Dear reader,

Gaabriel Tavits
pp. 1-1 [PDF] [Cover PDF]

It is not uncommon to encounter a situation in which one must admit that understandings of many legal situations are varied. On the one hand, everything might appear simple and clear; however, when one delves a bit further into the specifics of a particular legal regulation, the landscape may turn out to be much more complex, and perceptions change. Legal regulation leaves room for different understandings and interpretations. Although the legislator’s goal is to ensure legal regulation that is as precise as possible, there are always some gaps that need to be filled through either analogy or interpretation. Also, case law and the positions of legal professionals have an important role to play in the understanding of legal regulation and in application of the law. Alongside analysis of the bottlenecks found in the current law, historical experience should not be overlooked either. The dissection of a legal situation in the past, one long forgotten, may offer us an unexpected and necessary solution for applicable legislation. Accordingly, studying and analysing historical experiences is necessary and justified in every way.

This issue offers broad-based analysis of various modern legal problems and their solutions, from a wealth of perspectives. It should be noted here that non-lawyers too can be of great help in interpreting legal issues. One good example can be seen in the article ‘Interpretation of Undefined Legal Concepts and Fulfilling of Legal Gaps, in Jüri Lotman’s Semiotic Framework’, on the potential impact of this globally esteemed semiotics luminary’s legacy with regard to legal interpretation.

Legal issues are present in all facets of life. Generalised approaches to various legal issues are addressed in the following papers, among others: ‘(Just) Give Me a Reason’, ‘The General Data Protection Regulation and its Violation of EU Treaties’, and ‘Current Challenges of the Labour Law of Ukraine: On the Way to European Integration’.

The journal’s content is enriched further with approaches to specific legal issues that are relevant for understanding various legal fields and when one is generalising. Some pieces that make this contribution are ‘Shareholders’ Draft Resolutions in Estonian Company Law: An Example of Unreasonable Transposition of the Shareholder Rights Directive’, ‘Which Adverse Environmental Impacts of an Economic Activity Are Legally Acceptable and on What Conditions’, and ‘Digital Inheritance: Heirs’ Right to Claim Access to Online Accounts under Estonian Law’. These analyses demonstrate the role of lawyers in explaining and interpreting various legislative gaps for the purpose of establishing legal clarity.

We have commented on the vital role of historical experience in legal analysis. In this regard, the following articles offer further insight: ‘Limitation of Freedom of Speech and of the Press by Penal Law in the Final Decades of the Russian Empire’ and ‘Land Reform and the Principle of Legal Certainty: The Practice of the Supreme Court of Estonia in 1918–1933’.

In addition to the works highlighted above, the reader will find several other topical, intriguing, and discussion-sparking articles. For example, one addresses a topic that is rarely discussed – dignity at the end of life and analysis of the related ethical, legal, and social arguments. All this only goes to show the diversity of opinions in the legal world.

We wish you pleasant reading and thinking along! 

pp. 1-1 [PDF] [Cover PDF]

  • Interpretation of Undefined Legal Concepts and Fulfilling of Legal Gaps, in Juri Lotman’s Semiotic Framework
    Liina Reisberg pp. 3-11 [PDF]

    The article examines whether the structure of meaning proposed in cultural semiotics by the Tartu–Moscow School of Semiotics is applicable for the interpretation of undefined legal concepts and to the filling of legal gaps. With the assistance of Lotman’s cultural semiotics, one is able to formulate the regularities that operate in legal interpretation in the same way as in culture. One of these is the binary structure of legal concepts and gaps. In interpreting norms and striving to overcome legal gaps, it is necessary to define the external reference (‘utterance’) and the self-reference (‘text’) in law. The article clarifies and examines these in the legal context and reiterates the value of bearing in mind throughout the process that interpretation always takes place in relation to this binary structure.

    Keywords: interpretation; legal gap; undefined legal concept; Tartu–Moscow School of Semiotics

  • (Just) Give Me A Reason …
    Julia Laffranque pp. 12-35 [PDF]

    Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands.

    The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU.

    Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected. 

    Keywords: reasoning of judgments; the duty to give reasons; reasoning requirements for ECtHR and CJEU judgments; leave to appeal in the Estonian Supreme Court; summary judgments; preliminary references/rulings of the CJEU; interplay between EU law and the European Convention on Human Rights

  • The General Data Protection Regulation and its Violation of EU Treaties
    Mario Rosentau pp. 36-40 [PDF]

    While the EU General Data Protection Regulation, which entered force on 25 May, is generally good and necessary in its vigorous protection of the fundamental rights of self‑determination and identity of European people, the article identifies a core issue that has gone unnoticed: the GDPR violates EU treaties. It is, at base, a ‘European law’, yet European laws are banned under the TEU and TFEU.

    The article examines the background for this conflict. The ambitious plan for ratification of 2003’s draft treaty establishing a constitution for Europe fell at the first hurdle in 2005. The draft Constitution envisaged a legislative innovation: the European law and European framework law, directly applicable in the Member States and superior to them. These legal instruments, envisaged as replacing EU regulations, could readily be cited as a major federalist pillar of the draft. Yet there would be no European laws – they were rejected with the draft constitution in the 2005 referenda, and the current treaties do not foresee any law-like European legislation.

    The author outlines the GDPR’s nature as a European law thus: the regulation 1) potentially concerns all residents of Europe, albeit by adding to the rights of individuals and protecting their freedoms; 2) addresses virtually all legal entities and undertakings acting, physically or through a network, in the European judicial area; 3) addresses the Member States and the EU itself; 4) and has cross-border applicability and covers the whole EU. Furthermore, its reach extends to service providers outside the EU if their service targets EU data subjects. There are substantial impacts on subjects on whom obligations are substantial. Hence, the author concludes that the GDPR’s scope, depth, and impacts exceed all the limits that the EU treaties permit for regulations. Furthermore, the treaties do not even know the term ‘general regulation’.

    Since the GDPR possesses the characteristics of a ‘European law’ – and even is ‘seamlessly’ positioned in a place reserved by the draft EU Constitution for the ‘European law on data protection’ – while such laws have been rejected, a key issue is highlighted: how deep an EU-level political integration and relinquishment of the individual European nations’ sovereignty do the Member States actually want? For instance, most analyses of the causes of Brexit cite loss of sovereignty of the UK as one of the main factors in the decision. The author concludes that, since the GDPR is with us to stay, amendment of the EU treaties can no longer be avoided. Noble objectives cannot justify infringements of the present ‘European Constitution’ and the constitutions of the Member States.

    Keywords: General Data Protection Regulation (GDPR); establishing treaties of the EU (TEU and TFEU); legislative directives and legislative regulations of the EU; fundamental principles of EU’s Constitutional Law; Brexit; sovereignty of the member states of the EU; violation of EU treaties

  • Limitation of Freedom of Speech and of the Press by Penal Law in the Final Decades of the Russian Empire
    Olja Kivistik, Marju Luts-Sootak pp. 41-52 [PDF]

    In the 21st century, it is inappropriate to have to ask whether criticising a political regime or exercising freedom of speech could lead to criminal charges and criminal punishment. In contrast, a hundred years ago the restriction of people’s freedom of speech, especially in relation to political matters, was quite extensive, both in autocratic Russia and elsewhere. The article addresses the legal situation in the Estonian territory of the Russian Empire until 1918, when insubordination to state authority and inciting mutiny were punishable by law. On 17 April 1905, the so-called Freedom Manifesto gave people freedom of speech, and the Fundamental Laws of the Russian Empire entered into force one year later, wherein fundamental rights were enumerated, among them the right to express one’s convictions, both orally and in writing. At the same time, however, restrictions continued to apply to the fundamental rights declared, which at times were very strict in the tsarist state and rendered the space for exercise of those rights extremely narrow.

    The article provides an overview of the penal legislation that was applicable within the Estonian territory at the dawn of the 20th century, which set boundaries to freedom of speech and of the press. Considered separately is the case law of the Tallinn Circuit Court pertaining to charges of instigation of mutiny, with the aim of showing how these provisions were applied in judicial practice and the context in which the state restricted people’s fundamental rights. In the Tallinn Circuit Court, it was primarily newspaper editors who were charged with incitement to mutiny, because they allowed the publishing of various calls to action in relation to workers’ movement propaganda and demands for better conditions and rights for workers. At the beginning of the 20th century, class warfare was considered a crime against the state, and the case law demonstrates how the constitutional freedoms of speech and the press were restricted via strict penal-law measures. 

    Keywords: basic rights in Russia; penal codes; limitation of freedom of speech and the press; crimes against the state; Tallinn County Court; tsarist Russian penal law; mutiny; insubordination to state authority

  • Land Reform and the Principle of Legal Certainty: The Practice of the Supreme Court of Estonia in 1918–1933
    Karin Visnapuu pp. 53-60 [PDF]

    In the early years of the 20th century, the land-ownership and societal structure in many Eastern and some Central European countries displayed remnants of feudalism. Land distribution was dominated by large estates (manors) owned by feudal lords. Since this relic from the age of serfdom was not in line with modern values at all, land reforms were carried out in these countries after World War I. Estonia was no exception: once it gained its independence on 24 February 1918, the main task was to build a modern democratic state that was in accordance with the principle of rule of law. However, the process of land reform itself became a legal challenge to this principle.

    Today, legal certainty is an important part of the principle of rule of law. Even though legal certainty was not written expressis verbis in contemporary legal acts, it was still considered to be an important principle and it was necessary to follow it. The sterling basis of the land reform was considered to be the Land Law act but the act itself had many drawbacks, which were not resolved even with the respective implementation acts. For this reason, the main task of the Estonian courts became interpretation of the legal norms and forming of the substance of Estonian land reform with their practice.

    The paper describes how precisely land reform became a challenge to the principle of rule of law in the example of legal certainty, identifies the main problems found in the legislation of Estonian land reform, and articulates how the Estonian Supreme Court solved thus problems.

    Keywords: legal history; Supreme Court; land reform; rule of law; legal certainty; case law

  • Which Adverse Environmental Impacts of an Economic Activity Are Legally Acceptable and on What Conditions
    Hannes Veinla pp. 61-68 [PDF]

    The general aim of Estonian environmental law is reduction of environmental nuisances to the greatest extent possible, so as to protect the environment and human health, well-being, property, and cultural heritage. Hence, Estonian environmental law is not radically ‘green’: the aim is not to fully and unconditionally avoid environmental nuisances, since the functioning of human society and increasing of our prosperity are not possible without certain negative impacts on the environment. A fairly clear differentiation between environmental risks and hazards, in combination with the corresponding legal principles (of precaution and prevention), is characteristic of Estonian law.

    One of the main concerns with respect to plans and activities with a likely adverse environmental impact is whether the activity planned could cause environmental hazards in addition to environmental risks and, consequently, whether the precautionary principle or instead the preventive principle should be applied. Proven or assumed environmental nuisances caused by the activity in question do not necessarily need to be reduced or prevented; this duty applies only when a higher threshold is crossed – that is, when the environmental risk and/or hazard limit is exceeded. Hence, for plans and projects it has to be established whether the proposed activity actually would cause environmental risks and/or hazards. In the case of environmental risks (i.e., in situations wherein it is possible for an environmental nuisance that must be reduced to occur), the goal is not a priori prohibition of the activity but the application of measures that reduce the risk proportionally, where those measures might be carried out by such means as attaching additional conditions to environmental permits. Once the measures are set forth, it is up to the operator to decide whether meeting the prescribed conditions is feasible or, instead, the planned activity would be economically unreasonable under those conditions. When the probability of pollution occurring is considered great enough, there is deemed to be an environmental hazard, which must be prevented. Whether a hazard exists or not must be revealed in the course of further (scientific) research. Another important consideration is that an environmental hazard or a significant environmental nuisance needs to be tolerated in cases wherein all three of the following conditions are fulfilled: the activity is rendered necessary on account of compelling interest, there are no reasonable alternatives for safeguarding this interest, and the necessary measures have been taken to reduce the environmental hazard or significant environmental nuisance. 

    Keywords: environmental nuisance; environmental risk; environmental hazard; precautionary principle; prevention principle

  • Shareholders’ Draft Resolutions in Estonian Company Law: An Example of Unreasonable Transposition of the Shareholder Rights Directive
    Andres Vutt, Margit Vutt pp. 69-78 [PDF]

    One of the measures foreseen in the Shareholder Rights Directive for enhancement of the rights of shareholders is the regulation of draft resolutions. The article addresses the central question of whether the extent of the implementation of the requirements regulating draft resolutions and their disclosure in Estonian company law has been justified. Research was conducted to analyse whether the transposition of the rules on draft resolutions derived from the directive has contributed to the attainment of the objectives set out in the directive and in other European initiatives. The main conclusions presented in the article are that, as a result of the transposition of the Shareholder Rights Directive, Estonian small limited companies have a burdensome obligation to follow the formalised rules on draft resolutions and their disclosure, which, according to the directive, were initially meant only for listed companies.

    Although the Supreme Court of Estonia had an opportunity to interpret the respective regulations reasonably, it has chosen a rather formal approach instead and applied the law in quite possibly the most burdensome way for Estonian companies and contrary to the aims for the directive as the source of those regulations. The authors of the article take the stance that there is a need to change the rigid rules on draft resolutions that have been forced on Estonian small companies. The present mandatory rules on draft resolutions should be applicable to listed companies only. All other public limited companies should be given an opt-in option. As for private companies, the law should clearly set out the possibility of stipulating the appropriate rules in the articles of association of the company. 

    Keywords: draft resolutions, shareholder rights at the general meeting, general meeting of shareholders, Shareholder Rights Directive, Estonian Commercial Code, Estonian company law, company law, corporate law, corporate governance

  • Tasks and Responsibilities of an Employer in a Digital Age: How to Comply with the Applicable Requirements for Work Conditions
    Gaabriel Tavits pp. 79-87 [PDF]

    New forms of employment are not in line with the assumptions or terms of the labour-law rules that are in force today. In these cases, the employer has to employ different protection mechanisms in practice. If the necessary protection is to be guaranteed, there is still a need to follow work- and rest-time rules, occupational health and safety rules, etc., yet all those obligations are connected to the workplace. Because new forms of employment, however, are usually not connected to a concrete workplace, applying all of the necessary protection mechanisms is growing more complicated, particularly when the laws and regulation are out of step with technological and other development of society.

    In addition, difficulties arise in connection with assessment of the quality of the work done. The article examines these issues, the roles of the employer and employee in emergent forms of work, and mechanisms that represent possibilities for the future.

    Keywords: employer; new forms of employment; occupational health and safety; quality assessment; work and rest time

  • Current Challenges of the Labour Law of Ukraine: On the Way to European Integration
    Yana Simutina pp. 88-93 [PDF]

    The article describes the main challenges facing labour law and its practice in modern conditions. In particular, the author concludes that the long and complex process of codifying the labour laws of Ukraine has, regrettably, not yet achieved its main objective – namely, to bring radical change from the old model of socialist labour. The draft Labor Code submitted for consideration would, in reality, introduces some cosmetic changes, which lack the ability to modernise Ukrainian labour law. It is emphasised that in the context of Ukraine’s European integration and the rapid development of innovative information technology, labour legislation should take into account and, in fact, legalise long-standing practices in atypical employment relationships, so as to ensure labour rights and guarantees for persons involved in such activities. The author presents various elements as necessary: revision to the legislative definition of an employment contract, further differentiation and clarification in the legal regulation of labour relations, and rejection of these relations’ ‘excessive regulation’. Also proposed is an approach that renders labour relations more flexible while maintaining and ensuring the fundamental rights of employees.

    Keywords: labour contract; labour legislation reform; legalisation of atypical employment; European integration

  • Identification of Provoked State in Estonian County Court Rulings of 2006–2016
    Kristjan Kask, Liisa Tarkus, Alina Harkovskaja pp. 94-103 [PDF]

    In certain cases, homicide, if committed in a state of sudden extreme emotional disturbance caused by violence or insult inflicted on the killer or a person close to the killer by the victim, can be classified as manslaughter in a provoked state. The article examines the extent to which Estonian county courts apply assessments by forensic psychiatry and psychology experts in their identification of provoked state. The sample, from rulings published in the State Gazette between 2006 and 2016, was composed of 84 county court rulings, from four districts in Estonia. It was found that in two thirds of cases, forensic psychiatry and psychology experts were consulted in assessment of the presence of provoked state. Also, region-specific differences in identifying provoked state were found. 

    Keywords: provoked state; expert assessment; psychiatry; psychology; mental disorders

  • Towards a Single Government Approach via Further Consolidation of Law and Order in Estonia, with Domestic Violence as an Example
    Raul Narits, Silvia Kaugia, Iris Pettai pp. 104-116 [PDF]

    An appropriate ‘solution pattern’ for social problems in a state based on the rule of law entails the existence of corresponding legislative regulations. The solution should be approved at the level of a law as a legislative act of supreme juridical power. A solution created at that level would fully correspond to the principle of rule of law and also minimise the possibility of socalled departmental special interests prevailing, in recognition that this danger accompanies efforts toward the solution of every multifaceted problem. The authors find that, since Estonia already possesses relatively extensive experience in legislative consolidation for various aspects of the society’s reality, with most of this experience being of a positive nature, it would be a most welcome development if the issue of DV were to be included in the current process of consolidation under the auspices of the project Towards the Development of Better Legislation.

    Legislative drafting is stimulated by the perception of acute social problems and of a need to regulate them by legislative means. Results from 2014 and 2017 surveys show that Estonia’s legal practitioners perceive DV as a problem the causes of which demand research and whose victims require help. Most legal practitioners surveyed encountered DV in their day-to-day work, with prosecutors and police detectives bearing the heaviest burden: it consumed nearly one third of their work hours. A serious problem was identified in prejudice and stereotypes, which yield an oversimplified and distorted image of the actual causes of DV, in which the victim frequently is considered responsible. Both the general population and legal practitioners widely share the erroneous impression that the victims could avoid violence through ‘appropriate conduct’. Such stereotypic attitudes wherein victims are considered partially to blame for violence can obstruct the work of law-enforcement agencies.

    While the idea of a special law on DV found support and scepticism in roughly equal measure, support for it increased significantly when respondents judged the concrete opportunities and solutions offered by such a law. These legal practitioners perceived numerous bottlenecks and unsolved problems in relation to the existing legislative regulation and legal practice, which one would expect to be overcome through a special law on DV. The authors conclude from the survey-based findings that Estonia’s legal practitioners demonstrate considerable anticipation for a law on DV. The participants in the surveys also perceived an increasing need for co-operation with law-enforcement agencies in this regard – i.e., for concentrating on collaboration within this domain. However, the authors consider it undoubtedly important also to increase the involvement of specialists in the DV field: victim support services, staff of women’s shelters, and municipal social workers. 

    Keywords: preventing domestic violence; combating domestic violence; sociology of law; criminal policy; criminal law and procedure; legislative consolidation

  • Digital Inheritance: Heirs’ Right to Claim Access to Online Accounts under Estonian Law
    Tiina Mikk, Karin Sein pp. 117-128 [PDF]

    As we have moved more and more of our life onto the Internet, issues of digital inheritance have become all the more topical. The article takes as its main research question whether an heir is entitled to claim access to digital assets of the deceased and to exercise rights arising therefrom. In practice, many providers of Internet-based services, all over the world, seem to be of the opinion that the answer is ‘no’. The article focuses on analysing the topic from the perspective of Estonia’s applicable inheritance and data protection law. Also, comparative law arguments drawn from consideration of German case law and legal literature are applied. The authors examine two examples of Estonian online services – an online ticket sales service and an e-invoice management portal – and conclude that Estonian law does not grant the respective service providers a right to deny heirs access to the accounts.

    Keywords: digital inheritance; principle of universal succession; right to exclude inheritability; inheritability of online accounts; contracts with online service providers; access to digital assets; access to the personal data of a deceased person; post-mortem data protection

  • Restraining at Care Institutions Evaluated from the Standpoint of Penal Law
    Erkki Hirsnik, Marje Allikmets pp. 129-157 [PDF]

    The connection of restraining measures and necessary elements of a criminal offence may be twofold. First, restraining measures can correspond to actions described in legal provisions of the special part of the Penal Code. It means that the restraining person could be charged under criminal law. Secondly however, it needs to be noted that in some cases, liability under criminal law may follow when restraining measures are not being used - a person may become liable for committing a crime by failing to act. Thus, the job of a caretaker involves a high level of responsibility and danger in the sense of penal law - a punishment may follow both for doing something and also for failing to act.

    Upon the implementation of restraining measures, several constitutions of the special part of the Penal Code may become relevant. However, the primary provision to view here is Article 136 of the Penal Code (unlawful deprivation of the liberty of another person). Therefore, the article mainly focuses on this provision and also analyses some other provisions of the special part of the Penal Code that may become relevant. It also addresses general circumstances excluding illegality, i.e., the circumstances to be considered not only in care institutions but also almost everywhere else. After this, the article analyses specific circumstances excluding illegality, that is the circumstances relevant within the context of the topic of the article.

    Since there is very little legal literature (and case law) on this matter in Estonia, the article is mainly based on German law as an important model the Estonian law is built upon.

    Keywords: restraint (restraining); care institutions; penal law; deprivation of liberty; physical abuse; compliance; consent; permission; presumed permission; self-defence; necessity

  • The Patient’s Will – Why and for Whom? Forms, Formalisation, and Implementation Issues
    Maret Kruus, Rainis Int, Ants Nõmper pp. 158-169 [PDF]

    If a patient decides they do not wish to receive health care services and would prefer to die, the healthcare service provider is not allowed to provide health care services to the patient under the principle of personal autonomy. In this case, the patient’s will needs to be taken into consideration even when they are currently unable to express it themselves, for instance when the patient is unconscious.

    In the situations where the patient is unable to express their will on their own, many countries have introduced the use of living wills that are also often called advance directives. A living will is a declaration (usually in writing) on what kind of treatment a person wishes or does not wish to receive in a situation in which they are unable to make decisions on their own, for instance, in the case of unconsciousness or dementia. In addition to preparing a living will, people can also provide future health care directives by assigning a substitute decision maker who can express the person’s presumed will in case of the person being unable to express their decision.

    The most effective means for ensuring one’s personal autonomy is using a living will, since it is compiled by the person themselves. Although living wills are not common in Estonia, the legislation of the country makes no obstacles for its use. The people of Estonia are also becoming increasingly aware of their rights. People have already turned to notaries with a wish of providing notarial future directives on the provision of health care services or maintenance of their property in the case that they no longer have the capacity to exercise their will themselves.

    The article discusses the role of a living will near the end of life and also discusses the issues related to its formation and implementation. The last part of the article briefly addresses the instructions related to maintenance of the patient’s assets in the case of incapacity to exercise the will. 

    Keywords: living will; advance directives; lasting power of attorney; personal autonomy; health care service