Juristica International

Dear reader,

In 2022, we are celebrating several important anniversaries related to the adoption of laws important for the building of the Estonian legal order. Against the backdrop of a major forum for the Estonian legal profession – Estonian Lawyers’ Days 100 – this year’s edition is dedicated to another important anniversary: the 70th birthday of the University of Tartu’s Professor Emeritus Paul Varul.

It is difficult to overestimate Prof. Varul’s contribution to the rebuilding of the Estonian legal system after regaining of independence. In this connection, I would like to draw special attention to his belief in young lawyers. Thanks to his support, many of the students from those days now hold positions that play an essential role in the legal profession. It is precisely this belief in young people alongside respect for more seasoned peers that Prof. Varul’s colleagues and students alike have inherited from him. In addition, there are many important qualities to be learnt from his example, such as the importance of infinite kindness and patience, the fundaments of academic ability, and the value of charm and personality. While he was the main architect of Estonia’s civil-law system in general, Prof. Varul’s favourite area of attention over the years has always been bankruptcy law, which he has been intimately involved in reforming. His willingness to speak up and actively contribute to the legislative process is testimony to the jubilarian’s thoughtfulness and continuing high level of professionalism.

In this edition of the journal, readers will find an article by Chirstoph G. Paulus, a long-time colleague of Prof. Varul, which is dedicated to bankruptcy law. It provides a historical overview of the relationship between debtors and creditors and analyzes the contracting process as eternal struggle for supremacy. Silvia Kaugia and Raul Narits devote their article to finding an answer to the question of how to create a law that corresponds to the idea of law. In this issue, the reader can also find a paper written by Katre Luhamaa and Merike Ristikivi about the role of the judiciary in the transitional debates, judicial reform, and changes in the professional requirements set for judges in Estonia. Modern problems of the independence of the judiciary are reflected upon specifically in an article contributed by Jesús Manuel Villegas Fernández and Victoria Rodríguez-Blanco, and Anneli Albi’s article examines another angle of the ongoing evolution: the changing role of courts in Europe – which is shifting from protecting the fundamental rights of individuals toward protection of the neoliberal economic order. Alongside these pieces are three articles dedicated to matters of criminal law. Mari‑Liis Tohvelmann and Kristjan Kask have focused their contribution on interviews with children as evidence in criminal proceedings; Carri Ginter and Anneli Soo offer the reader a meaningful analysis of the arguments for and against the criminalisation of hate speech; and, finally, Mario Truu discusses the principle of foreseeability of liability and punishment in the practice of the ECHR. The volume meshes well with Prof. Varul’s ethos in one other respect too: doctoral students have had a say in the publication, representing younger voices. One can find a discussion centred on the need to use artificial intelligence in the context of deciding on the patent­ability of an invention, provided by Liva Rudzite, and the concept of the duty of diligence in procurement law from the standpoint of CJEU practice is tackled by Kadri Härginen. Finally, the fine tradition of publishing opinions by official opponents in public defence of doctoral dissertations has been maintained, with the opinion written by Marta Otto on the dissertation of Seili Suder.

Congratulations to Professor Emeritus Paul Varul and to all who have had the opportunity to know him. We are all richer for your work.

Keywords:

The article submits that EU law has profoundly been changing the role of courts in Europe, from protecting the fundamental rights of individuals – especially in the event of coercive exercise of public power – towards being seen as agents of, or obstacles to, integration, as well as towards a focus on trust, effectiveness and enforcement, and protection of the market and of the neoliberal economic order. The article postulates for the consideration of the discourse that this change is one aspect of a more fundamental, ongoing Kuhnian paradigm shift in European constitutionalism, from the broader classic comparative (especially continental) European understanding of constitutional law to autonomous EU governance. The latter – contrary to the prevailing assumptions – is predicated on different foundational ideas for the exercise of public power, especially functionalism, neofunctionalism, neoliberalism and market integration, and concepts of international law. The growing tensions around the EU law principle of mutual trust exemplify the ‘incommensurabilities’ between the two paradigms; the article devotes a chapter to Birgit Aasa’s EUI doctoral thesis on the CJEU case law on mutual trust, summarising Aasa’s compelling concerns about the systemic unsuitability of trust in the courtroom in Western democratic constitutionalism. The article links Aasa’s research findings to concerns that have been raised with regard to other areas and ways in which judicial review has been disappearing through EU law, including through the neofunctionalist doctrine of ‘Integration through Law’ and through the replication of the US constitutional thinking on the role of courts. The article additionally points to concerns about the resulting far-reaching changes in material constitutional law and fundamental rights protection; these are particularly acute for the post-totalitarian and post-authoritarian constitutional tradition, which, whilst adhered to by more than half of the Member States in both Western and Central and Eastern parts of Europe, is little known in the mainstream EU discourses. The article suggests that questions about the role of courts in European constitutionalism, as well as about the broader paradigm shift, need joined-up, inclusive discussion as part of the debate on the future of Europe. For this to be made possible, a number of structural issues in the EU law scholarly discourse must first be addressed.

Keywords:

European constitutionalism; courts; judicial review; mutual trust; European Arrest Warrant; fundamental and social rights; neofunctionalism; neoliberalism

The European Commission has initiated infringement proceedings against virtually half of the Member States, accusing many of, inter alia, failing to take the necessary measures to ensure that racist and xenophobic hate crimes are effectively criminalised. The article looks at the right of a Member State to limit prosecution for incitement of violence or hatred to acts that are carried out in a manner likely to disturb the public order. The authors argue that application of the ‘risk to public order’ criterion if interpreted appropriately, will in most cases reduce the threat of ‘taking it too far’. They argue also that there is a risk of confusion between ‘public order’ and ‘public nuisance’, due to the national criminal courts being more familiar with the latter. This could lead to unreasonably loose application of criminal punishments and pose a risk breaching the nullum crimen nulla poena sine lege certa principle. Perhaps because of having suffered censorship and absence of fundamental rights under the Soviet Union, Estonian society voices strong concerns about criminalisation of hate speech. In the authors’ view, these concerns may be reduced by narrow interpretation of the ‘risk to public order’ notion.

Keywords:

EU law; internal market; xenophobia; racism; public order; freedom of expression; freedom of speech; framework decision; fundamental rights; criminal law

Presenting a historical summary of the relationship between debtors and creditors, the article is aimed at evidencing the nature of contracting. The author argues that it has always been an attempt at both establishing and settling a power relationship. Conclusion of a contract, therefore, is not always a peace-maker, and by no means does it fulfil this function automatically.

Keywords:

debtor; creditor; insolvency law; bancarottier

Law is valid in many, quite different senses and forms, and the content of validity is far from uniform. Because, above all, it is important to emphasise the distinction between the legal and the social validity of law, the paper spotlights the elements of social validity encompassed by the concept of legal validity. Discourse on the object and meaning of the sociology of law remains relevant in its own right today, and the problematic nature of the interface between the sociology of law and the scientific world is evident far beyond European jurisdictions. To illustrate the sociology of law’s capacity to make a relatively independent jurisprudential contribution to solving the problems facing the law in society, the paper examines the case of Estonia. So as to support the drafting of laws that are in tune with social realities, Estonia has established rules for law-making, set out in the relevant normative documents. The authors examine those foundations: to create a socially valid law that corresponds to the idea of law, it is necessary to start by mapping out the requirements of the ‘pre-project phase’, then legitimise them and adhere to them in practice. The key message is that impact assessment has a meaning that covers more than simply drafting one or another piece of legislation; this is a process of gathering evidence of the merits and drawbacks of decision-makers’ (policy) choices, to inform assessing the potential consequences. Clearly articulating and enforcing policy directions is important for stakeholders and society at large, for ensuring the visibility and openness of legislative policy.

Keywords:

sociology of law; good law-making; legal impact; law-making and legal policy

A thorough and fundamental reorganisation of the Estonian judicial system and replacement of judges took place in 1987–1993. The judicial system of the Estonian SSR was part of the repressive communist state power, with the courts’ independence being very limited: the courts in Estonia were subject to the control of the USSR’s courts, and the law was applied in close co operation with the executive power. The article shows how the perception of the judiciary and the role of judges changed during the transition period. The main focus is on the stages of judicial reform from the beginning of the transitional period until the implementation of the new Courts Act in 1993. The article analyses how the role of the judiciary in the emerging democratic society was seen in the transition era’s debates, which addressed changes in the professional requirements for judges and the process of becoming a judge.

Keywords:

judicial system; law reforms; rule of law; transition period

What an ‘independent’ judiciary means in a democratic society is a complex question, bringing in such elements as the governing of high courts, recruitment of judges, and their susceptibility to disciplinary action. Those subjects are not isolated items but components of a wider system, with its functioning ruled by political principles. Therefore, it is essential to identify the ideological conceptions beneath the diverse theses offered. The paper examines recent events in Poland and Spain that offer valuable data to illustrate the problem. In synthesis, two broad theoretical tendencies emerge: on one side, judges ought to be controlled by politicians, at least to a certain extent, in aims of safeguarding the democratic foundations of the Constitutional legal frame; on the other side, the emphasis is on judicial self-government as a means of preserving courts from corruption associated with pressure exerted by political, economic, or social lobbies. The paper presents a proposed solution to the controversy, involving characterisation of the minimum standards for a free judiciary in a democratic legal order, and for detecting the risks inherent to both politicisation and corporatism. The model is constructed by means of legal methodology that entails comparison among legal systems of different sorts in light of international documents, among them reports by the Council of Europe. A particularly significant contrast is visible in the distance between Continental and Common Law traditions, illuminated via consideration also of the United States.

Keywords:

judicial independence; legal adjudication; politization of justice; judiciary; corruption

The European Court of Human Rights has applied the principle of foreseeability (lex certa and lex stricta) on many occasions to determine whether a person could have foreseen at the time of the act that the act matches the description of an offence in a criminal-law provision and is therefore punishable. This raises a question that has been decisive for the outcome of many cases: how can one ascertain whether the wording for an offence is sufficiently clear? The article examines the guidelines set forth by the European Court of Human Rights for the use of the principle of foreseeability and whether it is possible to speak of a standard on the basis of the case law for the wording for an offence and the associated interpretation, in aims of ensuring compliance with the principle. Also discussed are the problems that have arisen in connection with the issue and what questions have yet to be answered. Proceeding from the case law, the author offers conclusions as to what could form a basis for determining whether a person should have foreseen liability and punishment incurred via commission of the act in question.

Keywords:

European Court of Human Rights; principle of foreseeability; nullum crimen sine lege certa and stricta; an offence’s wording and its interpretation

The article analyses the duty of diligence of a tenderer under EU public procurement law. Hitherto, the subject has not been examined in the academic literature, with such exceptions as a brief introduction to the topic in a 2009 presentation by M.A. Simovart. Therefore, the article focuses primarily on a certain duty of diligence of tenderers that has been recognised by the CJEU as an independent legal requirement under the EU’s public procurement law. Emphasis is placed on elucidating which types of obligations the duty of diligence imposes on a tenderer, which requirements a diligent tenderer shall not be subjected to, and the situations in which obligations may occasionally arise under specific circumstances – such as those in light of the tenderer’s right to review.

Keywords:

public procurement; duty of diligence; EU public procurement law

Artificial intelligence and its subsector machine learning differs from traditional programming. For this reason, coupled with its potential benefits to society in many arenas, it has been articulated as one of the key priorities in the European Union. Such characteristics specific to artificial intelligence as models with increased accuracy and generalisation power may accentuate issues of algorithmic explainability that can defy patentability. Accordingly, the article focuses on the legal requirements related to the ‘sufficient disclosure’ criterion under the legal framework for patents as one facet of deciding on the patentability of the invention, and it addresses potential solutions for overcoming issues of algorithmic explainability. The author argues that solutions introducing a system involving deposit of the algorithm, training data, or both might not be as effective a mechanism for tackling those issues as instead implementing a recognised certification system.

Keywords:

algorithm; explainability; patent; sufficient disclosure

Witness statements are important piece of evidence in criminal proceedings. Investigative interviews with witnesses are conducted in various stages of the investigative process, and the person conducting the investigative interview must take into account internal and external factors, that influence the quality of witnesses’ statements. The paper gives a systematic overview of the ways of improving the quality of investigative interviews of adult witnesses carried out by investigators, on the basis of a survey of the literature available from continental Europe but also Common Law countries (such as the UK, the US, and Australia). Even though detailed instructions and in-depth training programmes are available, today’s training consists largely of theoretical classroom lectures of a short-term nature that feature minimal practical tasks. Teaching methods of this type are effective in increasing knowledge but fail to transfer the knowledge into practice. Accordingly, the authors found that the training should be more practically oriented, have a longer duration, and incorporate personalised feedback in order to situate the knowledge in practice. In addition, several new computer-based approaches have been developed to help overcome the limitations identified. These provide a more personalised and flexible approach to learning, yet room still exists for further development. The paper concludes by addressing how work in the field of interviewing child and adult witnesses could develop in the future.

Keywords:

eyewitness testimony; investigative interview; interview skills; question types; computerised methods; serious gaming

The contribution is based on the opinion presented in the author’s role as designated opponent to the dissertation of Seili Suder, defended at the University of Tartu on 6 December 2021. The dissertation contributes to employment-specific discussion of privacy and data protection by exploring the main legal concerns and practical challenges that deployment of the ‘newest’ digital monitoring technologies poses under the current European privacy and data-protection framework. That framework, while indeed being among ‘the most substantial and thus influential around the world’, still leaves open the question of the need for establishment of specific/sectoral provisions at EU level that regulate privacy and data protection.

Keywords:

employee privacy; data protection in employment; digital workplace; EU law