Vastus küsimustikule

Prof. Dr. Danny Pieters 3 May 2021 Judge at the Constitutional Court of Belgium Chair of Comparative Law KU Leuven Please find the answers to your questionnaire on constitutional courts (history, composition, access etc.). Brief history of the constitutional court On 21 October 1919 the Constituent Assembly passed the Supreme Court Act, which – in conjunction with the Constitution of 1920 – laid a strong legal foundation for the highest court at the top of the judicial system of the Estonian state. The Constituent Assembly elected the first members of the Supreme Court in October 1919. A member of the Constituent Assembly Kaarel Parts was elected the Chief Justice of the court, the Supreme Court of that time comprised 11 members. The Constituent Assembly declared Tartu (the capital of Estonia is Tallinn) as the seat of the Supreme Court with the hope of guaranteeing greater independence form the other branches of the state power, better contact with the legal scholars of the University of Tartu, better possibilities of making use of the University library and greater accessibility for the population. The first public session of the Supreme Court took place on 14 January 1920. Pursuant to law the Supreme Court was first and foremost a court of cassation. There were three departments in the court, the highest body was the court en banc . Cassation proceedings were allowed in all civil and criminal matters, restrictions were minimum. The Civil Department of the Supreme Court heard appeals in cassation against the judgments of National Court of Appeal ( Kohtupalat ) and appeals against judgments of Justice of the Peace Courts ( rahukogud ) as the courts of second instance. The Criminal Department was competent to hear appeals and protests in cassation against the judgments of National Court of Appeal and Justice of the Peace Courts in criminal matters. The department was also the highest military court. The Administrative Department of the Supreme Court was the highest administrative court. The Supreme Court was the first and the last court instance which reviewed complaints against the decisions, orders and failures to act of ministries and other higher administrative agencies. It was also possible to submit appeals for revision of and protests against the judgments of Justice of the Peace Courts and justices of the peace in administrative matters. The 1939 Amendment of the Constitution Act and the Constitution of 1938 placed the appointment to and release from office of judges within the competence of the Head of State. By the decree of the Prime Minister of 1934 the Supreme Court was transferred from Tartu to Tallinn. In 1940 the Soviet Union annexed the Republic of Estonia and this resulted in the liquidation of the Supreme Court. On 29 December 1940 a directive on the termination of the activities of the Supreme Court was issued. Two days later the Supreme Court held its last session. The foundations for the restoration of the activities of the Supreme Court were laid by the Constitution of the Republic of Estonia, adopted by a referendum on 28 June 1992. The Constitution vested with the Supreme Court the functions of a court of cassation and of a court of constitutional review. Tartu became the seat of the Supreme Court once again. The first public session of the newly re-established Supreme Court took place on 27 May 1993, in the assembly hall of Tartu Town Hall. The session was chaired by the first Chief Justice Rait Maruste . From 1998 to 2004 the Estonian Chief Justice was Uno Lõhmus , he was followed by Märt Rask from 2004 to 2013 and Priit Pikamäe from 2013 to 2019. Since 2019 the Chief Justice of the Supreme Court of Estonia is Villu Kõve. Composition Judges and the way they are appointed The Supreme Court of Estonia is comprised of 19 justices, who administer justice in one of three Chambers: the Civil Chamber, the Criminal Chamber or the Administrative Law Chamber. The Supreme Court also contains the Constitutional Review Chamber. Paragraph 150 of the Constitution of the Republic of Estonia (hereinafter the ‘ Constitution ’ ) stipulates that justices of the Supreme Court shall be appointed to office by the Riigikogu ( the Estonian Parliament), on the proposal of the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court shall announce a public competition for a vacant position of justice of the Supreme Court. According to § 55 subsection 4 of the Courts Act , b efore the Chief Justice of the Supreme Court makes a proposal to the Riigikogu for appointment of a justice he shall consider the opinion of the Supreme Court en banc and the Council for Administration of Courts concerning a candidate. The Riigikogu appoints a justice for an indefinite term . According to § 47 of the Courts Act , the justice of the Supreme Court has to be a citizen of the Republic of Estonia who has obtained a master’s level degree in law and is an experienced and recognised lawyer, is proficient in the Estonian language, is of high moral character and has the abilities and characteristics necessary for a justice. Unlike the first and second instance judges, an aspiring justice does not have to pass the judge’s examination : according to § 52 of the Courts Act, a person who is an experienced and recognised lawyer may be appointed as a justice of the Supreme Court (Supreme Court justice). Panels of judges deciding the cases Introduction The ex officio Chairman of the Constitutional Review Chamber is the Chief Justice of the Supreme Court (§ 29 subsection 2 of the Courts Act). In addition to the Chief Justice of the Supreme Court there are eight justices of the Supreme Court in the Constitutional Review Chamber (§ 29 subsection 1 of the Courts Act) . Each year, on the proposal by the Chief Justice, the Supreme Court en banc (all the 19 justices) appoints from among the justices of the Supreme Court two new members of the Constitutional Review Chamber and releases two most senior members from the duties of member of the Chamber. In this process, the Supreme Court en banc takes into account the opinions of the Administrative Law, the Criminal and the Civil Chambers and tries to ensure that they are represented in the Constitutional Review Chamber as equally as possible (according to the Internal Rules of the Supreme Court) . Panels According to § 3 of the Constitutional Review Court Procedure Act (hereinafter the CRCPA) the consideration of constitutional cases at the Supreme Court is done as follows: The Chamber shall consider cases as a panel of five members . A complaint or protest against the actions of a body that organizes an election or the actions or decision of an electoral committee shall be considered by the Chamber sitting as a panel of at least three members . If, in relation to considering the aforementioned complaint or protest, the Supreme Court additionally scrutinizes the constitutionality of a legislative or regulatory act or of an omission to adopt such an act, the case shall be considered by a panel of five members . Petitions for an opinion on the interpretation of the Constitution in conjunction with the law of the European Union shall be considered by the Chamber sitting as a panel of five to nine members . The Supreme Court en banc shall adjudicate any case referred to it by the Constitutional Review Chamber if that Chamber deems it necessary for the case to be adjudicated by the Court in that composition. The Court shall adjudicate any case referred to it by the Administrative Chamber, the Civil Chamber or the Criminal Chamber, or by the Special Panel, if that Chamber or the Special Panel has reason to believe that a legislative or regulatory act or omission to adopt such an act, or an international agreement which is relevant to the adjudication of the case, are contrary to the Constitution. Petitions to declare a member of the Riigikogu , the President of the Republic, the Chancellor of Justice or the Auditor General permanently incapable of performing his or her duties, to terminate the mandate of a member of the Riigikogu or to terminate the activities of a political party shall be dealt with exclusively by the Supreme Court en banc . The Supreme Court en banc shall consider cases by a panel of at least eleven members . Staff supporting the work of the constitutional judges (number and level of qualification) There are four law clerks at the Constitutional Review Chamber (hereinafter the ‘Chamber’), although currently one of them is temporarily working at the European Court of Justice. According to § 33 of the Courts Act, a law clerk is an official of the Supreme Court who generalises judicial practice and participates in the preparation of cases for proceeding. A person who complies with the educational requirements set for judges may be appointed as law clerk. Access to the court How? In accordance with § 4 subsection 1 of the CRCPA the Supreme Court shall verify the constitutionality of a legislative or regulatory act or of an omission to issue such an act, or of an international agreement on the basis of a substantiated petition, court judgment or court order. Direct access by state institutions According to § 4 subsection 2 of the CRCPA a petition may be filed with the Supreme Court by the President of the Republic, the Chancellor of Justice, the council of a local authority or the Riigikogu . Direct access by private persons and entities As stated in the judgment of the Constitutional Review Chamber of the Supreme Court of 5 February in case no 3-4-1-1-08 , § § 4–5: “ Under the CRCPA, the possibilities of submitting individual complaints to the Supreme Court are limited. Thus, a person whose rights are violated by a resolution of the Riigikogu , the Board of the Riigikogu or the President of the Republic, may contest the resolution in the Supreme Court (§§ 16 to 18 of the CRCPA). A complaint against a resolution or a measure of an electoral committee may be submitted by a political party, election coalition or an individual (§ 37 of the CRCPA). The CRCPA does not expressis verbis provide for a possibility to submit individual complaints for the review of constitutionality of legislation of general application. On the basis of §§ 13, 14 and 15 of the Constitution, and the application practice of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the general assembly of the Supreme Court has held that the Supreme Court can only refuse to hear a person’s complaint if the person can avail itself of some other effective remedy for the exercise of the judicial protection guaranteed by § 15 of the Constitution. The right to judicial protection, established in §§ 13 to 15 of the Constitution, embraces the right of a person to submit an action with a court if his or her rights and freedoms are violated, as well as the obligation of the state to establish for the protection of fundamental rights proper judicial procedures, which are fair and ensure effective protection of persons’. On the basis of the aforesaid the Supreme Court can refuse to hear a petition if the person can avail himself of some other effective remedy to ensure the judicial protection guaranteed by § 15 of the Constitution. ” In practice there has been one individual complaint, that has been reviewed, case no 3-1-3-10-02 . Prejudicial questions/referral by other court deciding a case According to § 4 subsection 2 of the CRCPA the courts shall initiate the proceedings by transmitting the relevant judgment or order to the Supreme Court. Other When? Moment of intervention (before statute is enacted, within a period of X days etc.) The President of the Republic may file a petition with the Supreme Court to declare the Act to be contrary to the Constitution if, for the second time and without any amendment, the Riigikogu passes an Act which the President of the Republic has refused to promulgate and returned to the Riigikogu for a new debate and decision (§ 5 of the CRCPA). According to § 6 of the CRCPA the Chancellor of Justice may file with the Supreme Court a petition: to invalidate a legislative or regulatory act or certain provisions of such an act which has entered into force and which has been adopted by the legislative or executive branch of government or by a body of a local authority; to declare an Act which has been promulgated but which has not yet entered into force to be contrary to the Constitution; to declare a regulatory act which has been adopted by the legislative branch of government or by a body of a local authority and which has not entered into force to be contrary to the Constitution; to declare an international agreement which has been signed or a provision of such an agreement to be contrary to the Constitution; to annul a resolution of the Riigikogu concerning the submission of a legislative bill or other national issue to a referendum if that bill, with the exception of bills to amend the Constitution, or issue is contrary to the Constitution or if the Riigikogu materially violated the established rules of procedure when adopting the resolution. In this case the Chancellor of Justice shall file the petition within 14 days. The council of a local authority may file with the Supreme Court a petition to declare an Act which has been promulgated but which has not yet entered into force, or a regulation of the Government of the Republic or of a minister, which has not yet entered into force, to be contrary to the Constitution, or a petition to invalidate an Act which has entered into force, a regulation of the Government of the Republic or a minister or a provision of such an Act or such a regulation, if it is contrary to the constitutional guarantees of local government (§ 7 of the CRCPA). The Riigikogu may file a petition with the Supreme Court for an opinion on interpreting the Constitution in conjunction with the law of the European Union if the interpretation of the Constitution is of decisive importance for the passing of a legislative bill which is necessary for fulfilling Estonia’s obligations as a Member State of the European Union (§ 7¹ of the CRCPA) . Moreover, s pecific deadlines have been provided in the following cases: A complaint against a resolution of the Riigikogu , the Board of the Riigikogu or of the President of the Republic may be filed with the Supreme Court within 10 days following the entry into force of that resolution (§ 19 of the CRCPA). A complaint against an action of the elections manager or the decision or action of the electoral committee may be filed with the Supreme Court after the matter has been dealt with by the National Electoral Committee. The complaint shall be filed with the Supreme Court through the National Electoral Committee within three days following communication of the decision or performance of the action by that Committee. The National Electoral Committee shall forward the complaint to the Supreme Court together with its written explanations not later than on the following business day (§ 38 of the CRCPA). The Chancellor of Justice shall file the petition provided for in clause 5 of subsection 1 of this section within 14 days from receiving the corresponding resolution of the Riigikogu . Competences Control of constitutionality of which instruments (statutes; bills and proposals; lower legislation; etc.) The Constitutional Review Chamber of the Supreme Court performs both ex ante and ex post control of constitutionality . According to § 2 of the CRCPA the jurisdiction of the Supreme Court is the following and the Supreme Court shall: deal with petitions to verify the constitutionality of a legislative or regulatory act, or of omission to adopt such an act; deal with petitions to verify the conformity of international agreements with the Constitution; deal with petitions for an opinion on the interpretation of the Constitution in conjunction with the law of the European Union; deal with petitions and complaints concerning a resolution of the Riigikogu ; deal with complaints against resolutions of the Board of the Riigikogu ; deal with complaints against resolutions of the President of the Republic; deal with petitions to declare a member of the Riigikogu , the President of the Republic, the Chancellor of Justice or the Auditor General permanently incapable of performing their duties; deal with petitions to terminate the mandate of a member of the Riigikogu ; decide on the grant of consent, to the President of the Riigikogu acting as the President of the Republic, to declare extraordinary elections of the Riigikogu or to refuse to promulgate an Act of the Riigikogu ; deal with petitions to terminate the activities of a political party; deal with complaints and protests concerning the actions of a body that organizes an election or concerning the decisions or actions of an electoral committee. The conformity with which norms are being checked? All constitutional provisions Constitutional provisions relating to Competences of various state institutions Fundamental rights and principles such as rule of law, proportionality etc. Other constitutional provisions (such as?) The Supreme Court checks the conformity with all the constitutional provisions and therefore fundamental rights and principles as well. Limitation on resolution of cases (limits of the Court) are the following (§ 14 of the CRCPA): When resolving the case, the Supreme Court is not bound by the substantiation of the petition, court judgment or court order. When resolving a case initiated by a judgment or order, the Supreme Court may invalidate, or declare to be contrary to the Constitution, a legislative or regulatory act, an international agreement or a provision of such an agreement, or omission to adopt a legislative or regulatory act, which is relevant to the case. At the same time, the Supreme Court shall not deal with legal disputes which are to be dealt with under the provisions of court procedure applicable in administrative, civil, criminal or administrative offence cases. A case referred to the Supreme Court en banc by order of a Chamber of the Supreme Court or of the Special Panel under the relevant code of procedure shall be resolved by the Supreme Court en banc with respect to all issues that are relevant to the case, applying the code of procedure corresponding to the type of the case in conjunction with this Act. The proceedings before the court Brief account of the procedure according to which the cases are dealt with When a complaint of a petition has been filed, the Chairman of the Constitutional Chamber (Chief Justice) shall appoint the panel to adjudicate the matter at random, including the justice who shall report on the matter, ensure the hearing of the matter and the preparation of the decision. Additionally, a constitutional review law clerk is appointed to the case and he or she helps to prepare the case and a questionnaire . As a rule, the Supreme Court adjudicates appeals in written proceedings and organizes no oral sessions. An oral session is organized only if a participant in a proceeding has requested it or if the court deems it necessary. Legal deadlines for decision / Average duration(s) of handling a case (may be subdivided according to sort of cases) According to § 13 of the CRCPA the Supreme Court shall resolve cases within a reasonable time, which may not be longer than four months from receiving a petition filed in compliance with the requirements. Exception is made, if the Chancellor of Justice files a petition to annul a resolution of the Riigikogu concerning the submission of a legislative bill or other national issue to a referendum if that bill, with the exception of bills to amend the Constitution, or issue is contrary to the Constitution or if the Riigikogu materially violated the established rules of procedure when adopting the resolution – in that case a petition shall be resolved not later that within two months from receiving such petition. Petitions to declare an official permanently incapable of performing their duties, to terminate the mandate of a member of the Riigikogu or to grant consent to the President of Riigikogu acting as President of Republic are resolved without delay (immediately, § 29 of the CRCPA). Similarly, when receiving a petition which seeks to terminate the activities of a political party and which is submitted in compliance with the requirements, the Court resolves that petition without delay (§ 34 of the CRCPA). When the Court receives a complaint submitted in compliance with the requirements against an action of the body that organized an election or against a decision or action of an electoral committee, the Court resolves that complaint without delay but not later than within seven business days from receiving it. In the event of a joinder of complaints into a single set of proceedings, the case shall be resolved without delay but not later than within seven business days from the making of the order effecting the last joinder (§ 44 subsections 1 and 2 of the CRCPA). When receiving a protest submitted in compliance with the requirements against a decision of the electoral committee of a rural municipality or city, the Court resolves that protest without delay (§ 44 subsection 4 of the CRCPA). Unfortunately we do not have specific statistics about the durations of handling constitutional law cases. Deciding majority Decisions are made with a majority vote. Transparency of vote (who voted what?) and ( im )possibility of concurr i ng or dissenting opinion(s) Disagreements arising between the members of a panel hearing a case shall be settled by vote. Members of a panel do not have the right to abstain from voting or remain undecided. The justice who remained in the minority in the voting may present a reasoned dissenting or concurring opinion which shall be made public together with the decision. Votes are not made public, they are made under the confidentiality of deliberations. Publicity given to the fact that a norm is under scrutiny by the court and publicity given to the decision by the court Information about proceedings, which are pending before the Court, is available on our website (if you search pending cases). After a decision is made, it is published on our website. Usually, when there is a public interest in a case, the Court makes a press release and sometimes press conferences. As mentioned previously, as a rule the Court adjudicates cases in written proceedings, but in some cases, when a oral hearing has been held, there have been live broadcasts of the hearing (the latest was in a case , where the President of the Republic filed a petition to declare the law being the basis of the mandatory funded pension reform unconstitutional; the recording is available here ). Types of decisions the court can conclude to Annulment; rejection of the annulmen t interpretation; replacement by a norm in conformity with the constitution etc. + average percentages of each type of decision (especially the average success rate of litigation before the court) According to § 15 subsection 1 (4) of the CRCPA the Supreme Court may annul a resolution of the Riigikogu concerning submission of a legislative bill or a national issue to a referendum. When dealing with a complaint against a resolution of the Riigikogu , the Board of the Riigikogu or of the President of the Republic, the Supreme Court may annul the resolution of the Riigikogu , the Board of the Riigikogu or the President of the Republic or any part of that resolution or deny the complaint. The Supreme Court may declare the resolution of the Riigikogu or of the President of the Republic on release of the complainant from office unlawful without annulling it. In such a case, the Court may award fair monetary compensation to the complainant (§ 24 subsections 1 and 2 of the CRCPA). When dealing with c omplaints against the actions of bodies organizing elections or the decisions or actions of electoral committees , the Supreme Court may (§ 46 of the CRCPA) : annul the decision of the electoral committee, declare the action of the body that organized the election, or of the electoral committee, unlawful and require the electoral committee to make a new decision or undertake the action anew, or require the body that organized the election to undertake the action anew; deny the complaint or protest. Where the infringement of law at issue affected or may have affected voting results to a material extent, the Supreme Court may declare invalid the voting results recorded in a polling station, electoral district, rural municipality, city, county, the national territory, or in the election of the President of the Republic or of the Board of the Riigikogu , or declare invalid the results of electronic voting, in their entirety or in part. If the Supreme Court grants a complaint or protest filed against a decision on the registration of members and alternate members of the Riigikogu or of the European Parliament and on the distribution of supplementary mandates, or against a decision on the registration of members and alternate members of a local authority council and on the distribution of supplementary mandate, the Court shall invalidate the mandate at issue . Resolution of competence conflict Paragraph 11 subsection 2 of the CRCPA stipulates that a petition shall be returned to the body who submitted it without that petition having been considered if consideration of the petition does not fall within the jurisdiction of the Supreme Court. Additionally, § 20¹ subsection 2 and § 40 subsection 1 (2) of the CRCPA stipulate that a complaint (complaints against resolutions of the Riigikogu , the Board of the Riigikogu and the President of the Republic of Estonia; complaints and protests against actions of bodies organizing elections or decisions or actions of electoral committees) shall be returned to the complainant if consideration of the complaint does not fall within the jurisdiction of the Supreme Court. Other When dealing with the p etitions to declare an official permanently incapable of performing their duties, or to terminate the mandate of a member of the Riigikogu or to grant consent to the President of Riigikogu acting as President of Republic , the Supreme Court may (§ 31 of the CRCPA) : deny the petition; declare a member of the Riigikogu , the President of the Republic, the Chancellor of Justice or the Auditor General permanently incapable of performing their duties; terminate the mandate of a member of the Riigikogu ; grant consent to the President of the Riigikogu acting as the President of the Republic to declare extraordinary elections to the Riigikogu ; grant consent to the President of the Riigikogu acting as the President of the Republic to refuse to promulgate an Act of the Riigikogu . When dealing with a p etition to terminate the activities of a political party, the Supreme Court may decide to terminate the activities of the political party or deny the petition (§ 36 subsection 1 of the CRCPA) . In general and to conclude the beforementioned types of decisions: § 15 of the CRCPA stipulates the powers of the Supreme Court. The Supreme Court may: declare a legislative or regulatory act which has not yet entered into force to be contrary to the Constitution; d eclare a legislative or regulatory act which has entered into force, or a provision of such an act, to be contrary to the Constitution and invalidate that act or provision; declare the omission to issue a legislative or regulatory act to be contrary to the Constitution; declare an international agreement which has entered into force or which has not yet entered into force, or a provision of such an agreement, to be contrary to the Constitution; annul a resolution of the Riigikogu concerning submission of a legislative bill or a national issue to a referendum; declare that the contested legislative or regulatory act, the omission to adopt a such an act, or the contested international agreement was contrary to the Constitution at the time the corresponding petition was filed; give its opinion on the interpretation of the Constitution in conjunction with the law of the European Union; deny the petition. Relation with other Courts (CJEU; ECHR; other): Does the constitutional court refer to other courts (prejudicial questions)? Yes , the Court refers to the case law and also t he Court has made a request for a preliminary ruling to the European Court of Justice ( Case no C-795/19 ) . How does the constitutional court handle constitutional provisions with a similar content as provisions of international treaties (such as fundamental rights of ECHR or EU)? The E uropean Convention on Human Rights was the main example in drafting the fundamental rights chapter in the Constitution. The human rights case law of the European Court of Justice and the European Court of Human Rights serve as guidance for the interpretation and application of the national catalogue or as a source for judicial law-making . The practice Number of cases per year (possibly subdivided according to sort of decision) In constitutional review procedure, 12 matters were reviewed by the Supreme Court in 20 20 . On three occasions, the constitutional review matter was resolved by the Supreme Court en banc . Table 1 below shows the results of these constitutional review matters in more detail. In the matters reviewed by the Constitutional Review Chamber and the Supreme Court en banc , disputed provisions of legal acts were declared unconstitutional and invalid in three matters. Four requests were rejected and five petitions were rejected without review. Total % matters reviewed Legislative acts Order by the Government of the Republic Ministerial order O mission to adopt a legislative or regulatory act Constitutional review matters reviewed in 2020 12 100% 9 3 1 A pplicant President 1 8% 1 Chancellor of Justice 1 8% 1 Court 6 50% 4 2 Local government council 1 8% 1 1 Other 3 25% 2 1 Result Processing of request or recognition of the unconstitutionality of the provision 3 25% 2 1 Rejection of the request; denial of unconstitutionality of the provision 4 33% 3 1 1 Rejection of the request without review 5 42% 4 1 Postponement of the effective date of the Supreme Court’s judgment 1 8% 1 Table 1. Results of constitutional review matters in 20 20 In constitutional review procedure, 45 matters were reviewed by the Supreme Court in 2019. On two occasions, the constitutional review matter was resolved by the Supreme Court en banc . Table 2 below shows the results of these constitutional review matters in more detail. In the matters reviewed by the Constitutional Review Chamber and the Supreme Court en banc , disputed provisions of legal acts were declared unconstitutional and invalid in seven matters and one regulatory act not yet in force was declared unconstitutional. In one matter, an application to annul the decision of the National Electoral Committee was granted and the Committee was required to make a new decision on the matter. 28 requests were rejected and eight petitions were rejected without review. Table 2 . Results of constitutional review matters in 20 19 Main areas of activity/jurisprudence ( e.g. criminal law; privacy; etc.) It is difficult to differentiat e and unfortunately we do not provide such specific statistics, but one could suggest that there is more cases related to administrative law and criminal law and less to civil law. Position of constitutional court in media and public opinion The Supreme Court play s an important role in the justice system , to the public and media . Constitutional review matters are of great importance and therefore they are widely covered in media. Overall, the view to the court system according to the 2020 EU Justice Scoreboard, is the following: t he level of perceived judicial independence is average among the general public and low among companies. Among the general public , 57% perceive judicial independence to be fairly and very good, which is an increase compared to 2019, after a previous downward trend. Among companies perceived independence is low (only 39% consider it to be fairly and very good), and remains stable, after a previous downward trend.7 Another survey among businesses (World Economic Forum) where the level of perceived independence is above average among Member States, has in recent years shown a decrease in perception . Hanging issues concerning the constitutional court and future perspectives Currently there are no plans to change the constitutional review system at the Supreme Court. There have been discussions, whether this system is efficient enough and is there a way to make it more efficient. The workload of the Chamber is quite unpredictable, especially due to the electoral complaints that are reviewed in the Chamber (in some years, where there are several elections within one year, it could amount up to 60 complaints at the Chamber and they have to be reviewed within 7 days). The beforementioned means, that is difficult to provide sufficient amount of work to the highly qualified law clerks – some years it could be too much, some years too little. Additionally, working at Constitutional Review Chamber affects the workload of justices, if they administer justice in two chambers. A question of giving individual complaints at the jurisdiction of the Chamber has also been the topic of the discussion for quite some time. Sources where case law and legal comments are to be found / bibliography The selection of the case law of the Chamber is available here (in English). All the judgments of the Supreme Court are available in Estonian at our website www.riigikohus.ee – case law search is here . Our Legal Information and Judicial Training Department also publishes case law analyses and summaries/periodical overviews of the case law. The statistics are available here . All the Estonian legislation can be found here (State Gazette). Commentaries are available on-line for a fee, but the Commentary on the Constitution of the Republic of Estonia is fully available on-line (free , in Estonian ) here . Please contact Mrs. Karin Leichter-Tammisto ( [email protected] ), the Legal Adviser to the Chief Justice of the Supreme Court of Estonia, should you have any further questions on the matter. Prof. Dr. Danny Pieters 3 May 2021 Judge at the Constitutional Court of Belgium Chair of Comparative Law KU Leuven Please find the answers to your questionnaire on constitutional courts (history, composition, access etc.). 1. Brief history of the constitutional court On 21 October 1919 the Constituent Assembly passed the Supreme Court Act, which – in conjunction with the Constitution of 1920 – laid a strong legal foundation for the highest court at the top of the judicial system of the Estonian state. The Constituent Assembly elected the first members of the Supreme Court in October 1919. A member of the Constituent Assembly Kaarel Parts was elected the Chief Justice of the court, the Supreme Court of that time comprised 11 members. The Constituent Assembly declared Tartu (the capital of Estonia is Tallinn) as the seat of the Supreme Court with the hope of guaranteeing greater independence form the other branches of the state power, better contact with the legal scholars of the University of Tartu, better possibilities of making use of the University library and greater accessibility for the population. The first public session of the Supreme Court took place on 14 January 1920. Pursuant to law the Supreme Court was first and foremost a court of cassation. There were three departments in the court, the highest body was the court en banc. Cassation proceedings were allowed in all civil and criminal matters, restrictions were minimum. The Civil Department of the Supreme Court heard appeals in cassation against the judgments of National Court of Appeal (Kohtupalat) and appeals against judgments of Justice of the Peace Courts (rahukogud) as the courts of second instance. The Criminal Department was competent to hear appeals and protests in cassation against the judgments of National Court of Appeal and Justice of the Peace Courts in criminal matters. The department was also the highest military court. The Administrative Department of the Supreme Court was the highest administrative court. The Supreme Court was the first and the last court instance which reviewed complaints against the decisions, orders and failures to act of ministries and other higher administrative agencies. It was also possible to submit appeals for revision of and protests against the judgments of Justice of the Peace Courts and justices of the peace in administrative matters. The 1939 Amendment of the Constitution Act and the Constitution of 1938 placed the appointment to and release from office of judges within the competence of the Head of State. By the decree of the Prime Minister of 1934 the Supreme Court was transferred from Tartu to 1 Tallinn. In 1940 the Soviet Union annexed the Republic of Estonia and this resulted in the liquidation of the Supreme Court. On 29 December 1940 a directive on the termination of the activities of the Supreme Court was issued. Two days later the Supreme Court held its last session. The foundations for the restoration of the activities of the Supreme Court were laid by the Constitution of the Republic of Estonia, adopted by a referendum on 28 June 1992. The Constitution vested with the Supreme Court the functions of a court of cassation and of a court of constitutional review. Tartu became the seat of the Supreme Court once again. The first public session of the newly re-established Supreme Court took place on 27 May 1993, in the assembly hall of Tartu Town Hall. The session was chaired by the first Chief Justice Rait Maruste. From 1998 to 2004 the Estonian Chief Justice was Uno Lõhmus, he was followed by Märt Rask from 2004 to 2013 and Priit Pikamäe from 2013 to 2019. Since 2019 the Chief Justice of the Supreme Court of Estonia is Villu Kõve. 2. Composition a. Judges and the way they are appointed The Supreme Court of Estonia is comprised of 19 justices, who administer justice in one of three Chambers: the Civil Chamber, the Criminal Chamber or the Administrative Law Chamber. The Supreme Court also contains the Constitutional Review Chamber. Paragraph 150 of the Constitution of the Republic of Estonia (hereinafter the ‘Constitution’) stipulates that justices of the Supreme Court shall be appointed to office by the Riigikogu (the Estonian Parliament), on the proposal of the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court shall announce a public competition for a vacant position of justice of the Supreme Court. According to § 55 subsection 4 of the Courts Act, before the Chief Justice of the Supreme Court makes a proposal to the Riigikogu for appointment of a justice he shall consider the opinion of the Supreme Court en banc and the Council for Administration of Courts concerning a candidate. The Riigikogu appoints a justice for an indefinite term. According to § 47 of the Courts Act, the justice of the Supreme Court has to be a citizen of the Republic of Estonia who has obtained a master’s level degree in law and is an experienced and recognised lawyer, is proficient in the Estonian language, is of high moral character and has the abilities and characteristics necessary for a justice. Unlike the first and second instance judges, an aspiring justice does not have to pass the judge’s examination: according to § 52 of the Courts Act, a person who is an experienced and recognised lawyer may be appointed as a justice of the Supreme Court (Supreme Court justice). 2(14)  b. Panels of judges deciding the cases Introduction The ex officio Chairman of the Constitutional Review Chamber is the Chief Justice of the Supreme Court (§ 29 subsection 2 of the Courts Act). In addition to the Chief Justice of the Supreme Court there are eight justices of the Supreme Court in the Constitutional Review Chamber (§ 29 subsection 1 of the Courts Act). Each year, on the proposal by the Chief Justice, the Supreme Court en banc (all the 19 justices) appoints from among the justices of the Supreme Court two new members of the Constitutional Review Chamber and releases two most senior members from the duties of member of the Chamber. In this process, the Supreme Court en banc takes into account the opinions of the Administrative Law, the Criminal and the Civil Chambers and tries to ensure that they are represented in the Constitutional Review Chamber as equally as possible (according to the Internal Rules of the Supreme Court)1. Panels According to § 3 of the Constitutional Review Court Procedure Act (hereinafter the CRCPA) the consideration of constitutional cases at the Supreme Court is done as follows:  The Chamber shall consider cases as a panel of five members.  A complaint or protest against the actions of a body that organizes an election or the actions or decision of an electoral committee shall be considered by the Chamber sitting as a panel of at least three members. If, in relation to considering the aforementioned complaint or protest, the Supreme Court additionally scrutinizes the constitutionality of a legislative or regulatory act or of an omission to adopt such an act, the case shall be considered by a panel of five members.  Petitions for an opinion on the interpretation of the Constitution in conjunction with the law of the European Union shall be considered by the Chamber sitting as a panel of five to nine members.  The Supreme Court en banc shall adjudicate any case referred to it by the Constitutional Review Chamber if that Chamber deems it necessary for the case to be adjudicated by the Court in that composition. The Court shall adjudicate any case referred to it by the Administrative Chamber, the Civil Chamber or the Criminal Chamber, or by the Special Panel, if that Chamber or the Special Panel has reason to believe that a legislative or regulatory act or omission to adopt such an act, or an international agreement which is relevant to the adjudication of the case, are contrary to the Constitution.  Petitions to declare a member of the Riigikogu, the President of the Republic, the Chancellor of Justice or the Auditor General permanently incapable of performing his or her duties, to terminate the mandate of a member of the Riigikogu or to terminate the activities of a political party shall be dealt with exclusively by the Supreme Court en banc.  The Supreme Court en banc shall consider cases by a panel of at least eleven members. 1 Interntal Rules of the Supreme Court of Estonia, available in Estonian: https://www.riigikohus.ee/sites/default/files/elfinder/dokumendid/kodukord/Riigikohtu%20kodukorra%20uus%2 0redaktsioon_15.12.2020.pdf (30.04.2021). 3(14)  c. Staff supporting the work of the constitutional judges (number and level of qualification) There are four law clerks at the Constitutional Review Chamber (hereinafter the ‘Chamber’), although currently one of them is temporarily working at the European Court of Justice. According to § 33 of the Courts Act, a law clerk is an official of the Supreme Court who generalises judicial practice and participates in the preparation of cases for proceeding. A person who complies with the educational requirements set for judges may be appointed as law clerk. 3. Access to the court a. How? In accordance with § 4 subsection 1 of the CRCPA the Supreme Court shall verify the constitutionality of a legislative or regulatory act or of an omission to issue such an act, or of an international agreement on the basis of a substantiated petition, court judgment or court order. i. Direct access by state institutions According to § 4 subsection 2 of the CRCPA a petition may be filed with the Supreme Court by the President of the Republic, the Chancellor of Justice, the council of a local authority or the Riigikogu. ii. Direct access by private persons and entities As stated in the judgment of the Constitutional Review Chamber of the Supreme Court of 5 February in case no 3-4-1-1-08, §§ 4–5: “Under the CRCPA, the possibilities of submitting individual complaints to the Supreme Court are limited. Thus, a person whose rights are violated by a resolution of the Riigikogu, the Board of the Riigikogu or the President of the Republic, may contest the resolution in the Supreme Court (§§ 16 to 18 of the CRCPA). A complaint against a resolution or a measure of an electoral committee may be submitted by a political party, election coalition or an individual (§ 37 of the CRCPA). The CRCPA does not expressis verbis provide for a possibility to submit individual complaints for the review of constitutionality of legislation of general application. On the basis of §§ 13, 14 and 15 of the Constitution, and the application practice of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the general assembly of the Supreme Court has held that the Supreme Court can only refuse to hear a person’s complaint if the person can avail itself of some other effective remedy for the exercise of the judicial protection guaranteed by § 15 of the Constitution. The right to judicial protection, established in §§ 13 to 15 of the Constitution, embraces the right of a person to submit an action with a court if his or her rights and freedoms are violated, as well as the obligation of the state to establish for the protection of fundamental rights proper judicial procedures, which are fair 4(14) and ensure effective protection of persons’. On the basis of the aforesaid the Supreme Court can refuse to hear a petition if the person can avail himself of some other effective remedy to ensure the judicial protection guaranteed by § 15 of the Constitution.” In practice there has been one individual complaint, that has been reviewed, case no 3-1-3-10-02. iii. Prejudicial questions/referral by other court deciding a case According to § 4 subsection 2 of the CRCPA the courts shall initiate the proceedings by transmitting the relevant judgment or order to the Supreme Court. iv. Other b. When? Moment of intervention (before statute is enacted, within a period of X days etc.) The President of the Republic may file a petition with the Supreme Court to declare the Act to be contrary to the Constitution if, for the second time and without any amendment, the Riigikogu passes an Act which the President of the Republic has refused to promulgate and returned to the Riigikogu for a new debate and decision (§ 5 of the CRCPA). According to § 6 of the CRCPA the Chancellor of Justice may file with the Supreme Court a petition:  to invalidate a legislative or regulatory act or certain provisions of such an act which has entered into force and which has been adopted by the legislative or executive branch of government or by a body of a local authority;  to declare an Act which has been promulgated but which has not yet entered into force to be contrary to the Constitution;  to declare a regulatory act which has been adopted by the legislative branch of government or by a body of a local authority and which has not entered into force to be contrary to the Constitution;  to declare an international agreement which has been signed or a provision of such an agreement to be contrary to the Constitution;  to annul a resolution of the Riigikogu concerning the submission of a legislative bill or other national issue to a referendum if that bill, with the exception of bills to amend the Constitution, or issue is contrary to the Constitution or if the Riigikogu materially violated the established rules of procedure when adopting the resolution. In this case the Chancellor of Justice shall file the petition within 14 days. The council of a local authority may file with the Supreme Court a petition to declare an Act which has been promulgated but which has not yet entered into force, or a regulation of the Government of the Republic or of a minister, which has not yet entered into force, to be contrary to the Constitution, or a petition to invalidate an Act which has entered into force, a regulation of the Government of the Republic or a minister or a provision of such an Act or such a 5(14) regulation, if it is contrary to the constitutional guarantees of local government (§ 7 of the CRCPA). The Riigikogu may file a petition with the Supreme Court for an opinion on interpreting the Constitution in conjunction with the law of the European Union if the interpretation of the Constitution is of decisive importance for the passing of a legislative bill which is necessary for fulfilling Estonia’s obligations as a Member State of the European Union (§ 7¹ of the CRCPA). Moreover, specific deadlines have been provided in the following cases: A complaint against a resolution of the Riigikogu, the Board of the Riigikogu or of the President of the Republic may be filed with the Supreme Court within 10 days following the entry into force of that resolution (§ 19 of the CRCPA). A complaint against an action of the elections manager or the decision or action of the electoral committee may be filed with the Supreme Court after the matter has been dealt with by the National Electoral Committee. The complaint shall be filed with the Supreme Court through the National Electoral Committee within three days following communication of the decision or performance of the action by that Committee. The National Electoral Committee shall forward the complaint to the Supreme Court together with its written explanations not later than on the following business day (§ 38 of the CRCPA). The Chancellor of Justice shall file the petition provided for in clause 5 of subsection 1 of this section within 14 days from receiving the corresponding resolution of the Riigikogu. 4. Competences a. Control of constitutionality of which instruments (statutes; bills and proposals; lower legislation; etc.) The Constitutional Review Chamber of the Supreme Court performs both ex ante and ex post control of constitutionality. According to § 2 of the CRCPA the jurisdiction of the Supreme Court is the following and the Supreme Court shall:  deal with petitions to verify the constitutionality of a legislative or regulatory act, or of omission to adopt such an act;  deal with petitions to verify the conformity of international agreements with the Constitution;  deal with petitions for an opinion on the interpretation of the Constitution in conjunction with the law of the European Union;  deal with petitions and complaints concerning a resolution of the Riigikogu;  deal with complaints against resolutions of the Board of the Riigikogu;  deal with complaints against resolutions of the President of the Republic;  deal with petitions to declare a member of the Riigikogu, the President of the Republic, the Chancellor of Justice or the Auditor General permanently incapable of performing their duties; 6(14)   deal with petitions to terminate the mandate of a member of the Riigikogu;  decide on the grant of consent, to the President of the Riigikogu acting as the President of the Republic, to declare extraordinary elections of the Riigikogu or to refuse to promulgate an Act of the Riigikogu;  deal with petitions to terminate the activities of a political party;  deal with complaints and protests concerning the actions of a body that organizes an election or concerning the decisions or actions of an electoral committee. b. The conformity with which norms are being checked? i. All constitutional provisions ii. Constitutional provisions relating to 1. Competences of various state institutions 2. Fundamental rights and principles such as rule of law, proportionality etc. 3. Other constitutional provisions (such as?) The Supreme Court checks the conformity with all the constitutional provisions and therefore fundamental rights and principles as well. Limitation on resolution of cases (limits of the Court) are the following (§ 14 of the CRCPA):  When resolving the case, the Supreme Court is not bound by the substantiation of the petition, court judgment or court order.  When resolving a case initiated by a judgment or order, the Supreme Court may invalidate, or declare to be contrary to the Constitution, a legislative or regulatory act, an international agreement or a provision of such an agreement, or omission to adopt a legislative or regulatory act, which is relevant to the case. At the same time, the Supreme Court shall not deal with legal disputes which are to be dealt with under the provisions of court procedure applicable in administrative, civil, criminal or administrative offence cases.  A case referred to the Supreme Court en banc by order of a Chamber of the Supreme Court or of the Special Panel under the relevant code of procedure shall be resolved by the Supreme Court en banc with respect to all issues that are relevant to the case, applying the code of procedure corresponding to the type of the case in conjunction with this Act. 5. The proceedings before the court a. Brief account of the procedure according to which the cases are dealt with When a complaint of a petition has been filed, the Chairman of the Constitutional Chamber (Chief Justice) shall appoint the panel to adjudicate the matter at random, including the justice who shall report on the matter, ensure the hearing of the matter and the preparation of the decision. Additionally, a constitutional review law clerk is appointed to the case and he or she helps to prepare the case and a questionnaire. As a rule, the Supreme Court adjudicates appeals in written proceedings and organizes no oral sessions. An oral session is organized only if a participant in a proceeding has requested it or if the court deems it necessary. 7(14)  b. Legal deadlines for decision / Average duration(s) of handling a case (may be subdivided according to sort of cases) According to § 13 of the CRCPA the Supreme Court shall resolve cases within a reasonable time, which may not be longer than four months from receiving a petition filed in compliance with the requirements. Exception is made, if the Chancellor of Justice files a petition to annul a resolution of the Riigikogu concerning the submission of a legislative bill or other national issue to a referendum if that bill, with the exception of bills to amend the Constitution, or issue is contrary to the Constitution or if the Riigikogu materially violated the established rules of procedure when adopting the resolution – in that case a petition shall be resolved not later that within two months from receiving such petition. Petitions to declare an official permanently incapable of performing their duties, to terminate the mandate of a member of the Riigikogu or to grant consent to the President of Riigikogu acting as President of Republic are resolved without delay (immediately, § 29 of the CRCPA). Similarly, when receiving a petition which seeks to terminate the activities of a political party and which is submitted in compliance with the requirements, the Court resolves that petition without delay (§ 34 of the CRCPA). When the Court receives a complaint submitted in compliance with the requirements against an action of the body that organized an election or against a decision or action of an electoral committee, the Court resolves that complaint without delay but not later than within seven business days from receiving it. In the event of a joinder of complaints into a single set of proceedings, the case shall be resolved without delay but not later than within seven business days from the making of the order effecting the last joinder (§ 44 subsections 1 and 2 of the CRCPA). When receiving a protest submitted in compliance with the requirements against a decision of the electoral committee of a rural municipality or city, the Court resolves that protest without delay (§ 44 subsection 4 of the CRCPA). Unfortunately we do not have specific statistics about the durations of handling constitutional law cases. c. Deciding majority Decisions are made with a majority vote. d. Transparency of vote (who voted what?) and (im)possibility of concurring or dissenting opinion(s) Disagreements arising between the members of a panel hearing a case shall be settled by vote. Members of a panel do not have the right to abstain from voting or remain undecided. The justice who remained in the minority in the voting may present a reasoned dissenting or 8(14) concurring opinion which shall be made public together with the decision. Votes are not made public, they are made under the confidentiality of deliberations. e. Publicity given to the fact that a norm is under scrutiny by the court and publicity given to the decision by the court Information about proceedings, which are pending before the Court, is available on our website (if you search pending cases). After a decision is made, it is published on our website. Usually, when there is a public interest in a case, the Court makes a press release and sometimes press conferences. As mentioned previously, as a rule the Court adjudicates cases in written proceedings, but in some cases, when a oral hearing has been held, there have been live broadcasts of the hearing (the latest was in a case, where the President of the Republic filed a petition to declare the law being the basis of the mandatory funded pension reform unconstitutional; the recording is available here). 6. Types of decisions the court can conclude to a. Annulment; rejection of the annulment interpretation; replacement by a norm in conformity with the constitution etc. + average percentages of each type of decision (especially the average success rate of litigation before the court) According to § 15 subsection 1 (4) of the CRCPA the Supreme Court may annul a resolution of the Riigikogu concerning submission of a legislative bill or a national issue to a referendum. When dealing with a complaint against a resolution of the Riigikogu, the Board of the Riigikogu or of the President of the Republic, the Supreme Court may annul the resolution of the Riigikogu, the Board of the Riigikogu or the President of the Republic or any part of that resolution or deny the complaint. The Supreme Court may declare the resolution of the Riigikogu or of the President of the Republic on release of the complainant from office unlawful without annulling it. In such a case, the Court may award fair monetary compensation to the complainant (§ 24 subsections 1 and 2 of the CRCPA). When dealing with complaints against the actions of bodies organizing elections or the decisions or actions of electoral committees, the Supreme Court may (§ 46 of the CRCPA):  annul the decision of the electoral committee, declare the action of the body that organized the election, or of the electoral committee, unlawful and require the electoral committee to make a new decision or undertake the action anew, or require the body that organized the election to undertake the action anew;  deny the complaint or protest.  Where the infringement of law at issue affected or may have affected voting results to a material extent, the Supreme Court may declare invalid the voting results recorded in a polling station, electoral district, rural municipality, city, county, the national territory, or in the election of the President of the Republic or of the Board of the Riigikogu, or declare invalid the results of electronic voting, in their entirety or in part.  If the Supreme Court grants a complaint or protest filed against a decision on the 9(14)  registration of members and alternate members of the Riigikogu or of the European Parliament and on the distribution of supplementary mandates, or against a decision on the registration of members and alternate members of a local authority council and on the distribution of supplementary mandate, the Court shall invalidate the mandate at issue. b. Resolution of competence conflict Paragraph 11 subsection 2 of the CRCPA stipulates that a petition shall be returned to the body who submitted it without that petition having been considered if consideration of the petition does not fall within the jurisdiction of the Supreme Court. Additionally, § 20¹ subsection 2 and § 40 subsection 1 (2) of the CRCPA stipulate that a complaint (complaints against resolutions of the Riigikogu, the Board of the Riigikogu and the President of the Republic of Estonia; complaints and protests against actions of bodies organizing elections or decisions or actions of electoral committees) shall be returned to the complainant if consideration of the complaint does not fall within the jurisdiction of the Supreme Court. c. Other When dealing with the petitions to declare an official permanently incapable of performing their duties, or to terminate the mandate of a member of the Riigikogu or to grant consent to the President of Riigikogu acting as President of Republic, the Supreme Court may (§ 31 of the CRCPA):  deny the petition;  declare a member of the Riigikogu, the President of the Republic, the Chancellor of Justice or the Auditor General permanently incapable of performing their duties;  terminate the mandate of a member of the Riigikogu;  grant consent to the President of the Riigikogu acting as the President of the Republic to declare extraordinary elections to the Riigikogu;  grant consent to the President of the Riigikogu acting as the President of the Republic to refuse to promulgate an Act of the Riigikogu. When dealing with a petition to terminate the activities of a political party, the Supreme Court may decide to terminate the activities of the political party or deny the petition (§ 36 subsection 1 of the CRCPA). In general and to conclude the beforementioned types of decisions: § 15 of the CRCPA stipulates the powers of the Supreme Court. The Supreme Court may:  declare a legislative or regulatory act which has not yet entered into force to be contrary to the Constitution;  declare a legislative or regulatory act which has entered into force, or a provision of such an act, to be contrary to the Constitution and invalidate that act or provision;  declare the omission to issue a legislative or regulatory act to be contrary to the Constitution;  declare an international agreement which has entered into force or which has not yet 10(14)  entered into force, or a provision of such an agreement, to be contrary to the Constitution;  annul a resolution of the Riigikogu concerning submission of a legislative bill or a national issue to a referendum;  declare that the contested legislative or regulatory act, the omission to adopt a such an act, or the contested international agreement was contrary to the Constitution at the time the corresponding petition was filed;  give its opinion on the interpretation of the Constitution in conjunction with the law of the European Union;  deny the petition. 7. Relation with other Courts (CJEU; ECHR; other): a. Does the constitutional court refer to other courts (prejudicial questions)? Yes, the Court refers to the case law and also the Court has made a request for a preliminary ruling to the European Court of Justice (Case no C-795/19). b. How does the constitutional court handle constitutional provisions with a similar content as provisions of international treaties (such as fundamental rights of ECHR or EU)? The European Convention on Human Rights was the main example in drafting the fundamental rights chapter in the Constitution. The human rights case law of the European Court of Justice and the European Court of Human Rights serve as guidance for the interpretation and application of the national catalogue or as a source for judicial law-making. 8. The practice a. Number of cases per year (possibly subdivided according to sort of decision) In constitutional review procedure, 12 matters were reviewed by the Supreme Court in 2020. On three occasions, the constitutional review matter was resolved by the Supreme Court en banc. Table 1 below shows the results of these constitutional review matters in more detail. In the matters reviewed by the Constitutional Review Chamber and the Supreme Court en banc, disputed provisions of legal acts were declared unconstitutional and invalid in three matters. Four requests were rejected and five petitions were rejected without review. Omission to adopt a Government of the Ministerial order Legislative acts regulatory act Order by the legislative or % matters reviewed Republic Total Constitutional review matters reviewed in 2020 12 100% 9 3 1 Applic President 1 8% 1 ant Chancellor of Justice 1 8% 1 11(14)  Court 6 50% 4 2 Local government council 1 8% 1 1 Other 3 25% 2 1 Processing of request or recognition of the 3 25% 2 1 unconstitutionality of the provision Rejection of the request; denial of unconstitutionality of the 4 33% 3 1 1 Result provision 5 42% 4 1 Rejection of the request without review Postponement of the effective date of the Supreme Court’s 1 8% 1 judgment Table 1. Results of constitutional review matters in 2020 In constitutional review procedure, 45 matters were reviewed by the Supreme Court in 2019. On two occasions, the constitutional review matter was resolved by the Supreme Court en banc. Table 2 below shows the results of these constitutional review matters in more detail. In the matters reviewed by the Constitutional Review Chamber and the Supreme Court en banc, disputed provisions of legal acts were declared unconstitutional and invalid in seven matters and one regulatory act not yet in force was declared unconstitutional. In one matter, an application to annul the decision of the National Electoral Committee was granted and the Committee was required to make a new decision on the matter. 28 requests were rejected and eight petitions were rejected without review. Table 2. Results of constitutional review matters in 2019 12(14)  b. Main areas of activity/jurisprudence (e.g. criminal law; privacy; etc.) It is difficult to differentiate and unfortunately we do not provide such specific statistics, but one could suggest that there is more cases related to administrative law and criminal law and less to civil law. c. Position of constitutional court in media and public opinion The Supreme Court plays an important role in the justice system, to the public and media. Constitutional review matters are of great importance and therefore they are widely covered in media. Overall, the view to the court system according to the 2020 EU Justice Scoreboard, is the following: the level of perceived judicial independence is average among the general public and low among companies. Among the general public, 57% perceive judicial independence to be fairly and very good, which is an increase compared to 2019, after a previous downward trend. Among companies perceived independence is low (only 39% consider it to be fairly and very good), and remains stable, after a previous downward trend.7 Another survey among businesses (World Economic Forum) where the level of perceived independence is above average among Member States, has in recent years shown a decrease in perception. 9. Hanging issues concerning the constitutional court and future perspectives Currently there are no plans to change the constitutional review system at the Supreme Court. There have been discussions, whether this system is efficient enough and is there a way to make it more efficient. The workload of the Chamber is quite unpredictable, especially due to the electoral complaints that are reviewed in the Chamber (in some years, where there are several elections within one year, it could amount up to 60 complaints at the Chamber and they have to be reviewed within 7 days). The beforementioned means, that is difficult to provide sufficient amount of work to the highly qualified law clerks – some years it could be too much, some years too little. Additionally, working at Constitutional Review Chamber affects the workload of justices, if they administer justice in two chambers. A question of giving individual complaints at the jurisdiction of the Chamber has also been the topic of the discussion for quite some time. 10. Sources where case law and legal comments are to be found / bibliography The selection of the case law of the Chamber is available here (in English). All the judgments of the Supreme Court are available in Estonian at our website www.riigikohus.ee – case law search is here. Our Legal Information and Judicial Training Department also publishes case law analyses and summaries/periodical overviews of the case law. The statistics are available here. All the Estonian legislation can be found here (State Gazette). Commentaries are available on- line for a fee, but the Commentary on the Constitution of the Republic of Estonia is fully available on-line (free, in Estonian) here. 13(14) Please contact Mrs. Karin Leichter-Tammisto ([email protected]), the Legal Adviser to the Chief Justice of the Supreme Court of Estonia, should you have any further questions on the matter. 14(14)