Juridica

Right and Reason for the Circuit Court to Refer a Civil Case Back to the District Court for Reconsideration

Mati Maksing — 2024-04-04 16:04:32

Circuit courts in the Estonian judicial system are generally second instance or appellate courts. In the appeal procedure, the circuit court may, among other things, annul the decision of the district court in whole or in part and make a new decision itself in the annulled part; modify the grounds of the decision of the district court, leaving its resolution unchanged; or annul the decision of the district court in whole or in part and refer the case back to the court of first instance for a new review to the corresponding extent if the circuit court cannot resolve the case itself, i.e., if the procedural violation alleged against the district court cannot be remedied in the appeal or order appeal procedure.

The article examines these possibilities on the basis of the case law of circuit courts and the Supreme Court. As a central question, the article examines the situations in which the condition that the circuit court cannot resolve the case is fulfilled, i.e., the situations in which the circuit court cannot itself remedy the alleged violation of the district court. About five years ago, it was noted in the legal literature that so far there is no precise boundary for distinguishing between the situations described, and that the corresponding case law on discretion is evolving. At the same time, an analysis was made of the procedural violations that led circuit courts to send cases back to the district court. This article describes recent developments in the case law of the circuit courts and looks for nuances that may clarify this boundary and the scope of the circuit courts’ discretion.

Creativity and Efficiency in Judicial Work

Ele Liiv — 2024-04-04 16:04:49

Last year, an inspirational seminar was organised for judges who had recently started working in Tallinn Circuit Court. Two more experienced colleagues and an external lawyer discussed expectations of the courts and how to do their job more effectively. This article grew out of a discussion at a workshop, and it is pretty safe to say that the ideas here apply to other creative fields too.

Law faculties provide academic education and traditionally focus on knowledge rather than skills. It is believed that if you have the knowledge, the skills can be easily acquired during an apprenticeship. In fact, there is also a need to help a recognised lawyer to adapt more quickly to the new job.

The situation has started to change. For some time now, more skills training, including psychology, has been provided for judges. However, without knowing the specifics of a particular job, it is difficult for a psychologist to instruct a judge on how to manage their time, avoid stress and burnout, and use their time and mental resources wisely.

It is obvious that some colleagues can work more efficiently than others. Some judges do things in a more rational way by adopting a variety of organisational measures. Others are better able to cope with the emotional aspects of judicial work, including writing judgments. It would be good if we could find colleagues who know how to use their resources wisely, both in terms of speed and good results. It would then be necessary to identify what their good performance is based on. Are there any universal skills or habits of a highly effective person? How to learn them? What is the creative barrier and how to overcome it? How to make better use of your brain and creativity? The article seeks answers to these questions.

Whistleblower Protection in the Case Law of the European Court of Human Rights. Grand Chamber Judgment Halet v Luxembourg and Its Journey

Maris Kuurberg — 2024-04-04 16:05:20

Over the past few years, there has been much debate in Estonia whether there is a need for the Whistleblower Protection Act, the problem it solves, and the risks it may entail. The debate was triggered by the need to transpose Directive (EU) 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons who report breaches of Union law. As Estonia has not transposed the Directive, the European Commission has launched infringement proceedings against Estonia.

There have been unsuccessful attempts to transpose the Directive in the past, but in May 2023 the Government resubmitted the draft Whistleblower Protection Act to ministries and other agencies for coordination. The draft law was not limited to the regulation of reporting breaches of Union law. Unfortunately, the draft law submitted to the Riigikogu in September 2023 bears the title ‘Act on the Protection of Whistleblowers of Breaches of European Union Law in the Field of Employment’, and it stipulates that the Act applies to whistleblowers of breaches of requirements arising from Union law that have become known in the course of their employment. In the opinion of the author of this article, it is unfortunate that the draft law only transposes the mandatory provisions of the EU Directive, since the state has to ensure broader protection for whistleblowers anyway. This follows from the case law of the European Court of Human Rights (ECHR) on Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides for freedom of speech.

This article discusses how the principles of whistleblower protection evolved in the workplace in the case law of the ECHR until the judgment of the Grand Chamber of the ECHR of 14 February 2023 in Halet v Luxembourg. In this judgment, the ECHR reiterated and supplemented its previously applied criteria that states should take into account in whistleblowing cases under the subsidiarity principle.

The Administrative Court Decides on the Provision of Healthcare in Prison. Is This Merely a Short-Term Experiment?

Tiina Pappel, Triin Uusen-Nacke — 2024-04-04 16:05:34

The procedure for settling claims arising from the provision of healthcare services to prisoners is not regulated by the Imprisonment Act, which is why the relevant procedure has been shaped by case law. Until the end of June 2021, disputes related to the provision of healthcare services to prisoners were settled by regional or administrative courts, depending on whether the dispute was over a (medical) decision of a doctor or an administrative decision of a prison. But then the practice changed. On 28 June 2021, the General Assembly of the Supreme Court found in a landmark decision that the provision of healthcare services to prisoners is a complex of private and public law relations and took the position that all claims arising from the provision of healthcare services to prisoners shall be resolved by the administrative court. The reasons for changing the current practice were (a) the lack of private autonomy in the legal relationship; (b) the financing of healthcare, which is not inherent in a contract under the law of obligation; (c) the close intertwining of private and public law relationships, which makes it impractical to split disputes into different parts.

The article analyses in greater detail the reasons given in the judgment of the Supreme Court for the change in the earlier case law, also briefly discussing the distinction between public and private law relationships. In addition, it will be asked how the amendments to the law, which will enter into force on 1 July 2024 and will change the system of healthcare for prisoners and introduce compulsory liability insurance for healthcare providers, will fit in with the new direction of the Supreme Court for 2021–2022.

Compensations of Non-Pecuniary Damages for the Years 2020–2022 in Civil Cases for the Violation of Personal Rights and the Development Trends According to Court Practice Analyses

Karolyn Krillo, Kätlin Piho — 2024-04-04 16:05:48

The article is based on the court practice analysis ‘Claims for Compensation of Non-Pecuniary Damage in Civil Cases in 2020–2022’ (hereinafter: 2023 court practice analysis), prepared by the current article’s authors on behalf of the Supreme Court and the Ministry of Justice and published on the Supreme Court’s website in December 2023, and the conclusions presented therein. The analysis was based on the judgments made by county and circuit courts in civil cases over three years, which resulted in compensations for non-pecuniary damages. Additionally, for illustrative purposes, the authors of the analysis highlighted some civil cases in which the claim for compensation of non-pecuniary damage was not satisfied. The analysis covered decisions that became effective as of 1 August 2023. One of the objectives of the analysis was to generalise court practice, highlight the application problems of relevant norms, investigate whether and how the amount of non-pecuniary damages awarded by courts has changed in recent years, and whether and how it differs across various violations. Moreover, the analysis examined whether the trend observed in the analysis of claims for compensation of non-pecuniary damages in civil cases for the years 2020–2022 continued from previous analyses, suggesting that the sums awarded as non-pecuniary damages did not increase but rather decreased, or whether courts considered factors such as the rise in the cost of living when awarding compensation for non-pecuniary damages.

The current article focuses on compensation for non-pecuniary damage in cases of violation of personal rights. Particularly in focus for the Juridica special issue of the Circuit Courts are civil cases in which, contrary to the county court, the circuit court awarded or modified the amount of non-pecuniary damages in favour of the plaintiff based on the decisions effective as of 1 August 2023, for the years 2020–2022.

Challenging the Decision of a Creditors’ General Meeting in Bankruptcy Proceedings – What to Challenge and Why?

Indrek Parrest, Mari Schihalejev — 2024-04-04 16:06:02

Section 83 of the Bankruptcy Act gives the debtor, the creditor, and the trustee in bankruptcy the right to request the annulment of decisions taken at a general meeting of creditors. The provision has had a significant implementation practice, including at the level of the Supreme Court, but it has not yet been dealt with separately in Estonian legal literature. In this article, the authors attempt to explain the legal nature of the decisions of the general meeting of creditors and to clarify which breaches may be grounds for declaring the decisions invalid and when the decisions cannot be challenged on the basis of subsection 83 (1) of the Bankruptcy Act. It is also possible, at least hypothetically, in the context of decisions of general meetings of creditors, to speak of ipso jure annulled decisions and ‘non-decisions’.

The article was prompted by the wish to draw attention to the fact that the competence of the general meeting of creditors is clearly defined by law (§ 77 of the Bankruptcy Act) and that the general meeting of creditors cannot decide on matters not specified by law. This aspect often tends to be overlooked by the parties to bankruptcy proceedings, and also by the courts, when looking at the implementation practice of the Bankruptcy Act. If a decision is taken on matters not within the competence of the general meeting of creditors, that decision has no legal effect, is not binding on the trustee, and has no substantive effect. This raises the question of whether decisions taken in excess of the limits of jurisdiction are always subject to challenge in court. The article tries to answer this question.

The article also discusses relevant case law, in particular the case law of the Supreme Court and the decisions of circuit courts. A more systematic analysis of circuit court judgments has been carried out from 2021 onwards.

Jurisdiction in Matters of Parental Responsibility. The 1996 Hague Convention

Nele Teelahk, Mairi Näksi — 2024-04-04 16:06:14

The Republic of Estonia ratified the Estonian-Russian Mutual Legal Assistance Treaty by the Act of 12 May 1993. The Treaty entered into force for Estonia on 19 March 1995. On 20 March 2024, the Riigikogu adopted the draft law on the denunciation of the Treaty. The aim of the Government of the Republic of Estonia is to terminate Estonia’s obligations under the Treaty on 19 March 2025.

The Estonian-Russian Mutual Legal Assistance Treaty regulates the right of recourse to Estonian courts in legal relations between parents and children and the right of guardianship of minors, i.e., the jurisdiction of courts in cases where a Russian citizen is a party to the proceedings. The Treaty is directly applicable and takes precedence over other instruments with the same scope, i.e., the Brussels II ter Regulation, the 1996 Hague Convention, and the Code of Civil Procedure. Upon denunciation, the direct applicability and priority of the Treaty shall cease to exist and the Brussels II ter Regulation or the Hague Convention shall apply for the purpose of determining jurisdiction in parent-child relationships and in matters of guardianship of minors falling within the scope of the Treaty. As the Estonian-Russian Mutual Legal Assistance Treaty is one of the most widely applied instruments of international jurisdiction in Estonian jurisprudence, its denunciation leads to the need for a wider application of the Brussels II ter Regulation and the Hague Convention. The Regulation has been analysed in Estonian legal literature, but the Convention has not been dealt with in depth.

The article examines, firstly, when the Hague Convention should apply and how it relates to the Brussels II ter Regulation and the Code of Civil Procedure. It then discusses the rules of general jurisdiction based on the habitual residence and domicile of the child, and the transfer of jurisdiction and the conclusion of a jurisdiction agreement. Finally, it analyses the possibilities for applying safeguards and provisional measures in urgent cases.