Supreme Court Judgement as Source of Estonian Criminal Procedural Law

• Author: Meris Sillaots
• Pages: 94-103

Meris Sillaots

Supreme Court Judgement as Source of Estonian Criminal Procedural Law

A law was adopted in Estonia on 13 May 1998 according to which certain judgements of the Supreme Court of Estonia were included in sources of criminal procedural law by an amendment to § 1 of the Code of Criminal Procedure (hereinafter: CCP). By this law, the Estonian legislator took a step that is perhaps not the most ordinary in the context of continental European legal tradition. The use of court precedent as a source of law is mainly attributable to the Anglo-American legal system ¹ , while the Estonian legal order has belonged and does belong to the legal system of continental Europe. ²

It should also be pointed out that the Estonian legislator has never before expressly recognised the judgements of the Supreme Court as a source of law in any area of law, although court precedent as a potential source of law has been a topic for discussion in Estonia for many years. ³

There is still no reason to claim that the Estonian legal order lacked any preconditions for the creation and factual functioning of Richterrecht. ⁴ No Estonian law prohibits the legislative activities of courts. On the contrary, many laws have provided relatively good preconditions for this.

For example, § 9 (2) of the Code of Civil Procedure of Estonia provides that in the absence of a provision of law regulating a procedural relationship, the court shall apply a provision which regulates a relationship similar to the relationship under dispute. In the absence of such provision, the court shall take guidance from the general principles of law.

Subsection 4 (1) of the General Part of the Civil Code of Estonia provides that in the absence of a provision regulating a legal relationship, a provision which regulates relationships similar to the legal relationship applies. In the absence of such provision, the general purpose of the Act shall be the basis. Subsection 4 (2) contains the provision that in the absence of an Act regulating a legal relationship, the general purpose of law shall be the basis.

Subsection 5 (1) of the Code of Administrative Procedure of Estonia provides that in matters not regulated by the Code of Administrative Procedure, the administrative court shall take guidance from the provisions of civil procedure. By this provision, the legislator has given administrative courts the possibility to apply analogy of law.

The Estonian legislator has thus given courts the chance to develop law in various areas of law, without specifying the implication of judgements that contain the results of the legislative activities of the courts for future court judgements. It can be said though that judgements of the Supreme Court of Estonia that contain Richterrecht are a factual example and carry regulative meaning for lower courts in practice.

On the Implications of Including Supreme Court Judgements in Sources of Criminal Procedural Law

CCP § 1 (4) prescribes that judgements of the Supreme Court in issues which have not been settled by other sources of criminal procedural law, or which arise in the application of law, are a source of criminal procedure.

The implication of this provision is that, firstly, it basically gives the Supreme Court a formal authorisation to resolve matters that are not settled by other sources of criminal procedural law or have arisen in the application of law. Secondly, the law specifies the implication of such Supreme Court judgements for future court judgements.

It has been stated in special literature that court precedent will have a peripheral role in the methodological works of continental European law, although at least legal practitioners have no doubt in their importance and the simple subsumption models of court judgement have increasingly fewer supporters. ⁵

The Estonian legislator included judgements of the Supreme Court in sources of criminal procedural law most likely in view of the legal reality and the needs of practical administration of justice. The practice of administration of justice has convincingly shown that the existing legal regulation has no answers to many essential criminal procedural questions, or if it does, the answers are incomplete, ambiguous or controversial. For a smooth administration of justice, these shortcomings have to be eliminated in the course of resolving specific cases. The judge cannot wait until the legislator corrects the shortcoming. The legislative activities of judges have to be regarded as unavoidable in the practical administration of justice. The inclusion of judgements of the Supreme Court in the sources of criminal procedural law should encourage judges of the Supreme Court in their legislative activities. It can also mean an additional guarantee to the unification of court practice and the avoidance of hasty changes in the present court practice.

On the Limits of Competence of the Supreme Court Concerning Legislative Activities

To define the limits of competence of the Supreme Court concerning its legislative activities, we should first try to gain a better insight into the meaning of the provision of CCP § 1 (4).

According to the wording of CCP § 1 (4), the sources of criminal procedural law include judgements of the Supreme Court in issues which have not been settled by other sources of criminal procedural law, or which arise in the application of law.

Let us ask first what the issues that have not been settled by other sources of criminal procedural law are. These would include the legal issues for which no legal norms exist in other sources of criminal procedural law. In other words, there is a gap in legal regulation that needs to be filled.

Let us ask then what the issues that arise in the application of law are. Apparently, these are issues that may arise where the law contains a norm that should probably regulate the particular legal issue, but is incomplete, ambiguous in its wording, unclear, or controversial. It may also be that the text of an existing norm contains concepts (e.g. Generalklausel) whose specific meaning is revealed only in the definition of the judge. These are, thus, mainly the issues related to interpretation of law.

It should be noted that the provision of CCP § 1 (4) should not be construed so as to imply the permissibility of any legal policy activities of the Supreme Court. The provision does not grant the Supreme Court the competence of the legislator. Arising from the principle of separation of powers, the competence to take legal policy decisions is vested in the legislator. This inter alia implies that no additional restrictions on fundamental rights or no additional procedural coercive measures may be imposed through judgements of the Supreme Court. An important measuring stick in determining the gap in the regulation of criminal procedural law should be all laws providing for criminal procedure, as well as the Constitution of the Republic of Estonia, the generally accepted principles and norms of international law, and the international agreements binding for Estonia. One should proceed from the understanding that the task of the court is not to free legislative drafting, but the drafting of norms related to legal acts and law. ⁶

The principle of separation of powers also limits the authority of the Supreme Court in its legislative activities in the sense that a Supreme Court judge must, in his or her legislative activities, be limited to that which is necessary for resolving a particular case. The legislative activities of judges are permissible only in relation to the application of law in the resolving of specific cases. The application of law should be understood here in a broad meaning so as to include the interpretation and further development of law (making additions to legal provisions and filling gaps). ⁷

The Bindingness of Supreme Court Judgements

Let us ask if the provisions of CCP § 1 (4) imply the legal policy intention of the legislator to somehow come closer to the legalisation of precedent law or even the stare decisis ⁸ principle known in the Anglo-American legal tradition. May one presume that through the provisions of CCP § 1 (4), the Supreme Court has been authorised to create binding norms of Richterrecht?

To find an answer to this question, we should begin from the fact that it is probably impossible to change legal culture merely by the adoption of a law that would include the principle of the bindingness of court judgements. In view of the legal culture of continental Europe, such an act would be a direct obstacle to legislative development. ⁹

The use of Richterrecht as a mandatory and binding source of law would not correspond to the continental European legal traditions. It is interesting to note here that for example Germany has in many cases been reluctant to recognise Richterrecht as an independent formal source of law. The allegedly common opinion in Germany does not attribute the quality of a source of law to Richterrecht. ¹⁰ It has been claimed that Richterrecht may become a source of law only when Richterrecht becomes common law. ¹¹ However, this is not the only approach common in Germany. According to the second approach, Richterrecht is a special kind of a source of law. ¹² The quality of Richterrecht as a source of law in Germany is thus...