Summary

According to an understanding more common in constitutional law concept, the Constitutional Courts have a definite, well-developed and natural place among the state’s policymakers. The author asks whether ordinary court activism could in principle also be considered acceptable in guaranteeing access to justice as a fundamental right. If there is a gap in the right of appeal, then first (ideally) it should be filled (and unconstitutionality eliminated) as a result of constitutional court procedure. In most cases, the gap in the right of appeal has been filled in the Estonian case law exactly as described above. The author, however, is interested in a question of to what extent ordinary court activism could also be acceptable in the given situation. Whether and to what extent could the right of appeal be added by judicial power, however without turning to the constitutional court procedure? The article observes how in its case law the Supreme Court (above all the Criminal Chamber) has handled the assessment of the de lege lata existence of access to justice (especially the right of appeal) or the lack of it in a certain procedural situation.