mutual assistance in criminal matters and extradition. Technical assistance is not discussed in the article.
The international legal instruments of Estonia regulating legal assistance can be divided into multilateral conventions and bilateral agreements. With respect to multilateral conventions, the first conventions to which Estonia acceded were the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters signed in the Hague on 15 November 1965, the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters signed in the Hague on 18 March 1970 and the Convention on International Access to Justice signed in the Hague on 25 October 1980. *3 The first above-mentioned Convention will enter into force on 15 September 1996 with respect to Estonia. The second and third Conventions entered into force on 2 April 1996 and 1 May 1996, respectively.
In order to prepare for accession to these conventions, a working group composed of judges and representatives of the Ministry of Justice was established. Preparation for these Conventions turned out to be relatively uncomplicated. In Estonia, the service of judicial documents of other states and the taking of evidence for proceedings held in other states had been carried out according to tradition even before accession to these Conventions, although communications were slow through diplomatic channels and the procedure was unregulated.
From the perspective of legislation, the fact that, pursuant to the Estonian Constitution, in the case of a conflict of the national law with provisions of a foreign agreement ratified by the Riigikogu, the parliament of Estonia, the provisions of the foreign agreement apply greatly facilitated the preparation of the accession Acts. The Civil Procedure Code in force regulates international legal assistance to some extent and, therefore, did not require amendment upon Estonia’s accession to the above-mentioned Conventions.
Section 363 of the Civil Procedure Code prescribes that the courts of Estonia may address foreign states with a special request to carry out procedures and that the procedure for communication with courts of foreign states is determined by the law and foreign agreements of the Republic of Estonia. A special request of a foreign state to carry out procedures is satisfied pursuant to the laws of Estonia unless otherwise provided by the foreign agreements of the Republic of Estonia.
The central authority function was performed by the Ministry of Justice even before accession to the Conventions.
In connection with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the working group discussed the treatment of the concept of default judgment. Default judgment in the meaning of the Convention differs from that used in the national law. Under the Convention, a default judgment is any judicial decision rendered in consequence of the non-appearance of the defendant. Under the national law, pursuant to §§ 199, 201 and 203 of the Civil Procedure Code which permit, under certain conditions, the rendering of judgment upon failure of a party to appear, such judgment is final and may be appealed pursuant to the same procedure as a judgment rendered in the presence of the parties. In seeking a solution to the problem arising from the different treatment of default judgment by the Convention and the national law, the working group came to the conclusion that a judgment rendered on the basis of the Convention must be a final decision and may not be rendered as a default judgment. This solution assists in avoiding controversial interpretations upon exemption of a defendant from the effects of expiration of the appeal period provided for in Article 16 of the Convention.
The Accession to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters Act established a rather liberal procedure for forwarding documents, by permitting judicial documents to be sent by mail directly to persons abroad, and the service of judicial documents directly through judicial officers, officials or other competent persons of the state of destination.
In preparation for accession to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the working group discussed whether it would be necessary to restrict the right applicable in common law countries to obtain pre-trial discovery of documents as provided for in Article 23 of the Convention. Initially, a corresponding reservation was made in the accession Act as this concept is unknown to the Estonian legal system. The Act established that a letter of request for documents is to be executed when a proceeding is instituted, documents are to be identifiable by date, content or other information, and the letter of request must set out the facts on which it is evident that the documents are in the ownership or possession of a party, or known to the party.
Before accession to this Convention, consuls and other authorised persons did not carry out procedures relating to a proceeding in Estonia. This was in accordance with the principles of the Civil Procedure Code. However, as the obtainment of results this procedure may be easier for other states and more effective than execution of a special request in an Estonian court, this concept was accepted.
Few problems arose in the accession to the Convention on International Access to Justice. The principle that persons, regardless of their citizenship or residence, are equal in a civil proceeding in Estonia, as well as in access to legal assistance and with respect to judicial costs greatly facilitated the process. In theory, citizens of foreign states had the possibility to apply for an exemption from judicial costs, including payment for legal counsel, even before accession to the Convention.
With respect to conventions concerning civil matters, Estonia signed the European Convention on Information of Foreign Law on 4 November 1993. Its ratification by the Riigikogu is scheduled for 1996. Like other contracting states, Estonia will have few problems in the implementation of this Convention.
Unlike access to legal assistance in civil matters, the enforcement of foreign judgments has been considerably more restricted and problematic in practice. Pursuant to § 1 of the Enforcement Procedure Code regulating the enforcement of judgments, foreign judgments and other rulings are subject to enforcement in accordance with the foreign agreements concluded by the Republic of Estonia. The enforcement of a foreign judgment is impossible without a corresponding foreign agreement. In addition to bilateral legal assistance agreements which involve only a small number of states, Estonia has ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done in New York on 10 June 1958. A practical need for the enforcement of judgments is still great. In this field, accession to the Convention of 2 October 1973 on Recognition and Enforcement of Decisions Relating to Maintenance Obligations and the New York Convention of 20 June 1965 on the Recovery Abroad of Maintenance has been prepared. Preparation for accession to these Conventions was relatively easy. There was no need to amend the national law as the Enforcement Procedure Code does not provide different principles for the enforcement of foreign judgments. Section 74 of the Enforcement Procedure Code establishes that a court of the residence of a debtor must permit the mandatory enforcement of a foreign judgment or other ruling in the territory of the Republic of Estonia. The court order together with the enforcement instruments are to be sent to the enforcement office of the residence of the debtor. The Ministry of Justice will then send the issue concerning permission for enforcement of the foreign judgment or other ruling to the court of the residence of the debtor for resolution.
Preparation for accession to the Lugano Convention of 16 September 1988 on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters is more complex. Problems arise due to some of the terms used in the Convention. The Lugano Convention uses the three terms of “domicile”, “nationality” and “habitual residence” *4 , while Estonian law contains equivalents only for the last two terms. In order to render the meaning of the Convention accurately, a new term was created in Estonian.
In Estonia, a matter is heard by the court of the residence of the defendant, whereas according to the Lugano Convention, the court of the domicile of the party in that state has, as a rule, competence. Although the term “domicile” is similar to that of “permanent residence” in Estonia, these two terms are not completely identical. The principles for the enforcement of judgments applied in Estonia and those provided for in the Lugano Convention also need review.
The new Enforcement Procedure Act which is currently under preparation is likely to establish the principle of reciprocity in the enforcement of judgments.
In 1993 preparations were made for the ratification of international conventions governing legal assistance in criminal matters. On 4 November 1993 the Republic of Estonia signed the following Council of Europe conventions:
Immediately after signature of these Conventions, preparations were started for their ratification. The scope of this work turned out to be extensive. In addition to the review of reservations and declarations, amendments were necessary to the Criminal Code and the Criminal Procedure Code. In the course of the work, it was concluded that it would be more beneficial to prepare for the ratification of these Conventions along with other conventions concerning criminal matters. Thus, on 3 May 1996 Estonia also signed the following Council of Europe conventions:
Problems relating to the European Convention on Extradition are the most complex. Article 6 of the Convention permits the refusal of extradition of citizens. In regulating this issue, it is possible to view the matter from the perspective of state sovereignty and as a practical fight against crime. In view of the developments in European countries and the fact that the Constitution of Estonia does not directly prohibit the extradition of citizens, the principle of prohibition of extradition of citizens was not followed upon ratification of the Convention. As, pursuant to the Constitution, extradition of a citizen is possible by a resolution of the Government, the working group proposed that the procedures for the determination of extradition of non-citizens and citizens be different. In the case of non-citizens, a decision concerning extradition must be made at the government level by the Ministry of Justice.
Article 6 of the Convention also provides for the possibility to define the concept of citizen. Given the relatively large number of non-citizens residing in Estonia, the concept of citizen is envisaged to also include permanent residents who have integrated into Estonia. The Constitution provides a person with a right of recourse to the courts against a decision concerning him or her and the right of appeal to a higher court against the judgment in his or her case. Therefore, a two-level appeal procedure for extradition decisions with short deadlines had to be established.
As extradition has some features in common with administrative and criminal procedure, the issue of whether the appeal of an extradition decision is within the competence of an administrative or criminal court was also discussed.
A simplified extradition procedure with the consent of the person was established.
In accordance with Article 15 of the European Convention on Mutual Assistance in Criminal Matters, a provision which prescribes that copies of requests sent directly to judicial institutions must also be forwarded to the Ministry of Justice is planned to be included in the ratification Act of the Convention. As the Ministry of Justice performs the central authority function in the provision of legal assistance, it is essential that it have access to all information.
Section 35 of the Estonian Criminal Procedure Code differentiates between a suspect and an accused person while the above-mentioned Conventions lack such distinction. In the case of the European Convention on the Transfer of Proceedings in Criminal Matters, this distinction in the Estonian law causes some problems internally. With respect to the period of custody provided for in the Estonian Constitution *5 and the corresponding periods in the Convention *6 , it is necessary to determine, on the basis of Article 27 of the Convention, the procedural status of a person who is provisionally arrested. *7
The application of the Additional Protocol to the European Convention on Information of Foreign Law is confined to inquiries from judicial institutions.
Ratification of the European Convention on the Suppression of Terrorism and of the Additional Protocols to the above-mentioned Conventions does not require amendments to existing legislation.
However, amendments are necessary for the implementation of these Conventions. The extension of criminal jurisdiction is required in the Criminal Code. The territorial principle laid down during the Soviet times provides a far too limited jurisdiction and is closely connected with other elements of criminal law. Therefore, there is a danger of creating an imbalance in the whole system upon amendment of this principle.
The Criminal Code should provide that evidence taken abroad may also be used in a proceeding in Estonia. Although the Criminal Code in force does not prohibit this, disputes have arisen in practice. Provisions regulating the submission and execution of extradition requests should also be added to the Code. These amendments are indispensable for the implementation of the Conventions. The new Criminal Code and the Criminal Procedure Code which are being drafted will regulate aspects of international criminal procedure in a more systematic manner.
In the re-establishment of the Estonian national legal system after restoration of independence, there was an urgent need to develop co-operation in legal assistance with neighbouring states. Bilateral legal assistance agreements covering a broad range of issues in the field of justice were concluded. Unfortunately, these agreements were influenced by principles valid in a socialist system. These agreements include:
At present, the Agreement of the Republic of Estonia and the Republic of Poland on Provision of Legal Assistance and Legal Co-operation in Civil, Labour and Criminal Matters (hereinafter the Legal Assistance Agreement of Estonia and Poland) is under preparation.
These agreements provide the citizens of contracting states with equal legal protection and require that judicial institutions of the states provide mutual legal assistance in civil and criminal matters, recognise judgments in civil matters and judgments concerning compensation for damage caused by a criminal offence. In addition, the Legal Assistance Agreement of Estonia and Poland also regulates labour issues. Further, the agreements govern exemption from judicial costs, and the validity of official documents in the territory of another state. In civil matters, the agreements specifically regulate family and proprietary legal relationships, and succession. In criminal matters, the agreements regulate institution of criminal charges against citizens suspected of committing crimes in the territory of another contracting state and their extradition. As well, the agreements contain substantive law and procedural law rules, and conflict rules.
A large number of articles of the agreements deal with specific conflict rules, for such matters as capacity to have rights and capacity to act, declaration of disappearance, declaration of death, ascertainment of the fact of death, conclusion of marriage, divorce, legal relationships of spouses, adoption, custody and guardianship, proprietary legal relationships and succession.
These agreements establish, as a general provision of jurisdiction, that the courts of a contracting state are competent to hear civil and family matters if the defendant’s residence is located in the territory of that state. These courts also have competence for actions brought against a legal person if the administrative body, representation or branch of the legal person is located in the territory of that state.
There are reservations to the principle of residence; in certain cases, jurisdiction is provided for on the basis of citizenship of the parties. For example, Article 24 of the Legal Assistance Agreement of Estonia, Latvia and Lithuania provides that, in matters concerning a declaration of disappearance or death or the ascertainment of the fact of death of a person, institutions of the contracting state whose citizen the person was at the time he or she was alive, according to the information last received, will have competence. There are also provisions in which, in addition to citizenship, the residence of the parties is taken into consideration in the determination of competent authority. Article 28 of the Legal Assistance Agreement of Estonia and Russia provides that, in matters of divorce, the legislation of the contracting state whose citizens the spouses are at the time of submission of the application will apply, and the institutions of this contracting state will have competence. If the residence of the spouses is located in the territory of another contracting state, the institutions of that state will also have competence. The Legal Assistance Agreement of Estonia, Latvia and Lithuania also provides for alternative jurisdiction. For example, Article 33 of the Agreement establishes that an institution of the contracting state in whose territory the adopter of a child has his or her permanent residence or whose citizen he or she is, is competent to make the adoption decision.
The agreements also provide other reservations. For example, in matters of custody, an institution of the contracting state whose citizen a person in custody is has competence, while in cases of emergency, a competent authority of another contracting state may also take measures.
These agreements often establish, through jurisdiction, the law applicable in a given matter. It is typical that a competent authority applies the law of its state, although in some cases the agreements provide that the courts of the contracting state whose laws are applicable in a given matter are competent in legal relationships. For example, Article 32 of the Legal Assistance Agreement of Estonia and Russia establishes that the courts of the contracting state whose laws are applicable in a given matter are competent to make decisions in the legal relationships specified in Articles 29-31.
All legal assistance agreements provide that the right of ownership in immovable property is determined under the legislation of the contracting state in whose territory the immovable property is situated, and that the obligation to compensate for a tort is to be determined under the legislation of the contracting state in whose territory the action which was the basis for the claim for damages occurred.
Issues of jurisdiction and conflict rules are not systematically distinguished in the structure of the agreements.
Communication in the service of judicial documents, the taking of evidence and enforcement of judgments is effected exclusively through central authorities. This principle of communication is more restrictive than the principles employed in the implementation of the Hague Conventions.
In criminal matters, the bilateral legal assistance agreements have established the principle that every state conducts a criminal proceeding itself with respect to its citizens, regardless of the place of committing the crime.
As a number of issues are regulated by one agreement, a thorough treatment of any one issue is beyond the scope of this article. For example, nine articles of the Legal Assistance Agreement of Estonia and Russia concern the enforcement of judgments, and four articles regulate the service of documents.
A positive aspect of bilateral legal assistance agreements is the possibility to take the legal systems of the specific states into consideration. At the same time, these agreements as regulatory measures are limited, superficial and, to some extent, problematic. In the course of negotiation, the wording of a provision which appears in another agreement may be altered and thus, may give rise to problems of interpretation. Further, the conclusion of bilateral agreements involves much intensive work in their preparation and negotiation. Thus, such agreements are most beneficial in relations with the closest neighbours of a state and if multilateral agreements need clarification or specification.
pp.6-11