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Riigikohus · 3. september 2013
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  • 📎Drafting of judgments etc in Estonia.msg28 KB

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Saatja: Mari-Liis Lipstok <[email protected]> Saaja: [email protected], Piret Lehemets Teema: Drafting of judgments etc in Estonia Dear Colleagues To answer the questions of the President of Curia addressed to the Estonian Chief Justice Mr Märt Rask from 21 August, I am glad to give you a short overview about how judgments of the Supreme Court are drafted in Estonia. In general, the drafting procedure and the form and content of the judgement depend on whether the judgement is drafted in criminal, civil or administrative judicial review. In criminal cases the introduction of a judgment of the Supreme Court shall set out: 1) the number of the case; 2) the date of the judgment of the Supreme Court; 21) the court panel; 3) the name of the case heard; 4) the contested decision; 5) the date of hearing the case; 6) whether the case is heard by way of written or oral proceedings; 7) the official title and name of the appellant in cassation; 8) the official titles and names of the parties to the cassation proceedings and the names of the parties to the court proceedings and the name of the interpreter or translator who participated in the session of the Supreme Court. The statement of reasons of a judgment of the Supreme Court shall set out the following: 1) a short summary of the court proceedings to date; 2) the part of the court judgment which the appellant in cassation contests, and the requests of the appellant; 3) the explanations and objections submitted in the response to the appeal in cassation; 4) the opinions of the parties to the cassation proceedings presented during the court session; 5) the reasons for the conclusions of the Supreme Court; 6) the legal basis for the conclusions of the Supreme Court. If the Supreme Court refuses to amend a judgment of an appellate court, the Supreme Court is not required to repeat in its judgment the reasons for the judgment of the lower court and may add the motives of the Supreme Court; the Supreme Court may limit the judgment to the introduction, conclusion and the provisions of procedural law. For more see Code of Criminal Procedure, articles 352-364, English translation http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X60027K9&kee l=en&pg=1&ptyyp=RT&tyyp=X&query=kriminaalmenetluse+seadustik In civil cases, the descriptive part of a judgment provides a short description of the course of the proceeding and the lower court judgments made in the case, a short review of the claims filed by the parties, the factual and judicial allegations concerning such claims, the evidence submitted concerning the violation of the provision of procedural law and the requests of the parties. The reasons of a judgment will set out the conclusions of the Supreme Court, the normative acts which the Supreme Court applied and the procedural acts of the appellate court which the Supreme Court deems to be illegal. If the Supreme Court agrees with the appellate court and refuses to amend the decision of the appellate court the Supreme Court will state that it adheres to the reasoning of the appellate court. With good reason, the Supreme Court may make a judgment on refusal to satisfy an appeal in cassation only in the form of a conclusion without giving reasoning. In judicial review of administrative law cases, a judgement is composed of an introduction, an operative part, explanations, a descriptive part and reasons (the same goes also for criminal and civil cases). The descriptive part of the judgment gives an outline of previous proceedings in the case and of the judgments entered in those proceedings, of the claims made by participants of the proceedings in the proceedings in cassation and of any assertions made in relation to those claims, as well as of the evidentiary items concerning infringement of the rules of procedure and of any applications made by participants of the proceedings. The reasons for the judgment state the conclusions of the Supreme Court and the law that the court applied. In the case that the Supreme Court annuls the judgment of a lower court but does not return the case for a new hearing to the lower court, the court must state its position regarding all assertions, objections and points of procedure where the lower court would have to express its opinion. In the case where the Supreme Court agrees with the reasons stated in the judgement of an appellate court, the Supreme Court does not have to state the reasons for its own judgment. As well as in civil cases, the Supreme Court can write a judgement only with an operative part, when there are good grounds for that and when the Supreme Court dismisses the appeal in cassation. For more see Code of Administrative Court Procedure, art 211-233, English text http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=2012X18K3&ke el=en&pg=1&ptyyp=RT&tyyp=X&query=halduskohtumenetluse Please note that all our judgments are electronically published in the Estonian Official Gazette and are therefore public from the date they are rendered. You can see introduction to this e-service here https://www.riigiteataja.ee/tutvustus.html?m=1 You can also study some of the English translations of our constitutional review judgements as examples, http://www.riigikohus.ee/?id=823 Kind regards Mari-Liis Lipstok Legal Adviser to the Chief Justice Supreme Court of Estonia tel +372 730 9022 mob +372 529 4599
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