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        Execution and effect of
       the constitutional review
         judgments in Estonia

                            Gea Suumann
                Analyst of the Supreme Court of Estonia
                   in constitutional review matters


19 June '09   Effects and execution of the constitutional review judgments
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        The Supreme Court of Estonia
         The court of highest court in the state
         Reviews appeals in cassation
          in civil, criminal and administrative law matters
         Court of constitutional review.
          Acts on the basis of the requests of:
                 President of the Republic
                 Chancellor of Justice
                 Courts or a Chamber of the Supreme Court
                 Local Governments
         The Supreme Court en banc (all 19 judges together)
          can adjudicate an appeal in cassation and the
          constitutionality of a pertinent norm at the same time
         Decisions are available at http://www.riigikohus.ee


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         Outline of the presentation
       Examine the consequences within the
        legal framework and judicial practice
        after the Supreme Court has
               declared a norm unconstitutional and invalid, or
               ascertained a legal gap.
       Take into consideration of the constitutional
        review practice in 1.01.2004 – 31.12.2008
       Deal with the execution of judgments in three
        problematic spheres:
              1. Electoral principles
              2. Judicial proceedings
              3. Ownership reform


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                                      Questions

      Norms substantively amended?
      Legal gaps filled?
      Effects of “alleviating” judgments?
                           * * *
      Reactions of the legislator and the courts?
      Necessity for additional legal guarantees?




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              (1) ELECTORAL PRINCIPLES

        1. 19 April 2005 case No 3-4-1-1-05
        Prohibition of election coalitions for
        the next local government councils'
        elections
      => Election coalitions are still allowed




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              (1) ELECTORAL PRINCIPLES

        2. 14 Oct 2005 case No 3-4-1-11-05
        Right of the Members of the
        Parliament to be members of the
        Local Government Councils as well
      => Sitting „in two chairs‟ is not allowed




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          (2) JUDICIAL PROCEEDINGS

        1. 6 Jan 2004 cases No
            3-1-3-13-03 and 3-3-2-1-04
        Re-opening of proceedings
        subsequent to judgments of the
        European Court of Human Rights
      => guarantees ensuring the full observance
        of the Convention have been enacted


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          (2) JUDICIAL PROCEEDINGS

        2. 25 March 2004 case No 3-4-1-1-04
        Right to submit appeals against
        rulings on dismissal of complaints
        in misdemeanour proceedings
      => rulings on refusal to accept an appeal
         are contestable



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          (2) JUDICIAL PROCEEDINGS
          3. 9 April 2008 case No 3-4-1-20-07
        Right of appeal in civil proceedings,
        against a ruling on dismissal of an
        application for securing an action,
        by which the security paid is
        transferred into the public revenues
      => applicants no longer incur negative
        property consequences when submitting
        applications for securing an action,
        should these actions be dismissed

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          (2) JUDICIAL PROCEEDINGS

        4. 16 May 2008 case No 3-1-1-88-07
        Right of appeal in misdemeanour
        proceedings, against a decision on
        confiscation of a transport vehicle
        belonging to a person not
        participating in the proceeding
      => no definitive change in legislation;
         no judicial practice either

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          (2) JUDICIAL PROCEEDINGS

        5. 16 May 2008 case No 3-1-1-86-07
        Prohibition to delegate penal power
        of the state
      => no alternative legislation,
        but full implementation of the
        Supreme Court judgment



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              (3) OWNERSHIP REFORM
       1. Case No 3-3-1-63-05 (judgments from
       12 Apr 2006 and 12 Dec 2006),
       31 Jan 2007 case No 3-4-1-14-06
       Rights of persons who left Estonia on
       the basis of an agreement entered
       into with the German state in 1941
     => no alternative legislation,
       but invalidation of the ambiguous norm
       has enabled the implementation of the
       general procedure

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              (3) OWNERSHIP REFORM
        2. 30 April 2004 case No 3-4-1-3-04
        Obligation of the owner of an
        immovable to tolerate utility
        networks and utility works on its
        immovable or land
      =>obligation to tolerate utility networks is
        more restricted and it is possible to
        demand the removal of utility networks.
        A charge for the toleration is established.

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                                      Conclusions
        The constitutional court as a negative legislator.
         Nevertheless, it assumes preventive influence
        Addressees of the constitutional review judgments:
         all state powers
        The legislator is under constraint, to maintain its
         authority
        The self-regulative effect of the Supreme Court‟s
         interpretations - no need for direct coercive measures
        Execution of the judgments is guaranteed through the
         public pressure which motivates the legislator to act
         voluntarily
        Authority of the Supreme Court is guaranteed by the
         strength of the argumentation of its judgments


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                                Thank you!
                                     Questions?

                                 Gea Suumann
                           Telephone (+372) 730 9044
                        E-mail gea.suumann@riigikohus.ee
                        Webpage http://www.riigikohus.ee


19 June '09   Effects and execution of the constitutional review judgments

				
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