The book written by Bob Wessels is definitely a source to be commonly used in international insolvency practice. This publication contains some 1200 pages in all including bibliography, list of relevant websites, table of cases and tables of legislation and is a very useful source for the reader, whether an academic or a practitioner.

This publication, as the author states in the preface, is a revised and augmented edition of “International Insolvency Law” published in 2006. As with the 2nd edition in 2006, this 3rd edition appears as Volume X of the ten-volume series Wessels Insolvency Law. This book differs from other Volumes in its aim not only to be the first point of reference on any question on international insolvency law for specialists (such as practitioners, judges and scholars), but also for those, who are new to the subject, including legislators and students. It is inevitably obvious that substantial qualitative updates have been made to the previous edition of the book.

This book contains four main chapters:

I              International Insolvency Law,

II International Insolvency Law in the Netherlands,

III           UNCITRAL Model Law on Cross-Border Insolvency, Legislative Guide on Insolvency Law         and Practice Guide,

IV           EU Insolvency Regulation

IV   1      General Provisions

IV   2      Recognition of insolvency proceedings

IV   3      Secondary insolvency proceedings

IV   4      Provision of information to creditors and lodgement of their claims

IV   5      Transitional and final provisions

IV   6      The Insolvency Regulation as a model

and an additional concluding chapter, V – To conclude

Every chapter (excluding V) starts with introductory remarks to the topic, which gives an opportunity for the new reader to get familiar with the scope of the ensuing themes and general problems to be focused on. Each theme contains sources which are included in the discussions and analysis throughout the book. In considering opinions in legal literature Prof. Wessels refers extensively to sources written at least in English, German, Dutch and French.

In Chapter I the author describes different doctrinal perspectives and current global trends supported by sources and case law which, in our opinion, should be read by representatives of legislators and policy makers facing the gravest eurozone financial crisis. The author also continues the debate on principles and new dogmatic and pragmatic approaches to issues and disputes on international insolvency law, including several remarkable court decisions from all over the world.

In Chapter II the status of international insolvency law in the Netherlands has been updated. A remarkable number of court cases related to core matters of international insolvency law in the Netherlands are covered as well as recent trends in doctrinal perspectives in this chapter.

In Chapter III Professor Wessels describes and comments on the UNCITRAL Model Law of 1997, the Legislative Guide 2004, the Practice Guide of 2009 and the 2010 supplement to the Legislative Guide, being the UNCITRAL’s recommendation regarding enterprise groups. In addition “The UNCITRAL Model Law on Cross-Border Insolvency: the judicial perspective” has been focused upon. Compared to the preceding 2006 edition, an enormous amount of USA and UK cases and literature from the USA, the UK and Australia have been analysed.

As in the previous edition of this book, the major focus (some 500 pages) in this book is given to EU Insolvency Regulation in Chapter IV. A detailed commentary and an extensive treatment of the EU Insolvency Regulation delivers clarity allowing academics, judges or practitioners to anticipate problems and provide solutions even in the most complex topics in recent debates such as the system of recognition and enforcement of other (insolvency related) judgments, the system of conflict of law rules in the EU Insolvency Regulation and last but not least the communication and coordination in cross-border insolvency proceedings.

In Chapter V some remarks on possible future development trends as conclusions to the preceding chapters within international insolvency law are made.

It is definitely a truly valuable asset of this book to have a comprehensive bibliography, table of some 350 cases and a list of relevant websites included.

It is obvious that we could only point at a few topics described and analysed in this marvellous publication. Professor Wessels’ 3rd edition of the book “International Insolvency Law” is a masterpiece, a complete and accurate treatment of global legislative developments, very informative and highly recommended reading for every person who considers him- or herself to be a fan of the mysterious world of international insolvency law.

This paper focuses on the risk of early death and dying of natural and unnatural (external) causes among former juvenile delinquents in Estonia. We examine first the question of to what extent former juvenile delinquents have a greater risk of dying earlier and dying of different causes than the general population in Estonia do. Secondly, the paper looks at the differences in mortality rates and causes of death between persistent and desisting offenders. Thirdly, we compare mortality rates for cohort members and causes of death among Estonian and non-Estonian delinquents.

2. Delinquency and mortality

It is a well-established empirical fact that delinquent individuals have higher death rates than do non-delinquent individuals. In a longitudinal study of juvenile delinquency and adult crime up to age 32, the Gluecks found that the death rate for delinquents was twice that of matched non-delinquent individuals. ^*2 Laub and Vaillant used the Gluecks’ original data and followed almost 500 delinquent and 500 matched non-delinquent comparison males until age 65. According to their findings, delinquent subjects were more than twice as likely to die (51%) as the 196 boys with no unofficial delinquency (23%) from natural or unnatural causes. ^*3 In a 30-year follow-up, Robins and O’Neal found a mortality rate for problem children with conduct disorder by age 40 that was twice as high as that of control-group members. ^*4 Other longitudinal and follow-up studies that have followed delinquent boys into adulthood have observed similar trends. Rydelius, in following 832 Swedish boys, inmates of probationary schools, noted a death rate by age 40 that was four times higher than statistically expected. ^*5 In a study of an unselected birth cohort of 12,058 children born live in Northern Finland in 1966, Räsänen and colleagues found that by their 27th birthday the mortality rate of men with combined personality disorders and criminality was more that three times higher than the average for the age cohort. ^*6

Lattimore and colleagues examined the risk of death among young male serious offenders who were paroled from the California Youth Authority and followed for 11 years. Among 1,998 subjects, they found, 109 (5.5%) had died, for twice the expected rate. ^*7 Nieuwbeerta and Piquero found in their study that in the subsequent 25-year period in the Netherlands, convicted criminals run about 1.8 times as much risk of dying as the average citizen. The risk of dying of natural causes was 1.6 times as high, and the change of dying of unnatural causes was 2.5 times as high. ^*8 Another seven-year follow-up study, of 118 formerly incarcerated delinquents, revealed an extremely high mortality rate for the sample. Seven individuals (5.9%) among those studied died before their 25th birthday, putting them at 58 times the national average for individuals in their age group. ^*9 A study by Teplin et al. revealed the overall mortality rate among delinquents to be more than four times the general-population rate. ^*10

Criminological theories and developmental or life-course theories anticipate a difference between life trajectories among offenders (desisting, persistent, etc.). Following these theories, one can hypothesise that serious offenders have a greater risk of premature and unnatural death when compared to non-offenders or sporadic offenders. However, as Nieuwbeerta and Piquero ^*11 note, surprisingly few studies have concentrated on exploration of the relationships among criminal careers, mortality rates, and causes of death. There are two very popular general perspectives that offer explanations as to why delinquent individuals might have a higher death rate. According to the first perspective, criminals die earlier and experience more premature deaths as a direct consequence of their delinquency and way of life. The same individual trait—a low level of self-control—accounts for the relationship of antisocial behaviour with premature death. ^*12 Gottfredson and Hirschi have argued that human behaviour is consistent across various situations. Individuals with low self-control have a high probability of succumbing to the temptations of short-term pleasures with little regard for the long-term negative consequences.

Indeed, it is relatively well known that, among other things, offenders engage in more risky sexual behaviour, are more often victims of violent crime, and are more involved in accidents of various types than non-offenders. ^*13 Standing out with a special role in the elevated mortality among delinquents is substance abuse. Offenders tend to die earlier because they engage more often in excessive alcohol and drug use, which increase the risk of premature death. Excessive drinking has a number of harmful effects. It increases the risk of cancer of the liver, stroke, cerebral infarcts, and damage to the coronary arteries. ^*14 Research has found that offenders are more frequently involved in traffic accidents. ^*15 Studies have also found that involvement in crime was associated with more than double the likelihood of involvement in risky behaviour in traffic. ^*16 One of the strongest correlates of crime is the linkage between offending and victimisation, as offenders themselves are at a high risk of being victimised. ^*17 Lattimore and colleagues found in their study that 47% of premature deaths of paroled offenders were a result of homicide. ^*18 In the prospective study of the Northern Finland 1966 birth cohort, it was found that, for those individuals who had died by age 27, all deaths were of external causes and 95.5% of deaths were homicides or legal interventions. ^*19 There is evidence of a link between adolescent and youth suicides and delinquency. ^*20

Summarising the research on mortality rates and causes of death, one can conclude that offenders are more likely to die in their early years and are more likely to die from unnatural causes (i.e., accident, homicide, or suicide) and natural causes (i.e., diseases). The lower self‑control rate is related to a higher probability of delinquency and high-risk behaviour that, in turn, can lead to premature death. Accordingly, the mortality rates of serious offenders should be higher than those among sporadic delinquents or non‑delinquents for both unnatural and natural causes. From these findings, we can hypothesise that involvement in criminality can predict risk of death; e.g., the longer and more serious the criminal involvement is, the higher is the risk of premature death.

The second perspective is based more on the fact that low socio-economic status and general deprivation lead individuals to poor education and low job status, which, in turn, lead to (chronic) illness and premature mortality. ^*21 Lack of self-care due to a dysfunctional upbringing, parental neglect, and social deprivation can result in increased and early mortality. Adolescents from dysfunctional families often have problems at school, are truant, and consume drugs or alcohol. Delinquency in such cases is a result of socio-economic deprivation. Offenders of this sort, who actually need social support, became subjects of social control and are sent to special institutions for juveniles.

The last perspective has received less attention and empirical support in the international literature. However, it seems to be important to discuss in the context of the large-scale socio-economic changes that Estonia has experienced over the last 20 years. The challenges of transition were especially great for the non-Estonian population. The study examining ethnic differences in mortality rates in Estonia has shown that in 1989–2000, ethnic differences in life expectancy increased from 0.4 years to 6.1 years among men and from 0.6 to 3.5 years among women. In 2000, Russians had higher mortality than Estonians in all age groups and for almost all causes of death selected for study. The authors conclude that political and economic upheaval, increasing poverty, and alcohol consumption can be considered the main underlying causes of the widening ethnic mortality gap. ^*22 Taking this into account, our next hypothesis is that we can expect higher mortality rates for non-Estonian delinquents as compared to Estonians in our sample.

3. Method

The Estonian Longitudinal Study of Criminal Careers (ELSCC) commenced in 1983. The initial sample of 317 delinquents aged 14–17 constituted the total population (the cohort) of male inmates at two special institutions for juveniles in Estonia. In the first wave of the study, all respondents were interviewed and data from personal files characterising their family background, path of education, and deviant behaviour were gathered and analysed. Three later waves (in 1990, 1995, and 1999) of the study were conducted without direct contact with respondents. Official data from criminal registers, the census bureau, and mortality statistics were collected. ^*23

Figure 1. Five waves of data collection—age and number of individuals remaining in the sample.

The fifth wave of the ELSCC work started in 2009; the main aim was to develop a comprehensive picture of persistence of and desisting from criminal activity in middle age. An updated enquiry was dispatched to the Census Registry for all individuals in the sample. The data were obtained in April 2010, with the following information: whether or not the person was featured in the database, status (alive/dead), date of death, country of residence, and residential address (in cases of a foreign country, the state and date of departure). In all, there were 245 individuals in the sample in 2009, 229 individuals were still alive and living in Estonia, 48 had died, and there was no information about 24 individuals in the registers. The data on crimes and convictions over the past 10 years were obtained from penitentiary and criminal registers.

From the Estonian Causes of Death Registry, information was obtained for the date of death and the cause of death of the individual, following the International Classification of Causes of Death (ICD-10). Cause-of-death data were unavailable for three people; in all of these cases, the person had died abroad.

For evaluation of the mortality of sampled individuals, statistical analysis of data was conducted by the Department of Epidemiology and Biostatistics at the Estonian National Institute for Health Development. The cohort was linkedwith the Estonian Causes of Death Registry for gaining of information on date and cause of death in 1985–2009. Each member of the cohort contributed person-years from 1 January 1985 until the date of death, the date of emigration, or 31 December 2009, whichever was earliest. Then we calculated the standardised mortality ratio (SMR) and its 95% confidence interval (CI) for all causes of death, with external causes of death examined separately. ^*24

The SMR compares the mortality experience of the cohort with that of the general male population of Estonia. The SMR is the ratio of deaths observed to deaths expected. The number of deaths observed and person-years in the cohort were calculated, by five-year age groups, separately for five calendar periods (1985–1989, 1990–1994, 1995–1999, 2000–2004, 2005–2009). The expected number of deaths was calculated by multiplying the number of person-years for the cohort by the appropriate mortality rate for the general male population on the basis of calendar periods and age groups.

An important question would be to what extent some groups of former juvenile delinquents with distinct offending trajectories (for example, persistent v. desisting offenders) run greater or smaller risks of dying of various causes.

Individuals in the sample are compared across two groups differentiated on the basis of offending trajectories up to 30 years of age. The first group is composed of individuals for whom a special institution remained the only punishment recourse. This group comprised 104 individuals (33.1%), who are called sporadic offenders below. The second group consists of individuals who were punished for committing offences at least twice. This group of 210 individuals (66.9%) in the further analysis is called ‘persisters’. ^*25

Of all delinquents in the initial cohort, 60.5% were Estonians (n = 191) and 39.5% of other nationalities (n = 126). Among the non-Estonians, the main group were Russians (n = 110) and 16 individuals were of other nationality (Ukrainians, Finns, Belarusians, and Armenians). Because all non-Estonian nationals were Russian-speakers, they were analysed as one group distinct from Estonians.

4. Results and discussion

The majority of causes of death (nearly 70%) was attributed to external circumstances, predominantly of a violent nature. Ranking first were homicide and suicide, accounting for, respectively, 17% and 13% of all cases. Alcohol poisoning and death in traffic accidents were each represented by three cases. Of all deaths from disease (non-violent deaths—nearly 30%), the absolute majority were accounted for by diseases related to way of life (cirrhosis of the liver, heart failure, tuberculosis, and epilepsy). The non‑violent deaths too were often related to an unhealthy way of life and alcohol abuse.

Table 1: Causes of observed deaths in the former-juvenile-delinquent cohort in Estonia, 1985–2009

During follow-up of 6,889 person-years, there were 40 persons who had left the country or who were lost for follow-up purposes. By 31 December 2009, 229 people in the sample were alive. We observed 48 deaths in the cohort while the expected number was 22.5. Therefore, the SMR was 2.13 (95% CI: 1.57–2.83) for all causes of death, showing that mortality in the cohort was significantly higher than that of the general male population of Estonia. Also, the members of the cohort had a 109% greater significant risk of death of external causes (32 deaths observed, 15.4 expected; SMR =2.09, 95% CI: 1.42–2.96) than the reference population did.

 Figure 2. Survival rates for the two trajectory groups.

Looking at survival rates for sporadic offenders and persisters, we can see a somewhat higher survival rate for persisters and a lower one for sporadic offenders. By 2010, approximately 82% of sporadic offenders were still alive, while the equivalent figure for persisters was 87%. The difference between the groups is not statistically significant. Thus, the results have not confirmed the hypothesis of a higher survival rate among sporadic offenders. Furthermore, as the graph shows, they tend to have a lower survival rate than persisters do. There were more suicides committed and a higher percentage of death of natural causes among sporadic offenders. In general, persisters have had a higher risk of death from unnatural and external causes when compared to sporadic offenders.

Table 2: Risk of death due to various causes for the two trajectory groups

Figure 3. Survival rates among Estonian and non-Estonian delinquents.

The comparison between Estonians and non-Estonians indicated statistically significant differences (p < 0.05) between survival rates for the years 1995, 1999, and 2010. While 88% of Estonian delinquents in the cohort were still alive in 2010, the survival rate for the non-Estonian population was 78%. This result supports the hypothesis of a higher mortality rate for non-Estonian delinquents. The risk of death of natural causes was higher for Estonians, while non-Estonians had a greater risk of death from external and unnatural causes. Estonians had a somewhat higher rate of death through murder and assault and by suicide. Non-Estonians had a higher risk of death from other external causes. This category includes, among others, such causes of death as alcohol poisoning and freezing to death.

Table 3: Risk of death of various causes for Estonian and non-Estonian delinquents

There are different and in some ways controversial positions with regard to the connection of morbidity and mortality of criminals. The way of life constituted by having a criminal career seems in general not to be good for an individual’s health. On the one hand, an active criminal career is predictive of a higher mortality and morbidity rate in comparison to the non-delinquent population. However, if one examines causes of death in more detail, different circumstances related to mortality emerge. For example, favourable effects on inmates’ health of serving the term in custody have sometimes been found. In prison, everybody is subject to a healthy daily routine and constant medical observation. This results in a better standard of physical health among inmates than with individuals of the same social status in the population at large. Incarceration may actually serve as a protective factor, as a shield for offenders, precluding an early natural death. Furthermore, research in the USA and France has found that rates of mortality from natural causes are lower for prisoners than in the general population. ^*26

The setting of standards for prison conditions is characteristic of Western democratic societies. The situation of Estonian prisons relative to that in those Western countries continues to be fundamentally different. Prison inmates in Estonia still have very high HIV and TBC rates. The analysis of causes of death (especially for the time until the mid‑1990s) for individuals in the cohort of this study also characterises prison as an unfavourable environment. These data show that observed homicides (three cases) and suicides (three cases) among individuals in the sample population have been committed in substantial numbers in prisons.

Prison has a dual mortality-risk-reducing effect: in addition to a more organised and healthy lifestyle, a normally functioning prison protects inmates from violence. It was seen in Estonian data too that the health care that a delinquent receives in prison is better than that outside its walls. In Estonia, there is one more specific circumstance related to prisons. As prisons are considerably improved to meet European standards, there is a growing gap between living conditions and services available in prison, on one hand, and offenders’ usual living conditions, in favour of prisons. In Estonia, prisons became a substitute for social-welfare institutions. This thesis is supported by the differences in mortality rates between Estonian and non-Estonian delinquents. The mortality risks for non-Estonians probably accumulate, with this being reflected in the higher mortality rates among them.

5. Conclusions

In summary, the Estonian survey data supported the premise of high mortality of criminals as compared to non-criminals. The indicators of mortality of former juvenile delinquents as measured by the SMR method are, for both general mortality and violent deaths, very high and significantly exceed the corresponding indicator values for the general population. Similarly to the research results in other countries, the mortality rate seen among individuals in the cohort was more than twice as high as that of the general population.

The Estonian situation is noteworthy for specific, dramatic social-economic changes having taken place since the early 1990s. A significant difference between mortality rates was found by nationality: non-Estonian delinquents had higher mortality rates than Estonians did. These results characterise the situation in Estonia, where non-Estonian delinquents experience more risks and are marginalised more often than are Estonians.

Studies of mortality of criminals had until now been carried out exclusively in the developed Western countries, and in other countries diverse circumstances may emerge. The important aspect of the study described here lies in its social-political context. The results presented here lead to analysis of some aspects of criminal careers in a rapidly changing environment of transition from authoritarian regime to democracy and market economy.

Notes:

^*1    The research was supported by Estonian Science Foundation Grant 8074.

^*2    S. Glueck, E. Glueck. Delinquents and Nondelinquents in Perspective. Cambridge, MA: Harvard University Press 1968.

^*3    J.H. Laub, E. Vaillant. Delinquency and mortality: A 50-year follow-up study of 1,000 delinquent and nondelinquent boys. – American Journal of Psychiatry 2000 (157), pp. 96–102.

^*4    L.N. Robins, P. O’Neal. Mortality, mobility, and crime: Problem children thirty years later. – American Sociological Review 1958 (23), pp. 162–171.

^*5    P.A. Rydelius. The development of antisocial behaviour and sudden violent death. – Acta Psychiatrica Scandinavica 1988 (78), pp. 398–403.

^*6    P. Räsänen, J. Tihonen, M. Isohanni, J. Moring, M. Koiranen. Juvenile mortality, mental disturbances and criminality: A prospective study of the Northern Finland 1966 birth cohort. – Acta Psychiatrica Scandinavica 1998 (97), pp. 5–9.

^*7    P.K. Lattimore, R.L. Linster, J.M. MacDonald. Risk of death among serious young offenders. – Journal of Research in Crime and Delinquency 1997 (34)/2, pp. 187–209.

^*8    P. Nieuwbeerta, A.R. Piquero. Mortality rates and causes of death of convicted Dutch criminals 25 years later. – Journal of Research in Crime and Delinquency 2008 (45)/3, pp. 256–286.

^*9    C.A. Yeager, D.O. Lewis. Mortality in a group of formerly incarcerated juvenile delinquents. – American Journal of Psychiatry 1990 (147), pp. 612–614.

^*10 L.A. Teplin, G.M. McClelland, K.M. Abram, D. Mileusnic. Early violent death among delinquent youth: A prospective longitudinal study. – Pediatrics 2005 (115), pp. 1586–1593.

^*11 Nieuwbeerta, Piqueiro (see Note 8), p. 256.

^*12 M. Gottfredson, T. Hirschi. General Theory of Crime. Stanford, CA: Stanford University Press 1990; T. Hirschi, M. Gottfredson (eds). The Generality of Deviance. New Brunswick, NJ: Transaction Publishers 1994.

^*13 D.P. Farrington. Crime and physical health: Illnesses, injures, accidents, and offending in the Cambridge Study. – Criminal Behaviour and Mental Health 1995/5, pp. 221–255; D. Farrington. Developmental and life-course criminology: Key theoretical and empirical issues—the 2002 Sutherland Award Address. – Criminology 2003 (41), pp. 221–255; M. Junger, M. Dekovic. Crime as risk-taking: Co‑occurrence of delinquent behavior, health endangering behaviors, and problem behaviors. – M.R. Gottfredson, C. Britt (eds). Advances in Criminological Theory. New Brunswick, NJ: Transaction Publishers 2003, pp. 213–248.

^*14 E.L. Abel, P. Zeidenberg. Age, alcohol and violent death: A postmortem study. – Journal for the Study of Alcoholism 1985 (46), pp. 228–231; S.P. Andreasson, P. Allebeck, A. Romelsjo. Alcohol and mortality among young men: Longitudinal study of Swedish conscripts. – British Medical Journal 1988 (296), pp. 1021–1025.

^*15 M. Junger. Accidents. – T. Hirschi, M. Gottfredson (eds). The Generality of Deviance. New Brunswick, NJ: Transaction Publishers 1994, pp. 81–112; M. Junger, G.-J. Terlouw, P.G.M. van der Heijden. Crime, accidents and social control. – Criminal Behaviour and Mental Health 1995 (5), pp. 386–410; M. Junger, R. West, R. Timman. Crime and risky behavior in traffic: An example of cross-situational consistency. – Journal of Research in Crime and Delinquency 2001 (38), pp. 439–459.

^*16 M. Junger et al. Crime and risky behavior in traffic: An example of cross-situational consistency (see Note 15), p. 448.

^*17 J.L. Lauritsen, R.L. Sampson, J.H. Laub. The link between offending and victimization among adolescents. – Criminology 1991 (29)/2, pp. 265–292; K. Witterbrood, P. Nieuwbeerta. Criminal victimization during one’s life course: The effect of previous victimization and patterns of routine activities. – Journal of Research in Crime and Delinquency 2000 (37), pp. 91–112.

^*18 Lattimore et al. (see Note 7).

^*19 Räsänen et al. (see Note 6).

^*20 R.B. Cairns, B.D. Cairns. Lifelines and Risks: Pathways of Youth of Our Time. Cambridge, UK: Cambridge University Press 1994.

^*21 M.G. Marmot, G.D. Smith, S. Stansfeld, C. Patel, F. North, I. Head, I. White, E. Brunner, A. Feeney. Health inequalities among British civil servants: The Whitehall II study. – Lancet 1991 (337), pp. 1387–1393; J.M. Guralnik, K.C. Land, D. Blazer, G.G. Fillenbaum, L.G. Branch. Educational status and active life expectancy among older blacks and whites. – New England Journal of Medicine 1993 (329), pp. 110–116; G. Pappas, S. Queen, W. Hadden, G. Fisher. The increasing disparity in mortality between socioeconomic groups in the United States. – New England Journal of Medicine 1993 (329), pp. 103–109.

^*22 M. Leinsalu, D. Vagerö, A. Kunst. Increasing ethnic differences in mortality in Estonia after the collapse of the Soviet Union. – Journal of Epidemiology and Community Health 2004 (58), pp. 583–589.

^*23 See J. Saar. Õigusvastane alaealisena ja kriminaalsed karjäärid (Eesti 1985–1999 longituuduurimise andmetel) (Delinquent Conduct in the Minority Age and the Subsequent Criminal Careers (as based on longitudinal research 1985−1999, Estonia)). Dissertationes Iuridicae Universitatis Tartuensis 9. Tartu, Estonia: Taru Ülikooli Kirjastus 2003 (in Estonian).

^*24 D. Taeger, Y. Sun, U. Keil, K. Straif. A stand-alone Windows applications for computing exact person‑years, standardized mortality ratios and confidence intervals in epidemiological studies. – Epidemiology 2000 (11), pp. 607–608; L. Gordis. Epidemiology, 4th ed. Philadelphia: Saunders 2004.

^*25 Three individuals were excluded from categorisation because of insufficiency of personal data.

^*26 S. Fazel, R. Benning. Natural deaths in male prisoners: A 20-year mortality study. – European Journal of Public Health 2006 (16)/4, pp. 441–444.

In order to guarantee that the rights of a suspect are respected throughout the criminal proceedings, he or she should have the right to counsel from the very early stages of the proceedings, at least immediately upon arrest. ^*1 Nevertheless, as soon as this principle is recognised, several questions arise. First, should this right be interpreted in such a way that the suspect has a right to counsel not only before procedural acts that involve him or her but also during these acts? Secondly, should the right be absolute in nature? In this article, it is suggested that the answer to the first question is ‘yes’, and the arguments supporting this perspective are brought out. Additionally, it is discussed that this right is subject to restrictions if the suspect him- or herself agrees therewith or there are compelling reasons for this. For us to answer the two questions mentioned above, firstly, the sources of the right of suspects to counsel in pre-trial proceedings are explicated. Here legal acts and judicial practice from both Europe and the United States (US) are used as examples, the latter being a state in which the principles of the right to counsel have been well under development for a long time. Next, the advantages and disadvantages of guaranteeing the right to counsel during pre-trial proceedings without any restrictions are analysed. Finally, warranted justifications for restriction of the right to counsel in pre-trial proceedings are discussed, with mindfulness of the judicial practice of the European Court of Human Rights (ECtHR), the Constitution of the Republic of Estonia ^*2 , the (draft) legislation of the European Union (EU), and the experience of the US.

2. The sources of the right to counsel in pre-trial criminal proceedings

According to the judicial practice of the Estonian Supreme Court, the right to defence is one of the main procedural principles of the rule of law and gives a person the right to defend him- or herself against criminal charges with every means set forth by law. ^*3 One of the defence rights is suspects’ right to counsel. The first two sentences of the Constitution of the Republic of Estonia’s §21 (1) establish the following:

Everyone who is deprived of his or her liberty shall be informed promptly, in a language and manner which he or she understands, of the reason for the deprivation of liberty and of his or her rights, and shall be given the opportunity to notify those closest to him or her. A person suspected of a criminal offence shall also be promptly given the opportunity to choose and confer with counsel.

The second sentence of §21 (1) of the Constitution is the only sentence in the Constitution of the Republic of Estonia that considers the right to counsel. ^*4

The suspect’s right to choose counsel and confer with him or her is also provided for by the Estonian Code of Criminal Procedure ^*5 (CCP). According to §34 (1) 3) of the CCP, the suspect enjoys the right to counsel’s assistance ^*6 , and, according to the fourth clause of the same subsection, he or she has the right to confer with counsel without the presence of other persons. These rights have to be promptly explained to the suspect (first sentence of §33 (2) of CCP). Additionally, the suspect has the right to the presence of counsel when interrogated or participating in confrontation, comparison of testimony to circumstances, or presentation for identification (§34 (1) 5) of CCP). Therefore, when interpreting the Constitution and the CCP together, one could conclude that in Estonia as soon as a person acquires the status of a suspect in criminal proceedings, he or she has the right to counsel, which comprises the right to confer with that person, receive his or her assistance, and have him or her present during the procedural acts that are performed in the presence of the suspect.

The ECtHR has acknowledged suspects’ right to counsel in pre-trial proceedings for quite a long time. ^*7 However, the most important judgement, in the case Salduz v. Turkey ^*8 , was handed down by that court very recently. Unfortunately, the Court’s conclusions in this judgement are not unambiguous: there is an on-going dispute in Europe about whether the ECtHR acknowledged with this judgement suspects’ right to have counsel present during interrogations, the right the ECtHR had not acknowledged before. Some scholars say that it did so, while others think that the Salduz judgement is not clear on this point. ^*9

In the Salduz judgement, the ECtHR reassured that the right to counsel provided for in Article 6, paragraph 3 of the European Convention on Human Rights ^*10 (ECHR) as one element of the concept of a fair trial set forth in Article 6, paragraph 1 of that convention may exist already before the case is sent to trial. ^*11 Next the Court explained that, under Article 6 of the ECHR, it is required that the accused (in the context of Estonian law, the suspect) be guaranteed the assistance of counsel already ‘at the initial stages of police interrogation’. ^*12 As can be seen from the wording of the judgement, the Court has not stated directly that suspects enjoy a right to have counsel present during interrogations. However, in several recent cases, the ECtHR has referred to the Salduz judgement and concluded that violation of Article 6 took place, on the basis of a finding that counsel was not present during interrogation. ^*13 This might be a basis for concluding that, according to the judicial practice of the ECtHR, suspects have the right to have counsel present during interrogations. Even though the wording of the Salduz judgement may not be very clear, one thing is certain: this judgement ‘sent shock waves out across Europe’ ^*14 and caused a number of changes in the interrogation rules of several European countries, although one has to admit that some of these changes are based on a narrow interpretation of the Salduz judgement. For instance, the Supreme Court of the Netherlands has interpreted the judgement in such a way that all suspects have a right to consult with a lawyer before interrogation but only minors have a right to have counsel present during interrogation. ^*15 Additionally, in Scotland a right of the detainee to have counsel’s advice prior to police interrogation ^*16 was recognised by the decision of the Supreme Court of the United Kingdom in 2010. ^*17 Although it could be said that this was a moderate stance in comparison to what the Supreme Court could have found if it had interpreted the Salduz judgement more broadly, the decision immediately caused displeasure among Scots, who did not like the idea of the Supreme Court of the United Kingdom dictating the development of material principles of the Scottish criminal justice system without taking into account its particular features. Additionally, it was claimed in Scotland that as long as the procedure as a whole is fair, the issue of whether suspects should have a right to counsel is of a secondary nature. ^*18 In France, the Salduz judgement caused more radical steps and, after several decisions by the French Constitutional Court and the final appeal court with jurisdiction over criminal matters, the French Parliament adopted rules establishing the right of detainees to have counsel present during interrogation. ^*19

The other aspect of the Salduz judgement that remains unclear is the interpretation of the notion of ‘police interrogation’. In Zaichenko v. Russia ^*20 , the ECtHR held that there is no right to counsel if a person is questioned in the course of a road check, because ‘the applicant was not formally arrested or interrogated in police custody’. ^*21 It has been suggested that, given this ruling, a suspect enjoys a right to counsel only when his or her liberty has been limited in a significant way. ^*22 Nevertheless, to be able to draw extensive conclusions, one should await additional judgements from the ECtHR.

The proposal for a directive of the European Parliament and the Council on the right of access to a lawyer in criminal proceedings and on the right to communicate upon arrest ^*23 , which has been drafted in line with the practice of the ECtHR and which is aimed at boosting mutual trust among the Member States ^*24 , emphasises that access to a lawyer must be granted upon questioning ^*25 , deprivation of liberty, or a procedural or evidence‑gathering act. ^*26 Therefore, the institutions of the EU have interpreted the Salduz judgement in such a way that it gives suspects the right to have counsel present during interrogations ^*27 , and, as they use the phrase ‘any questioning by the police’, they do not expect the suspect to be detained or his or her liberty to be restricted in any other way before enjoying the right to counsel. Additionally, in contrast to the judicial practice of the ECtHR, the proposal specifies the situations wherein suspects have a right to have counsel present in pre-trial proceedings: it points out not only questioning and deprivation of liberty but also any other evidence-gathering act in addition to questioning.

In the US, the right to counsel in pre-trial proceedings has historically been divided between two sources: the Fifth ^*28 and the Sixth Amendment. ^*29 In the case Massiah v. United States ^*30 , the US Supreme Court (USSC) held that statements deliberately elicited by authorities from the previously indicted accused in the absence of his or her counsel deprived the accused of his or her right to counsel under the Sixth Amendment and, therefore, such statements could not be used as evidence against him or her in trial. ^*31 The next case was Miranda v. Arizona ^*32 , in which the USSC held that the prosecution may not use statements made as a result of questioning initiated by authorities after a person has been taken into custody or otherwise deprived of his or her freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective for securing the Fifth-Amendment privilege against self-incrimination. ^*33 Where an interrogation is conducted without the presence of counsel and a statement is taken, the prosecution’s side has a burden of demonstrating that the defendant knowingly and intelligently waived his or her right to counsel. ^*34 Therefore, the Supreme Court concluded that if a person is held in custody and not yet indicted, the right to counsel is indispensable to the protection of the privilege against self-incrimination: the role of counsel here is to guarantee that people would not testify against themselves involuntarily.

At first, the USSC seemed to have the idea that the Massiah and Miranda rules are different, with one meant for situations wherein adversary proceedings have already begun and serving the principle of equality of arms and with the other being for the investigative stage of proceedings, wherein the privilege against self-incrimination prevails. ^*35 Nevertheless, the USSC has made a couple of decisions indicating that the Massiah and Miranda rules are not so different. For example, a statement obtained in breach of the Sixth or Fifth Amendment may be used for impeachment purposes ^*36 , and, also, its ‘fruits’ may be used as evidence during the trial ^*37 ; in addition, there is no difference in the waiver rules. ^*38 This has led some authors to propose that there should be one uniform right to counsel from the very beginning of the proceedings ^*39 , which would be an approach similar to that applied in Europe.

3. To guarantee, or not to guarantee, that is the question

There are a number of arguments supporting the ECtHR’s conclusion that the right to counsel should be guaranteed to suspects ‘at the initial stages of police interrogation’.

Counsel provides the suspect with the technical skills to exercise his or her rights in the criminal proceedings. The suspect, who is usually a common person without expertise in substantive and procedural law, does not have full awareness of his or her rights and lacks skill in exercising them. ^*40 Here counsel contributes to the principle of equality of arms. ^*41 In the context of pre-trial proceedings, it is very difficult to exclude the right to counsel on the basis of an argument that the proceedings are not yet adversarial, as some justices of the USSC have tried to do. ^*42 As the larger body of evidence later presented in the trial is gathered during the pre-trial stage of proceedings—and if it is not presented as evidence in trial, at least the information about evidence (e.g., about witnesses) is obtained during pre-trial proceedings—it is most necessary for the suspect to have a legal professional by his or her side. ^*43 Although, for instance, according to §211 (2) of the Estonian CCP, an investigative body and a Prosecutor’s Office shall ascertain in pre-trial procedure the facts both vindicating and speaking against the suspect, one can readily conclude that, because, in reality, both of these bodies have finding the guilty party as a goal, the suspect clearly needs a provider of assistance who is completely on his or her side.

Two purposes of the right to counsel in pre-trial proceedings should be mentioned separately when it comes to counsel’s technical skills. First, counsel is the one who explains to the suspect his or her rights and whose assistance, therefore, serves as a ‘procedural guarantee of the privilege against self-incrimination’. ^*44 Second, as counsel performs supervision of the activities of authorities, his or her presence also serves as a guarantee against ill-treatment of the suspect ^*45 , reducing its likelihood and ensuring that, if the authorities do engage in it, counsel can give testimony of this in court. ^*46 This purpose is closely related to that mentioned earlier, as authorities sometimes try to convince the suspect to waive the privilege against self-incrimination by using illicit means of coercion. It should be mentioned that the term ‘illicit means of coercion’ ought to be taken in a broad interpretation. At the top of the scale of these means is physical torture, highly disapproved of by many authors of law-review articles, but, in addition, means that do not fall into this category should be described here. In the US, research has shown that certain interrogation tactics (e.g., presenting misinformation about evidence connecting the suspect with the crime scene, using techniques to induce stress and discomfort in the suspect, or using multiple interrogation tactics simultaneously) sometimes coerce suspects to change their beliefs about their guilt, which may finally lead to a situation in which the suspect, while actually innocent, admits his or her guilt and even believes in it (these confessions are called internalised false confessions). ^*47 Additionally, the authorities may create a situation so stressful for the suspect (e.g., by restraining his or her access to a lawyer and interrogating him or her non-stop for a long time) that the suspect admits guilt although knowing that he or she is not guilty (these confessions are called compliant false confessions). ^*48

One can easily see what the main objection is to providing the suspect with counsel’s assistance during the pre-trial proceedings, mainly during interrogation (and any other evidence-gathering act wherein the suspect is expected to provide the police with information): counsel’s advice and presence may impair authorities’ chances of getting information from the suspect. ^*49 Custodial interrogation is considered to be ‘the principal weapon in the investigative arsenal of the police’, especially in the context of tight budgets and society’s pressure to control crime. ^*50 As was discussed above, counsel as a legal professional knows the suspect’s rights, including the privilege against self‑incrimination, usually much better than the suspect him- or herself does and can advise him or her to exercise such a right during interrogation. Also, counsel as an observer of the lawfulness of the interrogation can intervene every time the authorities use coercive methods on the suspect. All of this may reduce the authorities’ chance to obtain information from suspects. There are some situations in which the need to get the information from the suspect is especially urgent and wherein counsel’s participation may, therefore, harm important legal rights in the relevant society: situations in which human lives or any other important legal values are in direct danger and the police have grounds to believe that the suspect possesses the information necessary for eliminating that danger. For the above-mentioned reasons, there is nothing surprising about the fact that there were strong objections to the Miranda decision in the US. ^*51 Moreover, in the US even contemporary interrogation materials emphasise that, in order to obtain a confession from the suspect, the interrogator has to be alone with him or her. Depending on the circumstances, the interrogator should try to develop a relationship in which he or she exerts dominance over the suspect, establishes a trustful connection with him or her, or convinces him or her that confession is his or her best choice. If counsel is present, it is likely that the interrogator will not have enough time to develop one of these relationships. ^*52

There is an interesting dilemma faced by the justice system and, more specifically, the whole society, where the right to have counsel present during interrogations is concerned. It could be summarised as follows: ‘The human craving for justice is evident from public reaction whenever a criminal evades capture and punishment—and whenever an innocent is wrongfully convicted and sent to prison.’ ^*53 The more serious the charges the suspect faces, the more society is interested in him or her being caught and punished, which means that the best option would be to interrogate him or her without the presence of counsel, as counsel’s assistance may prevent him or her from speaking. But, at the same time, the more serious the charges, the more society is interested in excluding the chance of an innocent person being convicted, which means that the assistance of counsel should be guaranteed to the suspect from the very beginning. This dilemma, which also arises with less serious crimes (although not so sharply), is a very difficult one to solve. So far, both the USSC and the ECtHR have addressed it on the basis of the specific facts of the case. In addition, the EU has tried to bring some clarity to the matter, as will be analysed in the next section of this article.

4. Situations in which counsel does not have to be present in pre-trial proceedings

According to the judicial practice of the ECtHR and the USSC, the right to counsel’s presence in pre-trial proceedings may be waived by suspects. Research in the US shows that even after the Miranda decision, the number of waivers made in the interrogation room has been considerable. For example, R.A. Leo, who observed approx. 200 interrogations, concluded that 78% of the suspects ultimately waived their Miranda rights. ^*54 According to the Miranda decision, the waiver should be made ‘ knowingly and intelligently’. Decisions that followed Miranda show that the USSC accepts waivers easily: when the suspect has waived his or her Miranda rights, it is presumed that the waiver is valid. ^*55 The police are even allowed to use trickery and deception in order to achieve waiver of the right to counsel during an interrogation ^*56 , which has led legal theorists and practitioners to propose that the USSC should take Europe as an example in this field. ^*57

The ECtHR has a stricter approach to the matter, stating that ‘a waiver of the right [to counsel] must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance’. ^*58 A waiver has to be voluntary, knowing, and intelligent, which means that ‘it must be shown that he or she [the suspect] could reasonably have foreseen what the consequences of his conduct would be’. ^*59 In its judgements, the ECtHR has also stressed a need to protect vulnerable suspects and explained that here the authorities should put extra effort into guaranteeing that the person understands the right and the consequences of the waiver of it. ^*60 This ECtHR stance is in accordance with research done in the US concluding that a substantial proportion of adolescents and adults with mental disabilities have impaired understanding of their Miranda rights and even if the adolescents seem to have an adequate understanding of these rights, they do not grasp the relevance of these to their own situation. ^*61 In Estonia, waiver of the right to counsel in pre-trial proceedings is not allowed if the suspect has not reached the age of majority or has a mental disability (§45 (2) 1) and 2) of CCP). This means that the CCP, as does the ECtHR, assumes that vulnerable suspects need special protection.

The ECtHR allows exceptions to the right to have counsel in the pre-trial stage, stating that ‘a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right’. Still it has to be made sure that these restrictions do not unduly prejudice the suspect’s right to a fair trial. ^*62 Any exception should be ‘clearly circumscribed and its application strictly limited in time’, the principles that should particularly be followed in the case of serious charges. ^*63 The ECtHR has not provided us with an example of what could constitute a compelling reason. In the US, the USSC has held that the police need not give the Miranda warnings when doing so would pose a threat to public safety—e.g., if the suspect’s silence might prevent police from discovering a dangerous weapon. ^*64

The proposal for a directive provides that the right to have counsel present during interrogation may be derogated from for compelling reasons related to urgent need to avert serious adverse consequences for the life or physical integrity of one or more persons. ^*65 Additionally, in an evidence-gathering act, the right to have counsel present should be guaranteed, unless this would prejudice the acquisition of evidence (an explanatory memorandum clarifies that this refers to situations wherein the evidence to be gathered could be altered, removed, or destroyed through the passage of time needed for the lawyer to arrive). ^*66 The Member States objected to these provisions, expressing their fear that the obligatory presence of counsel during evidence-gathering acts could lead to delays. Additionally, in their opinion, the closed list of compelling reasons is too strict, because often derogation would be necessary for investigative reasons. ^*67 Several Member States also stated that where the rules of criminal procedure are concerned, the rights of suspects are only one consideration: it also has to be taken into account that the rules of criminal procedure should enable criminal proceedings to be conducted effectively and efficiently, which is in the interest not only of the wider public who expect offenders to be investigated and prosecuted but also of suspects, ensuring that matters are to be resolved expeditiously. ^*68 This led the Presidency to propose that only the term ‘compelling reasons’ be provided for in the proposal, with the explanation that ‘[s]uch postponements could in particular be justified when there is an urgent need to avert serious adverse consequences for the life, liberty or physical integrity of a person, to prevent a substantial jeopardy to ongoing criminal proceedings, or when it is extremely difficult to provide a lawyer due to the geographical remoteness of the suspect, e.g. in overseas territories’. ^*69 As for the evidence-gathering acts, the Presidency proposes that it should be up to Member States to determine which evidence-gathering acts the suspect has the right for counsel to attend. Nevertheless, there are some acts for which the Presidency considers participation of counsel compulsory: identity parades, confrontations, and experimental reconstruction of the crime scene. ^*70

From the developments in the EU described above, it can be concluded that both the ECtHR and the EU have left the concept of ‘compelling reasons’ to be defined by the Member States in light of the special circumstances of the case. In Estonia, the Supreme Court has interpreted §21 (1) of the Constitution and stressed that this right may be restricted only for purposes of protecting another fundamental right or value arising from the Constitution. ^*71 This could be, for example, the life of another person, physical integrity, freedom, property (dealt with in §§ 16, 18, 20, and 32 of the Constitution, respectively), or public order (the Constitution explicitly allows restriction of rights provided for in its §§ 26, 33, 40, 45, and 47 in order to protect public order). Nevertheless, the restriction must always be provided for by law. ^*72 According to the second sentence of §33 (2) of the CCP, interrogation may be postponed if this is necessary for ensuring the participation of counsel. To interpret this sentence in accordance with the Constitution, one has to conclude that whenever counsel cannot be present during the interrogation but the suspect wishes him or her to be or when the presence of counsel is mandatory, the interrogation has to be postponed. Therefore, it could be argued that in Estonia any restriction of suspects’ right to have counsel present during interrogations is prohibited unless the suspect him- or herself waives the right to counsel. If the legislator finds any other restriction to be necessary, it should add it to the CCP.

5. Conclusions

The right to have counsel in pre-trial proceedings is not an absolute right, as one can conclude from analysis of the legal acts of Estonia, stances taken by the EU, and the judicial practice of the ECtHR and of the USSC. First, it is a right that can be waived, at least in the majority of criminal cases. Secondly, different values must be taken into account when this right is applied, which means that in some cases it could be concluded that the suspect does not have the right to have counsel present during a specific stage of the pre‑trial proceedings even if he or she demands a lawyer’s presence. According to the judicial practice of the Supreme Court of Estonia, the values that may bring about this situation are the ones that are protected by the Constitution. The viewpoint of the EU and the ECtHR is that the restriction allowed to the right to have counsel in pre-trial proceedings is any compelling reason stemming from specific facts of the case. Nevertheless, in order for the right to have counsel present in pre-trial proceedings in Estonia to be restricted, the restriction has to come from the law. The CCP provides that a suspect may waive his or her right to have counsel unless that participation is mandatory under the CCP, but it does not give any other justifications for restrictions, which means that in Estonia the right to have counsel present in pre-trial proceedings is an absolute one, unless the suspect him- or herself agrees to participate without counsel.

Notes:

^*1    Green Paper from the Commission—Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union (19.2.2003, COM(2003) 75 final), Sections 4.1 and 4.3 (a).

^*2    Eesti Vabariigi põhiseadus. – RT 1992, 26, 349; RT I, 27.4.2011, 2 (in Estonian). The Constitution of the Republic of Estonia. Unofficial translation available at http://www.legaltext.ee/et/andmebaas/tekst.asp?loc=text&dok=X0000K1&keel=en&pg=1&ptyyp=RT&tyyp=X&query=p%F5hiseadus (most recently accessed on 16.8.2012).

^*3    Supreme Court Criminal Chamber ruling, 3-1-1-114-02, paragraph 7.3. – RT III 2002, 34, 370 (in Estonian).

^*4    E.-J.Truuväli et al. (eds). Eesti Vabariigi põhiseadus: Kommenteeritud väljaanne (The Constitution of the Republic of Estonia: Commented Edition), 2nd ed. Tallinn: Juura 2008, §21 (comment 6) (in Estonian).

^*5    Kriminaalmenetluse seadustik. – RT I 2003, 27, 166; RT I, 17.4.2012, 6 (in Estonian).

^*6    In accordance with §45 (1) of the CCP, counsel may participate in a criminal proceeding as of the moment at which a person acquires the status of a suspect in the proceedings.

^*7    John Murray v. the United Kingdom , application no. 18731/91, 8.2.1996; Magee v. the United Kingdom,application no. 28135/95, 6.6.2000; Brennan v. the United Kingdom, application no. 39846/98, 6.10.2001.

^*8    Salduz v. Turkey, application no. 36391/02, 27.11.2008.

^*9    A. Beijer. False confessions during police interrogations and measures to prevent them. – European Journal of Crime, Criminal Law & Criminal Justice 2010 (18), pp. 312–313; C. Brants. The reluctant Dutch response to Salduz. – Edinburgh Law Review 2011 (15), p. 302.

^*10 The European Convention on Human Rights and Fundamental Freedoms. Available at http://www.echr.coe.int/NR/rdonlyres
/D5CC24A7‑DC13‑4318‑B457‑5C9014916D7A/0/CONVENTION_ENG_
WEB.pdf (most recently accessed on 1.3.2012).

^*11 See Note 8, p. 50.

^*12 Ibid ., p. 52. But not during the initial questioning when the person is not yet suspect: see Smolik v. Ukraine,application no. 11778/05, 19.2.2012. In 2010, this court expanded the right to counsel to those situations wherein the suspect is deprived of his or her liberty irrespective of any questioning; see Dayanan v. Turkey, application no. 7377/03, 13.10.2009, p. 32. Additionally, the Court has found since that the guarantees described in Salduz have to be applied for witnesses also, when they are in reality suspected of a crime; see Brusco v. France, application no. 1466/07, 14.10.2010, p. 47.

^*13 Aba v. Turkey ,applications no. 7638/02 and 24146/04, 3.3.2009; Lazarenko v. Ukraine,application no. 22313/04, 28.10.2010; Hüseyin Habip Taşkın v. Turkey , application no. 5289/06, 1.2.2011; Šebalj v. Croatia,application no. 4429/09, 28.6.2011.

^*14 J.S. Hodgson. Safeguarding suspects’ rights in Europe: A comparative perspective. – New Criminal Law Review 2011 (14), p. 657.

^*15 HR, 30.6.2009, no. 2411.08 J, NbSr 2009, 249.

^*16 But not during interrogation, as seen when one analyses paragraph 48 of the judgement. See also F. Leverick. The Supreme Court strikes back. – Edinburgh Law Review 2011 (15), p. 290. However, after the Cadder judgement, Scotland changed its procedural rules, and now every detainee has a right to consult with his or her counsel before and during questioning (but presence is not required; consultation can be done by telephone also). For more about this, see F. Leverick. The right to legal assistance during detention. – Edinburgh Law Review 2011 (15), p. 360.

^*17 Cadder v. HM Advocate [2010], UKSC 43 (26.10.2010).

^*18 P.R. Ferguson. Repercussions of the Cadder case: The ECHR’s fair trial provisions and Scottish criminal procedure. – Criminal Law Review 2011 (10), p. 756: ‘It is submitted that the lack of adverse inferences from silence, the short detention period and the corroboration requirement, were all safeguards against miscarriages of justice, and thus reflected a fair criminal procedure—a fairer procedure than a system which lacks these elements, but provides a right of legal advice at the police station.’

^*19 A. Dorange, S. Field. Reforming defence rights in French police custody: A coming together in Europe. – International Journal of Evidence and Proof 2012 (16), p. 154.

^*20 Zaichenko v. Russia, application no. 39660/02, 18.2.2010.

^*21 Ibid., p. 47.

^*22 T.A.H.M. Van de Laar, R.L. De Graaff. Salduz and Miranda: Is the US Supreme Court pointing the way? – European Human Rights Law Review 2011 (3), p. 307.

^*23 Brussels, 8.6.2011, COM(2011) 326 final, 2011/0154 (COD). Available at http://eur‑lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0326:FIN:EN:PDF (most recently accessed on 1.3.2012).

^*24 Ibid., explanatory memo, p. 4.

^*25 Later on, the Presidency suggested use of the term ‘official interview’, explaining that it means ‘the official questioning by competent authorities of a suspect or accused person regarding his involvement in a criminal offence, irrespective of the place where it is conducted or the stage of the proceedings when it takes place’, according to the revised text of the proposal, document 7337/12, 9.3.2012, p. 14. Available at http://eurocrim.jura.uni-tuebingen.de/cms/en/doc/1729.pdf (most recently accessed on 1.4.2012).

^*26 See Note 23, Article 3, paragraphs 1 (a), (b), and (c).

^*27 Paragraph 6 of the directive proposal states that the directive ‘promotes the application of the Charter, in particular Articles 4, 6, 7, 47 and 48, by building upon Articles 3, 5, 6 and 8 of the ECHR as interpreted by the European Court of Human Rights’.

^*28 The Constitution of the United States of America. Available at http://supreme.justia.com/constitution/ (most recently accessed on 1.3.2012). According to the Fifth Amendment of the Constitution, no person ‘shall be compelled in any criminal case to be a witness against himself’.

^*29 Ibid. According to the Sixth Amendment of the Constitution, in all criminal prosecutions, the accused shall enjoy the right to ‘have the Assistance of Counsel for his defence’.

^*30 Massiah v. United States, 377 U.S. 201 (1964).

^*31 Ibid., pp. 205–206.

^*32 Miranda v. Arizona, 384 U.S. 436 (1966).

^*33 Ibid., p. 477.

^*34 Ibid., p. 475.

^*35 B.G. Hungate-Noland. Texas v. Cobb: A narrow road ahead for the Sixth Amendment right to counsel. – University of Richmond Law Review 2001–2002 (35), pp. 1205–1206.

^*36 On the Sixth Amendment right to counsel: Kansas v. Ventris, 129 S. Ct. 1984, 1847 (2009). On the Fifth Amendment privilege against self-incrimination: Harris v. New York, 401 U.S. 222 (1971).

^*37 On the Sixth Amendment right to counsel: Nix v. Williams, 467 U.S. 431 (1984). On the Fifth Amendment privilege against self-incrimination: Oregon v. Elstad, 470 U.S. 298, 311 (1985).

^*38 In Patterson v. United States, the USSC decided that the Fifth Amendment waiver is sufficient for waiving the Sixth Amendment right to counsel (487 U.S. 285 (1988)).

^*39 D.C. Dearborn. ‘You Have the Right to an Attorney’, But Not Right Now: Combating Miranda’s Failure by Advancing the Point of Attachment under Article XII of the Massachusetts Declaration of Rights. – Suffolk University Law Review 2011 (44), p. 363; Suffolk University Law School Research Paper No. 10-64, 2011 p. 363. Available at SSRN: http://ssrn.com/abstract=1725546(most recently accessed on 1.3.2012). (They have preferred to have citation to the Suffolk University Law Review as well, the SSRN publishes faximile copy of the Law Review)

^*40 S. Trechsel. Human Rights in Criminal Proceedings. Oxford: Oxford University Press 2005,p. 245; Salduz v. Turkey (see Note 8), p. 54.

^*41 Salduz v. Turkey (see Note 8), p. 53.

^*42 Escobedo v. Illinois, 378 U.S. 478 (1964), p. 494, Justice Stewart, dissenting.

^*43 Salduz v. Turkey (see Note 8), p. 54. It could be claimed that the course of pre-trial proceedings determines the course of trial.

^*44 Lazarenko v. Ukraine (see Note 13), p. 50: ‘Having access to a lawyer ensures that the accused was able to make a good decision for his or her defence.’ A.M. Torres Chedraui. An analysis of the exclusion of evidence obtained in violation of human rights in light of the jurisprudence of the ECtHR. – Tilburg Law Review 2010–2011 (15), pp. 223–224.

^*45 Salduz v. Turkey (see Note 8), pp. 53–54.

^*46 Beijer (see Note 9), p. 324.

^*47 L.A. Henkel, K.J. Coffman. Memory distortions in coerced false confessions: A source monitoring framework analysis. – Applied Cognitive Psychology 2004 (18), pp. 569, 582. The more strongly the authorities believe that the suspect is, in fact, guilty, the more likely they are to use these techniques on him or her. However, there is not actually any reason to believe that they are able to assess correctly whether the suspect is guilty or not. On the contrary, there is considerable research concluding that interrogators are not accurate in that. M. Costanzo, E. Gerrity, M.B. Lykes. Psychologists and the use of torture in interrogations. – Analyses of Social Issues and Public Policy 2007 (7)/1, p. 11.

^*48 S.M. Kassin et al. Police-induced confessions: Risk factors and recommendations. – Law and Human Behavior 2010 (34)/3, pp.  14–15.

^*49 Trechsel (see Note 40), p. 284.

^*50 R.J. Toney. Disclosure of evidence and legal assistance at custodial interrogation: What does the European Convention on Human Rights require? – International Journal of Evidence and Proof 2001 (5), p. 40.

^*51 Miranda v. Arizona (see Note 32), p. 516, Justices Harlan, Stewart, and White, dissenting.

^*52 W.S. White. Deflecting a suspect from requesting an attorney. – University of Pittsburgh Law Review 2006–2007 (68), pp. 32–33.

^*53 Kassin et al. (see Note 48), p. 49.

^*54 R.A. Leo. Inside the interrogation room. – Journal of Criminal Law & Criminology 1995–1996 (86), pp. 276, 301.

^*55 E.g., Connecticut v. Parrett, 479 U.S. 523 (1987).

^*56 E.g., the USSC has held to be valid a confession made by a suspect who thought that as long as his or her statements were not in writing they could not be used against him or her (North Carolina v. Butler, 441 U.S. 369 (1979)). It has also refused to exclude confessions obtained after the police falsely told a suspect that his or her colleague had already confessed to the crime (Frazier v. Cupp, 394 U.S. 731 (1969)) and after the police deceived a suspect’s lawyer as to when interrogation would take place (Moran v. Burbine, 475 U.S. 412 (1986)).

^*57 See, for example, C. Slobogin. An empirically based comparison of American and European regulatory approaches to police investigation. – Michigan Journal of International Law 2000–2001 (423) 22, pp. 423–456. This piece raised Germany as an example for the US. According to §136a (1) of the German Code of Criminal Procedure, available at http://www.gesetze‑im‑internet.de
/englisch_stpo/englisch_stpo.html (most recently accessed on 1.3.2012), the accused’s freedom to make up his or her mind and to manifest his or her will shall not be impaired by ill-treatment, induced fatigue, physical interference, administration of drugs, torment, deception, or hypnosis. In Estonia, the CCP provides that evidence shall not be collected by torturing a person or using violence against him or her in any other manner, or through means affecting a person’s memory capacity or degrading his or her human dignity (§64 (1)).

^*58 Pishchalnikov v. Russia, application no. 7025/04, 24.9.2009, p. 77.

^*59 Ibid. The EU acknowledges the waiver in similar conditions in Article 9 of the proposal for a directive discussed above.

^*60 Panovits v. Cyprus ,application no. 4268/04, 11.12.2008. See also Plonka v. Poland, wherein the suspect was an alcoholic and the Court stated that ‘ [i]n the circumstances of the present case, the assertion in the form stating her rights that the applicant had been reminded of her right to remain silent or to be assisted by a lawyer […] cannot be considered reliable’ ( application no. 20310/02, 31.3.2009, p. 37).

^*61 Kassin et al. (see Note 48), p. 8.

^*62 Salduz v. Turkey (see Note 8), p. 55: ‘The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.’

^*63 Ibid., p. 54.

^*64 New York v. Quarles, 467 U.S. 649 (1984).

^*65 Note 23, Article 8 (a).

^*66 Ibid., Article 3, paragraph 1 (b) and explanatory memo, p 20.

^*67 General comments on the proposal, document 12643/11, 13.7.2011. Available at http://eurocrim.jura.uni‑tuebingen.de/cms/en/doc/1590.pdf (most recently accessed on 1.4.2012).

^*68 Note by Belgium, France, Ireland, the Netherlands, and the United Kingdom on the proposal, document 14495/11, 22.9.2011. Available at http://eurocrim.jura.uni-tuebingen.de/cms/en/doc/1625.pdf (most recently accessed on 1.4.2012).

^*69 See Note 25, p. 21.

^*70 Ibid., p. 19.

^*71 Judgement of the Constitutional Review Chamber of the Supreme Court of 18.6.2010, case 3-4-1-5-10, paragraph 38, 43. Available at http://www.nc.ee/?id=1176 (most recently accessed on 1.3.2012).

^*72 Truuväli et al. (see Note 4), §11 (comment 3.3.2).

The information obtained from witnesses and victims in criminal investigation is important evidence, with a significant effect on the overall result. ^*2 In recent decades, the effect of structured interviewing methods, such as the cognitive interview, on both child and adult witnesses’ accounts has been thoroughly studied; however, there has been less research examining which cognitive interview techniques are used more and how effective these techniques are.

The cognitive interview is one of the most effective procedures for enhancing witnesses’ memory. ^*3 The original version of this technique consisted of four main elements: 1) reinstatement of mental context, 2) reporting of everything, 3) recall of events in different order, and 4) a change in perspective. ^*4 Later, the ‘enhanced’ cognitive interview was developed ^*5 , a form with additional instructions, establishment of rapport, transfer of control of the interview to the witness, ensuring of questions’ compatibility with the witness’s background and state, encouragement to use focused retrieval, and application of imagery.

Cognitive interviews have been effective when compared to standard police interviews. ^*6 Koehnken, Thurer, and Zoberbier ^*7 have found that cognitive interviews produced 35% more information than did standard interviews. Also, effectiveness of the ‘enhanced’ form has been demonstrated. ^*8 Although there is an increase in the absolute quantity of incorrect information when the cognitive interview is used, there is no evidence that the cognitive interview adversely affects accuracy rates. ^*9 A shorter version of the cognitive interview (in which the change in perspective and recall in different order were removed) did not decrease the amount of information substantially. ^*10 Also, some techniques of the cognitive interview are used more frequently than are others. For example, Clifford and George ^*11 found that officers trained in cognitive interviewing gave instructions for mentally reinstating context nine times more frequently than instructions to change perspective. Memon, Holley, Milne, Koehnken, and Bull ^*12 noted that context reinstatement was used relatively often as compared to recall in different order or transfer of control.

Although the techniques of the cognitive interview can be considered to be effective, there may be difficulties in applying them in practice. One factor might be time, as there are competing matters for the investigator to deal with. ^*13 According to Kebbell, Milne, and Wagstaff, police officers also believe frequently that the cognitive interview takes longer to complete than an ordinary police interview. A cognitive interview requires more concentration and places a large cognitive burden on the interviewer. ^*14 The interviewer also has to be flexible and able to change interviewing style very quickly, depending on the interviewee. ^*15 Also, Kebbell and colleagues ^*16 found that, as noted above, some cognitive interview components were used more often than the others were (examples being establishing rapport and reporting everything), and these techniques were rated as more useful. Clarke and Milne ^*17 reported that many of the memory-enhancing components of the cognitive interview were not used at all.

Though the cognitive interview is more widely used with adults, there is also research and practical application through the National Institute of Child Health and Human Development in the US ( NICHD ) protocol for interviewing sexually or physically abused children. ^*18 Elements of the cognitive interview employed include emphasis on the structure of the interview and giving attention to an increase in invitations and direct questions. ^*19 When the NICHD protocol is used, the proportion of invitations and direct questions in children’s interviews increases, which indicate better quantity and quality results for these interviews. ^*20

An important part of both cognitive interviews per se and the NICHD protocol is the skill of deciding which type of questions to use, and how. It is known that invitations (e.g., ‘Tell me more’) and direct questions (e.g., ‘What happened next?’) elicit more accurate information than do option-posing (e.g., ‘Did he say…?’) or leading questions (such as ‘Did he push you several times?’) from both adults and children. ^*21 Also, the information provided through the use of leading or option-posing questions can be less informative and more inaccurate. ^*22 Sternberg, Lamb, Hershkowitz, Yudilevitch, Orbach, Esplin and Hovav ^*23 demonstrated that when the interview was conducted with more direct questions, the child provided more information about the crime. The use of invitations and direct questions increased the quantity of information without increasing the amount of misleading or inaccurate information. ^*24

Although training in structured interviewing methods is widespread, the problem in application of these methods remains. For example, the investigator may know how one should conduct the interview ‘according to the guidelines’ but may in an actual situation of investigation revert to more habitual or commonplace methods. Cederborg, Orbach, Sternberg, and Lamb ^*25 have indicated that investigators gather large amount of information by using methods with which the probability of inaccurate information is too large. ^*26 Also, it is commonly found that option-posing questions are widely asked in police interviews of children. ^*27

La Rooy, Lamb, and Memon ^*28 found that 97% of the Scottish investigators studied considered their training in interviewing to be good or very good and 88% believed that they will get enough information when interviewing someone; however, invitations and direct questions were not used very much in actuality. The authors also noted that after the one‑week training session, feedback was rarely given to the investigators. This leads to the conclusion that, although the investigators may understand the essence of the various question types from a theoretical perspective, they do not know which questions they really use. Myklebust and Bjorklund ^*29 found that there were no differences in usage of direct and option‑posing questions by investigators who were more trained and had had more practice than among those with less training and shorter practice. In training of investigators, the teaching has to be long-term and constant, with adequate feedback and supervision. ^*30 Finally, those officers who have received training try to use the newly acquired techniques more often, but if they fail to do so, the eagerness to use these techniques may wane over time.

1.1. Objective of the study

In the new form of the Estonian Code of Criminal Procedure, entering force in September 2011 ^*31 , §290¹ states that interviews with children under the age of 14 should be video‑recorded if the child victims’ or witnesses’ accounts given during preliminary investigation are to be used in court as evidence in criminal proceedings. Before this date, video recordings of interviews with children were made but for the context of preliminary investigation only, which could result in a situation wherein the child victim or witness still had to testify in court and repeat the testimony given during preliminary investigation. The change in law has created a situation wherein more investigators should be able to conduct video-recorded interviews.

For video-recorded interviews in Estonia, there are special rooms for interviewing children (and, if necessary, other vulnerable persons) in all prefectures. In comparison to regular interviewing, wherein the accounts of victims or witnesses are handled via a protocol for written form, video-recording places greater demands on the investigator, requiring more knowledge and skills. The investigator is also responsible for the quality of the evidence fulfilling all relevant requirements of the Code of Criminal Procedure. If the evidence is of poor quality, it cannot be used in court (for example, if the voice of the child is not clearly audible in the recording or the interview is conducted in a leading manner). If some aspects of the evidence (place, time, and method) are not investigated thoroughly, the necessity could arise to interview the child again, which might traumatise the child ^*32 or have a negative effect on the accuracy of the child’s memory. ^*33 Also, investigators who have not conducted video‑recorded interviews may feel performance anxiety when being filmed by a camera.

The benefit of video-recorded interviews in addition to not traumatising the child is that both sides in court know what the victim or witness testified and, therefore, it is easier to form the tactics and arguments. ^*34 Westcott, Davis, and Bull argue that when the suspect sees the child giving testimony, it may influence him or her to plead guilty before the trial and the case might have a quicker outcome—for example, with simplified proceedings. However, the Code of Criminal Procedure gives no indication as to which techniques or methods (such as the cognitive interview) should be used in interviews of children. Similar problems have occurred under Swedish legislation. ^*35

Therefore, the aim of the study reported on here was to examine Estonian investigators’ knowledge of principles of the cognitive interview and question types, as structured interviewing methods are still very infrequently used in Estonia. First, the paper examines which techniques of the cognitive interview investigators use most and how effective these techniques were considered. Previous research indicates that investigators tend to use techniques they think are effective. ^*36 It is, therefore, hypothesised that investigators use techniques related to communication and the process of the interview more than techniques that involve memory improvement.

Second, investigators’ knowledge of question types in investigative interviews is examined. It is known from investigative interviewing research that invitations and direct questions provide larger amounts of information than do option-posing and leading questions. ^*37 However, it is not clear how investigators understand what a direct question is, for example. Therefore, this notion is examined more thoroughly. It is hypothesised that investigators’ knowledge of direct and option-posing questions is better than is knowledge of invitations and leading questions.

2. Method

2.1. Participants

In this study, two surveys were conducted, one about investigators’ knowledge of principles of cognitive interviews and the other on investigators’ knowledge of question types in investigative interviewing. Twenty-five investigators participated in the first survey (eight males and 17 females), with the mean age being 34.2 years (SD = 5.69, range: 24–52). The survey was sent to 29 investigators, but four did not return the form. The investigators were specialists in criminal procedure, investigating crimes against minors and/or adults. The work experience of the investigators ranged from one month to 15 years (M = 5.12, SD = 4.96).

In the second survey, 26 investigators participated (one male and 25 female) and the mean age was 35.7 years (SD = 5.31, range: 26 to 54). The survey was sent to 35 investigators, nine of whom did not respond. Again, all investigators specialised in criminal procedure and investigation of crimes against minors and/or adults. The amount of work experience ranged from four months to 20 years (M = 5.96, SD = 4.70). The first survey was conducted in April 2011 and the second in November 2011. It is important to note that some officers completed both surveys but, because the research was anonymous, the number of investigators who completed both surveys cannot be stated.

2.2. Procedure

The first survey was based on the research of Kebbell et al. and of Dando and colleagues. ^*38 Investigators filled in the form either with pencil-and-paper methods or over the Internet, via e-mail. The participants were asked about their gender, their position with the police (the main types of crimes they were investigating), and how long they had worked in their current position. Then they had to evaluate which of the 14 techniques they use in their everyday work on a five-point Likert scale, from ‘never’ (scoring 1) to ‘always’ (scoring 5) and how effective they consider these techniques, from ‘not at all’ (scored 1) to ‘very effective’ (5).

The techniques were the following: 1) establish rapport; 2) explain the goals and process of the interview to the interviewee; 3) create a good environment for concentration (e.g., decreasing tension and letting the interviewee know that it is OK to give a ‘don’t know’ or ‘don’t remember’ answer);4) encourage concentration (e.g., ‘Try hard to remember’); 5) use witness‑compatible questioning (e.g., ask questions in the order that the witness remembers the event); 6) encourage mental reinstatement of context (e.g., ‘Try to think about how you were feeling at the time’ and ‘Try to think of the physical environment where you witnessed the crime’); 7) encourage reporting everything (e.g., ‘Tell me everything you can remember, even details you think are trivial and information you can only partially remember’); 8) encourage witnesses to say things in their own words, without interrupting; 9) work with recall in different orders (e.g., ‘recall the event in a different order—for example, start at the end and work backwards from there’); 10) change perspective (e.g., ‘Try to remember the incident from the perspective of someone else who was involved or from a different physical location’); 11) ask for imagery (e.g., ‘Think of a mental image of what you wish to remember’); 12) transfer control of the interview to the witness (e.g., ‘You are in charge of this interview, because you witnessed the event; Iwasn’t there’); 13) draw conclusions at the end of the interview; and 14) provide a final chance to recall more, at the end of the interview (e.g., asking whether the interviewee has anything to add before closure).

In the second survey, the investigators were handed a transcript of an interview of a 13-year- old boy, which was based on several real-life interviews. The investigators had to rate the question types in this transcription with pencil and paper. Although the term ‘question types’ is used in this paper to characterise utterance categories, some are not questions per se (for example, explanations and verbal affirmations).

Six distinct categories were used, stemming from the work of Lamb and colleagues. ^*39 Invitations were to prompt free-recall responses or making reference to the details mentioned by the child; letting the child provide a free-form account and indicating any direction in what the child should talk about (e.g., ‘Please tell in your own words...’, ‘Let’s talk more about...’, or ‘Describe...’). Direct questionsdealt with the details the child had mentioned in a way that allows longer responses by the child (e.g. ‘What did you say when…?’). Option-posing questionsfocused the child’s attention on details or selection of an interviewer-given option, also clarifying matters (as in ‘What was his name?’ or ‘Where (at what address) do you live?’). Leading questions wereconstructed in such a way that the interviewer indicates what response is expected from the child (e.g., ‘Did he punch you several times?’). Verbal affirmationswere interviewers’ responses to children’s answers (such as ‘yes’ or ‘uh-uh’). Explanationswere interviewer remarks during the interview such as references to the child’s role, explaining the ground rules (e.g., ‘Now I will tell you what’s going to happen’). The interview transcript included 111 questions, of which six were invitations, 25 direct questions, 43 option-posing questions, seven leading questions, 17 verbal affirmations, and 13 explanations.

3. Results

First, results pertaining to the perceived use and effectiveness of cognitive interview techniques among Estonian investigators are presented. Then the results related to investigators’ knowledge of question types are analysed.

Table 1 presents the investigators’ responses as to perceived frequency of use of cognitive interview techniques. It can be seen that the investigators indicate using some cognitive interview techniques more than others. According to the Friedman test ^*40 , investigators’ perceived use of the cognitive interview techniques varied significantly: χ²(13, n = 25) = 212.71, p = .001. The Kendall coefficient of concordance ^*41 indicated that investigators were consistent in their use of the rankings, with W(13, n = 25) = .65, p = .001. Investigators stated that they use establishing rapport and last chance to recall most frequently, followed by explaining the goals and stating in one’s own words. Less frequently used techniques were imagery and change of perspective.

Table 1: Frequencies and percentages of use ratings for cognitive interview techniques

n = number of participants, M = mean, and SD = standard deviation.

Table 2 indicates that investigators consider some of the cognitive interview techniques more effective than others. A Friedman test revealed that investigators’ reports of the effectiveness of the components of a cognitive interview varied significantly: χ²(13, n = 25) = 163.49, p = .001. Again, the Kendall coefficient of concordance indicated significant consensus: W(13, n = 25) = .50, p = .001. Rankings for reported use of the cognitive interview techniques and perceived effectiveness were positively correlated, at r(25) = .792, p = .001, suggesting that those techniques rated as most useful were used most frequently. Investigators indicated that the most effective techniques are establishing rapport, last chance to recall, and drawing conclusions, followed by explaining the goals, reporting everything, and stating in one’s own words. Change in perspectives and use of imagery were considered less effective.

Table 2: Frequencies and percentages of effectiveness ratings for cognitive interview techniques

n = number of participants, M = mean, and SD = standard deviation.

With chi-square analysis ^*42 , it was found that there were statistically significant effects present for all of the question types (see Table 3). E xplanations were correctly rated in 90.7% (n = 225) of the cases, χ²(5, n = 248) = 979.58, p = .001. In 46.5% (n = 60) of the cases, the investigators correctly categorised invitations; however, investigators thought in 50.4% of cases (n = 65) that invitations were direct questions, χ²(3, n = 129) = 113.95, p = .001. Direct questions were correctly identified in 58% (n = 342) of the cases; to a lesser extent (28.3%, n = 167), direct questions were categorised as option-posing questions, χ²(4, n = 590) = 661.20, p = .001. Fifty-five per cent (n = 471) of the option-posing questions were correctly rated; to a lesser degree, the option-posing questions were considered to be either direct or leading questions, or verbal affirmations, χ²(5, n = 854) = 1019.93, p = .001. Verbal affirmation were correctly categorised in 88.8% (n =342) of cases, χ²(5, n = 385) = 1445.66, p = .001. Finally, leading questions were correctly rated in 48.8% (n = 41) of the cases and were often considered to be either option-posing questions (22.6%, n = 19) or verbal affirmations (17.9%, n = 15), χ²(3, n = 84) = 30.95, p = .001. The overall rate of correct categorisation of question types was 64.7%.

Table 3: Percentages and frequencies of question type ratings

Question types are presented vertically, with investigators’ ratings for different question types given horizontally; n = number of participants.

4. Discussion

In this study, two main findings emerged. First, investigators more often indicated using techniques that they separately deemed to be effective and that were more related to the communication and process of the interview than techniques involving cognitive memory improvement. Second, investigators were more correct in categorising explanations and verbal affirmations than identifying invitations or leading questions.

In an echo of the findings of Dando et al. and Kebbell et al. ^*43 , the investigators more often utilised those techniques related to the process of the interview. Techniques such as establishing rapport, giving a last chance to recall at the end of the interview, and explaining the goals of the interview were more often used than cognitive techniques such as change in perspectives or recall in different order. Clarke and Milne ^*44 too found that many of the memory-enhancing techniques of the cognitive interview are infrequently used. Use and perceived effectiveness were related; i.e., the techniques that are used more are considered to be more effective. This is a notion that should be clearly stressed in education of police officers and investigators in new interviewing techniques. That is, the essence of the technique should be fully understandable to the investigator; otherwise, these techniques are known of but not applied in practice. Therefore, the investigator may be aware of different techniques and even of the point in the interview at which the techniques should be applied but, since he or she does not believe in the technique’s effectiveness, it is not used.

As for the question types, investigators were fairly correct in their categorisation of explanations and verbal affirmations. Direct and option-posing questions created more difficulties, and invitations and leading questions were the most difficult to categorise correctly. It is known that invitations and direct questions are used in a smaller proportion than are direct or option-posing questions. ^*45 However, as these two types of questions create categorisation difficulties among investigators, the problem may be that, although the investigators know which are ‘more appropriate’ questions to use and which are not, they have difficulties in deciding in their work as to the categories of various questions.

When one is interviewing a child in preliminary investigation, leading questions can have a large effect on the child’s account in response to investigator questions. Therefore, investigators must learn to identify leading questions more clearly and during the interview rephrase leading or option-posing questions as invitations or open-ended questions. However, this task is mentally challenging, because a question is considered leading if it refers to something that the child has not said before ^*46 and at the time of the interview the investigator may possess a large amount of information (including other evidence than the child’s statements), which places great demands on his or her information-processing during categorisation of the child’s answers in terms of novel or already stated information.

To make investigative interviews with children more effective, good examples and best practice in interviews should be used in training wherein investigators have to evaluate the question types used, or they might evaluate the question types in their own interviews. The interviewer may even know that he or she is using an option-posing or a leading question during the interview but not necessarily possess the knowledge needed for responding accordingly and changing the style in view of different question types. Therefore, there is a strong need for a unified training programme for Estonian investigators in interviewing child or adult victims and witnesses (similarly to the PEACE model in England and Wales; see the work of Dando et al. ^*47 ). Investigators would benefit greatly from context-specific learning videos in Estonian (and in Russian). Also, constant feedback to the investigators on their own interviewing would help to maintain the newly acquired structured interviewing techniques’ application in practice.

Notes:

^*1    I wish to thank Hannes Hansalu, for gathering some of the data, and all of the investigators who participated in this research.

^*2    C. Dando, R. Wilcock, R. Milne. The cognitive interview: Inexperienced police officers’ perceptions of their witness/victim interviewing practices. – Legal and Criminological Psychology 2008/1, pp. 59–70.

^*3    R.P. Fisher, R.E. Geiselman. Memory Enhancing Techniques for Investigative Interviewing: The Cognitive Interview. Springfield, Illinois: Charles C. Thomas 1992.

^*4    R.E. Geiselman, R.P. Fisher, I. Firstenberg, L.A. Hutton, S.J. Sullivan, I.V. Avetissian, A.L. Prosk. Enhancement of eyewitness memory: An empirical evaluation of the cognitive interview. – Journal of Police Science & Administration 1984/3, pp. 74–80.

^*5    R.P. Fisher, R.E. Geiselman, M. Amador. Field test of the Cognitive Interview: Enhancing the recollection of actual victims and witnesses of crime. – Journal of Applied Psychology 1989/5, pp. 722–727; R.P. Fisher, R.E. Geiselman, D.S. Raymond, L.M. Jurkevich, M.L. Warhaftig. Enhancing enhanced eyewitness memory: Refining the cognitive interview. – Journal of Police Science & Administration 1987a/4, pp. 291–297.

^*6    R.P. Fisher, R.E. Geiselman, D.S. Raymond. Critical analysis of police interview techniques. – Journal of Police Science & Administration 1987b/3, pp. 177–185.

^*7    G. Kohnken, C. Thurer, D. Zoberbier. The cognitive interview: Are the investigators’ memories enhanced too? – Applied Cognitive Psychology 1994/1, pp. 13–24.

^*8    Fisher, Geiselman (see Note 3); A. Memon, R. Bull. The cognitive interview: Its origins, empirical support, evaluation and practical implications. – Journal of Community and Applied Social Psychology 1991/4, pp. 291–307; G. Koehnken, R. Milne, A. Memon, R. Bull. The cognitive interview: A meta-analysis. – Psychology, Crime & Law 1999/1–2, pp. 3–27.

^*9    R.E. Geiselman. On the use and efficacy of the cognitive interview. – Psycholoquy 1996/7, Witness Memory (2). Available at http://www.cogsci.ecs.soton.ac.uk/cgi/psyc/newpsy?7.11 (most recently accessed on 14.8.2012).

^*10 M.R. Davis, M. McMahon, K.M. Greenwood. The efficacy of mnemonic components of the Cognitive Interview: Towards a shortened variant for time-critical investigations. – Applied Cognitive Psychology 2005/1, pp. 75–93.

^*11 B.R. Clifford, R. George. A field evaluation of training in three methods of witness/victim investigative interviewing. – Psychology, Crime & Law 1996/3, pp. 231–248.

^*12 A. Memon, A. Holley, R. Milne, G. Kohnken, R. Bull. Towards understanding the effects of interviewer training in evaluating the cognitive interview. – Applied Cognitive Psychology 1994/7, pp. 641–659.

^*13 M.R. Kebbell, R. Milne, G.F. Wagstaff. The cognitive interview: A survey of its forensic effectiveness. – Psychology, Crime & Law 1999/1–2, pp. 101–115.

^*14 R.P. Fisher, R.E. Geiselman (see Note 3); Kebbell et al. (see Note 13).

^*15 C. Clarke, R. Milne. National Evaluation of the PEACE Investigative Interviewing Course. London: Home Office 2001.

^*16 Kebbell et al. (see Note 13).

^*17 Clarke, Milne (see Note 15).

^*18 M.E. Lamb, I. Hershkowitz, Y. Orbach, P.W. Esplin. Tell Me What Happened: Structured Investigative Interviews of Child Victims and Witnesses. Wiley: Chichester 2008.

^*19 Y. Orbach, I. Hershkowitz, M.E. Lamb, K.J. Sternberg, P.W. Esplin. Assessing the value of structured protocols for forensic interviews of alleged abuse victims. – Child Abuse and Neglect 2000/6, pp. 733–752.

^*20 Ibid .; M. Cyr, M.E. Lamb. Assessing the effectiveness of the NICHD investigative interview protocol when interviewing French-speaking alleged victims of child sexual abuse in Quebec. – Child Abuse & Neglect 2009/5, pp. 257–268; K.J. Sternberg, M.E. Lamb, Y. Orbach et al. Use of a structured investigative protocol enhances young children’s responses to free-recall prompts in the course of forensic interviews. – Journal of Applied Psychology 2001/5, pp. 997–1005.

^*21 Fisher, Geiselman (see Note 3); I. Hershkowitz, M.E. Lamb, K.J. Sternberg, P.W. Esplin. The relationships among interviewer utterance type, CBCA scores and the richness of children’s responses. – Legal and Criminological Psychology 1997/2, pp. 169–176; M.E. Lamb, I. Hershkowitz, K.J. Sternberg, P.W. Esplin, M. Hovav, T. Manor, L. Yudilevitch. Effects of investigative utterance types on Israeli children’s responses. – International Journal of Behavioral Development 1996/3, pp. 627–637; K.J. Sternberg, M.E. Lamb, I. Hershkowitz, P.W. Esplin, A. Redlich, N. Sunshine. The relation between investigative utterance types and the informativeness of child witnesses. – Journal of Applied Developmental Psychology 1996/3, pp. 439–451.

^*22 S.J. Ceci, M. Bruck. Jeopardy in the Courtroom: A Scientific Analysis of Children’s Testimony. – Washington, DC: American Psychological Association 1995; D.A. Poole, D.S. Lindsay. Assessing the accuracy of young children’s reports: Lessons from the investigation of child sexual abuse. – Applied and Preventive Psychology 1998/1, pp. 1–26.

^*23 K.J. Sternberg, M.E. Lamb, I. Hershkowitz, L. Yudilevitch, Y. Orbach, P.W. Esplin, M. Hovav. Effects of introductory style on children’s abilities to describe experiences of sexual abuse. – Child Abuse & Neglect 1997/11, pp. 1133–1146.

^*24 Hershkowitz et al. (see Note 21); Lamb et al. (see Note 21); Sternberg et al. (see Note 21).

^*25 A.-C. Cederborg, Y. Orbach, K.J. Sternberg, M.E. Lamb. Investigative interviews of child witnesses in Sweden. – Child Abuse and Neglect 2000/10, pp. 1355–1361.

^*26 J. Korkman, P. Santtila, M. Westeraker, N.K. Sandnabba. Interviewing techniques and follow-up questions in child sexual abuse interviews. – European Journal of Developmental Psychology 2008/1, pp. 108–128.

^*27 K. Kask. Dynamics in using different question types in Estonian police interviews of children. – Applied Cognitive Psychology 2012/3–4, pp. 324–329.

^*28 D. La Rooy, M.E. Lamb, A. Memon. Forensic interviews with children in Scotland: A survey of interview practices among police. – Journal of Police and Criminal Psychology 2011/1, pp. 26–34.

^*29 T. Myklebust, R.A. Bjorklund. The effect of long-term training on police officers’ use of open and closed questions in field investigative interviews of children (FIIC). – Journal of Investigative Psychology and Offender Profiling 2006/3, pp. 165–181.

^*30 M.E. Lamb, K.J. Sternberg, Y. Orbach, I. Hershkowitz, D. Horowitz, P.W. Esplin. The effects of intensive training and ongoing supervision on the quality of investigative interviews with alleged sex abuse victims. – Applied Developmental Science 2002/3, pp. 114–125.

^*31 Kriminaalmenetluse seadustik. – RT I 2003, 27, 166; RT I, 29.12.2011, 20 (in Estonian). English text available at http://www.just.ee/23295 (12.3.2012).

^*32 J. Henry. System intervention trauma to child sexual abuse victims following disclosure. – Journal of Interpersonal Violence 1997/4, pp. 499–512.

^*33 M. Bruck, S.J. Ceci, H. Hembrooke. The nature of children’s true and false narratives. – Developmental Review 2002/3, pp. 520–554; M.D. Leichtman, S.J. Ceci. The effects of stereotypes and suggestions on preschoolers’ reports. – Developmental Psychology 1995/4, pp. 568–578.

^*34 H.L. Westcott, G.M. Davis, R.H.C. Bull. Children’s Testimony. A Handbook of Psychological Research and Forensic Practice. England: John Wiley & Sons Ltd 2002, p. 213.

^*35 Cederborg et al. (see Note 25) .

^*36 Dando et al. (see Note 2); Kebbell et al. (see Note 13).

^*37 Lamb et al. (see Note 18); Cederborg et al. (see Note 25); Korkman et al. (see Note 26); Kask (see Note 27).

^*38 Dando et al.(see Note 2); Kebbell et al. (see Note 13).

^*39 Lamb et al. (see Note 21); M.E. Lamb, I. Hershkowitz, K.J. Sternberg, B. Boat, M.D. Everson. Investigative interviews of alleged sexual abuse victims with and without anatomical dolls. – Child Abuse and Neglect 1996/12, pp. 1239–1247.

^*40 The Friedman test is a non-parametric statistical test that measures differences across multiple test attempts.

^*41 Kendall’s coefficient of concordance is another non-parametric statistic. It is used for assessing agreement among raters (0 would denote no agreement and 1 complete agreement).

^*42 The chi-square test measures the difference between the frequency distributions of responses given by the groups compared.

^*43 Dando et al. (see Note 2); Kebbell et al. (see Note 13).

^*44 Clarke, Milne (see Note 15).

^*45 Kask (see Note 27).

^*46 For example, the question ‘How many times did the suspect hit you?’ can be considered leading if the child has not mentioned the suspect at all up to this point in the interview; in contrast, when the suspect has been mentioned already in the context of hitting (‘The man hit me several times’), the question can be categorised as an open-ended question.

^*47 Dando et al. (see Note 2).

1.1. Über die Entstehungsgeschichte

Mit der ersten Strafrechtsreform nach der Wiederherstellung der staatlichen Unabhängigkeit Estlands im Jahre 1992 wurde ein Hauptzweck berücksichtigt, das totalitäre sowjetische Strafrecht zu bewältigen. Unter anderen Änderungen wurden die ersten Schritte in die Richtung der strafrechtlichen Verantwortlichkeit der juristischen Personen vorgenommen. Nach dem Muster des deutschen Strafrechts hat die Verantwortlichkeit in den Rahmen des Ordnungswidrigkeitsrechts (nach der damaligen Bezeichnung „Verwaltungsstrafrecht“) eine Lösung gefunden, während das Strafrecht nur die Strafbarkeit der natürlichen Personen ausschließlich im Strafgesetzbuch wegen der Verbrechen vorgesehen hatte. ^*1 Der Allgemeine Teil des OWiG enthielt aber keine Bestimmungen betreffend der Grundlagen und Grenzen der Verantwortlichkeit der juristischen Personen; es gab nur die entsprechenden Tatbestände im Besonderen Teil, so dass es tatsächlich eher um eine objektive Verantwortung ging.

Die Frage der Strafbarkeit der juristischen Personen aktualisierte sich während der Vorbereitung der Strafrechtsreform 2002. Da die genannte Reform einen Zweck hatte, nach dem Muster des französischen Strafrechts alle strafbaren Taten – wie die Ordnungswidrigkeiten so auch die Verbrechen – mit der Regelung des Allgemeinen Teils des Strafrechts umzufassen, hatten auch die Grundlagen und Grenzen der Verantwortlichkeit der juristischen Personen auf ihre Lösung gewartet. Das am 1.09.2002 in Kraft getretene StGB hat erstmalig die entsprechenden Bestimmungen vorgesehen, wonach die Strafe gleich wegen der Ordnungswidrigkeiten und Verbrechen bedroht. ^*2 Nach dem § 14 StGB wird eine juristische Person wegen der Tat bestraft, wenn die Tat in ihrem Interesse und von ihrem Organ, dessen Mitglied, von ihrem Leitungsfunktionär (leitender Person) oder vom zuständigen Vertreter begangen wurde. Die Verantwortlichkeit wird nicht dem Staat, der kommunalen Verwaltung und öffentlich-rechtlichen juristischen Person angewandt. Die Bestrafung der juristischen Person schließt nicht die Bestrafung der natürlichen Person aus. Die Regelung beruht auf der Lösung des französischen Code pénal von 1994 als damals auf einem von den modernsten Strafgesetzbüchern Europas. ^*3 Neben den obengenannten Zurechnungskriterien gibt das StGB im § 37 die allgemeinen Grundlagen der Schuld der juristischen Person, wonach die juristische Person wegen ihrer Rechtsfähigkeit gleichzeitig schuldfähig ist.

1.2. Spezialitäts- oder Universalitätsprinzip?

Die allgemeinen Grundlagen der Verantwortlichkeit der juristischen Personen realisieren sich in der Strafbarkeit wegen der konkreten Straftat durch das Spezialitätsprinzip. Laut des § 14 Abs. 1 StGB wird die juristische Person nur in den im Gesetz direkt vorgeschriebenen Fällen bestraft, was gesetzestechnisch sich in jedem entsprechenden Tatbestand des Besonderen Teils durch eine Bestimmung … wegen derselben Tat, wenn sie durch die juristische Person begangen ist… äußert.

Das Spezialitätsprinzip ist zwar für den Anwender des Gesetzes hilfereich, da keine Notwendigkeit besteht, in jedem konkreten Fall über die Möglichkeit der Bestrafung der juristischen Person zu entscheiden. Jedoch gibt diese Lösung keine Richtlinien für den Gesetzgeber, wodurch seinerseits die Einführung der Strafbarkeit keine bestimmten Kriterien enthält und deswegen unter der Zufälligkeit leidet.

Aus den oben beschriebenen Erwägungen wird im Justizministerium ein Gesetzesentwurf mit dem Vorschlag vorbereitet, auf das Spezialitätsprinzip zugunsten des Universalitätsprinzips zu verzichten. ^*4 Das würde bedeuten, dass die juristischen Personen gleich der natürlichen für alle Taten strafbar wären – eine Lösung, die durch den Gesetzgeber der Niederlande, des Belgiens, Finnlands, Norwegens, Großbritanniens u. a. schon betroffen ist. ^*5 Der Schwerpunkt wird dadurch von dem Gesetzgeber auf die Rechtspraxis übertragen, die in jedem konkreten Fall (und nicht ohne die aus der Strafrechtsdogmatik stammenden Erwägungen) entscheiden soll, ob die Strafbarkeit der Tat auch bei der juristischen Person tatsächlich möglich ist. Zugleich sind die Probleme des Bestimmtheitsgebots nicht ausgeschlossen, da die Anwendung des konkreten Tatbestands zu viel Raum für die – und möglicherweise sehr weite – Auslegung bereitet. Aus der Seite des Unrechtsbewusstseins können weiter die Fragen vorkommen, ob man schon aufgrund des Strafgesetzes überhaupt entscheiden kann, ob es um eine verbotene oder zulässige Tat geht. Vor allem im Bereich der Wirtschaftskriminalität bedroht diese Lage eine große Belastung auf den Verbotsirrtum (§ 39 StGB) aufzulegen.

2. Anknüpfungstat und die Zurechnung der Tat der natürlichen Person zu der juristischen Person

2.1. Nur durch die natürliche Person

Die estnische Gerichtspraxis hat vielmal den Standpunkt geäußert, dass die primäre Voraussetzung der Verantwortung, also der Zurechnung der Tat für die juristische Person nur durch die sog persönliche Verbindung, die Anknüpfungstat der natürlichen Person ist. ^*6 Diese Tat muss ihrerseits allen Forderungen der Strafbarkeit der Tat nach dem StGB entsprechen – tatbestandsmäßig, rechtswidrig und schuldhaft sein (§ 2 Abs. 2 StGB). ^*7

Nach der Theorie „der leitenden Vernunft“ kann die obengenannte natürliche Person vor allem ein Leitungsfunktionär, also die Person sein, die die Tätigkeit der juristischen Person bestimmt oder dazu beiträgt. Nach dem Vorbild des französischen Code pénal schreibt auch § 14 Abs. 1 des estnischen StGB vor, dass neben dem Organ als direkten Täter auch der Anknüpfungstäter ein Leitungsfunktionär sein kann. ^*8

Damit vereinigt das estnische Strafrecht sich mit der zivilrechtlichen Anschauung, dass die juristische Person an sich als eine bloße Fiktion durch ihre Vertreter tätig ist. ^*9 Ebenso ist nach dem § 31 Abs. 5 die Tätigkeit des Organs der juristischen Person als die Tätigkeit der juristischen Person zu sehen.

Neben dem Organ oder seinem Mitglied kann nach dem estnischen Strafrecht die strafrechtliche Verantwortung der juristischen Person auch auf der Tätigkeit des Leitungsfunktionärs beruhen. Wenn der Begriff des Organs im Strafrecht aus dem Zivilrecht stammt, hat der Begriff des Leitungsfunktionärs eine reine strafrechtliche Herkunft. Die Anwendung dieses autonomen strafrechtlichen Begriffs beruht auf der Notwendigkeit, die so genannte delegierte Verantwortungslosigkeit zu vermeiden, wenn die für die juristische Person wesentlichen Entscheidungen von der Person getroffen sind, die zwar leitende Stellung in der Korporation hat, aber kein Mitglied des Organs ist. Der Leitungsfunktionär kann Direktor, Abteilungsleiter oder andere, in den für die juristische Person wichtigen Tätigkeitsbereiche leitend wirkende Person sein. Dabei muss man aus der Sicht der Identifikationstheorie ausgehend feststellen, dass die Tätigkeit dieser Person mit der Tätigkeit der Korporation als gleiches anzusehen ist. ^*10

Estnisches Staatsgericht hat dem obengenannten Standpunkt bestätigend erklärt, dass insbesondere bei den großen Korporationen verständlicherweise die Leitungsorgane nicht alle alltägliche Fragen lösen brauchen, sondern solche Zuständigkeit weiter auf die anderen Ebenen vertrauen können. Die auf diesen mittleren Ebenen betroffenen Entscheidungen wurden mit der Tätigkeit der leitenden Person gleichgestellt. ^*11 Dabei hat das Staatsgericht aber immer betont, dass die Tat der entsprechenden natürlichen Person – eine Entscheidung für die konkrete Handlung – sich eine unvermeidbare Voraussetzung der Strafbarkeit der juristischen Person darstellt. ^*12

Die Bestrafung der juristischen Person wurde demgemäß wegen der Tat ihres gewöhnlichen Arbeiters unmöglich. Die Anwendungspraxis des StGB hatte aber bald gezeigt, dass es ganz oft Fälle gab, wenn die Durchschnittsarbeiter die Taten im Interesse der juristischen Person begangen haben. Erstmals stand das Staatsgericht vor diesem Problem in einem Fall, wo es um eine Werbung des Glückspiels ging. Die Ordnungswidrigkeit – eine Ausstellung der Werbung außerhalb des Kasinos – wurde durch einen Arbeiter begangen, verurteilt wurde aber das Kasino als juristische Person. Im Amtsgericht (1. Instanz) wurde ein freisprechendes Urteil gefallen mit der Begründung, dass keine natürlichen Personen festgestellt waren, die die Werbung ausgestellt hatten. Staatsgericht ließ das Urteil in Kraft und betonte nochmal, dass die Verantwortung der juristischen Person nur von der Tat der natürlichen Person ausgehen kann. Dadurch hat das Staatsgericht zugestanden, dass die Strafbarkeit auch in den Fällen zu bejahen ist, wo die Tat zwar durch einen Durchschnittsarbeiter begangen wurde, aber nur durch eine Genehmigung oder Verfügung des Organs oder des Leitungsfunktionärs zustande gekommen ist. ^*13

Wirklich muss man annehmen, dass die Ausstellung der Werbung eine Tätigkeit ist, die kaum von dem Leitungsfunktionär eigenhändig ausgeübt wird. Deswegen kann die Gerichtsentscheidung so ausgelegt werden, dass es gerecht ist, die Grenzen der Strafbarkeit der juristischen Person zu erweitern und als Anknüpfungstäter auch den Durchschnittsarbeiter zu sehen. Rechtsdogmatisch ist diese Lösungsgang mit der Figur der mittelbaren Täterschaft begründbar, und zwar in zwei Konstellationen – zum einen, wenn es um einen vorsatzlos oder im Verbotsirrtum (schuldlos) handelnden Werkzeug geht, und zum zweiten kann die juristische Person eine Tatherrschaft mittels organisatorischer Machtapparate erreichen. ^*14 Die Anwendung einer bloßen Identifikationstheorie kann zur Verantwortung der Korporation nicht führen, da die Tätigkeit des Durchschnittsarbeiters an sich der Tätigkeit der juristischen Person nicht gleichgestellt werden kann; dagegen führt eine Genehmigung oder Verfügung des Organs oder des Leitungsfunktionärs zur Tatherrschaft der juristischen Person und dadurch weiter zur Identifikation der Tätigkeit des Durchschnittsarbeiters mit der Tätigkeit der Korporation.

Mit der Gesetzesänderung vom 19.06.2008 (in Kraft ab dem 28.07.2008) wurden die Grundlagen der Verantwortlichkeit der juristischen Person wesentlich erweitert. ^*15 Es geht um ein neues Subjekt der Anknüpfungstat, nämlich um den zuständigen Vertreter der juristischen Person. Gewiss ist die Vertretung ein zivilrechtlicher Begriff, der unmittelbar mit dem zivilrechtlichen Geschäft gebunden ist. Da das Geschäft keinesfalls als Gegenstand der strafrechtlichen Regelung sein kann, entsteht hierbei eine unvermeidliche Frage, um welche Vertretung es geht? Es liegt außer Zweifel, dass die Strafbarkeit als strafrechtliche Verantwortlichkeit nur streng individuell sein kann und im Unterschied zum Zivilrecht die Verantwortung einer Person für die Handlung der anderen völlig ausgeschlossen ist (z. B. § 1054 des Schuldrechtgesetzes). Zwar kennt das Strafrecht die dogmatischen Figuren der Mittäterschaft und mittelbaren Täterschaft, die aber in Rahmen der individuellen Verantwortung bleiben und keinen Raum für die Vertretung und das Geschäft lassen. Deswegen kann man die Gesetzesänderung kaum als gelungen halten, abgesehen von den Schwierigkeiten mit der schuldhaften Zurechnung. Jedenfalls hat man mit dem Begriff des zuständigen Vertreters vom Grundsatz abgesagt, dass der Anknüpfungstäter eine von den Personen sein muss, die den Willen der juristischen Person äußern und ihre Tätigkeit gestalten. ^*16

Die obligatorische Anknüpfungstat der natürlichen Person bedeutet keine Mittäterschaft oder Teilnahme der natürlichen Person an der Straftat der juristischen Person. ^*17 Es geht um die parallele Verantwortung der beiden Personen, die keine Doppelbestrafung bedeutet und einen Zweck hat, die Möglichkeit des Mitglieds des Organs oder des Leitungsfunktionärs auszuschließen, seine Tat hinter den Schirm der juristischen Person zu decken und die Bestrafung zu vermeiden. Dieses Grundsatz ist schon in der Rekommandation der Europäischen Union enthalten (Beilage, P I.5). ^*18

Das Prinzip der derivativen Verantwortung erweitert sich nicht auf den Strafprozess – die Einstellung des Verfahrens betreffend der natürlichen Person durch die Opportunität (§ 202 ff der estnischen StPO, § 153a der deutschen StPO) oder z. B. wegen ihres Todes schließt eine Weiterführung des Verfahrens betreffend der juristischen Person nicht aus. ^*19

Zusammenfassend kann man feststellen, dass die Verantwortung der juristischen Person nur durch das Miteinbeziehen der natürlichen Person, also nicht ohne derivative Verantwortung möglich ist. Dabei betont das Staatsgericht zwar, dass die Verantwortung der natürlichen Person vorangehen sollte und die juristische Person nur ausnahmsweise zur Verantwortung gezogen werden kann. Diese Lösung gewährleistet eine klare Verbindung mit dem bisherigen strafrechtlichen Denken – dass die Strafbarkeit im Strafrecht ohne volldeliktisch handelnde natürliche Person unmöglich ist. ^*20

2.2. Die Tat im Interesse der juristischen Person

Weitere Voraussetzung für die Zurechnung der Tat der natürlichen Person ist die Forderung, dass die Anknüpfungstat im Interesse der Korporation begangen wurde. Die Begrenzung beruht auf der Notwendigkeit, die Verantwortlichkeit der juristischen Person in den Fällen auszuschließen, welche außerhalb der Tätigkeitssphäre der Korporation bleiben. ^*21 Der Begriff im Interesse der juristischen Person ist ausweitend auszulegen; es reicht die Berücksichtigung der Zweck, die Tätigkeit oder den Zustand der Korporation zu bessern oder weiterzuentwickeln, ohne dabei die konkrete Gewinne oder Vorteile festzustellen. Das Staatsgericht hat in diesem Bezug betont, dass man sich beim Feststellen der Interessen keinesfalls mit dem Vermögensvorteil beschränken muss und es um die Interessen gehen kann, die außerhalb der in das Handelsregister eingetragenen Tätigkeitsgebiete bleiben. Zwar ist es notwendig im Gerichtsurteil zu zeigen, in welcher Weise die Anknüpfungstat die Interessen der Korporation äußert. ^*22 Die Interessen der juristischen und unmittelbar handelnden natürlichen Person können übereinstimmen, wobei diese Fälle sich eher keine Ausnahme, sondern eine Regel darstellen. ^*23

Rechtsdogmatisch ist zu beachten, dass das Interesse der juristischen Person kein selbständiges Element der Deliktsstruktur, sondern ein Element des Tatbestandes ist, das aus der objektiven Seite die Tat beschreibt, aus der subjektiven Seite aber vom Vorsatz der Anknüpfungstäter umgefasst sein muss. ^*24 Wenn die Handlung im Interesse der juristischen Person zum Tatbestand gehört und auf der Ebene der Rechtswidrigkeit keine Sonderprobleme auftauchen, dann kommt man zur Frage der schuldhaften Seite der strafrechtlichen Haftung der juristischen Person. Auf der Tatbestandsebene wurde gezeigt, dass in gewissen Fällen trotz der Forderung der volldeliktischen Anknüpfungstat noch etwas zusätzliches aus der Seite der juristischen Person, genauer von ihrem Organ oder dem Leitungsfunktionär zukommen muss – nämlich eine die Tatherrschaft begründende Genehmigung oder Verfügung zu der Tat des Durchschnittsarbeiters. Dieser doppelgeschichtete Charakter des Tatbestandes wirft die Frage auf, reicht es auf der Schuldebene ebenso nur von der Schuld der unmittelbar wirkenden Person oder müssen dazu noch die zusätzlichen Schuldmerkmale zukommen?

3. Schuldprinzip und Zurechnung

3.1. Schuldprinzip im estnischen Strafrecht und Eigenart der juristischen Person

In der Praxis ist noch nicht die Frage aufgetaucht, ob das Schuldprinzip als eine Voraussetzung der strafrechtlichen Verantwortlichkeit zu den grundgesetzlichen Prinzipien gehört oder nicht. Jedenfalls wird in § 22 des Grundgesetzes Estlands gesagt, dass niemand als eines Verbrechens schuldig betrachtet werden darf, solange nicht ein schuldigsprechendes Gerichtsurteil gegen ihn Rechtskraft erlangt hat. ^*25 Das § 2 Abs. 2 StGB enthält das Schuldprinzip: die Tat ist nur strafbar, wenn sie tatbestandsmäßig, rechtswidrig und schuldhaft ist. § 32 Abs. 1 verlangt, dass die Person nur dann bestraft werden kann, wenn sie eine rechtswidrige Tat schuldhaft begangen hat.

Da das Deliktsstruktur des StGB keinen Unterschied zwischen den natürlichen und juristischen Personen macht, kann man davon eindeutig folgern, dass auch die Bestrafung der juristischen Person ohne schuldhafte Tat unmöglich ist. Die Schuldfähigkeit ausschließenden Umstände im Kapitel 2 Abschnitt 3 StGB gelten deswegen formell sowohl für die natürliche als auch für die juristische Person. Tatsächlich gibt es da nur einen die Schuldfähigkeit ausschließenden Umstand, nämlich sagt § 37 a contrario, dass eine juristische Person schuldfähig ist, wenn sie rechtsfähig ist. Privatrechtliche juristische Person bekommt eine Rechtsfähigkeit mit dem Eintragen in das Register, öffentlich-rechtliche juristische Person aber während der im Gesetz vorgeschriebenen Zeit (§ 26 des Gesetzes des Allgemeinen Teils des Bürgerlichen Gesetzbuches). Die Schuldfähigkeit der natürlichen Person besteht in der Zurechnungsfähigkeit (z. B. §§ 34-35: geistiger Zustand des Täters) und in den schuldausschließenden Gründen (z. B. § 39 Verbotsirrtum u. a.). ^*26

Wenn man streng bei der Anknüpfungstat der natürlichen Person bleibt, kann man ohne weiteres feststellen, dass die Schuldhaft der Tat der juristischen Person sich in den Schuldmerkmalen der natürlichen Person völlig erschöpft. Die zusätzlichen Tatbestandsmerkmale leiten aber zur Frage, ob auch die Schuldfrage zweifach gestellt werden soll; oder anders gefragt – reicht die Schuld der natürlichen Person wirklich aus, um über die Schuld der juristischen Person zu sprechen?

Hier ist grundsätzlich mit H. J. Hirsch zuzustimmen, dass für die Verbandsschuld die Schuld eines für sie handelnden Organs eine notwendige Voraussetzung ist, aber gleichzeitig müssen noch die gesetzwidrigen Schritte des Organs auch für den Verband vermeidbar sein. ^*27

Neben der Vermeidbarkeit der Anknüpfungstat als der allgemeinen Schuldvoraussetzung ist allerdings zu prüfen, ob und in welcher Weise die Schuld des Anknüpfungstäters als Schuld der juristischen Person von den spezifischen Zügen des Täters abhängig ist.

3.2. Schuldhafte Zurechnung im Bezug zum Subjekt

Vermeidbarkeit der Tat und Unrechtsbewusstsein des Täters als allgemeine Schuldmerkmale der natürlichen Person reichen völlig aus, wenn die Anknüpfungstat durch das Organ, sein Mitglied oder einen Leitungsfunktionär begangen wurde. Die genannte Person äußert den Willen und die Rechtsfähigkeit der juristischen Person und ihre im Interesse der juristischen Person begangene Tat ist ohne weiteres der juristischen Person zuzurechnen. Eine solche Auffassung wurde beim Inkrafttreten des StGB als Grundlage der Verantwortlichkeit der juristischen Person festgelegt (siehe auch oben Zf. 2.1).

Wenn eine rechtswidrige Handlung für das Organ oder dem Leitungsfunktionär der juristischen Person vermeidbar war und damit die Schuldvoraussetzung erfüllt ist, wird die Tat der juristischen Person zugerechnet. Aber wenn der zuständige Vertreter und der Durchschnittsarbeiter in Rahmen ihrer Vertretungszuständigkeit oder der Arbeitsaufgaben tätig sind, werden sie zwar als im Interesse der juristischen Person wirkende Personen betrachtet, aber kann man auch ihre rechtswidrige Tat als Anknüpfungstat für die Verantwortlichkeit der juristischen Person sehen? Aus einer Seite kommt diese Folgerung expressis verbis von dem Wortlaut des § 14 Abs. 1 (zuständiger Vertreter) und von der Praxis des Staatsgerichts (Durchschnittsarbeiter) hervor, aus der anderen Seite kommt man jedoch zur Frage, wie können die Personen, die keinen Willen der Korporation äußern und ihre Tätigkeit nicht bestimmen, die Schuld der Korporation begründen?

Die Tat des Durchschnittsarbeiters wird der juristischen Person wie gewöhnlich bei der mittelbaren Täterschaft zugerechnet – gleich, ob es um den ohne den Vorsatz handelnden Vordermann oder um die organisatorische Tatherrschaft geht. Wie oben gesagt, führt eine Genehmigung oder Verfügung des Organs oder des Leitungsfunktionärs zur Tatherrschaft der juristischen Person und dadurch weiter zur Identifikation der Tätigkeit des Durchschnittsarbeiters mit der Tätigkeit der Korporation. Und umgekehrt – ohne Genehmigung oder Verfügung handelnder Durchschnittsarbeiter kann nur persönlich als eine natürliche Person zur Verantwortlichkeit gezogen werden, obwohl sie sogar die Tat zugunsten der juristischen Person begangen hat.

Kaum kann man aber beim zuständigen Vertreter die Schuldhaftigkeit der Tat der juristischen Person durch die mittelbare Täterschaft begründen. Die Vertretung an sich bildet keine Vermeidbarkeit der Tat der juristischen Person und ist deswegen für ihre Schuld unzureichend, obwohl die Tat im Interesse der juristischen Person begangen wurde. In der Literatur wird behauptet, dass in solchen Fällen die minimale Voraussetzung der Schuld darin besteht, dass die juristische Person (ihr Organ oder Leitungsfunktionär) wissen sollte, dass die Tat des Vertreters rechtswidrig ist. Ohne weiteres kann man über die Schuld der Korporation sprechen, wenn die Tat des Vertreters auf einer Anordnung von der Seite des Organmitgliedes oder Leitungsfunktionärs beruht; ebenso, wenn der Vertreter seine Tat mit der Leitung der Korporation in Einklang gebracht hat. Die Übereinstimmung muss nicht unbedingt vor der Tat vorhanden sein, aber bestimmt nicht später als während der Tatbegehung. Dagegen findet keine Verantwortung der juristischen Person wegen des Fehlens ihrer Schuld statt, wenn der Vertreter die Tat ohne Zustimmung der Leitung in der Hoffnung begeht, dass sie seine Tat danach gutheißt. ^*28

Die gebrachten Erwägungen sind auch für den Durchschnittsarbeiter gültig, wenn seine Tat nicht aufgrund der mittelbaren Täterschaft der juristischen Person zugerechnet wird.

3.3. Die Strafbarkeit beim Unterlassen

Die Genehmigung, Verordnung und Übereinstimmung als aktive Tatformen bestimmen die Schuldhaftigkeit der juristischen Person wegen des Tuns. Beim Unterlassen ist die Verantwortlichkeit der juristischen Person zweifellos vorhanden, wenn das Organ, sein Mitglied oder ein Leitungsfunktionär pflichtwidrig passiv bleibt und keine gebotene Handlung vornimmt (z. B. Steuerhinterziehung). Umstritten ist aber die Anknüpfungstat als Unterlassen im Falle, wenn der Durchschnittsarbeiter oder der zuständige Vertreter zwar im Interesse der Korporation, aber ohne direkte Genehmigung oder Übereinstimmung die strafbare Tat begeht und die gebotene Handlung nur als die Aufsicht zu sehen ist. Eine Garantenstellung kann in diesem Fall aus dem Gesetz, aber auch aus der Verordnung, Satzung usw. hervorgehen. Für den strafrechtlichen Schuldvorwurf ist aus den rechtsstaatlichen Erwägungen erforderlich, dass die Garantenpflicht aus dem Gesetz, nicht aber aus der inneren Regelung der Korporation hervorgeht. ^*29

Eine Lösung wäre hier ähnelnd dem deutschen Ordnungswidrigkeitenrecht der Tatbestand der Verletzung der Aufsichtspflicht in Betrieben und Unternehmen einzuführen (§ 130 OWiG). Dadurch wären die Zurechnungsprobleme beim Unterlassen aus dem Allgemeinen Teil des StGB in den Besonderen Teil zu übertragen und aufgrund des echten Unterlassungsdelikts zu erledigt.

Der Gesetzgeber scheint hier jedoch einen anderen Weg vorzuziehen. Im Justizministerium ist ein Gesetzesentwurf in der Vorbereitung, in dem die Regelung im Allgemeinen Teil bleiben wird. Zum einen gibt man eine Definition des zuständigen Vertreters. Es geht um die Person, die eine Aufgabe hat, die wirtschaftlichen oder anderen Interessen der juristischen Person aufgrund der entgeltlichen oder unentgeltlichen Geschäft oder in anderer Weise unter der Kontrolle der juristischen Person stehend und die zum Einhalten der Aufgabe gegebene Zuständigkeit benutzend zu verteidigen (ein neuer Abs. 4 des § 14 StGB). ^*30

Für die Schuld der juristischen Person ist von größerer Bedeutung der im Entwurf vorgeschlagene neue Absatz 5 des § 14 StGB. Danach trägt die juristische Person keine Verantwortlichkeit wegen der Tat des zuständigen Vertreters, wenn sie vor der Tat die für die Vorbeugung der rechtswidrigen und für die Gewährleistung der rechtmäßigen Handlung notwendigen Maßnahmen eingeführt hat. Die Strafbarkeit ist jedoch zu bejahen, wenn trotz den genannten Maßnahmen der zuständige Vertreter einen Grund vorauszusetzen hatte, dass die juristische Person seine Straftat gutheißt.

4. Zusammenfassung

Im nach dem Schuldprinzip wirkenden Strafrecht ist eine Entbindung der Verantwortlichkeit der juristischen Person von dem Verhalten der Personen, die ihren Willen und ihre Tätigkeit bestimmen, unmöglich. Dabei sind die verschiedenen rechtsdogmatischen Figuren im Gebrauch, wie die Verantwortung durch die Einzelperson (Leiter oder Leitungsfunktionär auf der mittleren Ebene), die mittelbare Täterschaft (Durchschnittsarbeiter); eine Anordnung von der Seite des Organmitgliedes oder der anderen leitenden Person oder wenn der Vertreter seine Tat mit der Leitung der Korporation in Einklang gebracht hat. Endlich kann die Verantwortung der juristischen Person sich durch die Unterlassung der Aufsichtspflicht äußern.

Anmerkungen:

^*1    Eesti NSV Kriminaalkoodeks. Kommenteeritud väljaanne (Kommentar zum Strafgesetzbuch). Koostanud prof. I. Rebane. Tallinn: Eesti Raamat 1980, § 7/5c (auf Estnisch).

^*2    Die englische Übersetzung des estnischen StGB ist zugänglich im Internet: www.legaltext.ee/et.

^*3    Näher: J. Sootak. Kaks aastat karistusseadustikku – uus õigus ja uued probleemid? (Zwei Jahre des Strafgesetzbuchs – neues Recht und neue Probleme?) – Juridica 2005/1, S. 40 (auf Estnisch).

^*4    Der Entwurf ist noch in der Vorbereitung und hat keinen Status des offiziellen Entwurfs.

^*5    J. Pradel. Droit pénal comparé. 2. Éd. Dalloz 2002, S. 361.

^*6    Über die Tat der natürlichen Person und das Prinzip ne bis in idem siehe näher: J. Ginter. Criminal Liability of Legal Persons in Estonia. – Juridica International 2009 (XVI), S. 155.

^*7    z. B: Entscheidungen des Staatsgerichts Nr. 3-1-1-7-04; 3-1-1-82-04; 3-1-1-137-04, 3-1-1-25-06. Die Entscheidungen des estnischen Staatsgerichts (des obersten Gerichts) sind nur elektronisch und auf Estnisch zugänglich: www.riigi- kohus/lahendid/ee/ (Homepage des Staatsgerichts) oder www.riigiteataja.ee/ert/jsp (elektronischer Staatsanzeiger).

^*8    Über Code pénal siehe näher: J. Pradel (Fn. 5), S. 363.

^*9    K. Saare. Esindusorgani liikme käitumise omistamisest eraõiguslikule juriidilisele isikule seoses vastutuse küsimusega (Zurechnung der Tat des Mitgliedes des Vertretungsorgans betreffend der Verantwortung der juristischen Person). – Juridica 2003/10, S. 674 (auf Estnisch).

^*10 J. Sootak, P. Pikamäe. Karistusseadustik. Kommenteeritud väljaanne. 3. vlj. (Kommentar zum Strafgesetzbuch. 3. Aufl.). Tallinn: Juura 2009, § 14/8 (auf Estnisch).

^*11 Entscheidung des Staatsgerichts Nr. 3-1-1-9-05, P. 8.

^*12 Entscheidung des Staatsgerichts Nr. 3-1-1-7-04, P. 10.

^*13 Entscheidung des Staatsgerichts Nr. 3-1-1-82-04, P. 11.

^*14 Ein neues Typus der mittelbaren Täterschaft: Die Schaffung und Ausnutzung der Rahmenbedingungen. Siehe näher : P. Randma. Organisatsiooniline teovalitsemine – täideviija täideviija taga kontseptsioon teoorias ja selle rakendamine praktikas. Dissertationes Iuridicae Universitatis Tartuensis 30. Tartu Ülikooli Kirjastus 2011. Deutsche Zusammenfassung, S. 146 ff; idem. Beteiligungsmodelle im neuen Estnischen Strafgesetzbuch. – Juridica International 2008 (XV), S. 131–132.

^*15 Staatsanzeiger I 2008 Nr. 33 Art. 200.

^*16 P. Pikamäe. Kes on juriidilise isiku pädev esindaja karistusseadustiku § 14 mõttes? (Wer ist der zuständige Vertreter der juristischen Person im Sinn des § 14 StGB?) – Juridica 2010/1, S. 5 (auf Estnisch).

^*17 Entscheidung des Staatsgerichts Nr. 3-1-1-137-04, P. 14.3.

^*18 Im Internet zugänglich: https://wcd.coe.int/com.instranet.InstraServlet?Command=com.instranet.CmdBlobGet&DocId=698702&SecMode=
1&Admin=0&Usage=4&InstranetImage=44792.

^*19 Entscheidung des Staatsgerichts Nr. 3-1-1-137-04, P. 16–17.

^*20 Vor allem die Entscheidung des Staatsgerichts Nr. 3-1-1-137-04. Siehe auch E. Elkind, J. Sootak. The concept of corporate criminal responsibility and its further developments in the Estonian case law. – Rikosoikeudellisia kirjoituksia VIII. Raimo Lahdellel 12.1.2006 omistettu. Helsinki: Suomalainen Lakimiesyhdistys 2006, S. 429.

^*21 Entscheidung des Staatsgerichts Nr. 3-1-1-108-03, P. 5.

^*22 z. B. Entscheidungen des Staatsgerichts Nr. 3-1-1-137-04, P. 20; 3-1-1-9-05, P. 9; 3-1-1-70-05, P. 6; 3-1-1-71-05, P. 5.

^*23 z. B. Entscheidungen des Staatsgerichts Nr. 3-1-1-137-04, 3-1-1-9-05.

^*24 Entscheidung des Staatsgerichts Nr. 3-1-1-137-04, P. 14.3.

^*25 Deutsche Übersetzungen: Grundgesetz für die Republik Estland. Tallinn: Justizministerium, sine anno; Verfassung der Republik Estland. – Verfassungen der EU-Mitgliedstaaten. München: DTV 2005, S. 111 ff. Es gibt einige terminologische Unterschiede zwischen den Texten, die hier aber unwesentlich sind.

^*26 Über das Schuldprinzip im estnischen Strafrecht siehe näher: J. Sootak. Grundelemente der subjektiven Verantwortlichkeit im estnischen Strafrecht. – A. Eser, J. Arnold, J. Trappe (Hrsg.). Strafrechtsentwicklung in Osteuropa. Zwischen Bewältigung und neuen Herausforderungen. Berlin: Duncker & Humblot 2005, S. 228–233.

^*27 H. J. Hirsch. Die Frage der Straffähigkeit von Personenverbänden. – H. J. Hirsch. Strafrechtliche Probleme. Berlin: Duncker & Humblot 1999, S. 621.

^*28 P. Pikamäe (Fn. 16), S. 9.

^*29 Ibid., S. 10.

^*30 Über den Entwurf siehe Fn. 4.

In an analysis conducted by the Estonian Ministry of Justice, a clear conclusion was drawn that both the sanctions laid down by the Securities Market Act ^*1 (SMA) for misdemeanours in the financial sector and also the case law on sanctioning left Estonia in the bottom tier amongst EU member states with respect to the punishments prescribed and also to actual case law on punishment. Fines imposed by Estonian courts on juridical persons are rather small; one can fine a company for a misdemeanour in the financial sector to a maximum of only 32,000 EUR. ^*2 Although this is not stated by the author of the analysis, Estonia—at least where punishments are concerned—could be regarded as a safe harbour for financial crime if compared to other Member States. Such a tendency puts much pressure on the shoulders of the regulator—introduction of larger punishments and/or broader wording of offences in the law may follow as political pressure outstrips dogmatic considerations.

The stipulations regarding investment fraud in §211 of the Penal Code ^*3 (PC) are aimed at giving incentive to issuers not to proffer false information during offer of securities—i.e., addressing the ‘promoter’s problem’ (the risk that corporate issuers sell bad securities to the public). ^*4 Prospectus liability (in its widest sense, including also grey capital markets ^*5 ) and disclosure requirements (either during initial offering or in post-listing) are aimed at solving the same problem.

The broad, whether either intentionally or unintentionally, wording of §211 compels one to ask whether the legislator has gone too far in nourishing public enforcement through the means of criminal liability instead of letting market participants resolve possible issues through private litigation (i.e., via private enforcement). The present article concentrates on answering this question by first giving an overview of the theoretical discussion in the literature regarding the use of public enforcement instead of market participants’ regulation of the market through private litigation, then comparing prerequisites for liability under civil law for giving of false information during offer of securities with the liability framework established by §211 of the PC.

2. The race between public and private enforcement

The promoter’s problem at the time of either making a public offering or then disclosing information after an offering could, in principle, be regulated in three ways:

1)    Provision of grounds for civil-law claims for the investors harmed (as §25 of the SMA does) against issuers.

2)   Disclosure obligations imposed by public law: both disclosure requirements regarding prospectuses established under Directive 2003/71/EC ^*6 (‘the Prospectus Directive’) and Commission Regulation 809/2004 ^*7 and then disclosure requirements for securities admitted to trading on regulated markets within the framework imposed by Directive 2004/109/EC ^*8 (‘the Transparency Directive’).

3)   Specification of provision of false information in either prospectuses or other information given to investors as a criminal offence. ^*9

If one is to follow the principle of ultima ratio, the last listed should be the final means and hence applied only if express need can be justified. ^*10 Disclosure requirements (backed by administrative means) and/or private litigation should provide enough incentive for the issuers to act honestly when facing the promoter’s problem.

The discussion of whether one should emphasise the role of public or private enforcement in capital markets law was stimulated greatly in pre-crisis academic literature. ^*11 Discussion cooled down after the turmoil on stock exchanges throughout the world in 2009–2010. In the aftermath, many regulators opted for an ex post approach and rediscovered the criminal sanctions long in force from their law books. ^*12 This draws attention to the fact that one has to draw a clear line between enforcement and rules in a law book—the existence of detailed mechanisms of disclosure, rights of a financial supervision authority (FSA) (such as that of conducting search), or any specific sanctions does not mean that they are actively used.

The discussion comes down to the question of whether any one case demands public interference from the market supervisor and, if so, to what extent. The answer to the first part of this question is quite obvious—securities markets (and probably the financial sector as a whole) would be untenable without some rules enabling the regulator to interfere. ^*13 The answer to the second half of the question is more complicated. According to R. La Porta et al., strong public enforcement is needed only in emerging markets but no significant link seems to be evident between overall market growth and strong public enforcement: ‘Public enforcement plays, at best, a modest role in the development of stock markets. In contrast, the development of stock markets is strongly associated with extensive disclosure requirements and a relatively low burden of proof on investors seeking to recover damages resulting from omissions of material information from the prospectus. Risk of private investor claims, reputation risk and so on provide sufficient pressure to act honestly.’ ^*14 It is questionable whether criminal rules provide sufficient means at all: ‘Criminal deterrence may be ineffective because proving criminal intent of directors, distributors, or accountants in omitting information from the prospectus is difficult.’ ^*15

Such an approach has been attacked with claims that private litigation is too expensive; outcomes are not predictable. M.J. Roe and H.E. Jackson are the frontrunners in the academic literature ^*16 :

–     ‘There’s no significant evidence here that liability standards play a role in developing financial markets.’ ^*17

–     Ex post private litigation is unpredictable, ineffective, and dependent on whether mass lawsuits are endorsed by civil procedure, and they may in many cases mean, at base, damage payments between the major and minor shareholders as issuers and investors.

If one is to take the viewpoint of La Porta et al., the issue between the need of an active public enforcement would be evident only in the case of disclosure during public offerings (or then post-listing reporting). Promoting less public enforcement is needed only in the cases where the promoter’s problem arises most evidently—public offerings or during post-listing reporting. At the same time no one could imagine acts such as market manipulation or insider trading to be left without a strong public enforcement mechanism. ^*18 Hence the question whether nourishing criminal liability to solve the promoter’s problem must be analysed.

3. Private litigation: Regulated markets v. grey capital markets

3.1. Prospectus liability under §25 (1) of the SMA

As already indicated, the promoter’s problem is intrinsic to initial offering of securities but also to periodic or ad hoc disclosure arising from the Transparency Directive (see also §§ 184¹⁰–184¹³ of the SMA). This article does not concentrate on liability for false post‑listing disclosure. The question of what the grounds for civil liability are would be subject to a separate analysis, as it is somewhat unclear whether liability would have a contractual basis (issuer disclosing false information to the owner of a bond as creditor or a shareholder) or whether it is liability based on delict ^*19 , and to what extent damage should be remedied (it is questionable whether the ‘fraud on the market theory’, originating from the US, also now clearly recognised by Section 90A of the UK Financial Services and Markets Act 2000 ^*20 , should be endorsed). ^*21

According to §25 (1) of the SMA, if the prospectus (or the summary of the prospectus if the summary is misleading, inaccurate, or inconsistent when read in connection with the other parts of the prospectus) contains information that is significant for the purpose of assessment of the value of the securities and said information proves to deviate from the actual circumstances, the issuer shall compensate the owner of the security for damage sustained thereby due to the difference between the actual circumstances and the information presented in the prospectus, provided that the issuer was or should have been aware of said difference. The provision applies also if the prospectus is incomplete on account of omission of relevant facts, provided that the incompleteness of the prospectus results from the issuer or the offeror hiding the facts.

Subsection 25 (1) of the SMA provides a separate basis for a claim for damage under §3 of the Law of Obligations Act ^*22 (LOA). As there is close to no publicly available case law—a mere 26 prospectuses have been approved by the Estonian Financial Supervision Authority (EFSA) under the prospectus directive ^*23 —one can only give theoretical guidelines as to how the elements laid down in §25 (1) should be interpreted. The objective elements of the claim should be as follows ^*24 :

–     False information or omission of facts: Both clear-cut facts ought to be covered. False information regarding accounting information is a clear matter. Case law has to establish a clear-cut rule as to whether any prognosis shall be handled as false and, if so, which prognosis and in which cases. ^*25 In sum, German literature has concluded that false disclosure can reveal itself in the following fundamental distinct forms: incorrect fact, incorrect general impression, and provision of incomplete data. ^*26

–     Significance requirement (with the wording ‘significant meaning’): The notion seems to exclude obvious mistakes in balance sheets that have no significance to the overall outcome or mistakes that are clearly understandable. ^*27 It is unclear whether data prescribed by the Prospectus Directive are ipso jure significant. ^*28

–     Unawareness on the part of the person claiming damage as to the false information or omission: According to §26 (2) of the SMA, an issuer or offeror shall not have the obligation to compensate for damage if the person who sustained the damage was aware (or, in the case of a qualified investor, should have realised at the moment of acquiring the security and by exercising due care in its activities, except when the issuer’s intent can be established), at the moment of acquiring the security, that the prospectus serving as the basis for the offer was incomplete or contained inaccurate information.

The issuer shall be liable if negligence can be proved (see §25 (1) of the SMA). One must take into account that §25 (1) specifically allows claims only by the owner of the security; hence, investors suffering damages from having to sell the security at a lower price because of the defects in the prospectus cannot claim damages on the basis of §25 (1) of the SMA. ^*29

3.2. ‘Prospectus liability’ in cases where there is no prospectus within the meaning of the Prospectus Directive

With the introduction of Alternative Investment Markets (AIMs) and Multi Trading Facilities (MTFs), the classical notion of the grey capital market as a blanket market offer of securities not handled as securities under the Prospectus Directive (and subsequently §2 of the SMA) or then not listed on regulated markets cannot be applied. ^*30 The notion of grey capital markets (in German, Grauer Kapitalmarkt ^*31 ; in Estonian, hall kapitaliturg) or unregulated markets has been used to describe this. Hence, a grey capital market is a market wherein no significant obligations apply as to disclosure obligations and no strong supervision by an FSA exists. ^*32

Section 12 of the SMA nationally enacts the exemptions of Article 3 (2) of the Prospectus Directive. A prospectus is not demanded if the security offered is not a security in the meaning of §2 of the SMA or if an offer of securities is addressed solely to qualified investors, or fewer than 99 persons per contracting state who are other than qualified investors, or is addressed to investors who acquire securities for total consideration of at least 50,000 euros per investor, for each separate offer, or either an offer of securities with a nominal value or book value of at least 50,000 euros or an issue or offer of securities with a total consideration of less than 100,000 euros over a period of 12 months. Usually shorter placement documents are used instead of the prospectus in the case of the aforementioned securities (or securities not listed in §2 of SMA).

The notion of prospectus liability itself should also encompass liability for data disclosed in the offering of securities that fall outside the scope of §2 of the SMA. The theory of prospectus liability involving prospectus liability in a strict sense (§25 of SMA) and in a larger sense (all civil-law claims for disclosure of false information by the issuer, except under §25 of SMA) seems to be acknowledged in Estonian academic writing since 2011. ^*33

If false information is given or information is omitted, provisions of contract law apply, with culpa in contrahendo being the main basis for claims. ^*34 Subsections 14 (1–2) of the LOA establishes the grounds for such a claim by obliging the parties engaging in pre-contractual negotiations or other preparations for entry into a contract to take reasonable account of one another’s interests and rights. Information exchanged by the persons in the course of preparation for entering into the contract shall be accurate; each party is obliged to disclose information to the other party of all circumstances with regard to which that other party has, given the purpose of the contract, an identifiable essential interest. There is no obligation to inform the other party of circumstances of which the other party could not reasonably expect to be informed. The provision extends to offering of securities and written documents (and probably also correspondence) between the parties prior to subscription (although no actual negotiations regarding the terms of the securities take place).

Disclosure of false information by a party to the contract during the pre-contractual phase will become party warranties regarded as part of the contract. ^*35 Hence, a breach of such warranties provides grounds for claims for breach of obligations between the issuer and the acquirer of the security. One may, however, question the extent to which the principle developed in German case law enabling claims against not only the issuer but persons linked with the provision of false information would be recognised by the SMA. ^*36 As the claim is based on a sales agreement (offer of securities), the claim of a shareholder against the company as issuer ought to be affirmed. ^*37

According to general case law, the purpose of the obligation or provision due to the non‑performance of which the compensation obligation arose ( § 127 (2) of LOA), the causal link between the false information or omission of facts ( § 127 (4) of LOA), and the part of the aggrieved party in the damage ( § 139 of LOA) has to be considered in assessment of the damage claim. ^*38

4. Section 211 of the Penal Code—investment fraud

4.1. Grounding values behind the existence of the offence

Article 25 (1) of the Prospectus Directive respects Member States’ discretion for criminalising breaches of obligations arising from rules based on said directive. It only states that ‘Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible, where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive’.

Section 211 of the PC is worded as follows:

§211. Investment fraud

(1) A person engaging in economic activities who receives an investment through presentation of false information in a prospectus or among other information addressed to the public shall be punished by a pecuniary punishment or up to 5 years’ imprisonment.

(2) The same act, if committed by a legal person, is punishable by a pecuniary punishment.

Since 1 September 2002, Estonia has opted for criminalising misrepresentation given in documents aimed at gathering investments from either regulated (worded ‘in a prospectus’) or grey capital markets (with the language ‘or among other information addressed to the public’). Section 211 was introduced together with the entry into force of the PC. Academic literature foresaw the protection of the ownership of investors ^*39 and also the general functioning of the financial markets as the two grounding values behind the section. ^*40 Such an approach is similar to the reasoning given for securities markets law: protection of functioning of the securities markets (or financial markets as a whole)—i.e., the public interest in well‑functioning and effective markets—and protection of investors (provision of individual protection) ^*41 , concretised in rather poetic wording in §3 of the Financial Supervision Authority Act ^*42 , according to which financial supervision under the act is conducted in order to enhance the stability, reliability, transparency, and efficiency of the financial sector; to reduce systemic risks; and to promote prevention of the abuse of the financial sector for criminal purposes, with a view to protecting the interests of clients and investors by safeguarding their financial resources, and thereby supporting the stability of the Estonian monetary system.

This approach has been transposed to and applied for reasoning related to criminal offence in §211, largely on account of the word ‘public’ being used in the wording of §211 of the PC (and subsequently also §264a of the German Strafgesetzbuch ^*43 (StGB), with the latter being a role model, if not the only role model, for §211 of the PC. Such an approach is problematic for the following reasons:

–     The aim of the offence’s definition: Endorsement of functionality of the financial system is rather more a consequence of providing protection to the proprietary interests of the investor—the goal of establishment of the offence is the protection of property; mistrust will be established after loss of property, not vice versa or concurrently. ^*44

–     The systematic argument: Criminal law cannot be equated with securities market law. Hence, such transformation of values cannot be admitted. ^*45 It is questionable whether such a notion of functioning of a branch of the economy is compatible with the theory of individual and collective values (the Estonian õigushüve or German Rechtsgut) recognised by Estonian criminal-law theory. ^*46 Functionality as a value is highly debatable and hints at populist lawmaking rather than clear-cut values. ^*47 Had the legislator wanted to broaden the offence to the overall protection of such broad values, the wording would have consisted only of a description such as ‘for deceiving investors’. This is not the case here. ^*48

–     Such broadening of values would mean that any restrictive interpretation of the offence would be unthinkable (§211 of the PC in any case criminalises roughly every misstatement, no matter if significant or not). ^*49

Hence, the position expressed in the academic literature should be reconsidered thoroughly in order to avoid §211 becoming a catch-all provision (if it has not already become one).

4.2. Objective prerequisites

4.2.1. Misleading disclosure in a prospectus or other document

Information is false if it is untrue. Whether the criterion for information being revealed to be false is identical to that in §25 of the SMA or is different has not yet been established well enough in the literature and case law; therefore, no conclusions regarding the accessoriness of the offence can be drawn. As indicated above, if one is to consider the definition of the offence as having a broader aim than only the protection of proprietary interests of the investor (as is the aim of damage claims described in paragraph 3), any restrictive interpretation is problematic. The definition of the offence should also encompass prognosis and liquidity calculations if clearly unrealistic. ^*50

The Estonian wording for the offence uses the word ‘emissiooniprospekt’ for ‘prospectus’. Sadly, this word is not used in any other act—§14¹ (1) of the SMA and the translation of the Prospectus Directive uses the word ‘prospekt’. This leaves rather unclear what documents are actually covered by the notion, and, hence, the compatibility of such use of unclear terms with the principle of legal certainty ^*51 is somewhat unclear. ^*52 In the end, such analysis is rather pointless, as the second part of §211 encompasses any other information aimed at the public (incl. annual reports, ad hoc reports as long as they have been presented for purposes of gaining certain investments, etc.). ^*53

4.2.2. Lack of a significance requirement and the requirement to be engaged in economic activities

Obviously, the main contrast between §211 PC and the liability standards described in paragraph 3 lies in the lack of a requirement of significance of the false information. The reasoning behind this omission is at first glance rather hard to explain and was already clearly pointed out in early expert opinion on the draft of the PC. ^*54 The requirement of significance is provided in §264a of the StGB, the alleged role model for §211. Lack of such a requirement would theoretically make possible rather strange situations wherein even fairly unimportant errors in prospectuses create grounds for criminal proceedings.

One may only claim that the significance requirement is enacted in §211 of the PC to some extent, even though it is not mentioned in the wording:

–     Errors in unimportant data may not be intentional. ^*55 According to §15 (1) of the PC, only intentional acts are punishable as criminal offences under the PC if no criminalisation of recklessness is foreseen. Section 211 criminalises only intentional acts.

–     The misleading statement has to be causal to receipt of the investment. The prevailing position in the legal literature treats §211 not as a formal action offence criminalising disclosure of wrong information but as an offence that requires materialisation of a certain consequence—receiving of an investment (see the next section of the paper). ^*56

The broadness of the offence seems to have been limited somewhat by the requirement of the wrongdoer being involved in economic activities. The notion of economic activities has not been clarified in any legal act in Estonia. Hence, it is unclear whether the misrepresentation has to be somehow linked with the economic activities of the offender or the offender has to be engaged in some overall sphere of economic activity (i.e., exclusion of only some natural persons).

4.2.3. Receipt of an investment

The wording of §211 of the PC is constructed in such a way that the actual infringement seems not to be the disclosure itself but the receipt of the investment as a result of the disclosure. Section 211 is considered to involve two prerequisites: a) false disclosure and b) receipt of the investment. The offender is liable only for attempt until the investment is received. ^*57 No relevant case law related to this matter can be discerned. This causes two problems even on a theoretical level:

–     It is hard to imagine in what situation no investment would follow. Any absurd statements obviously not leading to an investment (as in most ‘Nigerian scam’ letters) may already make the issuers not liable for obviously being disclosed without serious intent (the issuer may claim that it knew such claims were so unrealistic that it never expected someone to believe them).

–     According to §237⁴, the SMA handles the following action as a misdemeanour: provision of incorrect or inaccurate information to possible investors in a prospectus or in any other manner by an offeror and violation of the requirement to inform all potential investors on equal terms during an offer of securities. As a prerequisite §3 (5) of the PC declared that any conduct punishable as a criminal act and a misdemeanour had to be considered to be a criminal act. The Estonian Supreme Court ruled in a quite recent judgement in the case 3-1-1-28-11 that in cases where it is clear that the language defining a misdemeanour is narrower, one must consider the act an intentional one by the regulator to treat such breaches as misdemeanours. ^*58 Such a solution is still unclear, as one could claim that §237⁴ of the SMA does not include receipt of investment. Hence, if one discloses false information in the prospectus and then receives an investment, one may still be liable under §211.

5. The post-crisis situation—pushing criminal interference?

The field of discussion has, as pointed out in Section 2, cooled down since the financial crisis—the importance of criminal-law sanctions seems to be growing in general. There has been a strong influence from the European Commission, pushing toward criminalising acts in securities markets related to market manipulation and insider trading ^*59 , as the Market Abuse Directive previously did not foresee any direct obligation to criminalise such deeds. ^*60 A strong incentive to criminalise as much as possible is evident at EU level. In addition, in a judgement in late 2011, in Soros v. France, the ECHR did not regard the notion of insider dealing in the French Penal Code as a criminal offence in conflict with Article 6 of the Convention on Human Rights. By doing so, it pushed away all obstructions whereby highly abstract offences could undercut legal certainty as a sub-principle of rule of law. ^*61

The incentive to regulate the abuse of the situation in the promoter’s problem through criminal law is tempting, as it is clearly the least expensive way to regulate certain problems. ^*62 Regulation of capital markets through criminal law has been widely criticised for blurring the line between conduct needing to be criminally regulated and conduct subject to civil litigation. ^*63 In addition, the rather broad wording of §211 (an issue seen also in §264a of the StGB) has brought special attention to whether giving incentive by providing some lack of clarity (problems with ‘prospectus’ and lack of a significance requirement) is justifiable ^*64 , and hence a clear contradiction with the principle of legal certainty encompassed in §10 of the Constitution can be shown. One can even go further and claim that the use of such broad meanings brings about the regulation of capital markets not through the PC but via the discretion of the ones applying the PC. ^*65

One should, nevertheless, refrain from grounding application of any definitions of criminal offences in considerations such as the overall need for protection of provision of sufficient general warning to persons disclosing false information during initial offering. The discussion of possible infringement of §10 of the Constitution comes down to the issue of the extent to which the investor acting outside regulated markets needs protection—instead of basing this on general values, one must assess the level of protection of each individual investor ^*66 :

–     The existence of §25 (1) of the SMA (together with overall requirements for a prospectus), alongside the existence of post-listing rules, should provide enough protection to an investor in regulated markets. The need for an additional broadly worded criminal sanction, as in §211 of the PC (especially the lack of significance requirement), is somewhat questionable. Although still unclear, recent case law ^*67 may lead to a situation wherein §237⁴ of the SMA prevails over §211 of the PC in any event and hence any criminal liability is precluded. Such an approach is dependent on whether one handles §211 of the PC as a formal delict or one requiring occurrence of a consequence—receipt of an investment. No clear grounds may be established, and the risk of criminal liability is evident. Therefore, case law may have resolved the issue, rather surprisingly, itself.

–     In grey capital markets, damage claims may prove insufficient, as there is no control over the investor, misleading disclosure is usually already made in conjunction with a clear plan to escape damage claims, and usually the mechanisms used are so complicated and cross-border that it is impossible to collect evidence without a criminal-law procedure. ^*68 Investors may be in a weaker position, so some level of measures akin to consumer protection has to be considered. ^*69 As indicated above, the grounds for any claims are somewhat unclear and, therefore, civil claims as means for investor protection may prove to be somewhat impotent.

The offence is still justified when one considers the lack of any public-law disclosure requirements and also the conceptual lack of clarity in the claims for damages, as described in Subsection 3.2 with respect to grey capital markets. Investors need the protection provided by §211 of the PC. The question of whether any incentive is provided is linked with the issue of enforcement—quite clearly, that of case law addressing, firstly, criminal proceedings actually initiated and punishments imposed. As the statistics indicate beyond doubt, the punishments imposed (at least in relation to misdemeanours) may be so lenient that the incentive to refrain from false disclosure may prove insufficient. The existence of a §211 of the PC that provides for protection of investors in grey capital markets may be irrelevant, while the actual way in which the offence will be dealt with at the enforcement level (and which punishments will be applied) remains a question.

Notes:

^*1    Väärtpaberituru seadus. – RT I 2001, 89, 532; RT I, 28.6.2012, 5 (in Estonian). English text available via http://www.legaltext.ee/.

^*2    A. Ahven. Finantsalaste rikkumiste eest kohaldatavad sanktsioonid Euroopa Liidu riikides (Sanctions Imposed for Financial Misdemeanours in EU Member States). Tallinn 2011 (in Estonian, not publicly distributed).

^*3    Karistusseadustik. – RT I 2001, 61, 364; RT I, 4.4.2012, 3 (in Estonian). English text available via http://www.legaltext.ee/.

^*4    R. La Porta, F. López de Silanes, A. Schleifer. What works in securities laws? – Journal of Finance 2006 (61), p. 2. Available at http://www.afajof.org/afa/forthcoming/laporta.pdf; D. Schiele. Über den Haftungsfreiraum bei prognostischer Publizität am Kapitalmarkt. Baden-Baden 2011, pp. 28–34.

^*5    See Subsection 3.2 for definition of the concept.

^*6    OJ L 345, 31.12.2003, p. 64.

^*7    OJ L 149, 30.4.2004, p. 1.

^*8    OJ L 390, 31.12.2004, p. 38.

^*9    H. Aschenbach. Zur Aktuelle Lage des Wirtschaftsstrafrechts in Deutschland. Goldtdammer’s Archiv für Strafrecht 2004, p. 562.

^*10 Ibid.

^*11 For an overview, see H.E. Jackson, M.J. Roe. Public and private enforcement of securities laws: Resource‑based evidence. – Journal of Financial Economics 2009 (93). Also published in H.E Jackson, M.J. Roe. Public and private enforcement of securities laws: Resource-based evidence. – Harvard Public Law Working Paper No. 0-28; Harvard Law and Economics Discussion Paper No. 638, pp. 5–8. Available at http://ssrn.com/abstract=1000086.

^*12 Pre-crisis literature emphasised that strong public enforcement was more intrinsic of the US SEC. See J.C. Coffee. Law and the market: The impact of enforcement. – Columbia Law and Economics Working Paper No. 304, pp. 16 ff.

^*13 Jackson, Roe (see Note 11), pp. 23 ff.

^*14 La Porta, López de Silanes, Schleifer (see Note 4), pp. 16–19.

^*15 Ibid., pp. 16–19.

^*16 This approach seems to be preferred by the UK government as well, as the 2007 analysis by P. Davies, emphasising public enforcement, was accepted by that government. See P. Davies. Davies Review of Issuer Liability: Final Report (June 2007) (especially paragraph 18). Available at http://www.hm‑treasury.gov.uk/d/issuerliability_170708.pdf.

^*17 Jackson, Roe (see Note 11), p. 28.

^*18 Ibid., pp. 27–34.

^*19 See this overview of the issues that have arisen in German law: A. Hellgardt. Kapitalmarktdeliktsrecht. Tübingen 2008, pp.  28–32.

^*20 Available at http://www.legislation.gov.uk/ukpga/2000/8/contents.

^*21 H. Tijo. Enforcing corporate disclosure. – Singapore Journal of Legal Studies 2009, p. 335. On the problems in the area between liability for disclosure and enforcement matters, consult M. Fox. Why civil liability for disclosure violations when issuers do not trade. – Wisconsin Law Review 2009, pp. 297–319.

^*22 Võlaõigusseadus. – RT I 2001, 81, 487; RT I, 8.7.2011, 6 (in Estonian). English text available via http://www.legaltext.ee/.

^*23 Application of §25 (1) of the SMA is hindered by the low volume of prospectuses being filed for submission before the EFSA. In all, 26 prospectuses have been approved by the EFSA since 20 November 2005, according to the FSA Web site (see http://www.fi.ee/index.php?id=14925). Still more importantly, as recent tendencies show, issuers are more eager to list their prospectuses in nearby regulated markets such as Warsaw or Helsinki, The main issue here seems to be which law one should apply if false information has been given in a prospectus submitted before the Estonian FSA but presented for listing before OMX Warsaw. See S. Jäger. Das Prospekthaftungsstatut. Baden-Baden 2007, pp. 99 ff for insight into the issues of cross-border claims under the German law of conflicts.

^*24 Because of lack of case law, no attempt is made in this article to give a comprehensive overview of the prerequisites for the claim and is aimed only at addressing basic elements to be dealt with in future case law. See the list, based on the example of German law, of typical cases of false/misleading information in prospectuses, from H. Keunecke. Prospekte im Kapitalmarkt. Anforderungen, Prospekthaftung bei geschlossenen Fonds, Investmentfonds, Wertpapieren und Übernahmeangeboten, 2nd edition. Berlin 2009, pp. 448–453.

^*25 German case law on §44 of the Börsengesetz seems to take into account the notion of the average investor. For an overview of the discussion, consult Jäger (see Note 23), pp. 56–57.

^*26 Case law has to establish whether failures with respect to errors in formal or substantive matters shall be considered misleading as well, as has been mentioned in the German literature. See C. Brandt. Prospekthaftung. Anlegerschutz durch Prospektpublizität. Taunusstein 2005, pp. 105–110.

^*27 Jäger (see Note 23), pp. 54–56.

^*28 S. Kümpel, A. Wittig. Bank- und Kapitalmarktrecht, 4th edition. Cologne 2011, pp. 1804–1805; Brandt (see Note 26), p. 1975.

^*29 In contrast, the interpretation of §44 of the Börsengesetz affirms such claims of persons not holding the security. Jäger (see Note 23), pp. 63–64.

^*30 Kümpel, Wittig (see Note 28), pp. 1804–1805; Brandt (see Note 26), pp. 167–170.

^*31 M.H. Hagemann. ‘Grauer Kapitalmarkt’ und Strafrecht. Göttingen 2005, pp. 63–147.

^*32 Ibid.

^*33 U. Volens. Usaldusvastutus kui iseseisev vastutussüsteem ja selle avaldumisvormid (Liability for Trust As an Independent System of Liability and Its Manifestations). Doctoral thesis. Tartu 2011, pp. 355–360 (in Estonian).

^*34 Brandt (see Note 26), pp. 49–71; Jäger (see Note 23), pp. 30–49, 81–91 (for a historical overview).

^*35 Supreme Court Civil Chamber decision of 19.11.2007, 3-2-1-111-07, paragraph 14 (in Estonian).

^*36 The theory was elaborated upon through some investment schemes used in Germany wherein the issuer itself was not a legal person and had no assets. Volens (see Note 33), pp. 356–358. It has been clearly called into question whether any claims can arise between the majority shareholder behind the issue of new shares and the acquirers of the shares. See M. Vutt. Aktsionäri derivatiivnõue kui õiguskaitsevahend ja ühingujuhtimise abinõu (The Derivative Claim of the Shareholder As a Legal Remedy and Measure of Company Direction). Doctoral thesis. Tartu 2011, pp. 29–39 (in Estonian).

^*37 Vutt (see Note 36), p. 29.

^*38 Supreme Court Civil Chamber decision of 12.12.2007, 3-2-1-113-07 (in Estonian).

^*39 To be fully exact, the value is freedom to dispose of assets. See T.H. Hild. Grenzen einer strafrechtlihen Regulierung des Kapitalmarktes. Frankfurt 2004, p. 93.

^*40 J. Sootak, P. Pikamäe. Karistusseadustik. Kommenteeritud väljaanne (Criminal Code. Commented Edition). Tallinn 2009, §211 (comment 1.1); Aschenbach (see Note 9), pp. 562–565.

^*41 Kümpel, Wittig (see Note 28), pp. 1826–1836.

^*42 Finantsinspektsiooni seadus. – RT 2001, 48, 267; RT I, 29.3.2012, 4 (in Estonian). English text available via http://www.legaltext.ee/.

^*43 Strafgesetzbuch, 1.1.1871. BGBl. I S. 3322; B. Jähnke, H.-H. Laufhütte, W. Odersky (eds). Stragesetzbuch. Leipziger Kommentar. Grosskommentar, Band 7. Berlin 2005, §§ 264 bis 302., §264a, paragraph 13.

^*44 W. Graf von Schönborn. Kapitalanlagebetrug. – Eine analyse unter besonderer Berücksichtigung von 264a StGB. Cologne 2003, pp. 18–19.

^*45 On the problem of ‘regulating securities markets through criminal law’, see paragraph 5. See also Jähnke, Laufhütte, Odersky (Note 43), §264a, paragraph 13.

^*46 J. Sootak. Karistusõiguse alused (The Grounds of Criminal Law). Tallinn 2003, pp. 69–74 (in Estonian).

^*47 Hild (see Note 39), pp. 94–95.

^*48 Graf von Schönborn (see Note 44), pp. 18–19.

^*49 Ibid.

^*50 Sootak, Pikamäe (see Note 40), §211 (comment 2.3.1).

^*51 The principle is derived from §10 of the Estonian Constitution. See Eesti Vabariigi Põhiseadus (The Constitution of the Republic of Estonia). – RT 1992, 26, 349; RT I, 27.4.2011, 1 (in Estonian). English text available via http://www.legaltext.ee/.

^*52 See also Sunday Times v. UK. Decision of 26.4.1979 − 2 EHRR 245.

^*53 Sootak. Pikamäe (see Note 40), §211 (comment 2.3.3).

^*54 W. Joecks. Majanduskriminaalõigus Saksamaal. Struktuurid ja probleemid (Economic Crime in Germany: Structures and Problems). – Õppematerjal kohtunike ja prokuröride järelkoolituse jaoks (Study Material for Follow-up Training of Judges and Prosecutors). Translated by O. Jaggo. Tallinn 2001 (dissemination material in manuscript form) (in Estonian).

^*55 C. Schröder. Handbuch Kapitalmarktsrafrecht, 2nd edition. Cologne 2010, p. 23.

^*56 Sootak, Pikamäe (see Note 40), §211 (comment 2.4.3).

^*57 Ibid.

^*58 Supreme Court Criminal Law Chamber decision of 2.6.2011, 3-1-1-28-11 (in Estonian).

^*59 The European Commission is proposing a market-abuse regulation foreseeing an obligation to criminalise market abuse. See the further list of recent developments from the EC as to market abuse, available at http://ec.europa.eu/internal_market/securities/abuse/index_en.htm.

^*60 See paragraph 34 of the preamble to 2003/61/EC.

^*61 See Soros v. France, 6.10.2011 (application no. 50425/06). As this judgment has not been translated from the French, the author has referred to the public announcements from the ECHR at http://www.echr.coe.int/echr/en/header/press/links/archived+news
/archivesnews_2010.htm. See also the case law preceding Soros in Sunday Times v. UK, 26.4.1979, in 2 EHRR 245.

^*62 Aschenbach (see Note 9), p. 560.

^*63 S. Ransiek. Unternehmensstrafrecht. Strafrecht, Verfassungsrecht, Regelungsalternativen. Heidelberg 1996, p. 190.

^*64 Aschenbach (see Note 9), pp. 562–565.

^*65 See the criminological approach of H. Theile, for instance: H. Theile. Die Bedrohung prozessualer Freiheit durch materielles Wirtsschaftstrafrecht am Beispiel der § 264a, 265b StGB. Wistra 2004, p. 121.

^*66 Jähnke, Laufhütte, Odersky (see Note 43), §264a, paragraph 4.

^*67 Supreme Court Criminal Law Chamber decision of 2.6.2011, 3-1-1-28-11 (in Estonian).

^*68 Hagemann (see Note 31), pp. 49–50.

^*69 Jähnke, Laufhütte, Odersky (see Note 43), §264a, paragraph 4.

After the terrorist attacks of 11 September 2001 in the US, countries the world over face new challenges related to terrorism issues. Also, organised crime in the Schengen countries is able to move easily from one country to another. Both of the above will force governments and legislators to think more and more about internal security. There is a continuum with fundamental rights and freedoms at one extreme and internal security on the other. The values representing both ends of the continuum are both essential—internal security and also fundamental rights and freedoms. History has shown that views focusing on either extreme have not been useful from a long-term perspective. For that reason, balance must be achieved, and it is not useful if one value is elevated at the expense of the other value.

The Police Act ^*2 was passed by the Supreme Council of the Republic of Estonia (Eesti Vabariigi Ülemnõukogu) on 20th September 1990 and entered into force on 8 October 1990, before the restoration of Estonian independence. The basics elements of the Police Act remained unchanged until the parliament of Estonia (Riigikogu) enacted the Police and Border Guard Act ^*3 (PBGA), in 2009, and then the Order Protection Act ^*4 (OPA), in 2011. It should be mentioned here that the OPA has not yet entered into force.

In 2006, the Supreme Court of Estonia issued its informal opinion on a draft of the OPA and averting of a danger ^*5 :

The law is based on the concept of a danger and danger-handling. But it is not a suitable basis nor a proper criterion for the Estonian legal system in the field of the protection of order and supervision. […] The central, basic concept of the draft Order Protection Act is danger, and it handles state supervision as danger-oriented activities; this is an approach outside our current tradition. Such an approach is possible, but in the Estonian legal landscape it is a new and unfamiliar one, and in our view unreasonable. ^*6

The question is important because averting of a danger creates both material and procedural rules that restrict fundamental rights. On the other hand, the state is bound by a duty of protection. ^*7 This means that the state must protect people’s fundamental rights and not interfere with those fundamental rights excessively. But also it means that the state must protect a person from third-party attack, as well as other risks.

The minimum standard for the rule of law in a democratic state must be defined if one is to understand the nature of averting of a danger. Without this minimum standard, we cannot speak about the principle of a state based on democracy and the rule of law. If averting of a danger meets the relevant minimum standards, it is consistent with, rather than counter to, the rule of law and democracy. However, should the defence against danger not meet the minimum standards, it is appropriate to ask whether the concept of averting of a danger is legitimate and in accordance with the Constitution. The answer to that question presupposes a precise formulation of averting of a danger. Since German legal doctrine served as an example in creation of the OPA and PBGA ^*8 , it is necessary to take German legal doctrine too into consideration.

This article focuses on the demands that the Constitution of the Republic of Estonia ^*9 (hereinafter also ‘the Constitution’) creates for the PBGA and OPA in the field of internal security and averting of a danger. The scope of the PBGA is narrower (only police activity) than that of the OPA (authorities’ every action directed at the protection of public order).

2. Internal security through averting of a danger

According to the Constitution, internal security is part of the Constitutional order. The preamble of the Constitution refers to ‘unwavering faith and a steadfast will to strengthen and develop the state, […] which shall protect internal and external peace […]’. This means that internal peace must be achieved through protection of the legal order and fundamental rights and freedoms and that this peace is the best way to make fundamental rights reality. ^*10 In the legal literature, internal peace is considered to be one of the aims of Estonian statehood, which encompasses both internal political stability and public order. ^*11 Under protection of internal security, which is enshrined in the preamble of the Constitution, the state of Estonia has a duty not only to deal with infringements of law but to strive for their avoidance. ^*12 Avoidance in this context means nothing else than prevention—in other words, the state’s proactive activity. The Supreme Court of Estonia has noted that internal peace as referred to in the preamble of the Constitution is one of the Constitutional values and consists of the guaranteeing of social security and protection of the legal order. ^*13 Accordingly, it is possible to distinguish between, on the one hand, the state’s proactive activity (prevention of problems) and, on the other, reactive activity (response to an event).

Averting of a danger can be considered to be one of the state’s proactive activities, with the aim of ensuring internal security. Averting of a danger is related to supporting, directing, forward‑looking, and preventive state activity, which has to take into account and accept Constitutional requirements, European and international law also address the needs of society to ensure public order and security. ^*14 This is part of the legal model for police- and order‑related laws and has defence against concrete and abstract danger at its core. ^*15 Therefore, averting of a danger is centred on the concept of danger. ^*16 It delimits the tasks of the police and also sets a threshold for intervention and legitimises infringement of fundamental rights in certain conditions. ^*17 The scope of both the legislator and the executive power’s activities depends on the probability of danger, the nature of the protected and threatened good, and the fundamental rights at stake. ^*18 Where the existence of a danger is the premise for legitimate infringement of a person’s fundamental rights and freedoms, the competence and authorisation norms should be precisely and carefully defined. ^*19

There may also be other legal models addressing prevention of threats to good and dealing with prognosis decisions (e.g., the legislator may enact authorisation norms that regulate every concrete situation in life with specific implementation measures). Such a legal model would certainly be more in accordance with the concept of legal certainty: the law and police officers’ decisions are clear, precise, and definite, and the legal implications are foreseeable for the addressees. ^*20 But this would entail a closed and rigid system, because the legislator cannot foresee all situations in which a police officer ought to act proactively to prevent, for instance, harm to a person’s life or health. It also limits discretion as to whether to act and the kinds of measures to be employed for prevention of damage. ^*21

Several authors have indicated that Estonia’s Police Act ^*22 did not meet many of the important criteria. Criminal proceedings and state supervision procedurewere not clearly separated, competence norms were not supported by specific authorisation norms, and often police actions were based only on the competence norms—which were too abstract and therefore rendered it hard to know what was allowed and what was not. ^*23 The Administrative Law Chamber of the Supreme Court has noted that regulation of the use of force by police officers was scanty. ^*24 Those shortcomings indicated that the actions of the executive power could be illegal in specific cases. It gave rise to debate as to whether such regulation would have been in accordance with the Constitution or not. To eliminate the above‑mentioned drawbacks, the legislator passed new laws (the PBGA and OPA, referred to above). These laws distinguish between police activities related to criminal proceedings and state supervision procedure(also averting of a danger) ^*25 , and they draw a clear distinction between competence norms ^*26 and authorisation norms ^*27 , with competence norms being supported by specific authorisation norms. ^*28

2.1. The concept of danger

Reservation of statutory powers, provided for in §3 of the Constitution, is one aspect of democracy. ^*29 It demands that the legal norms enacted and their consequences be detailed and precise. ^*30 Thus it should be applied also to the concept of danger.

According to the PBGA and OPA, the central concept for police actions is danger, because the specific authorisation norms allow a police officer to apply a measure only when danger occurs. A danger is a situation wherein the objectively assessed facts reveal the probability of an offence taking place in the near future. ^*31 According to German law, danger is a situation in which circumstances, if not prevented from taking their course, could in the foreseeable future be expected with sufficient likelihood to lead to violation of the protected good (public security and order). ^*32 Both the Estonian and the German law understand danger as sufficiently probable violation of the protected good. At the same time, however, the assessment of danger and its temporal dimensions differ between the two systems.

According to the PBGA and OPA, the offence or violation of the protected good must be probable in the near future (lähitulevik). In contrast, under German law, it must take place in the foreseeable future (absehbar Zeit). Therefore, a danger does not exist under Estonian law when the probability is of the offence taking place in the distant future, whilst using the temporal criterion of ‘foreseeable future’ ensures that danger is seen as existing when a violation is probable in the longer term. It is understandable for a police officer to intervene at the last minute, because when the threat to good is near, the probability of its occurrence is obviously greater. However, it is questionable whether a preventive measure should be limited with a time-based criterion in such a way, especially in situations wherein very important good is at stake (e.g., life and health). It is also possible to assess the temporal dimension not only when the matter involves the premise of legal norm (a question of danger). It may also be estimated through discretion whether to act or not (a question of legal consequences). ^*33 If the concept of danger is not limited in its composition in the temporal dimension, it is possible to apply discretion and the principle of proportionality for exclusion of all such measures as may not, in the relevant case, be suitable, necessary, or moderate (proportional in the narrow sense of the term). In summary, it is not always necessary to limit the concept of danger in the temporal dimension, but the temporal dimension can be taken into account through discretion. However, it is questionable whether such a legal norm is in accordance with the reservation of statutory powers, if it is not sufficiently precise and detailed.

It is possible through various concepts of danger (real, apparent, and suspected) and levels of danger to make legal norms more precise and detailed.

2.1.1. Real danger and apparent danger

For one to distinguish a real danger from an apparent danger, it is important to know the perspective (ex ante or ex post) from which a police action’s legality must be assessed. Apparent danger is present if the officer was sure, from an ex ante perspective, that damage to the protected good is likely but a new danger assessment, made from the ex post perspective, shows that no danger exists ^*34 —that is, there was a danger situation when the officer made the assessment but subsequent estimation showed it no longer to exist. In German law, a measure taken is considered to be legitimate when an officer employed it in a situation wherein apparent danger was present. ^*35 It is a matter of debate whether in that situation the measure should be considered legitimate or illegal. On one hand, the measure taken was used in a situation in which no real danger objectively existed. On the other hand, it is also important to note that the facts as known to the officer held at the time when he or she made the decision to act. The purpose of averting of a danger is to prevent damage, not to punish. Also the time available and the importance of the protected good affect the behaviour of an officer.

A legal definition of apparent danger is not set forth in the PBGA or OPA. The Supreme Court in its practice has not recognised clearly the concept of apparent danger. But the Supreme Court has held generally that the legality of administrative action is to be assessed from an ex ante perspective. ^*36 In view of the above-mentioned (i.e., from an ex ante perspective), it may also be possible to distinguish between real and apparent danger. ^*37 Resting on such a distinction are also the legality of the police action and questions of compensation. That is why it is necessary to distinguish between apparent and real danger.

The question of compensation for damage is one of the major problems with the notion of apparent danger. Should the damage be compensated for, or not? If there is to be compensation, should it be in full or only limited in its extent?

Neither the PBGA nor the OPA includes specific rules for claims of compensation for damage. The legislator’s clear intention was that compensation for damage take place on general grounds. ^*38 When a measure is applied in a situation wherein apparent danger exists, the damage is caused by a lawful administrative act or measure. According to the State Liability Act (SLA), a person may claim compensation, to a fair extent, for proprietary damage caused by a lawful administrative act or measure that in an extraordinary manner restricts the fundamental rights or freedoms of said person. ^*39 Therefore, a person may in such a case claim compensation only when the administrative measure or act caused extreme restriction to his or her fundamental rights and freedoms. The Supreme Court has held that a person may claim compensation for damages on the above-mentioned grounds when a lawful administrative act or measure has seriously restricted the fundamental right to property that is inviolable and equally protected. ^*40 However, the compensation for damage is to be claimed only to a fair extent. Unless the law provides otherwise, compensation shall not be claimed to the extent to which the restriction of fundamental rights or freedoms was caused by, or the restriction was in the interests of, the aggrieved person; special treatment of persons is prescribed by law; the person can receive compensation elsewhere, including from insurance; or the issue of payment of compensation is regulated by other acts of law. ^*41 In granting of compensation, the benefit gained by the public authority or the advance in public interests that is a result of the restriction of fundamental rights and freedoms, the gravity of the restriction, the unforeseeability of damage, and other relevant circumstances shall be taken into consideration. ^*42 When we accept the above logic also in cases of apparent danger, it may be alleged that a person can claim compensation for damage that was caused by a measure stemming from apparent danger, but only with narrow scope and in limited circumstances. Such an interpretation may not always be in accordance with the principle that the damage should be subject to compensation especially in a situation wherein it later becomes clear that no real danger existed. ^*43

2.1.2. Suspected danger

If the probability of a danger’s materialisation is unknown and the officer only has doubts about the matter, it is a suspected danger. ^*44 In that case, the officer is not sure about the danger, so it is necessary to clarify the situation further. In general, this is done through a clarification measure, which usually does not intensively restrict fundamental rights and freedoms and helps to clarify whether the danger exists or not. It should be mentioned that the German legal literature also discusses the possibility of applying such clarification measures in a situation wherein very important good (e.g., life or health) is at stake. ^*45 Question arises because it may not be in accordance with the concept of averting of a danger while the core of it is to avert existing danger not to clarify whether the danger exists or not. Also the prerequisite for such a measure (suspicion of danger) may not be defined well enough to justify intensive restriction of fundamental rights and freedoms, for which reason it may not be in accordance with the Constitutional requirements. ^*46

The PBGA does not provide a legal definition of suspected danger; instead, it regulates various authorisation norms that entitle an officer to find out whether danger exists or not. When the officer will implement a measure to clarify whether there is a danger, he or she is not sure about the danger and only has doubts about it. This is nothing else than a suspected danger. By contrast, the OPA regulates the legal definition of suspected danger: ‘Suspected danger is a situation wherein the facts revealed show on the basis of objective assessment that the probability of offence is not sufficient but there is reason to suppose that the offence is not precluded.’ ^*47

In Estonian law, the officer is authorised to take measures when suspecting a danger: inform the public of suspected danger ^*48 ; disclose personal data ^*49 ; detain a person, question him or her, and require documents ^*50 ; summon a person to an office ^*51 ; verify a person’s identity and bring him or her to an office for identification ^*52 ; process personal data with equipment ^*53 ; process and require data that a communication company has in its possession ^*54 ; prohibit residence ^*55 ; stop a vehicle ^*56 ; impose security controls ^*57 ; examine a person, item of movable property, or possession ^*58 ; to take possession ^*59 ; and use compulsion. ^*60

Thus the Riigikogu has regulated a broad range of authorisations applicable when there is danger suspected. Some of the above-mentioned authorisation norms restrict fundamental rights and freedoms very intensively—e.g., examining a person’s clothing and body cavities restricts his or her physical integrity and free self-realisation intensively, controlling a person’s movable property restricts his or her right to property intensively, and entering a person’s residence and examining it restricts his or her private and family life. It is also problematic to allow use of compulsion in a situation wherein the existence of danger is unclear. Such authorisation norms may not be in accordance with the principle of proportionality and democracy. The purpose of such a measure would be questionable when it may have no useful results. Suspicion of danger is a phase before danger, and the officer has no solid facts as to the probability of harm. ^*61 Also it is questionable whether the concept of suspected danger in the given situation is precise and detailed. It is unclear also when the officer has a right to act and to restrict a person’s fundamental rights and freedoms and what the legal consequences of this are. In conclusion, whether an officer should have such extensive measures available for clarification of whether danger exists is problematic.

2.1.3. Levels of danger

According to the PBGA and OPA, the danger levels are distinguished through the value of the protected good. ^*62 Estonian law knows significant danger, urgent danger, and present danger. ^*63 Significant danger is a high probability of harm to a person’s life, physical integrity, and freedom; to high-value proprietary benefit; to public safety; or to the environment, or other particularly serious offence. ^*64 Urgent danger is a high probability of harm to a person’s health, to the high value of material goods, or to the environment, or, again, other serious offence. ^*65 Urgent danger lies between significant and present danger, ^*66 where present danger is a situation wherein the offence is already taking place or there is a high probability that it will begin immediately. ^*67 Although no specific levels are set for the danger to life or body, common danger, and imminent danger, it may still be possible to interpret the content of significant, urgent and present danger broadly (e.g., the concept of significant danger may also comprise a danger to a person’s life or body). Thus the different levels distinguished for danger make the general concept of danger more precise and detailed and allow the legal consequences that arise to be seen.

2.2. General clauses and the principle of legal certainty

It is possible to distinguish between a general clause and standard measures. ^*68 Both types of legal norms legitimate interference with fundamental rights and freedoms. The purpose of a general clause is to provide the legal basis for interference in fundamental rights and freedoms to prevent so-called unforeseen dangers. ^*69 It is a measure intended for atypical danger situations, and its application is broader. ^*70 If there is no standard measure but a danger exists, the officer is entitled to consider whether to act, and how. ^*71 In contrast, standard measures too create a legal base upon which one may restrict fundamental rights and freedoms but they are more precisely specified than are terms of a general clause. ^*72 Thus the standard measure serves the interests of legal clarity. ^*73 Speaking against the use of a general clause is its lack of legal certainty: it may not be defined adequately for interference in fundamental rights and freedoms to be justified. Greater abuse of authority may arise when an officer applies a general clause. Both the PBGA and the OPA recognise the concept of a general clause ^*74 ; therefore, its existence is one of the major problems.

The principle of legal certainty can be considered one part of the rule of law. ^*75 The Supreme Court has pointed out that the principle of legal certainty demands that a person be able to foresee the legal consequences of his or her acts adequately. ^*76 The Federal Constitutional Court of Germany affirmed that the general clause was in Germany sufficiently well-defined and in accordance with the rule of law since its development through the decades of legal practice and theory have sufficiently clarified and explained its content, purpose, and scope. ^*77 The arguments of the Federal Constitutional Court of Germany are insufficient in the context of Estonia since the legal theory and practice related to averting of a danger are poorly formed and still very elementary and young. The Supreme Court found in a case to do with the constitutionality of post-sentence detentio n that with concept of sufficiently defined legal norms the hypothesis of the legal norm and the legal consequences must be clear especially in a situation wherein the legal norm allows intensive infringement of fundamental rights and freedoms. ^*78 Every general clause allows evaluative interpretation in a situation in which substantial fundamental rights are at stake—the right to free self-realisation ^*79 , private and family life ^*80 , etc. Also, judicial control over an officer’s activity may be limited when the measure is only slightly based on the general clause. ^*81 On the other hand, the legislator cannot foresee everything and enact all of the specific regulations that are always needed, because actual situations of danger vary too greatly. ^*82 In a situation wherein no legal norm exists that allows action but there objectively exists a real probability of harm occurring in the near future, the state does not fulfil its duty of protecting a holder of fundamental rights. ^*83 It should be pointed out that the purpose here is not to punish but to prevent harm. In such a case, the officer implementing a measure has a right of discretion and it shall be exercised in accordance with the limits of authorisation, the purpose of discretion, and the general principles of justice, in account of the relevant facts and in view of legitimate interests. ^*84 Therefore, action under the general clause should be a last resort and applied only in emergency situations wherein very substantial good is at stake. Still, activity based on a general clause may not be clear, distinct, or definite, because too much room is allowed for evaluative interpretation in the field wherein fundamental rights are restricted. This raises the question of whether the gen eral clause is accordant with the principle of legal certainty.

2.3. Judicial control of prognosis decisions

One feature of the principle of a state based on democracy and the rule of law is that the individual institutions (the legislature, executive bodies, and courts) perform their activities on the principle of separation and balance of powers. ^*85 The Supreme Court has noted that the administrative court system is tasked not only with resolving disputes between a person and the state but also with controlling the activities of both the Riigikogu and the executive power in order to implement the principle of separation and balance of powers. ^*86 The Riigikogu has decided to link police law and the state supervision procedure with defence against danger. ^*87 As defence against danger is a typical administrative system that restricts fundamental rights and freedoms, judicial review of executive-body activity is one of the main pillars for implementation of the principle of a state based on democracy and the rule of law. A system without judicial control is inherent to what is k nown as a police state. On the one hand, the court must be able to verify whether the relevant officer’s conduct was consistent with the norms of competence and authority. At the same time, the court should be able to examine whether the legal norms in question are consistent with the basic law or Constitution. ^*88

Preventive measures are based on the prognosis decision. The officer who implements a measure is not sure whether event X will occur or not. But the officer has established facts A, B, and C, which together indicate the probability of arrival at the event. The key question of the prognosis decision is how to come to an accurate prognosis of the future. Thus legal theory and practice utilise a concept of danger that generally consists of three dimensions: a time dimension (near or distant future, also ex ante and ex post), a spatial dimension (protected good and value), and probability (high, intermediate, or low). ^*89

Whether the concept of danger is a question of legal consequences or of fact-finding is a matter of some debate. The answer to this question is important because the degree and extent of judicial review depend on it. For example, a judgement of the Supreme Court is based on the facts established by the judgement of a lower court and the Supreme Court does not establish the facts that constitute the cause of an appeal. Since in general the Supreme Court does not take up and evaluate the evidence, it cannot establish facts. The existence of danger shall be a question of legal consequences and conclusions, not one of facts. ^*90 The concrete circumstances (e.g., a person’s behaviour) are a factual issue and can point to danger.

Judicial review of executive power cannot remain merely formal, controlling only formalities. Measures that are taken on the basis of a prognosis may also very intensively infringe fundamental rights and freedoms. ^*91 Purely formal judicial review remains illusory and would not guarantee real protection. Therefore, the scope of judicial review should cover the content and also material legality (whether, where a danger existed, also the measure was exercised in accordance with the limits of authority, the purpose of discretion, and the general principles of justice). ^*92 The judicial review consists of analysis and control over those three dimensions: the time dimension, the spatial dimension, and probability. At the same time, the court can consider only those facts that were known and present when the officer rendered the decision (ex ante perspective), not those facts and circumstances actualised after the officer activity (ex post perspective). ^*93

One should take into account also a second level when judging the rightness of a prognosis decision—the view of a person who is not tied to or connected with the situation (a third party). In Estonian law, this is referred to as the perspective of an average objective law‑enforcement officer. The evaluation of the facts should be objective and based on social experience. Evaluation is objective when all necessary facts indicating that harm is probable are established. Thus, occurrence of harm should be probable in the view of an average law‑enforcement officer. ^*94 Social experience, therefore, refers to such a person’s life experience, including knowledge of his or her specific area of expertise or activity. ^*95 In particular, the officer’s everyday activities, previous training, and professional skills should be considered. It is disputable whether the later assessment should be based on the perspective of an average law-enforcement officer or an average person. Under German law, a situation of danger is assessed through the lens of a putative objective observer’s knowledge. ^*96 The threshold in evaluation from an average person’s perspective is lower than that for the average law-enforcement officer. An average person does not deal every day with the protection of public order, and his or her training and skills may be insufficient and inadequate in the field of averting of a danger. Assessment of danger situations through a ‘professional‑standard’ criterion allows a more accurate prognosis, and the threshold for later analysis of the measure’s legality is higher. Therefore, the professional-standard criterion will provide better protection of fundamental rights than will assessment from an average person’s perspective.

When an officer performing administrative functions in defence against danger is authorised to act on the basis of discretion, the court shall only verify whether the officer’s activity was in compliance with the limits and purpose of discretion, the principles of proportionality and equal treatment, and other generally recognised principles of law. ^*97 Judicial review does not include judgement of whether the measure applied was expedient or advisable. ^*98

Finally, if judicial review encompasses all of the above-mentioned criteria, it will be not only formal but also material. Such an approach will guarantee a person whose rights and freedoms may be violated a real and an effective right of recourse to the courts. It also allows fulfilment of the principle of separation and balance of powers.

3. Conclusions

Internal security is one of the Constitutional values. Internal security and the duty of protection mean that the state is also obliged to act not only reactively but also proactively. One way to act proactively is to prevent harm to the protected good. Averting of a danger is one of the preventive legal models. It should be noted that the activities of administrative authorities cannot be solely based on prevention, because it is not practically possible to prevent all harm that may occur in the future. This would also require measures that very intensively restrict fundamental rights and freedoms. Therefore, it should be deemed reasonable to find a balance between reactive and proactive activity. Finding that balance depends merely on concrete time and space.

Reservation of statutory powers is one expression of democracy—one that demands that the legal norms enacted be detailed and precise and that the legal consequences be foreseeable. If the concept of danger is limited in three dimensions (time, space, and probability) and also delimited in terms of real, apparent, and suspected danger and by levels of danger, the behaviour of the authorities will not be restricted unduly. Also, the behaviour of authorities is more predictable in these terms, presenting a situation that allows better protection of fundamental rights, because the legal norm is more precise and detailed and thereby in accordance with reservation of statutory powers.

Indisputably, the terrorist attacks on the US World Trade Center and organised crime in the Schengen area have led the legislator more and more to consider internal security and, through this, expansion of the measures that allow acting in a situation wherein there is only suspicion of the existence of danger (i.e., suspected danger). The Riigikogu has enacted authorisation norms that cover a broad scale and thus allow acting when suspected danger exists. It is disputable whether such expanding authorisation is in accordance with the Constitution (e.g., examining a person’s clothing and body cavities etc.). When it is not precisely clear whether the danger is present, a situation can arise in consequence wherein such a measure and restriction is not necessary in a democratic society and may distort the nature of the rights and freedoms restricted. At the core of averting of a danger is not the prevention of dangers, only protection. Restriction of fundamental rights shall not lead the democratic state to become a state what recognises no limits to its authority. Application of various degrees for danger will provide more detail‑level regulation and help to guarantee that interference with fundamental rights is moderated.

The general clause is one of the main problems with averting of a danger. The main question is whether it can be precise and definite enough to be considered constitutionally valid. The scope of adjustment may be too broad and extensive, which may not be in accordance with the principle of legal certainty, because people are not able to foresee adequately the legal consequences that their acts may have. That is why it is disputable whether such a clause is in keeping with the rule of law.

The judicial review of averting of a danger is very important, because this defence is a material basis for restriction of fundamental rights and freedoms. Therefore, legislative and executive actions should be formally and materially subject to review by the judiciary. Estonia has implemented a system of administrative courts that are charged with resolving disputes between persons and the state (administration. The judiciary must be able to review whether the activity of the administration was formally and materially legitimate. The courts must be able to take a position on the existence of a danger as well as to assess the rightness and accuracy in the prognosis decision.

In conclusion, all of the above-mentioned elements set minimal standards for averting of a danger. That is why also the OPA and PBGA should take those minimum standards into consideration, if it wants to be in accordance with the principle of a state based on democracy and the rule of law.

Notes:

^*1    In Estonian ohutõrjeõigus. In German die Gefahrenabwehr. The author also uses in the text the term defence against danger as a synonym for averting of a danger.

^*2    Politseiseadus. – RT 1990, 10, 113; 2007, 62, 394 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 23.3.2012).

^*3    Politsei ja piirivalve seadus. – RT I 2009, 26, 159; RT I, 29.12.2011, 28 (in Estonian).

^*4    Korrakaitseseadus. – RT I, 22.3.2011, 4 (in Estonian).

^*5    In some occasions the parliament of Estonia (Riigikogu) or Ministry of Justice has involved the Supreme Court in legislative drafting and asked the Supreme Court’s opinion of the concrete draft act. That opinion is not binding and usually it is put together by the advisers.

^*6    The text is published as M. Ernits. Preventiivhaldus kui tulevikumudel (Proactive administration as a future model). – Riigikogu Toimetised 2008 (17), p. 162 (in Estonian).

^*7    P.M. Huber. Risk decisions in German constitutional and administrative law. – G.R. Woodman, D. Klippel (eds). Risk and the Law. Routledge-Cavendish 2008, p. 29.

^*8    Korrakaitseseaduse eelnõu (eelnõu nr 49 SE I) seletuskiri (Explanatory memorandum to the draft Act of Order Protection (draft 49 SE I)), p. 6. Available at http://www.riigikogu.ee/?page=eelnou&op=ems&emshelp=true&eid=93502&u=20120331103845 (in Estonian).

^*9    Eesti Vabariigi põhiseadus (the Estonian Constitution as passed by a referendum held on 28.6.1992). – RT I 1992, 26, 349; RT I 27.4.2011, 2 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 23.3.2012).

^*10 See also K. Jaanimägi. Politsei sisemise rahu tagajana (The Police as a Keeper of Public Peace). – Juridica 2004/7, p. 453 (in Estonian).

^*11 R. Maruste. Konstitutsionalism ning põhiõiguste ja -vabaduste kaitse (Constitutionalism and the Protection of Fundamental Rights and Freedoms). Tallinn: Juura 2004, p. 92 (in Estonian). On states’ duty to protect internal security, see also V. Götz. Innere Sicherheit. – J. Isensee, P. Kirchhof (eds). Handbuch des Staatsrechts Band IV (HStR IV). C.F. Müller, 2003, §85, column number 1 ff.

^*12 E.-J. Truuväli et al. (eds). Eesti Vabariigi põhiseadus. Kommenteeritud väljaanne. Teine, täiendatud trükk (Constitution of the Republic of Estonia, Commented Edition, Second, Revised Edition). Tallinn: Juura 2008, p. 35 (in Estonian).

^*13 Supreme Court en banc decision of 7.12.2009, 3-3-1-5-09, paragraph 31 (in Estonian).

^*14 F. Schoch. Polizei- und Ordnungsrecht. – E. Schmidt-Aßmann (ed.). Besonderes Verwaltungsrecht, 14. Ausgabe. Berlin: De Gruyter 2008, p. 132.

^*15 Ibid., p. 136.

^*16 B. Pieroth, B. Schlink, M. Kniesel. Polizei- und Ordnungsrecht. Munich: C.H. Beck 2002, p. 56.

^*17 A. Voßkuhle. Grundwissen – Öffentliches Recht: Der Gefahrenbegriff im Polizei- und Ordnungsrecht. – JuS 2007/10, p. 908; D. Kugelmann. Polizei- und Ordnungsrecht. 2006, Chapter 4, column number 82, and, there cited, D. Kugelmann. Der polizeiliche Gefahrenbegriff in Gefahr? – Anforderungen an die Voraussetzungen polizeilicher Eingriffsbefugnisse – Die Öffentliche Verwaltung (DÖV), Heft 19, 2003, pp. 781–782.

^*18 Huber (see Note 7), p. 29.

^*19 H. Schwemer. Põhiseaduse nõuded politseiõigusele (The Constitutional Requirements for the Police Law). – Juridica 2004/7, p. 447 (in Estonian).

^*20 Legal certainty is recognised as one of the general principles of European law. See P. Craig, G. de Búrca. EU Law: Text, Cases, and Materials, 5th ed. Oxford University Press 2011, pp. 525, 533–538.

^*21 The Supreme Court has declared legal norms unconstitutional because they did not allow discretion; see Supreme Court en banc decision of 21.10.2001, 3-4-1-7-01; Supreme Court Constitutional Review Chamber decision of 21.6.2004, 3-4-1-9-04 (in Estonian).

^*22 It was in force until 31.12.2009.

^*23 Schwemer (see Note 19), p. 444; Jaanimägi (see Note 10), p. 459; O. Kask. Korrakaitse seaduse eelnõust (On the Draft Act of Order Protection). – Juridica 2004/7, p. 468 (in Estonian).

^*24 Supreme Court Constitutional Review Chamber decision of 10.1.2008, 3-3-1-65-07, paragraph 19 (in Estonian).

^*25 Subsection 1 (4) of OPA, §1 (4) of PBGA.

^*26 E.g., §§ 30–53 of OPA; §§ 7¹⁵–7⁴¹ of PBGA.

^*27 E.g., §2, §6 (2) of OPA; §3 and §7¹ of PBGA.

^*28 Ibid.

^*29 See also R. Alexy. Põhiõigused Eesti põhiseaduses (Fundamental Rights in the Constitution of the Republic of Estonia). – Juridica, special edition, 2001, p. 36 (in Estonian).

^*30 See also Truuväli et al. (see Note 12), p. 53.

^*31 Subsection 5 (2) of OPA; §7³ (2) of PBGA.

^*32 Schoch (see Note 14), p. 156; F.-L. Knemeyer. Polizei- und Ordnungsrecht, 11th ed. Munich: C.H. Beck 2007, p. 63. See also the English-language version addressing the definition of danger, translated by Huber (see Note 7), p. 25.

^*33 Averting of a danger involves two kinds of discretion: resolution discretion (otsuse kaalutlus, das Entschließungsermessen) and selection or choice discretion (valiku kaalutlus, das Auswahlermessen). See W.-R. Schenke. Polizei- und Ordnungsrecht, 4th ed. Heidelberg: C.F. Müller 2005, column number 94; see also Pieroth et al. (see Note 16), pp. 74–75.

^*34 Schoch (see Note 14), p. 159.

^*35 Knemeyer (see Note 32), p. 67.

^*36 Supreme Court ad hoc panel decision of 29.1.2010, 3-3-1-72-09, paragraph 18; Supreme Court Constitutional Review Chamber decision of 21.5.2002, 3-3-1-29-02, paragraph 12; 18.6.2002, 3-3-1-33-02, paragraph 11; 5.11.2008, 3-3-1-49-08, paragraph 11 (in Estonian).

^*37 See also §5 (2) of OPA; §7³ (2) of PBGA.

^*38 Explanatory memorandum to the draft Act of Order Protection (see Note 8).

^*39 Riigivastutuse seadus (State Liability Act), §16 (1). – RT I 2001, 47, 260; 2006, 48, 360 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 23.3.2012).

^*40 Supreme Court Civil Chamber decision of 24.11.2009, 3-2-1-123-09, paragraph 12.

^*41 Subsection 16 (2) of SLA.

^*42 Subsection 16 (3) of SLA.

^*43 Section 25 of the Constitution states that everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.

^*44 Knemeyer (see Note 32), p. 68.

^*45 Schoch (see Note 14), p. 161.

^*46 See also Subsection 2.2 of this article.

^*47 Subsection 5 (6) of OPA.

^*48 Subsection 26 (1) of OPA.

^*49 Subsection 26 (2) of OPA.

^*50 Subsection 30 (1) of OPA, (3); §7¹⁶ (1), (3) of PBGA.

^*51 OPA §31 (1) of OPA; §7¹⁷ (1) of PBGA.

^*52 Subsections 32 (1), (6) of OPA; §7¹⁸ (1), (6) of PBGA.

^*53 Subsection 34 (1) of OPA; §7²¹ (1) of PBGA.

^*54 Subsection 35 (1) of OPA; §7²¹ (1) of PBGA.

^*55 Subsection 44 (1) 3) of OPA; §7³¹ (1) 3) of PBGA.

^*56 Subsection 45 (1) of OPA; §7³² (1) of PBGA.

^*57 Subsection 47 (1) 3) of OPA; §7³⁴ (1) 3) of PBGA.

^*58 Subsections 48 (1) 2), §49 (1) 5) of OPA, §51 (1) 2); §7³⁵ (1) 2), §7³⁶ (1) 5), §7³⁸ (1) 2) of PBGA.

^*59 Subsection 50 (1), (2) of OPA; §737 (1) 2), (2) of PBGA.

^*60 Subsection 76 (1) of OPA.

^*61 Explanatory memorandum to the draft Act of Order Protection (see Note 8), p. 23.

^*62 Ibid.

^*63 Comparison with German law: It knows present danger (gegenwärtige Gefahr), significant danger (erhebliche Gefahr), urgent danger (dringende Gefahr), danger to life or body (Gefahr für Leib oder Leben), common danger (gemeine Gefahr), and imminent danger (Gefahr im Verzug). See F. Schoch. Grundfälle zum Polizei- und Ordnungsrecht. – JuS 1994, p. 670; Schenke (see Note 33), pp. 41–42.

^*64 Subsection 5 (4) of OPA; §7³ (3) of PBGA.

^*65 Subsection 5 (3) of OPA.

^*66 Explanatory memorandum to the draft Act of Order Protection (see Note 8), p. 23.

^*67 Subsection 5 (5) of OPA; §7³ (4) of PBGA. See also the explanatory memorandum to the draft Act of Order Protection (see Note 8), pp. 23–24.

^*68 Schoch (see Note 14), p. 150; Pieroth et al. (see Note 16), p. 111.

^*69 Pieroth et al. (see Note 16), pp. 106–107; Schenke (see Note 33), p. 22. See also the explanatory memorandum to the draft Act of Order Protection (see Note 8), p. 49.

^*70 Schoch (see Note 14), p. 242. On the general clause structure, see also Schoch. Bürgerliches Recht in der Fallbearbeitung. – JuS 1994, Part VI, p. 570.

^*71 Pieroth et al. (see Note 16), pp. 106–107.

^*72 For details on standard measures, see Schenke (see Note 33), p. 60.

^*73 Schoch (see Note 14), p. 242.

^*74 OPA §28, §29; PBGA §7¹³, §7¹⁴. See also the explanatory memorandum to the draft Act of Order Protection (see Note 8), pp. 51–52.

^*75 See also The Constitution of the Republic of Estonia, Commented Edition (see Note 12), pp. 119, 121–122.

^*76 Constitutional Review Chamber of the Supreme Court decision of 31.1.2007, 3-4-1-14-06, paragraph 23.

^*77 BverfGE 54, 143/144 f. §29 of the Law on the Duties and Powers of Regulatory Agencies (OBG) of Nordrhein-Westfalen. See also Schenke (Note 33), p. 22.

^*78 See the Supreme Court of Estonia en banc decision of 21.6.2011, 3-4-1-16-10, paragraph 66 (in Estonian).

^*79 See §19 of the Constitution.

^*80 Ibid., §26.

^*81 For more in-depth discussion of judicial control, see Subsection 3.3.

^*82 M. Niemeier. Nõuded õigusriiklikule politseiõigusele – proportsionaalsuse põhimõte ja Euroopa õigus (Requirements for Police Law: The Principle of Proportionality and European Law). – Juridica 2004/7, p. 461 (in Estonian).

^*83 For more on the duty of protection, see O. Lepsius. The problem of de-individualisation in the risk society. – G. R. Woodman, D. Klippel (eds). Risk and the Law. Routledge-Cavendish 2008, pp. 46–48.

^*84 Haldusmenetluse seadus (Administrative Procedure Act), §4. – RT I 2001, 58, 354; 23.2.2011, 3 (in Estonian). English text available via http://www.legaltext.ee/ (most recently accessed on 23.3.2012).

^*85 The institutional principle of separation and balance of powers is enshrined in §4 of the Constitution and the functional in §14. See also Constitution of the Republic of Estonia, Commented Edition (see Note 12), p. 64.

^*86 Supreme Court of Estonia en banc decision of 21.6.2011, 3-3-1-22-11, paragraph 29.2 (in Estonian).

^*87 See Section 2 and the explanatory memorandum to the draft Act of Order Protection (see Note 8), pp. 7–9.

^*88 Subsection 15 (2) of the Constitution: ‘The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.’ See also Constitution of the Republic of Estonia, Commented Edition (see Note 12), pp. 163–164.

^*89 There are also different concepts; see R. Poscher. Gefahrenabwehr. Eine dogmatische Rekonstruktion. Berlin: Duncker & Humblot 1999, pp. 114–125.

^*90 H. Maurer. Allgemeines Verwaltungsrecht. Munich: C.H. Beck 2002, p. 109.

^*91 See also Sections 3.1.1, 3.1.2, and 3.2.

^*92 Supreme Court Constitutional Review Chamber decision of 13.10.2010, 3-3-1-44-10, paragraph 15 (in Estonian).

^*93 Supreme Court Constitutional Review Chamber decision of 2.6.2010, 3-3-1-33-10, paragraph 12; 13.11.2009, 3-3-1-63-09, paragraph 16 (in Estonian). See also Schoch (see Note 63), p. 667.

^*94 Explanatory memorandum to the draft Act of Order Protection (see Note 8), p. 22.

^*95 Ibid.

^*96 Poscher (see Note 89), p. 123.

^*97 On discretion, see Maurer (Note 90), §7. K. Pikamäe. Kaalutlusvigadest (Abuses of Discretion). – Juridica 2006/2, p. 77 (in Estonian).

^*98 Schoch (see Note 14), p. 164.

With respect to the question ‘Who has the last word on the protection of human rights in Europe?’, it is possible to look, on one hand, at international, supranational, and national interaction in jurisprudence and, on the other, at the legislative, executive, and judicial, and to a certain degree the actions of the media. In this article, I address the former aspects, while drawing forth some other possible angles.

The question is topical for several reasons: discussion has again emerged in Estonia on the constitutionality of the relationship between the European Union (EU) and Estonia, and the Supreme Court has recently rendered its judgment on the constitutionality of the treaty establishing the European Stability Mechanism (Supreme Court judgment of 12 July 2012); the member states of the Council of Europe on 20 April 2012 approved the Brighton Declaration, on the future of the European Court of Human Rights (ECtHR, or ‘the Court’), which, among other things, addresses the relationships between the Council of Europe member states’ courts and that of the ECtHR; and at the end of May and beginning of June 2012, hundreds of well-known jurists from Europe and beyond gathered in Tallinn to discuss at the XXV Congress of the International Federation of European Law (FIDE) various pertinent topics. These included protection of fundamental rights after the Lisbon Treaty’s entry into force; the interaction among the Charter of Fundamental Rights of the European Union (EU Charter), the European Convention on Human Rights (ECHR, or ‘the Convention’), and the national constitutions; and topics in the areas of freedom, security, and justice, including information society issues.

1. Examples of international, supranational, and national legal sources’ interaction in the protection of human rights in Europe, from court cases

1.1. Hungary’s red five-pointed star in the human rights triangle

Hungary’s criminal code prohibits the distribution and exhibition of the swastika, SS symbols, the hammer and sickle, and the red five-pointed star, except for educational, scientific, and artistic purposes. ^*2 Hungary’s Constitutional Court stated in 2000 that the named article in the criminal code is in compliance with the Constitution, referring also to the state’s discretionary authority in the Council of Europe and to Hungary’s historical experience. ^*3

The deputy chairman of Hungary’s Workers’ Party, Attila Vajnai, was penalised by the first-tier court for wearing an approx. 5 cm large red five-pointed star—a totalitarian symbol—on a garment at a demonstration that took place on 2 February 2003, in Budapest. Vajnai appealed the decision to the second-tier court, which made Hungary the first among the states that had joined the EU in 2004 to ask the Court of Justice of the EU (CJEU) for a preliminary ruling. The Hungarian court wanted to know whether Hungary’s statute is discriminatory in comparison to the other EU member states’ laws, and it asked the CJEU to rule on whether the prohibition in Hungary’s legislation is contrary to the principles of freedom of expression and equal treatment. The CJEU replied that making a ruling on this matter is not within its competence and did not explain its decision. ^*4 At that time, the EU Charter was not in force, nor did the question pertain to the free movement of persons and goods across EU borders.

Budapest’s second-tier court then agreed with the first-tier court’s ruling and Vajnai’s sentence remained in force.

Vajnai took his case to the ECtHR. The latter handed down its decision on 8 June 2008, stating that, according to Article 10 of the ECHR, Vajnai’s right to freedom of expression had been violated. The Court stated that, although the prohibition against the five-pointed star was based on law and served a legitimate aim—to guarantee public order and the safety of others—it was unnecessary in a democratic society. ^*5 In his particular case, the red five-pointed star was a multifaceted symbol (that is, a symbol with multiple meanings) that cannot be unequivocally equated only to totalitarian ideas, for it is at the same time the sign for the international labour movement. In addition, a concrete indication was lacking that would have given cause to believe that the wearing of the red five-pointed star on clothing would result in violence. Therefore, a universal prohibition against wearing of the five-pointed star was in conflict with the Convention.

Only a couple of months before the ECtHR rendered the above judgement, a first-tier court in Hungary had found another person—Janos Fratanoló—guilty of wearing a red five-pointed star as an act endangering public order. Later, a higher Hungarian court found that Hungarian justice does not allow the courts to appeal to ECtHR practices, and it let Fratanoló’s sentence stand. Finally, Fratanoló’s case reached the ECtHR in Strasbourg, which again found that Article 10 of the Convention had been violated. ^*6

Apparently, the relevant law in Hungary has still not been changed.

The above example reflects all those elements presented in this article: the national level (Hungary), the EU (supranational) level, and the Council of Europe (international/regional) level, and, in addition, the domestic courts, the CJEU, and the ECtHR. Also illustrative are the conflicts between the Hungarian legislators and the pan-European ^*7 judicial authority—even the differences of opinion within the Hungarian judicial authority: the constitutional court’s decision that considered Hungary’s statute to be legitimate juxtaposed with the doubts of the so-called regular courts. The question of the five-pointed star went beyond Hungary’s borders. ^*8

As a result, the case gives cause to ponder and creates a whole series of questions: Why was the prohibition against wearing the red five-pointed star so important for Hungary? Was the absolute prohibition and the criminalisation of its wearing justified and balanced, and is freedom of expression sufficiently protected in Hungary? Why did the EU not take a position on this matter? Was this due to lack of competence, and would it do so now that the EU Charter has become a legally binding document, or is a cross-border element still missing in this particular case? Did the ECtHR have the authority to go against the position of Hungary’s constitutional court, which had found that Hungary has sufficient room to make its own decision, supported by historical background? It has to be borne in mind that for the ECtHR, Article 10 of the Convention, on freedom of expression, represents one of the basics of a democratic society and all forms of restrictions thereof have to be considered very carefully. The restricting of freedom of expression is justified only when necessary and balanced in a democratic society. Why did Hungary’s highest court not consider ECtHR practice? And, most importantly, what did the case give to the applicants? One and the same right—freedom of expression—had been understood differently. What would have happened had the applicants not recognised the issues, known their options, or wanted to appeal to the pan-European court(s)?

With respect to judicial proceedings, the matter was definitely demanding of time—in Vajnai’s case five years and Fratanoló’s almost eight years—and, no doubt, expensive. But who had the last word in the end? With the given concrete matters, it appears that the ECtHR had the last word, but at the same time the Hungarian legislators did not make changes, and the next Vajnai or Fratanoló will be found guilty of wearing a red five-pointed star and will still have to turn to the ECtHR in order to secure his right decisively.

1.2. Asylum-seekers as a ball tossed between the European Court of Human Rights and the Court of Justice of the European Union: Trust but verify

For case law and jurisprudence, it should be a priority to see everything through the prism of human rights protection, because, as the human being is most valuable, the protection of his or her rights should not be compromised. That includes assessing the EU law, although at first glance it may appear that the application of EU law in the Member State court somewhat presumes automatic acceptance.

One of the problems is connected with the principle, noble in itself, that the EU should to a certain extent be constructed on trust among the Member States. In reality, such trust may not be sufficient, as is evident in, for example, times of economic crisis. The EU seems to foster trust, as is apparent in the reciprocity of court decisions under the Dublin II Regulation on the right of asylum ^*9 and also in relation to matters such as marriage and parental responsibility. ^*10 But experience has shown, and ECtHR practice has confirmed, that even in these cases it is necessary to approach each incident individually.

On 21 January 2011, the Grand Chamber of the ECtHR rendered a judgement regarding the implementation of the EU Dublin II Regulation (on examination of an asylum application). ^*11 The applicant was an Afghan citizen who left Kabul in 2008 and entered the EU via Greece. He moved on to Belgium, where he applied for asylum. Belgium did not examine the application and, citing the Dublin II Regulation, sent the applicant back to Greece. The Dublin II Regulation, issued in 2003 by the EU, includes the principle that an asylum-seeker’s application can be examined in only one member state of the European Union. When it becomes clear that the applicant has entered the EU via another Member State or has already applied for asylum in another state, the applicant is returned to that state and the process is handled by that state’s authorities. The applicant argued that Belgium, by sending him back to Greece, had violated Articles 3 (on prohibition of torture and of inhumane or degrading treatment), 2 (on the right to life), and 13 (on the right to an effective remedy) of the Convention, in view of the humiliating and inhuman conditions in the detention facilities and the living conditions in Greece, and that in Greece it was not possible for him to have an effective remedy in respect of his complaints under Articles 2 and 3 of the ECHR. The applicant alleged that it was not possible to have his rights protected in Belgium either.

The ECtHR found that Greece had violated the Convention by maintaining detention and living conditions that offend a person’s dignity. Also, the ECtHR noted that the processing of asylum applications was inadequate. In addition, it found that Belgium had violated the Convention as well, by sending the applicant back to Greece and causing him to endure inhuman detention and living conditions there. Likewise, the ECtHR decided that the applicant lacked in Belgium an adequate right to effective remedy in order to protect his rights.

The above-mentioned judgement was very important for many EU states, such as the Netherlands, Denmark, Sweden, Finland, and Austria, since they encounter daily the implementation of Dublin II Regulation terms. It is interesting to note that some Member States’ courts—Austria’s, for example—had already criticised the Greek asylum system and asylum‑seekers’ living conditions in Greece. ^*12

With its decision M.S.S. v. Belgium and Greece, the ECtHR pointed a finger at the EU.

The CJEU replied on 21 December 2011 in the case of NS v. United Kingdom.The CJEU considered the right to asylum so important that its Grand Chamber deliberated it, and, in addition, 13 EU member states, Switzerland, the UN High Commissioner for Refugees, Amnesty International, and the Centre for Advice on Individual Rights in Europe submitted their observations on the matter. ^*13 All of them agreed that in 2010 Greece was the point of entry to the European Union of almost 90% of illegal immigrants, resulting in a disproportionate burden being borne by that state as compared to other Member States and the inability of the Greek authorities to cope with the situation in practice. The CJEU noted that the EU common asylum system (Dublin II Regulation) was created in a context that considered it possible for all Member States to respect human rights. The aim of the Dublin II Regulation was to expedite the examination of asylum-seekers’ applications in the interest of both the asylum applicant and the respective Member States. It was considered important to prevent a situation wherein multiple Member States process applications by one and the same applicant. The aim was to increase that regulation that determines the single Member State responsible for examining the asylum application. However, Member States may not transfer an asylum-seeker to a ‘responsible Member State’ if they know that in said state an asylum-seeker could face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter. The CJEU found that the Member States have at their disposal sufficient instruments to allow them to assess compliance with fundamental rights and, thereby, should be aware of the real dangers to which an asylum-seeker would be subjected in the event that he or she is sent to the country in question. Additionally, the CJEU found that the matter belongs to the domain of EU rights application, that Member States must apply the EU Charter’s principles, and that the application of the EU Charter in the United Kingdom (UK) is not questioned—regardless of the protocol referring to the UK. ^*14 In its ruling, the CJEU references the ECtHR decision in M.S.S. v. Greece and Belgium.

The above-mentioned decisions recognise the attempts made by the ECtHR and CJEU to harmonise their relations. Heretofore, most essential to ECtHR and CJEU relations had been the so-called Bosphorus judgement of the ECtHR, which states that the EU offers human rights protection equivalent to that of the Convention. ^*15

1.3. Protecting the right to privacy v. freedom of expression: The Bundesverfassungsgericht passing an exam on the second try before the European Court of Human Rights

The Von Hannover v. Germany case ^*16 before the ECtHR pertained to freedom of expression: the right to publish photos of Monaco’s Princess Caroline. The ECtHR asked the following questions in its 2004 decision, addressing the topic for the first time: Does a public figure have the right to privacy, and to what extent? Does the publication of photos contribute to debate in the public interest, and to the formation and discussion of opinion in society, or does it purely satisfy yellow journalism’s curiosity? The ECtHR found that protection of privacy prevails (likewise, in the case of Tammer v. Estonia ^*17 it was found that freedom of expression had not been violated), while at the same time the Federal Constitutional Court of Germany, the Bundesverfassungsgericht (BVerfG), had decided in the same case that the word has priority; i.e., there is press freedom to publish photos of the princess even though this is discretionary (many photos of her love life, children, shopping, etc.).

After the ECtHR’s decision, the BVerfG changed its position and then started to analyse whether the publication of certain photos did, in fact, contribute to the development of public debate or simply satisfy curiosity. In the later case Von Hannover v. Germany No. 2 ^*18 , the BVerfG found, on the basis of such analysis, that the publication of photos was justified, so when this case too reached the ECtHR, the latter this time agreed with the BVerfG. In the Von Hannover No. 2 case, in 2012, the contested photos showing Monaco’s Princess Caroline and her husband skiing were accompanied with a story about the health of her father, Prince Rainier, and how his children take turns caring for their elderly and ill father. The ECtHR decided that the question of the health of Prince Rainier III of Monaco as the head of the principality was, without doubt, a matter of interest to the general public. The inclusion of the photo of the family skiing holiday in that context added value to the information. The applicants were public figures and had to consider heightened interest in their personal lives. The photos in question had not been taken in secret or by harassment. As a result, the Court found that the right to privacy had not been violated. The ECtHR emphasised that the BVerfG had analysed the case in detail and in the context of ECtHR judicial practice.

The Princess Caroline of Monaco court cases are good examples of dialogue between the constitutional court of a Member State and the European Court of Human Rights.

1.4. National identity’s controversial success story before the Court of Justice of the European Union

Returning to the CJEU, let us look at the relations between the EU and Member States’ laws. A new and interesting topic in itself is Article 4 (2) of the Treaty on European Union (‘the EU Treaty’) (in Article 4 (2) EU), which refers to the EU’s respect for its member states’ national identity. This could, in concrete court cases, come into conflict with EU basic freedoms (the free movement of goods, capital, services, and people—the EU’s ‘four freedoms’) and even with fundamental rights. In its 22 December 2010 decision in the case Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien ^*19 , the CJEU found for the first time that it is in harmony with Article 4 (2) of the EU Treaty to permit or justify a Member State’s reliance on constitutional identity when restricting an EU citizen’s freedom to move. Thereby, the EU’s obligation to respect a Member State’s constitutional identity was recognised. According to Austria’s constitutional court (Verfassungsgerichtshof),the use of a title of nobility in one’s surname is in conflict with the Constitution, under the principle of equality and written into the law on the abolition of the nobility, which is of Constitutional status and implements the principle of equal treatment in this field. In Germany, Austrian citizen Ilonka Sayn-Wittgenstein, who worked in the luxury real-estate sector, could use the title ‘Fürstin von Sayn-Wittgenstein’, but this was not permissible in Austria. However, a person’s name is part of his or her identity and private life (see Article 7 of the EU Charter and Article 8 of the ECHR). In addition, the CJEU had previously found that if one Member State does not recognise a person’s legal name from another Member State, causing that person to have different names in those two Member States, that person’s right to free movement belonging to all EU citizens is violated. Also in the case of Sayn‑Wittgenstein it was found that a restriction was present and that a 15-year span existed between the person starting to use the name and the correction of the name in the registry by the authorities. Nevertheless, the CJEU arrived at the decision that the violation was justified in order to protect the principle of equal treatment, which is a general principle of law in the EU (Article 20 of the EU Charter) and also an essential fundamental right. Hence, the case demonstrates a potential collision of EU law and an EU member state’s law on the one hand—the principle of equal treatment v. a fundamental freedom of the EU: free movement of the individual (not to be confused with fundamental rights)—and on the other hand the collision of the principle of equality with the protection of identity and private life.

The judgement of the Court of Justice of the EU is an important indication that in certain cases the EU is obliged to respect national identity.

In this context, many questions emerge, such as what national identity is (constitutional identity being part of the national identity).

The XXV FIDE Congress general report on the topic of fundamental rights cites examples of national identity, such as core fundamental rights in general and human dignity (Germany and Estonia); language rights (Belgium); cultural and national heritage protection (Slovenia and Hungary); and elimination and prohibition of titles of nobility (Austria, Ireland, and Italy). ^*20 France’s secularism principle, laïcité, would fit well among these.

And who decides what constitutes a Member State’s national/constitutional identity?

According to Article 4 (3) of the EU Treaty, the EU and its member states accord each other full mutual respect and assistance in carrying out the tasks that flow from the founding treaties of the EU. The principle of sincere co-operation (loyal co-operation principle) applies also in the case of constitutional rights. This has been emphasised by Estonia’s Supreme Court decisions, such as the judgement deciding about the constitutionality of the prohibition of outdoor parliamentary campaign advertisements. ^*21 Member States’ courts may not make decisions independently on Article 4 (2) of the EU Treaty; the CJEU has to interpret it, though, at the same time, the interpretation may supply only the structure for the national identity concept and must leave sufficient room for the Member States’ courts to fill in the framework. For best results, that should occur procedurally via the preliminary references and rulings system, whereas it is open to the Member States’ constitutional/supreme courts to present their own views to the CJEU when asking for a preliminary ruling from the same. ^*22

The practice described above points to a development according to which the CJEU no longer needs to fight for its role in the Member States’ legal space and, instead, can place emphasis on the distribution of competencies in the delivery of justice. CJEU Advocate General Sharpston has even suggested that for certain matters the proportionality test can be left to the competence of domestic courts. ^*23 It appears that national identity is the border for EU actions. The protection of fundamental rights should be included in each Member State’s constitutional order. Article 4 (2) of the EU Treaty helps to overcome the absolute supremacy of the EU’s law over the constitutions of its member states.

Can it be said on the basis of the above example that the question of who is the highest constitutional court in Europe yields to the tendency of increasingly less hierarchy? Perhaps, but only to a certain extent. The case law of the CJEU is not completely consistent in this respect. Although the Member States’ constitutional courts try to be the watchdogs of national identity, they often make decisions only when dramatic instances arise and on matters of core principles of the relevant national system. Likewise, the CJEU keeps watch to see that when attempts are made to bring Member States’ constitutional norms into EU jurisprudence, the national identity does not become abused. Examples in contrast to the Ilonka Sayn-Wittgenstein judgement can be found also in CJEU practice: Member States’ national identity protection arguments were not considered convincing—e.g., in Greece’s attempts to combat media magnates’ domination of the public procurement sector (the Michaniki case ^*24 ) through amendments to the Constitution. The CJEU did not accept the constitutional identity argument and recognised the measure (amendment of the Greek Constitution) as being contrary to the EU’s secondary law and, also, disproportionate.

It should be noted here that whenever one considers the relationship between a Member State and the EU from the angle of protection of human rights, what may be in an EU state’s interest need not always be in the interest of all inhabitants of that state. The right of a Member State’s national identity need not be understood necessarily and rigorously as affecting a fundamental right, and, therefore, referring and appealing to national identity need not always take place in the interest of human rights. Unfortunately, a state could sometimes use a universal fundamental right as a shield in order to justify the violation of other fundamental rights, by pleading difficulty in defining/justifying public interest. ^*25

Let us now move from the practical examples to the theoretical and fundamental aspects of the triangle of fundamental rights’ protection in Europe.

2. Human rights, fundamental rights, and freedoms on three levels: The European Convention on Human Rights, Charter of Fundamental Rights of the European Union, and Constitution of Estonia— and the courts that interpret them

The three most important levels of human rights protection in respect of Estonia are the following: the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, and the Constitution of the Republic of Estonia.

2.1. The European Convention on Human Rights and the European Court of Human Rights

The European Convention on Human Rights ^*26 , signed in 1950 and in force since 1953, became effective in Estonia in 1996. ^*27 Of primary importance in the Convention are the right to life, human dignity, prohibition of torture and slavery, and a fair trial, along with the inviolability of private life and freedom of expression, religion, and assembly. The European Court of Human Rights (because of its seat, also called the Strasbourg court) interprets the European Convention on Human Rights and on 30 April 2012 had approx. 150,000 pending applications. ^*28

2.2. The Charter of Fundamental Rights of the European Union and the Court of Justice of the European Union

The EU Charter originally proclaimed at the European Council meeting in Nice on 7 December 2000 became legally binding in 2009, when the Lisbon Treaty came into force, on 1 December. ^*29 The most significant chapters of the EU Charter address dignity, freedom, equality, solidarity, a citizen’s rights, and administration of justice. The charter is interpreted by the Court of Justice of the European Union (because of its seat, also called the Luxembourg court), which consists of the Court of Justice, the General Court, and the Civil Service Tribunal. Of critical importance is Article 47 of the EU Charter—on the right to effective remedy and to a fair trial.

2.3. The Constitution of Estonia and the Estonian Supreme Court

The Constitution of Estonia, adopted by the Estonian people on 28 June 1992 ^*30 , contains a special Chapter II on fundamental rights, which is influenced largely by the ECHR.

In addition to the catalogue of fundamental rights, freedoms, and duties, §10 of the Estonian Constitution stipulates that the rights, freedoms, and duties set out in the Constitution shall not preclude other rights, freedoms, and duties that arise from the spirit of the Constitution or are in accordance therewith and that conform to the principles of human dignity and of a state based on social justice, democracy, and the rule of law.

Prior to accession to the EU, the Constitution was supplemented with the Constitution of the Republic of Estonia Amendment Act, which is annexed to the Constitution as a separate act having the same value as the main text of the Constitution. ^*31 Section 1 of said act states that Estonia may belong to the European Union, provided that the fundamental principles of the Constitution of the Republic of Estonia are respected.

The Constitution and its amendment act are interpreted by Estonian courts, the Supreme Court being the leading one. The Supreme Court includes, along with its Chamber of Administrative Law, criminal law chamber, and civil law chamber, also a separate Chamber for Constitutional Review and therefore acts not only as the highest court but also as the Constitutional court of the country. The Constitutional Review Chamber of the Supreme Court or the Supreme Court deciding en banc can declare legislation of general application that has entered into force or a provision thereof to be in conflict with the Constitution and repeal it. ^*32

There are also rights that are not written into such documents, found in the charter and documents on minority rights. Some rights belong to neither international agreements nor in Member States’ rights but are protected nevertheless in the EU, as developed by the case law of the Court of Justice of the European Union. Examples are the Hoechst judgement ^*33 , from 1989, in which the then Court of Justice of the European Communities protected, next to the right to respect for one’s home, the inviolability of business premises, and the judgement in 2005’s Mangold case, wherein the Court of Justice developed the prohibition of discrimination based on age, which is not cited as prohibited either in the ECHR or explicitly in the Estonian Constitution. ^*34

2.4. Increase in the importance of the European Union’s fundamental rights charter in connection with acquisition of a legal status

According to Article 6 (1) Treaty of EU, the European Union recognises the rights, freedoms, and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted in Strasbourg, on 12 December 2007. The Court of Justice of the European Union confirmed on 19 January 2010, in its judgement in the Kücükdeveci case, that the EU Charter has the same legal standing as the EU’s founding treaties. ^*35

Although the charter of fundamental rights of the EU rose to a leading position, acquiring legally binding status in the EU when the Lisbon Treaty came into effect, the EU Charter does not create new competencies for the EU. Also, the EU Charter cannot be viewed in isolation either from the ECHR or from the common constitutional values derived from fundamental rights of the Member States, to which the EU Treaty also makes a reference.

It is important to keep in mind that the EU Charter is no substitute for a Member State’s catalogue of fundamental rights and that the EU Charter is binding on the Member States only when European Union law is applied—although one must admit that for the most part the Member States do implement EU law and the line between the application of a purely national law and law with EU influence is very thin. In general terms, it seems that ‘implementation of EU law’ is given a rather broad definition in the practice of the Court of Justice of the EU. ^*36

The relevant practical question to study in the future is this: What has the EU Charter changed for the daily life of the individuals living in the EU? The latest information about the EU Charter’s influence on the general fundamental rights culture in the EU is to be found in the European Commission’s Annual Report 2011 on the application of the EU Charter of Fundamental Rights. ^*37 This report, in turn, refers to a recent Eurobarometer survey (Eurobarometer 340: The Charter of Fundamental Rights of the European Union), which revealed that 64% of all Europeans knew in 2011 that such an EU charter exists, whereas in 2007 the general awareness about the EU Charter reached only 48%. However, knowledge about the content of the EU Charter is not as great. The greatest confusion surrounds whether the EU Charter is to be applied to all actions of Member States, including matters of national competence. The majority of EU inhabitants think that the EU Charter is applicable to the activities of Member States, including those that are clearly within domestic competence and are not subject to EU law’s application (in 2011, citizens’ letters to the European Commission on fundamental rights in 55% of cases fell outside the remit of EU competencies).

3. Issues related to the hierarchy of fundamental rights documents in Europe and collisions between pan-European courts

3.1. Logical distribution of competence in theory

At first glance, everything appears logical between the three layers of human rights protection analysed above: international, supranational, and national. Should problems emerge, the ECtHR is engaged with the European Convention on Human Rights; the CJEU is engaged with the EU Charter; and Estonia’s courts, with the Supreme Court being the leading one, are engaged with the Constitution. All of them are so-called pan-European courts: the ECtHR; the CJEU; and, without a doubt, the Member States’ courts, as they are irreplaceable on account of the assignments they carry out.

Certain rules have been worked out for helping one find one’s way, at least in part, in the triangle of ECHR, EU Charter, and Constitution. The ECtHR has adopted the concept of subsidiarity—human rights protection must be guaranteed initially on the Member State level; if that has failed, only then does the ECtHR come to assist. ^*38 Likewise, in certain instances, the ECtHR applies the concept of a degree of Member States’ room for assessment/discretion—.e., ‘margin of appreciation’—which is applicable to some cases wherein the common minimum standard is not very certain. ^*39 In such cases, it is considered whether, and to what degree, pan-European consensus is present. In ECtHR practice, counterbalancing references to the Convention as a living instrument exist. ^*40

Both the ECtHR and the CJEU use autonomous concepts, displaying rather evolutionary and dynamic court practices.

The EU Charter applies only when the Member States implement EU law. Only the CJEU can decide questions of the application and the final interpretation of EU law. The Estonian court must first check the compliance of Estonia’s laws with the European law, and then, and only in certain instances, Estonian law’s compliance with the Estonian Constitution must be checked. ^*41 The latter is checked, of course, when no connection exists with EU law.

Distribution of the workload among courts is essential. For example, the ECtHR says in its constant case law that the primary assignment for domestic courts is the evaluation of facts (factual material). ^*42 The same is true for application and interpretation of national laws; in general, neither the ECtHR nor the CJEU performs this function, and both leave that assignment to Member States’ courts. Certain exceptions do exist, however; for example, the ECtHR is to check, according to Article 5 (1) of the ECHR, a Member State’s law’s compliance with the European Convention on Human Rights.

As the above examples show, the borders between EU law and national laws are sometimes vague. Hence, although each court has its own competence, courts in general do not always stick to them in practice, since many incidents take place at the boundaries and those can contribute to the confusion. As a result, we are confronted with a justified question: should one norm be preferred to another; i.e., does a hierarchy of documents on human rights protection exist? How are we to avoid collisions and to resolve them?

3.2. Does a hierarchy of documents on human rights protection exist?

The European Court of Justice (now part of the CJEU) deliberated the question of hierarchy of norms in EU and international laws in the Kadi case, which could be instructive here. ^*43 The Kadi case had to do with a UN Security Council resolution. The Court of Justice referred to the autonomy of the Community (EU) legal order but also to the fact that the Court of Justice in its observance of fundamental rights leans on international and Member States’ laws. The CJEU found that respect for responsibilities taken on by the UN is obligatory for the preservation of international peace and security but also noted that responsibilities established by international agreements cannot lead to violation of the EU’s general principles. Thus the CJEU gallantly avoided a problem by specifying that the given case affects CJEU legal control over EU law with which an international agreement is implemented but not the agreement itself, and that complete review of the lawfulness of the implementation act is permitted from the perspective of fundamental rights (compare Member States’ tactic of analysing laws on ratification of treaty amendments and not changes in EU founding treaties themselves). The CJEU made reference to ECtHR practice pertaining to similar questions. As a result, the CJEU annulled Council of the European Union Regulation (EC) No. 881/2002 of 27 May 2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Osama bin Laden, the Al-Qaeda network, and the Taliban, insofar as it concerns Mr. Kadi and the Al Barakaat International Foundation.

Wolfgang Weiss asks, quite rightly, what the relationship is between different sources of human rights in the EU: the fundamental rights, as they result from the constitutional traditions common to the Member States; the fundamental rights defined by the EU Charter; and those that are guaranteed by the ECHR? ^*44 Furthermore, Article 6 (3) of the EU Treaty stipulates that the fundamental rights as guaranteed by the ECHR and as proceeding from the constitutional traditions common to the Member States shall constitute general principles of EU law.

An answer might be that these diverse sources of rights co-exist and complement each other. The ECHR influences EU law in three ways: it is the minimum standard, the source of general principles of EU law, and a source of protection for international fundamental rights (an international treaty to which the EU will accede). The ECHR serves as a minimum standard for EU law. The general principles of EU law and the EU Charter take precedence over the Convention only in instances wherein they present a higher standard of fundamental rights protection. Also, EU law has to take into account ECtHR practice. Hence, all of the above are interconnected.

If a certain right is regulated in only one of these three sources, fewer problems result. However, if in all three, it would be correct to use all three—the European Convention on Human Rights, the Charter of Fundamental Rights of the European Union, and Member States’ constitutions—in parallel with the respective courts’ relevant practices. If the right is protected similarly in all of these documents, the parallel role of the use of the documents would only enhance the legitimacy of the court judgement. However, the CJEU appears to favour the EU Charter and uses the Convention in a subsidiary manner when the issue does not involve the EU. ^*45 Likewise, the Member States’ courts are not obliged to refer to the EU Charter in purely domestic cases; in the latter situations, the Constitution suffices.

3.3. How to overcome conflict in the protection of fundamental rights?

Collisions can occur when fundamental rights are protected differently. Conflicts can occur between the CJEU and ECtHR, between the ECtHR and Member States’ courts, between the CJEU and Member States’ courts, and also between the superior courts of different Member States (provided that inter-court arguments between tiers are resolved adequately within the state in accordance with uniform court practice). ECtHR practice has been attempting to resolve recent conflicts by applying, de facto, the right of precedence to decisions made against a particular state also beyond cases concerning this state, to other states, with similar problems. ^*46 Some of the possible and actual conflict situations were described and analysed with the aid of examples at the beginning of this piece. Now I wish to present a possible recipe for overcoming conflicts.

When potential conflicts emerge, one cannot avoid trying to overcome them with the aid of legal techniques. But finding a balance requires sensitivity too. Even within one state, the collision of two fundamental rights is complicated; now imagine the case of that happening Europe-wide. It is not possible to approach written rules in a black-and-white manner when so much depends on concrete situations. In a conflict situation, one right is protected more than another, in view of prior weighing of the situation. This is not a matter of protecting one right and not the other, as in the case cited above of protection of privacy set opposite freedom of expression.

The main techniques for resolving different level conflicts are

1)    recognition of European rights’ supremacy and precedence over national law (certain national/constitutional identities as a limit) and

2)    the less painful version (which could be demanded by the Member State’s constitution: national law to be interpreted in harmony with European principles and law).

In their study, Mads Andenas and Eirik Bjorge notice a development among the Member States’ courts that points to their not only falling in line behind the Strasbourg court but often taking the initiative to advance the rights set forth in the Convention. ^*47 In the case of Cadder v. Her Majesty’s Advocate ^*48 , the UK Supreme Court had to overturn a long-standing case in Scottish case law addressing whether a person detained by the police on suspicion of having committed an offence has, before being interviewed, the right of access to a solicitor. ^*49 That decision had potential to affect 76,000 court cases. The UK Supreme Court had the courage in 2010 to agree unanimously on ending that practice putting an end to that practice regardless of the consequences, because the UK may not violate the ECHR and be different from the other Member States in this respect. In its interpretation of the Convention, the ECtHR has relied on universally applicable principles, with the aim of achieving harmonious protection of human rights in all of Europe—i.e., not the protection that would be dictated by national choices and preferences. It cannot be that one set of rules applies to Eastern Europe and to Turkey, and another set to Western Europe and to Scotland. Lord Hope, who authored the UK court’s unanimous opinion, concluded that pride in one’s legal system is one thing but isolation is quite another. ^*50

Member States’ courts often give legitimacy to their decisions by citing Strasbourg. Alec Stone Sweet and Helen Keller have noted correctly that Member States’ courts have taken the lead in incorporating the Convention into their domestic legal systems. ^*51

Collision can occur not so much from differences of opinion among the courts as also because of legislators failing to attend to their work. The Council of Europe, therefore, recommends to its member states that their legislators pay more attention to the Convention and its interpretations. ^*52 On the other hand, the European Commission emphasises the EU’s pan-European legislative role, which includes national legislators in its decision-making process. ^*53

The UK’s court practice can also be cited for an example of harmonious interpretation with European law: The House of Lords interpreted domestic law in conformity with the Convention in such a way that a surviving spouse is treated the same as a surviving (homosexual) partner. ^*54

Also important are the means used to reach a goal. If they are identical across the different courts, the result could also be the same; for instance, France’s Conseil Constitutionnel has adopted the ECtHR proportionality test. ^*55

3.4. How do the hierarchy of fundamental rights and the question of conflicts affect Estonia?

Estonia has adopted the European Convention on Human Rights and has been a member of the EU since 2004. Consequently, we are subject to the Convention, the Charter of Fundamental Rights of the European Union, and the Estonian Constitution. Thereby, the Constitution of the Republic of Estonia Amendment Act, allowing Estonia’s accession to the EU in accordance with the rule of law, can be seen as a bridge between Estonia’s law and EU law. Article 6 (3) of the EU Treaty, on the other hand, can be seen as a door and a bridge by which national constitutional rights enter EU law. This should be a two-way street. Unfortunately, professional literature recognises that the EU does not get sufficient inspiration from Member States’ constitutional customs; i.e., the EU is too reserved in this area. ^*56 However, some essential procedural rights have come into EU law thanks to the beneficial influence of Member States: the right to be heard in administrative procedure, the principle of good administration, and the right to transparency outside the classical fundamental rights classification. ^*57

According to the 10 Commandments, we know that one should have only one god. I apologise for using such a metaphor, but most Estonian judges have received their education through metaphors according to which Estonian judges’ god is the Constitution of the Republic of Estonia. Now the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union must be added. In adjudication, a judge cannot use only hierarchical norms in a case and has to see which of the documents best protects fundamental rights. Already 10 years before accession to the EU, Estonia’s Supreme Court cited the fundamental principles of the EU and the European Council, as well as the general principles in Estonia’s law. ^*58

3.4.1. Estonia’s constitution and the European Convention on Human Rights

Formally the Convention is a ratified international agreement and is positioned between Estonia’s constitution and the Estonian laws. In practice, it is the standard together with the Constitution by which violation of human rights is ascertained by the Supreme Court. ^*59

By accessing the Supreme Court’s Web site, one can become familiar with the analysis of ECtHR practice in the decisions of the Supreme Court. ^*60 Most of the references made to ECtHR judgements in Supreme Court decisions pertain to criminal cases and, in particular, reasonable time of proceedings, admissibility of statements as evidence given in preliminary investigation, and the guarantee of the right of defence in criminal proceedings. As for constitutional review, the Convention’s practices are applied chiefly in cases to do with the right to appeal a decision, individual constitutional complaint proceedings (which are not known in the Estonian legal order de lege lata), and excessive state fees. For administrative matters, the main subject of references to the case law of the ECtHR has been the treatment of imprisoned persons with human dignity. In some instances, some Supreme Court decisions contain comprehensive references to the Convention, especially to ECtHR practice—e.g., a constitutional analysis of preventive detention (detention after service of the sentence). ^*61 Given that an abundance of ECtHR practice exists and is constantly developing, and, in addition, often depends on concrete situations, it is not easy for the Supreme Court to compile such analyses, even more so in court decisions. Citizens have also raised questions about availability in Estonia of the ECtHR practices referred to in Supreme Court decisions. ^*62 Summaries of essential ECHR practices have, by now, become included in Riigi Teataja (The State Gazette) and on the Foreign Ministry’s Web site. ^*63

Estonia has recognised the importance of the Strasbourg court’s broad reach, starting with the Supreme Court decision in the Giga case, in 2004 ^*64 , in which the Supreme Court recognised the reopening of court cases when the ECtHR finds a violation, and now the possibility of reopening is also part of Estonia’s procedural codes. ^*65 In general, entering the Strasbourg court’s jurisdiction is considered less painful than becoming a member of the EU. Estonia’s constitution is justifiably inspired by the ECHR, and very little opposition exists. Reform is still needed for remedying the unreasonably long court procedures; it is too early for assessment of the practical improvements made via the recently established mechanism to expedite the process ^*66 , and no legal basis for compensation exists in current legislation.

From examination of the situation in Estonia, it can be said that most of the decisions wherein the ECtHR has recently found violations had not reached the Supreme Court of Estonia (they were rejected at the leave-to-appeal level). Those were cases in which the Supreme Court had ruled the lower courts’ decisions to be correct. Fewer disagreements with the Supreme Court’s own decisions were seen, and in a couple of the latest cases the ECtHR ^*67 has made positive references to the Supreme Court’s rulings—e.g., the latter’s ruling in the Osmjorkin ^*68 case, addressing the compensation for unreasonably lengthy court procedure, and the rulings that have taken into account the unreasonably long criminal proceedings by reducing the sentence. ^*69 These developments give witness to the fact that the ECtHR and the Supreme Court’s practice have entered constructive dialogue. However, some substantiated violations that the ECtHR has found to be committed by other Member States, as in the finding that the absolute ban on a detainee exercising his or her voting right violates the Convention ^*70 , have not been taken into consideration by the Estonian legislature (in Estonia, a similar absolute ban exists).

3.4.2. The Estonian Constitution and EU law

Matters are somewhat more complicated where the relationship between Estonian law and EU law is concerned. At this point, the previous considerations are not repeated (in-depth examination of the references to the case law of the CJEU in the Supreme Court’s practice even before it came into force and before Estonia joined the EU, and, also, the application of EU law in the Supreme Court’s case law, as well as references of the Estonian courts for preliminary rulings). ^*71 In the realm of the most recent developments in EU law and its influence on Estonian legislation, the Anti-Counterfeiting Trade Agreement (called ACTA) has been an object of discussion of late, and so has the Treaty on the European Stability Mechanism (ESM).

It can be deduced from the examples that were presented at the beginning of this article that some EU member states find certain principles and values not recognised by EU law to be so unique and essential to their statehood and laws that they must be protected at all costs. An amendment to the Estonian Constitution (Republic of Estonia Amendment Act, Article 1) contains a protection clause according to which Estonia may belong to the European Union with the proviso that the fundamental principles of the Estonian Constitution are respected. However, the Supreme Court has not explained to date what these fundamental principles are. The Supreme Court was not asked for its opinion before Estonia joined the EU, before the failed Treaty establishing a Constitution for Europe, or at the ratification of the Lisbon Treaty by the Estonian parliament. At the same time, the parliament has since 2006 had the possibility of seeking the Supreme Court’s opinion in certain instances, but it has done so only once. In the latter case, the Supreme Court’s opinion was positive and pragmatic as to EU law. ^*72 Regrettably, many questions remained unresolved, especially the question of where the limits to EU law lie.

How far can EU activities reach in accordance with Estonia’s constitution? The Supreme Court itself has, in essence, stated (in 2008) that it is not to be ruled out that the treaties amending the founding treaties of the EU and such stipulations of EU law as delegate to the EU new competencies will be scrutinised (reviewed) by the Supreme Court in view of their concordance with the fundamental Constitutional principles inherent to Estonia. ^*73

It is good to recognise that, thanks to the Chancellor of Justice questioning the ESM treaty, the Supreme Court could state its position (Supreme Court judgment of 12 July 2012). But, of course, a separate issue is that the ESM treaty has been drafted and agreed upon outside the classical autonomous EU law system and thus has the character of an international agreement. Therefore, it would be difficult to deal with the question of the extent to which the ESM treaty gives the EU additional competencies at all and/or creates the new international financial office as an independent international organ. In any event, the agreement can enter force even without Estonia’s consent, because it does not, as is the case with changes made to the EU’s founding treaties, require all signatory states to agree upon it.

Personally, I find it regrettable that the only time that attempts were made by the Supreme Court to examine the ties between EU law and Estonia’s constitution more thoroughly—i.e., in 2006, the preparations for adopting the euro, along with the present work in relation to the ESM treaty—the issue was division of competencies in the area of money and materialism. It would have been of greater relevance to question whether values such as Estonian language and culture, and also human dignity and justice, are under the same protection in the EU as they are in Estonia. Many matters in the functioning of the European Union are based on solidarity: if the richer countries did not help the poorer, the EU as we know it today would not exist. Regrettably, the concept of solidarity has hardly spread in Estonia.

4. Conclusions and the future: Accession of the European Union to the European Convention on Human Rights

In conclusion, it can be stated that conflicts among the three gods (ECHR, EU Charter, and Estonian Constitution) do not exist in Estonia, because Estonia’s constitution and court practice have taken into consideration the European Convention on Human Rights and the EU Charter.

Under these circumstances, the question of a hierarchy is eliminated. The Estonian judge has one god that is simultaneously a trinity: Father, Son, and Holy Ghost co-existing in harmony. Which of the three has each of these roles—among the European Convention on Human Rights, Charter of Fundamental Rights of the European Union, or Estonian Constitution—remains for anybody to decide for him- or herself. However, they have to be seen in harmony. The trinity does not consist only of the above-mentioned entities, for the European Court of Human Rights, Court of Justice of the European Union, and Estonian Supreme Court’s practice are included. There is no need for petty talk about subjugation to EU law, or the flag-waving of populist sovereignty. The principal element and value that all persons of the trinity have to consider is the protection of human rights.

Legal bases and their multiple interpretations can cause conflicts, but these could be prevented through co-operation. Extremely necessary and important in this context are a competent body of jurists, training of judges and lawyers, raising people’s awareness of justice, centres for analysis of European law at Member States’ courts, an EU law competence centre at the Strasbourg court, and a centre focusing on the ECHR (as well as ECtHR jurisprudence) at the Luxembourg court.

In many respects, prevention of conflicts depends on the approach. In the opinion of German lawyer Armin von Bogdandy, the national judge deciding in a case touching on European law must not lose sight of the decision’s Verallgemeinerungsfähigkeit, its generalisability, and should remember that the decision could also be used in the courts of other European states. ^*74

The courts have to be open to dialogue among themselves across Europe, and the various powers of the state as well as media. ECtHR judge Mark Villiger has presented several dialogues that the judges of the Court have: with other ECtHR judges, the Court’s registry and lawyers, parties to the case at hand, judges of domestic courts, judges of other European and international courts, European society, and finally themselves. ^*75 Only as a result of the above is it possible to make an informed, objective, and fair decision; therefore, judges have to acknowledge to themselves the need for such dialogues.

ECtHR President Sir Nicolas Bratza has emphasised that dialogue also has to proceed through judgements. ^*76 Permitting Member States’ courts to ask for opinions from the ECtHR has been suggested as one of the possibilities for advancing dialogue. A somewhat similar mechanism in the EU is references by Member States’ courts to the CJEU for a preliminary decision.

As the above examples have shown, the answer to the question ‘Who has the last word on the protection of human rights in Europe?’ often depends on the specific court decision. Legal bases have no hierarchy, nor do the courts that interpret those bases.

It is regrettable that the press commented on the recent ECtHR judgement Leas v. Estonia ^*77 that the former mayor of the rural municipality in Kihnu whom the Estonian courts had found guilty of accepting a bribe had been acquitted by the ECtHR. ^*78 After all, the ECtHR cannot rule on the guilt or innocence of anybody; the ECtHR decides whether a Member State has violated the European Convention on Human Rights in a concrete case, and it brings attention to certain deficiencies—e.g., regulation and judicial control of the surveillance activities.

In the contemporary world, one does not speak in terms of hierarchical categories. New theories have emerged, such as multilevel constitutionalism, the network of EU and Member States’ constitutional rights, constitutional pluralism, judicial dialogue, a common minimum standard, and a polycentric system. ^*79 Advocate General Maduro has said that European democracy also entails achieving a delicate balance between the national and European dimensions of democracy, without either one necessarily prevailing over the other. ^*80 BVerfG Chairman Andreas Voßkuhle maintains that the CJEU and Member States’ constitutional courts are parts of one large union of constitutional courts and that internationalisation and europeanisation have given comparative constitutional law a new quantitative and qualitative dimension. ^*81

The prevalence of EU law has become more relative in nature because of the important role of the above-mentioned Article 4 (2) of the EU Treaty. The fundamental rights should be part of EU constitutional identity via Article 2 of said treaty, but regardless of what the EU does, it has to guarantee that fundamental rights are protected.

In conclusion, I would like to mention an essential element in the regulation of a common European legal space: the accession of the European Union to the European Convention on Human Rights. The financial crisis has shown that ad hoc solutions, which do not belong in a rule-of-law state, may become a problem in the EU. It would be dangerous for the EU to abandon its own values. The European Union should have an external control mechanism of international standing, and the European Court of Human Rights could fill that role. To prevent hierarchy, the ECtHR should be seen in such instance not as a higher court but as a court specialising in human rights that makes sure that EU activities are in line with fundamental rights.

The greatest benefit of EU linking-up with the Convention would be the availability of better opportunities for the individual to argue against EU arbitrariness, thus enhancing the accountability of EU institutions in the protection of fundamental rights.

Former Finnish Chancellor of Justice Paavo Nikula has said that if the EU itself would want to join the EU, it would not qualify, because it has not signed the European Convention on Human Rights. ^*82 Regrettably, the accession of the EU to the ECHR has stalled. Whilst the draft agreement ^*83 was written last year, it has not been approved. Many questions still remain: those of the EU contribution to the Council of Europe’s budget, EU voting rights in the Committee of Ministers of the Council of Europe, and appointment of an EU judge to the ECtHR, to name a few. The key question is that of the preservation of the autonomy of EU law. The most significant judicial nuances of the accession involve the so-called co-respondent institution and the rendering possible of prior involvement for the Court of Justice of the European Union. ^*84

The longer the accession process takes, the greater are the risks of disagreements surfacing in relation to human rights protection. At least in the Brighton Declaration, the importance of EU accession to the European Convention on Human Rights is emphasised. ^*85

Finally, it is not so much a matter of who has the power to get in the last word. The answer resides in the protection of human rights themselves—protection that has to be guaranteed identically by Member States, the EU, the Council of Europe, and the courts of the pan-European system of justice, with complementarity and respect for each other in the process.

Notes:

^*1    All views expressed are those of the author alone.

^*2    Section 269/B of the Criminal Code: ‘The use of totalitarian symbols’.

^*3    Decision no. 14/2000 (V. 12.) of the Constitutional Court, dealing with the constitutionality of Section 269/B of the Criminal Code.

^*4    Order of the CJEU (Fourth Chamber) of 6.10.2005, C-328/04 (‘Vajnai’). – European Court Reports (ECR) 2005, I-08577.

^*5    Vajnai v. Hungary (Second Section), no. 33629/06, judgement of 8.7.2008.

^*6    Fratanoló v. Hungary (Second Section), no. 29459/10, judgement of 3.11.2011, with further references to the above-mentioned national court decisions.

^*7    Hereinafter, ‘pan-European’ is used as an overall term for the EU Charter and the Convention, as well as for the so‑called Luxembourg (CJEU) and Strasbourg (ECtHR) courts.

^*8    See, for example, Á. Domahidi. Politische Symbole und Meinungsäußerungsfreiheit – Der Weg des roten Sterns als politisches Symbol im gesamteuropäischen Grundrechtschutz. – Europarecht 2009, pp. 410–422.

^*9    Council Regulation (EC) No. 343/2003 of 18.2.2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national. – OJ L 222, 5.9.2003, pp. 3–23.

^*10 Council Regulation (EC) No. 2201/2003 of 27.11.2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. – OJ L 338, 23.12.2003, pp. 1–29.

^*11 M.S.S. v. Belgium and Greece (Grand Chamber), no. 30696/09, judgement of 21.1.2011.

^*12 For example, in its judgement of 7.10.2010 (judgement U694/10, available in the Legal Information System of the Republic of Austria (http://www.ris.bka.gv.at/)), the Austrian Verfassungsgerichtshof (Constitutional court) found, in connection with a review of the constitutionality of the transfer to Greece under Regulation no. 343/2003 of an Afghan single woman with three children, that whilst there is, in principle, the possibility of state provision where vulnerable persons are returned to Greece for implementation of the asylum procedure, this cannot be automatically assumed without a specific individual assurance on the part of the competent authorities. See §103 of the Opinion of Advocate General Trstenjak delivered on 22.9.2011, C-411/10 (N.S. v. Secretary of State for the Home Department).

^*13 Judgement of the CJEU (Grand Chamber) of 21.12.2012, joined cases C-411/10 (N.S. v. Secretary of State for the Home Department) and C-493/10 (M.E. and Others v. Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform).

^*14 Protocol (No. 30) on the application of the Charter to Poland and to the United Kingdom. – OJ 2010 C 83, p. 313.

^*15 Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi (Bosphorus Airways) v. Ireland (Grand Chamber), no. 45036/98, judgement of 30.6.2005. – ECtHR 2005-VI.

^*16 Von Hannover v. Germany (Third Section), no. 59320/00, judgement of 24.6.2004. – ECtHR 2004-VI.

^*17 Tammer v. Estonia, no. 41205/98, judgement of 6.2.2001. – ECtHR 2001-I.

^*18 Von Hannover v. Germany (N o. 2) (Grand Chamber), no.40660/08 and 60641/08, judgement of 7.2.2010.

^*19 Judgement of the CJEU (Second Chamber) of 22.12. 2010, C-208/09 (Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien).

^*20 L.F.M. Besselink. General report—the protection of fundamental rights post-Lisbon: The interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and National Constitutions. – J. Laffranque (ed.). XXV FIDE Congress Tallinn 2012 proceedings, Volume 1. Tallinn: Tartu Ülikooli Kirjastus 2012, p. 71.

^*21 Supreme Court of Estonia en banc decision of 1.7.2010, 3-4-1-33-09. Available at http://www.nc.ee/?id=1157 (most recently accessed on 26.5.2012).

^*22 See also L.F.M. Besselink. Respecting Constitutional identity in the EU. Case Law A. Court of Justice Case C‑208/09; Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, judgement of the Court (Second Chamber) of 22.12.2010. – Common Market Law Review 2012 (49), pp. 1–22.

^*23 Opinion of Advocate General Sharpston delivered on 14.10.2010, C-208/09 (Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien), reference for a preliminary ruling: Verwaltungsgerichtshof, Austria.

^*24 Judgement of the CJEU (Grand Chamber) of 16.12.2008, C-213/07 (Michaniki AE v. Ethniko Simvoulio Radiotileorasis and Ipourgos Epikratias). – ECR 2008, I-9999.

^*25 Besselink (see Note 22), p. 89.

^*26 Council of Europe Treaty Series (CETS), No. 5, latest amendments by the provisions of Protocol 14 (CETS, No. 194).

^*27 Ratification by Estonia of the European Convention on Human Rights on 16.4.1996.

^*28 See the statistics on pending applications allocated to a judicial formation, available on the Web site of the ECtHR at http://www.echr.coe.int/NR/rdonlyres/D552E6AD-4FCF-4A77-BB70-CBA53567AD16/0/CHART_30042012.pdf (most recently accessed on 26.5.2012).

^*29 OJ C 83, 30.3.2010, pp. 389–403.

^*30 Passed by a referendum held on 28.6.1992 (RT 1992, 26, 349), which entered into force on 3.7.1992 and was amended by acts on the following dates: 5.10.2003, entering into force on 6.1.2004 (RT I 2003, 64, 429); 25.2.2003, with entry into force on 17.10.2005 (RT I 2003, 29, 174); 12.4.2007, with entry into force on 21.7.2007 (RT I 2007, 33, 210), 13.4.2011, with entry into force on 22.7.2011 (RT I, 27.4.2011, 1).

^*31 Passed by the referendum of 14.9.2003 (RT I 2003, 64, 429), with entry into force on 6.1.2004. See J. Laffranque. A glance at the Estonian legal landscape in view of the Constitution Amendment Act. – Juridica International 2007 (XIV), pp. 55–66; J. Laffranque, R. Laffranque. Les modifications apportées à la Constitution estonienne du fait de l’adhésion à l’Union Européenne et leur mise en ouvre par la Cour d’Etat. – Revue d’études politiques et constitutionnelles est-européennes 2008/1, pp. 91–103.

^*32 See Constitutional Review Court Procedure Act, passed 13.3.2002 (RT I 2002, 29, 174; in Estonian), which entered into force on 1.7.2002 and was later amended by several acts —§15, about the authority of the Supreme Court.

^*33 Judgement of the Court of Justice of the European Communities of 21.9.1989, joined cases 46/87 and 227/88 (Hoechst AG v. Commission of the European Communities). – ECR 1989, 2859.

^*34 Judgement of the CJEU (Grand Chamber) of 22.11.2005, C-144/04 (Werner Mangold v. Rüdiger Helm). – ECR 2005, I-9981.

^*35 Judgement of the CJEU (Grand Chamber) of 19.1.2010, C-555/07 (Seda Kücükdeveci v. Swedex GmbH & Co. KG ). – ECR 2010, I-365.

^*36 See also A. Rosas, H. Kaila. L’application de la Charte des droits fondamentaux de l’Union européenne par la Cour de justice: un premier bilan. – Il Diritto dell’Unione Europea 2011 (16)/1, p. 15.

^*37 Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions. 2011 Report on the Application of the EU Charter of Fundamental Rights, Brussels, 16.4.2012, COM(2012) 169 final. Available at http://eur‑lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2012:0169:FIN:EN:PDF or http://ec.europa.eu/justice/fundamental-rights/files/2011-report-fundamental-rights_en.pdf (most recently accessed on 26.5.2012).

^*38 See, for example, the contribution to the Conference on the Principle of Subsidiarity (Skopje, 1.–2.10.2010) ‘Strengthening subsidiarity: Integrating the Strasbourg court’s case law into national law and judicial practice’, a presentation by Christos Pourgourides, Chairperson of the Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe, and compilation of background materials on the interpretive authority (res interpretata) of the Strasbourg court’s judgements. Available at http://assembly.coe.int/CommitteeDocs/2010/20101125_skopje.pdf (most recently accessed on 26.5.2012). Also relevant is a guest lecture given by former President of the European Court of Human Rights Jean-Paul Costa on 10.12.2011 (International Human Rights Day) at the Leiden Law School, in which Costa delivered the first Raymond and Beverly Sackler Distinguished Lecture on Human Rights. His lecture, entitled ‘The current challenges facing the European Court of Human Rights’, stated that there is deep misunderstanding of the principle of subsidiarity; while it is primarily for the national authorities to apply the Convention, this does not mean that the Court plays no role at all. Available at http://law.leiden.edu/news
/guest‑lecture‑by‑former‑president‑of-the-european-court-of-human-rights.html (most recently accessed on 26.5.2012).

^*39 One extensive recent publication on the margin of appreciation can be found in the Centre for European Legal Studies Working Paper Series, University of Cambridge, Faculty of Law, February 2012, by Section President of the ECtHR Dean Spielmann. Allowing the Right Margin, the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review. Available at http://www.law.cam.ac.uk/press/news/2012/03/judge‑dean‑spielmann
‑allowing‑the‑right‑margin‑the‑european‑court‑of‑human-rights-and-the-national-margin-of-appreciation-doctrine-waiver-or-subsidiarity-of-european-review/1821 (most recently accessed on 26.5.2012).

^*40 About the ECHR as a living instrument concept in ECtHR case law, see G. Letsas. The ECHR As a Living Instrument: Its Meaning and Its Legitimacy, a University College London working paper, 14.3.2012. Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2021836 (most recently accessed on 26.5.2012).

^*41 See the case law of the Supreme Court of Estonia—in particular, the Supreme Court Constitutional Review Chamber decision of 26.6.2008 in the so-called Aspen case, no. 3-4-1-5-08, wherein the chamber concurs with the opinion of the Supreme Court Administrative Law Chamber expressed in the latter’s decision of 7.5.2008 in case 3-3-1-85-07. English text available on the Web site of the Estonian Supreme Court in English at http://www.nc.ee/?id=927&print=1 (most recently accessed on 26.5.2012).

^*42 E.g., in Varnava and Others v. Turkey (Grand Chamber), no. 16064/90, a judgement of 18.9.2009, the Court stated the following: ‘164. […] [I]n line with the principle of subsidiarity, it is best for the facts of cases to be investigated and issues to be resolved in so far as possible at the domestic level. It is in the interests of the applicant, and the efficacy of the Convention system, that the domestic authorities, who are best placed to do so, act to put right any alleged breaches of the Convention.’

^*43 Judgement of the Court of Justice of 3.9.2008, joined cases C-402/05 P and C-415/05 P (Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities). – ECR 2008, I-6351.

^*44 W. Weiss. Human rights in the EU: Rethinking the role of the European Convention on Human Rights after Lisbon. – European Constitutional Law Review 2011 (7)/1, pp. 64–95.

^*45 See, for example, the judgement of the CJEU (Grand Chamber) of 15.11.2011, C-256/11 (Murat Dereci, Vishaka Heiml, Alban Kokollari, Izunna Emmanuel Maduike, Dragica Stevic v. Bundesministerium für Inneres),which states in its paragraph 72: ‘Thus, in the present case, if the referring court considers, in the light of the circumstances of the disputes in the main proceedings, that the situation of the applicants in the main proceedings is covered by European Union law, it must examine whether the refusal of their right of residence undermines the right to respect for private and family life provided for in Article 7 of the Charter. On the other hand, if it takes the view that that situation is not covered by European Union law, it must undertake that examination in the light of Article 8 (1) of the ECHR.’

^*46 To that extent, see also the Action Plan of the Interlaken Declaration for reforming the European Court of Human Rights, from 19.2.2010, Section B.4. c), which calls the states to commit themselves to taking into account the Court’s developing case law, also with a view to considering the conclusions to be drawn from a judgement finding a violation of the Convention by another state, where the same problem of principle exists within their own legal system. Available at http://afsj.wordpress.com/2010/02/21
/interlaken‑declaration‑and‑action‑plan‑to-reform-the-european-court-of-human-rights/ (most recently accessed on 27.5.2012).

^*47 M. Andenas, E. Bjorge. National implementation of ECHR rights: Kant’s categorical imperative and the Convention. – University of Oslo Faculty of Law Legal Studies Research Paper Series 2011/15. Electronic copy available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1818845 (most recently accessed on 27.5.2012).

^*48 2010 Scots Law Times 1125.

^*49 Andenas, Bjorge (see Note 47), p. 3.

^*50 Lord Hope’s speech entitled ‘Scots law seen from south of the border’, before the Scottish Young Lawyers’ Association – 11.4.2011, p. 27. Available at http://www.supremecourt.gov.uk/docs/speech_110401.pdf (most recently accessed on 27.5.2012).

^*51 A. Stone Sweet, H. Keller. Assessing the impact of the ECHR on national legal systems. – A. Stone Sweet, H. Keller (eds). A Europe of Rights: The Impact of the ECHR on National Legal Systems. Oxford University Press 2008, p. 687.

^*52 Brighton Declaration. High Level Conference on the Future of the European Court of Human Rights of April 19–20, 2012, Part A. Available at http://www.coe.int/en/20120419-brighton-declaration (most recently accessed on 27.5.2012).

^*53 See also C. Ladenburger. European Union institutional report – The protection of fundamental rights post‑Lisbon: The interaction between the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and National Constitutions (see Note 20), pp. 214–215.

^*54 See the House of Lords (UKHL) in the case of Ghaidan v. Godin-Mendoza (2004), UKHL 30.

^*55 Olivier Dutheillet de Lamothe, Constitutional Court Judges’ Roundtable, 2005, 4 I-CON 550; V. Goesel-Le Bihan. Le contrôle de proportionnalité dans la jurisprudence du Conseil constitutionnel: figures Récentes. – Revue française de droit constitutionnel 2007, pp. 284–285.

^*56 Besselink (see Note 22), p. 65.

^*57 Ibid., p. 81.

^*58 Supreme Court Constitutional Review Chamber decision of 30.9.1994, III‑4/1‑5/94. – RT I 1994, 80, 1159 (in Estonian). English text available in English on the Supreme Court’s Web site, at http://www.nc.ee/?id=482 (most recently accessed on 27.5.2012).

^*59 See also R. Maruste. Konstitutsionalism ning põhiõiguste ja -vabaduste kaitse (Constitutionalism and Protection of Fundamental Rights and Freedoms). Tallinn: Juura 2004, p. 238 (in Estonian).

^*60 E. Rohtmets. Euroopa Inimõiguste Kohtu praktika Riigikohtu lahendites. Kohtupraktika analüüs. Riigikohtu õigusteabe osakond (Case-law of the European Court of Human Rights in the Supreme Court Decisions. Analysis of Court Practice. Department of Legal Information of the Supreme Court). January 2012. Available at http://www.riigikohus.ee/vfs/1285/EIK%20praktika%20RK%20lahendites_analuus_jaan2012_E_Rohtmets.pdf (most recently accessed on 27.5.2012) (in Estonian).

^*61 See Supreme Court en banc decision of 21.6.2011, 3-4-1-16-10 (in Estonian). English text available at http://www.riigikohus.ee/?id=1302 (most recently accessed on 27.6.2012).

^*62 T. Raatsin: Tõlkes röövitud inimõigused ehk miks kohtunik pimedust kardab? (Human Rights Lost in Translation or Why is the Judge Afraid of Darkness?). – Eesti Ekspress, 29.6.2011. Available at http://www.ekspress.ee/news/arvamus/arvamus/teet‑raatsin‑tolkes‑
roovitud‑inimoigused‑ehk‑miks‑kohtunik‑pimedust-kardab.d?id=48502157 (most recently accessed on 27.5.2012).

^*63 Respectively, https://www.riigiteataja.ee/oigusuudised/kohtuuudiste_nimekiri.html and http://www.vm.ee/?q=taxonomy/term/229 (most recently accessed on 27.5.2012).

^*64 Supreme Court en banc decision of 6.1.2004, 3-1-3-13-03 (in Estonian). English text available at http://www.nc.ee/?id=410 (most recently accessed on 27.5.2012) (in Estonian).

^*65 Clause 240 (2) 8) of the Code of Administrative Court Procedure (RT I, 23.2.2011, 3; 28.12.2011, 7); §702 (2) 8) of the Code of Civil Court Procedure (RT I 2005, 26, 197; RT I, 28.12.2011, 44); Code of Misdemeanour Procedure, §180 (4¹) (RT 2002, 50, 313; RT I, 29.12.2011, 1); Code of Criminal Procedure, §366 (7) (RT I, 2003, 27, 166; RT I, 17.4.2012, 6).

^*66 See §333¹ of the Code of Civil Court Procedure; §274¹ of the Code of Criminal Procedure, in force since 1.9.2011; §100 of the Code of Administrative Procedure, in force since 1.1.2012.

^*67 See Raudsepp v. Estonia, no. 54191/07, judgement of 8.11.2011.

^*68 Supreme Court en banc decision of 22.3.2011, 3-3-1-85-09. Available at http://www.riigikohus.ee/?id=1257 (most recently accessed on 27.5.2012).

^*69 Malkov v. Estonia, no. 31407/07, judgement of 4.2.2010.

^*70 Hirst v. the United Kingdom (no. 2), no. 74025/01, judgement of 30.3.2004.

^*71 See, for example, J. Laffranque, Rose D’Sa. Getting to know you: The developing relationship between national courts of the ‘newer’ Member States and the European Court of Justice with particular reference to Estonia. – European Business Law Review 2008 (19), pp. 311–320; J. Laffranque. A glance at the Estonian legal landscape in view of the Constitution Amendment Act. – Juridica International 2007 (XIV), pp. 55–66; J. Laffranque. ‘Community, identity, stability’: Ideals and practice in building a bridge between the legal systems of the European Union and one of the smallest of the ‘Brave New World’. – A.  Lazowski (ed.). The Application of EU Law in the New Member States—Brave New World. The Hague: T.M.C. Asser Press 2010, pp. 157–207.

^*72 Supreme Court Constitutional Review Chamber opinion of 11.5.2006 on the interpretation of the Constitution, 3-4-1-3-06. – RT III 2006, 19, 176 (in Estonian). English text available at http://www.nc.ee/?id=663 (most recently accessed on 27.5.2012).

^*73 Supreme Court Administrative Law Chamber ruling of 7.5.2008, 3-3-1-85-07 (OÜ Aiva Baltic), paragraph 39. Available at http://www.nc.ee/?id=11&tekst=RK%2F3-3-1-85-07&print=1 (most recently accessed on 27.5.2012) (in Estonian).

^*74 A. von Bogdandy. Prinzipien der Rechtsfortbildung im europäischen Rechtsraum: Überlegungen zum Lissabon‑Urteil des BVerfGE. – Neue Juristische Wochenzeitung 2010 (63), pp. 1 ff. See also A. von Bogdandy, S. Schill. Die Achtung der nationalen Identität unter dem reformierten Unionsvertrag. Zur unionsrechtlichen Rolle nationalen Verfassungsrechts und zur Überwindung des absoluten Vorrangs. – Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 2010 (70), pp. 701–734.

^*75 M.E. Villiger. The dialogue of judges. – C. Hohmann-Dennhardt, P. Masuch, M. Villiger (eds). Festschrift für Renate Jaeger, Grundrechte und Solidarität. Durchsetzung und Verfahren. Kehl am Rhein: Engel Verlag 2011, pp. 195–209.

^*76 N. Bratza. The relationship between the UK courts and Strasbourg. – European Human Rights Law Review 2011/5, p. 511.

^*77 Leas v. Estonia, no. 59577/08, judgement of 6.3.2012.

^*78 Euroopa Inimõiguste Kohus mõistis Kihnu endise vallavanema õigeks (The European Court of Human Rights Acquitted the Former Mayor of Kihnu Municipality), news published by Estonian Public Broadcasting (ERR) on 7.3.2012. Available at http://uudised.err.ee/index.php?06247664 (most recently accessed on 27.5.2012) (in Estonian).

^*79 On the concept of ‘new monism’, see also A.E. Kellermann. Comparative aspects on constitutions: Theory and practice. – European Journal of Law Reform 2011 (13), pp. 126–127.

^*80 Opinion of Advocate General Poiares Maduro, delivered on 26.3.2009, C-411/06 (Commission of the European Communities v. European Parliament and Council of the European Union).

^*81 A. Voßkuhle. Der europäische Verfassungsgerichtsverbund. – Neue Zeitschrift für Verwaltungsrecht 2010 (29); A. Voßkuhle. Europa als Gegenstand wissenschaftlicher Reflexion – eine thematische Annäherung in 12 Thesen. – C. Franzius, F.C. Mayer, J. Neyer (eds). Strukturfragen der Europäischen Union. Nomos 2010, pp. 44–45.

^*82 Paavo Nikula’s speech ‘The human rights within [the] EU – key issue in political integration’, in Athens in February 2000, at the conference Towards a Political Unification of Europe?.

^*83 Final version of the draft legal instruments on the accession of the European Union to the European Convention on Human Rights. Available at http://www.coe.int/t/dghl/standardsetting/hrpolicy/CDDH‑UE
/CDDH‑UE_documents_en.asp (most recently accessed on 27.5.2012).

^*84 See, for example, A. Tizzano. Les Cours européennes et l’Adhésion de l’Union à la CEDH. – Il Diritto dell’Unione Europea, no. 1, 201129-57; C. Landenburger. Vers l’adhésion de l’Union européenne à la Convention européenne des droits de l’homme. – Revue trimestrielle de droit européen (RTD Eur) 2011 (47)/1 (Jan.–Mar.), pp. 19–26; J.P. Jacque. The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms. – Common Market Law Review 2011 (48), pp. 995–1023; P. Gragl. Accession revisited: Will fundamental rights protection trump the European Union’s legal autonomy? – European Yearbook on Human Rights 2011, pp. 159–173; T. Lock. Walking on a tightrope: The draft ECHR accession agreement and the autonomy of the EU legal order. – The Common Market Law Review 2011 (48)/4, pp. 1025–1054; Robert Schuman Foundation: Adhésion de l’Union européenne à la Convention européenne des droits de l’homme: analyse juridique du projet d’accord d’adhésion du 14 octobre 2011 (Auteurs: Xavier Groussot, Laurent Pech, Tobias Lock). FrançoiseTulkens, Pour et vers une organisation harmonieuse. – RTD Eur 2011 (47)/1 (Jan.–Mar.).

^*85 High Level Conference… (see Note 52), paragraph 36: ‘The accession of the European Union to the Convention will enhance the coherent application of human rights in Europe. The Conference therefore notes with satisfaction progress on the preparation of the draft accession agreement, and calls for a swift and successful conclusion to this work.’

In order to ascertain this, a general analysis of the basis of positive law (i.e., the law as it is established) is useful. To that end, I will indicate in Section 1 how ‘natural law’ may be interpreted. The ideas of ‘natural law’ and ‘international law’ are, after all, often connected. In Section 2, the way in which rules at the international level operate is dealt with; it will be shown how these are observed and whether they may be enforced. Finally, in Section 3, the topic of human rights is discussed, because of its connection with cross-border legal issues. Coming to the fore here is the question of the extent to which human rights are relevant to this subject.

1. The legal basis at the national level

It is important to determine which elements are constantly (implicitly) present in national law. Through this approach, a possible contrast with the rules at the international level may come to light. Because of the general theme of this article, I cannot address all possible perspectives on natural law; I will merely deal with the most important positions for the present discussion.

I mention the term ‘natural law’; the approaches of two philosophers in particular, Hart and Hobbes, provide clarification with regard to this matter. A familiar interpretation of ‘natural law’ is the ‘classical’ approach; this consists of a standard indicating that a natural law exists in an absolute, immutable, sense and should (in moral terms) be acknowledged as the directive for actual legislation ^*1 , the truth or rectitude being the same for all and equally known to all insofar as the collective principles of reason are involved. ^*2

It may accordingly be said that ‘every posited human law contains the rationale of the law to the degree in which it is derived from the law of nature. If it, however, in any way, discords with the natural law, it will no longer be a law, but a corruption of law’ ^*3 . The right to, for example, a fair trial could from this perspective be taken to exist before it is laid down by a (human) legislator.

This perspective differs from Hart’s. He argues that any social organisation must contain a ‘minimum content of Natural Law’ ^*4 , consisting of ‘universally recognized principles of conduct which have a basis in elementary truths concerning human beings, their natural environment, and aims […]’ ^*5 .

This means that basic rules (according to Hart, even ‘truisms’) have to be present in order for human coexistence to be possible. There has to be ‘approximate equality’, for example: people must be approximately equally strong, since some exceptionally powerful individual could easily dominate the others, without observing the law. ^*6 ‘Natural law’ is clearly given a different meaning from the usual one mentioned above; Hart connects this with the laws of nature, such as the law of gravity. ^*7

The second philosopher who should be mentioned here is Hobbes. For him, ‘natural law’ refers to no more or less than the way in which one acts on the basis of reason. ^*8 In this sense, there are natural laws, the most important of which is that one should attempt to live peacefully alongside others as far as possible, and might resort to war if this should turn out to be untenable. ^*9 Hence, there is significant agreement between Hobbes’s viewpoint and that of Hart, at least in this respect.

Although Hart’s minimum content of natural law pertains to circumstances that apply independently of agents whereas Hobbes focuses on reason and, consequently, the agent, both make it clear that actual circumstances are the issue. Natural law is transposed into positive law; the contents are even alike: ‘The Law of Nature, and the Civill Law, contain each other, and are of equall extent. For the Lawes of Nature […] are not properly Lawes, but qualities that dispose men to peace, and to obedience. When a Common-wealth is once settled, then are they actually Lawes, and not before […].’ ^*10

Both thinkers make an important contribution to determining the basic elements of law. If someone should, for example, be capable of subjugating all others to himself, it may be argued that the existence of legislation would be irrelevant to him. After all, it would not be in his interest to submit to rules that impede him.

Is this approach to natural law the most credible one? As I have said, the treatment of this topic must be of a summary nature, but it is in order to pay some attention to an alternative. This consists in positive law being ideally modelled after ‘classical’ natural law, or natural law in the narrow sense, as it may be called. This alternative is adhered to by many, amongst whom Hugo Grotius is an important exponent. He argues that natural law follows from human nature ^*11 but specifies this differently than (for example) Hobbes, by indicating that it is inherent in natural law to keep one’s promises ^*12 and that people would also have sought each other out if the situation did not involve mutual dependence. ^*13 It is important that not merely reason is involved here but also ‘right reason’. ^*14

It is difficult to make explicit how natural law would compel in this case, as Hobbes observes ^*15 — who doesn’t, incidentally, oppose Grotius but Aristotle, whose work exhibits a similar account of human nature ^*16 (people, in Hobbes’s view, can live together firmly only if the state of nature is abolished and a sovereign is present ^*17 ) and, so, echoes a specific part of the latter’s political philosophy? In Section 2, this topic, the enforceability of law, will receive attention.

As for the question of whether this opinion is tenable, it is difficult to ascertain how the existence of natural law in the narrow sense may be maintained. Natural law in Hart’s and Hobbes’s sense can be defended empirically, but the alternative’s claims exceed the means of its proponents to justify them. It is at least possible to describe a system of law that does not involve this sort of natural law. Even if this isn’t criticised as to its content, an important criticism can thus be made ^*18 of positions that argue for its existence. It cannot be refuted, but its presence can be shown to be redundant.

The situation Hart and Hobbes describe is a valuable starting point for qualification of the national domain. The question arises of whether this applies to the international domain as well. With respect to the ‘approximate equality’, for example, it is obvious that this is not found between states. Section 2 expounds on the consequences of this state of affairs.

2. Enforceability as a necessary element in a system of law

In the previous section, some problems with natural law in the narrow sense were pointed out. Accordingly, it does not seem to provide a viable basis in argument for the existence of ‘international law’. In this section, the issue is approached from a different perspective, enquiry into the relevance of enforceability. I will start again with the analysis at the national level; this time, the contrast with ‘international law’ receives more attention than it did in the first section.

It is, among other things, characteristic of national legislation that it can be enforced. An example at that level can be found in Article 310 of the Dutch Penal Code, which makes theft punishable—this has no value if a perpetrator of this felony cannot be tried before a court of law. How is the issue settled internationally? If one wants to summon a state before the International Court of Justice, that state must itself have recognised the jurisdiction of said court (Article 36, Section 2 of the Statute of the International Court of Justice). The same rule applies to a situation in which parties appear before the International Criminal Court (Article 12, Section 2 of the Rome Statute of the International Criminal Court).

The International Court of Justice and the International Criminal Court lack, in this respect, the unconditional authority of national courts of law, whose decisions can actually be enforced, irrespective of the will of the parties involved (see, for example, Article 553 of the Dutch Criminal Proceedings Act for the Dutch situation). A sovereign at the international level is lacking; the consequences of this are evident: there is no instance to which parties have transferred their competencies, and the judge, accordingly, merely rules in the cases that are willingly submitted to his discretion. One may wonder whether this state of affairs may be deemed a practice of law.

This case, of course, involves not the (supposed) basic contract on the basis of which, in Hobbes’s model, the contracting parties appoint a sovereign ^*19 but the fact that rules must be enforceable. Hart distinguishes between primary and secondary rules; the first sort of rules indicate what one must do or is forbidden to do, while rules of the second sort determine, besides the coming about and changing of the primary rules—in the form of ‘rules of adjudication’—that judges are given the power to judge. ^*20 This has no merit without the additional possibility of imposing sanctions.

Hart resists the idea that the sovereign is above the law. ^*21 In his model, moreover, the position of a sovereign is not a central issue, because of the following reasoning: ‘There are […] two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials.’ ^*22

If these conditions are indeed met, a sovereign may not be required (although it should still be possible to sanction a transgression of the rules). At the international level, this situation does not apply, as is apparent from the behaviour of some (powerful) states. There, the lack of a sovereign is problematical: what exists is licence. It turns out that there is only a conditional relationship at this level: the parties agree on something and accept that a judge may render a verdict.

The fact that there is a judge seems nonetheless to imply the presence of law. Still, how should this be appraised? The following from the Charter of the United Nations is illustrative: ‘If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council’ (Article 94, Section 2 of the UN Charter). Since the permanent members have the right of veto (Article 27, Section 3 of the UN Charter), in a number of cases there will be no legal enforcement. ^*23

This also applies to sanctions that may be imposed by the Security Council: members of the United Nations ‘may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council’ (Article 5 of the UN Charter) and ‘may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council’ if they have not acted in accordance with the principles of the charter (Article 6 of the UN Charter). Those who are permanent members may prevent sanctions being imposed against them. This already points to an important given: some states being more powerful than others. While, as described in the previous section, not a decisive factor at the national level, it impedes the enforcement of decisions or renders them impossible. ^*24 It is not without reason that countries such as Japan attempt to acquire permanent membership, while it would at the moment probably be unrealistic to expect countries such as Belgium, Finland, and Estonia to fulfil this role.

The status of the member states appears to be decisive for the position they occupy. Similar issues may present themselves at the national level, but in those cases they are excesses. If a national court of law were to punish a successful businessman differently from a beggar (ceteris paribus), this would be considered unacceptable. At the international level, in contrast, that one state is more powerful than another is not only accepted but evidently an established principle.

As for disputes about judgements by the International Criminal Court, the cases are, insofar as they don’t concern the judicial functions of the Court, referred to the International Court of Justice if the states cannot come to an understanding amongst themselves (Article 119, Section 2 of the Rome Statute of the International Criminal Court), so the problem just noted occurs here as well.

This is also apparent at the European Union level. If a Member State doesn’t adhere to an obligation that is incumbent on it on the basis of the consolidated version of the Treaty on the Functioning of the European Union, the European Commission may, having called upon said Member State to take the appropriate measures, bring the case before the Court of Justice of the European Union (Article 258 of the treaty). If the Court rules in favour of the European Commission, the Member State in question is to take the necessary measures to comply with the Court’s judgement (see the treaty’s Article 260, Section 1).

This is a straightforward practice. However, should the relevant Member State subsequently fail to comply with the Court’s judgement or not pay a ‘lump sum or penalty payment’ that the Court imposes on it (see Article 260, Section 2) of the treaty, there are no further legal means for inducing action by the Member State. There are, of course, political means by which to manoeuvre, but these exist irrespective of the rules, such that an appeal to them doesn’t enhance the status of European legislation. The provisions of the consolidated version of the Treaty on the Functioning of the European Union directed at the Member States may be invoked by individuals before a national court of law, but this shifts crucial entity to the nation, such that, via a detour, national law is concerned: European legislation is here accepted and applied.

It is not just the position of the judge that is illustrative of the dubious standing of international legislation. An organ of the executive of the United Nations, the Security Council (mentioned above), appears not to be able to operate on its own. This is clear from the fact that five of the 15 members had to be given the status of permanent member (Article 23, Section 1 of the UN Charter) and thus, moreover, acquired the right of veto, as mentioned above, apparently because they would not have obeyed decisions that run counter to their interests. This pragmatic solution is commendable, but in this way politics are decisive and there seems to be no room for a (separate) domain of law.

It is, then, difficult to demonstrate that international law exists. Agreements have been made, but it cannot consistently be inferred from states’ behaviour that they acknowledge these as having legal force. Problems seldom ensue, since the issues involved are such that it is to the states’ advantage that the agreements be followed, or since one wants to prevent political difficulties from arising ^*25 , but that doesn’t indicate the recognition of international norms as law.

Hegel points to the problems at the international level as resulting from a lack of enforceability: ‘There is no magistrate; there are at best arbitrators and mediators between states, and these merely coincidentally, i.e., according to specific wishes.’ ^*26 Although many supranational organisations have been established, this observation still seems to be correct. In Hegel’s view, there can only be a command (expressed with the Sollen modality) to obey the rules ^*27 , and the problems might be resolved through moral standards. ^*28 For Hegel, moreover, positive law and natural law coincide. ^*29

Similar characteristics feature in the current situation: ‘A clear weakness of international law […] is that the enforcement mechanisms of international law continue to be unsatisfactory and the Security Council does not offer an adequate substitute.’ ^*30 This is not all there is to say on this issue; international law may originate in the same manner as national law. Once international law is realised, it is abided by because enforceability is a given. Accordingly, it is not in the nature of international law that it could not exist; it would be more apt to say that it must follow the same course as national law if it is to function. Franck rightly points out that incidental non‑compliance is not decisive. This is manifested even at the national level. ^*31 However, there is a crucial difference: actors at the national level that do not observe the law can be punished against their will. ^*32

It may be objected that in the above discussion no definition was given of ‘law’ or of ‘right’. This task is not only difficult but perhaps even impossible. To this predicament one may add, as does G.L. Williams, that ‘there is no such thing as an intrinsically “proper” or “improper” meaning of a word’ ^*33 and that ‘the idea of a true definition is a superstition’ ^*34 , such that the matter of whether ‘international law’ is law is merely a verbal ^*35 one and needs to be abjured ^*36 (no pun intended). These observations have merit. A definition is in many cases an inadequate tool for argumentation—viz., if one develops a definition and subsequently asks what follows from it. Various lines of thought may arise thereby that are not mutually compatible or consistent; they may even conflict with each other. Alternatively, a definition may enter common use if justified, as is that of a triangle.

The question is, then, which of these two situations—one proceeds from a definition and constructs a line of thought on this basis or one uses a definition justifiedly—applies. In my opinion, it is the second, so that the remarks of Williams are enervated, at least with regard to this issue. To illustrate this, I point to the way the word ‘law’ is used. If someone were to say that the Corpus Iuris Civilis is law at present, he would have a hard time explaining why this is so, whereas it would be easy to argue that (part of) it was law during the 6th century AD. ^*37

This approach does not necessarily entail ‘international law’ not being law, of course: there are people who use the word ‘law’ to refer to ‘international law’ (otherwise there would be little point in the present article, after all). This usage appears to result from an unwarranted expansion of the domain to which ‘law’ may be said to refer. One easily brings the political process into the discussion when referring to the international domain, thus confounding politics and law: ‘[A]ssurances for securing compliance with [customs, principles, and norms that function as rules to regulate conduct by persons in their mutual relations as members of a political community] need not be predicated on the assertion of force or the promise of swift, certain punishment of wrongdoers. In the international dimension, guarantees of law for regulating states remain primarily couched in international public opinion and the political will of governments to make the law work in their national interest.’ ^*38 If such a position is opted for, the discussion comes to an end prematurely, since ‘international law’ is then supposed to include international politics, which evidently do exist.

In any event, it seems clear that the obligations that the law imposes need to be enforceable; lack of permissiveness is characteristic of the law. D’Amato presents an admirably nuanced view in dealing with the matter with regard to the international level, but his interpretation of ‘enforcement’ seems too broad; pointing out that some punishments are not physical (e.g., a monetary fine), one may conclude that ‘when we think of legal enforcement, we need not imagine the use of physical force against the person of the law violator, although, of course, in some cases physical force is appropriate’. ^*39 Yet (physical) force is invariably needed if the initial punishment is not effective (if the fine is not paid, enforcement will still be necessary). So even if force is not always immediately required, its presence in the form of a means of backup is needed.

Does this mean that the state of nature, for the time being at least, continues to exist between states? Hobbes affirms this. ^*40 This, according to his line of thought, does not mean that actual battle need arise, for he distinguishes between war and battle: ‘WARRE, consisteth not in Battell onely, or the act of fighting; but in a tract of time, wherein the Will to contend by Battell is sufficiently known […].’ ^*41

The objection that the differences between states are greater than those between individuals, which is sometimes offered as evidence that Hobbes’s depiction of the state of nature doesn’t apply to the international level ^*42 , is not decisive, since various reasons may exist for countries not attacking other countries—e.g., the danger that they will, in turn, be attacked themselves by countries that have a special interest in retaliatory measures, or the value they accord to the economic interests that can be satisfied peacefully being greater than the gains that may result from an act of aggression.

Here also, Grotius’s position is not a realistic alternative. He too emphasises the role of enforcement: it is the law that enforces. ^*43 The power to sanction flows, in his opinion, from natural law itself ^*44 ; sovereigns impose sanctions, but this is a result of natural law rather than of their positions as rulers. ^*45 Natural law itself lacks force but is still effective (‘Neque […] quamvis a vi destitutum ius omni caret effectu’). ^*46 Natural law would then, in the absence of authority for taking action, have to ‘force’, which is difficult to support rationally without an appeal to a (presupposed) human nature (see Note 11).

Hart points out that the law can’t be reduced to ‘general orders backed by threats given by one generally obeyed’ ^*47 and that the enforceability that, as indicated above, is characteristic of the national level is a necessary condition for distinguishing between rules of law and requests or commandments ^*48 as long as the law has not been internalised by the subjects of law (or, rather, prospective subjects of law). Hart does not want to infer from the fact that there is no enforceability at the international level that international law does not exist ^*49 , but he doesn’t make it clear what this lack of enforceability might mean. A reference to the fact that states actually keep to the rules is not sufficient here, since they do this on the basis of self-interest.

In this regard, one may argue that states, acting only if gains are to be expected ^*50 , are not bound in the same way individuals are at the national level. The conclusion that ‘[t]here is no easy or clear way to distinguish international law from either politics or mere norms’ ^*51 seems justified, with the caveat that this implies the conceptual existence of separate domains of ‘international law’ and ‘norms’. The difficulty of the former I have attempted to expound upon above; the problems with the latter require a treatment that would lead to too great a digression. Still, in the last section a relevant issue will be discussed that borders on this.

3. The import of human rights

In the foregoing, it was shown that it is difficult to demonstrate the existence of international law owing to a lack of enforceability at the international level. Yet the existence of universal human rights seems to point to international law. Many agreements have been signed to protect human rights, among them the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Rights of the Child. Should the presence of international law, if one sets the enforceability issue to the side, not be concluded on the basis of this given?

Those who contend that international law has been settled in these documents seem to overlook an important factor. They are indeed universal treaties, in that they focus on the rights of human beings the world over. On the other hand, the universality is obviously limited: they are universal treaties on human rights. There are principles that transcend the systems of law of countries, such as the principle that something being punishable should proceed from a legal basis, which is established in both national legislation and international treaties—e.g. in Article 15 of the International Covenant on Civil and Political Rights (ICCPR). Does this imply the presence of an international domain of principles, to be codified by legislators, or is there another basis of law than the universal human rights?

In virtually every society, there seems to be a basic set of standards (see Section 1), though one may call even this into question. ^*52 I will not address the opinions of those who argue for fundamental relativism in this respect. This stance can’t be refuted a priori and is more radical than what I put forward here. If such a position is accepted, it will only have even more extensive consequences for the appraisal of law.

There seem to be (or to have been) primitive societies wherein necessary fundamental norms, such as the duty to abstain from killing one another, are (or were) not maintained, but what is the relevance of this? It is unclear whether one may really call these societies; the matter depends on one’s definition of ‘society’. To what extent do affinities or alliances justify employing the concept of society? If one merely associates at times of mutual dependence, an atomic whole (given that one does not consider oneself, at least primarily, to be a part of a greater whole) remains the background for each relationship.

At any rate, the fact that societies acknowledge basic standards independently of each other is no proof of the existence of natural law in the narrow sense. One can point to—besides the minimum content of natural law ^*53 or the laws of nature ^*54 , in which the domain for positive law to have a breeding ground at all is made explicit (see Section 1)—a number of values, such as the right to life (Article 6 of the ICCPR) and a fair trial (Article 14 of the ICCPR), which are indeed necessary conditions. If one should, for example, not deem one’s life protected properly by (the enforcers of) the law, anarchy might be imminent. From this it may be concluded that the basic rights and laws that appear in each system of law owe their existence to their being required for a system of law to be possible at all.

This can be illustrated by a (global) description of the development of the rights of individuals. Those who could exert the greatest power in society were able, once rights had been established, to determine which rights would be enshrined in social systems and to whom they would be allotted. It may be argued that gender and race were pivotal factors in this development, which is clear from, for instance, the respective moments at which women received suffrage in Europe and the USA, and the subordinate position of minorities in various places.

At some point (the moments varied), rights of women and minorities were acknowledged. One may wonder whether universal principles were then transmitted into positive law. This would mean that it was recognised that these groups of people should not be disfavoured. This thesis is difficult to support. It seems more likely that the position of these groups could no longer be ignored as they gained power, partly because of their ability to unite. To deny them their rights would undermine the system of law.

This is, of course, not the only possible way to explain the rise of these rights. One may, alternatively, appeal to human life as being ‘of intrinsic importance’ ^*55 , or the idea may be advanced that in some cases reason was acknowledged as a criterion. With respect to the first of these two possibilities, it is difficult, if not impossible, to clarify the meaning of the notion of intrinsic value ^*56 , and, apart from that, why, even if it is acknowledged to be correct, it does not extend to other beings than human beings. In the second case (an appeal to reason), one may grant reason its role as the criterion but maintain that this is done only because certain rights could no longer be withheld. If a being apparently endowed with reason were not granted the basic rights, the grounds for the rights of those already in possession of them would at some point become subject to debate. Reason would no longer serve as a standard and would have to be replaced by another one. A new standard is absent, however, which is why this issue was brought up in the first place. It is reasonable beings who maintain reason as a criterion ^*57 , since this is a property they share (and through which they can distinguish themselves in relevant respects from other beings), a factor that continually serves as a minimum condition for claiming of a particular right. In this case, it is important to distinguish between being able to apply one’s reason in establishment of rights on the one hand and acknowledging reason as a criterion for assignment of certain rights on the other. That this distinction is not always made does not detract from its merit.

It is decisive that reasonable creatures are the ones formulating the rights and norms. They allocate a specific domain for themselves and those like them, wherein more rights can be appealed to than elsewhere. Only they, by the way, are of course able to accomplish this. Animals (apparently) not only lack the intelligence to reach the level of abstraction required to draft laws but are even unable to realise the systematic organisation that serves as a prerequisite for a forum to produce laws. As far as they are concerned, it seems, there is merely a community. This may be quite large, as seems to be the case for a number of species of bees. There is no need here to realise legislation: mutual competition which is characteristic of humans is absent, for one reason because these creatures don’t (or even can’t) observe a difference between private and public interests. ^*58

At any rate, what is under debate is not that it is acknowledged that the rights of reasonable beings ought to be respected, in accordance with natural law in the narrow sense, but that a minimum domain can be isolated, wherein one is safe. Those beings without access to this domain cannot appeal to these rights. In this way, one may, if one, in fact, also acts on this basis (and doesn’t oneself act upon the conviction—which, as noted above, I do not share—that natural law in the narrow sense applies), withhold basic rights from beings deemed not to employ reason.

The difficult matter of what reason is and which beings may be said to dispose of it is not explicated here; this is not necessary, as only the factual situation is considered (i.e., what ‘reason’ has been taken—roughly—to be), although conceptions as to its nature may have been prompted, however inadvertently, by a desire to find a distinguishing feature. The need for a specific domain as mentioned above would in that case have an even more fundamental precursor here.

Animal rights have been laid down in legislation rudimentarily. ^*59 Fundamental animal rights are in some places recognised—the German Constitution addresses them, for instance (in §20a)—but in these cases only very general rights are covered. Many rights are irrelevant for animals, such as freedom of expression. The most important ones, such as the right to life, however, are important. Perhaps some animal rights will eventually be established structurally.

An ever greater number of rights may in this way be laid down, such that the domain of subjects of law gradually expands from white men to human beings to sentient beings. It cannot be inferred from this that universal principles would function as a driving force, as it is unclear how the process in which an increasing number of rights are acknowledged develops and why. If the route allowing insight into this process is not clear, only the resultant visible development can be properly observed.

The consideration mentioned in Section 1 is relevant here. I argued there that the absence of natural law in the narrow sense cannot be demonstrated, which did not prove to be a decisive objection. The present discussion adds that it cannot be proved that universal principles exist. Of course, this is not the challenge; on the contrary, it is up to those who maintain the concept of natural law in the narrow sense to demonstrate to what extent they would exist. Accordingly, the issue revolves around the question of whether it is more credible for such principles to serve as a basis in establishment of human rights or, instead, they should be considered to be generalisations made in hindsight; the choice is between a top-down and a bottom-up approach. I have indicated above that the second approach seems to me to be the more persuasive.

What does this imply for the issue of whether international principles are decisive for law? Rules at the international level are no indication of the existence of natural law in the narrow sense. In international relations, one does not suppose that certain principles of natural law in the narrow sense should be transposed into positive law. If this plays any role, it merely points to a possible justification of natural law in the narrow sense, but if it doesn’t play any role, the debate is concluded even sooner.

4. Conclusions

In this article, I have outlined a number of aspects of the domain referred to as ‘international law’ and on that basis problematised the idea that ‘international law’ exists. The first section explored what the minimal conditions are if a system of law is to be considered as such. I pointed out the characteristics that can be found in any system of law. Of special importance is that none of the subjects of law are able to ignore the rules.

Section 2 elaborated upon this, also describing what it means at the international level. It emerged from the discussion that difficult questions arise from the fact that a great number of rules cannot be enforced at that level. If a state can simply ignore certain rules, it is difficult to maintain that there is law, particularly if this situation is compared with that obtaining at the national level, where a relatively clear process of law can be discerned.

Finally, human rights, which were discussed in Section 3, exhibit international patterns. It doesn’t follow from this, however, that international principles are involved. It is more credible to argue that one is motivated by one’s own needs. People appear to want to optimise their position and can only realise this in a seemingly credible manner by respecting the rights they wish to have bestowed upon them as rights of others as well.

This article’s purport is primarily academic: problems at the international level are often—pragmatically—resolved by means to which many parties can assent. That this is not a merely theoretical issue is clear from the fact that those solutions are invariably of a political nature. For example, if a relatively powerful state acknowledges the authority of the International Court of Justice, it does so because this yields more favourable results, economically or politically, than does the alternative of not acknowledging its authority.

For resolution of this state of affairs, conglomerates were formed, such as Europe, but this doesn’t produce a consistent solution and leads to ad hoc approaches. This situation—international politics being decisive in the stead of alleged ‘international law’—will remain until a supranational system of law emerges that is modelled after those in developed countries. Whether such a system will, in fact, appear is difficult to predict.

Notes:

^*1    T. Aquinas. Summa Theologiae [1274]. Complete Works, Vol. 7: 1a2ae, Summae Theologiae a quaestione 71 ad quaestionem 114. Rome: Ex Typographia Polyglotta S. C. de Propaganda Fide 1892, Q 90, Article 2 (p. 150); Q 93, Article 3 (p. 164); Q 94, Article 2 (pp. 169, 170); Q 94, Article 5 (pp. 172, 173).

^*2    Ibid., Q 94, Article 4 (p. 171).

^*3    Aquinas (see Note 1) wrote: ‘Unde omnis lex humanitus posita intantum habet de ratione legis, inquantum a lege naturae derivatur. Si vero in aliquo a lege naturali discordet, iam non erit lex, sed legis corruptio’. – Q 95, Article 2 (p. 175).

^*4    H.L.A. Hart. The Concept of Law. Oxford: Clarendon Press 1961, p. 189.

^*5    Ibid.

^*6    Ibid., pp. 190, 191.

^*7    Ibid., p. 184.

^*8    The (subjective) ‘right of nature’ is not specified (as, for example, is the right to life), as Hobbes defines the liberty that is part of this right negatively as ‘the absence of externall Impediments’. See T. Hobbes. Leviathan [1651]. Cambridge: Cambridge University Press 2007 with R. Tuck (ed.), p. 91 (in Chapter 14); see p. 145 (in Chapter 21).

^*9    Ibid., pp. 91, 92 (in Chapter 14). His premise in this respect is similar to Hart’s when he emphasizes the (approximate) equality between people. See Hobbes (see Note 8), pp. 86, 87 (in Chapter 13).

^*10 Ibid., p. 185 (in Chapter 26).

^*11 H. Grotius. De Iure Belli ac Pacis [1625] (On the right of war and peace). Aalen, Germany: Scientia Verlag 1993, p. 9 (Prolegomena, §8).

^*12 Ibid., p. 11 (Prolegomena, §15). Hobbes also promulgates this—Hobbes (see Note 8), p. 100 (in Chapter 15)—but not in the same way as Grotius (that is, on the basis of a ‘social appetite’; see Grotius (ibid.), p. 8 (Prolegomena, §7)), since without a sovereign to preserve the peace, people don’t (stably) unite (Hobbes (see Note 8), p. 88 (in Chapter 13)). Instead, they do so on the basis of self-interest—e.g., Hobbes (see Note 8), p. 93 (in Chapter 14).

^*13 Grotius (see Note 11), p. 12 (Prolegomena, §16).

^*14 Grotius states that natural law is the dictate of right reason (‘Ius naturale est dictatum rectae rationis’) (see Note 11), on p. 34 (Book 1, Chapter 1, §10). The term ‘right reason’ is used by Hobbes too (see Note 8), p. 32 (in Chapter 5), for whom the notion lacks the moral connotation it has with Grotius.

^*15 Hobbes (see Note 8), p. 471 (in Chapter 46).

^*16 Aristotle. Politica [c. 350 BCE]. Opera, Vol. 2. Darmstadt: Wissenschaftliche Buchgesellschaft 1960 with I. Bekker (ed.), 1253a.

^*17 Hobbes (see Note 8), p. 88 (in Chapter 13).

^*18 By means of the approach known as Occam’s razor, after an interpretation of part of William of Ockham’s epistemology. See G. de Ockham. Scriptum in Librum Primum Sententiarum Ordinatio [c. 1319], Distinctiones 19–48. Opera Philosophica et Theologica: Opera Theologica, Vol. 4. St. Bonaventure University, New York: St. Bonaventure University 1979 with G. Etzkorn, F. Kelley (eds), Distinctio 30, Quaestio 1 (p. 317), Quaestio 2 (p. 322); cf. Distinctio 27, Quaestio 2 (p. 202).

^*19 Hobbes (see Note 8), p. 120 (in Chapter 17).

^*20 Hart (see Note 4), p. 94.

^*21 Ibid., p. 218.

^*22 Ibid., p. 113.

^*23 Hart (see Note 4, p. 227) considers this to be an important objection.

^*24 See Hart (see Note 4), pp. 191, 214.

^*25 The latter situation may account for behaviour that seems to be at odds with the thesis that international law is observed by states even if this seems to conflict with their interests. See S.V. Scott. International law as ideology: Theorizing the relationship between international law and international politics. – European Journal of International Law 1994 (5)/1, p. 314.

^*26 ‘Es giebt keinen Prätor, höchstens Schiedsrichter und Vermittler zwischen Staaten, und auch diese nur zufälligerweise, d.i. nach besondern Willen’, states G.W.F. Hegel. Grundlinien der Philosophie des Rechts oder Naturrecht und Staatswissenschaft im Grundrisse [1821]. Bad Cannstatt, Stuttgart: Friedrich Frommann Verlag 1964, §333, note on p. 443.

^*27 Ibid., §333 (p. 443).

^*28 Such a way out doesn’t suffice, in my opinion, but I won’t elaborate on that here.

^*29 There is, from Hegel’s perspective, only positive law (Hegel (see Note 26), §3 (p. 42)), but this merely follows from the fact that there is no difference between positive law and natural law (see his note in §3, on pp. 42, 43).

^*30 A. Carty. Philosophy of International Law. Edinburgh: Edinburgh University Press 2007, p. 81.

^*31 T.M. Franck. The power of legitimacy and the legitimacy of power: International law in an age of power disequilibrium. – American Journal of International Law 2006 (100)/1, p. 91; see A. D’Amato. International Law: Process and Prospect. Irvington, New York: Transnational Publishers 1995, p. 9.

^*32 As Hobbes puts it, ‘if any man had so farre exceeded the rest in power, that all of them with joyned forces could not have resisted him, there had been no cause why he should part with that Right which nature had given him’. T. Hobbes. De Cive [1651] (English version, entitled in the first edition ‘Philosophicall Rudiments Concerning Government and Society’). Oxford: Clarendon Press 1983 with H. Warrender (ed.), Chapter 15, §5 (on p. 186).

^*33 G.L. Williams. International law and the controversy concerning the word ‘law’. – British Yearbook of International Law 1945 (22), p. 148.

^*34 Ibid., p. 159.

^*35 Ibid., p. 157.

^*36 Ibid., p. 163.

^*37 The legislation was initially limited to the Eastern Roman Empire; upon the recapture of the provinces of the Western Roman Empire that had fallen to the Ostrogoths, it was introduced there as well. The restored unity did not last, however, as the empire was invaded by the Lombards in 568 AD. It is doubtful whether the legislation was predominant even before 568 AD—inter alia, since it did not constitute a systematic whole.

^*38 C.C. Joyner. International Law in the 21st Century. Lanham, Maryland, US: Rowman & Littlefield Publishers 2005, pp. 5, 6.

^*39 D’Amato (see Note 31), pp. 14, 15.

^*40 Hobbes (see Note 8), p. 90 (in Chapter 13); p. 163 (in Chapter 22).

^*41 Ibid., p. 88 (in Chapter 13).

^*42 A.N. Yurdusev. Thomas Hobbes and international relations: From realism to rationalism. – Australian Journal of International Affairs 1996 (60)/2, p. 316.

^*43 Grotius (see Note 11), p. 34 (Book 1, Chapter 1, §9).

^*44 Ibid., p. 511 (Book 2, Chapter 20, §40).

^*45 Ibid., p. 509 (Book 2, Chapter 20, §40).

^*46 Ibid., p. 13 (Prolegomena, §20).

^*47 Hart (see Note 4), p. 24.

^*48 Apart from the Ten Commandments, which are not supposed to be without consequences if not obeyed.

^*49 Hart (see Note 4), p. 215.

^*50 See A.T. Guzman. How International Law Works: A Rational Choice Theory. Oxford: Oxford University Press 2008, pp. 121, 180.

^*51 Ibid., p. 217.

^*52 See P. Winch. Ethics and Action. London: Routledge & Kegan Paul 1972, p. 58.

^*53 See Hart (see Note 4).

^*54 See Hobbes (see Note 8).

^*55 R. Dworkin. Is Democracy Possible Here? Princeton, New Jersey, Oxford: Princeton University Press 2006, p. 35.

^*56 Dworkin does not, in any case, succeed in doing this. He appeals merely to a principle (the ‘principle of intrinsic value’) that ‘almost all of us’ are said to share (ibid., p. 9). This does not seem to be more than an appeal to common sense, which cannot, in my opinion, serve as a basis.

^*57 Schopenhauer already points to this. See A. Schopenhauer. Die beiden Grundprobleme der Ethik [1840]. Sämtliche Werke, Vol. 4. Wiesbaden: Eberhard Brockhaus Verlag 1950, p. 162.

^*58 See Hobbes (see Note 8), pp. 119–120 (in Chapter 17).

^*59 If one opines, perhaps on the basis of an account similar to the one described above, that the deciding criterion is whether a being can suffer, which Bentham famously advanced as the pivotal issue (J. Bentham. An Introduction to the Principles of Morals and Legislation [1789]. The Works of Jeremy Bentham, Vol. 1. New York: Russell & Russell 1962 with J. Bowring (ed.), note on p. 143), animals’ suffering is to be avoided, at least to some degree.