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Strasbourg, 14 June 2002
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CDL-JU (2002) 32
English only
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EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE
COMMISSION)
Constitutional review in
Estonia: Procedural Questions and their Practical Implications
Report
by Mr Peeter Roosma
Adviser
to the Constitutional Review Chamber of the Supreme Court of Estonia
Seminar on “Constitutional Control:
Basic Problems of Legal
Proceedings, Organisation and Practice”
(Batumi,
3-4 June 2002)
Introduction
Estonian system of
constitutional review is based on the 1992 Constitution and the Constitutional
Review Court Procedure Act of 1993. Discussions about possible amendments to
the Constitutional Review Court Procedure Act or about the need to pass a new, more
detailed act incorporating the experience acquired in the practice and curing
some deficiencies started already four or five years after its enactment.
Several models or unofficial drafts were elaborated, and an international
seminar was organised in co-operation with the Venice Commission in 1998 in
Tartu. The new Constitutional Review Court Procedure Act was finally passed by
the Estonian Parliament in March this year, and it will become effective from
the 1 July 2002.
Main
features of the system of constitutional review
What are the main
characteristic features of the Estonian system of constitutional review, and
which amendments does the new law bring about?
The Estonian system of
constitutional review is sometimes described as a mixture of the European and
American models of constitutional control. According to the Constitution the
Supreme Court of Estonia is also the court of constitutional review. There is
no separate constitutional court. However, similarly to the European model, the
Supreme Court exercises also abstract review, including preliminary (ex ante)
review and there is separate constitutional review court procedure distinct
from ordinary (civil, criminal, and administrative) court procedures. There is
a Constitutional Review Chamber within the Supreme Court, although the Supreme
Court in plenary may also review constitutional cases.
Subjects
entitled to initiate the proceedings
According to the old
Constitutional Review Court Procedure Act the subjects entitled to initiate the
proceedings are:
1)
the President (ex
ante abstract review);
2)
the Legal
Chancellor (ex post abstract review);
3)
the courts (ex
post concrete review).
The new Constitutional
Review Court Procedure Act adds one more type of subjects entitled to submit a
petition to the Supreme Court – the local government councils. Their right to
initiate constitutional review proceedings is limited to the legislation
infringing upon the constitutional guarantee of the autonomy of local
self-government.
Procedure
One of the deficiencies of
the old Constitutional Review Court Procedure Act concerns the proceedings
initiated by an ordinary court within civil, criminal or administrative court
proceedings. Every court has the right – actually even an obligation – to
declare unconstitutional any law which is in conflict with the Constitution.
There is no preliminary referral procedure in the strict sense of the word. The
court itself has to decide the case finally, including the question of
constitutionality of a law. This does not mean, however, that there is a system
of diffuse review of constitutionality in Estonia. The decision of the ordinary
court shall be submitted to the Supreme Court where constitutional review
procedure shall be initiated. To be precise, the chairman of the relevant court
shall submit a petition, based on the court decision, to the Supreme Court,
together with the decision. The Supreme Court, then, within a separate
constitutional review procedure, shall decide on the constitutionality of the
law. It is only within the powers of the Supreme Court do declare a law
invalid. Such a decision of the Supreme Court has erga omnes effect,
differently from the decision of the ordinary court on unconstitutionality with
inter partes effect.
This procedure has – as
already mentioned – certain shortcomings. Firstly, the decision of the ordinary
court and the petition by the chairman of the court sometimes differ from each
other. The Supreme Court has considered the court decision decisive. Secondly,
and more substantially, when the Supreme Court does not agree with the ordinary
court and finds the law to be in conformity with the Constitution, the decision
of the ordinary court may still remain in force. This is the case, when none of
the parties of the initial case appealed the original decision. When some of
them appealed the original decision, two proceedings will proceed in parallel –
the appellate proceedings in the
ordinary court of next instance and the constitutional review proceedings in
the Supreme Court.
The new Constitutional
Review Court Procedure Act provides for some adjustments. The requirement of
the petition by the chairman of the ordinary court in order to initiate
constitutional review proceedings in the Supreme Court will be given up. The
decision of the ordinary court will be enough in order to initiate the review
of constitutionality in the Supreme Court. The two parallel procedures will be
avoided by a regulation that an appeal against the decision of the ordinary
court can be lodged only after the Supreme Court has rendered a decision on
constitutionality of the relevant law. When none of the parties of the original
case submits an appeal, the incorrect decision of the ordinary court still may
remain in force, although this situation is somewhat unlikely after the parties
have learned the viewpoint of the Supreme Court.
According to the new
Constitutional Review Court Procedure Act, the parties of the original
proceedings can also take part in the constitutional review proceedings in the
Supreme Court. This is not the case under the old Constitutional Review Court
Procedure Act.
Constitutional
review practice
General
Majority of the
constitutional review cases the Supreme Court has been discussing have been
submitted to the Supreme Court by ordinary courts in concrete review procedure.
The role of the President as an initiator of constitutional review proceedings
has been decreasing. The tendency that the courts are the largest source of
constitutional review cases seems to be growing. The cases have had their
origin overwhelmingly in administrative court proceedings. The latter can be
explained by the fact that in administrative law matters the question whether
the restrictions of fundamental rights have been imposed in a constitutional
manner arises quite often.
During the first years of
the Constitution of 1992 the constitutional cases quite often dealt with the
questions of separation of powers, delimitation of the scope of authority of
the state institutions, with the problems of delegation of legislative powers.
During the past few years, however, the control over the constitutionality of
restrictions of the fundamental rights has become one of the most important –
if not the most important – areas of jurisdiction of the Constitutional Review
Chamber of the Supreme Court.
The argumentation of the
Supreme Court has evolved considerably during that time. The Supreme Court
examines whether the restrictions of fundamental rights pursue a legitimate aim
and whether the restrictions are necessary in a democratic society. Techniques
such as the test of proportionality,
known from the jurisprudence of the European Court of Human Rights and
from German constitutional jurisprudence, are applied when exercising control
over constitutionality of restrictions of fundamental rights.
Since the Constitution of Estonia covers almost all the rights guaranteed by
the European Convention of Human Rights, the text of the later usually does not
serve as an independent reference point for establishing violation or non-violation
of individual rights. European Convention of Human Rights and the practice of
the European Court of Human Rights has been used, rather, as tools for
interpreting the Estonian Constitution.
Problems
occurred
Some of the problems
arisen in the practice of the Supreme Court have been addressed above. Two more
examples of problematic cases will be addressed.
A matter to be confronted
first by the Legal Chancellor and then by the Supreme Court, is the question of
whether it should be possible to challenge legislative omissions. The case
itself is following.
The Parliament passed a
new Local Government Council Election Act according to which party lists and
individual candidates may run for the local councils. Under the previous law
also lists of election coalitions (i. e. lists of political parties or
individuals) could participate in the elections. The Legal Chancellor proposed
the Parliament to bring the new act into conformity with the Constitution. The
Parliament did not agree with the Legal Chancellor. The Legal Chancellor
challenged the new Local Government Council Election Act with the Supreme
Court, since the Act unconstitutionally restricts the right to stand for
elections. However, according to the Constitutional Review Court Procedure Act the
petition for the review of constitutionality must, inter alia, state the
provision of the challenged act deemed to be unconstitutional. The Local
Government Council Election Act does not include any single unconstitutional
provision, it rather – this is the position of the Legal Chancellor – omitted a
provision which existed in the previous act, and the result of that omission is
unconstitutional. The Legal Chancellor submitted a petition to the Supreme
Court seeking to declare Sections 31.1, 32.1 and 33.2.1 of the Local Government
Election Act invalid to the extent that they do not enable the individuals
eligible to run for the elections of local government councils in the lists of
electoral coalitions of citizens. However, textually there is not much in these
provisions to be declared invalid.
The question of whether the validity of the previous Act might be restored – if
the Supreme Court would declare the new Act invalid – might be put forward, as
well. Or, alternatively, would the Supreme Court itself create a substantial
legal norm by the way of specifically worded declaration of invalidity of some
norms?
Another topic to be
addressed concerns constitutional review proceedings initiated by ordinary
courts. According to Article 15 of the Constitution everyone has the right,
while his or her case is before the court, to petition for any relevant law to
be declared unconstitutional. What is the “relevant law”? The Constitutional
Review Court Procedure Act uses the term “law to be applied”. The Supreme Court
has held that the “relevant law” is a law that is decisive for resolving the
case before the ordinary court.
The law is to be considered relevant, if the outcome of the case depends on the
validity or invalidity of the law. Several questions arise, however. Up to whom
is it to determine, whether the law is relevant? – First and foremost, this
should be up to the ordinary court, since it has to resolve the original case.
The ordinary court has to interpret and to apply the law, it has to determine which
norm is to be applied.
The Supreme Court,
however, has deviated from that principle sometimes. This applies in particular
to the cases where several provisions of a law taken together lead to an
unconstitutional result. The Supreme Court has tried to find a middle way
between three requirements: (1) to review the constitutionality of the law
relevant to the original case (“the law to be applied”); (2) to confine itself
to the petition of the ordinary court; and (3) to observe the principle of
procedural economy. There has been a case, for example, where the original
petitioner in the administrative court has challenged the constitutionality of
one norm; the administrative court has found some other norms to be relevant to
the case and has declared the latter unconstitutional; and the Supreme Court in
the constitutional review court procedure partly invalidated a combination of
norms challenged by the petitioner in the original proceedings and norms
challenged by the administrative court.
It has been quite difficult to cope with situations where a norm closely
related to the original case in the ordinary court has been challenged by the
court, but the Supreme Court reaches to the conclusion that the norm was not
decisive for resolving the original case. So far, the Supreme Court has usually
accepted the position of the ordinary courts – not, perhaps, so much because of
the restraint from interfering into the questions of ordinary law, but rather
because of the reasons of procedural economy. And obviously it would be hard to
expect wide acceptance of decisions where fundamental rights of an individual
would have left unprotected because the ordinary court challenged a wrong norm
(from the viewpoint of the Supreme Court) or where an unconstitutional norm would
remain untouched since the ordinary court should not have applied that norm at
all.
Of course, such kind of
rational considerations cannot stretch too far without claims of judicial
activism – accusations the Supreme Court of Estonia has managed to avoid almost
completely. It remains to be seen how the dispute concerning election
coalitions mentioned above – probably one of the most political cases the
Supreme Court has confronted so far – will be settled, whether procedural or
substantial questions will prevail.
