Juridica

The Draft Reform of the Court Administration System from the Perspective of Constitutional Law

Madis Ernits — 2025-08-26 10:49:17

On 21 April 2025, the Riigikogu initiated legislative proceedings on a draft act amending the Courts Act and other related acts, i.e. the draft act on improving the efficiency of court administration 632 SE. The aim of the draft is to change the administration of courts of first and second instance so that responsibility for this no longer lies with the Minister of Justice, but with the soon-to-be-established Council for Administration and Development of Courts (CADC). The CADC has mixed legitimacy in this regard: it includes the Chief Justice of the Supreme Court, two members of the Riigikogu, an attorney-at-law appointed by the Bar Association, the Chancellor of Justice or their appointed representative, the Minister of Justice or their appointed representative, and five judges democratically elected by the plenary assembly of the courts. The chairperson of the CADC is determined by the draft law, and by virtue of their position, it is the Chief Justice of the Supreme Court.

The draft court administration model provides for the complete transfer of court administration tasks from the ministry to a new agency to be established, called the Court Administration Service, which will be subordinate the CADC. The CADC would also be given regulatory powers in certain areas. The budgeting of the courts of first and second instance is planned to take place in direct communication with the Riigikogu. It is not entirely clear whether the first and second instance courts, the Court Administration Service or the CADC would become a constitutional institution according to the explanatory memorandum of the draft.

The article examines the question of whether it is possible to create a new constitutional institution without amending the Constitution; it analyses the draft’s compliance with the principle of materiality, the issue of ministerial responsibility, and topics related to the composition of the CADC, and finally addresses the matter of the regulatory powers of the CADC.

The External Independence of the European Delegated Prosecutors

Maria Lutter, Kaie Proode — 2025-08-26 10:50:34

The issue of the independence of prosecutors from executive power is timeless, but in the case of the EPPO the independence from Member States and their national prosecution services is a new concept. The article provides an overview of the factors affecting the external independence of the European Delegated Prosecutors. Three factors have been pointed out in legal literature as posing the greatest threat to the independence of the delegate prosecutors: the dual role of being simultaneously part of the EPPO and the national prosecution system, the connection with the executive power due to the model of the national prosecution system, and the process of nomination of the delegated prosecutor left to the discretion of the Member State. In Estonia, European Delegated Prosecutors are appointed for a term of office as state prosecutors, but their independence is enhanced by an additional condition that they may only be given domestic tasks by decision of the Prosecutor General which is not required by the EPPO Regulation. The model of the Estonian prosecutorial system and the consequent constitutional position of the prosecutor’s office in the legal order, as well as the open competitions used for the selection of candidates for the office of delegate prosecutor, also serve the purpose of guaranteeing the independence of delegated prosecutors. At the same time, the analysis shows that ensuring the independence of European Delegated Prosecutors has largely been left to the Member States, which is incompatible with the objective of the EPPO Regulation to ensure the functional and legally independent status of European Delegated Prosecutors.

Participation of the Defence Counsel in the Judicial Investigation in Criminal Proceedings

Meris Sillaots — 2025-08-26 10:53:31

At the beginning of the judicial investigation, the defence counsel’s opinion should indicate to what extent they intend to raise objections to the charges and which allegations and positions presented in the indictment will not be contested. The defence counsel should not deliberately mislead the prosecution in such a manner that they alter the positions previously expressed in the defence statement during the judicial investigation without a valid reason.

The defence counsel should consider that the significance of evidence is a factor justifying the admissibility of evidence and the necessity of collecting such evidence. Therefore, it is important that when submitting an application for evidence, the defence counsel also justifies the relevance of the evidence.

For each piece of evidence, the defence counsel should verify whether the evidence presented by the prosecutor is admissible or whether there is any aspect that casts doubt on the admissibility of the evidence. If the defence counsel identifies any circumstances indicating a violation of procedural law in the collection of evidence, they should request the exclusion of that evidence from the collection of evidence during the judicial investigation.

During cross-examination, the defence counsel should request the exclusion of questions posed by the prosecutor during direct examination that are obviously excessively leading. For clarity, the law could specify that questions posed for the purpose of facilitating smoother interrogation, which are clearly excessively leading, are inappropriate, and the court may, upon the request of a party to the proceedings, exclude such questions.

Information Acquisition as Evidence in Criminal Proceedings

Arnold Sinisalu, Taavi Pern, Karel Virks — 2025-08-26 10:54:41

This article continues the discussion held at the 2024 Estonian Lawyers’ Days on the topic ‘Surveillance and information acquisition in criminal proceedings’. This discussion has previously been addressed in two articles published in Juridica, one by Eerik Kergandberg and the other by Tambet Grauberg and Oliver Nääs (both in Juridica 2024/9–10).

Following the Russian Federation’s military aggression against Georgia in 2008, the annexation of Crimea in 2014, and the ongoing war against Ukraine, which escalated into full-scale warfare on 24 February 2022, it has become particularly important for the state to have the capability to use information gathered under the Security Authorities Act as evidence in criminal proceedings. This applies not only to crimes against the state but to a broader range of offences, such as war crimes or corruption offences. In a wartime context, information about the enemy’s war crimes is primarily collected through intelligence operations, with traditional surveillance, as a tool of criminal proceedings, inevitably remaining secondary. It can also be argued without dispute that the functioning of democracy and the capacity for military resistance are directly linked to the level of corruption within a state. This article reflects on the relationship between ensuring national security and criminal proceedings, and how and to what extent information identified in the context of national security should and could be used as evidence in criminal proceedings.

Processing of Location Data for Area-Based Public Emergency Alerts. What is the Legal Framework?

Kadi Luht-Kallas, Tarvi Ojala, Helen Ojamaa-Muru — 2025-08-26 10:56:52

Informing the population about hazards arising from their living environment is a duty of the state and constitutes one of the measures of civil protection. International standards have set the goal that every individual must receive early warnings in case of danger. In Estonia, the active development of rapid emergency alerting began in 2018, with the first phase of the system completed by the end of 2022. Since 19 January 2023, it has been possible to send emergency alerts to mobile phones of persons located within a designated danger area in the event of incidents that threaten human life, health or national security, as well as during large-scale exercises at the level of the Government of the Republic. The law refers to this as rapid hazard notification based on danger area. A year later, a legal basis was added to allow the transmission of alerts also during extensive military training exercises. The rapid hazard notification based on danger area is transmitted as a location-based short message (internationally known as location-based SMS; in Estonia, the sender appears as EE-ALARM). The rapid hazard notification based on danger area via SMS is one of several communication channels for disseminating emergency warnings. In order to send such alerts based on a defined danger area, it is necessary to process the location data of mobile devices located within the designated area. The article analyses the accompanying infringement of the rights of addressees and the permissibility of different types of events.

The Doctrine of Essential Facilities in European Union and Estonian Competition Law and its Latest Developments in Digital Markets

Natalia Mäekivi — 2025-08-26 11:00:07

In competition law, an essential facility is an undertaking’s infrastructure, network, service or other input that competing undertakings cannot or do not find economically feasible to duplicate, but without access to which it is not possible for them to operate on the relevant market. An undertaking controlling an essential facility may not deny its competitors access to that facility or make the access subject to unfair conditions – otherwise, its conduct may be considered an abuse of a dominant position.

Over time, EU courts have had to resolve a number of cases related to essential facilities which have resulted in the development of fairly clear assessment criteria for determining whether the obligation to provide access to a certain essential facility has been breached and helped strike the right balance between undistorted competition and the fundamental rights of the undertakings.

The article discusses this relevant case law and provides a summary of the criteria that has been developed in EU competition law. The author then discusses the recent cases before the Court of Justice of the European Union related to essential facilities on digital markets (Google Shopping and Android Auto). The author advocates that, while being significant precedents for the development of essential facilities doctrine, the latest digital cases do not as such constitute a significant shift from the existing criteria, but can be seen as its logical sequences. It can be fairly concluded that cases from different industries and markets continue to collectively influence further development of the doctrine and may in principle be applicable to undertakings of different types and sizes. The author also briefly discusses the regulation of the essential facilities doctrine and its applicability under Estonian law, and how it may be affected by recent developments in the EU digital markets.