The last time I addressed our readers was 20 years ago in the Juridica International issue ‘Legislation and Legal Policy’.
This year, all eyes on the legal landscape have been turned to the celebration of the 100th anniversary of the first Constitution of Estonia. The adopting of the Constitution of the Republic of Estonia on 15 June 1920 provided Estonia with a source document that was used to direct life towards a state based on justice and the protection of democracy, fundamental rights and the rights of ethnic minorities.
The 100th anniversary of the Constitution is the central theme of the major forum of the Estonian legal community – Estonian Lawyers' Days. The conference kicks off with plenaries and the days will continue with sixteen panels. Under the guidance of experienced moderators more than eighty presenters will take the stage. The programme can be found in this issue.
Publication of the thoroughly updated commented edition of the Constitution holds a special place in the event programme dedicated to the 100th anniversary of the first Constitution of Estonia.
Commented editions of the 1992 Constitution of the Republic of Estonia have been published since 2002. The above is a collection of scientific articles, which brings together knowledge on constitutional law that has been accumulated over the years, including looks back at history, a comparison to other legal systems, Estonian and international case-law. Over the course of the past few decades, dozens of lawyers have participated in the preparation of comments on the Constitution; their aim has been to create and constantly update the guide to understanding the Constitution, by means of cooperation and debates. Since 2012, the comments have been published by the Iuridicum Foundation as a web publication, and they are freely available to the public.
Some of the scientists who commenced commenting on the Constitution in 2002 have since retired, departed, or distanced themselves from the field. Their duties have been taken over by researchers of a younger generation and practitioners with an academic background who are specialised and competent on the topic of the commented section or chapter. Completely new comments have been written in several parts in an interdisciplinary manner, expanding the legal-philosophical dimension. It is of the utmost importance to primarily continue with the approach introducing different points of view.
The target audience of the comments are not just lawyers, but the whole of the Estonian public. The fifth edition of the comments on the Constitution will be presented on 21 December 2020.
A selection of articles has been presented on the cover of this year’s issue of Juridica International – from the century-old approach to personal freedom in Estonian Marriage Law, to finding answers to the question of whether it is possible, at the current level of artificial intelligence, to delegate making atypical and more complex administrative decisions to kratts. It is of particular pleasure to note that this time a number of contributions from doctoral students at the beginning of their research careers have made it into this issue of the journal – the future belongs to young people who are able to change the world.
Thank you to everyone who, with their initiative and activities, have significantly contributed to the maintenance and development of Estonian rule of law. Happy 100th anniversary of the Constitution of the Republic of Estonia!
Personal Freedom in Estonian Marriage Law between 1918 and 1940
Although Estonia started to develop its own legal system after gaining independence in 1918, many of the old laws from the Russian Empire remained in force in the interim. Soon, Estonia started to develop its own civil code. The old Baltic Private Law Code was highly patriarchal, and various aspects of family law reform were extensively discussed throughout the 1920s and 1930s. While the need for reform was widely accepted, opinions as to its extent varied considerably: female lawyers, inspired by Scandinavian laws, fought for the greatest possible degree of freedom and equality between spouses, while conservative politicians preferred more moderate changes.
The article examines two main questions connected with the developments of those times – how much freedom the state gave to spouses for regulating their personal and proprietary relations and how much personal freedom the wife had in comparison to the husband. The norms regulating personal relations, the statutory matrimonial property regime, and the contract related to marital property are analysed in connection with efforts to identify the merits and reasonable limits of personal freedom in marriage. The family law in force in the 1920s and 1930s is compared with draft forms of the Estonian Civil Code, for uncovering how the compilers of the new version achieved balance between modern liberal ideas of personal freedom and traditional concerns about upholding stability of marriage.
inter-war period; family law; matrimonial property; gender equality; personal freedom
Community of Property – Back to the Roots
Community of property is a statutory matrimonial-property regime that creates a strong proprietary bond between the spouses, mainly through joint ownership and the obligation for the spouses to administer joint property jointly. This strong proprietary bond, due to which the two individuals are obliged to act together, is so rigid and comprehensive that they can hardly ever act independently. It is questionable that such extensive restrictions are justified and necessary for protection of the weaker spouse.
The article presents the roots of the community of property regime and the development of this regime in Estonian law. The aim is to ascertain the point from which the regime has been based on joint ownership and joint administration and reveal whether the obligation for the spouses to act together was always so rigid and all-encompassing. This should aid in understanding whether community of property has stood the test of time because the regime had a different form in the past or because better legal solutions existed alongside it, ones that have been forgotten. The author finds that looking back is a good way to understand the best way to move forward.
family law; matrimonial-property regime; community of property; joint property; joint ownership
Insurer’s Duty to Obtain Information under the IDD Directive – Threat or Opportunity?
Enacting Directive 2016/97, on insurance distribution (the IDD), has, inter alia, extended the scope of application of regulation, increased the requirements for expertise of the personnel of insurers and insurance intermediaries, and particularised the content of the duty to give information. One of the novelties in the IDD, with regard to the insurer’s duty to provide information, is the duty of the insurer to obtain information from the customer for enabling fulfilment of its own duty to give information. Before the IDD, the balance between the insurer’s duty to give information and the customer’s duty to become acquainted with the information received was customarily understood in many legal systems such that the insurer is obligated to supply comprehensive information on its insurance products in an understandable form while the customer bears the risk of selecting correct and sufficient insurance in reliance on the information received. In other words, the insurer is liable in respect of the information as such, but the customers accept a risk of applying the information incorrectly in their specific circumstances.
This background gives rise to the following questions, examined in the article: 1) What is the legislative background of the new duty to obtain information, and what are the objectives behind it? 2) What are the consequences of neglecting this duty? 3) What is the ‘upside risk’ of the reform? That is, in what kinds of cases could the new duty improve matters? 4) What is the ‘downside risk’? In other words, might the new duty cause any problems?
The article provides analysis focused on the IDD itself rather than on any national jurisdiction in which the directive has been implemented.
Insurance law; Insurance Distribution Directive; duty to obtain information; duty to give information; mis-selling
Digital Opportunities for – and Legal Impediments to – Participation in a General Meeting of Shareholders
In conditions of a globalising economy, the practice of holding a meeting by electronic means of communication to arrange a company’s day-to-day economic activities is increasingly widespread. Physical participation in a general meeting may be impeded by various natural circumstances, such as the risk of spread of diseases or weather conditions adverse to travel. The same impediments and inconveniences can affect public limited companies, whose shareholders often are in different countries, such that physically attending a general meeting may prove to be excessively burdensome. Therefore, the question of holding general meetings in digital form has become one of the more prominent issues in company law.
The article examines whether and to what extent Estonia and other countries (Germany first and foremost, as a country with a legal system similar to Estonia’s, but also the Netherlands and the United Kingdom) regulate holding of public limited companies’ general meetings by electronic means. The article also addresses the main legal problems connected with participation in a general meeting held in digital form.
shareholder rights in a general meeting; general meeting of shareholders; Estonian Commercial Code; Estonian company law; company law; corporate law
A Kratt as an Administrative Body: Algorithmic Decisions and Principles of Administrative Law
Ivo Pilving, Monika Mikiver
Estonia, as the number-one-ranked country in Europe for the digital public services dimension of the Digital Economy and Society Index, aims at widespread adoption of artificial-intelligence systems to assist or even replace officials in public administration. It is expected that there will be 50 artificial-intelligence applications operating in Estonian public administration by the end of 2020. The machine learning capacity that is often intrinsic in artificial intelligence systems means, in practice, that even the data analyst or programmer who wrote the respective code is later no longer able to explain the parameters behind the decisions. If the state allows a so-called black box to make administrative decisions, further constitutional issues will arise in addition to that of judicial control of such a decision. An administrative decision presumes the implementation of legislation. Owing to the vagueness of the law, a judicial appraisal does not merely involve formal-logic operations, as laws and regulations require interpretation and the consideration of the facts. This is particularly important in making discretionary decisions. Interpretation and consideration must not be limited to the predictions made on the basis of earlier, similar cases by means of statistical methods. It is not rare that a decision on applying a standard needs to be made also in a situation that the legislator has been unable to foresee and for which there is no requisite pattern emerging in the training data fed to an algorithm. The article examines the related principles arising from the Constitution, and one of the conclusions drawn from these is that for factually or legally complex decisions, the weight of the decision must be borne by humans, at least until much more powerful artificial intelligence is developed. However, with the help of learning algorithms individual components and elements of such decisions can be taken. Full automation remains an option in cases of routine administrative decisions that are advantageous for the person(s) concerned and that lack negative side effects for them, as well in cases where all relevant factual circumstances are comprehensible to an algorithm as such and transparent.
fundamental rights; artificial intelligence; algorithmic systems; principles of administrative law; black box
Regulating the Unregulatable: An Estonian Perspective on the CLOUD Act and the E-Evidence Proposal
The article evaluates the effects of the CLOUD Act and the E-Evidence Proposal on state actions involving extraterritorial collection of evidence. Particular attention is given to Estonia, which has no regulation in place in this regard – neither on computer system searches nor on extraterritorial data-gathering. The discussion is aimed at ascertaining whether unauthorised extraterritorial data collection creates admissibility problems in states such as Estonia. The author’s analysis evaluates whether these problems are solved with the CLOUD Act and E-Evidence Proposal, with the conclusion that European countries are a far cry from clarity on the subject and that in the absence of national rules, clarity will never come about. The critical issue for Estonia and other states that lack specific computer-system search regulations is that no justification for searches of computer systems or extraterritorial data-gathering is to be found, whether in domestic rules or in the international agreements in place. States such as Estonia are going to continue facing problems when data are needed anywhere other than from a US or European ISP or when data are collected via methods that do not involve recourse to assistance (e.g., surveillance measures), since no justification is available for such extraterritorial collection of digital data.
CLOUD Act; E-Evidence Proposal
The Use of Human Voice and Speech for Development of Language Technologies: the EU and Russian Data-protection Law Perspectives
Ilya Ilin, Aleksei Kelli
The global character of research and business related to the language-technology sector requires those producing applications of technology in this domain to comply with relevant regulation – pertaining to intellectual property, personality rights, and data protection – applicable in multiple jurisdictions. The paper reports on research aimed at evaluating and defining conditions for the compatibility of various legal frameworks for the use of voice and speech in development and dissemination of language-technology applications from the EU and the Russian data-protection regulation perspective. The research fills a gap that is of particular relevance, in that the compatibility of Russian data-protection law with the General Data Protection Regulation (GDPR) with regard to the field of language technology has not been explored extensively. The authors draw from prior research to examine the implications in greater depth, with two foci. The first part of the article addresses the legal nature of human voice and speech. In the second part of the paper, the conditions for the development of language technologies are analysed.
personal data protection; language technologies; European Union; Russia
The Yukos Arbitration Saga and Russia’s Constitutional Amendments
In February 2020, a Dutch appeals court ruled that the Russian state owed shareholders in the now-defunct Russian company Yukos 50 billion US dollars, one of the largest sums ever awarded. However, no country has yet been able to enforce the Yukos arbitral award issued in 2014 against Russia: while the arbitration tribunal in the Yukos investment case ruled in favour of the company, affirming that provisional application of the Energy Charter Treaty was compatible with Russian domestic law, Russia regards the matter as one of sovereignty and sees its power as being threatened. The article discusses whether non-enforcement of the award on the Russian government’s part would be justified by Article 15 (1) of the Russian Constitution and what impact the currently planned amendments to that foundational law might have with regard to international treaties and decisions of international bodies. The article concludes that the political and theory-oriented debate regarding Yukos will continue and that it will remain hard for the former Yukos shareholders to collect their money under the PCA’s arbitral award.
Yukos; arbitration; Russia; Energy Charter Treaty; Russian Constitution; European Convention on Human Rights (ECHR)
The Ombudsman in the Eyes of the European Court of Human Rights
While the work of an Ombudsman (whether a national or the European Ombudsman) and the European Court of Human Rights might seem relatively different, the rule of law, democracy, transparency and access to documents, issues such as migration, and many more fundamental rights-related topics are at the focus of both institutions. The common goal for both, Ombudsmen in Europe and the Court, is to guarantee flawless protection of human rights. The article, via a thus-far unique closer look at the ECtHR case law related to Ombudsmen with regard to institutional, procedural, and substantial issues, examines how Ombudsmen and the Court can contribute, in co-operation with each other, to more effectively serving that common goal.
Beyond the particularities of each specific case, the jurisprudence of the ECtHR does not consider the Ombudsman institution to be an effective remedy in general within the meaning of Article 35, §1 ECHR. Neither does a complaint to the Ombudsman usually constitute an effective remedy for the purposes of Article 13 ECHR, except in certain exceptional scenarios of fact wherein judicial remedies are unavailable.
There may one day be a necessity to accept the Ombudsman as an applicant in a case before the ECtHR on behalf of the victim of a human rights violation. It would be welcomed to encourage Ombudsmen to intervene as a third party before the Court. The Ombudsman can in certain situations go further and make human-rights-friendly interpretations even if the situation does not in itself represent a violation of the minimum standards set by the ECHR.
The conditions for a fair trial as stated in Article 6 ECHR and the case law of the ECtHR are applicable to the procedure before the Ombudsman if the latter determines the applicant’s civil rights and obligations, including (to a certain extent) dealing with administrative cases as covered by the case law of the ECtHR under Article 6 ECHR, and possibly in cases in which the Ombudsman could in some way determine criminal charges.
On one hand, Ombudsmen use the case law of the ECtHR in their work and play an important role in enforcing the principles of the ECtHR judgments in practice. On the other hand, the ECtHR uses the work done by Ombudsmen in its judgments. References to findings of Ombudsmen are made (although mostly in the facts part, on a few occasions also under the findings in the judgments of the Court). In these cases, the Court is indirectly giving the Ombudsman’s work legal value. Ombudsmen should be not only a bridge between citizens and administration but also an intermediary between citizens and other human rights protection bodies in Europe. It is vital to strengthen the dialogue between the Ombudsmen and the ECtHR.
Human rights are not a luxury, and the independence of Ombudsmen and courts is not their privilege but serves those who are searching for justice. Neither should one forget the ‘middle class’: the ordinary people who need protection, not only the weak and those belonging to minority groups. It is important that Ombudsmen and the Court also contribute to the development of human rights culture and raise human rights awareness.
Ombudsman; European Ombudsman; European Court of Human Rights; effective remedy (Article 13 and Article 35, §1 ECHR); Ombudsman as third party / amicus curiae; Ombudsman and guarantees of fair trial (Article 6 ECHR); independence and impartiality of Ombudsmen; proceedings before Ombudsmen and ECtHR case law; margin of appreciation and Ombudsmen; references to findings of Ombudsmen in ECtHR judgments; human rights culture
International Human-Rights Supervision Triggering Change in Child-Protection Systems? The Effectiveness of the Recommendations of the CRC Committee in Estonia
Estonia’s legal system is generally regarded as very accepting of international (human-rights) law, with treaties in this domain and associated supervisory practice being implemented directly by national courts. The article analyses whether this extends to the Convention on the Rights of the Child (CRC) and the recommendations of the CRC Committee on ways to improve the Estonian national child-protection system. The main question examined is whether the CRC Committee’s ‘Concluding Observations’ have had an impact and been effective with regard to the Estonian child-protection system.
The article lays out and further develops the framework proposed by Krommendijk for analysing the impact and effectiveness of international human-rights work with respect to national legal systems. The author begins by situating this theoretical framework in the context of the CRC and the Estonian legal system and then providing a brief description of Estonia's reporting process. The bulk of the paper is concerned with research presenting the development of the following elements of the child-protection system in aims of analysing the effectiveness of the CRC Committee's recommendations: general principles with relevance for the child-protection system, the institutional set-up, issues related to the implementation of the child's right to be free from any form of violence (along with any relevant procedural rights), and the placement of a child within the child-protection system.
Child rights; impact of human rights treaties; Convention on the Rights of the Child; recommendations of the CRC Committee; Estonian child-protection system; Concluding Observations
The Child’s Autonomy in Decision-making on Medical Treatment: Theoretical Considerations
The article examines the theoretical and normative context of a child’s autonomous decision making in health care. Neither the United Nations Convention on the Rights of the Child nor the general comments of the Committee on the Rights of the Child state criteria for regarding a child to be competent for such decision-making. The key issue in the debate over children’s informed consent to medical interventions is that of competence. The author analyses competence through the lens of Archard’s division of rational autonomy into rationality, maturity, and independence. These three elements could guide health-care practitioners who need to assess the capacity of a child to consent.
Child’s informed consent to medical intervention; UN Convention on the Rights of the Child; right to health; right to be heard; child’s evolving capacities; competence
The Abkhazian Conflict: A Study on Self-determination and International Intervention
The Crimean conflict in 2014 followed in many respects the pattern of Russia’s previous interventions in a neighbouring state – e.g., the 2008 Georgian conflict. Yet its similarities with the forgotten Abkhazian conflict in 1992–1993 are not widely acknowledged.
The principal aim of the study presented was to determine whether Abkhazia had the right to claim statehood and to examine Russia’s actions in support of the Abkhaz separatist forces during the conflict in 1992–1993. The author finds that the Abkhazians, similarly to the Crimean Russians, were not entitled to the right of external self-determination. The paper arrives at the conclusion that the fighting in Abkhazia in 1992–1993 may be categorised as an international armed conflict due to Russia’s direct military intervention.
Self-determination; territorial integrity; Abkhazia; Crimea; Russia’s interventions; armed conflict; use of force
Book Review: Alexander Lott's The Estonian Straits: Exceptions to the Strait Regime of Innocent or Transit Passage
The author's review of the book The Estonian Straits: Exceptions to the Strait Regime of Innocent or Transit Passage (Leiden, 2018, 306 pages), by Alexander Lott, highlights the major achievements represented by this scholarly work. The review presents the main subjects discussed in the book, which is based on a doctoral dissertation defended at the University of Tartu in early 2017. Having thus walked the reader through the subject matter of this new addition to Brill Nijhoff’s series International Straits of the World, the author concludes that the book, based as it is on an in-depth analysis of primarily Estonian archives alongside more recent parliamentary and governmental documents of this country, is not only timely but at the same time also a most enriching contribution to the literature on the issue of international straits.
international law of the sea; straits; Estonia
36th Estonian Lawyers’ Days