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

Dear reader,

Jaan Sootak
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A large proportion of the articles in Juridica International this year is dedicated to criminal law. A paper that truly addresses the issues of legal dogmatics in this field in depth with regard to delict of negligence was contributed by Laura Feldmanis. Raimo Lahti’s article on the criminal liability of a legal person is written from the standpoint of criminal and comparative law, while Frieder Dünkel’s approach to German sanction law should provide plenty of interest and joy of discovery for legal scientists and practitioners alike. Thomas Weigend’s submission, in turn, takes a rather unique look at the material element in criminal law and criminal procedure. He focuses his attention on truth and values. Andres Parmas has considered Estonian criminal law in relation to the dogmatics of international criminal law. All of these articles are an outgrowth of presentations made at a jubilee conference that took place at the University of Tartu. I would like to take the opportunity here to thank everyone who participated in the conference – especially, of course, the speakers.

In addition, two articles on medical law had their beginnings in presentations at the conference. One of them, by Henning Rosenau, is squarely in the domain of classic medical law, bringing together discussion of human rights and of issues connected with reproductive medicine. The other medical-law article, by Henning Lorenz, draws particular attention to an addition to German criminal law that has made waves (and met a lot of criticism) in the fields of criminal law, medical law, and legal policy in general: criminalising assisted suicide. This topic has been subject to intense discussion also in the media of Estonia and other countries. 

I can happily say on behalf of both myself and the editorial board that, at the same time, the new issue offers plenty to read also for those less interested in criminal and medical law. Self-driving cars are a matter of interest not only to engineers but also for lawyers. Taivo Liivak’s ‘What Safety are We Entitled to Expect of Self-driving Vehicles?’ considers some of the issues that we will soon face on the streets on a daily basis. Private law is represented in the article ‘A Half-built House? The New Consumer Sales Directive Assessed as Contract Law’. This piece on consumer protection and contract law was submitted by Kåre Lilleholt, who holds the title Doctor Honoris Causa from the University of Tartu. A paper jointly authored by Ilya Ilin and Aleksei Kelli, ‘The Use of Human Voice and Speech in Language Technologies: The EU and Russian Intellectual Property Law Perspectives’, examines the legal protection of intellectual property. The field of constitutional law is represented too, by Ivo Pilving’s presentation of an approach to fundamental rights in the context of European Union law in ‘Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten’. Still more colours are added to the legal palette by Märt Maarand, with his article ‘The Concept of Recovery of Credit Institutions in the Bank Recovery and Resolution Directive’, and by the paper ‘Is Full Preference for a Secured Claim in Insolvency Proceedings Justified?’, by Anto Kasak. 


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  • A Half-built House? The New Consumer Sales Directive Assessed as Contract Law
    Kåre Lilleholt pp. 3-8

     

    The new Consumer Sales Directive (2019/771 EU) is a total harmonisation directive intended to make cross-border sales more attractive to sellers by ensuring that the level of consumer‑protection rules differs less among Member States. The legislation process resulted, however, in several exceptions to this approach of total harmonisation. These exceptions, coupled with the fact that the directive does not regulate the consumer’s obligations under the sales contract, means that sellers must still be prepared to grapple with considerable differences in the level of consumer protection when offering their goods to consumers in other countries than their own. The Europeanisation of contract law seems to remain a contentious arena. 


    Keywords: Consumer Sales Directive; total harmonisation; Europeanisation of contract law; internal market; EU law

  • Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten
    Ivo Pilving pp. 9-16

    Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.


    Keywords: fundamental rights; implementation of EU law; EU Charter of Fundamental Rights; constitutional pluralism; multipolar conflicts

  • Truth in Criminal Law and Procedure: The Erosion of a Fundamental Value
    Thomas Weigend pp. 28-36

    The article deals with the relevance of truth in criminal procedure and criminal law. In criminal procedure, it is important to maintain an honest search for the truth as a distinctive feature of the proceedings. One should therefore be sceptical of shortcuts to justice that rely exclusively on the defendant’s consent as the basis for the court’s judgement. Criminal law has wisely refrained from making lies punishable except in special contexts. Although the ease of spreading lies via the internet leads to extended risks, especially for the political process, criminal prohibition of spreading ‘fake news’ is not advisable, because these efforts tend to be overly broad and promote state censorship.  


    Keywords: consensual dispositions; fake news; search for truth

  • Reforms of the Criminal Sanctions System in Germany – Achievements and Unresolved Problems
    Frieder Dünkel pp. 37-48

    The German criminal sanctions system has witnessed major law reforms in the last 50 years in expanding fines (which have replaced short-term imprisonment) and introducing suspended sentences either with or without the supervision of the Probation Service. The reforms of the 1960s–1980s have been a success and (in combination with the expansion of diversion schemes for minor crimes) have contributed to achieving one of the lowest prison population rates in Europe. However, further reforms are necessary – in particular, with regard to the large number of people serving a prison sentence for defaulting on fines. Germany has, for good reason, restricted electronic monitoring to the very few cases of dangerous offenders (convicted for violent or sexual crimes) who have had to be released after having served their sentence in full or have been released from psychiatric institutions or after other preventive deprivation of liberty.


    Keywords: sanctions system in Germany; criminal law reforms; diversion; fines; fine defaulters; suspended sentences; probation; electronic monitoring

  • The Human Right of Reproduction: Ovum Donation and Surrogacy
    Henning Rosenau pp. 49-58

    The right to reproduction, including the use of modern methods of fertility medicine, is well founded on constitutional grounds and is protected by the Constitution Germany and of Estonia as well. This right is protected also at the level of European human rights, by Article 8 of the European Convention on Human Rights, which addresses the right to a private and family life. In light of Article 8(2) of that convention, restrictions to these are deemed legitimate only when they are based on scientifically valid evidence and to protect the wellbeing of the child. The author concludes that the current state of scientific knowledge gives insufficient reason to justify prohibition of ovum donation and surrogate motherhood. Said prohibition discriminates against people who rely on such methods (thereby infringing on Article 14 of the European Convention on Human Rights and Article 3(1) of the German Basic Law). Therefore, ovum donation and surrogacy should be allowed by law, as is proposed under sections 6 and 8 of the proposal for a modern law on reproductive medicine (AME-FMedG) issued by the Augsburg and Munich Working Group of medical ethics lawyers.


    Keywords: reproductive medicine; ovum donation; surrogate motherhood; reproductive self-determination

  • Die strafrechtliche Verantwortung der juristischen Person: Rechtsvergleichende Überlegungen zwischen Finnland und Estland
    Raimo Lahti pp. 59-63

    Applying a comparative perspective, the paper examines questions related to corporate criminal responsibility in Finland and Estonia. Corporate criminal liability was introduced in 1995 in Finland and in 2001 in Estonia, via regulations implemented in conjunction with comprehensive reform to the penal codes of these countries. Both the legislation and the legal practices of the two manifest many similarities, partly in principle and partly de facto. However, differences can be noticed – i.a., in the ways in which allocation of the individual’s criminal liability for organisational crime is regulated, alongside how the maximum sentences and the determination of punishments are regulated.


    Keywords: corporate criminal responsibility; comparative criminal law, Finland, Estonia

  • Superior Responsibility in Estonian Criminal Law and its Compliance with International Law
    Andres Parmas pp. 64-78

     If a domestic criminal-law system is to be equipped to operate in conformity with the underlying idea of complementarity that is among the International Criminal Court’s underpinnings, it is vital that, amongst other aspects of general principles of responsibility, the superior responsibility doctrine be transposed into domestic law properly. Accordingly, the paper deconstructs Art. 88 (1) of the Estonian Penal Code, which stipulates the superior responsibility concept in the Estonian legal system, for the purpose of assessing whether it exhibits compliance with customary international law on superior responsibility or Art. 28 of the Rome Statute. The analysis presented reveals considerable differences between the Estonian regulatory scheme and relevant international norms: it appears that there are several respects in which Estonian regulation does not meet the international standard and, hence, large lacunae are to be found in Estonian law on superior responsibility. For this reason, the article concludes with a recommendation that Estonian regulation of superior responsibility be complemented in such a way that it is rendered consistent with international law – specifically, with the requirements of Art. 28 of the Rome Statute – while simultaneously taking into consideration the demands stemming from Estonian criminal-law dogmatics, especially the guilt principle.


    Keywords: international criminal law; superior responsibility; Estonian Penal Code; general part

  • Criminal Liability of Third Parties with Regard to Free-Responsible Suicide: New Developments in the German Jurisdiction
    Henning Lorenz pp. 79-85

    The German Federal Court of Justice’s 7.3.2019 judgement on questions of criminal liability of third parties with regard to free-responsible suicide offers a good opportunity to change the restrictive Wittig jurisdiction from 1984 and point in a liberal direction. The tremendous importance of self-determination indicates the impunity of third parties involved in a free-responsible suicide in which the final killing act is controlled by the person who is tired of life. This result gets confirmed by new legislation in the German Civil Code and earlier judgements in cases of euthanasia.


    Keywords: suicide, self-determination; Wittig case; killing at the request of the victim (German Criminal Code, Section 216); failure to render assistance (German Criminal Code, Section 323c); free-responsible suicide; exculpation theory; consent theory; principle of impunity for incitement and accessoryship to suicide

  • The Principle of Trust for Exceptions to the Non-Regression Clause in the Case of Delict of Negligence
    Laura Feldmanis pp. 86-94

    The delict of negligence is defined in terms of violation of the duty of care. While that duty entails displaying the level of care required from anyone and necessary for communication in the relevant society, there is no comprehensive list of the standards pertaining to the duty of care, especially as would be foreseeable from an objective perspective. In addition, a question arises: in which case does the person have to take responsibility in accordance with the delict of negligence for damaging a person’s legal rights stemming from a crime committed by a third party, or rather is this specific person’s duty restricted to his own acts. While the answer may seem at first glance to be provided by the non-regression clause, in line with which a person’s intervention within a chain created by the person who caused the original threat rules out the possibility of accusing the person who caused the original threat, the matter is not so simple: exceptions to the non-regression clause exist, and it is not always applicable. Certain principles are employed in the dogmatics of penal law accordingly, to specify how the duty of care and objective predictability are substantiated and how to handle exceptions to the non-regression clause. One of these rules, which is an outgrowth of the traffic rules, is the principle of trust. Applied not just with regard to traffic but also in situations of division of duties and in relation to general communication between people, this principle has been confirmed in Estonian Supreme Court practice. The article considers two significant questions that arise in connection with the principle of trust: firstly, in what cases is there a reason to trust, and, secondly, where is there a reason to doubt? After addressing the meaning of the principle of trust, the paper examines the effect on liability in scenarios wherein the person who originally caused the threat acts out of negligence yet the threat caused by that person is actualised in the form of an act violating legal rights by another, realised in either delict of negligence or an intentional delict. Finally, the article presents the conclusion that it is important to investigate which element of the structure of delict the principle of trust belongs to.


    Keywords: delict of negligence; violation of the duty of care; foreseeability from an objective perspective; principle of a single offender; non-regression clause; principle of trust

  • What Safety are We Entitled to Expect of Self-driving Vehicles?
    Taivo Liivak pp. 95-102

    A manufacturer of self-driving vehicles could face claims involving assertions of the product’s defectiveness. Under the Product Liability Directive, a product is deemed defective when it does not provide the safety that a person is entitled to expect. Efforts to ascertain the possibility of defectiveness connected with a self-driving vehicle could necessitate evaluating the design of the vehicle, matters of human–machine interaction, and the role of the human in the relevant incident of damage. This article lays groundwork by considering the capabilities of self-driving vehicles, the role and expectations of human beings, and legislation aimed at ensuring safety and preventing damage. This discussion concretely situates the concept of the safety of self-driving vehicles in the context of product liability law, which is inherently preoccupied mainly with the consequences.


    Keywords: Self-driving vehicles; driverless cars; autonomous vehicles; product liability; Directive 85/374/EEC

  • The Concept of Recovery of Credit Institutions in the Bank Recovery and Resolution Directive
    Märt Maarand pp. 103-111

    New regulations, obligations for credit institutions, and powers for authorities were created by the Bank Recovery and Resolution Directive (BRRD). While resolution of a credit institution is clearly defined, it is less clear whether recovery of a credit institution could and should be treated as a separate concept under the BRRD; which elements it encompasses; and how these elements enhance and are linked with the pre-existing prudential regulation, processes, and tools. The problem is that if recovery is to be deemed a differentiable concept, specific legal rules and principles could be applicable that are separate from the prudential or the resolution framework – whether existing ones or other, easily developed rules and principles. This is particularly crucial when authorities exercise powers related to recovery, because following appropriate rules and principles has a direct connection with state liability.

    In consideration of these issues, the article presents several important conclusions: Firstly, recovery in the sense applied in the BRRD can be distinguished from both the prudential framework and the concept of resolution, on the basis of function; the concept of recovery can be considered to consist of recovery planning, early intervention measures, and two measures of further intervention that can be employed. Some early intervention measures are recovery-specific and broaden the supervisory powers significantly, while others do not and show overlap with supervisory powers derived from the prudential framework. Recovery planning and exercising early intervention measures can take place in parallel with processes connected with the prudential framework while nonetheless maintaining recovery as a usefully separate concept.


    Keywords: credit institutions; bank recovery; bank recovery and resolution; BRRD; recovery plan; early intervention measures; competent authority; banking supervision

  • Is Full Preference for a Secured Claim in Insolvency Proceedings Justified?
    Anto Kasak pp. 112-121

    Secured claims have priority over other claims in the event of debtor insolvency with respect to the distribution of the debtor’s encumbered assets. Numerous writings have discussed the necessity of security instruments in the context of growth and development of the economy. Credit is indeed necessary for the economy’s development, but, at the same time, credit is the cause of insolvency. This can be put another way: efficient credit develops the economy, while inefficient credit causes insolvency. The author argues on this basis that restriction of the secured creditor’s rights in insolvency proceedings means not less credit but more effective credit. A security-holder whose rights are limited is going to lend more responsibly and monitor the activity of the debtor more intensively and effectively, because the risk of loss would otherwise increase. Better monitoring should lead also to earlier intervention by the secured creditor in the actions of the debtor, which can be expected to increase the number of cases of rescue of debtors headed for insolvency. The author suggests the option of removing a small amount from the secured creditor and distributing it among the unsecured creditors to make the credit system more efficient and reduce injustice. Implementing this option would not harm the interests of the secured creditor as much as it helps to render the whole system more efficient. 


    Keywords: insolvency; security rights; preference for security rights; priority of claims; pari passu; secured claims