en Juridica ajakiri 2026/1-2 http://www.juridica.ee/ http://www.juridica.ee/article.php?uri=2026_1-2_k_ik_ei_ole_kuld_mis_hiilgab_pseudoteaduslik_vs_t_endusp_hine_meetod_ja_miks_me_sellest_r_g&lang=en The legitimacy, quality, reliability, and validity of methods for taking statements and conducting interrogations have a profound impact on justice, individuals’ sense of security, and public confidence in the legal system. Despite the rapid development of legal psychology, non-evidence-based techniques and pseudoscience continue to be widespread in practice and training, often presented as scientific. The article focuses on what pseudoscience is and how to distinguish it from science, what the dangers of using pseudoscientific methods are for the legal system, and what solutions science offers. The article also includes a discussion on how to put scientific information into practice in a form that can be applied there, and what principles to follow in order to avoid pseudoscience. 2026-02-09 18:57:13 Tuule Grolig, Franziska Hofer, Carla S. Fumagalli http://www.juridica.ee/article.php?uri=2026_1-2_saladuse_hoidmise_kohustus_ja_selle_erandid_ps_hhiaatrias&lang=en Patient confidentiality is a core principle of medical ethics and enshrined in law; hence, generally, patient data may not be shared with third parties unrelated to the provision of medical care. However, in certain cases, sharing or providing access to a patient’s health records may be necessary in the interests of the patient or in order to protect third parties, particularly in the field of psychiatry. For this reason, the Estonian legislature has established a number of exceptions in the Mental Health Act, which allow healthcare providers in the psychiatric field to share patient data with certain third parties for specific purposes. The problem is that many of these exceptions place the risks of data sharing entirely upon healthcare providers. The unlawful sharing of patient data carries serious risks for healthcare providers, both personally and institutionally, hence the need for clear and exhaustive regulations. Unfortunately, current regulations in Estonia are far from exhaustively clear, and a decision of the Supreme Court in 2022 muddied the waters even further. This puts healthcare providers in a precarious position, where every request for patient data would ideally need to be expeditiously processed by a collegium of experts, whereas in reality, most healthcare providers do not have such resources. In this article, the authors critically examine the Estonian Mental Health Act in regard to the rules on sharing patient data with third parties without the patient’s consent. The authors challenge the interpretation given to the law by the Supreme Court in 2022, and conclude that the issues raised by the court have not been adequately addressed by the legislature, despite a legislative correction in early 2025 claiming to have done so. 2026-02-09 19:13:45 Kärt Pormeister, Madis Parksepp http://www.juridica.ee/article.php?uri=2026_1-2_ks_amet_erinevad_rollid_kliinilise_ps_hholoogi_tegevuse_iguslik_kvalifitseerimine&lang=en The article discusses the legal framework for the activities of clinical psychologists, focusing on how different classifications of activities affect their rights and obligations. In recent years, there has been an increased emphasis in Estonia on the need to improve the quality and availability of mental health services. In light of this, the Health Services Organisation Act was amended in October 2023, introducing the concept of psychological treatment into legislation and giving clinical psychologists the opportunity to work as an equalised specialist with an independent healthcare professional. The article analyses the various roles played by clinical psychologists and their foundations, and explains the development of the concept of psychological treatment and its substantive scope of application, as well as the problems associated with it in practice. More specifically, it explains how the activities of a clinical psychologist can be legally classified as either a health service or a so-called welfare service. Although the service may be substantively similar, different classifications entail very different rights and obligations for clinical psychologists, which both affect patients and the provision of services by clinical psychologists. Depending on whether the service is legally considered a health service provided under a healthcare service contract or a welfare service provided under an authorisation agreement, clinical psychologists are subject to different rights and obligations with regard to service documentation and data storage, the legal basis for the processing of personal data, confidentiality obligations, and general contractual liability. Therefore, it is important that both the clinical psychologist and the patient understand under which definition the service provided falls and what the accompanying rights and obligations are for both parties. 2026-02-09 19:21:41 Made Rästas, Thea Marran http://www.juridica.ee/article.php?uri=2026_1-2_isiku_ratundmiseks_esitamise_regulatsiooni_mberm_testamine_eestis&lang=en During criminal proceedings, a witness who has witnessed a crime may be asked to identify the perpetrator from a lineup, which usually consists of the suspect, who may or may not be guilty, and a group of similar-looking individuals who are known to be innocent. At the same time, witness statements may be unreliable as evidence. Decades of scientific research have revealed that memory is fragile, and memories can be forgotten and changed, including as a result of identification procedures carried out during proceedings. In addition, identification involves social interaction, which may also influence witnesses’ decision-making processes and choices when viewing a lineup. The remarkable advances in science over the last decade necessitate an analysis of the recognition guidelines in Estonia that are currently in use. In Estonia, identification is governed by the Code of Criminal Procedure, the relevant provisions of which have not been amended since the Code was adopted in 2004. The purpose of this article is to assess whether the guidelines for identification set out in the Code of Criminal Procedure are in line with contemporary research recommendations and promote reliable identification practices. To this end, the authors first provide an overview of the various system factors involved in compiling and presenting lineups, and explain how and why these variables influence recognition decisions. Based on these factors, the compliance of the current regulation with science-based recommendations is then analysed. 2026-02-09 19:32:47 Annegrete Palu, Laureen Hansmer, Anneli Soo http://www.juridica.ee/article.php?uri=2026_1-2_teadlik_eneseohustamine_ja_enesem_ramis_iguse_ulatus&lang=en The central objective of penal power is the protection of legal rights. The limit of this objective is the principle of individual autonomy, according to which the bearer of a legal right has the right to decide for themselves how to exercise their legal right. Therefore, a person has the right, for example, to destroy their property, and suicide is not a punishable act. You must also defend your legal rights in situations where the threat to your legal rights is related to the actions of another person. In addition to the question of attributing consequences to the accused, the victim’s behaviour is also significant from the perspective of civil action. Namely, when deciding on a civil action, the possible negligence of the victim and its severity in causing damage to health must be taken into account. This article maps the criteria for deliberate self-endangerment as objective attribution criteria based on case law and assesses whether, on this basis, deliberate self-endangerment can be consistently and systematically defined, including whether and how it can be distinguished from the victim’s consent as a circumstance precluding unlawfulness. In addition, the authors assess whether deliberate self-endangerment is controlled in a similar manner in criminal and civil law, i.e., whether the affirmation of deliberate self-endangerment under criminal law also precludes the satisfaction of a civil claim. 2026-02-09 19:40:28 Artur Piisang, Laura Aiaots http://www.juridica.ee/article.php?uri=2026_1-2_joobeseisund_kui_joobest_tingitud_juhtimisv_imetus&lang=en Driving a power-driven vehicle, off-road vehicle or tram in a state of intoxication, as provided in § 424 of the Penal Code, is one of the most common crimes in Estonia: In 2023, nearly 2,500 crimes of this type were registered, making it the third most common offence. It seems that in practice, there are not many disputes concerning substantive law related to § 424 of the Penal Code: few cases heard in general proceedings primarily concern the proof of an act or punishment. Therefore, it could be said that in terms of substantive law, the matter is clear and orderly. While one could agree with the argument of clarity – everything works and interpretative practice is predictable – in the author’s opinion, the current practice is not correct in several aspects in terms of legal doctrine: this applies both to the special part of criminal law (in particular, in relation to clause 69 (2) 2) of the Traffic Act) and to the general part (in particular, in relation to intent). The author claims that the current malpractice (or at least a large part of it) can be eliminated by interpreting the constituent element of ‘intoxication’ not narrowly as intoxication, but as an inability to drive due to a state of intoxication. In this article, the author focuses on the most common intoxicant, alcohol (and the alcohol intoxication caused by it). It is presumed that many of the arguments presented in the article can also be applied to other types of intoxication. 2026-02-09 19:45:29 Erkki Hirsnik http://www.juridica.ee/article.php?uri=2026_1-2_kommentaar_erkki_hirsniku_artiklile_joobeseisund_kui_joobest_tingitud_juhtimisv_imetus_ning&lang=en Erkki Hirsnik’s article criticises the current practice for being too rigidly guided by a single, specific limit. On the one hand, our law allows for the criminal prosecution of drivers, even if their blood alcohol level is below this limit. On the other hand, it may not be possible to attribute the relevant intent, even to a driver who is heavily intoxicated. The fact that things are not as black and white as we see in practice is also confirmed by scientific studies investigating the effects of alcohol. What’s more, the situation may be even more nuanced than Hirsnik’s article suggests. At the same time, it is probably inevitable that the legal system must draw a line somewhere and decide that act X is punishable, or that act Y is not, even if, scientifically, some (theoretical) doubts remain in the air. The article by Artur Piisang and Laura Aiaots examines conscious self-endangerment on the part of victims, including cases where the victim gets into a car with a drunk driver, the driver causes an accident, and the victim is injured. In such cases, it is important to consider the overall impact of intoxication on driving, how this may vary between individuals, and how the victim may have perceived the impact of intoxication on driving. The article comments on these issues from the perspective of a clinical psychologist. 2026-02-09 19:52:10 Eerik Kesküla http://www.juridica.ee/article.php?uri=2026_1-2_seksuaalk_itumine_ja_selle_hindamine_iguskontekstis&lang=en Human sexuality is diverse, encompassing identities, emotions, fantasies, and their various behavioural expressions. Distinguishing between normative and pathological sexual behaviour is challenging, particularly when the purpose of the assessment is connected to expert testimony, questions of criminal responsibility, or risk assessment. The evaluation of sexual behaviour in a legal context is inevitably sensitive; consequently, the interpretation of unusual or socially unacceptable characteristics without clear criteria and a methodological framework may lead to unjustified or biased conclusions. Terms such as ‘paedophile’, ‘sex addiction’, ‘pornography addiction’, and ‘hypersexuality’ are frequently used in the media to describe both unlawful behaviour and conduct that deviates from social or moral norms. These same concepts have also found their way into judicial practice, where experts are occasionally required to assess individuals’ sexual behaviour in both criminal and civil proceedings. However, developments in medicine and psychology concerning human behaviour and its causes have resulted in changes to the understanding of these concepts. Consequently, there is a growing need to clarify the topic and align it with current scientific knowledge and best practice. This article describes disorders related to sexual behaviour, the role of sexual-behaviour assessment in risk evaluation, and the ethical limits that apply when providing expert assessments and opinions. 2026-02-09 19:58:21 Margus Veem, Annika Tamme http://www.juridica.ee/article.php?uri=2026_1-2_ps_hholoogiline_ja_ps_hhiaatriline_ekspertiis_ning_asjatundja_arvamus_perekonna_iguses&lang=en In family law, the question of the child’s future living arrangements often arises when, following a separation, there is serious conflict between the parents, and they are unable to reach an agreement out of court. In disputes concerning custody rights and contact arrangements, the court must make decisions concerning the child’s place of residence, relationships with loved ones, and developmental needs. It is necessary to establish with which parent the child primarily lives, how much time the child spends with each parent, and which custody decisions should be made solely by the parent with whom the child lives. When addressing these issues, the key concepts have become consideration for the child’s well-being and the child’s interests. This often leads to the question of what is in the child’s best interests from a psychological point of view. In some types of family matters, involving an expert has become a matter of course, either because it is required by law or because the expert assessment provides a fairly clear indication of how the case will be resolved. In disputes concerning custody rights and contact arrangements, ordering an expert assessment or submitting an expert’s opinion is exceptional, and there is no established case law regarding when the court deems it necessary. This article discusses the situations in which psychiatric expert assessments or expert opinions may be necessary for the court to decide what kinds of expert assessments to order in this field and what principles the expert’s work must be based on in order to assess the quality of the expert assessment. The article aims to provide an overview of the possibilities for using psychological and psychiatric expert assessments in family law cases. The authors have dealt more thoroughly with the expert assessment of parenting skills, the application of which is still developing in Estonia. 2026-02-09 20:04:18 Iiris Velling, Priit Kama http://www.juridica.ee/article.php?uri=2026_1-2_menetluslikke_v_imalusi_perev_givallaga_arvestamiseks_vanema_iguste_m_ramisel_hagita_pereko&lang=en Over the past 10 years, more than 1,000 applications per year have been submitted to Estonian county courts in family cases dealt with in action-by-petition proceedings, i.e., matters concerning custody of and access to a child, as referred to in clause 550 (1) 2) of the Code of Civil Procedure. Of all family cases dealt with in action-by-petition proceedings, disputes over custody of and access to a child have accounted for an average of approximately 43% over the last 10 years, fluctuating between 33% (2022) and 50.9% (2020). There are no official statistics in Estonia on how many custody of and access to a child cases are related to domestic violence. However, judges who resolve such disputes and lawyers involved in them have noted that the argument of domestic violence is increasingly being heard in disputes concerning children. Considering how widespread domestic violence is in Estonia, it can be said with some certainty that all courts deal with this issue when resolving disputes over custody of and access to a child. At the same time, references to domestic violence in family disputes are not always taken seriously, countered by the argument that if criminal proceedings do not confirm the use of domestic violence, such allegations are unfounded. The purpose of this article is to explain why this approach is not consistent with the nature of domestic violence and to discuss procedural options for taking the impact of domestic violence into account in disputes concerning custody of and access to a child, regardless of whether or not the existence of violence has been established in criminal proceedings. 2026-02-09 20:13:41 Anneli Alekand, Anne Haller http://www.juridica.ee/article.php?uri=2026_1-2_lapse_rakuulamine_tsiviilkohtumenetluses_teadusp_hised_soovitused&lang=en With the adoption of the UN Convention on the Rights of the Child (CRC) in 1989, fundamental changes took place in how children are treated legally. The underlying idea of the CRC is to recognise children as subjects of rights, even though they do not have the same autonomy as adults. In order to ensure the child’s right to be present at the hearing of their case, it is necessary for the child to be involved in the proceedings. One of the fundamental values of the CRC is the right of all children to be heard and taken seriously (Article 12 of the CRC). The right of the child to be heard is realised through the principle of Article 3 of the CRC, according to which the best interests of the child shall be a primary consideration in all actions concerning children. This article provides an overview of the concept of the best interests of the child and the right of the child to be heard in civil proceedings, focusing on the regulation governing family cases dealt with in action-by-petition proceedings. This article provides a brief overview, based on scientific literature, of how to prepare for and conduct a hearing with a child in order to ensure the protection of the child’s rights and to properly ascertain the child’s interests. The article also discusses the problems associated with recording child interviews and repeat interviews, as well as possible solutions. Although the article deals with the hearing of a child from a judge’s perspective and provides guidelines and recommendations for this, the guidelines provided on the basis of scientific literature can also be applied by other specialists involved in the hearing of a child on other legal grounds. 2026-02-09 20:18:14 Raina Pärn, Annegrete Palu http://www.juridica.ee/article.php?uri=2026_1-2_kas_mida_vanem_seda_targem_laste_iguste_ja_nende_arengu_omavahelised_seosed&lang=en Article 12 of the UN Convention on the Rights of the Child (CRC) requires that a child be heard in matters affecting them, regardless of their age, but adds a clause that the views of the child should be given due weight in accordance with the age and maturity of the child. Both the mechanism for giving due weight to the child’s opinion and the Estonian framework of fundamental rights require an assessment of the child’s abilities as a prerequisite for full legal capacity. However, neither international nor Estonian legal literature provides clarity on what exactly should be assessed – maturity, level of development, competence, intellectual capacity, etc. The authors seek to clarify the framework provided by the fundamental document on children’s human rights – the CRC – for assessing and understanding a child’s developing abilities. At the same time, issues related to assessing children’s abilities cannot be resolved solely through the law; this requires knowledge of the basics of child development psychology and an understanding of the mechanisms of interaction between children and adults. Developmental psychology approaches help to clarify which of a child’s abilities are important for exercising their right to participation and how the development of these abilities is linked to the growth of the child’s autonomy. This article analyses the connections between children’s rights and development, linking the legal approach to children’s rights with knowledge from developmental psychology and childhood sociology. It also attempts to offer theoretical and practical starting points that practitioners can use when assessing children’s developing abilities. 2026-02-09 20:24:14 Kristi Paron, Annegrete Palu, Triin Liin http://www.juridica.ee/article.php?uri=2026_1-2_piiratud_arusaamisv_imega_t_isealisele_isikule_eestkoste_seadmise_eeldused_ja_ulatus&lang=en Guardianship shall be established for an adult person who is permanently unable to understand or direct their actions due to mental illness, mental disability or another mental disorder. The purpose of guardianship is to help persons who are permanently unable to exercise their rights and fulfil their obligations due to an absence of free will, not due to old age, physical disability, or in the event of difficulties in coping with everyday life due to other circumstances. In everyday practice, this is reflected in an inability to take care of one’s own and one’s loved ones’ daily needs and health, an inability to accept help, or engaging in harmful transactions. Although many people may need help due to their inadequate social skills, lifestyles, or value judgements that are incompatible with society, the law does not allow them to be helped with the establishment of guardianship if their need for assistance is not due to a permanent mental disorder. Guardianship, for the purpose of providing assistance, is inevitably accompanied by the restriction of fundamental rights and freedoms, which is why it is very important that guardianship not be imposed more extensively than is strictly necessary for the protection of the person concerned. Therefore, in the establishment of guardianship proceedings, the court must always assess the extent to which a person is unable to understand or control their actions due to a mental disorder. Based on specialised medical knowledge, an expert can assess the presence of a mental disorder, its course, and the structure of cognitive abilities depending on the nature of the disorder. The central issue in assessing the need for guardianship is related to the person’s cognitive function, the medical explanation and description of which must reflect the level of the person’s executive functions, on the basis of which legal decisions can be made. 2026-02-09 20:30:03 Raine Pilli, Leanyka Libeon http://www.juridica.ee/article.php?uri=2026_1-2_kuidas_leida_ige_ekspert_isiku_igusi_puudutavates_hagita_tsiviilasjades_&lang=en In the case of multiple action-by-petition proceedings, the legislator has imposed an obligation on the court to involve an expert in the proceedings. While the legislator has not explicitly provided for an expert assessment in proceedings concerning the rights of children and parents, at the same time, the court must still reach a decision in those proceedings that best serves the interests of the child, based on the most reliable evidence possible. An expert opinion may also play a central role in proceedings concerning the rights of the child. The article focuses not so much on the substantive requirements of expert opinion as on what the qualifications of an expert should be in action-by-petition proceedings in family law and concerning personal rights. Therefore, the question under consideration is how the enforcer of the law should find competent and expert assistance to resolve a specific case. The article is based on an analysis of legal literature and legal sources. In addition to sources from Estonia, German sources have been used for comparison because the regulations on guardianship in Germany served as a direct model for the creation of our own Family Law Act. The rules on action-by-petition proceedings in German law also served as a model for establishing guardianship in the Code of Civil Procedure, including the appointment of an expert to provide an assessment on the ward. 2026-02-09 20:36:17 Margit Jäätma, Triin Uusen-Nacke http://www.juridica.ee/article.php?uri=2026_1-2_eutanaasia_ehk_abi_suremiseks_mitte_suremisel&lang=en Euthanasia is an act aimed at causing the death of another person out of compassion, and at the personal request of the dying person. It is assistance in dying, not palliative care (e.g., alleviating the pain of the dying person). In legal terms, this constitutes intentional killing, the unlawfulness of which may, however, be excluded in certain cases. Nevertheless, this situation is not the only possible solution to the issue of euthanasia. The appropriate solution for end-of-life care in Estonia must be determined through public debate. To contribute to the public debate, the author first provides a brief overview of Estonians’ attitudes towards euthanasia. This is followed by a summary of the euthanasia debate, which has been ongoing for almost 100 years. For the debate to be a fruitful exchange of ideas rather than a clash of entrenched positions, it is necessary to understand what euthanasia is and what it is not. This article therefore provides an overview of the legal implications of various actions and explains medical situations at the end of life. 2026-02-09 20:39:43 Ants Nõmper http://www.juridica.ee/article.php?uri=2026_1-2_kohtups_hhiaatria-_ja_kohtups_hholoogia_ekspertiis_testeerimisv_ime_postuumsel_hindamisel&lang=en Testamentary capacity refers, in legal terms, to a testator’s ability to validly make a last will or inheritance agreement, as well as the ability to alter or revoke such a testamentary disposition. In practice, the assessment of testamentary capacity is primarily required in inheritance-related court disputes in order to determine whether a will is valid and who the heirs of the testator are. The court provides a legal assessment of the validity of a will based on the circumstances, evidence, and motions presented before it. The court may request an expert opinion to clarify circumstances that are significant to the case and require specialised knowledge. Since determining the facts underlying testamentary capacity often requires expertise concerning a person’s health status more broadly, expert opinions are usually sought in inheritance-related disputes. This article first analyses what the posthumous assessment of testamentary capacity entails in practice, the standards and methods used, and the data upon which the expert relies. Secondly, it examines the assessment of testamentary capacity within court proceedings and the role of expert opinion. The discussion includes guidance on how to formulate questions for the expert and how expert conclusions are formed. Finally, the article offers reflections on the collaboration between legal professionals and experts. 2026-02-09 20:44:19 Anu Arold, Mari Zobel, Susann Liin