Court Precedent – the Estonian Approach Presentation at the conference "Court Precedent – the Baltic Experience" Vilnius, 15 September 2016 Introduction In my short presentation I will try to give you an overview of the nature and role of the court precedent in the Estonian legal order. It must be asked, as a preliminary point, what do we actually have in mind when talking about court precedent (or judge-made law) in the context Continental European legal system? In 1998, an act was passed in Estonia by which the decisions of the Supreme Court were deemed to be a source of criminal procedural law. Also according to the current Code of Criminal Procedure (Section 2 subsection 4) the sources of criminal procedural law are decisions made by the Supreme Court in issues that are not regulated by other sources of criminal procedural law but which arise in the application of law. It must be noted that in other areas of the law the Estonian legislator has not recognised the decisions of the Supreme Court explicitly as a source of law. Let it also be mentioned that aspects of EU and international law (primarily ECHR practice), which in reality have an impact on the activities of national courts in the interpretation and development of the law, will not be considered in the following presentation. Court precedent – inevitable and necessary The constitutional principle of a state based on the rule of law involves legal certainty, among other things. According to Supreme Court practice, legal certainty in the most general sense, means that the law serves the purpose of creating order and stability in the society.1 In the continental legal system, it is known that laws are of crucial importance in ensuring legal certainty. At the same time it is not excluded that the laws always do not give a clear answer to a legal question, are ambiguous in content, or there is a gap in the law. It has been repeatedly emphasised, in the Estonian legal literature, that the coherence of the administration of justice achieved in connection with court decisions made by the courts (especially the higher courts) has an extremely important role in ensuring legal certainty.2 Even though a judge-made legal rule is not usually mandatorily binding, it may be a guideline for resolving similar legal questions, and essentially obtains the status of a precedent.3 In the narrower meaning, a precedent is legally mandatory with respect to later analogous cases, which clearly come under a principle that has already once been decided. Therefore, in Continental Europe, it is more correct to talk about a precedent in the context of a wider meaning: that is the right of the courts to interpret the law created by the legislator in their decisions. In the legal literature, such decisions are sometimes also called “value decisions” and the higher the court that made the decision, the more valuable decision it is. 1 RKPJKo 30.09.1994, III-4/1-5/94; 23.03.1998, 3-4-1-2-98, p. IX. 2 M. Sillaots. Kohtunikuõiguse võimalikkusest ja vajalikkusest kontinentaal-euroopalikus õiguskorras. Tartu, 1997, p. 86. 3 See e.g. M. Sillaots. Kohtunikuõigus. – Juridica 1998/5, p 238-241; A. Kiris jt. Õiguse alused. Tallinn: TTÜ kirjastus 2003, p. 68. For Estonia, the above situation is the case, where the decisions of the Supreme Court are mainly considered. In simplified terms, the legal reality is that the decisions of the Supreme Court are relied on as a subsidiary source of law in all branches of law, and not just in criminal procedural law (in the situation of a gap in the law). The practical need for such case law, in a wider meaning, is caused by the modern legal reality. Legal relations are becoming increasingly more complicated, and the number of legal norms is also increasing. In such a situation, authoritative positions which harmonise the legal practice are helpful to the judge, as well as to the parties in a dispute. And a convincingly- reasoned precedent decision helps to highlight the legal principles and the constitutional values in addition to resolving a specific legal dispute. The same quality may also be attributed to a precedent case, which means e.g. that some legal norm is applied for the first time, together with the necessary justifications and explanations (e.g. the first court decision concerning a offence relating to competition). Meaning of a Supreme Court decision by law Next, I will briefly touch upon the meaning of a Supreme Court decision by law. Following the legal traditions of Continental Europe according to law, the positions expressed in a decision by the Supreme Court, as well as the district court, in the interpretation and application of a legal norm are expressis verbis mandatory only for the court that hears the same case again. The exceptions are those decisions concerning criminal procedural law in cases of a gap in the law, which have already been referred to. It may be claimed that for the Supreme Court, as a court of cassation, the task of assisting in the uniform application of legal norms is of central importance. The norms of the Estonian procedural codes help to ensure the performance of this task. These norms regulate the acceptance of appeals in cases of cassation, referrals of the matter to the full Chamber, Special Panel and the Supreme Court en banc, and the mandatory nature of the positions of the Supreme Court. The procedural codes prescribe that the Supreme Court shall accept a cassation, among other things, if the resolution of the appeal in the cassation is important from the position of a uniform application of the legal act or the development of the law. Ensuring the uniform application of the law is also an independent argument when it refers to the adjudication of a matter to the Supreme Court en banc (that is to all 19 justices of the Supreme Court). The consistency of the positions of the Supreme Court is ensured, among other things, by the limitation that restricts the changing of current practices too easily: the position expressed in the earlier practice of the Chamber can generally only be reviewed in the context of a larger composition (however for example in civil proceedings it is the right of the Chamber, but not an obligation). Meaning of the Supreme Court decision in judicial practice I will start by discussing the case law decisions related to criminal procedural law, the binding nature of which the legislator in Estonia has recognised expressis verbis as a source of law. Our dear colleague Eerik Kergandberg has stated in a Commentary of the Code of Criminal Proceedings (2012) that, in the current case-law of the Supreme Court, the provision of court precedent (CCP Section 2 subsection 4) has been referred to relatively rarely. This may lead us to conclude that: 2 1) the Supreme Court has used the respective competence (has had to use it) only in single cases (e.g. extending the standing, and restricting the right of cassation of the prosecutor’s office upon an acquittal in an expired criminal offence; restricting the standing of the injured party if the prosecutor’s office withdraws the charges; extending the competence of the enforcement judge in the application of the mitigating retroactive effect of a penal law); or 2) there is no specific reference to this legal norm in relevant Supreme Court decisions. One example comes from May of this year. The Criminal Chamber made a decision by using the precedent provision in a case, where the main question was whether sending materials from a criminal case to the juvenile committee simultaneously with the termination of the criminal proceedings could be considered as merely a ruling for the termination of the criminal proceedings by nature. This determines whether, and according to which procedure, this ruling could be challenged. If the commission of the offence by the minor was not confirmed, then sending at the termination of criminal proceedings the materials of the criminal case to the juvenile committee, would intensely infringe the interests of the minor. The committee might apply sanctions in respect of the minor, due to which it would not be the so-called “rehabilitating termination” of the criminal proceedings. The Supreme Court gave instructions that upon resolving the issue of the appeal in such a situation, the investigation complaint proceedings regulation must be relied on. 4 It has been explained, in the Criminal Chamber 2006 decision (3-1-1-68-06), that the competence to create new law given to the Supreme Court is (I quote) “of a clearly subsidiary nature and is based on the unavoidable need to move forward in procedural situations arising in criminal proceedings, where it is such a genuine legal gap, which cannot be filled by a legal analogy.” In interpreting the legislative activity of the court in accordance with the constitution, the creation of the additional violation of fundamental rights in a case law was precluded. The above position was stated in a case where a transfer from general proceedings to simplified proceedings was deemed to be a fundamental breach of procedural law, as in the simplified proceedings the procedural guarantees are always applied to a more restricted degree than in the general proceedings. So far, the question of the constitutionality of the criminal procedural case law of the Supreme Court has not arisen in judicial practice or in theory. However, it is important to identify, when initiating supervision over the constitutionality and delimiting the use of the precedent competence, whether: 1) the situation that needs resolving is legally unregulated and the methods of the interpretation of law are insufficient for bridging the gap; or 2) using some procedural right is precluded due to an unconstitutional factor.