Juristica International

This year’s Juridica International compendium offers articles on a wide variety of topics. From an initial glance, the problems tackled in those articles might not seem to have so much in common. Yet, even though offering windows to several quite distinct cross-sections of legal scholarship, many of the pieces, upon a closer look, reveal themselves to be very much interrelated. One notices that most of them share a theme of concern arising from crises in society that have recently come to a head, with a leitmotif of concern for the future and of venturing into unknowns – a backdrop so familiar to us these days’ that we might not even recognise its peculiarity.

Contemporary times are marked by complex global developments such as the pandemic, the ongoing wars in Ukraine and of Israel/Hamas, a still very much unwritten future of AI influencing all aspects of life, etc. In times such as these, the law assumes a critical role in shaping not only our current doings but the course of human affairs far further down the line as well.

The corresponding concern for our global future can be characterised as underpinning this edition from its very first article, a paper whereby Astrid Stadler calls on the courts to save the climate. The same focus could be ascribed to the examination of sensitive health data’s application as presented from research by Maret Kruus and the analysis penned by Kai Härmand examining AI’s impact on judicial action. Their scholarship silently invites us to ponder the profound influence that the judiciary and the legislature can have on the future. Furthermore, the need to accommodate in the manner most beneficial for society and for every individual alike seems to give significant impetus for such research. The article by Jānis Neimanis on recent Latvian Constitutional Court case-law reflects concerns of a similar nature, via illustrations from the response to SARS-CoV-2, empowerment of marginalised groups, and protection of democracy.

While the work of Neimanis demonstrates how legal response may manifest a balancing act between individuals’ rights and the broader public good, other pandemic-related articles analyse the angle of palliative efforts by national legislators or simply struggles for efficiency within the complicated field of public procurement in crisis-ridden times. The piece by Şimal Efsane Erdoğan and Oana Ştefan and that by Raquel Carvalho, in turn, allow us to compare national reactions in this regard. I am immensely pleased to note that these articles reflect fruitful discussion of public procurement in times of crisis from a highly successful conference held on this topic at the University of Tartu’s School of law last January.

Finally but surely not least, I stress that I in no way wish to underestimate articles that, by dealing with somewhat more stability-rooted aspects of jurisprudence, are centred less on crises or struggles. Age Värv writing about the role of foreign sources in Estonian case-law; Aleksei Kelli, Margus Pedaste, and Äli Leijen providing a most interesting empirical view of the so-called education exception to copyright (a subject every academic certainly has come in contact with); the analysis Eneli Laurits provides of protecting privacy in certain criminal investigations; eye­witness identification as revisited comprehensively by Annegrete Palu and Anneli Soo; and, finally, the description of a ‘super‑judge’ safeguarding such realms, by Julia ­Laffranque, offer plenty of hearty food for legal thought.

I extend my warmest thanks to all of the authors for addressing these difficult topics, thus advancing legal scholarship and, through their contribution, serving the common good.

Keywords:

Climate change is an urgent global problem, and national legislatures must enhance their efforts to reduce carbon dioxide emissions drastically. Individuals and NGOs have filed public law actions against national legislators before international courts (prominently the ECHR) and several constitutional courts to allege violations of constitutional and human rights. In a more recent development, civil courts too are being seized with climate‑change litigation. In 2021, a Dutch court ruling on an action by an NGO against the Royal Dutch Shell Group held that Shell is obliged to reduce its CO₂ emissions considerably. This judgment, based on the Dutch Civil Code’s general tort regulations, has triggered a wave of similar actions before German courts. Such cases of individual plaintiffs, supported by NGOs, suing private companies for damages or for an immediate reduction of emissions are examples of ‘strategic litigation’ aimed at bringing about broad societal changes beyond the scope of the individual case at hand. The article analyses the political implications, tackles the question of whether general tort law is a suitable instrument to address the climate‑change problem, and discusses how civil courts may handle these cases. Climate change is a complex, multi-stakeholder issue that requires a difficult process of balancing social, legal, and economic interests – which is the task of democratically legitimised parliaments, not primarily a task of courts.

Keywords:

climate‑change litigation; tort law; causality of emissions; human rights; political questions doctrine

In recent years, the use of public procurement as a tool to manage the health crisis and, most recently, the Ukraine crisis, has raised concerns. In their efforts to fight the pandemic, as well as for palliation of the economic effects of lockdowns, Member States have implemented various procurement adjustments, and since 2020 we have seen the European Commission resorting to guidance that, in effect, puts in abeyance public procurement rules related to transparency, equality, and competition. Against this backdrop, the article reflects on the regulatory tensions stemming from the use of public procurement as a crisis management tool. Relying on comparative legal analysis, the article looks at the changes in public procurement spurred by the SARS-CoV-2 crisis in the EU, France, and the UK. The article expresses particular interest in evaluating the discretion left to the contracting authorities and the extent to which allowing such discretion can negatively influence public procurement principles such as transparency, legal certainty, equality, and open competition.

Keywords:

comparative perspective; Europeanisation through law; Brexit; regulation; solidarity; negotiated procedure without prior publication; governance; public policy

Since 2020, Portugal has enacted legislation specific to addressing the SARS-CoV-2 pandemic, with two distinct moments in this process: one dedicated to the pandemic situation in particular and a more recent one, connected with European funding and its implementation, various energy crises, and effects of economic warfare. As regards the complex and intricately entangled Covid-19 legislation, swift public procurement procedures were established to comply with certain requirements to guarantee competition, since the pandemic constituted an abnormal and unforeseeable circumstance that did not fit into the forecast of urgency provided for in the Directives. Legislation was issued on the modification of long-term contracts, yet with presented a highly debatable solution for the changes’ implementation and prohibiting the use of pecuniary compensation. While that legislation has since been repealed, transitory rules and exceptions whose scope is still difficult to understand in full took its place – in the main, the current special legislation on public procurement, Law 30/2021, intended for executing the implementation plan for projects financed or co-financed by European funds, which contains several rules that deviate from the regime resulting from the European directives, plus re-establishment of monitoring by the Court of Auditors, creation of an Independent Commission for supervising the implementation of the associated legislation, and the passing of extraordinary price‑revision legislation. The paper presents a brief report on this Portuguese legislative context and on the respective monitoring by both jurisdiction-linked and non‑jurisdiction-associated bodies. It directs special attention to the difficulties and perplexities raised by the regimes involved.

Keywords:

public-procurement rules; crisis legislation; extraordinary price revision

It is difficult to overestimate the importance of comparative law in the legal developments of the restored Republic of Estonia. The country’s legislative drafting and jurisprudence frequently refer to and study legal solutions adopted in other countries, with private-law practitioners having even cited the comparative method as the main approach to drafting legislation and the best-practice rules for legislative drafting adopted in 2011 directing that the experience of other countries be considered in both the proposal for drafting and the draft law itself. While the comparative approach is followed so often for legal articles and doctoral theses that foreign law has even been referred to as an everyday tool for Estonian lawyers, reference to solutions in other legal orders is a much rarer phenomenon in application of the law, whether in the case law of Estonia or in that of other countries. The article provides an overview, based on legal literature and Estonian case law, of the arguments related to the admissibility of the use of foreign law in court decisions and examines the role of foreign law in the application of Estonian legal provisions. Its discussion focuses not on decisions that refer to the case law of the European Court of Justice or European Court of Human Rights or that cite case law from other countries with regard to applying international conventions but on those situations in which courts have used references to other countries’ legal provisions, case law, or legal literature (i.e., comparative arguments) when applying national law.

Keywords:

comparative law; administration of justice

The article highlights recent trends in the case law of the Latvian Constitutional Court with regard to the response to COVID-19, empowerment of marginalised groups, and protection of democracy. These developments emphasise the Court's role in upholding the rule of law, promoting equality, and safeguarding democracy in Latvia. During the pandemic, its rulings shaped the legal framework for managing the crisis while balancing public health against individuals’ rights. Analysis shows that the decisions on emergency measures, restrictions to fundamental rights, and executive powers ensured government actions' legality and proportionality, with the Court demonstrating commitment to empowering marginalised groups through case law addressing gender equality, LGBTQ+ rights, minority rights, and disability-related rights. The paper shows how, by providing legal protection and promoting inclusivity, the Court advanced the rights of marginalised communities while, additionally, protecting democracy remained a paramount concern for the institution, whereby it safeguarded the Latvian constitutional order, separation of powers, independence of the judiciary, and the rule of law. The discussion illustrates how vigilant scrutiny of legislation and government actions can preserve democratic values, uphold the integrity of institutions, and ensure accountability.

Keywords:

COVID-19 pandemic; empowerment of marginalised groups in society; protection of democracy; constitutional court; case law

The General Data Protection Regulation (GDPR) foresees a flexible data processing regime for conducting scientific research with health data. This regime also enables extensive limitations on data subjects' rights to privacy and self-determination. Concern has been expressed that the notion of 'scientific research' may encompass conducting also profit-oriented commercial research that might not justify such limitations to data subjects' rights. Some authors have suggested a restriction on benefiting from the flexible scientific research regime: public interest should be set as a prerequisite for any scientific research employing health data without the data subject's consent. While the GDPR does not explicitly require that scientific research be in the public interest, it allows Member States to choose their policies. In light of this, the article examines the examples of Estonia and Finland to analyse whether national law should require the processing of health data in scientific research in the absence of the data subject's consent to be in the public interest. The article demonstrates on the basis of the two countries’ examples that it is possible to set a public interest standard without explicitly requiring the existence of a public interest via national legislation. Considering the future, the article also shows that, under the proposed European Health Data Space regulation, Member States may retain the public interest standard through the ethics-review requirement in their national law.

Keywords:

health data; scientific research; secondary use; public interest; GDPR; European Health Data Space

The article is based on a study commissioned by the Ministry of Justice entitled ‘Extent of Use of Educational Exceptions of Copyright’. The presumed rationale for this is that holders of rights are not compensated for the use of copyright works and subject matter of related rights under the educational exception. In turn, holders of rights would like to be compensated for such use. Therefore, the results of this study, which reveal what is being used and to what extent, can serve as one of the legal policy inputs for addressing the issue.

The study was based on a survey. When drafting the questionnaire, it had to be taken into account that it was not answered by copyright experts, but by the staff of the educational institution. For this reason, a specific use was asked. The definition of an educational institution was based on subsection 3 (2) of the Republic of Estonia Education Act, according to which educational institutions are above all preschool education institutions, basic schools, upper secondary schools, vocational educational institutions, institutions of professional higher education, universities, hobby schools and continuing education institutions, including the research and methodology institutions which provide services to them.

Depending on the specialty, very old works whose copyright has expired (more than 70 years after the death of the author) may also be used. Mapping the use of such works was not the aim of this study, which was also emphasised in the questionnaire.

This study looked at copyright awareness, form and volume of copying, etc. in relation to literary and reference works, photographs, musical works, and audiovisual works. The authors of the study found that the surveyed works are the most widely used in educational institutions.

The results of the study were further verified through focus group interviews. Further input for the interpretation of the results was also obtained from the copyright training provided to the questionnaire respondents.

Keywords:

copyright; educational exception; educational institution

Eyewitness identification is a procedural act that is influenced by various psychological factors. Scientific research has demonstrated that the way identification procedures are conducted and administered affects witnesses’ identification decisions and their confidence in those decisions. Research into these variables has also led to best-practice guidelines for conducting eyewitness identification. However, the legal system in Estonia, as have those in many other places, has been slow to adopt the recommendations and has adhered to traditional principles instead, which is reflected in the law on eyewitness identification. This article analyses whether Estonia's law governing eyewitness identification is consistent with evidence-based recommendations. It first presents an overview of variables related to the reliability of identification evidence over which the criminal-justice system has control, and then compares the most important findings from scientific literature (and the resulting best practices) with the current law. Finally, it highlights specific areas of law wherein adjustments could produce better alignment with the findings from scientific research. The authors conclude that the law today, leaving many decisions up to law-enforcement entities, displays a need for additional official guidelines. The article highlights the importance of using scientific research to inform legal practices.

Keywords:

eyewitness identification; lineups; evidence-based guidelines; legal safeguards; identification accuracy; eyewitness recommendations

Prominent search engines yield many millions of hits ^*1 when one searches for the keywords ‘robot judge’. While the discussion around AI technologies and their impact on society is increasingly focused on questions of whether and how the use of AI should be regulated and what kind of legal boundaries, we need for safeguarding fundamental rights in its context, the fact is that algorithmic systems are already used in the realms of litigation and judicial systems. The article presents an attempt to ascertain how the use of AI in judicial proceedings affects the cross-border recognition of judgements and, thereby, influences society in general. Special attention is given to the pivotal matter of trust in judicial decisions of other countries. More precisely, can the use of AI reshape or otherwise influence the current procedure of cross‑border recognition of judgements and the judicial duties of a judge in that procedure, at least in the case of Estonia?

Keywords:

AI in judiciary; cross-border litigation; recognition of judgements; international private law

The process of striving to enhance law enforcement's access to digital data held extraterritorially while finding the right balance in fundamental-rights protection began with establishing the Convention on Cybercrime. Evolving risks of evidence being lost, intimately connected with the urgency of collecting digital data, impose a constant need for new, more efficient models for data acquisition and access. The article examines the set of mechanisms connected with states gaining access unilaterally (without needing foreign states’ assistance) to extraterritorially located data from the perspective of protecting suspects' privacy and family-life rights. In light of the fact that one virtually steps onto foreign ground to gain such access, most states have refrained from regulating it domestically and have officially addressed the issue by means of international co-operation instruments created for situations significantly different from this, yet investigators in circumstances such as a domestic criminal investigation wherein the only connection to the other state lies in an e-mail message sent via a foreign service provider ought to avoid resorting to extremely burdensome mutual legal-assistance instruments. At the same time, sufficient domestic guarantees of fundamental-rights protection should be in place.

The author proposes a model for unilaterally accessing extraterritorial data that considers the rights of individuals involved in criminal procedure and, alongside these, state interests in unilaterally accessing and receiving extraterritorially held data.

Keywords:

fundamental rights; right to private life; extraterritorial data access; criminal investigation

One of the cornerstones of the rule of law is an independent, impartial, and high-quality court. It is therefore of the utmost importance that respect for the rule of law in the European Union (inclusive of its member states) be ensured by a court whose members are themselves elected in accordance with the rule of law. This means that, just as for the courts of the Member States, the ideal – which one would hope gets reflected in real-world practice in most cases – is for the Court of Justice of the European Union to be led by independent and impartial judges. Judges who are not only well-versed in their own national law but also fluent in the nuances of European Union law, are oriented toward the global legal world, display an ability to work in an international environment (encompassing several languages, most importantly French as the working language of said court), have an outstanding record of professional and scientific excellence, express themselves clearly and convincingly (both verbally and in writing), and possess impeccable moral and ethical integrity – in short, individuals who are unquestionably leaders in their field and role models for other judges. Indeed, Article 253 (1) of the Treaty on the Functioning of the European Union (TFEU) specifies that the Court of Justice’s judges and Advocates General shall be chosen from among persons whose independence is beyond doubt and who possess the qualifications required for appointment to the highest judicial offices in their respective countries or who are lawyers of recognised competence, with appointment by common accord of the governments of the Member States for a term of six years after consulting with the panel provided for by Article 255 TFEU. Membership of the institution’s General Court is similarly regulated. Accordingly, Europe is looking for super-judges and super-Advocates General for the Court of Justice of the European Union. The article gives an overview of the process involved, focusing in particular on the work of the so-called Article 255 panel.

Keywords:

Court of Justice of the European Union; Article 255 TFEU panel; appointment of judges to international/European courts; judicial independence and impartiality