Execution and effect of the constitutional review judgments in Estonia

1. Execution and effectof the constitutional review judgments in Estonia Gea Suumann Analyst of the Supreme Court of Estonia in constitutional review matters Effects and execution of the constitutional review judgments

2. 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 aChamber 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 Effects and execution of the constitutional review judgments

3. 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 in1.01.2004– 31.12.2008 • Deal with the execution of judgments in three problematic spheres: 1. Electoral principles 2. Judicial proceedings 3. Ownership reform Effects and execution of the constitutional review judgments

4. Questions • Norms substantively amended? • Legal gaps filled? • Effects of “alleviating” judgments? * * * • Reactions of the legislator and the courts? • Necessity for additional legal guarantees? Effects and execution of the constitutional review judgments

5. (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 Effects and execution of the constitutional review judgments

6. (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 Effects and execution of the constitutional review judgments

7. (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 Effects and execution of the constitutional review judgments

8. (2) JUDICIAL PROCEEDINGS 2. 25 March 2004 case No 3-4-1-1-04 Right to submit appealsagainst rulings on dismissal of complaints in misdemeanour proceedings => rulings on refusal to accept an appeal are contestable Effects and execution of the constitutional review judgments

9. (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 Effects and execution of the constitutional review judgments

10. (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 Effects and execution of the constitutional review judgments

11. (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 Effects and execution of the constitutional review judgments

12. (3) OWNERSHIP REFORM 1. Case No 3-3-1-63-05(judgments from 12 Apr 2006and 12 Dec 2006), 31 Jan 2007case 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 Effects and execution of the constitutional review judgments

13. (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. Effects and execution of the constitutional review judgments

14. 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 Effects and execution of the constitutional review judgments

15. Thank you!Questions? Gea Suumann Telephone (+372) 730 9044 E-mail gea.suumann@riigikohus.ee Webpage http://www.riigikohus.ee Effects and execution of the constitutional review judgments