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