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Saatja: Ulrika Paavle </O=RIIGIKOHUS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=ULRIKA EESMAAF8A> Saaja: Kadri Nõmm Teema: FW: Venice Commission - study on individual access (Estonia) From: Ulrika Paavle Sent: Friday, October 23, 2015 3:52 PM To: 'GERWIEN Tanja' Subject: RE: Venice Commission - study on individual access (Estonia) Dear Tanja, I have reviewed the document. There have been no systematic changes in our system since 2010 but nevertheless I would suggest some corrections. 1) About preliminary ruling procedures. As the systems are quite different and translated terms may have slightly different meanings I am not sure I understand the context correctly. Firstly, there have been no changes in Estonia since 2010 on this matter. Nevertheless I have the impression, the text is not quite correct. On page 37, under Preliminary ruling procedures it says: „126. [---] Whereas in Albania, Estonia[1], Hungary, Lithuania and “The former Yugoslav Republic of Macedonia”, the constitutional court must retransmit the request to the ordinary court in order to give the latter an opportunity to reformulate its question[2].“ In those cases, when an ordinary court would like to have a preliminary decision (like the procedure in the European Court), the request is considered inadmissible as the case is not “adjudicated” yet and therefore, it does not meet the requirements of § 9 (1) Constitutional Review Procedure Act (“If a court of first instance or a court of appeal has not applied, upon adjudication of a case, any relevant legislative act or international agreement and declared it to be in conflict with the Constitution or if a court of first instance or a court of appeal has declared, upon adjudication of a case, the refusal to issue a legislative act to be in conflict with the Constitution, it shall forward the respective judgment or court ruling to the Supreme Court.”). The ordinary court does not get an opportunity to reformulate its questions. However, when it has adjudicated the case, it may make a new request with the same matter, arisen from the same case. In the „Table 1 summarising the types of Access“, it is correct with the footnote there. Page 76 „Table: Preliminary ruling procedures“: correct would be § “11” (not 63). But in my opinion, it would not be correct to quote this article in this context at all. 2) About ex tunc or ex tunc effect of the decisions. On page 53, it says: „190. Ex nunc effect has been introduced in Albania, Algeria, Armenia, Austria, Belarus, Brazil, Chile, Croatia, the Czech Republic[3], France, Estonia, Georgia, Hungary, South Korea, Latvia, Liechtenstein, Lithuania, Luxembourg Moldova, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia[4], “The former Yugoslav Republic of Macedonia”, Mexico, Ukraine.“ Estonian law does not regulate it explicitly but according to the practice it would not be correct – usually, the decisions have ex tunc effect but the court may decide differently and apply it ex nunc. On the page 56, contradictory to the previous, and correctly, it says: „205. Decisions concerning the unconstitutionality of a normative act can have different temporary effects, either ex nunc, when the invalidity takes place from the moment in which the decision is issued, or ex tunc, in which the act is declared void from the very moment of its adoption, which has important consequences for individual cases. Only relatively few countries have introduced ex tunc effect to constitutional court’s decisions (e.g., Armenia, Andorra, Belgium, Estonia, Hungary, Latvia, Italy, Poland, Portugal, or Slovenia Switzerland, South Africa, Spain, “the former Yugoslav Republic of Macedonia”) and have attenuated effects.“ 3) I am not sure I should make a comment here as it is a suggestion. On page 59 it says: „216. In Bulgaria, the Czech Republic, Germany, Hungary, Italy[5], Luxembourg, Malta, Russia, Slovakia, Slovenia or Turkey, ordinary judges can refer a preliminary question to the constitutional court only if they are convinced of a normative act’s unconstitutionality and of the inexistence of an interpretation that would permit a constitutional application of the law. This is particularly the case when parties to proceedings raise an exception of unconstitutionality. However, the Venice Commission notes that, when there is no direct individual access to constitutional courts, it would be too high a threshold condition to limit preliminary questions to circumstances where an ordinary judge is convinced of the unconstitutionality of a provision; serious doubt should suffice[6]. Concerning Estonia, according to Article 9 paragraph 1 of the Constitutional Review Court Procedure Act, “If the court of first instance or the court of appeal has not applied, upon adjudication of a matter, any relevant legislation of general application or international agreement declaring it to be in conflict with the Constitution or if the court of first instance or the court of appeal has declared, upon adjudication of a matter, the refusal to issue an instrument of legislation of general application to be in conflict with the Constitution it shall forward the corresponding judgment or ruling to the Supreme Court”.“ I would like to point out that according to the case law, the standard of reasoning of request of ordinary court is not high in Estonia. Ordinary court has just to indicate the norm applicable in this case and claim it to be unconstitutional, it suffice to give the reasoning in a few sentences. “Serious doubt” would not be compatible with Estonian system as ordinary court may make a request only by adjudicating the case. 4) There has been an insignificant change in Chancellor of Justice Act. On page 123 “Table: Indirect access: Ombudsperson” the full quotation of new § 15 (1) of Chancellor of Justice Act would be: “Everyone has the right of recourse to the Chancellor of Justice to review the conformity of an Act or other legislation of general application with the Constitution or the law. A petitioner shall state in his or her petition the reasons why he or she considers the legislation to be in conflict with the Constitution or any Act.” 5) On page 152 “Table: Direct individual access: Constitutional and legal bases” I would add § 15 (1) second sentence of the Constitution: “Everyone is entitled to petition the court that hears his or her case to declare unconstitutional any law, other legislative instrument, administrative decision or measure which is relevant in the case.” Please let me know, if you have any questions. Have a nice weekend! Ulrika From: GERWIEN Tanja [mailto:[email protected]] Sent: Wednesday, September 16, 2015 5:05 PM To: Ulrika Eesmaa Subject: Venice Commission - study on individual access (Estonia) Importance: High Dear Ulrika, I hope that this email finds you well? I have an unusual, but important request to make. The Venice Commission is currently reviewing its Study on Individual Access to Constitutional Justice (CDL-AD(2010)039rev) that was adopted in 2010. A number of countries have introduced changes in their procedures since its adoption and we therefore felt it was important that these changes be taken into account in order for this Study to remain relevant. Towards that end, I would be very grateful if you could have a look at the information regarding Estonia in the amended Study (attached) and check whether it is still accurate (all changes made are in “Track Changes”). We have tried to update the Study with the information that is available to us, however, we have often encountered problems with laws for which there is no English nor French translation. If you have the time and the inclination, I would be very grateful to receive your alterations (if there are any) by Monday, 26 October 2015. I hope that you will be able to assist us! Kind regards, Tanja Tanja Gerwien Legal officer / Juriste Constitutional Justice Division / Division de la Justice Constitutionnelle Venice Commission / Commission de Venise Council of Europe / Conseil de l'Europe F- 67075 Strasbourg Tel. +33 388 41 28 73 Fax +33 388 41 37 38 E-mail: [email protected] www.venice.coe.int <http://www.venice.coe.int/> www.codices.coe.int <http://www.codices.coe.int/> ________________________________ ________________________________ [1] In Estonia. There is no clear cut “preliminary ruling system” as such. The ordinary courts are not allowed to submit a preliminary request before the Constitutional Review Chamber of the Supreme Court (ruling of the <Const. Rev. Chamber of the Supreme Court of 1 April 2004, No. 3-4-1-2-04, www.nc.ee/?id=407<http://www.nc.ee/?id=407 <http://www.nc.ee/?id=407%3chttp://www.nc.ee/?id=407> >), but they have to decide on the constitutionality themselves, referring to the case-law of the Supreme Court on constitutional matters. [2] See General Report, XIIth Congress of the Conference of European Constitutional Courts, (A. Alen, M. Melchior), Brussels, 2002, p.7, in: http://www.confcoconsteu.org/en/common/home.html, accessed 23 February 2009 [3] In the case of the Czech Republic, the CC has never established ex tunc effects, but the legal cinstitutional scholars do not exclude that the law can permit this possibility, see Wagnerov?, E., Dost?l, M., Lang?ðek, T., Posp?ðil, I.: Z?kon o ?stavn?m soudu s koment??em [The Act on the Constitutional Court with Commentary], ASPI, Praha 2007, p. 206 [4] When the Constitutional Court abrogates either an unconstitutional law or an unconstitutional or illegal regulation or general act issued as exercise of public authority..Abrogation has ex nunc effect. Arts. 43 and 45(3) of the Constitutional Court Act. [5] See L. Garlicki, op. cit., and W. Sadurski, op.cit. [6] CDL-INF(2001)28 <http://www.venice.coe.int/docs/2001/CDL-INF(2001)028-e.asp> Interim Opinion on the Draft Law on the Constitutional Court of the Republic of Azerbaijan